Thorne v. Commissioner, Social Security Administration, No. 6:2012cv00338 - Document 22 (D. Or. 2013)

Court Description: OPINION & ORDER: The Commissioner's final decision that plaintiff is not disabled is based on proper legal standards and is supported by substantial evidence; it is therefore Affirmed. Signed on 6/20/13 by Magistrate Judge Paul Papak. (gm)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RICHARD THORNE, Civil No. 6:12-cv-00338-PK Plaintiff, OPINION AND ORDER v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ALAN STUART GRAF 316 Second Rd. Summertown, TN 38483 Attorney for Plaintiff S. AMANDA MARSHALL United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 SW Third, Suite 600 Portland, OR 97204 DAVID MORADO Regional Chief Counsel, Region X, Seattle SCOTT T. MORRIS Special Assistant United States Attorney Social Security Administration Office of the General Counsel 1301 Young Street, Suite A702 Dallas, TX 75202 Attorneys for Defendant 1 - OPINION AND ORDER - PAPAK, Magistrate Judge. Plaintiff Richard Thorne challenges the Commissioner's decision denying his application for disability insurance benefits (''DIB'') under Title II and supplemental security income (''SSI'') under Title XVI of the Social Security Act (the "Act''), 42 U.S.C. §§ 404-34, 1381-83f. § 405 (g). Both This court has jurisdiction under 42 U.S.C. parties have consented Magistrate Judge in accordance with Fed. U.S.C. § 636(c). For the reasons to R. set proceed Civ. forth P. before a 73 and 28 below, the Commissioner's decision is AFFIRMED and this case is DISMISSED. BACKGROUND On May 19, 2010, plaintiff protectively filed applications for a period of disability, disability insurance benefits, and SSI disability benefits. Tr. 13, 145-51. Plaintiff claimed he became disabled as of March 25, 2010, due to "arthritis in broken [right] hand'' and ''mental.'' Tr. 145, 152, 178. Born on December 18, 1957, plaintiff was 52 years old on the alleged onset date of disability, and 53 years old on the date of the ALJ' s decision. Tr. 20, 174. Plaintiff had a "limited" education, as he dropped out of high school in the eleventh grade. Tr. 20, 38-39. Plaintiff worked for over 30 years as a heavy equipment operator. Tr. 20, 33. On May 26, 2010, plaintiff's application for SSI was denied on the basis that plaintiff 2 - OPINION AND ORDER - had resources in excess of the statutory limit. Tr. 97-102. Plaintiff's application for disability insurance benefits was denied initially on July 14, 2010, and on reconsideration on November 4, 2010. November 29, 2010, Tr. 115-17. Tr. 111-14. On Plaintiff requested a hearing before an ALJ. Plaintiff also filed a second application for SSI. Tr. 157-62. On March 8, 2011, Administrative Law Judge Murgo conducted a hearing. hearing, with counsel, Tr. 32-78. and ("ALJ") Rudolph Plaintiff appeared at the testified. Tr. 32-57. Clinical Psychologist Margaret Moore, Ph.D., and vocational expert Jeffrey Tittlefitz also testified. On April 26, 2011, the ALJ issued a decision finding On May 11, 2011, plaintiff requested review of the ALJ's decision. Tr. 7-9. On December 21, plaintiff not disabled. Tr. 10-24. 2011, the Appeals Council declined to review the ALJ's decision. Tr. 1-6. On February 24, 2012, plaintiff filed this action to obtain review of the Commissioner's final administrative decision. See 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481, 422.210. STANDARD OF REVIEW The district court must affirm the Commissioner's decision if it is findings are supported by substantial evidence in the record as a whole. 42 U.S.C. based § on proper legal standards and the 405(g); Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 3 - OPINION AND ORDER - 1222 (9th Cir. "Substantial evidence means more than a 2009). mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support Vasquez v. a conclusion." 2009) (citation Astrue, 572 F.3d 586, omitted). The must court 591 weigh (9th Cir. all of the evidence, whether it supports or detracts from the Commissioner's decision. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). If evidence supports more than one rational interpretation, Tommasetti v. Astrue, court upholds the Commissioner's decision. 533 F. 3d 1035, 1038 (9th Cir. 2008). the A reviewing court, however, ''cannot affirm the decision of an agency on a ground that the agency did not invoke in making its decision," Stout v. Soc. 2006) Sec. omitted). Admin., 454 F. 3d 1050, 1054 (9th Cir. Comm'r (citation "Finally, the court will not reverse an ALJ's decision for harmless error, which exists when it is clear from the record that the ALJ's nondisability error was determination.'' inconsequential Tommasetti, to 533 the ultimate F.3d at 1038 (citation omitted). DISCUSSION I. The ALJ's Findings The ALJ applied the five-step, sequential determining whether plaintiff was disabled. C.F.R. §§ 404.1520(a) (4), 4 - OPINION AND ORDER - 416.920(a) (4). Tr. evaluation 14-15. for See 20 As an initial matter, the ALJ found plaintiff remained insured under Title II of the Act throughout the relevant period. Tr. 15, Finding 1. The parties do not dispute this finding. At step one, the ALJ found plaintiff had not engaged in substantial gainful activity since his alleged onset date of March 25, 2010. plaintiff Tr. had 15, the Finding 2. following, depression and alcohol abuse. At step two, medically-severe Tr. 15, Finding 3. the ALJ found impairments: At step three, the ALJ found plaintiff's impairments did not meet or equal the requirements of a listed impairment. Tr. 16-17, Finding 4. The parties do not dispute the ALJ's findings in steps one through three. Before proceeding to step four, the ALJ assessed plaintiff with the following residual functional capacity (''RFC''): [T)he claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he can perform tasks that do not involve any contact with the public, and only occasional co-worker contact. Tr. 17, Finding 5. The ALJ considered plaintiff's subjective complaints of pain and other symptoms, but found them to be less than fully credible. Tr. 17-19, Finding 5. the ALJ' s assessment of his credibility, Plaintiff disputes as well as the ALJ' s assessment of his RFC in terms of the evaluation of his alcohol abuse and the weight he accorded the various medical opinions of record. 5 - OPINION AND ORDER - At step four, the ALJ concluded plaintiff could perform his past relevant work as a heavy equipment operator. 6. As such, the ALJ found plaintiff not disabled at any time between March 25, 2011, the Tr. 19, Finding date of 2010, the his alleged onset date, ALJ' s decision. Tr. and April 26, 20, Finding 7. Plaintiff does not specifically dispute this finding, but disputes the ALJ's credibility and RFC findings, as mentioned above. II. Plaintiff's Allegations of Error Plaintiff alleges the ALJ erred by: 1) plaintiff's impairments in contravention of 20 C.F.R. 416. 935; 2) evaluating §§ 414.1535, failing to give legally sufficient reasons for the weight afforded the medical opinions; and 3) failing to offer any reasoning for finding plaintiff not fully credible. Plaintiff further argues the ALJ's decision should be remanded for payment of benefits. A. Evaluation of Plaintiff's Impairments Plaintiff asserts the ALJ failed to follow the mandates of 20 C.F.R. §§ 404.1535, 416.935 in evaluating the impact of alcohol use on plaintiff's impairments and rejecting the opinion of the examining psychologist Leslie Hughey, Ph.D. 1 1 Plaintiff argues the Plaintiff also appears to assert the ALJ did not articulate a sufficient reason for affording Dr. Hughey's opinion "less weight," a separate issue addressed below. 6 - OPINION AND ORDER - ALJ erred because he failed to perform a two-step drug and alcohol analysis ("DAA"). Plaintiff seems to misunderstand the critical point that the DAA is only performed if the ALJ first finds that the claimant has a disability. Circuit made 20 C.F.R. clear that §§ 404.1535, 416.935(a). "an ALJ should not The Ninth proceed with the analysis under§ 404.1535 or§ 416.935 if he has not yet found the claimant to be disabled under the five-step inquiry." v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). Bustamante "[A]n ALJ must first conduct the five-step inquiry without separating out the impact of [substance abuse]. If the ALJ finds that the claimant is not disabled under the five-step inquiry, then the claimant is not entitled to benefits and there is no need to proceed with the [DAA] analysis." Id. Here the ALJ conducted the initial five-step inquiry without factoring out the impact of plaintiff's alcohol use. The ALJ concluded that plaintiff was not disabled and was able to work, even with the limitations attributable to his alcohol abuse. Plaintiff himself testified he sees no connection between his alcohol abuse and his problems. Tr. 56-57. Also, the ALJ noted that in lay witness evidence submitted by plaintiff's friend she asserted that plaintiff's "alcohol abuse is no longer there." 19 (quoting Tr. 233). Finally, the ALJ gave great weight psychologist Douglas Smyth, Ph.D.'s findings and assessment, 7 - OPINION AND ORDER - Tr. to ''as it suggests that even with ongoing alcohol abuse, remains capable of understanding, both simple and limitations." complex Tr. 19. remembering, instructions, the claimant and carrying out with certain social These findings led the ALJ to conclude that plaintiff was able to work and, having made such a finding, the ALJ was inquiry to not required determine the to conduct effect of an additional Thorn's drug five-step use on his disability. B. Medical Evidence Plaintiff argues the ALJ failed to give legally sufficient reasons for the weight given to medical opinions. He contends the ALJ did not give ''specific and legitimate'' reasons for rejecting Dr. Brennan's opinion and did not address Dr. He in's opinion. Plaintiff further argues the ALJ inappropriately based the weight given to Dr. Hughey's, Dr. Moore's, and Dr. Smyth's opinions on their consistency with the RFC assessment. The ALJ is for responsible ambiguities in medical evidence. Sec. Admin., omitted). 359 F. 3d 1190, resolving conflicts Comm 'r of Soc. See Batson v. 1195 (9th Cir. and 2004) In weighing a claimant's medical evidence, (citation the ALJ generally affords enhanced weight to the opinion of the claimant's treating physicians if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent" with other substantial evidence in the record. 8 - OPINION AND ORDER - 20 C.F.R. § 416.927(c)(2). "Those physicians with the most significant clinical relationship with the claimant are generally entitled to more relationships." weight than physicians with lesser Carmickle v. Comm'r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) In those consequence, (citation omitted). an uncontradicted treating physician's opinion may only be rejected for ''clear and convincing'' reasons supported by evidence in the record, and a contradicted treating physician's opinion may only be rejected for "specific legitimate" reasons supported by evidence in the record. Reddick v. Lester v. Chater, Chater, 157 F. 3d 715, 725 (9th Cir. 1998) 81 F.3d 821, 830 (9th Cir. 1995)). and See (citing Moreover, several factors determine the weight the ALJ should give to a physician's opinion, including the length of the treatment relationship and frequency of examination, the amount of evidence that supports the opinion, the consistency of the medical opinion with the record as a whole and the physician's specialty and understanding of the disability program. 625, 631-632 (9th Cir. 2007) Similarly, the ALJ Orn v. Astrue, 495 F.3d (citing 20 C.F.R. is "not bound by § 404.1527(d) (2)). the uncontroverted opinions of the claimant's physicians on the ultimate issue of disability" if he gives clear and convincing reasons for rejecting those opinions. Reddick, 9 - OPINION AND ORDER - 157 F. 3d at 725 (quoting Montijo v. Sec'y of Health 1984)). & Human Moreover, disability, even Servs., " [a) if 729 treating controverted, F.2d 599, 601 physician's can be (9th Cir. opinion rejected only on with specific and legitimate reasons supported by substantial evidence in the record. In sum, reasons for rejecting a treating doctor's credible opinion on disability are comparable to those required for rejecting a treating doctor's medical opinion." omitted). reasons When for "the Commissioner fails rejecting the opinion of a to I d. (citation provide adequate treating or examining physician, we credit that opinion 'as a matter of law.'" Lester, 81 F.3d at 834 (quoting Hammock v. Bowen, 879 F.2d 498, 502 (9th Cir. 1989)). 1. Dr. Hughey Plaintiff reported to consultative psychologist Leia Hughey, Ph.D., that he essentially just grew tired of working and quit. Tr. 299. Plaintiff also reported that he was never late to work and never missed days until he abruptly quit working on March 25, 2010. Tr. 299-300. Plaintiff also told Dr. Hughey he had not been drinking alcohol recently, but that the reason was that he lacked funds to buy alcohol. Dr. Tr. 299. Hughey diagnosed plaintiff as Abuse and Major Depressive Disorder. suffering from Alcohol Tr. 303. Dr. Hughey found plaintiff had marked limitations in several respects which are not 10 - OPINION AND ORDER - accounted for in the ALJ's ultimate RFC determination. "Mental Residual Function Capacity Report," Dr. In her Hughey found marked limitations in plaintiff's ability to "perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances," and "ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods," and "ability to sustain an ordinary routine without special supervision.'' 305. Tr. According to the instruction section of the Mental Residual Function Capacity Report, these were not limitations Dr. Hughey believed plaintiff had as a result of his alcoholism. Tr. 304. Upon careful review of Dr. Hughey's report, however, several of her "marked limitations'' findings appear unsupported or even contradicted by information contained in her narrative. Moreover, despite the qualifying language at the beginning of Dr. Hughey's Mental Residual Function Report that limitations resulting from alcohol are not included, the limitations she did find present are consistent with the effects of alcoholism as described in the narrative. Finally, Dr. Hughey's opinions as to plaintiff's limitations are contradicted by other evidence in the record, including opinions from other physicians. The ALJ did not articulate any of these specific reasons for giving Dr. Hughey's opinion less weight. 11 - OPINION AND ORDER - Instead, the ALJ gave "less weight" to Dr. Hughey's functional assessment because her report ''does not specify . . the role alcohol abuse plays in [plaintiff's] mental limitations.'' the ALJ' s valid. Tr. 18. reason for discounting Dr. Taken on its face, Hughey's opinion was not If the ALJ believed alcohol use was contributory to the limitations required to assessed by consider Dr. the Hughey, then plaintiff's considering the effect of substance abuse. the ALJ was limitations See 20 first without C.F.R. §§ 404.1535, 416.935; Bustamante v. Massanari, 262 F.3d 949, 955 (9th Cir. 2001). This court cannot assign weight to Dr. Hughey's opinion or affirm the ALJ's decision on a ground upon which the ALJ did not rely. such, See Orn v. Astrue, 495 F. 3d 625, 630 (9th Cir. 2007). notwithstanding the existence of evidence in the As record which would support a decision to give Dr. Hughey's opinion less weight, the fact that the ALJ limited his reason to the report's failure to specify the role alcohol abuse plays in plaintiff's mental limitations was error. Because the ALJ erred in failing to articulate a legally sufficient reason for giving Dr. Hughey's opinion less weight, the court must evaluate whether the error was harmless, there was prejudice. Cir. 2012) Ludwig v. Astrue, or whether 68.1 F.3d 1047, 1054 (9th (citing Shinseki v. Sanders, 556 U.S. 396, 407 (2009)). "Determination of prejudice requires 'case-specific application of 12 - OPINION AND ORDER - judgment, based upon examination of the record,' presumptions and rigid rules.'" 407). not 'mandatory (citing Sanders, 556 U.S. at Id. "Among the case-specific factors [the court) must consider are 'an estimation of the likelihood that the result would have been different. The burden in (citing Sanders, 556 U.S. at 411). Id. '" harmless error analysis is "on the party claiming error to demonstrate not only the error, but also that it affected his 'substantial rights,' which is to say, not merely his procedural rights.'' (footnote omitted). Id. (citing Sanders, 556 U.S. at 407-409) Mere probability of prejudice is not enough, the party claiming error must show "a substantial likelihood of prejudice." McLeod v. Astrue, 1640 F.3d 881, 888 (9th Cir. 2011). "Where harmlessness remand for is clear and not a reconsideration is not 'borderline question, ' appropriate." Id. (citing Sanders, 556 U.S. at 413). Here, any error the ALJ made in failing to articulate a sufficient legal reason to afford plaintiff's limitations was harmless. F.2d 1127, 1129 (9th Cir. 1991) Dr. Hughey's opinion on See Curry v. Sullivan, 925 (failure by ALJ to articulate or explain weight given reports of consultative physician can be harmless error) . In light of the evidence in the record, plaintiff has not demonstrated the outcome would have differed. 2. Dr. Moore and Dr. Smyth 13 - OPINION AND ORDER - Plaintiff alleges the ALJ inappropriately based the weight given the opinions of Margaret Moore, Ph.D. and Douglas Smyth, Ph.D. on their consistency with the residual functional capacity assessment. Plaintiff argues the ALJ improperly formulated the RFC first, then gave weight to their opinions only to the extent they were consistent with his pre-determined RFC assessment. Clinical psychologist Margaret Moore, Ph.D., testified at the hearing that "alcohol makes depression worse, and that the record suggests that the [plaintiff) has a significant history of alcohol consumption." Tr. 19. She also stated, however, that she "would expect improvement in [plaintiff's) focus, attention, and ability to perform complicated tasks with alcohol cessation," acknowledged that and she ''she could only speculate as to whether the claimant's alcohol abuse was merely a response to undertreated depression." Douglas Tr. 19. Smyth, Ph.D., who examined plaintiff after the hearing, confirmed the documentary evidence supporting plaintiff's alcohol abuse. Tr. 312-13. Dr. Smyth found plaintiff's self- report minimizing his alcohol consumption to be "misleading" and "not credible." Tr. 19, 312. In addition, Dr. Smyth reported plaintiff showed "marginal effort" and was "marginally to poorly cooperative throughout the session," of testing he performed. Tr. 311. which influenced the results The marginal cooperation, combined with the accompanying documentation, plaintiff's refusal 14 - OPINION AND ORDER - to articulate the specifics of quitting his long-term job, lack of clarity and possible bias plaintiff's functions, alcohol use, led Dr. regarding and the third party of self-reporting misleading evidence on Smyth to conclude that secondary gain in plaintiff's symptom presentation could not be ruled out. Tr. 312. Dr. Smyth also reported that plaintiff "presented with mixed social functioning," but noted the "historic establishment of long-term relationships, as well as a history of long-term, stable employment," and that the reported "current social isolation and voluntary unemployment" was "suggestive of current interpersonal dysfunction." Finally, Dr. Smyth concluded there was Tr. 313. "insufficient evident of any cognitive or intellectual impairment in the present evaluation.'' Tr. 312. The ALJ gave lesser weight to Dr. Hughey's and Dr. Moore's opinions because they did not specify the role alcohol abuse plays in plaintiff's mental limitations and could only speculate whether his alcohol depression. abuse was Tr. 18-19. merely alcohol understanding, response to undertreated In contrast, he gave great weight to Dr. Smyth's findings and assessment, ongoing a abuse, the remembering, and ''as it suggests that even with claimant carrying remains out capable of simple and both complex instructions, with certain social limitations." The ALJ properly weighed 15 - OPINION AND ORDER - these assessments and the Tr. 19. resulting limitations they imposed on plaintiff's work-related abilities and formulated his RFC assessment thereon, Dr . Brennan 3. Plaintiff began seeing Stephen Brennan Psy. D,, after he filed his disability claim. angry. Tr. 249. forgetfulness, reported Plaintiff reported being depressed and to He also reported and hearing voices. Dr. Brennan that Tr. working poor 249. was concentration, Plaintiff also the depression and that he wished to pursue retirement. Brennan diagnosed recurrent, plaintiff with Major cause of his Tr. 251. Dr. Depressive severe with psychotic features, Disorder and possible alcohol abuse. At their next session, Dr. Brennan noted that appeared to be doing much better in the last week. Plaintiff reported, however, that he was not. plaintiff Tr. Tr. 248. 248. Plaintiff also reported that his depression had gotten much worse over the previous two years. plaintiff's primary medication dosage. Tr. 248. care Dr. Brennan recommended contacting physician to increase plaintiff's Tr. 248. One week later, Dr. Brennan noted that "[e]ssentially things remained unchanged.'' remaining Tr. 247. Dr. Brennan assessed plaintiff as "seriously depressed." return in three weeks, Tr, 247. Plaintiff was to or sooner if he felt unsafe because of suicidal thoughts. 16 - OPINION AND ORDER - Plaintiff returned to see Dr. Brennan three weeks later. 246. Tr. Dr. Brennan again noted that plaintiff appeared to be doing better, but that plaintiff reported his symptoms as remaining the same or even worse. The last plaintiff's Tr. 246. report visit from five Dr. weeks Brennan later. in Tr. the record is 274. Dr. from Brennan assessed plaintiff as continuing with very serious depression. Tr. 274. Dr. Brennan noted, however, that plaintiff "may have an ulterior motive for presenting poorly because he wants worker's compensation and Social Security Disability." The ALJ adopted Dr. Brennan's diagnosis of depression as a opinion Tr. 274. as severe impairment, to plaintiff's but gave only "partial weight to Dr. Brennan's treatment notes, to the extent that the claimant has certain limitations in social functioning attributable to depression." Tr. 18. The ALJ noted Dr. Brennan described plaintiff's subjective complaints as genuine and not significantly exaggerated. Tr. 18. He also noted, however, Dr. Brennan's concern about plaintiff's possible ulterior motive and ''that [Dr. Brennan's] diagnosis of 'very serious depression' is based heavily on the claimant's subjective complaints and is not entirely consistent with the claimant's during their counseling sessions.'' apparent improvement Tr. 18. One of the factors an ALJ must consider in assessing weight to a medical source opinion is its supportability by objective 17 - OPINION AND ORDER - evidence, as opposed to merely relying on a claimant's subjective statements. 2001); Tonapetyan v. Halter, see also 20 C.F.R. §§ 242 F.3d 1144, 1149 (9th Cir. 404.1527(c) (3), giving only partial weight to Dr. 416.927(c) (3). Brennan's opinions, In the ALJ concluded that his findings were inconsistent with the objective medical record and plaintiff's reported activities. Moreover, the court finds at no place in the record did Dr. Brennan specifically opine that plaintiff was unable to work at all. Accordingly, the ALJ did not improperly weigh Dr. Brennan's opinion. 4. Dr. Hein Plaintiff also argues the ALJ erred in overlooking Dr. Hein's opinion altogether. 25, 2010. Tr. Plaintiff first saw John Hein, M.D. on March 238. I d. His chief complaint was depression. Plaintiff reported suffering depression for several years, related "all of his problems to stress on the job." diagnosed plaintiff as from suffering Recurrent, and prescribed medication. and Dr. Hein Id. Depression, Major, Tr. 240. Plaintiff saw Dr. Hein again in May 14, 2010, for a ''followup visit complained for of his workers "worsening comp claim." symptoms of Tr. 236. depression, Plaintiff anxiety and suicidality while on the job doing road construction over last 20 years or so." Id. walked off the job." He reported he could "not take it anymore and Id. 18 - OPINION AND ORDER - Dr. Hein noted plaintiff was currently seeing the psychologist, Dr. Brennan, and that his medication had been recently increased. Dr. I d. He in also stated plaintiff "reports subjectively that [his depression] is unchanged, however my assessment Nonetheless, is that he Dr. unable to work." seems Tr. somewhat improved." 237. Hein concluded ''I would agree that he remains Id. The ALJ' s failure to explicitly reject Dr. He in's opinion that plaintiff could not return to work, if error, was harmless. See Burch v. Barnhart, 400 F. 3d 676, 679 (9th Cir. 2005) ("[a] decision of the ALJ will not be reversed for errors that are The harmless"). ALJ nowhere explicitly recited that he was rejecting Dr. Hein's conclusion, but his findings contain numerous specific and legitimate reasons for rejecting a conclusion that plaintiff was disabled and could not work. C. Plaintiff's Credibility Plaintiff argues the ALJ did not provide clear and convincing reasons supported by substantial evidence credible. Thus, he contends, for not finding him the ALJ improperly discounted his subjective symptom testimony. The Ninth Circuit has developed a two-step process for evaluating the credibility of a claimant's own testimony about the severity and limiting effect of the claimant's symptoms. 572 F. 3d at 591. First, 19 - OPINION AND ORDER - Vasquez, the ALJ "must determine whether the claimant has presented objective medical evidence of an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged." 1028, 1036 (9th Cir. 2007). Lingenfelter v. As true, 504 F. 3d When doing so, the claimant ''need not show that her impairment could reasonably be expected to cause the severity of the symptom she has alleged; she need only show that it could reasonably have caused some degree of the symptom." Smolen v. Chater, 80 F. 3d 1273, 1282 (9th Cir. 1996). Second, ''if the claimant meets the first test, and there is no evidence of malingering, 'the ALJ can reject the claimant' s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so. ' " Lingenfelter, 504 F. 3d at 1036 (quoting Smolen, 80 F. 3d at 1281). It is "not sufficient for the ALJ to make only general findings; he must state which pain testimony is not credible evidence suggests the complaints are not credible." Shalala, 12 F. 3d 915, 918 (9th Cir. 1993). and what Dodrill v. Those reasons must be ''sufficiently specific to permit the reviewing court to conclude that the testimony." ALJ did not arbitrarily Orteza v. Shalala, discredit the claimant's 50 F.3d 748, 750 (9th Cir. 1995) (citing Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en bane)). 20 - OPINION AND ORDER - The ALJ may consider objective medical claimant's treatment history, as well as evidence and the the claimant's daily activities, work record, and observations of physicians and third parties with personal limitations. recommends knowledge 80 Smolen, assessing the of at F.3d the 1284. claimant's claimant's daily The functional Commissioner activities; the location, duration, frequency, and intensity of the individual's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; and any measures other than treatment the individual uses or has used to relieve pain or other symptoms. See SSR 96-7p, available at 1996 WL 374186. Further, consider as the the Ninth Circuit has said that an ALJ also ''may ordinary techniques of credibility evaluation, such reputation for lying, concerning the symptoms, prior inconsistent statements other testimony by the claimant that appears less than candid [and) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment." Smolen, 80 F.3d at 1284. The ALJ may not, however, make a negative credibility finding "solely because" the claimant's symptom testimony "is not substantiated affirmatively 21 - OPINION AND ORDER - by objective medical evidence." F.3d 880, 883 (9th Cir.2006). Robbins v. Soc. Sec. Admin., 466 If the "ALJ's credibility finding is supported by substantial evidence in the record, may not engage in second-guessing." [the court] Thomas v. Barnhart, 278 F.3d 947, 949 (9th Cir. 2002). Here, the ALJ determined that plaintiff's medically determinable impairment could reasonably be expected to produce some degree of symptoms, but that his statements concerning the intensity, persistence and limiting effects of these symptoms are not fully credible. Tr. 18. With respect to his physical limitations, the ALJ noted that "in activities of daily living, the claimant has no restriction." Tr. 16. Plaintiff "reported he can independently manage activities of personal care, grooming and hygiene." including He also reported he "does not prepare Id. his own meals, but that he know how to do so" and also "knows how to clean up after meals, wash dishes, sweep, mop, vacuum, and wash laundry" and "can mow the lawn." Id. The ALJ considered plaintiff's mental limitations, noting plaintiff's testimony "that his mental impairment manifested as impatience with co-workers, Tr. 18. hostility, and losing his temper." The ALJ recognized plaintiff's suicidal ideation in the past, but noted plaintiff reported improvement and that he had not thought about it lately. I d. Plaintiff reported difficulties socializing and that he does not feel comfortable with others. 22 - OPINION AND ORDER - Tr. 16. The ALJ found lay witness evidence from plaintiff's friend about her extensive relationship with him, however, to be "apparently inconsistent with [his] subjective reports of social isolation.'' Tr. 19. The ALJ also considered evidence from the medical record when he evaluated plaintiff's credibility. As discussed above, the ALJ credited Dr. Smyth's determination that plaintiff had "'moderate' limitations in his ability to interact appropriately with co- workers, supervisors, or the public.'' Tr. 19 (citation to record omitted). The medical evidence considered by the ALJ also included evidence about plaintiff's plaintiff's depression. that plaintiff's alcohol abuse and its effect on Plaintiff's friend submitted lay evidence "alcohol abuse ( citation to record omitted) . is no longer there." Tr. Clinical psychologist Dr. 19 Moore testified at the hearing that alcohol makes depression worse, and that "she would expect improvement in [plaintiff's] focus, attention, and ability to perform complicated tasks with alcohol cessation.'' Tr. 19. ultimately confirmed In his post-hearing examination, Dr. Smyth that assessment, finding no evidence cognitive or intellectual impairment during the evaluation. On this record, of Id. the Court concludes the ALJ provided clear and convincing reasons supported by substantial evidence in the record for finding plaintiff's testimony not entirely credible as 23 - OPINION AND ORDER - to the intensity, condition. persistence, and limiting effects of his Thus, the ALJ properly rejected plaintiff's testimony. CONCLUSION For the reasons stated above, the Commissioner's final decision that plaintiff is not disabled is based on proper legal standards and is supported by substantial therefore AFFIRMED. DATED this 20"-~day of Jun , 20 it 3.-) -- ~ l 24 - OPINION AND ORDER - evidence; Judge is

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