LoPresto v. Astrue

Filing 26

ORDER - IT IS THEREFORE ORDERED that the ALJ's decision is AFFIRMED. The Clerk of Court is directed to terminate this case and enter judgment accordingly. (See document for full details). Signed by Judge G Murray Snow on 4/15/13. (LAD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Paul LoPresto, 10 No. CV-12-00739-PHX-GMS Plaintiff, ORDER 11 vs. 12 Carolyn W. Colvin, Acting Commissioner of the Social Security Administration, 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant. Pending before the Court is the appeal of Plaintiff Paul LoPresto, who challenges the Social Security Administration’s decision to deny benefits. (Doc. 1.) For the reasons set forth below, the Court affirms that decision. BACKGROUND Plaintiff Paul LoPresto, a Vietnam War veteran, claims that he has been disabled since May 1, 2005. (R. at 25.) He is around 63 years old and has a high school education. (Id. at 36, 54.) Prior to the onset of his alleged disability, LoPresto worked as a bus driver, secretary, and golf course pro shop worker and ranger. (Id. at 71.) LoPresto submitted a Title II application for disability and disability benefits on February 4, 2008. (Id. at 25.) The Social Security Administration (“SSA”) denied his claims on August 21, 2008, and again on December 31, 2008. (Id.) LoPresto subsequently requested a hearing, which was held on April 20, 2010 in Phoenix, Arizona. (Id.) On July 28, 2010, the Administrative Law Judge (“ALJ”) issued his decision finding that LoPresto was not 1 disabled under sections 216(i) and 223(d) of the Social Security Act. (Id. at 37.) 2 To determine whether LoPresto was disabled, the ALJ undertook the five-step 3 analysis detailed at 20 C.F.R. §§ 404.1520(a) and 416.920(a).1 (R. at 26.) He determined 4 at the first step that LoPresto had not engaged in substantial gainful activity since May 1, 5 2005, the alleged onset date. (Id. at 27.) The ALJ then found that LoPresto had the 6 following severe impairments: chronic knee strain, major depression, generalized anxiety, 7 a post-traumatic stress disorder (“PTSD”), and obesity. (Id. at 28.) At step three, the ALJ 8 determined that none of these impairments, either alone or in combination, met or 9 equaled any of the SSA’s listed impairments. (Id.) 10 At that point, the ALJ made a determination of LoPresto’s residual functional 11 capacity (“RFC”),2 concluding that LoPresto could perform medium unskilled work as 12 defined in 20 C.F.R. § 404.1567(c), except that he cannot climb, squat, kneel, crawl, 13 1 14 A claimant must be found disabled if she proves: (1) that she is not presently engaged in a substantial gainful activity[,] (2) that her disability is severe, and (3) that her impairment meets or equals one of the specific impairments described in the regulations. If the impairment does not meet or equal one of the specific impairments described in the regulations, the claimant can still establish a prima facie case of disability by proving at step four that in addition to the first two requirements, she is not able to perform any work that she has done in the past. Once the claimant establishes a prima facie case, the burden of proof shifts to the agency at step five to demonstrate that the claimant can perform a significant number of other jobs in the national economy. This step-five determination is made on the basis of four factors: the claimant’s residual functional capacity, age, work experience and education. 15 16 17 18 19 20 21 22 23 Under the test: Hoopai v. Astrue, 499 F.3d 1071, 1074–75 (9th Cir. 2007) (internal citations and quotations omitted). 2 24 25 26 27 28 In greater detail, a residual functional capacity (“RFC”) is “an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis.” S.S.R. 96–8p. In particular, the RFC assessment must describe the maximum amount of each work-related activity the individual can perform based on the evidence available in the case record. Id. The RFC determination may be based on a wide variety of evidence in the record–the claimant’s medical history, laboratory findings, the effects of treatment, reports of daily activities, lay evidence, recorded observations, medical source statements, effects of symptoms that are reasonably attributable to a medically determinable impairment, evidence from attempts to work, the need for a structured living environment, and work evaluations. Id -2- 1 crouch, use his lower extremities, push, pull and interact with the public. (R. at 30.) Still 2 at step four, the ALJ concluded that LoPresto was unable to perform any of his past 3 relevant work. (Id. at 35.) The ALJ therefore reached step five and found that LoPresto 4 was not disabled because there are jobs that exist in significant numbers in the national 5 economy that he could perform. (Id. at 35–36.) The Appeals Council declined to review 6 the decision. (Id. at 1-3.) 7 LoPresto filed the Complaint in this action on April 6, 2012, seeking the Court’s 8 review of the ALJ’s denial of benefits. (Doc. 1.) The matter became fully briefed on 9 December 21, 2012. (Docs. 20, 21, 25.) DISCUSSION 10 11 I. LEGAL STANDARD 12 A reviewing federal court will address only the issues raised by the claimant in the 13 appeal from the ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 14 2001). A federal court may set aside a denial of disability benefits when that denial is 15 either unsupported by substantial evidence or based on legal error. Thomas v. Barnhart, 16 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence is “more than a scintilla but less 17 than a preponderance.” Id. (quotation omitted). It “is relevant evidence which, 18 considering the record as a whole, a reasonable person might accept as adequate to 19 support a conclusion.” Id. (quotation omitted). 20 Subject to the Ninth Circuit’s standards in particular cases, the ALJ is responsible 21 for resolving conflicts in testimony, determining credibility, and resolving ambiguities. 22 See Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). “When the evidence before 23 the ALJ is subject to more than one rational interpretation, we must defer to the ALJ’s 24 conclusion.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). 25 This is so because “[t]he [ALJ] and not the reviewing court must resolve conflicts in 26 evidence, and if the evidence can support either outcome, the court may not substitute its 27 judgment for that of the ALJ.” Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) 28 (citations omitted). -3- 1 II. ANALYSIS 2 LoPresto argues that the ALJ erred by: (A) improperly discounting the assessment 3 of his social worker, Dawn Malone and improperly assigning substantial weight to the 4 opinion of the agency doctors, (B) improperly discounting LoPresto’s own testimony of 5 the severity of his symptoms, and (C) failing to follow the function-by-function 6 determination described in Social Security Ruling (“SSR”) 85-15.3 7 A. 8 LoPresto challenges how the ALJ dealt with three medical sources: his licensed 9 clinical social worker Dawn Malone, consultative examining physician Dr. Frederick 10 Weight Assigned to Medical Sources Obitz, and agency reviewing physician Dr. Eugene Campbell. 1. 11 Applicable Standards 12 The SSA regulations describe a hierarchy of medical sources. The Parties dispute 13 how the ALJ should treat the opinions of different medical sources. The regulations invite 14 the ALJ to review opinion evidence in making a disability determination, and place a 15 premium on “medical opinions.” 20 C.F.R. § 404.1527(a). “Medical opinions are 16 statements from physicians and psychologists or other acceptable medical sources that 17 reflect judgments about the nature and severity of your impairment(s), including your 18 symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and 19 your physical or mental restrictions.” Id. § 404.1527(a)(2) (emphasis added). “Acceptable 20 medical sources,” in turn, are “[l]icensed physicians”, “[l]icensed or certified 21 psychologists”, “[l]icensed optometrists,” “[l]icensed podiatrists,” and “[q]ualified 22 speech-language pathologists . . . .” Id. § 404.1513(a); see also id. § 404.1502 (referring 23 to § 404.1513(a) for definition of acceptable medical source). 24 The regulations then craft several tiers of those medical opinions. The opinion of a 25 3 26 27 28 Social Security Rulings (SSRs) “do not carry the ‘force of law,’ but they are binding on ALJs nonetheless.” Bray v. Comm'r Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009). They “‘reflect the official interpretation of the [SSA] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations.’” Id. (alteration in original) (quoting Avenetti v. Barnhart, 456 F.3d 1122, 1124 (9th Cir. 2006)). -4- 1 treating physician carries more weight than non-treating medical sources. See Orn v. 2 Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1995); 20 C.F.R. § 404.1527(c). Moving down the chain, the opinions of examining 4 physicians generally carry more weight than those of non-examining physicians. 20 5 C.F.R. § 404.1527(c); Orn, 495 F.3d at 631. As the Commissioner has stated, “[t]he 6 regulations provide progressively more rigorous tests for weighing opinions as the ties 7 between the source of the opinion and the individual become weaker.” SSR 96-6p. And 8 so “the opinions of physicians or psychologists who do not have a treatment relationship 9 with the individual are weighed by stricter standards, based to a greater degree on 10 medical evidence, qualifications, and explanations for the opinions, than are required of 11 treating sources.” Id. 12 The hierarchy described above applies only to “medical opinions”, which are those 13 opinions that come from “acceptable medical sources.” For purposes of this case, Drs. 14 Obitz and Campbell are acceptable medical sources. In addition, other licensed 15 physicians who treated LoPresto and whose notes are part of the record are acceptable 16 medical sources. 17 Malone, a licensed clinical social worker, is not. 20 C.F.R. §§ 404.1513, 18 404.1527; see also SSR 06-03p. She is an “other source,” albeit a medical one. The SSA 19 has recognized the value of opinions from other medical sources: 20 26 With the growth of managed health care in recent years and the emphasis on containing medical costs, medical sources who are not “acceptable medical sources,” such as nurse practitioners, physician assistants, and licensed clinical social workers, have increasingly assumed a greater percentage of the treatment and evaluation functions previously handled primarily by physicians and psychologists. Opinions from these medical sources, who are not technically deemed “acceptable medical sources” under our rules, are important and should be evaluated on key issues such as impairment severity and functional effects, along with the other relevant evidence in the file. 27 SSR 06-03p. Nevertheless, contrary to LoPresto’s claim, Malone’s opinion carries less 28 weight than if she were a licensed physician. An ALJ can discount an opinion from an 21 22 23 24 25 -5- 1 “other” medical source like Malone so long as he gives “reasons ‘germane’ to [her] for 2 discounting.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). So long as the 3 reason for discounting is “germane” and has evidentiary support in the record, the ALJ 4 does not act improperly.4 5 For the reasons described above, the Court declines to accept LoPresto’s argument 6 for why the “germane” standard articulated most recently in Molina applies only to lay 7 witnesses, and not to medical sources. That argument runs against the language of the 8 regulations and the Ninth Circuit cases interpreting those regulations. 2. 9 Licensed Clinical Social Worker Malone 10 Malone worked with LoPresto from February 12, 2008, through May 30, 2009. (R. 11 at 32.) She saw him for PTSD, major depressive disorder (recurrent), and adjustment 12 disorder with mixed anxiety and depressed mood. (Id.) Throughout the course of their 13 visits, she observed from LoPresto’s actions and reports of his actions that he had 14 anxiety, depression, anger, and an impaired ability to manage daily living activities. (Id. 15 at 625–37.) She administered a “Mini Status Examination,” which assessed LoPresto’s 16 basic cognitive functions. (Id. at 627–30.) LoPresto scored in the normal range. (Id.) 17 In a letter to the Veteran’s Administration (“VA”), Malone stated that LoPresto’s 18 symptoms “have all been consistent and persistent[,] . . . chronic and severe.” (Id. at 638.) 19 She described “frequent panic attacks while driving.” (Id. at 639.) She concluded her 20 letter with the following observations: “Mr. Lopresto relives the trauma of his 21 participation in Vietnam on a daily and consistent basis. Not only does the trauma 22 infiltrate his sleep . . . , but also is intrusive to his thoughts during waking hours. He does 23 not and (cannot) trust others and has had several failed attempts at employment and 24 socialization endeavors.” (Id.) 25 4 26 27 28 SSR 06-03p provides examples of the factors an ALJ might consider when evaluating “other” medical sources: “[h]ow long the source has known and how frequently the source has seen the individual; [h]ow consistent the opinion is with other evidence; [t]he degree to which the source presents relevant evidence to support an opinion; [h]ow well the source explains the opinion; [w]hether the source has a specialty or area of expertise related to the individual's impairment(s).” -6- 1 In connection with LoPresto’s SSA application, Malone filled out a checkbox 2 form entitled “Medical Assessment of the Patient’s Ability to Perform Work Related 3 Activity.” She rated as “severe”5 LoPreso’s degree of deterioration in personal habits and 4 interests, as well as his ability to respond appropriately to co-workers and to customary 5 work pressures. (Id. at 452–53.) She rated as “moderately severe”6 LoPresto’s degree of 6 restriction in daily activities and abilities to relate to other people; to understand, carry 7 out, and remember instructions; to respond appropriately to supervision; to perform 8 simple, complex, repetitive, and varied tasks; to complete a normal workweek without 9 interruptions from psychologically based symptoms; and to perform at a consistent pace 10 without an unreasonable number/length of rest periods. (Id.) A vocational expert testified 11 at LoPresto’s hearing and opined that those limitations would preclude all work activity 12 on a sustained basis. (Id. at 75.) 13 The ALJ gave two reasons for discounting Malone’s opinions on the degree of 14 LoPresto’s limitations. In his view, the opinion was “inconsistent and appears to be more 15 restrictive than the medical record of evidence documents, in light of the fact that Ms. 16 Malone found the claimant’s mental limitations to be significantly more severe than any 17 other medical opinion, including those of examining physician Dr. [Obitz] and the State 18 Agency.” (Id. at 35.) In addition, the ALJ noted that “[t]he possibility always exists that a 19 doctor may express an opinion in an effort to assist a patient with whom he or she 20 sympathizes for one reason or another.” (Id.) For the Court to affirm, these reasons must 21 be “germane” to a licensed social worker like Malone and supported by substantial 22 evidence in the record. 23 There is substantial evidence of inconsistency to support the ALJ’s determination. 24 In his order, the ALJ primarily relied on the divergence of opinion between Malone and 25 Drs. Obtiz and Campbell. As discussed below, Dr. Obitz was an examining physician and 26 27 5 Extreme impairment of ability to function. (R. at 452.) 28 6 Impairment which seriously affects ability to function. (Id.) -7- 1 Dr. Campbell was a non-examining physician. Both came to conclusions regarding the 2 severity of LoPresto’s symptoms that were quite different than Malone. Because both Dr. 3 Obtiz and Dr. Campbell are considered acceptable medical sources and Malone is not, the 4 fact that the conclusions of a non-acceptable medical source differed from the 5 conclusions of acceptable medical sources would be a germane reason, supported in the 6 record, for discounting Malone’s opinion. 7 Moreover, there is evidence from LoPresto’s other physicians that would allow the 8 ALJ to find an inconsistency. The ALJ set forth several examples where LoPresto’s 9 treating physicians at the VA, Drs. Martha Gonzales and Himanshu Patel, report that 10 LoPresto is “doing well” or “doing good” on his medication regime. (Id. at 31, 32.) The 11 medical records that the ALJ cited support those statements and show that LoPresto often 12 reported improvement and effectiveness of medication. (Id. at 469–80, 496, 641–85, 13 696.) For example, a report from February 26, 2009, states that LoPresto “has improved 14 over the past few years. [He] [d]enies current depressed periods . . . [and] denies 15 irritability or thoughts of harming self or others.” (Id. at 696.) Consequently, there is 16 substantial evidence to support the ALJ’s conclusion that Malone’s opinion was 17 “inconsistent . . . [because] Ms. Malone found the claimant’s mental limitations to be 18 significantly more severe than any other medical opinion.” (Id. at 35.) A marked 19 departure from the medical evidence is a germane reason for rejecting the opinion of an 20 “other source,” and there is sufficient evidence to uphold the ALJ’s determination. 21 3. Drs. Obitz and Campbell 22 LoPresto also challenges the weight the ALJ assigned to the conclusions of Drs. 23 Obitz and Campbell. Dr. Obitz examined LoPresto in April 2006. (Id. at 284.) Like the 24 other physicians, he diagnosed LoPresto with PTSD. (Id. at 287.) He assigned a GAF of 25 50, which means that he thought the symptoms were within the “serious” range. (Id.) Dr. 26 Obitz stated his opinion that “the veteran’s posttraumatic stress disorder would not 27 preclude all employment. The veteran acknowledges he might work if he could decide 28 what is the right job for him.” (Id.) The ALJ assigned “substantial weight” to the -8- 1 conclusions of Dr. Obitz “because he examined the claimant and his opinion is consistent 2 with the medical evidence in the record.” (Id. at 34.) 3 LoPresto asserts the ALJ cannot assign “substantial weight” to Dr. Obitz’s report 4 because Malone is the equivalent of a treating physician, citing Orn, 496 F.3d at 632–33. 5 But Orn dealt with a licensed physician and thus is not applicable to this case for the 6 reasons described above—the law does not place Malone on the same plane as a treating 7 physician. The ALJ is thus not precluded from placing great weight on the report of an 8 examining physician. 9 LoPresto next contends that the ALJ improperly interpreted Dr. Obitz’s claim that 10 LoPresto’s symptoms “would not preclude all employment” to mean that LoPresto could 11 perform “medium unskilled work” with movement7 and social restrictions. “Ordinarily, 12 RFC is the individual’s maximum remaining ability to do sustained work activities in an 13 ordinary work setting on a regular and continuing basis, and the RFC assessment must 14 include a discussion of the individual's abilities on that basis. A ‘regular and continuing 15 basis’ means 8 hours a day, for 5 days a week, or an equivalent work schedule.” SSR 96- 16 8p (emphases in original). There is substantial evidence to justify the ALJ’s interpretation 17 of Dr. Obitz’s opinion. Dr. Obitz found that LoPresto’s PTSD causes him serious 18 limitations in how he interacts with others, while at the same time he thought there was a 19 subset of work of which LoPresto was capable. The ALJ concluded that LoPresto 20 maintained the ability to do a level of work so long as he does not “interact with the 21 public.” This is a reasonable interpretation of Dr. Obitz’s opinion. LoPresto argues 22 vigorously that the opinion could mean something far more restrictive. The evidence, 23 however, is open to two interpretations and the Court will not disturb the ALJ’s choice 24 among the two. See Batson, 359 F.3d at 1198 (“When the evidence before the ALJ is 25 subject to more than one rational interpretation, we must defer to the ALJ’s conclusion.”). 26 Dr. Obitz physically examined LoPresto, and, although it was just one time, the fact of 27 7 28 The movement restrictions appear to be based on LoPresto’s physical ailments, none of which are raised as a basis for appeal by LoPresto in his brief. -9- 1 that examination could lend greater weight to Dr. Obitz’s opinion in the eyes of the ALJ. 2 The ALJ did not err in giving “substantial weight” to Dr. Obitz’s opinion. 3 Dr. Campbell, a state agency psychologist, reviewed LoPresto’s VA records and 4 Dr. Obitz’s report. He concurred in the diagnosis of PTSD. (R. at 368.) He assigned 5 LoPresto a GAF of 60. (Id. at 376.) In the opinion of Dr. Campbell, LoPresto faced mild 6 restrictions in his activities of daily living and mild difficulties in maintaining 7 concentration, persistence, or pace. (Id. at 374.) There were moderate difficulties in 8 maintaining social functioning. (Id.) Dr. Campbell found moderate limitations on 9 LoPresto’s ability to maintain attention and concentration for extended periods, interact 10 appropriately with the general public, accept instructions and respond appropriately to 11 criticism from supervisors, and get along with coworkers or peers without distracting 12 them or exhibiting behavioral extremes. (Id. at 378–79.) On the other hand, he 13 determined that LoPresto can learn and remember simple instructions and tasks, follow a 14 schedule, make decisions and complete simple tasks on a consistent basis, adapt to 15 changes and handle the normal stressors of full time employment, while recognizing that 16 LoPresto “has limitations in working with and around others, but can work in a setting 17 with limited public contact.” (Id. at 380.) He concluded that LoPresto “can meet the 18 expectations of full time employment doing simple tasks in a setting with [limited public 19 contact].” (Id.) The ALJ assigned “significant weight” to Dr. Campbell’s opinion because 20 “the findings were consistent with the claimant’s subjective symptoms, the objective 21 medical evidence, and the evaluation of consultative examiner Dr. Nath and the medical 22 opinion of examining physician Dr. Obitz.” (Id. at 34.) 23 LoPresto’s argument that Dr. Campbell’s opinion could not be considered 24 substantial evidence is incorrect. While a non-examining physicians’ report cannot itself 25 be the sole piece of substantial evidence, it can be part of the basis that supports the 26 ALJ’s decision. This occurs when there is congruity between the conclusions of the non- 27 examining physician on the other medical evidence. See Thomas v. Barnhart, 278 F.3d 28 947, 957 (9th Cir. 2002). The ALJ found that Dr. Campbell’s opinion was consistent with - 10 - 1 the opinions of other doctors and the symptoms reported by LoPresto. LoPresto claims 2 that the ALJ’s citation to the evaluation of Dr. Nath was in error because Dr. Nath did not 3 have a full record before him. While that appears to be true, (R. at 342,) Dr. Nath’s 4 evaluation is medical opinion evidence that the ALJ was entitled to consider. See 20 5 C.F.R. § 404.1527. The ALJ could have placed “significant weight” on the opinion of Dr. 6 Campbell because of its consistency with other evidence in the record. 7 B. LoPresto’s Statements 8 LoPresto testified at the hearing about the degree of his mental and physical 9 impairments. His described severe depression, irritability, and trouble sleeping. (R. at 52– 10 78.) The ALJ articulated two primary reasons for finding much of his testimony 11 incredible: (1) LoPresto’s GAF scores fluctuated even as he reported improvement with 12 medication; (2) LoPresto “made inconsistent statements regarding matters relevant to 13 disability.” (Id. at 33-34.) 14 The legal standard governing claimant credibility is a matter of dispute between 15 the parties. The Commissioner relies on Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) 16 (en banc), where the Ninth Circuit set out to “determine the appropriate standard for 17 evaluating subjective complaints of pain in Social Security disability cases.” Id. at 342. 18 The Bunnell Court opined that once there has been objective medical evidence of an 19 underlying impairment, the ALJ must make specific findings, supported by the record, 20 for why he rejected the claimant’s testimony on the severity of the pain. Id. at 345–46. 21 This is to ensure that the ALJ “did not ‘arbitrarily discredit a claimant’s testimony 22 regarding pain.’” Id. (quoting Elam v. R.R. Retirement Bd., 921 F.2d 1210, 1215 (9th Cir. 23 1991)). Thus the Commissioner asserts that the standard governing claimant credibility is 24 a “specific finding” standard, which it claims is more in line with the overall “substantial 25 evidence” standard that governs these cases. 26 Many panels of the Ninth Circuit have subsequently held, however, that if there is 27 objective medical evidence of an underlying impairment, “and there is no evidence of 28 malingering, then the ALJ must give ‘specific, clear and convincing reasons’ in order to - 11 - 1 reject the claimant's testimony about the severity of the symptoms.” Molina, 674 F.3d at 2 1112 (quoting Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009)); see also, e.g., 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007). The Commissioner claims 4 that these cases, along with many others, have overruled the Bunnell standard in violation 5 of the Ninth Circuit rule that only en banc panels can overrule existing precedent. See 6 United States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995). That is not the case. Bunnell 7 articulated a general standard for dealing with claimant testimony. The many subsequent 8 cases have addressed a subset of cases where there is also no evidence of claimant 9 malingering. There is a “clear and convincing” standard for those situations. This Court 10 cannot sit in judgment of the application of that standard, which is clearly the standard 11 that governs claimant credibility in this circuit. Accordingly, the ALJ’s reasons for 12 finding LoPresto’s testimony incredible must be “clear and convincing.” 13 The first reason dealt with the fluctuation in GAF scores and reports that 14 LoPresto’s symptoms were less severe on medication. “A GAF score is a rough estimate 15 of an individual's psychological, social, and occupational functioning used to reflect the 16 individual's need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 17 1998). The Commissioner, however, has stated that “[t]he GAF scale, which is . . . 18 endorsed by the American Psychiatric Association[, ] does not have a direct correlation 19 to the severity requirements in our mental disorders listings.” Revised Medical Criteria 20 for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50,764–65 21 (Aug. 21, 2000). In other words, the GAF scores provide a very rough outline of a 22 claimant’s ability to function. As the ALJ noted, a GAF of 41-50 indicates serious 23 symptoms and a score of 51-60 denotes moderate symptoms relating to the claimant’s 24 impairment in social occupation, or school functioning. (R. at 33, nn. 2–3.) 25 The ALJ concluded that LoPresto’s GAF was likely 60. (Id. at 33.) The ALJ first 26 noted that the GAF scores ranged from 65 to, more recently, 45. He nevertheless 27 discounted the more recent low-end scores of 45 from Drs. Gonzalez and Patel, 28 LoPresto’s treating physicians, because those scores were “mainly attributable to the - 12 - 1 claimant’s self-reporting of symptoms” and “contrast[ed] sharply with . . . treatment 2 notes showing improvement in the claimant’s symptoms.” (Id. at 33.) There is substantial 3 evidence to support the ALJ’s decision to assign less weight to the lower GAF scores. 4 “Impairments that can be controlled effectively with medication are not disabling for the 5 purpose of determining eligibility for SSI benefits.” Warre v. Comm'r of Soc. Sec. 6 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). Therefore, the effectiveness of medication 7 can support a clear and convincing reason for discounting a claimant’s testimony. The 8 ALJ cites several instances where LoPresto reported “doing well” or showed 9 improvement on the medication regiment for his mental impairments. (R. at 496, 644, 10 647.) That provides substantial evidence for the ALJ’s conclusion that medication 11 alleviated many of LoPresto’s more debilitating symptoms and therefore that the lower 12 GAF scores did not accurately reflect LoPresto’s ability to function. While LoPresto may 13 argue that the fact that medication helped control his symptoms is not necessarily 14 inconsistent with his testimony and a lower GAF score, there is substantial evidence to 15 support the ALJ’s view. That is all that is required to affirm the ALJ’s determination. See 16 Thomas, 278 F.3d at 954. Because effective control through medication is a clear and 17 convincing reason for rejecting claimant testimony, and there is substantial evidence to 18 support the ALJ’s determination, the ALJ had a proper basis to discount LoPresto’s 19 testimony. 20 The ALJ also stated that LoPresto “has made inconsistent statements regarding 21 matters relevant to the issue of disability.” (R. at 33.) Material inconsistency is a proper 22 basis on which to reject claimant testimony. Bray v. Comm’r of Soc. Sec. Admin., 554 23 F.3d 1219, 1226–27 (9th Cir. 2009). The first alleged inconsistency is that LoPresto told 24 Dr. Nath that he had panic attacks while driving but then stated in his Adult Function 25 Report “that he has no trouble driving.” (R. at 33–34.) The Adult Function Report asks 26 the question “Do you drive?”, and allows the claimant to answer yes or no. (Id. at 206.) 27 LoPresto checked “Yes”. (Id.) Although the ALJ did not directly refer to the any other 28 evidence on this point in the specific discussion on LoPresto’s credibility, the ALJ cited - 13 - 1 statements from both LoPresto’s wife and Malone that LoPresto did drive in his decision. 2 (Id. at 31, 35.) Just like the form LoPresto filled out, though, both of those forms 3 involved a yes or no question—“Does the disabled person drive?” (Id. at 214, 222.) The 4 ALJ’s statement that LoPresto stated “he has no trouble driving” is an overstatement of 5 the record. LoPresto, his wife, and Malone all stated that LoPresto could drive in answer 6 to the same yes/no question. None of them stated that “he ha[d] no trouble driving.” 7 Nevertheless, that all three testified that he drives is evidence that they considered him 8 capable of doing so. To the extent that LoPresto subsequently suggested that he was 9 incapable of driving because of his panic attacks, the ALJ was entitled to consider the 10 contrary evidence. 11 The second alleged inconsistency is that LoPresto told Dr. Nath that he had 12 difficulty maintaining a job since he left the military in 1971, while the uncontroverted 13 evidence is that LoPresto worked as a bus driver for almost thirty years. (Id. at 34.) The 14 report from Dr. Nath that the ALJ references reads, however: “[LoPresto] endorsed 15 difficulty getting along with coworkers and taking direction or criticism from employers. 16 As a result, he has been fired from multiple jobs due to his inability to get along with 17 others. He stated the longest job he has had is over 20 years, however he was often 18 isolated from others, performing deskwork.” (Id. at 342.) Read literally, LoPresto 19 arguably did not claim that he had difficulty keeping a job—just that he had difficulties 20 with coworkers. LoPresto’s actual statement that he had difficulty getting along with co- 21 workers does not necessarily suggest that LoPresto is unable to work. Nevertheless, to the 22 extent that the ALJ misinterpreted it as a claim that LoPresto could not hold a job in 23 discrediting LoPresto’s testimony generally, it does not provide sufficient support to do 24 so. 25 Nevertheless, the third inconsistency cited by the ALJ is substantial evidence upon 26 which he could discount LoPresto’s credibility. The ALJ notes that while LoPresto 27 claims depression, irritability, and thoughts of harming others, he reported that those 28 symptoms were not present on February 26, 2009. In this same analysis in the same - 14 - 1 section the ALJ also cites to other reports from LoPresto’s treating physicians that show 2 that on at least five of his most recent treatment visits, the treatment notes reflect that 3 LoPresto’s medication enabled him to control his symptoms. See Part II.A.2, supra. 4 There is therefore substantial evidence to support the ALJ’s determination that 5 medication enabled LoPresto to control his symptoms. Several doctors on many 6 occasions made reports to that effect. LoPresto focuses on the fact that the ALJ 7 referenced only one of those occasions; nevertheless, the ALJ discussed several such 8 instances in the same section of his analysis where he discussed LoPresto’s credibility. 9 Therefore, there was substantial evidence to support the ALJ’s reliance on this 10 inconsistency. 11 The final inconsistency relates to LoPresto’s work experiences after his service as 12 a bus driver. He worked at a golf course for portions of 2007 and 2008, and as a secretary 13 of a credit union in 2005. (R. at 34.) These periods of work were all quite brief, and the 14 secretary job was part-time. To the ALJ, “[t]he fact that the claimant’s impairment did 15 not prevent him from working at this time, suggests that the claimant stopped working 16 because of termination, which is a reason unrelated to the allegedly disabling impairment. 17 This work may also indicate that the claimant’s daily activities have, at least at times, 18 been somewhat greater than the claimant has reported.” (Id. at 34.) At the hearing, 19 LoPresto testified that he was terminated in both instances due to a “conflict with 20 management.” (Id. at 57–65.) If a claimant is terminated for reasons other than his 21 impairment, there may be an inconsistency with his claim of inability to work. See 22 Elletson v. Astrue, 319 F. App’x 621, 622 (9th Cir. 2009). That leaves open the question 23 of whether LoPresto was terminated for reasons other than his impairment. See 24 Lingenfelter v. Astrue, 504 F.3d 1028, 1038 (9th Cir. 2007) (“It does not follow from the 25 fact that a claimant tried to work for a short period of time and, because of his 26 impairments, failed, that he did not then experience pain and limitations severe enough to 27 preclude him from maintaining substantial gainful employment. Indeed, we have 28 suggested that similar evidence that a claimant tried to work and failed actually supported - 15 - 1 his allegations of disabling pain.”) He testified that he had a “short fuse” that made it 2 difficult for him to work with people. (R. at 60.) Nevertheless, the ultimate connection 3 between LoPresto’s termination and his impairments remains attenuated. He never stated 4 that he was fired because of his PTSD, depression, or anxiety. LoPresto stated only that 5 he was fired in both instances because of conflicts with management. That evidence 6 leaves the ALJ room to make reasonable inferences. The ALJ consequently chose 7 between two reasonable interpretations of LoPresto’s subsequent employment history. 8 The Court cannot disturb that interpretation. 9 The ALJ put forth sufficiently clear and convincing reasons for discounting 10 LoPresto’s testimony that had evidentiary support. Therefore, the ALJ did not err in his 11 treatment of LoPresto’s testimony. 12 C. 13 LoPresto finally claims that the ALJ erred when he stated in the RFC that 14 LoPresto was capable of “unskilled work.” (Id. at 30.) LoPresto asserts that the ALJ 15 failed to conduct the function-by-function determination required by SSR 85-15 and 16 instead just assumed that LoPresto was capable of unskilled work because he failed to 17 meet or equal a listed mental impairment at step three of the five-step process. SSR 85-15 18 instructs the ALJ that he “must not assume that failure to meet or equal a listed mental 19 impairment equates with capacity to do at least unskilled work”, and that “all limits on 20 work-related activities resulting from the mental impairment must be described in the 21 mental RFC assessment.” Id. The ALJ assigned LoPresto a base of unskilled work and 22 included the limitation that LoPresto “cannot interact with the public.” (R. at 30.) 23 24 25 26 27 28 RFC Determination SSR 85-15 details the procedure for determining an RFC for someone in LoPresto’s situation, who has recognized severe mental impairments. Where a person's only impairment is mental, is not of listing severity, but does prevent the person from meeting the mental demands of past relevant work and prevents the transferability of acquired work skills, the final consideration is whether the person can be expected to perform unskilled work. The basic mental demands of competitive, remunerative, unskilled - 16 - work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic workrelated activities would severely limit the potential occupational base. This, in turn, would justify a finding of disability because even favorable age, education, or work experience will not offset such a severely limited occupational base. 1 2 3 4 5 6 Id. 7 The record shows that the ALJ did just that. His RFC included a limitation that 8 LoPresto “cannot interact with the public.” (R. at 30.) That determination is supported by 9 the statements from medical sources that the ALJ both lists and adopts. The medical 10 evidence demonstrated LoPresto’s mental impairments imposed a limitation on his ability 11 to interact with the public. The ALJ noted how Dr. Nath determined 12 16 that the claimant is able to remember very short, simple instructions, understand and carry out detailed instructions, maintain attention for brief periods of time, sustain an ordinary routine with supervision, and make simple work-related decisions. Additionally, Dr. Nath found that the claimant can ask simple questions, request assistance, accept instructions from supervisors, is aware of normal hazards, can take appropriate cautions, and can adhere to basic standards of neatness and cleanliness. 17 (Id. at 32.) There were no specific limitations there. In addition, the ALJ accepted the 18 opinion of Dr. Campbell, who “found marked limitations in categories of social 19 functioning, including the ability to interact appropriately with the general public, accept 20 instructions and respond appropriately to criticism, and the ability to get along with co- 21 workers and peers without distracting them or exhibiting behavioral extremes.” (Id. at 22 34.) The ALJ incorporated those concerns into the limitation on public interaction. Dr. 23 Campbell “also summarized that the claimant can learn and remember simple instructions 24 and tasks, follow a schedule, make decisions, complete simple tasks on a consistent basis, 25 adapt to changes, and handle the normal stressors of full time employment.” (Id.) That 26 opinion provided no additional limitations. The ALJ gave great weight to those opinions, 27 and his RFC was consistent with it. There was consequently no error at this stage. 13 14 15 28 - 17 - 1 CONCLUSION 2 The ALJ did not err in the determinations that LoPresto challenges in this appeal. 3 IT IS THEREFORE ORDERED that the ALJ’s decision is AFFIRMED. The 4 5 Clerk of Court is directed to terminate this case and enter judgment accordingly. Dated this 15th day of April, 2013. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 18 -

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