Cassino v. Astrue

Filing 16

ORDER - IT IS HEREBY ORDERED affirming the Commissioner of Social Security's decision to deny Plaintiff's disability benefits. Signed by Judge Mary H Murguia on 3/31/11. (SAT)

Cassino v. Astrue

Doc. 16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17

WO

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

) ) ) Plaintiff, ) ) vs. ) ) Michael J. Astrue, Commissioner of Social) ) Security Administration, ) ) Defendant. ) ) Cindy L. Cassino,

No. CV-09-8217-PHX-MHM ORDER

Plaintiff Cindy L. Cassino seeks judicial review of an Administrative Law Judge 18 ("ALJ") decision denying her claim for disability insurance benefits pursuant to 42 U.S.C. 19 § 405(g). Having reviewed the pleadings, the Court issues the following Order. 20 I. 21 Plaintiff filed an application for Disability Insurance Benefits on May 19, 2005, 22 alleging a disability onset date of March 17, 2005 based on pain caused by shoulder and 23 knee injuries. Plaintiff also alleged that lower back pain and mental impairments 24 contributed to her disability. Plaintiff's claim was denied initially on July 6, 2005 and on 25 reconsideration on September 23, 2005 because it was determined that Plaintiff's 26 condition was not expected to remain severe enough for twelve consecutive months to 27 prevent her from working. Plaintiff requested a hearing on November 2, 2005 before an 28 Procedural History

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24

ALJ because she disagreed with the prior determinations on her claim. The hearing was held on March 27, 2007 before ALJ F. Keith Varni. On June 6, 2007, the ALJ issued a Notice of Decision, denying Plaintiff's claims. Plaintiff appealed the decision to the Appeals Council, which granted Plaintiff's request for review of the ALJ decision. On May 23, 2008, the Appeals Council remanded the case to the ALJ to obtain evidence from a medical expert to clarify the nature and severity of Plaintiff's mental impairments, and to re-evaluate the opinion of a treating psychiatrist. Accordingly, the ALJ held another hearing on February 9, 2009 and issued a new decision on July 10, 2009, finding again that Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision final for purposes of judicial review under 42 U.S.C. § 405(g). Plaintiff timely filed her complaint for judicial review in this Court pursuant to § 205(g) of the Social Security Act, 42 U.S.C. §205(g) on December 3, 2009. Plaintiff is requesting that the decision of the Appeals Council be reversed and remanded solely for calculation and awarding of disability benefits. Alternatively, Plaintiff requests the decision should be reversed and the matter remanded for a new decision in accordance with proper legal principles. Defendant filed an answer on February 24, 2010. The issues have been briefed and are ripe for decision. II. Standard of Review An ALJ determines an applicant's eligibility for disability benefits through a five stage analysis. The ALJ must: (1) (2) determine whether the applicant is engaged in "substantial gainful activity"; determine whether the applicant has a "medically severe impairment or combination of impairments"; determine whether the applicant's impairment equals one of a number of listed impairments that the Commissioner acknowledges -2-

25 26 27 28 (3)

1 2 (4) 3 4 (5) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

as so severe as to preclude the applicant from engaging in substantial gainful activity; if the applicant's impairment does not equal one of the "listed impairments," the ALJ must determine whether the applicant is capable of performing his or her past relevant work; and if the applicant is not capable of performing his or her past relevant work, determine whether the applicant "is able to perform other work in the national economy in view of his [or her] age, education, and work experience."

Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987) (citing 20 C.F.R. §§ 404.1520(b)-(f)). See 20 C.F.R. § 416.920. The Court must affirm an ALJ's findings of fact if they are supported by substantial evidence and free from reversible legal error. See 42 U.S.C. 405(g); see also Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). Substantial evidence means "more than a mere scintilla," but less than a preponderance, i.e., "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See, e.g., Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Clem v. Sullivan, 894 F.2d 328, 330 (9th Cir. 1990). In determining whether substantial evidence supports a decision, the record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993). Nonetheless, "[i]t is for the ALJ, not the courts, to resolve ambiguities and conflicts in the medical testimony and evidence." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citations and internal quotation marks omitted). Where evidence is inconclusive, "questions of credibility and resolution of conflicts in the testimony are functions solely of the [ALJ]." Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The ALJ may draw inferences logically flowing from the evidence, and "[w]here evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion which must be upheld." Id. (citation omitted). Regardless, "[i]f the evidence can support either affirming or reversing the ALJ's -3-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

conclusion, [then the Court] may not substitute [its] judgment for that of the ALJ." Robbins v. Social Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). If on the whole record before the court, substantial evidence supports the ALJ's decisions, the court must affirm. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989); 42 U.S.C. § 405(g). III. Background Plaintiff Cindy Cassino is a high school graduate. From 1979 to March of 2005, Plaintiff worked as a grocery store clerk. She was 54 years old at the time of the alleged onset of her disability on March 17, 2005. Plaintiff's medical history is discussed below. A. Medical History 1. Shoulder Pain History

In late 2004, Plaintiff began complaining of work-related pain in her neck, shoulders, and left elbow (AR 313-26, see AR 268). An MRI of her left shoulder showed "mild" osteoarthritic changes (AR 265, 268-69). Plaintiff initially received a conservative course of treatment for the shoulder (see AR 275-312, 356-68). Eventually on March 23, 2005, an orthopaedic surgeon, Dr. Hiromu Shoji, operated on her shoulder (AR 333-45). Within a week, her wound was "completely healed" and her shoulder had a normal neurological status (AR 354). During 2005, Plaintiff continued to follow up with Dr. Shoji, who generally noted that she had pain and some limited range of motion in the shoulder, but was improving and had no neurological deficits (AR 347-53, 427-40). In July 2005, because Plaintiff had applied for social security benefits, Dr. Thu Do, a state agency physician, examined Plaintiff and found that she could: lift or carry 20 pounds occasionally and 10 pounds frequently; sit and stand/walk about six hours each in an eight-hour workday; occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, and reach overhead with the left arm. Dr. Do also concluded that Plaintiff could not climb ladders, ropes, or scaffolds (AR 370-78). In November 2005, Dr. Shoji examined Plaintiff and found that she was at maximum medical improvement. Dr. Shoji rated Plaintiff's left shoulder pain as -4-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"intermittent minimal pain which increases to slight occasionally," and said her cervical spine pain was "minimal . . . at most." He assessed a 3% whole person impairment rating for the left shoulder and none for her cervical spine, and recommended "prophylactic preclusion of repetitive pushing, pulling, reaching above the shoulder level" (AR 417-26). 2. Fibromyalgia

In March 2006, Plaintiff began seeing internist Dr. Sarah Chae. Dr. Chae diagnosed Plaintiff with fibromyalgia and recommended exercise, and prescribed medications for pain and sleep (AR 403-04). In April 2006, Plaintiff went to see Dr. Chae again and complained of a fibromyalgia flare, stating that she tried to go to work the prior week but had to go home due to body pain and depression. An examination showed positive fibromyalgia trigger points. (AR 400-01). In July 2006, Plaintiff also complained to Dr. Chae of fibromyalgia pain and an examination showed "[p]ositive fibromyalgia trigger points" (AR 391-93.). In October 2006, Dr. Chae completed a Physical Residual Functional Capacity Questionnaire in which she noted that Plaintiff had experienced "some improvement" in her symptoms of fibromyalgia (AR 328 -32). Dr. Chae said Plaintiff's pain and other symptoms would be "frequently" severe enough to interfere with the attention and concentration needed to perform simple work tasks and that Plaintiff was incapable of even low-stress jobs (AR 329). Dr. Chae did not complete the portion of the questionnaire regarding physical restrictions, stating "most of patient's debilitation is psychological" (AR 329-31). On April 24, 2007, the agency sent Plaintiff for an orthopedic evaluation by Dr. Thomas Dorsey (AR 441-45). Plaintiff reported pain in her back, both shoulders, and both knees (AR 441). Exam revealed Plaintiff was in no acute distress and her regular gait, toe walk, and heel walk were normal. She had 15 pounds of grip strength in her right hand and 20 to 25 in her left (AR 443). She had normal range of motion except for reduced flexion in her lower back, pain on impingement testing of both shoulders, normal motor strength, -5-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

normal sensation in her extremities, and normal reflexes (AR 442-44). He found that, in an eight-hour day, Ms. Cassino could lift and carry up to ten pounds frequently and 20 pounds occasionally; sit for eight hours and stand and/or walk for six hours; and occasionally reach overhead with her left upper extremity but never climb ladders, ropes, or scaffolds or be exposed to unprotected heights (AR 446-50). Straight leg raise testing (to detect nerve root irritation in the low back) was negative (AR 443). Dr. Dorsey said Plaintiff could shop, travel independently, walk without an assistive device, walk a block at a reasonable pace, use public transportation, prepare a simple meal, care for her hygiene, and handle paper files (AR 451). In May 2007, Plaintiff said that her fibromyalgia pain was "bad," and worst in her thoracic spine and shoulder blade. An examination was unremarkable except for positive fibromyalgia trigger points and tenderness along the mid-back (AR 498-500). Later, x-rays showed multi-level "mild" degenerative disc disease in the mid and lower thoracic spine (AR 506). In October 2007, Plaintiff complained of low back pain sometimes radiating into her right leg, neck, and shoulder. Dr. Chae's examination showed no neurological deficits. She recommended a Doppler study of Plaintiff's legs (AR 495-97), which was normal (AR 505). On October 3, 2008, Plaintiff drove herself to an appointment with Robertus Kounang, M.D., for a consultative orthopaedic examination requested by the Department of Social Services Disability and Adult Programs (AR 518-23). Plaintiff complained of left knee pain, bilateral wrist pain, neck pain, and mid and low-back pain (AR 518-19). Dr. Kounang noted that Plaintiff complained of "generalized body pain," but was in no acute distress and that he saw "no significant abnormality on examination" (AR 522). He concluded Plaintiff could lift or carry fifty pounds occasionally and twenty-five pounds frequently; stand, walk, or sit for six hours each in an eight-hour workday; and occasionally kneel and crouch (AR 522).

-6-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

In January 2009, Plaintiff requested that Dr. Chae complete paperwork for a handicap sticker and her disability claim. Plaintiff said that she had diffuse body pain causing difficulty with daily activities and an inability to work. An examination was unremarkable except for fibromyalgia trigger points. Dr. Chae's diagnosis included Arthritis, Fibromyalgia, and chronic fatigue and she referred Plaintiff to a Rheumatologist (AR 561, 573-74). Dr. Chae said Plaintiff could not do full-time work on a sustained basis and could not perform even low stress jobs (AR 566). 3. Psychological Issues

In April 2006, Dr. Chae also noted that Plaintiff was severely depressed and complained of sleep difficulties, but was not suicidal. At this time Plaintiff also complained of a fibromyalgia flare, stating that she tried to go to work the prior week but had to go home due to body pain and depression. Dr. Chae prescribed anti-depressant (Lexapro) and anti-anxiety (Restoril) medications (AR 400-01). In May 2006, Plaintiff complained of panic attacks, anxiety, and depression and she said she could not work (AR 398-99). Plaintiff said she remained very depressed and anxious, could not focus, and cried frequently. Dr. Chae increased Plaintiff's Lexapro dose and referred her to a psychiatrist, David Whitbread, M.D. (AR 396-97). In June 2006, Plaintiff began treatment with Dr. Whitbread. Plaintiff said she had anxiety and depression, but denied suicidal ideation or psychotic symptoms (AR 411-13). In July 2006, Plaintiff told Dr. Chae that she had seen a psychiatrist and therapist, and felt she was slowly improving. Plaintiff reported experiencing good and bad days though she said she still felt anxious, cried daily, and had lost twenty pounds since January, which Dr. Chae felt was a result of her depression (AR 391-93). Dr. Chae stated that Plaintiff's depressive symptoms rendered her unable to perform her regular or customary work (AR 407). On July 31, 2006, Dr. Whitbread noted that Plaintiff "tend[ed] to isolate" and had "mild" agoraphobia, although she babysat her grandchildren at times (AR 411). Dr. -7-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Whitbread also completed Plaintiff's worker's compensation claim. He listed her diagnosis as major depressive disorder and said that Plaintiff had been incapable of performing her regular work since May 1, 2006, but felt she would be able to resume her regular work on October 1, 2006 (AR 408-09). When Dr. Chae completed a Physical Residual Functional Capacity Questionnaire in October 2006, she noted that Plaintiff had experienced "some improvement" in her symptoms of depression, and anxiety, but remained "very depressed" (AR 328). Dr. Chae said that Plaintiff's pain and other symptoms would be "frequently" severe enough to interfere with the attention and concentration needed to perform simple work tasks and that Plaintiff was incapable of even low-stress jobs (AR 329). In November 2006, Plaintiff said she had been hospitalized for chest pain, which turned out to be anxiety. Dr. Whitbread said that her depression was better, but that her anxiety was worse with some agoraphobia (AR 471). In April 2007, Dr. Whitbread completed a mental impairment questionnaire and diagnosed Plaintiff with major depressive disorder, panic disorder with agoraphobia, generalized anxiety disorder, and fibromyalgia (AR 475-480). He found her totally unable to meet competitive standards with regard to her ability to remember work-like procedures; maintain attention for two-hour segments; maintain regular attendance and be punctual within customary tolerances; work with others without being distracted by them; complete a normal workday or workweek without interruptions from her psychiatric symptoms; deal with normal work stress; understand, remember, and carry out detailed instructions; set realistic goals; deal with stress of semi-skilled work; and travel to unfamiliar places (AR 477-78). Her physical pain and fatigue were also contributing to her depressed and anxious mood (AR 477). In May 2007, Plaintiff saw psychiatrist Reynaldo Abejuela, M.D., for a consultative evaluation requested by the Department of Social Services Disability Evaluation Division (AR 455-62). Plaintiff drove herself to the appointment (AR 455). Dr. Abejuela found that -8-

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff had moderate impairment in daily activities and social functioning; mild to moderate impairment in concentration, persistence, and pace; repeated episodes of emotional deterioration in work-like situations; moderate impairment in handling simple instructions; and severe impairment in handling complex instructions, responding to other people, responding to usual work situations, and dealing with changes in a routine work environment (AR 460-61). He found that her overall "occupational and social" impairment was moderate to severe, and that Plaintiff was capable of handling her own funds (AR 461). On a separate form, Dr. Abejuela stated Plaintiff had "moderate" limitation in understanding and remembering simple instructions and interacting with the public, and that she had "marked" limitations in all remaining areas of work-related mental functioning, including carrying out simple instructions and the ability to make judgments on simple work-related decisions (AR 463-64). In May 2007, Plaintiff told Dr. Chae that her depression and anxiety were "a little bit better." And by October 2007, Plaintiff told Dr. Chae that her depression was better, but that she still had some anxiety in social situations. (AR 495-97). In October 2008, Plaintiff saw Romualdo Rodriguez, M.D, for a consultative psychiatric evaluation requested by the Department of Social Security Disability and Adult Programs (AR 524-30). At this point, Plaintiff told Dr. Rodriguez that she was able to care for her personal needs, pay bills, leave home alone, take care of household chores, cook and make snacks, go to the store, and run errands (AR 526). Dr. Rodriguez diagnosed her major depressive disorder in remission, said her condition was "stable," and assessed a Global Assessment of Functioning1 ("GAF") score of 70 (AR 528-29). In a

A Global Assessment of Functioning ("GAF") score is a snapshot of a condition at one point in time, and is not a longitudinal indicator of one's overall level of function. See Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) (4th ed. 1994) (GAF provides an assessment of psychological, social, and occupational functioning at one point in time). A GAF score of 61 to 70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or -9-

1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

separate form, Dr. Rodriguez found that Plaintiff had only "mild" work-related mental limitations (AR 531-33). On October 21, 2008, Plaintiff saw an examining psychiatrist Ron Zodkevitch, M.D. at the request of her attorneys. (AR 535-48) Dr. Zodkevitch diagnosed severe, recurrent major depressive disorder without psychotic features; panic disorder with agoraphobia; and psychological factors affecting a medical condition (AR 543). He assessed a GAF of 452. (AR 543) The only test Dr. Zodkevitch performed was the Beck Depression Inventory, which showed evidence of severe depression (AR 541). Dr. Zodkevitch concluded that Plaintiff was currently unable to work and was totally disabled from a psychiatric standpoint and had been since July 2006 (AR 550-57). He listed Plaintiff's diagnoses as severe Major Depressive Disorder and Panic Disorder with Agoraphobia (AR 550). In January 2009, as previously noted, Plaintiff requested that Dr. Chae complete paperwork for a handicap sticker and her disability claim. Plaintiff told Dr. Chae she was still very depressed which caused difficulty with daily activities and contributed to her inability to work. At this time, Dr. Chae's diagnosis included depression and anxiety (AR 561, 573-74). Dr. Chae said Plaintiff could not do full-time work on a sustained basis and could not perform even low stress jobs (AR 566). In February 2009, Dr. Whitbread wrote a letter to Plaintiff's attorney stating that Plaintiff's symptoms rendered her "mostly housebound and socially isolated" (AR 576). Dr. Whitbread said that "[i]nteraction with other people increases her anxiety and pain that interferes with memory and concentration and focus resulting in impaired task completion

school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships." DSM-IV, supra, Note 4. A GAF of 41 to 50 indicates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional | rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV, supra, Note 4. - 10 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ability" (Id.). Dr. Whitbread concluded, "It is my opinion that [Plaintiff] suffers from several chronic psychiatric and physical conditions that seriously interfere with her ability to work in any type of employment. She is totally disabled at this time. This is probably permanent" (Id.). B. The Hearing Testimony 1. Plaintiff's Testimony

At the administrative hearing in February 2009, Plaintiff testified that she last worked sometime around 2006 (AR 90-103). Plaintiff said that she became unable to perform even modified work because of problems with her feet and back that caused difficulty standing (AR 94). Plaintiff said that she also experienced mental health problems, including anxiety, depression, sleeping all the time, and not going anywhere (AR 94, 95). Plaintiff said that she had difficulty concentrating, slept "all day," and did not sleep well at night (AR 95). Plaintiff said that she began mental health treatment when Dr. Chae referred her to Dr. Whitbread (AR 95) and that her mental health symptoms were about the same as they were in 2006 (AR 96). Plaintiff said that she had good days and bad days (AR 96). Plaintiff testified that her fibromyalgia caused pain "from head to toe" (AR 96). Plaintiff testified she had a driver's license, but only drove short distances (AR 97-98) and that her husband did the shopping (AR 96). 2. Vocational Expert Testimony

At the administrative hearing in February 2009, the ALJ asked the vocational expert to assume a hypothetical individual of Plaintiff's age, education, and work experience with the following limitations: able to lift or carry fifty pounds occasionally and twenty-five pounds frequently; able to stand, walk, or sit six hours in an eight-hour workday; able to do occasional kneeling and crouching (AR 98-99 (citing AR 522)). The vocational expert testified that such a person could perform the unskilled medium jobs of hand packager, housekeeper, cleaner, and maid (AR 99). He further testified that there would be no jobs for someone who was off task twenty percent of the time or had - 11 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

"marked" limitations in handling simple instructions and simple work-related decisions (AR 101, 463-65). C. The ALJ's Conclusions

On February 9, 2009, the ALJ assessed Plaintiff's case following the five-step sequential process for evaluating disability claims (AR 21-21). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability on March 2005 (AR 21, Finding 2). At step two, the ALJ found Plaintiff had the following severe impairments: "a questionably severe impairment in the musculoskeletal system involving the left shoulder and knee and a major depressive disorder" (AR 21-22, Finding 3). At step three, the ALJ found Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the presumptively disabling impairments listed at 20 C.F.R. pt. 404, subpt. P, app. 1 (AR 22-23, Finding 4). Contrary to what Plaintiff argued, the ALJ considered Plaintiff's fibromyalgia and stated that Plaintiff's impairments could reasonably be expected to cause her alleged symptoms. However, the ALJ did not agree with the intensity, persistence, or the limiting effects due to the Residual Functional Capacity Assessment, the fact that medications were helpful for Plaintiff's conditions, and the Plaintiff's inconsistent statements regarding her daily activities. The ALJ was not persuaded by the statements of Dr. Whitbred, Dr. Abejuela, and Dr. Zodkevitch as to Plaintiff's depression since all of their medical findings were based on subjective, self reported findings and are inconsistent with other medical evidence. The ALJ gave the greatest weight to the testimony of Dr. Rodriguez, because Dr. Rodriguez performed a recent, comprehensive examination of the claimant and his opinion is supported by the results of his mental status examination. The ALJ also made an account of all the inconsistent statements made by Plaintiff. For example, Plaintiff said that she could not vacuum, mop, cook, or wash her hair because she could not lift her arms. However, she told the psychiatric examiner that she is able to take care of household chores, cook, go to the store, run errands, and take care of her own personal - 12 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

hygiene. Plaintiff told Dr. Zodkevitch that her medications were not helping. However, she also in the same month told Dr. Rodriguez, that her condition was improving, and her medications were helping her depression get better. After careful consideration of the entire record, the ALJ found Plaintiff's subjective complaints regarding her psychiatric conditions and physical conditions were not fully credible and that she had the residual functional capacity to perform a range of "medium" work as defined in 20 C.F.R. § 404.1567(c), with the following restrictions: · no more than occasional kneeling or crouching; · only routine and repetitive, entry-level, minimally stressful work; · no contact with the general public; and · only superficial interpersonal contact with co-workers and supervisors (AR 23-28, Finding 5). Based on vocational expert testimony, the ALJ found that Plaintiff could not return to her past relevant work but that she could perform other jobs, including working as a packager, housekeeper, cleaner, or maid (AR 28-29, Findings 7-10). Accordingly, the ALJ concluded Plaintiff was not disabled. (AR 29-30, Finding 11). IV. Discussion Plaintiff appeals the ALJ's ruling on three different grounds. First, Plaintiff claims that the ALJ erroneously failed to consider her fibromyalgia diagnosis. Second, Plaintiff claims that the ALJ committed harmful error in rejecting the mental function assessments of treating psychiatrist Whitbread and the examining psychiatrists Abejuela and Zodkevitch. Third, Plaintiff contends that the ALJ failed to support his decision with substantial evidence that Plaintiff's testimony lacks credibility. A. Evidence Regarding Fibromyalgia

Plaintiff questions the ALJ's rejection of the fibromyalgia diagnosis for three reasons. First, Plaintiff claims that the record indicating the presence of positive trigger points is sufficient to prove fibromyalgia. Second, Plaintiff claims that the ALJ applied the wrong standard of proof to determine whether Plaintiff established the existence of a - 13 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

medically determinable impairment. Third, Plaintiff claims that the failure of two consultative examiners to endorse Dr. Chae's fibromyalgia diagnosis does not refute or disprove the diagnosis. Taking up Plaintiff's claim that the record supports a diagnosis of fibromyalgia, the diagnosis of fibromyalgia is based on a history of pain in five parts of the body and patient reports of pain when at least 11 of 18 points cause pain are palpated by the examiner's thumb. Jordan v. Northrop Grumman Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004), overruled on other grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 969 (9th Cir. 2006), as recognized in Montour v. Hartford Life & Acc. Ins. Co., 588 F.3d 623, 626 (9th Cir. 2009); see also Brosnahan v. Barnhart, 336 F.3d 671, 672 n.1 (8th Cir. 2003). In addition, the American College of Rheumatology require that the trigger points be "painful at palpation, not just tender," a history of widespread pain for at least three months, pain in both sides of the body, and pain above and below the waist with axial skeleton pain. See http://www.nfra.net/Diagnost.htm, (Last visited May 21, 2010). The fibromyalgia diagnosis in this case, however, is not fully confirmed by the record. Dr. Chae's notes do not reflect all of the requisite findings to support fibromyalgia. As previously noted, Dr. Chae's treatment notes intermittently reflect general findings of positive fibromyalgia trigger points. More importantly, physical examinations by Dr. Chae and other physicians show that Plaintiff did not have functional limitations from fibromyalgia that would preclude the reduced range of medium work, regardless of the amount of positive trigger points found and their locations. As a result, Dr. Chae opted not to complete the physical limitation portion of a physical residual functional capacity questionnaire because she felt Plaintiff's limitations were primarily "psychological." Dr. Chae later affirmatively stated that Plaintiff had no limitations in lifting, reaching, handling, or fingering. Therefore, even if Dr. Chae had provided sufficient documentation for a fibromyalgia diagnosis, Plaintiff's fibromylgia did not preclude Plaintiff from engaging in substantial gainful activity. - 14 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff next argues that the law does not require proof of an impairment by objective diagnostic criteria and that subjective complaints along with acceptable, albeit subjective, diagnostic criteria by a medical professional may be sufficient. The claimant, however, must show her impairments are so functionally limiting as to preclude any substantial gainful activity. Barnhart v. Walton 535 U.S. 212, 217-222 (2002).. Furthermore, the ALJ may discount a treating physician's opinions if he finds they are based largely on a claimant's incredible subjective complaints without supporting medical findings. See, e.g.,Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) ("An ALJ may reject a treating physician's opinion if it is based `to a large extent' on a claimant's self-reports that have been properly discounted as incredible") (citations omitted); Batson v. Comm'r. of the Soc. Sec. Admin., 359 F.3d 1195, 1195 n.3 (2004). The ALJ is responsible for determining credibility, resolving conflicts in the medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). An ALJ may disregard the opinion of the treating physician if the ALJ sets forth specific and legitimate reasons supported by substantial evidence in the record. Id. at 600-01 In this case, the ALJ's findings indicate that he considered Dr. Chae's opinions regarding Plaintiff's fibromyalgia but did not give them great weight in light of the other evidence presented. The ALJ set forth the reasons why he found Dr. Chae's opinions inconsistent with the other substantial medical evidence. For instance, Dr. Chae herself noted in January 2009, that Plaintiff had no limitations on lifting, reaching, handling, or fingering. Moreover, medical examinations did not reveal functional limitations from fibromyalgia pain that would preclude a range of medium work or preclude work activity for at least 12 consecutive months. Finally the Plaintiff argues that just because the two consultative examiners, Drs. Dorsey and Kounang, did not agree with Dr. Chae's fibromyalgia diagnosis does not mean that they refuted or disproved it. Plaintiff argues that the consultative physicians are orthopedic surgeons and not rheumatologists, and that they simply did not perform the - 15 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

necessary tests required to evaluate the existence of fibromyalgia. It bears mentioning, however, that Dr. Chae is not a rheumatologist but rather an internist. The limited basis for Dr. Chae's fibromyalgia has already been discussed. Furthermore, as Plaintiff stated in her brief, "[f]ibromyalgia by its very nature is not susceptible to diagnosis by objective testing." Accordingly, Drs. Dorsey and Kounang performed tests to assess Plaintiff's limitations and the amount of pain she was suffering from her alleged fibromyalgia. Specifically, Dr. Kounang's examination showed that Plaintiff was in no acute distress and that her impairments would not preclude her from performing a range of medium work. Also, Dr. Dorsey's examination showed that, despite any pain Plaintiff may have been experiencing, she was in no acute distress and retained the ability to perform a reduced range of medium work. Therefore, while Plaintiff experienced some stress and pain, these were not severe enough to preclude her from performing a limited range of work. The ALJ found the opinions of Dr. Kounang and Dr. Dorsey regarding the extent of Petitioner's limitations more credible than Dr. Chae's ultimate opinion about Plaintiff's limitations. As previously noted, The ALJ is responsible for determining credibility and resolving conflicts between conflicting evidence. Andrews, 53 F.3d at 1039. Based on the explanations provided by the ALJ and the substantial evidence in the record, the Court finds that the ALJ adequately considered but declined to accept Dr. Chae's ultimate opinion regarding Plaintiff's limitations as conclusive. B. Evidence Regarding Depression

Plaintiff claims that the ALJ failed to consider the opinions of three physicians regarding her depression, the treating physician Dr. Whitbread, and the consultative physicians Drs. Abejuela and Zodkevitch. The ALJ considered, but did not find conclusive Dr. Whitbread's opinion that Plaintiff is housebound and socially isolated and that interaction with other people increases anxiety and pain that interferes with her memory, concentration, focus and the ability to complete - 16 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

tasks. The ALJ stated that Dr. Whitbread's opinion on this point did not consist of medical findings but was rather based on subjective, self reported symptoms. Moreover, as the ALJ pointed out, Dr. Whitbread's opinion was inconsistent with other evidence in the record, including his own. For example, in April 2007, Dr. Whitbread concluded that Plaintiff would not be precluded from working with the general public and would have sufficient ability to maintain socially appropriate behavior. The ALJ agreed with Dr. Whitbread that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the ALJ concluded that Plaintiff's statements concerning the intensity, persistence, and limiting effects of these symptoms were not credible to the extent that they were not consistent with the residual functional capacity assessment. Plaintiff further argues that Dr. Abejuela's findings were not taken into consideration. Dr. Abejuela found that Plaintiff had severe impairment in the areas of handling complex instructions, responding to other people, responding to usual work situations, and dealing with changes in a routine work environment. The ALJ did take these findings into consideration, however, Dr. Abejuela conducted his exam in May of 2007 and the ALJ considered the more recent exam performed by Dr. Rodriguez in October of 2008 to be more pertinent. See Fife v. Dir. Office of Workers' Comp. Programs, 888 F.2d 365, 369 (3rd. Cir. 1989) (stating that the older exam can be discounted by the more recent exam). Dr. Rodriguez's findings showed that Plaintiff's severe depression was in remission and that she had only limited social impairments due to her psychological condition. Plaintiff also told Dr. Rodriguez that she was able to care for her personal needs, perform household chores, cook, go to the store, and run errands. Moreover, the ALJ cited evidence indicating that Plaintiff's medications were helpful in discounting her complaints of total disability, since the record indicated that Plaintiff reported to Dr. Rodriguez that her medications were "very helpful." It was appropriate for the ALJ evaluating the Plaintiff's claim to consider the progression of her condition in determining whether she was entitled to benefits. - 17 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff also claims that the ALJ failed to consider the opinion of Dr. Zodkevitch, who concluded that Plaintiff was severely depressed, unable to work, and is currently totally disabled from a psychiatric standpoint. As the ALJ explained, however, Dr. Zodkevitch's opinion was based largely on Plaintiff's self-reports. Dr. Zodkevitch, who was retained by Plaintiff's attorneys, stated that the only test he performed in reaching his conclusion was the Beck Depression Inventory, which, by its nature, is a subjective measure of depressive symptoms. See Partee v. Comm'r of Soc. Sec., 2010 U.S. Dist. LEXIS 28262 (E.D. Cal) (stating the Beck Depression Inventory merely asked the plaintiff to list subjective symptoms and can not be said to represent objective clinical findings). Yet the same month that Plaintiff told Dr. Zodkevitch that medications were not helping her depression and that she was unable to cook vacuum, mop, or wash her hair, she told Dr. Rodriguez that she was able to take care of her personal needs, cook, run errands, go to the store, and that her medications were very helpful. It is within the ALJ's discretion to find Dr. Rodriguez' evaluation more credible than Dr. Zodkevitch, particularly in light of the inconsistencies in Plaintiff's statements to both doctors. See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007), (citation omitted). "It is for the ALJ, not the courts, to resolve ambiguities and conflicts in the medical testimony and evidence." Shalala, 53 F.3d at 1039. "If the evidence can support either affirming or reversing the ALJ's conclusion, [then the Court] may not substitute [its] judgment for that of the ALJ." Robbins, 466 F.3d at 882. Given the explanations provided by the ALJ regarding his reasons for giving greater weight to the opinion of Dr. Rodriguez as well as the evidence presented, the Court does not conclude that the ALJ's findings were unreasonable based on the record in this case. C. The ALJ's Determination of Plaintiff's Credibility

Lastly, Plaintiff argues that the ALJ failed to properly assess the credibility of her subjective statements. Generally, questions of credibility and resolution of conflicts in evidence are functions solely for the [ALJ]. Id. An ALJ cannot be required to believe every allegation of disabling pain, or else disability benefits would be available for the - 18 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

asking. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Many medical conditions produce pain not severe enough to preclude gainful employment. Id. An ALJ may discount the claimant's subjective statements with clear and convincing reasons supported by substantial evidence. Carmickle v. Comm'r. of Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008). With respect to Plaintiff's impairments, the ALJ did not dispute the existence of physical and psychiatric difficulties, only their severity. The ALJ provided a number of reasons for discounting Plaintiff's subjective claims about the severity of her ailments. For instance, the ALJ explicitly found that Plaintiff's allegations that she could not do housework, cook, or wash her hair due to pain were inconsistent with information in the record. The record reflects that Plaintiff told Dr. Rodriguez that she was able to care for her personal needs, take care of household chores, cook, go to the store, and run errands. Plaintiff's claims concerning her physical limitations were also inconsistent with other evidence of record, including Plaintiff's ability to care for her grandchildren on occasion and drive to her medical appointments. In addition, the record reflects that Dr. Rodriguez found that Plaintiff's severe depression was in remission and that she had only limited social impairments due to her psychological condition. Moreover, the ALJ cited evidence indicating that Plaintiff's medications were helpful in discounting her complaints of total disability, since the record indicated that Plaintiff reported to Dr. Rodriguez that her medications were "very helpful." An impairment which could reasonably be alleviated by medication or treatment could not serve as a basis for a finding of disability. Crane v. Shalala, 76 F.3d 251, 254 (9th Cir. 1996). The Court thus finds that, the ALJ provided clear and convincing reasons for discounting Plaintiff's subjective statements, and the ALJ's credibility finding is supported by substantial evidence.

- 19 -

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

V.

Conclusion When presented with conflicting medical opinions and subjective complaints, the

ALJ must determine credibility and resolve the conflict based on the information in the record. These differences and ambiguities were resolved by the ALJ in light of his review of the medical evidence and the testimony. This Court does not conclude that the ALJ's determination was unreasonable based on a review of the record. Accordingly, IT IS HEREBY ORDERED affirming the Commissioner of Social Security's decision to deny Plaintiff's disability benefits. DATED this 31st day of March, 2011.

- 20 -