Parker v. Colvin
Filing
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ORDER, Plaintiff's case is DISMISSED and the Clerk of Court shall enter judgment. Signed by Magistrate Judge D Thomas Ferraro on 5/27/15. (KAH).
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Elizabeth Parker,
No. CV-14-2135-TUC-DTF
Plaintiff,
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v.
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ORDER
Carolyn W. Colvin,
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Defendant.
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Plaintiff Elizabeth Parker filed this action pursuant to 42 U.S.C. § 405(g) seeking
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judicial review of a final decision by the Commissioner of Social Security
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(Commissioner). (Doc. 1.) Before the Court are Parker’s Opening Brief and Defendant’s
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Responsive Brief. (Docs. 31, 32.) The parties have consented to Magistrate Judge
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jurisdiction. (Doc. 13.) Based on the pleadings and the administrative record submitted to
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the Court, the Commissioner’s decision is affirmed.
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PROCEDURAL HISTORY
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Parker filed an application for Disability Insurance Benefits (DIB) and
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Supplemental Security Income (SSI) on September 9, 2011. (Administrative Record (AR)
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203, 210.) She alleged disability from August 12, 2011. (AR 203, 210.) Parker’s
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application was denied upon initial review (AR 93-94) and on reconsideration (AR 121-
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22). A hearing was held on January 25, 2013 (AR 28-58), after which ALJ Laura Speck
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Havens found, at Step Five, that Parker was not disabled (AR 13-23). The Appeals
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Council denied Parker’s request to review the ALJ’s decision. (AR 1.)
FACTUAL HISTORY
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Parker was born on December 11, 1960, making her 50 years of age at the onset
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date of her alleged disability. (AR 203.) Parker last worked in 2008. She had been
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employed as a respiratory therapist for approximately twenty years, as a CPS case aide
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and at call centers. (AR 235, 246.) On August 12, 2011, Parker intentionally overdosed
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on medication and was admitted to the hospital. (AR 298.)
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The ALJ found Parker had severe impairments, depression, bipolar disorder, and
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schizophrenia. (AR 16.) She found that Parker did not meet a listed impairment. (AR 17.)
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The ALJ concluded that Parker had the Residual Functional Capacity (RFC) to do work
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at all exertional levels, but limited her to simple job instructions and occasional
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interaction with co-workers, the public, and supervisors. (AR 19.) Parker could not
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perform her past relevant work. (AR 21.) However, the ALJ determined (based on
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testimony from a vocational expert) that Parker could perform other work available in the
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national economy. (AR 22-23.)
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STANDARD OF REVIEW
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The Commissioner employs a five-step sequential process to evaluate SSI and
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DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S.
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458, 460-462 (1983). To establish disability the claimant bears the burden of showing she
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(1) is not working; (2) has a severe physical or mental impairment; (3) the impairment
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meets or equals the requirements of a listed impairment; and (4) claimant’s RFC
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precludes her from performing her past work. 20 C.F.R. §§ 404.1520(a)(4),
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416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the
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claimant has the RFC to perform other work that exists in substantial numbers in the
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national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the
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Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point
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in the five-step process, she does not proceed to the next step. 20 C.F.R.
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§§ 404.1520(a)(4), 416.920(a)(4).
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“The ALJ is responsible for determining credibility, resolving conflicts in medical
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testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
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Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings
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of the Commissioner are meant to be conclusive if supported by substantial evidence. 42
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U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a
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preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.
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Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to
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deny benefits only “when the ALJ’s findings are based on legal error or are not supported
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by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,
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1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must
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resolve conflicts in the evidence, and if the evidence can support either outcome, the
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court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019
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(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc.
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Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision,
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however, “cannot be affirmed simply by isolating a specific quantum of supporting
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evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v.
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Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence
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that supports as well as detracts from the Commissioner’s conclusion. Day v.
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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
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DISCUSSION
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Parker argues the ALJ committed five errors: (1) the ALJ erred at Step Three in
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finding that Parker did not meet a listed impairment; (2) the ALJ rejected Parker’s
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credibility without substantial supporting evidence; (3) the ALJ improperly rejected the
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opinion of Parker’s physician’s assistant; (4) the ALJ did not consider all of the medical
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evidence and Parker’s symptoms in making her RFC determination; and (5) the ALJ
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erred at Step Five by not considering the transferability of job skills and not asking the
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vocational expert a comprehensive hypothetical.
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Step Three
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Parker argues the ALJ erred in finding that she did not meet listing 12.03,
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paragraph C(3). “Conditions contained in the ‘Listing of Impairments’ are considered so
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severe that they are irrebuttably presumed disabling, without any specific finding as to
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the claimant’s ability to perform his past relevant work or any other jobs.” Lester v.
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Chater, 81 F.3d 821, 828 (9th Cir. 1995), as amended (Apr. 9, 1996) (citing 20 C.F.R.
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§ 404.1520(d)).
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The claimant bears the burden to establish that she meets a listing. Burch v.
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Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). At Step Three, the ALJ is required to
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evaluate the relevant evidence and make sufficient findings for review. See Lewis v.
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Apfel, 236 F.3d 503, 512 (9th Cir. 2001); Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir.
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1990); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990).
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The impairment listed at 12.03 is captioned as “Schizophrenic, Paranoid and Other
Psychotic Disorders” and provides:
Characterized by the onset of psychotic features with deterioration from a
previous level of functioning.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the requirements in C
are satisfied.
....
C. Medically documented history of a chronic schizophrenic, paranoid, or
other psychotic disorder of at least 2 years’ duration that has caused more
than a minimal limitation of ability to do basic work activities, with
symptoms or signs currently attenuated by medication or psychosocial
support, and one of the following
....
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3. Current history of 1 or more years’ inability to function outside a highly
supportive living arrangement, with an indication of continued need for
such an arrangement.
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As to paragraph C(3), the ALJ found “there is no evidence to suggest that the claimant
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needs to live in a highly structured living arrangement. The claimant has demonstrated
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the ability to care for personal needs, interact socially and obtain and sustain
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employment.” (AR 18-19.)
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First, Parker argues the ALJ failed to cite any record evidence to support her
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evaluation of Parker’s functional abilities. Although the ALJ did not cite record evidence
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in her discussion of paragraph C, immediately preceding that analysis she cited to the
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record in evaluating the paragraph B criteria. (AR 18-19.) Specifically, the ALJ discussed
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Parker’s limitations in activities of daily living and social functioning with citations to the
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record. (AR 18.) Thus, there was no error in the ALJ’s citations. Parker also argues that
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the level of functioning found by the ALJ is counter to the testimony from her sister and
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her medical records that establish her schizophrenia and her need for social and
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therapeutic support. Parker provided no record citations for this argument and failed to
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establish that the ALJ’s finding was not supported by substantial evidence.
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Second, Parker argues that her father’s home qualifies as a “highly supportive
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living environment,” and that the ALJ erred by not considering that. To qualify, the
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environment must be “highly structured and supportive.” 20 C.F.R. pt. 404, subpt. P, app.
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1, § 12.00F. Examples of such a placement are a “hospital, halfway house, [or] board and
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care facility.” Id. The substance of Parker’s argument is that her stability depended upon
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her family support. Although a home may qualify, Parker provided no record citations to
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support her assertion that her father’s home was equivalent to the regulatory examples
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described above. She has not presented substantive evidence of structure and support tied
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to her living environment. Accordingly, Parker failed to establish an error at Step Three.
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Credibility
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Parker challenges the ALJ’s finding on her credibility. The ALJ discounted the
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following testimony that Parker gave at the hearing:
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On a good night, I’ll sleep eight hours. . . . [On a bad night,] None.
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....
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I had this thought that someone told me that I was dead and not to
talk to anybody. So I didn’t talk to my daughter – . . . And, every time she
called, I didn’t answer the phone. . . . I mean, I don’t know how you can
work like that if that’s happening. Plus, my sleep issues – . . . I mean, if I
don’t get a good night’s sleep, I can’t function during the day.
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I thought that my brain was being used by the – by the government
satellites for some – something going on in Syria. . . . My biggest delusion
was that the government had a weapon made out of the – like, a sun
weapon. . . . And it was going to kill me.
[In telling reality from non-reality,] [s]ome days are better than others, you
know.
(AR 38, 40-41, 42-43, 44.)
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The ALJ found that Parker’s testimony was not fully credible. Specifically, she
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found that Parker experienced improvement with medication management and
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compliance; she was bored from not working and believed she was capable of working,
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but chose to discontinue employment services; her delusional thinking does not
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significantly affect her ability to perform activities of daily living or interact socially; and
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her limitations were not fully consistent with the objective medical evidence. (AR 20.)
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In general, “questions of credibility and resolution of conflicts in the testimony are
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functions solely” for the ALJ. Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007)
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(quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). When an ALJ finds
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that a claimant’s subjective symptom testimony is not credible, she must set forth
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specific, clear and convincing reasons for discounting it to ensure a reviewing court that
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the determination is not arbitrary. Bunnell v. Sullivan, 947 F.2d 341, 345-346 (9th Cir.
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1995); Garrison v. Colvin, 759 F.3d 995, 1014 (9th Cir. 2014); SSR 96-7p. “If the ALJ’s
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credibility finding is supported by substantial evidence in the record, we may not engage
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in second-guessing.” Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
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First, the ALJ found Parker not credible because she experienced improvement
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with medication management and compliance. There is substantial evidence in the record
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to support this finding. In August 2011 (the alleged onset date), Parker intentionally
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overdosed on medication and was admitted to the hospital. (AR 298.) She reported
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paranoia and delusions, and was rated with a GAF of 30. 1 (Id.) She was given a GAF of
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The GAF is a 100-point scale that provides a “rough estimate of an
individual's psychological, social, and occupational functioning used to reflect the
individual's need for treatment.” Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th
Cir.1998); see American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental
Disorders (“DSM IV”), at 32, 34 (4th ed. 2000). According to the DSM–IV, a GAF score
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50 at the time of her release. (AR 299.) Soon thereafter she began treatment at COPE.
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Parker’s treating nurse practitioner, NP Danker rated her GAF at 55 initially, then at 60
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until January 2012. (AR 325, 349, 351, 352.) In February, NP Danker recorded that
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Parker continued to hear a slight static sound but reported no other hallucinations or
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delusions, and her GAF was a 65. (AR 347.) Examining psychologist Glenn Marks rated
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Parker’s GAF at 55-60 in March 2012, and concluded she could do work that was not
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complex or interactive. (AR 392-96.) In April 2012, COPE completed an assessment
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finding that Parker had made significant improvement, and Parker stated that she was
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doing much better than at the time of her last assessment and was serious about returning
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to work. (AR 383.) NP Danker continued to rate Parker’s GAF at 65 until September
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2012, and Parker did not report any psychotic symptoms during this period. (AR 534,
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536, 538, 541, 542, 544, 580, 582.) In October and November, NP Danker recorded a
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GAF of 60 and, in November 2012, Parker began to report psychotic symptoms. (AR
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584, 586.) In 2013, Parker switched from COPE to CODAC. She was still experiencing
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delusions and treating physician’s assistant rated her GAF at a 51. (AR 647.) As noted by
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the ALJ, Parker continued during this time to attend Camp Wellness and Art
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Awakenings. (AR 649.)
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Parker relies upon the Garrison case, in which the court concluded the ALJ
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“improperly singled out a few periods of temporary well-being from a sustained period of
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impairment and relied on those instances to discredit Garrison.” Garrison v. Colvin, 759
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F.3d 995, 1018 (9th Cir. 2014). Parker fails to provide any record citations to support this
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contention (Doc. 31 at 11-12), which greatly undermines her argument and is in violation
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of the Local Rules. See LRCiv 16.1(a)(4). Parker’s factual record is distinct from the
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evidence in Garrison. Here, Parker improved and stabilized with treatment from the
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alleged onset date of August 2011, through October 2012. After that time, she did have a
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recurrence of psychotic symptoms that are evident in the November 2012 and February
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between 41 and 50 describes “serious symptoms” or “any serious impairment in social,
occupational, or school functioning.” A GAF score between 51 to 60 describes “moderate
symptoms” or any moderate difficulty in social, occupational, or school functioning.”
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2013 records (Parker switched mental health service providers and there is a record gap
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between these two dates, during which Parker’s symptoms and treatment are unknown).
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Although Parker’s improvement was not without set-backs, there is substantial evidence
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to support the ALJ’s finding that she improved with treatment.
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Second, the ALJ relied upon Parker’s pursuit, and discontinuation, of employment
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training finding it was inconsistent with disabling limitations. In mid-2012, Parker
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expressed boredom without work and entered an employment training program, DKA. In
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July 2012, COPE documented that Parker was doing well at DKA. (AR 580.) In
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September, Parker told her case manager that she was feeling better (after suffering
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lithium toxicity) but did not feel well enough to work and she was not going to complete
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her DKA training. (AR 593.) Therefore, the ALJ’s finding is supported by substantial
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evidence in the record. Further, at the hearing, Parker testified that her employment
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specialist at DKA did not think she would be able to work. (AR 33.) That testimony is
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inconsistent with the administrative record, which documents her discontinuation of
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employment services. (AR 593.) The ALJ may rely upon inconsistencies between a
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claimant’s testimony and the record. See Molina v. Astrue, 674 F.3d 1104, 1112-13 (9th
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Cir. 2012).
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Third, the ALJ found that Parker’s statements were not fully corroborated by
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objective medical evidence. Drs. Marks and Penner both concluded Parker could work
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despite her reported delusions and diagnosis of schizophrenia/ schizoaffective disorder.
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(AR 144-47, 149, 392-96.) A claimant’s subjective testimony can be rejected, in part,
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based on a doctor’s opinion. See Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155,
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1161 (9th Cir. 2008).
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Because the Court finds that the ALJ relied on several valid clear and convincing
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reasons, supported by substantial evidence, to discount Parker’s credibility, the Court
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need not evaluate the remaining finding by the ALJ. Id. at 1163.
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Treating Physician’s Assistant
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Parker argues the ALJ should have given weight to Ahmad Taylor, her treating
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physician’s assistant. On February 6, 2013, PA Taylor completed a medical source
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statement. He found that Parker had: no limitations on remembering, understanding, and
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carrying out simple instructions; marked limitations in making judgments on simple
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decisions, interacting appropriately with public, supervisors, and co-workers, and
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responding to work situations; and extreme limitations on understanding, remembering
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and carrying out complex instructions, and making complex decisions. (AR 639-41.) PA
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Taylor stated that to his knowledge these limitations were present as of January 23, 2013.
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(AR 640.)
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The ALJ gave Taylor’s opinion limited weight because he is not an acceptable
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medical source. (AR 21.) The ALJ relied upon the fact that Taylor’s assessment drew
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from Parker’s self-reported symptoms. Also, Taylor only saw Parker once or twice before
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providing his opinion, and he did not address her prior improvements or GAF scores
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from her treatment records.
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Because the opinion of a physician’s assistant is not entitled to the deference given
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the opinion of an acceptable medical source, 20 C.F.R. §§ 404.1513(a) & (d), to discount
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his testimony as an “other” medical source an ALJ need provide only germane reasons.
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Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (contrasting the requirement that a
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treating physician’s opinion can be rejected only with specific, legitimate reasons). In
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contrast to the weight given to PA Taylor, the ALJ gave significant weight to consulting
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examiner Dr. Glenn Marks’s opinion. An ALJ is allowed to give additional weight to Dr.
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Marks because he was an acceptable medical source. 2 Johnson v. Astrue, 303 F. App’x
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543, 545 (9th Cir. 2008).
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The ALJ relied upon the fact that PA Taylor’s assessment drew from Parker’s self-
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reported symptoms. This is a germane reason to discount his opinion. See Koepke v.
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It is notable, however, that the ALJ’s reason for discounting PA Taylor’s
opinion is equally applicable to Dr. Marks – no treating history and no record review.
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Comm’r Soc. Sec. Admin., 490 F. App’x 864, 866 (9th Cir. 2012). For example, PA
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Taylor stated that Parker has been unable to work for the past five years; however, he
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gave January 2013, as the effective date for the limitations he found. PA Taylor also
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noted that Parker reported that her impairments have impacted prior employment
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relationships. (AR 640.) In light of the fact that PA Taylor began to see Parker only in
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2013, this information comes solely from information provided by Parker. PA Taylor
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referred to a psychiatric assessment (AR 639), but the administrative record does not
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contain such an assessment from CODAC where PA Taylor worked.
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The ALJ relied upon PA Taylor’s limited relationship with Parker at the time he
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offered his opinion. In conjunction with that finding, the ALJ noted that PA Taylor did
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not address any of Parker’s treatment records reflecting prior improvements or GAF
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scores. These are specific reasons germane to this witness and supported by the record.
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The ALJ did not err in giving PA Taylor’s opinion limited weight. See Fleming v.
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Astrue, 303 F. App’x 546, 548-49 (9th Cir. 2008) (finding nurse practitioner’s opinion
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was properly discounted because it relied upon self-reporting and exceeded limitations
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found by physicians).
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Residual Functional Capacity
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Parker argues that the ALJ’s RFC failed to account for her delusions and
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disconnect from reality. The ALJ’s RFC finding was supported by the opinion of
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examining psychologist Glenn Marks and the State agency consultants. Dr. Marks’s
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opinion constitutes substantial evidence to support the ALJ’s RFC finding because he
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conducted an independent exam of Parker. See Tonapetyan v. Halter, 242 F.3d 1144,
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1149 (9th Cir. 2001). Psychologist Eric Penner reviewed the records and offered an
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opinion consistent with that of Dr. Marks. (AR 147-49, 396.) Thus, there was substantial
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evidence in the record to support the ALJ’s RFC finding.
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Step Five
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Parker argues the ALJ erred at Step Five by not including her delusions in the
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hypothetical to the vocational expert, and by not making a finding regarding the
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transferability of job skills.3
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When an ALJ finds that a claimant has transferable job skills, she is required to
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make specific findings in support of that finding. Bray v. Comm’r Soc. Sec. Admin., 554
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F.3d 1219, 1223- 26 (9th Cir. 2009) (requiring the ALJ to comply with SSR 82-41, even
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if there is testimony of a vocational expert). Here, the ALJ did not make a finding that
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Parker had transferable job skills and, based on the vocational expert’s testimony, the
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ALJ identified only unskilled work at Step Five. (AR 22.) As noted in SSR 82-41, even
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when a claimant has no transferable skills, she may be found not disabled based on an
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ability to perform unskilled work. Therefore, the ALJ’s omission regarding Parker’s
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transferable work skills was not error.
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Next, Parker contends the ALJ failed to include all of her limitations in the
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hypothetical she posed to the vocational expert. An ALJ may rely on a vocational
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expert’s testimony only if she poses a hypothetical that includes all of the claimant’s
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limitations, which must be supported by the record. Magallanes v. Bowen, 881 F.2d 747,
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756 (9th Cir. 1989). Here, the ALJ asked the vocational expert a hypothetical based upon
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the RFC limitations found by the ALJ. (AR 19, 54-55.) The Court has found no error in
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the RFC. Therefore, the hypothetical included all of the claimant’s limitations as found
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by the ALJ and it was not error. The ALJ was entitled to rely upon the vocational expert’s
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testimony in making her finding at Step Five.
CONCLUSION
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The Court concludes the ALJ did not err as to any of the claims raised by Parker.
Therefore, Parker is not entitled to relief and her appeal is denied.
Accordingly,
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Parker indicates these issues also implicate Step Four. (Doc. 31 at 19-20.)
However, at Step Four, the ALJ found Parker could not perform her past relevant work.
Parker does not challenge this finding.
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IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court
shall enter judgment.
Dated this 27th day of May, 2015.
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