Jerry Phothikham v. Michael J. Astrue

Filing 34

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See order for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JERRY PHOTHIKHAM, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 09-5859 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 20 21 22 23 24 25 26 I. SUMMARY On August 17, 2009, plaintiff Jerry Phothikham (“plaintiff”) filed a Complaint seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. On May 21, 2010, the parties filed a Joint Stipulation (“JS”) setting forth their respective positions on plaintiff’s claims.1 On December 1, 2010, the matter was transferred and referred to the current Magistrate Judge. The parties thereafter filed consents to proceed before the current Magistrate Judge. On March 25, 2011, the matter was formally reassigned 27 1 On February 22, 2011, plaintiff withdrew from consideration his claim that the 28 administrative law judge who heard his case was not qualified. (Docket No. 31). 1 1 to the instant Court for final disposition. The Court has taken this matter under 2 submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15. 3 Based on the record as a whole and the applicable law, the decision of the 4 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 5 (“ALJ”) are supported by substantial evidence and are free from material error.2 6 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 7 DECISION 8 On October 31, 2006, plaintiff filed an application for Supplemental 9 Security Income benefits. (Administrative Record (“AR”) 26, 113-15). Plaintiff 10 asserted that he became disabled on June 1, 1991, due to Autistic Disorder, 11 language problems, and learning problems. (AR 113, 118). The ALJ examined 12 the medical record and heard testimony from plaintiff (who was represented by 13 counsel), plaintiff’s mother, and a vocational expert on November 14, 2007. (AR 14 26, 64-89). 15 On February 7, 2008, the ALJ determined that plaintiff was not disabled 16 through the date of the decision. (AR 36). Specifically, the ALJ found: 17 (1) plaintiff suffered from the following severe impairments: autistic spectrum 18 disorder and asthma (AR 29); (2) plaintiff’s impairments, considered singly or in 19 combination, did not meet or medically equal one of the listed impairments (AR 20 30-31); (3) plaintiff retained the residual functional capacity to perform a full 21 range of work at all exertional levels with certain nonexertional limitations3 (AR 22 31); (4) plaintiff had no past relevant work (AR 34); (5) there are jobs that exist in 23 24 25 26 27 2 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 3 The ALJ determined that plaintiff is limited to simple, repetitive tasks, can have limited 28 public contact, and is precluded from working around environmental irritants. (AR 31). 2 1 significant numbers in the national economy that plaintiff could perform, 2 specifically bench assembly worker and fast food worker (AR 34-35); and 3 (6) plaintiff’s allegations regarding his limitations were not wholly credible 4 (AR 34). 5 The Appeals Council denied plaintiff’s application for review. (AR 3). 6 III. APPLICABLE LEGAL STANDARDS 7 A. 8 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 9 engage in any substantial gainful activity by reason of a medically determinable 10 physical or mental impairment which can be expected to result in death or which 11 has lasted or can be expected to last for a continuous period of at least twelve 12 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 13 § 423(d)(1)(A)). The impairment must render the claimant incapable of 14 performing the work he previously performed and incapable of performing any 15 other substantial gainful employment that exists in the national economy. Tackett 16 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 21 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 22 his ability to work? If not, the claimant is not disabled. If so, 23 proceed to step three. 24 (3) Does the claimant’s impairment, or combination of 25 impairments, meet or equal an impairment listed in 20 C.F.R. 26 Part 404, Subpart P, Appendix 1? If so, the claimant is 27 disabled. If not, proceed to step four. 28 /// 3 1 (4) Does the claimant possess the residual functional capacity to 2 perform his past relevant work? If so, the claimant is not 3 disabled. If not, proceed to step five. 4 (5) Does the claimant’s residual functional capacity, when 5 considered with the claimant’s age, education, and work 6 experience, allow him to adjust to other work that exists in 7 significant numbers in the national economy? If so, the 8 claimant is not disabled. If not, the claimant is disabled. 9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 14 (claimant carries initial burden of proving disability). 15 B. 16 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 “‘consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 4 1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 IV. DISCUSSION 5 A. 6 Plaintiff asserts that the ALJ erred at step five in finding that plaintiff could The ALJ’s Findings at Step 5 Are Free of Material Error 7 perform the jobs of fast-foods worker and bench assembler because (1) such jobs 8 have a specific vocational preparation (“SVP”) Level of 2 which is inconsistent 9 with plaintiff’s limitation to simple, repetitive tasks; and (2) the jobs require 10 significant interaction with customers and co-workers, which requirements are 11 inconsistent with plaintiff’s limitation on public contact. (JS at 6-8, 25-27). The 12 Court disagrees. 13 14 1. Pertinent Law If, at step four, the claimant meets his burden of establishing an inability to 15 perform past work, the Commissioner must show, at step five, that the claimant 16 can perform some other work that exists in “significant numbers” in the national 17 economy (whether in the region where such individual lives or in several regions 18 of the country), taking into account the claimant’s residual functional capacity, 19 age, education, and work experience. Tackett, 180 F.3d at 1100 (citing 20 C.F.R 20 § 404.1560(b)(3)); 42 U.S.C. § 423(d)(2)(A). Where, as here, a claimant suffers 21 only non-exertional limitations, the Commissioner must consult a vocational 22 expert. Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett); 23 Lounsburry v. Barnhart, 468 F.3d 1111, 1115 (9th Cir.), as amended (2006). 24 The vocational expert’s testimony may constitute substantial evidence of a 25 claimant’s ability to perform work which exists in significant numbers in the 26 national economy when the ALJ poses a hypothetical question that accurately 27 describes all of the limitations and restrictions of the claimant that are supported 28 by the record. See Tackett, 180 F.3d at 1101; see also Robbins v. Social Security 5 1 Administration, 466 F.3d 880, 886 (9th Cir. 2006) (finding material error where 2 the ALJ posed an incomplete hypothetical question to the vocational expert which 3 ignored improperly-disregarded testimony suggesting greater limitations); Lewis 4 v. Apfel, 236 F.3d 503, 517 (9th Cir. 2001) (“If the record does not support the 5 assumptions in the hypothetical, the vocational expert’s opinion has no evidentiary 6 value.”). 7 ALJs routinely rely on the Dictionary of Occupational Titles (“DOT”) “in 8 determining the skill level of a claimant’s past work, and in evaluating whether the 9 claimant is able to perform other work in the national economy.” Terry v. 10 Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990) (citations omitted); see also 11 20 C.F.R. § 416.966(d)(1) (DOT is source of reliable job information). The DOT 12 is the presumptive authority on job classifications. Johnson v. Shalala, 60 F.3d 13 1428, 1435 (9th Cir. 1995). An ALJ may not rely on a vocational expert’s 14 testimony regarding the requirements of a particular job without first inquiring 15 whether the testimony conflicts with the DOT, and if so, the reasons therefor. 16 Massachi v. Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing Social 17 Security Ruling 00-4p).4 In order for an ALJ to accept vocational expert testimony 18 that contradicts the DOT, the record must contain “persuasive evidence to support 19 the deviation.” Pinto v. Massanari, 249 F.3d 840, 846 (9th Cir. 2001) (quoting 20 Johnson, 60 F.3d at 1435). Evidence sufficient to permit such a deviation may be 21 either specific findings of fact regarding the claimant’s residual functionality, or 22 inferences drawn from the context of the expert’s testimony. Light v. Social 23 Security Administration, 119 F.3d 789, 793 (9th Cir.), as amended (1997) 24 (citations omitted). 25 26 27 28 4 Social Security rulings are binding on the Administration. See Terry, 903 F.2d at 1275. Such rulings reflect the official interpretation of the Social Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Massachi, 486 F.3d at 1152 n.6. 6 1 2 2. Analysis First, to the extent plaintiff contends that the jobs of “bench assembly 3 worker” and “fast food worker” are inconsistent with his limitation to simple, 4 repetitive tasks because the jobs have an SVP level of 2, his claim lacks merit. 5 Contrary to plaintiff’s argument, “[a job’s] SVP level does not address whether a 6 job entails only simple, repetitive tasks.” Carney v. Astrue, 2010 WL 5060488, at 7 *4 (C.D. Cal. Dec. 6, 2010) (citing Meissl v. Barnhart, 403 F. Supp. 2d 981, 983 8 (C.D. Cal. 2005)). A job’s level of simplicity is addressed by its General 9 Educational Development (“GED”) reasoning development rating. Id. DOT job 10 descriptions include a GED definition component which “embraces those aspects 11 of education (formal and informal) which are required of the worker for 12 satisfactory job performance.” Grigsby v. Astrue, 2010 WL 309013, *2 (C.D. Cal. 13 Jan. 22, 2010). The GED component is comprised of discrete scales, including a 14 scale for “Reasoning Development.” Id. The GED reasoning development scale 15 ranges from Level 1 (low) to Level 6 (high). Id. Levels 1 and 2 are defined as 16 follows: 17 Level 1 Apply commonsense understanding to carry out simple one- or 18 two-step instructions. Deal with standardized situations with 19 occasional or no variables in or from these situations 20 encountered on the job. 21 Level 2 Apply commonsense understanding to carry out detailed but 22 uninvolved written or oral instructions. Deal with problems 23 involving a few concrete variables in or from standardized 24 situations. 25 Id. (citing DOT, Appendix C). 26 Here, the ALJ included plaintiff’s limitation to “simple, repetitive tasks” in 27 the hypothetical question she posed to the vocational expert. (AR 31; 76). The 28 ALJ adopted the vocational expert’s findings that, in spite of such limitation, 7 1 plaintiff could perform the occupations of bench assembly worker and fast food 2 worker, both of which, according to the DOT, require a reasoning development 3 level of 2. (AR 35, 340-41 [DOT No. 311.472-010 (“Fast-Foods Worker”)], 3444 45 [DOT No. 706.684-022 (“Assembler, Small Products I”)]). Although the Ninth 5 Circuit has not addressed the issue, district courts have held that a limitation to 6 simple, repetitive tasks is consistent with GED reasoning development Level 2. 7 See, e.g., Bagshaw v. Astrue, 2010 WL 256544, *6 (C.D. Cal. Jan. 20, 2010) 8 (position of “bench assembler” with GED reasoning development level of 2 was 9 consistent with claimant’s ability to perform “simple and repetitive” tasks); 10 Salazar v. Astrue, 2008 WL 4370056, *7 (C.D. Cal. Sept. 23, 2008) (numerous 11 courts have rejected argument that limitation to simple, repetitive tasks is 12 inconsistent with level two reasoning ability); Tudino v. Barnhart, 2008 WL 13 4161443, *10 (S.D. Cal. Sept. 5, 2008) (capacity to perform simple repetitive tasks 14 consistent with unskilled work; level two reasoning appears to be breaking point 15 for those individuals limited to performing only simple repetitive tasks); Charles 16 v. Astrue, 2008 WL 4003651, *4-*5 (W.D. La. Aug. 7, 2008) (because of level 17 two’s use of term “uninvolved” in conjunction with “detailed,” level two 18 consistent with a residual functional capacity to perform simple, routine, repetitive 19 work tasks); Isaac v. Astrue, 2008 WL 2875879, *3-*4 (E.D. Cal. July 24, 2008) 20 (limitation to simple job instructions consistent with level 2 reasoning); Squier v. 21 Astrue, 2008 WL 2537129, *5 (C.D. Cal. June 24, 2008) (limitation to simple, 22 repetitive tasks not inconsistent with ability to perform jobs with reasoning level 23 of two; observing that while level two uses term “detailed instructions,” “it 24 specifically caveats that the instructions would be uninvolved – that is, not a high 25 level of reasoning); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) 26 (level two reasoning consistent with residual functional capacity to perform simple 27 and routine work); Meissl, 403 F. Supp. 2d at 983 (plaintiff’s ability to perform 28 simple tasks that had some element of repetitiveness to them indicated reasoning 8 1 level of two; while level 2 references ability to follow detailed instructions, it 2 qualifies and downplays the rigorousness of those instructions by labeling them as 3 uninvolved); Flaherty v. Halter, 182 F. Supp. 2d 824, 850 (D. Minn. (2001) (“the 4 DOT’s level two reasoning requirement did not conflict with the ALJ’s prescribed 5 limitation” to “simple, routine, repetitive, concrete, tangible tasks”). Accordingly, 6 since the jobs of “bench assembly worker” and “fast food worker” are not 7 inconsistent with plaintiff’s assessed residual functional capacity, the ALJ did not 8 err at step five on this basis. 9 Second, the ALJ did not materially err at step 5 in adopting the vocational 10 expert’s finding that plaintiff could perform the job of fast food worker. Plaintiff 11 contends that plaintiff’s public contact limitation conflicts with the position of fast 12 food worker which, as defined in the DOT, requires “extensive public contact.” 13 (JS at 8; AR 341-42). Here, the ALJ erred by not asking the vocational expert 14 whether her testimony that plaintiff could perform the job of fast food worker 15 conflicted with the DOT and, if so, whether there was a reasonable explanation for 16 the conflict. Nonetheless, the Court finds any such error to be harmless as the 17 record contains sufficient support for the vocational expert’s testimony so as to 18 justify any potential conflict with the DOT. Massachi, 486 F.3d at 1154 n.19 (An 19 ALJ’s failure affirmatively to ask whether vocational expert’s testimony conflicts 20 with DOT is harmless error where “there [is] no conflict, or if the vocational 21 expert had provided sufficient support for her conclusion so as to justify any 22 potential conflicts.”). The vocational expert testified that sufficient fast food 23 worker positions existed which would require limited public contact (i.e., “food 24 preparation”).5 (AR 77). In addition, the ALJ specified in her decision that she 25 /// 26 27 5 The vocational expert opined that even the position of fast food cashier “to some degree 28 [has] limited contact [with the public].” (AR 77). 9 1 adopted the vocational expert’s finding only to the extent that a fast food worker 2 position involved “non-cashier/non-public interaction.” (AR 35). 3 Finally, plaintiff contends that the position of bench assembly worker is 4 inconsistent with plaintiff’s limitation on public contact because such position 5 involves frequent contact with co-workers. (JS at 8). The Court disagrees. While 6 plaintiff correctly notes that the job of bench assembler requires frequent 7 interaction with co-workers6 (AR 344), the ALJ expressly stated at the 8 administrative hearing, that plaintiff’s residual functional capacity assessment did 9 not contain a limitation on plaintiff’s interaction with co-workers.7 (AR 76). 10 Accordingly, a remand or reversal on these grounds is not warranted. 11 B. 12 Plaintiff contends that the ALJ failed properly to consider the testimony The ALJ Properly Considered Lay Witness Evidence 13 provided by plaintiff’s mother, Josie Phothikham, and failed to provide sufficient 14 reasons for disregarding her statements. (JS a 9-10, 27). The Court disagrees. 15 16 1. Pertinent Law Lay testimony as to a claimant’s symptoms is competent evidence that an 17 ALJ must take into account, unless she expressly determines to disregard such 18 testimony and gives reasons germane to each witness for doing so. Stout, 454 19 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 20 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 21 witness testimony in discussion of findings) (citation omitted); Regennitter v. 22 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 23 1999) (testimony by lay witness who has observed claimant is important source of 24 25 26 27 28 6 A bench assembler “[f]requently works at [a] bench as [a] member of [an] assembly group.” (AR 344 [DOT No. 706.684-022 (“Assembler, Small Products I”)]). 7 At the administrative hearing, plaintiff’s attorney asked whether the limitation on public contact in the ALJ’s hypothetical question to the vocational expert included a limitation on contact with “co-workers and supervisor[s].” (AR 76). The ALJ said it did not. (AR 76). 10 1 information about claimant’s impairments); Nguyen v. Chater, 100 F.3d 1462, 2 1467 (9th Cir. 1996) (lay witness testimony as to claimant’s symptoms or how 3 impairment affects ability to work is competent evidence and therefore cannot be 4 disregarded without comment) (citations omitted); Sprague v. Bowen, 812 F.2d 5 1226, 1232 (9th Cir. 1987) (ALJ must consider observations of non-medical 6 sources, e.g., lay witnesses, as to how impairment affects claimant’s ability to 7 work). 8 In cases in which “the ALJ’s error lies in a failure to properly discuss 9 competent lay testimony favorable to the claimant, a reviewing court cannot 10 consider the error harmless unless it can confidently conclude that no reasonable 11 ALJ, when fully crediting the testimony, could have reached a different disability 12 determination.” Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 13 14 2. Analysis First, plaintiff’s assertion that “the ALJ did not address the testimony of 15 Plaintiff’s mother” (JS at 10) is belied by the record. The ALJ expressly noted in 16 her decision that plaintiff’s mother had testified that plaintiff has behavioral 17 problems and difficulty paying attention, and that the ALJ had considered such lay 18 evidence. (AR 26, 32). The ALJ was not required to discuss every detail of 19 plaintiff’s mother’s statement. See Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 20 1998) (“An ALJ’s failure to cite specific evidence does not indicate that such 21 evidence was not considered[.]”). 22 Second, the ALJ properly discredited plaintiff’s mother’s testimony which 23 was essentially the same as plaintiff’s own subjective symptom testimony. Since, 24 as discussed below, the ALJ provided clear and convincing reasons for rejecting 25 plaintiff’s own subjective complaints, it follows that the ALJ also gave germane 26 reasons for rejecting plaintiff’s mother’s similar testimony. See Valentine v. 27 Commissioner of Social Security Administration, 574 F.3d 685, 693-94 (9th Cir. 28 /// 11 1 2009) (ALJ properly discounted wife’s testimony for same reasons used to 2 discredit claimant’s complaints which were similar). 3 As the ALJ expressly considered and rejected plaintiff’s mother’s similar 4 statements based upon germane reasons which are supported by the record, a 5 remand or reversal on this basis is not warranted. 6 C. 7 Plaintiff contends that the ALJ inadequately evaluated the credibility of his The ALJ Properly Evaluated Plaintiff’s Credibility 8 subjective complaints – i.e., that he is unable to sustain attention and frustrates and 9 angers quickly. (JS at 10-14, 27-28). The Court disagrees. 10 11 1. Pertinent Law An ALJ is not required to believe every allegation of disabling pain or other 12 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 13 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 14 the existence of a medically determinable impairment that could reasonably give 15 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 16 to the credibility of the claimant’s statements about the symptoms and their 17 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 18 record includes objective medical evidence that the claimant suffers from an 19 impairment that could reasonably produce the symptoms of which the claimant 20 complains, an adverse credibility finding must be based on clear and convincing 21 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 22 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 23 not apply is when there is affirmative evidence of malingering. Id. The ALJ’s 24 credibility findings “must be sufficiently specific to allow a reviewing court to 25 conclude the ALJ rejected the claimant’s testimony on permissible grounds and 26 did not arbitrarily discredit the claimant’s testimony.” Moisa v. Barnhart, 367 27 F.3d 882, 885 (9th Cir. 2004). 28 /// 12 1 To find the claimant not credible, an ALJ must rely either on reasons 2 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 3 contradictions in the testimony, or conflicts between the claimant’s testimony and 4 the claimant’s conduct (e.g., daily activities, work record, unexplained or 5 inadequately explained failure to seek treatment or to follow prescribed course of 6 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 7 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant’s 8 testimony solely because it is not substantiated affirmatively by objective medical 9 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 10 credibility assessment. Burch, 400 F.3d at 681. 11 Questions of credibility and resolutions of conflicts in the testimony are 12 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 13 Cir. 2006). If the ALJ’s interpretation of the claimant’s testimony is reasonable 14 and is supported by substantial evidence, it is not the court’s role to “second15 guess” it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 16 17 2. Analysis First, the ALJ properly discredited plaintiff’s subjective complaints as 18 inconsistent with plaintiff’s daily activities. See Thomas v. Barnhart, 278 F.3d 19 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant’s testimony and 20 the claimant’s conduct supported rejection of the claimant’s credibility); Verduzco 21 v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant’s 22 testimony and actions cited as a clear and convincing reason for rejecting the 23 claimant’s testimony). For example, the ALJ noted that in plaintiff’s function 24 report, plaintiff stated that he was able to get himself ready for school, take the 25 bus, attend school full time (7 hours per day 5 days per week), write coherent 26 essays in school, perform household chores and yard work, prepare simple meals, 27 use the computer, and play video games. (AR 33, 137-41). The ALJ noted that, 28 although plaintiff’s sister indicated in her function report that plaintiff had 13 1 difficulty sustaining concentration, she nonetheless corroborated plaintiff’s 2 assertions regarding his ability to perform daily activities. (AR 33, 145-53). As 3 the ALJ also noted, plaintiff stated during a consultative psychological evaluation 4 that he had completed high school, and that he had no difficulty with shopping, 5 performing household chores, caring for his personal needs, and using public 6 transportation. (AR 33, 311). While plaintiff contends that such evidence does 7 not discredit his testimony, this Court will not second-guess the ALJ’s reasonable 8 interpretation that it does, even if such evidence could give rise to inferences more 9 favorable to plaintiff. 10 Second, an ALJ may discredit a plaintiff’s subjective symptom testimony 11 due, in part, to the absence of supporting objective medical evidence. Burch, 400 12 F.3d at 681; Rollins, 261 F.3d at 857 (“While subjective pain testimony cannot be 13 rejected on the sole ground that it is not fully corroborated by objective medical 14 evidence, the medical evidence is still a relevant factor in determining the severity 15 of the claimant’s pain and its disabling effects.”) (citing 20 C.F.R. 16 § 404.1529(c)(2)). Here, the ALJ noted that, although plaintiff was diagnosed 17 with an autistic condition, “he has consistently been found to be high functioning 18 with no significantly overt autistic symptoms.” (AR 33). The ALJ noted that 19 plaintiff “performed well” during the consultative psychological examination, and 20 that the consultative psychologist determined that plaintiff was able to understand, 21 remember and carry out simple instructions with appropriate pace and persistence 22 and relate to others with only mild difficulty. (AR 33, 314). Similarly, none of 23 plaintiff’s individualized education program (“IEP”) reports indicates the types of 24 functional or behavioral issues plaintiff alleges. (AR 33). 25 Third, the ALJ properly discredited plaintiff’s subjective complaints based 26 on plaintiff’s unexplained failure to seek psychiatric medication or other 27 psychiatric treatment for his autism. (AR 33-34); see Bunnell v. Sullivan, 947 F.2d 28 341, 346 (9th Cir. 1991) (en banc) (In assessing credibility, the ALJ may properly 14 1 rely on plaintiff’s unexplained failure to request treatment consistent with the 2 alleged severity of her symptoms.); Meanel v. Apfel, 172 F.3d 1111, 1114 (9th 3 Cir. 1999); see Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999) (lack of 4 treatment and reliance upon nonprescription pain medication “clear and 5 convincing reasons for partially rejecting [claimant’s] pain testimony”); Fair v. 6 Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (ALJ permissibly considered 7 discrepancies between the claimant’s allegations of “persistent and increasingly 8 severe pain” and the nature and extent of treatment obtained). 9 Finally, the ALJ noted that, at the hearing, plaintiff’s thoughts “did not seem 10 to wander” and that plaintiff “answered [questions] alertly and appropriately.” 11 (AR 34). The ALJ was permitted to rely on her own observations of plaintiff at 12 the hearing as one of the several factors affecting plaintiff’s credibility. See 13 Drouin v. Sullivan, 966 F.2d 1255, 1259 (9th Cir. 1992) (upholding credibility 14 rejection where ALJ’s observation of claimant at the hearing was one of several 15 legitimate reasons stated); see also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th 16 Cir. 1999) (ALJ’s reliance on observations of claimant proper where ALJ pointed 17 to plaintiff’s affirmative exhibition of symptoms which were inconsistent with 18 both medical evidence and plaintiff’s other behavior and did not point to the 19 absence of the manifestation of external symptoms to discredit plaintiff, referring 20 to the latter as disapproved “sit and squirm” jurisprudence). 21 Accordingly, a remand or reversal on this basis is not warranted. 22 V. CONCLUSION 23 For the foregoing reasons, the decision of the Commissioner of Social 24 Security is affirmed. 25 LET JUDGMENT BE ENTERED ACCORDINGLY. 26 DATED: 27 28 April 11, 2011 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 15

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