Jeffrey Dale Ellsworth v. Michael J Astrue

Filing 28

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, the decision of the Administrative Law Judge is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. (See attached Order for further details.) (es)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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JEFFREY DALE ELLSWORTH,

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Plaintiff,
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v.
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CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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Defendant.

NO. CV 13-302-AS
MEMORANDUM OPINION

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PROCEEDINGS

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On January 30, 2013, Plaintiff filed a Complaint seeking review of

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the Commissioner’s denial of disability benefits. (Docket Entry No. 3).

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On

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Administrative Record. (Docket Entry Nos. 14-15).

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the matter was transferred and referred to the current Magistrate Judge.

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(Docket Entry No. 16).

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United States Magistrate Judge. (Docket Entry Nos. 17-18).

August

1,

2013,

Defendant

filed

an

Answer

and

the

Certified

On August 26, 2013,

The parties have consented to proceed before a
On December

1

5, 2013, the parties filed a Joint Stipulation (“Joint Stip.”) setting

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forth their respective positions on the three issues relevant to the

3

consideration of Plaintiff’s claim (Docket Entry No. 26). The Court has

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taken this matter under submission without oral argument.

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15; See “Order,” filed February 4, 2013 (Docket Entry No. 6).

See L.R. 7-

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff asserts disability based on the following physical and

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mental impairments: “emotional distress, knees, back and neck pain.”

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(Administrative Record (“A.R.”) 137).

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disability began on June 1, 1991 when he sustained an injury to his

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neck.

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May 2010. (A.R. 16).1

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record and conducted an administrative hearing on December 6, 2011.

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(A.R. 24-59).

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46), and vocational expert (“VE”) Gregory Smith Jones.

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54). Plaintiff was and remains represented by counsel. (A.R. 25, 58).

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On December 22, 2011, the ALJ issued a decision finding that Plaintiff

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was not disabled and denying Plaintiff’s application for disability

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benefits.

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review. (A.R. 1-5).

Plaintiff

claims

that

his

Plaintiff has been incarcerated since 1991 and was released in
An Administrative Law Judge (“ALJ”) examined the

The ALJ heard testimony from Plaintiff (A.R. 31-45, 45-

(A.R. 20).

(A.R. 45, 46-

On December 11, 2012, the Appeals Council denied

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The ALJ followed the five-step evaluation process for determining

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whether a claimant is disabled as set forth in 20 C.F.R. § 404.1520, and

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According to a Department of Corrections’ medical consultant
report dated February 15, 2005, Plaintiff has been incarcerated since
1995. (See A.R. 200).
2

1

made

the

following

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substantial gainful activity since July 8, 2010, the date he submitted

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his

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Administration (A.R. 14); (2)

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medically determinable impairments: degenerative joint disease of the

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neck and bilateral knees, degenerative arthritis of the lumbar spine,

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depression and polysubstance abuse (Id.); (3)

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do not meet or equal a listing impairment (A.R. 14-15); (4) Plaintiff

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retains the residual functional capacity (“RFC”) to perform light work

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with the following modifications: he “can occasionally push/pull with

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the bilateral lower extremities; occasionally climb, balance, stop,

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kneel, crouch, or crawl;

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concentrated exposure to extreme cold, unprotected heights and hazardous

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machinery; can occasionally interact with supervisors and coworkers; and

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never interact with the public.” (A.R. 15); (5) Plaintiff has no past

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relevant work (A.R. 18); and (6) Plaintiff is able to perform jobs

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consistent with his age, education, work experience, and RFC that exist

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in

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Specifically, the ALJ determined that Plaintiff could perform the

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requirements of representative light, unskilled occupations such as

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housekeeping cleaner, cafeteria attendant, and routing clerk. (Id.).

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In making these findings, the ALJ found Plaintiff’s allegations and

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testimony regarding the intensity, persistence, and limiting effects of

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his symptoms to be less than fully credible, (A.R. 16-18), noting that

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“[t]he available medical record provides little objective support for

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the [plaintiff]’s allegations and, in fact, highlight the [plaintiff]’s

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devastating lack of credibility and actual ability to work at a

application

significant

for

findings:

(1)

disability

numbers

Plaintiff

benefits

Plaintiff

to
has

has

the

not

engaged

Social

in

Security

the following severe

Plaintiff’s impairments

must avoid work requiring far acuity; avoid

in

the

national

28
3

economy.

(A.R.

19).

1

substantial gainful level at or even above the [RFC] set forth.” (A.R.

2

16).

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PLAINTIFF’S CONTENTIONS

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Plaintiff contends that the ALJ erred: (1) in her assessment of

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Plaintiff’s mental RFC; (2) in her credibility findings; and (3) in her

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reliance on the VE’s response to purportedly incomplete hypothetical

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questions.

(Joint Stip. 2-3).

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Administration’s

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decision

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supported by substantial evidence; and (2) the Administration used

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correct legal standards.

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1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.

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2007).

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a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)

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(citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).

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is “relevant evidence, consistent with the entire record, which a

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reasonable person might accept as adequate to support a conclusion.”

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Hoopai, 499 F.3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.

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1996).

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“a court must ‘consider the record as a whole, weighing both evidence

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that supports and evidence that detracts from the [Commissioner’s]

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conclusion.’” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir.

to

determine

if:

(1)

the

Administration’s

findings

are

See Carmickle v. Commissioner, 533 F.3d 1155,

“Substantial Evidence is more than a scintilla, but less than

It

To determine whether substantial evidence supports a finding,

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4

1

1997)(internal citations omitted); see Widmark v. Barnhart, 454 F.3d

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1063, 1066 (9th Cir. 2006)(inferences “reasonably drawn from the record”

3

can constitute substantial evidence).

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5

This Court “may not affirm [the Administration’s] decision simply

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by isolating a specific quantum of supporting evidence, but must also

7

consider evidence that detracts from [the Administration’s] conclusion.”

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Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) (citation and quotations

9

omitted); see Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.

10

2007) (same).

However, the Court cannot disturb findings supported by

11

substantial

12

supporting Plaintiff’s claim.

13

60 (9th Cir. 1973).

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affirming or reversing the [Commissioner’s] conclusion, [a] court may

15

not substitute its own judgment for that of the [Commissioner].”

16

Reddick, 157 F.3d 715, 720-21 (9th Cir. 1998)(internal citations

17

omitted).

evidence,

even

though

there

may

exist

other

evidence

See Torske v. Richardson, 484 F.2d 59,

“If the evidence can reasonably support either

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APPLICABLE LAW

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“The Social Security Act defines disability as the inability to

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engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment which can be expected to

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result in death or which has lasted or can be expected to last for a

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continuous period of not less than 12 months.”

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F.3d 683, 686 (9th Cir. 2005) (citing 42 U.S.C. § 423 (d)(1)(A)).

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impairment must “render[] the claimant incapable of performing the work

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[he or she] previously performed and . . . of performing any other
5

Webb v. Barnhart, 433
The

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substantial gainful employment that exists in the national economy.”

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Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.

3

§ 423(d)(2)(A)).

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The ALJ follows a five-step, sequential analysis to determine

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whether a claimant has established disability.

20 C.F.R. § 404.1520.

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At step one, the ALJ determines whether the claimant is engaged in

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substantial gainful employment activity.

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“Substantial gainful activity” is defined as “work that . . . [i]nvolves

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doing significant and productive physical or mental duties[] and . . .

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[i]s done (or intended) for pay or profit.”

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404.1572.

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substantial gainful activity, the ALJ proceeds to step two which is to

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determine whether the claimant has a medically severe impairment or

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combination of impairments that significantly limits his ability to do

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basic work activities.

See Webb, 433 F.3d at 686; see also 20 C.F.R.

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§

The “ability to do basic work activities” is

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defined as “the abilities and aptitudes necessary to do most jobs.” 20

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C.F.R. § 404.1521(b).

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severe if it is merely “a slight abnormality (or combination of slight

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abnormalities) that has no more than a minimal effect on the ability to

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do basic work activities.”

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has a medically severe impairment, then step three requires the ALJ to

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evaluate whether the claimant’s impairment satisfies certain statutory

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requirements

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impairment does not satisfy the statutory requirements entitling the

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claimant to a disability finding, the ALJ must determine the claimant’s

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residual functional capacity (“RFC”), that is, the

Id. at § 404.1520(a)(4)(I).

20 C.F.R. §§ 404.1510,

If the ALJ determines that the claimant is not engaged in

404.1520(a)(4)(ii).

entitling

Webb, 433 F.3d at 686.

him

Id.

to

An impairment is not

If the ALJ concludes that a claimant

a

6

disability

finding.

Id.

If

the

ability to do

1

physical and mental work activities on a sustained basis despite

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limitations from all of his impairments.

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416.920(e)).

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to assess whether the claimant is able to do any work that he or she has

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done in the past, defined as work performed in the last 15 years or 15

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years prior to the disability onset date.

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claimant is not able to do the type of work that he or she has done in

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the past or does not have any past relevant work, the ALJ proceeds to

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step five to determine whether - taking into account the claimant’s age,

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education, work experience and RFC - there is any other work that the

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claimant can do and if so, whether there are a significant number of

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such jobs in the national economy.

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1098 (9th Cir. 1999);

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claimant has the burden of proof at steps one through four, and the

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Commissioner has the burden of proof at step five.

(A.R. 13; 20 C.F.R. §

Once the RFC is determined, the ALJ proceeds to step four

If the ALJ finds that the

Tackett v. Apfel, 180 F.3d 1094,

20 C.F.R. § 404.1520(a)(4)(iii)-(v).

The

Id.

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DISCUSSION

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After consideration of the record as a whole, the Court finds that

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the ALJ’s findings are supported by substantial evidence and are free

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from material2 legal error.

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///

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///

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2

The
harmless
error
rule
applies
to
the review of
administrative decisions regarding disability. See McLeod v. Astrue,
640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005) (A decision of the ALJ will not be reversed for
errors that are harmless).
7

1
2

I.

Substantial Evidence Supports the ALJ’s Conclusion Regarding the
Plaintiff’s Mental Residual Functional Capacity

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4

Substantial evidence supports the ALJ’s assessment of Plaintiff’s

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mental RFC.

RFC is defined as “the most [a claimant] can still do

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despite [a claimant’s] limitations.”

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considering the entire record, the ALJ determined that Plaintiff had the

8

mental RFC to perform light work as defined in 20 C.F.R. 416.967(b) with

9

the following modifications: “[H]e . . . can occasionally interact with

10

supervisors and coworkers; and never interact with the general public.”

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(A.R. 15).

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medical records, the opinion of the consultative psychological examiner,

13

and the state agency medical consultant.

20 C.F.R. § 416.945(a).

After

The ALJ’s findings were based on her review of Plaintiff’s

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15

Plaintiff’s medical treatment records show that despite Plaintiff’s

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claimed disability onset date of June 1991, Plaintiff was incarcerated

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for a significant portion of time from 1991 to 2010 and did not seek or

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receive mental health treatment for his depression until 2009.

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17, 208-13).

20

Rehabilitation (“CDCR”) dated July 22, 2009 reflect that, “based on this

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initial screening, there is not an indication that this offender is

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suffering

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professional is not indicated.”

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the CDCR in 2009 and 2010 revealed unremarkable clinical examination

25

findings and reported that Plaintiff’s behavior was “cordial” and

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“cooperative,”

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concentration, attention, memory, thought process, thought content,

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insight, and judgment.

(A.R.

Records from the California Department of Corrections and

from

a

mental

and

that

illness.

he

Referral

(A.R. 213).

exhibited

(A.R. 203, 206, 211).
8

to

a

mental

health

Treatment records from

normal

speech,

affect,

During an examination on

1

October 28, 2009, Plaintiff indicated that he feels confused and angry,

2

but that “[he] knows it’s not real.” (A.R. 203).

3

Plaintiff’s sleep and depression was noted to be improved and Plaintiff

4

was observed as “highly motivated to address issues in [individual

5

treatment].” (A.R. 219). A mental health evaluation in March 2010

6

described Plaintiff as “calm, alert, cooperative, coherent, [having a]

7

good rapport, affect appropriate,” and having “no abnormal/involuntary

8

movements.”

9

was doing well on his medications.

(A.R. 215).

In December 2009,

In September 2010, Plaintiff reported that he
(A.R. 299).

In addition, Plaintiff

10

was assessed with a global assessment of functioning (GAF) score in the

11

range of 55-65 at various times during his incarceration.3

12
13

The December 2010 consultative psychological evaluation of Melanie

14

K. Moran, Ph.D., (A.R. 249-56), reported that Plaintiff was generally

15

alert and cooperative, “oriented to time, place and person, and the

16

purpose of the visit,” and appeared interested in his improvement. (A.R.

17

252). Dr. Moran also noted that Plaintiff “interacted adequately,”

his

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19
20
21
22
23
24
25
26
27
28

3

Plaintiff’s records from the California Department of Corrections
and Rehabilitation note seven global assessment of functioning (“GAF”)
scores, ranging between 55 and 65. (A.R. 204, 207, 215-17, 224-25).
“The Global Assessment of Functioning Scale is a rating for reporting
the clinician’s judgment of the patient’s overall level of functioning
and carrying out activities of daily living. The GAF Score is measured
on a scale of 0-100, with a higher number associated with higher
functioning.” Montalvo v. Barnhart, 457 F.Supp.2d 150 n.5 (W.D.N.Y.
2006).
A GAF score in the 61-70 Range indicates some mild symptoms
(e.g., depressed mood and mild insomnia) or some difficulty in social,
occupational, or school functioning (e.g., occasional truancy, or theft
within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships. A GAF score in the 51-60 range
corresponds to moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) or moderate difficulty in social
occupational, or school functioning (e.g., few friends, conflicts with
peers or co-workers).
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS,
AMERICAN PSYCHIATRIC ASSOCIATION 34 (4th ed. 2000).
9

1

“verbal response time was average” and his speech was “clear and well-

2

modulated.”

3

productive”

4

retardation. (Id.).

5

range,

6

consciousness.” (A.R. 253).

7

blocking, confusion, bizarreness, or tangentiality . . . speech was not

8

pressured or disorganized during the evaluation.” (A.R. 253). Plaintiff

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also reported that his medication was helping him and Dr. Moran noted

10

that Plaintiff showed “an average range of expression during the

11

assessment.” (A.R. 252).

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work-related activities, Dr. Moran concluded that Plaintiff “has the

13

ability

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noninteractive setting,” is able to “persist independently without

15

supervision” and “relate[d] adequately [to authority] in a supportive

16

environment.”

17

have difficulty with normal interactional settings but concluded that

18

Plaintiff “appears capable of maintaining a schedule,” noting that he

19

arrived on time for his examination, using public transportation. (A.R.

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249, 255).

(Id.).
and

and

to

he

Plaintiff’s

Plaintiff

not

show

any

were

organized

specific

and

psychomotor

Plaintiff’s conceptual level is in the average

“did

learn

did

“[t]houghts

not

simple

(A.R. 255).

show

any

peculiarities

in

stream

of

Dr. Moran noted that “[t]here was no

With respect to Plaintiff’s adaptation to

skills,”

would

“function

best

in

a

Dr. Moran indicated that Plaintiff would

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22

The state agency medical consultant, R. Tashjian, M.D., found,

23

based on his review of

24

of activities of daily living, moderate difficulties in maintaining

25

social

26

concentration, persistence or pace.

27

concluded that Plaintiff “retains the ability to understand, remember

28

and carry out simple work-related tasks in a work setting [with] reduced

functioning,

the record, that Plaintiff had mild restriction

and

moderate

10

difficulties

in

(A.R. 15, 270).

maintaining
Dr. Tashjian

1

interpersonal contact” and that “there are no significant limitations

2

in the ability to complete or adapt to the requirements of normal work.”

3

(A.R. 261).

4
5

The

findings

of

Dr.

Moran

and

Dr.

Tashjian,

coupled

with

6

Plaintiff’s treatment records constitute sufficient evidence for the

7

ALJ’s assessment of Plaintiff’s mental RFC. See Thomas v. Barnhart, 278

8

F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non-

9

examining physicians may also serve as substantial evidence when the

10

opinions are consistent with independent clinical findings or other

11

evidence in the record.”); Tonapetyan v. Halter, 242 F.3d 1144, 1149

12

(9th Cir. 2001) (non-examining physician’s opinion may constitute

13

substantial

14

evidence of record).

15

(9th Cir. 1989).

evidence

when

opinion

is

consistent

with

independent

See also Magallanes v. Bowen, 881 F.2d 747, 751

16
17

Contrary to Plaintiff’s claims, the ALJ incorporated Dr. Moran’s

18

opinions into her determination that Plaintiff retained the mental RFC

19

to do certain jobs.

20

Plaintiff would have difficulty with normal interactional settings and

21

would “function best in a noninteractive setting,” (A.R. 255), the ALJ

22

determined that Plaintiff would have the ability to perform a job that

23

required

24

interaction with supervisors and coworkers.

25

the ALJ found,

26

that Plaintiff was able to work as a housekeeping cleaner, cafeteria,

27

attendant and routing clerk, positions which did not require significant

28

social interaction.

no

For example, based on Dr. Moran’s assessment that

interaction

with

the

general

public,

and

(A.R. 15).

occasional

Accordingly,

based on Dr. Moran’s findings and the VE’s testimony,

(A.R. 19).

Plaintiff’s claim that the ALJ was
11

1

required to find Plaintiff disabled based upon Dr. Moran’s finding that

2

Plaintiff would have difficulty with normal interactional settings is

3

unavailing.

4

opine that Plaintiff was incapable of any social interaction and her

5

findings were consistent with the ALJ’s determination that Plaintiff

6

would be able to occasionally interact with supervisors and co-workers.

(Joint Stip. 4-5 (citing A.R. 254-55)).

Dr. Moran did not

7
8

Plaintiff contends that the ALJ did not consider Dr. Tashjian’s

9

conclusion that Plaintiff has moderate difficulties in maintaining

10

concentration, persistence or pace.

(Joint Stip. 5 (citing A.R. 260)).

11

The Ninth Circuit has held that a plaintiff who has moderate mental

12

restrictions can still nonetheless conceivably be able to carry out

13

“simple tasks.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th

14

Cir. 2008). Moreover, evidence that a claimant’s condition is improving

15

can support the ALJ’s decision if “the severity of the problem had

16

decreased sufficiently to enable him to engage in gainful activity.”

17

Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir.

18

2006).

19

admissions to Dr. Moran show that the medication he was taking caused

20

his condition to improve.

As set forth above, Plaintiff’s treatment records and his

21
22

Thus,

the

Court

finds

that

the

ALJ

provided

“specific

and

23

legitimate reasons supported by substantial evidence” for his mental RFC

24

assessment and that her determination was supported by substantial

25

evidence.

26

///

27

///

28
12

1

II.

The

2

ALJ

Did

Not

Materially

Err

In

Evaluating

Plaintiff’s

Credibility

3
4

Plaintiff contends that the ALJ erred in her credibility assessment

5

of his subjective symptoms and functional limitations and failed to give

6

clear, specific and convincing reasons supported by substantial evidence

7

in the record.

8

Plaintiff points out that the ALJ misstated the record in concluding

9

that Plaintiff was not truthful regarding his drug use, improperly

10

relied on Plaintiff’s work activities during his incarceration, failed

11

to consider Dr. Moran’s finding that Plaintiff had provided reliable

12

information, and failed to consider the third party statement of

13

Plaintiff’s friend.

(Joint Stip. 15-16).

In support of his position,

(Joint Stip. at 16-17).

14
15

An ALJ’s assessment of a claimant’s credibility is entitled to

16

“great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir.

17

1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). The ALJ may

18

not discount the claimant’s testimony regarding the severity of the

19

symptoms without making “specific, cogent” findings. Lester v. Chater,

20

81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 622 F.3d

21

1228, 1234 (9th Cir. 2010) (reaffirming same) but see Smolen, 80 F.3d

22

at 1283-84 (indicating that ALJ must provide “specific, clear and

23

convincing reasons to reject a claimant’s testimony where there is no

24

evidence of malingering).

25

(9th Cir. 1990).4 Generalized, conclusory findings do not suffice. See

See Rashad v. Sullivan, 903 F.2d 1229, 1231

26
27
28

4

In the absence of evidence of “malingering,” most recent Ninth
Circuit cases have applied the “clear and convincing” standard. See,
e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012);
13

1

Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004) (the ALJ’s

2

credibility findings “must be sufficiently specific to allow a reviewing

3

court

4

permissible grounds and did not arbitrarily discredit the claimant’s

5

testimony”) (internal citations and quotations omitted); Holohan v.

6

Massanari,

7

“specifically identify the testimony [the ALJ] finds not to be credible

8

and must explain what evidence undermines the testimony”); and Smolen,

9

80 F.3d at 1284 (“The ALJ must state specifically which symptom

10

testimony is not credible and what facts in the record lead to that

11

conclusion.”). See also Social Security Ruling 96-7p.

to

conclude

246

the

F.3d

ALJ

1195,

rejected

1208

(9th

the

claimant’s

Cir.

2001)

testimony

(the

ALJ

on

must

12
13

In the present case, the ALJ stated sufficient reasons for deeming

14

Plaintiff’s testimony less than fully credible.

As set forth above,

15

Plaintiff’s mental status examinations were largely unremarkable and did

16

not support Plaintiff’s claimed limitations. The medical records also

17

indicated that Plaintiff’s condition had improved with the medication

18

that he was taking. Although a claimant’s credibility “cannot be

19

rejected on the sole ground that it is not fully corroborated by

20

objective medical evidence, the medical evidence is still a relevant

21

factor. . . .” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

22

Here, the ALJ was entitled to consider the lack of medical evidence for

23

Plaintiff’s claimed disability to support his finding that Plaintiff’s

24
25
26
27
28

Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v.
Commissioner, 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v.
Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Ballard v. Apfel, 2000
WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). As
set forth infra, the ALJ’s findings in this case are sufficient under
either standard, so the distinction between the two standards (if any)
is academic.
14

1

mental limitations were not as disabling as he claimed.

2
3

The ALJ also noted that Plaintiff had an extensive history of drug

4

use and reported that he last used drugs in May 2010, after serving a

5

13-month sentence for drug possession.

6

Plaintiff

7

findings were supported by the record.

8

consultative examiner, Plaintiff “stated that he has been completely

9

sober and off drugs since April 2009.” (A.R. 18). See A.R. 251.

10

However, a mental health treatment record dated January 15, 2010, while

11

Plaintiff was in prison, revealed that Plaintiff’s “drug of choice” is

12

heroin and that he has used it “1993-present.” (A.R. 205). Similarly,

13

notes by a prison staff psychologist dated January 21, 2010 report

14

Plaintiff’s history of drug use as “heroin 1993-present.” (A.R 217).

15

Although some of Plaintiff’s treatment records were inconsistent with

16

Plaintiff’s statement to Dr. Moran, the ALJ was permitted to consider

17

this inconsistency as bearing on Plaintiff’s credibility.

18

v. Barnhart, 278 F.3d 948, 959 (9th Cir. 2002) (inconsistent statements

19

about prior drug and alcohol use permissible to undermine claimant’s

20

veracity); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999)

21

(inconsistencies in claimant’s various statements cited as a clear and

22

convincing reason for rejecting the claimant’s testimony).

(A.R. 16-17).

Although

contends that the ALJ misstated the record, the ALJ’s
According to Dr. Moran, the

See Thomas

23
24

Plaintiff contends that the ALJ misconstrued the type of work

25

Plaintiff was doing while he was incarcerated and “erroneously pointed

26

to

27

Plaintiff’s assertions regarding his symptoms and functional limitations

28

not

Plaintiff’s

credible.”

work

while

(Joint

incarcerated

Stip.

16).
15

as

a

Plaintiff

reason

for

testified

finding

at

the

1

administrative hearing that while he was in prison, he had performed

2

some clerical work while in prison, answered the telephone, and “did a

3

lot of research” for the assignment lieutenant. (A.R. 34-35).

4

stated that he worked at a water plant, which was essentially a

5

“gardening” position but had not otherwise been gainfully employed since

6

1991 and was living largely on public assistance since his release from

7

prison. (A.R. 35-36).

8

finding that Plaintiff had not sought gainful employment since his

9

release from incarceration. (A.R. 16).

He also

The ALJ noted these facts as relevant to his

“[S]ince his 2010 release, he

10

has not attempted to find any work . . . and now seeks Disability

11

benefits . . . despite the lack of any effort on his behalf to

12

productively contribute to his own income.”

13

work activity in prison, coupled with the lack of medical evidence to

14

support a preset disability, was relevant to the ALJ’s determination of

15

Plaintiff’s mental RFC and his ability to engage in gainful employment

16

and the AlJ’s reliance on this information was permissible. 20 C.F.R.

17

§ 416.929(c)(3) (all evidence presented may be considered “including

18

information about [a claimant’s] prior work record”). See also

19

v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992)(claimant’s well-

20

documented motivation to obtain social security benefits is relevant

21

when assessing credibility).

(A.R. 16).

Plaintiff’s

Matney

22
23

Plaintiff’s claim that the ALJ was required to consider Dr. Moran’s

24

assessment that Plaintiff was “reliable” is without merit.

25

Plaintiff misinterprets the following statement in Dr. Moran’s report

26

to mean that Dr. Moran found Plaintiff to be credible: “The source of

27

information was the claimant, who was a good historian. The information

28

contained herein is considered reliable.”
16

(A.R. 249).

First,

That statement,

1

viewed in the context of the “identifying data” portion of Dr. Moran’s

2

report, did not represent an opinion regarding Plaintiff’s overall

3

credibility but was merely a statement of Dr. Moran’s acceptance of the

4

information Plaintiff provided about his background.

5

this statement could be viewed as a credibility determination, Dr.

6

Moran’s belief regarding Plaintiff’s credibility was not binding on the

7

ALJ, who was required to make a credibility assessment based upon a

8

review of the entire record.

9

entire record in finding that Plaintiff was not completely credible.

10

Second, even if

Here, the ALJ properly considered the

(A.R. 18, 255).

11
12

Plaintiff’s contention that the ALJ failed to give significant

13

weight to the third party function report authored by Plaintiff’s friend

14

is also without merit.

15

discredited these third-party statements, noting that Plaintiff claimed

16

that he could pay attention “until things get complicated,” and that his

17

friend added that “the claimant becomes despondent and will cry.” (A.R.

18

16).

19

evidence. Lewis v. Apfel, 236 F.3d 503, 512 (9th Cir. 2001). See Molina

20

v. Astrue, 674 F.3d 1104, 1117 (9th Cir. 2012) (“Where lay witness

21

testimony does not describe any limitations not already described by the

22

claimant . . . the

23

claimant’s testimony apply equally well to the lay witness testimony,

24

it would be inconsistent with our prior harmless error precedent to deem

25

the ALJ’s failure to discuss the lay witness testimony to be prejudicial

26

per se.”); Valentine v. Commissioner, 574 F.3d 685, 694 (9th Cir. 2009)

27

(where ALJ provides clear and convincing reasons for rejecting the

28

claimant’s own subjective complaints and where lay witness testimony was

(Joint Stip. at 17).

The ALJ properly

An ALJ may reject lay testimony inconsistent with the medical

ALJ’s well supported reasons for rejecting the

17

1

similar, ALJ also gave germane reasons for rejecting witness testimony).

2
3

The ALJ’s credibility assessment was also based on inconsistencies

4

regarding the claimed disability onset date, Plaintiff’s lack of regular

5

or consistent treatment, Plaintiff’s statement that he was doing well

6

on

7

interacting with others were based on his prison stay.

8

Thus, the ALJ concluded, after reviewing all the entire record, that

9

“the medical record provides little objective support for the claimant’s

10

allegations and, in fact, highlight the claimant’s devastating lack of

11

credibility and actual ability to work at a substantial gainful level

12

at or even above the residual functional capacity set forth.”

13

16).

14

credibility evaluation such as considering claimant’s reputation for

15

truthfulness.”

16

2005)(internal citation omitted).

his

medication

and

his

stated

belief

that

his

difficulties
(A.R. 17-18).

(A.R.

The ALJ is permitted to “engage in ordinary techniques of

Burch

v.

Barnhart,

400

F.3d

676,

680

(9th

Cir.

17
18

The Court finds that the ALJ stated sufficient reasons to allow

19

this Court to conclude that the ALJ discounted Plaintiff’s credibility

20

on

21

credibility determination.

22

825 (9th Cir. 2007) (court will defer to ALJ’s credibility determination

23

when the proper process is used and proper reasons for the decision are

24

provided); accord Flaten v. Secretary of Health and Human Services, 44

25

F.3d 1453, 1464 (9th Cir. 1995).

26

findings

27

allegations and those findings are supported by substantial evidence in

28

the record, “we may not engage in second guessing.” Thomas v. Barnhart,

permissible

grounds.

justifying

a

The

Court

therefore

defers

to

the

ALJ’s

See Lasich v. Astrue, 252 Fed. Appx. 823,

decision

Where the ALJ has made specific
to

18

disbelieve

Plaintiff’s

symptom

1

278 F.3d 947, 958-59 (9th Cir. 2002).

2
3

III.

The ALJ Did Not Err In Questioning The Vocational Expert

4

About Plaintiff’s Ability To Perform Certain Jobs Given

5

His Limitations

6
7

Plaintiff contends that the hypothetical questions posed by the ALJ

8

to the VE were incomplete because the questions did not include the

9

“work-related

limitations

in

mental

functioning

assessed

by

the

10

consultative examiner, Dr. Moran.” (Joint Stip. 25).

Specifically,

11

Plaintiff contends that the ALJ failed to take into account the VE’s

12

statement - in response to a question posed by Plaintiff’s counsel

13

that an individual restricted to “no contact with the general public,

14

co-worker or supervisors” could not perform the jobs identified.

15

26).

-

(A.R.

As set forth below, Plaintiff’s argument is without merit.

16
17

The ALJ properly questioned the VE about whether someone of

18

plaintiff’s age and education, with certain physical constraints,5 could

19

“perform simple, repetitive tasks with occasional interaction with

20

supervisors, co-workers and the general public.” (A.R. 47). In response

21

to this question, the VE identified a number of medium and unskilled

22

occupations that were available in substantial numbers in the regional

23
24
25
26
27
28

5

In the first hypothetical question to the VE, the ALJ asked
whether a person with the same age and education as the claimant, who
does not have any past relevant work, but who could “lift and carry 50
pounds occasionally, 25 pounds frequently; who could stand, walk and/or
sit six hours out of an eight-hour day with normal breaks; who could
perform frequent climbing, balancing, stooping, kneeling, crouching and
crawling; who could be able to perform simple repetitive tasks with
occasional interaction with supervisors, co-workers and the general
public.” (A.R. 47.)
19

1

and national economy, including: (1) hand packager; (2) cleaner; and (3)

2

machine packager. (A.R. 47-48). The ALJ proposed a second hypothetical

3

that incorporated the same limitations as the first hypothetical, except

4

that the individual would be “limited to occasional pushing and pulling

5

with the bilateral lower extremity; occasional climbing, balancing,

6

stooping, kneeling, crouching and crawling; should avoid work requiring

7

far

8

unprotected heights, hazardous machinery; also limited to simple,

9

repetitive tasks with occasional interaction with supervisors and co-

acuity;

also

avoid

concentrated

exposure

to

extreme

cold,

10

workers, but no interaction with the general public.”

(A.R. 48)

11

(emphasis added).

12

perform the medium and unskilled work of a general laborer and a day

13

worker and that such occupations were available in substantial numbers

14

in the regional and national economy.

15

hypothetical

16

hypothetical except that the lifting and carrying would be limited to

17

20 pounds occasionally, 10 pounds frequently. (Id.).

18

that such an individual could perform the light and unskilled work of

19

a housekeeping cleaner, cafeteria attendant, or a routing clerk and that

20

such occupations were available in substantial numbers in the regional

21

and national economy. (A.R. 50)

22

incorporated the same limitations of the previous hypothetical but added

23

the following additional limitations: “walk and/or sit six hours out of

24

an eight-hour day with an assistive device,”(A.R. 50), and “able to

25

perform simple, repetitive tasks with occasional interaction with

26

supervisors; only conversational interaction and contact with co-

27

workers; no interaction with the public.” (A.R. 51) (emphasis added).

28

The VE responded that such an individual could perform the light and

The VE testified that such an individual could

incorporated

the

same

(A.R. 49).
limitations

The ALJ’s third
of

the

previous

The VE testified

The fourth and final hypothetical

20

1

unskilled work of a bench assembler, electronics worker and production

2

assembler and that such occupations were available in substantial

3

numbers in the regional and national economy. (A.R. 51-52).

4
5

This

testimony

furnished

substantial

evidence

for

the

ALJ’s

6

determination that Plaintiff is not disabled.

7

Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (vocational expert

8

opinion evidence is reliable to support a finding that a claimant can

9

work if hypothetical questioning “set[s] out all the limitations and

10

restrictions of a particular claimant”) (citation omitted); see also 20

11

C.F.R. §§ 404.1560(b)(2), 416.960(b)(2); Bayliss v. Barnhart, 427 F.3d

12

1211,

13

expertise provides the necessary foundation for his or her testimony.

14

Thus, no additional foundation is required.”).

1218

(9th

Cir.

2005)

(“A

[vocational

See Bray v. Comm’r of

expert’s]

recognized

15
16

Plaintiff contends that the ALJ failed to consider the VE’s

17

testimony that “someone interacting inappropriately with a supervisor

18

is not going to be tolerated.” (A.R. 53-54).

19

response to a question posed by plaintiff’s counsel who asked the VE

20

whether an individual with Plaintiff’s age, education, work experience,

21

and RFC, who would have “no contact with the general public, co-workers

22

and supervisors,”

23

added).

24

Plaintiff could perform jobs involving “no contact with the general

25

public, co-workers and supervisors” because such a limitation was not

26

supported by the record. Contrary to Plaintiff’s contention, Dr. Moran

27

did not opine that Plaintiff could not have any contact with the general

28

public, co-workers or supervisors or that Plaintiff was unable to

This statement was in

would be able to perform any job. (Id.)(emphasis

However, the ALJ was not required to consider whether the

21

1

interact in a normal interactional work setting.

2

concluded that Plaintiff “may have difficulty . . . interacting with

3

others on a regular basis . . . would function best in a non interactive

4

setting” and also found that Plaintiff “related adequately to this

5

authority figure in a supportive environment, but would have difficulty

6

with normal interactional settings.” (A.R. 255).

The ALJ took Dr.

7

Moran’s

into

8

determining Plaintiff’s RFC and properly found, based on Dr. Moran’s

9

assessment and his review of the record as a whole, that Plaintiff,

10

“could occasionally interact with supervisors and coworkers and never

11

interact with the general public.” (A.R. 15)(emphasis added).

12

v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (hypothetical posed to

13

VE may contain “all of the limitations that the ALJ found credible and

14

supported

15

limitation that Plaintiff’s counsel incorporated in her questions to the

16

VE - that Plaintiff can have no contact with the general public, co-

17

workers or supervisors - was not supported by the record, the ALJ was

18

not required to include this limitation in a hypothetical to the VE.

19

The ALJ is “free to accept or reject restrictions in a hypothetical

20

question that are not supported by substantial evidence.”

21

Barnhart, 464 F.3d 968, 974 (9th Cir. 2006)(internal citation omitted).

22

Thus, the ALJ did not pose an incomplete or inappropriate hypothetical

23

to the VE.

24

///

25

///

26

///

assessment

by

of

Plaintiff’s

substantial

evidence

27
28
22

limitations

in

the

Rather, Dr. Moran

record.”).

account

in

Bayliss

Because

the

Greger v.

1

CONCLUSION

2
3
4

For

all

of

the

foregoing

reasons,

the

decision

of

Administrative Law Judge is affirmed.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

7
8

DATED:

July 1, 2014.

9
10
11

/s/
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
23

the