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)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
JEFFREY DALE ELLSWORTH,
)
)
)
)
)
)
)
)
)
)
)
)
)
12
Plaintiff,
13
v.
14
15
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
16
17
Defendant.
NO. CV 13-302-AS
MEMORANDUM OPINION
18
19
20
PROCEEDINGS
21
22
On January 30, 2013, Plaintiff filed a Complaint seeking review of
23
the Commissioner’s denial of disability benefits. (Docket Entry No. 3).
24
On
25
Administrative Record. (Docket Entry Nos. 14-15).
26
the matter was transferred and referred to the current Magistrate Judge.
27
(Docket Entry No. 16).
28
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
2
forth their respective positions on the three issues relevant to the
3
consideration of Plaintiff’s claim (Docket Entry No. 26). The Court has
4
taken this matter under submission without oral argument.
5
15; See “Order,” filed February 4, 2013 (Docket Entry No. 6).
See L.R. 7-
6
7
BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
8
9
Plaintiff asserts disability based on the following physical and
10
mental impairments: “emotional distress, knees, back and neck pain.”
11
(Administrative Record (“A.R.”) 137).
12
disability began on June 1, 1991 when he sustained an injury to his
13
neck.
14
May 2010. (A.R. 16).1
15
record and conducted an administrative hearing on December 6, 2011.
16
(A.R. 24-59).
17
46), and vocational expert (“VE”) Gregory Smith Jones.
18
54). Plaintiff was and remains represented by counsel. (A.R. 25, 58).
19
On December 22, 2011, the ALJ issued a decision finding that Plaintiff
20
was not disabled and denying Plaintiff’s application for disability
21
benefits.
22
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
23
24
The ALJ followed the five-step evaluation process for determining
25
whether a claimant is disabled as set forth in 20 C.F.R. § 404.1520, and
26
1
27
28
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
2
substantial gainful activity since July 8, 2010, the date he submitted
3
his
4
Administration (A.R. 14); (2)
5
medically determinable impairments: degenerative joint disease of the
6
neck and bilateral knees, degenerative arthritis of the lumbar spine,
7
depression and polysubstance abuse (Id.); (3)
8
do not meet or equal a listing impairment (A.R. 14-15); (4) Plaintiff
9
retains the residual functional capacity (“RFC”) to perform light work
10
with the following modifications: he “can occasionally push/pull with
11
the bilateral lower extremities; occasionally climb, balance, stop,
12
kneel, crouch, or crawl;
13
concentrated exposure to extreme cold, unprotected heights and hazardous
14
machinery; can occasionally interact with supervisors and coworkers; and
15
never interact with the public.” (A.R. 15); (5) Plaintiff has no past
16
relevant work (A.R. 18); and (6) Plaintiff is able to perform jobs
17
consistent with his age, education, work experience, and RFC that exist
18
in
19
Specifically, the ALJ determined that Plaintiff could perform the
20
requirements of representative light, unskilled occupations such as
21
housekeeping cleaner, cafeteria attendant, and routing clerk. (Id.).
22
In making these findings, the ALJ found Plaintiff’s allegations and
23
testimony regarding the intensity, persistence, and limiting effects of
24
his symptoms to be less than fully credible, (A.R. 16-18), noting that
25
“[t]he available medical record provides little objective support for
26
the [plaintiff]’s allegations and, in fact, highlight the [plaintiff]’s
27
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).
3
4
PLAINTIFF’S CONTENTIONS
5
6
Plaintiff contends that the ALJ erred: (1) in her assessment of
7
Plaintiff’s mental RFC; (2) in her credibility findings; and (3) in her
8
reliance on the VE’s response to purportedly incomplete hypothetical
9
questions.
(Joint Stip. 2-3).
10
11
STANDARD OF REVIEW
12
13
Under 42 U.S.C. § 405(g), this Court reviews the Administration’s
14
decision
15
supported by substantial evidence; and (2) the Administration used
16
correct legal standards.
17
1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.
18
2007).
19
a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998)
20
(citing Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)).
21
is “relevant evidence, consistent with the entire record, which a
22
reasonable person might accept as adequate to support a conclusion.”
23
Hoopai, 499 F.3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir.
24
1996).
25
“a court must ‘consider the record as a whole, weighing both evidence
26
that supports and evidence that detracts from the [Commissioner’s]
27
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,
28
4
1
1997)(internal citations omitted); see Widmark v. Barnhart, 454 F.3d
2
1063, 1066 (9th Cir. 2006)(inferences “reasonably drawn from the record”
3
can constitute substantial evidence).
4
5
This Court “may not affirm [the Administration’s] decision simply
6
by isolating a specific quantum of supporting evidence, but must also
7
consider evidence that detracts from [the Administration’s] conclusion.”
8
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).
14
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
18
19
APPLICABLE LAW
20
21
“The Social Security Act defines disability as the inability to
22
engage in any substantial gainful activity by reason of any medically
23
determinable physical or mental impairment which can be expected to
24
result in death or which has lasted or can be expected to last for a
25
continuous period of not less than 12 months.”
26
F.3d 683, 686 (9th Cir. 2005) (citing 42 U.S.C. § 423 (d)(1)(A)).
27
impairment must “render[] the claimant incapable of performing the work
28
[he or she] previously performed and . . . of performing any other
5
Webb v. Barnhart, 433
The
1
substantial gainful employment that exists in the national economy.”
2
Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C.
3
§ 423(d)(2)(A)).
4
5
The ALJ follows a five-step, sequential analysis to determine
6
whether a claimant has established disability.
20 C.F.R. § 404.1520.
7
At step one, the ALJ determines whether the claimant is engaged in
8
substantial gainful employment activity.
9
“Substantial gainful activity” is defined as “work that . . . [i]nvolves
10
doing significant and productive physical or mental duties[] and . . .
11
[i]s done (or intended) for pay or profit.”
12
404.1572.
13
substantial gainful activity, the ALJ proceeds to step two which is to
14
determine whether the claimant has a medically severe impairment or
15
combination of impairments that significantly limits his ability to do
16
basic work activities.
See Webb, 433 F.3d at 686; see also 20 C.F.R.
17
§
The “ability to do basic work activities” is
18
defined as “the abilities and aptitudes necessary to do most jobs.” 20
19
C.F.R. § 404.1521(b).
20
severe if it is merely “a slight abnormality (or combination of slight
21
abnormalities) that has no more than a minimal effect on the ability to
22
do basic work activities.”
23
has a medically severe impairment, then step three requires the ALJ to
24
evaluate whether the claimant’s impairment satisfies certain statutory
25
requirements
26
impairment does not satisfy the statutory requirements entitling the
27
claimant to a disability finding, the ALJ must determine the claimant’s
28
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
2
limitations from all of his impairments.
3
416.920(e)).
4
to assess whether the claimant is able to do any work that he or she has
5
done in the past, defined as work performed in the last 15 years or 15
6
years prior to the disability onset date.
7
claimant is not able to do the type of work that he or she has done in
8
the past or does not have any past relevant work, the ALJ proceeds to
9
step five to determine whether - taking into account the claimant’s age,
10
education, work experience and RFC - there is any other work that the
11
claimant can do and if so, whether there are a significant number of
12
such jobs in the national economy.
13
1098 (9th Cir. 1999);
14
claimant has the burden of proof at steps one through four, and the
15
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.
16
17
DISCUSSION
18
19
After consideration of the record as a whole, the Court finds that
20
the ALJ’s findings are supported by substantial evidence and are free
21
from material2 legal error.
22
///
23
///
24
25
26
27
28
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
3
4
Substantial evidence supports the ALJ’s assessment of Plaintiff’s
5
mental RFC.
RFC is defined as “the most [a claimant] can still do
6
despite [a claimant’s] limitations.”
7
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.”
11
(A.R. 15).
12
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
14
15
Plaintiff’s medical treatment records show that despite Plaintiff’s
16
claimed disability onset date of June 1991, Plaintiff was incarcerated
17
for a significant portion of time from 1991 to 2010 and did not seek or
18
receive mental health treatment for his depression until 2009.
19
17, 208-13).
20
Rehabilitation (“CDCR”) dated July 22, 2009 reflect that, “based on this
21
initial screening, there is not an indication that this offender is
22
suffering
23
professional is not indicated.”
24
the CDCR in 2009 and 2010 revealed unremarkable clinical examination
25
findings and reported that Plaintiff’s behavior was “cordial” and
26
“cooperative,”
27
concentration, attention, memory, thought process, thought content,
28
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
18
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
9
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).
12
work-related activities, Dr. Moran concluded that Plaintiff “has the
13
ability
14
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.
20
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
21
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
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?