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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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

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