Morphew v. Commissioner of Social Security

Filing 16

ORDER DENYING Plaintiff's Social Security Complaint and DIRECTING Clerk of Court to Enter Judgment in Favor of Michael J. Astrue, Commissioner of Social Security and Against Plaintiff Constance M. Morphew, signed by Magistrate Judge Gary S. Austin on 8/18/2009. CASE CLOSED. (Jessen, A)

1 2 3 4 5 6 7 8 9 EASTERN DISTRICT OF CALIFORNIA 10 CONSTANCE M. MORPHEW, 11 12 Plaintiff, 13 v. 14 15 16 Defendant. 17 18 19 20 21 22 23 24 25 26 27 28
The parties consented to the jurisdiction of the United States Magistrate Judge. On July 25, 2008, the a c t i o n was reassigned to the Honorable Gary S. Austin for all purposes.
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UNITED STATES DISTRICT COURT
) 1:08-cv-00864 GSA ) ) ) ORDER REGARDING PLAINTIFF'S ) SOCIAL SECURITY COMPLAINT ) ) ) ) ) ) ) ) )

MICHAEL J. ASTRUE, Commissioner of Social Security,

BACKGROUND Plaintiff Constance M. Morphew ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for disability insurance benefits and supplemental security income pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.1

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FACTS AND PRIOR PROCEEDINGS2 On or about January 5, 2006, Plaintiff filed applications alleging disability since January 3, 2006, due primarily to an ankle injury. AR 68-70. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 51-61. ALJ Michael J. Haubner held a hearing on October 4, 2007, and issued an order denying benefits on January 9, 2008. AR 18-27, 353-385. On April 24, 2008, the Appeals Council denied review. AR 4-7. Hearing Testimony ALJ Haubner held a hearing on October 4, 2007, in Fresno, California. Plaintiff appeared and was represented by Richard Hundal. Vocational Expert ("VE") Thomas C. Dachelet also provided testimony. AR 353.3 Plaintiff was born September 3, 1965. AR 361. Concerning her educational background, Plaintiff possesses a GED. AR 361. She became disabled on January 3, 2006. AR 361. Plaintiff lives with her husband of twenty-five years and their four children. AR 362. Two of her children, ages nineteen and twenty, are disabled. She drives them to their special needs school and to doctor visits, and ensures they bathe themselves and take their medication. AR 362. The children dress themselves, but require reminders about brushing their teeth. AR 363. Plaintiff can attend to her own personal needs, including brushing her teeth, dressing, bathing and hygiene. AR 363. She cooks and does so on a nightly basis. AR 363. She also does simple meal preparation, such as making a sandwich or heating something in the microwave, and will do so two or three times a day. AR 364. Plaintiff does the grocery shopping twice a week, and shops for other necessities once a month. AR 367. Plaintiff may wash dishes twice a week or so, otherwise that chore is handled by her children. AR 364-365. She does laundry twice a day, and makes the bed about once a week.

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References to the Administrative Record will be designated as "AR," followed by the appropriate page

num ber.
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P l a in tiff's husband was present as an observer only. AR 355.

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She will change the sheets on the bed "probably twice a week." AR 365-366. Plaintiff dusts every day, and vacuums or sweeps once a week. AR 366. She does not take out the trash, mop the floors or wash the windows. AR 367. Plaintiff testified that she does not have any pets4 or livestock to care for, nor does she perform any yard work. AR 367. Plaintiff does not attend church5 or other club or group based activities on a regular basis. AR 367. She visits with family or friends about three times a month, but speaks to them on the telephone everyday. AR 367. About three times a week, Plaintiff drives her SUV to take the children places. She does not drive them to school on a regular basis however as a bus will pick them up. AR 368. With regard to medical treatment, Plaintiff testified that she is fully compliant and follows all treatment recommendations and takes all medications as prescribed. AR 369. Plaintiff's condition has worsened in the last five years. AR 369. She sees a psychiatrist every three months and is taking Zoloft to treat depression. AR 369-370. Plaintiff sees her orthopedist about three times annually, and did so about three months prior to the date of the hearing. On that occasion, the doctor advised she was permanent and stationary. AR 383-384. Plaintiff testified that she can lift about twenty pounds, could stand and sit for about ten minutes, and can walk about four blocks before needing to rest. AR 370. She indicated that out of an eight hour period, she would need to elevate her feet for about four of the eight hours. AR 370-371. She has difficulty concentrating or paying attention and testified that she can concentrate for about fifteen minutes at the most. She wakes frequently during the night. AR 371. When asked how she got along with strangers while shopping, for example, Plaintiff replied that she was "okay." AR 371. She reads every day for about thirty minutes, watches about an hour of television a day, and walks the dogs for about fifteen minutes around the

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B u t see AR 372. B u t see AR 110 [Function Report of 2/6/06 wherein Plaintiff indicates she attended church as social

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a c tiv ity] .

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perimeter of the family home. AR 371-372. She also uses the computer for about two hours a day, at fifteen minutes intervals. AR 372-373. In response to questioning by her attorney, Plaintiff testified that she has been wearing ankle braces for five years, and does so for "eight hours a day at least." She removes the brace when she goes to bed at night. AR 383. VE Dachelet testified that Plaintiff's past relevant work was classified as sedentary, semiskilled. AR 374-375. The associated skills were bookkeeping, telephone, oral and written communication, hospital records keeping system, and simple computer skills. AR 375. The skills are transferable within the sedentary, semi-skilled, light clerical classification. AR 375. The VE was asked to assume a worker of Plaintiff's education and work experience, who can stand and walk four hours in an eight-hour day, without an assistive device, can lift five pounds frequently and fifteen pounds occasionally, and postural activities would be limited if weight bearing on the ankle were required. The VE testified that this person could perform Plaintiff's past relevant work. AR 376. Alternatively, the hypothetical worker could also perform unskilled sedentary work, and semi-skilled sedentary clerical work. There are 68,305 positions in the general clerical class within California. AR 377. In the second hypothetical, the VE was asked about a worker with Plaintiff's education and work experience, who: can lift and carry twenty pounds occasionally, less than ten pounds frequently; can stand and walk for two hours in an eight-hour period; sit for six hours in an eighthour period; push or pull lower extremities, yet only occasionally with the right ankle; cannot use ladders, ropes, or scaffolds; can occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; and should avoid even moderate exposure to vibration and hazards such as machinery and heights. AR 377-378. VE Dachelet testified that this worker could perform the same past relevant work as the previous hypothetical worker. AR 378. In the third hypothetical, the VE was asked about a person who was able to maintain attention and concentration, relate appropriately to others, can handle funds, carry out, remember and understand simple instructions, is able to respond appropriately to usual work situations, and changes in routine. The VE testified that these restrictions would allow semi-skilled work, and 4

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thus past relevant work is available. AR 378-379. This hypothetical worker could also perform all other unskilled, sedentary work. AR 379. In the fourth hypothetical, the VE was asked about an individual with limitations involving sitting for two hours of an eight-hour day, and standing or walking for four hours of an eight-hour day. There is no past relevant work for this hypothetical worker because the limitations permit only six hours of work in an eight-hour workday. AR 379-380. In the fifth hypothetical, the VE was asked about an individual with limitations involving frequent interference with attention and concentration, capable of low stress, who can walk four blocks, sit for thirty minutes at a time, stand for twenty minutes at a time, can sit about two hours of an eight-hour day and stand and walk about four hours in an eight-hour day. Those limitations, the VE testified, would "close the world of work" to the hypothetical worker. No past relevant work would apply. AR 380. In the sixth hypothetical, the worker is moderately limited in the ability to remember locations and workplace procedures, to understand and remember short, simple one or two-step instructions, to understand detailed instructions, to maintain attention and concentration. These limitations would also "close the world of work," including past relevant work, to the hypothetical worker. AR 380-381. In the final hypothetical, the VE was asked about a worker with Plaintiff's education and work experience, who could concentrate in fifteen-minute increments, lift and carry twenty pounds, stand and sit for ten minutes at a time each, walk four blocks, and must elevate his or her feet for four hours in an eight-hour workday. The VE testified that such a worker could not perform Plaintiff's past relevant work, nor could this person perform other generally occurring work. AR 381. Medical Record The entire record was reviewed by the Court, however, only those portions relevant to the instant proceedings are briefly summarized below. // // 5

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1.

Claude M. Schutz

On February 9, 2004, Claude M. Schutz, D.P.M., completed a Summary Progress Report regarding Plaintiff's injury. AR 233-235. Plaintiff was referred to Dr. Schutz on March 14, 2002. That examination was negative for "push-pull and for inversion-eversion stress," and Plaintiff was provided an ankle brace. Subsequent CT scan and MRI "revealed a cystic mass in the sinus tarsi calcaneus area just under the joint." AR 233. Following pain management treatment, and continued complaints of pain, Plaintiff underwent surgical intervention on May 6, 2003. AR 234. The cyst, located "very close to the subtalar joint" was removed. AR 234. Plaintiff improved and felt about forty percent better than she had prior to surgery. Continued improvement brought post-surgical improvement of "approximately 65-70%" as compared to prior to surgery. AR 234. Orthotics were ordered and pain management continued. Dr. Schutz noted "the patient feels definitely improved since the injury and since the surgery, although she still has difficulty getting through a day without some symptoms, sometimes lasting all day." AR 234. Dr. Schutz found Plaintiff permanent and stationary at that time. AR 235. On April 16, 2006, Dr. Schutz completed a "Residual Functional Capacity Questionnaire." AR 319-322. He diagnosed neuralgia and regional complex pain syndrome and indicated Plaintiff's prognosis was guarded. He indicated she "can't stand, can't sit too long," and feels pain everyday. The doctor noted emotional factors of "depression" and increased crying, mood swings and sleep disturbance. AR 319. Dr. Schutz believed Plaintiff was capable of low stress job because she was "frustrated with pain hurting her ability to things - takes much longer as breaks are required." AR 320. The doctor indicated Plaintiff: could walk four blocks without rest or severe pain, could sit for thirty minutes at one time, stand for twenty minutes at one time, sit about two hours total in an eight-hour day, stand or walk about four hours in an eight-hour day, take numerous breaks, and would need to elevate her leg waist-high about forty percent of an eight-hour work day. AR 320-321. Plaintiff could occasionally lift less than ten pounds, rarely lift more than ten pounds and never lift twenty or fifty pounds. AR 321. She could occasionally twist and stoop, rarely crouch and climb stairs, and never climb ladders. AR

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322. Plaintiff was likely to be absent about four days per month as a result of her impairments. AR 322. In a "Podiatry Progress Note" dated May 7, 2007, Dr. Schutz advises that Plaintiff is permanent and stationary and "that what can be done to this patient has been done." The doctor handwrote "[patient] is unable to work and will not return to the work force due to the chronicity of her symptoms." AR 294. On August 3, 2007, Dr. Schutz completed a "Multiple Impairment Questionnaire." AR 311-318. Referring to Plaintiff's appointment on May 7, 2007, Dr. Schutz indicated his diagnosis was "neuralgia & regional complex pain syndrome" with a prognosis of "poor to fair." AR 311. Due to pain and burning sensations in her right foot, the doctor indicated his patient could not "stand or sit too long." AR 311. He indicated Plaintiff's pain was "constant" and assigned her pain a seven on a scale of one-to-ten. He assigned fatigue a four on the same scale. AR 313. Considering a five day work environment, Dr. Schutz indicated Plaintiff could sit for two hours, and stand or walk for four hours. The doctor indicated it would be necessary or medically recommended that Plaintiff not sit continuously, and that she must get up and move around every thirty minutes. AR 313. Plaintiff could occasionally lift and carry up to ten pounds, but she could never lift or carry more than ten pounds. AR 314. Dr. Schutz indicated that Plaintiff's symptoms would "likely increase if he/she were placed in a competitive work environment." AR 315. The doctor indicated that Plaintiff experienced "pain, fatigue or other symptoms severe enough to interfere with attention and concentration" on a frequent basis. AR 316. He indicated that emotional factors contribute, and that the condition will last twelve months or more. AR 316. In response to "[t]o what degree can your patient tolerate work stress," Dr. Schutz wrote "do not know." AR 316. He believed Plaintiff would likely be absent "[m]ore than three times a month" from work as a result of her impairment. AR 317. Asked what other limitations would affect his patient, Dr. Schutz indicated "psychological limitations" in addition to prohibiting pushing, pulling, kneeling, or bending. AR 317. // // 7

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2.

Roy O. Kroeker

On May 19, 2004, Roy O. Kroeker, D.P.M., performed a comprehensive medical/legal podiatric orthopedic evaluation of Plaintiff. AR 141-153. Plaintiff related that she fell on January 30, 2002, as she left the billing department at John C. Fremont Hospital where she was employed as a billing clerk. She slipped on ice and fell, injuring her right ankle. A strain was diagnosed in the hospital's emergency room. A splint was applied and Plaintiff was off of work for five days, before returning to work on a modified schedule. A subsequent provider ordered a CT scan and a bone cyst was found in the right calcaneus. Plaintiff was treated for pain by Dr. Ramnanan, who presumed reflex sympathetic dystrophy and administered two injections. Various pain medications were prescribed, yet Plaintiff indicated the medication did not provide significant relief. The cyst was excised in surgery and initially Plaintiff said she experienced some relief, but after returning to work, the pain worsened. AR 142. Plaintiff advised Dr. Kroeker of a significant popping noise that occurs ten to fifteen times a day, causing immediate pain. She was using a fracture equalizer walker for stability. AR 142. Plaintiff complained of constant, throbbing pain. Walking increases her discomfort. She can walk a quarter block without the walker, but then the pain is so bad she almost has to stop. AR 143. Plaintiff was observed with a noticeable limp on the right side and had difficulty moving on and off the examination table. AR 144. Dr. Kroeker's examination noted decreased motor strength on the right side due to pain, yet the doctor could not completely able to evaluate the strength or lack thereof. AR 144. Plaintiff's ankle exhibited no edema, laxity or instability. The doctor noted that "[j]ust about anywhere [he] touched or held her right foot caused significant pain and she jumped and/or withdrew." AR 144. Asked to walk a thirty foot runway, Plaintiff had to balance with both hands against the walls. She guardedly placed her right foot and heel down and would not swing her arms even when asked to try. She could not walk on her toes or heels. AR 145.

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Dr. Kroeker's impression was status post slip and fall injury, i.e., strain/sprain syndrome, right lateral ankle, status post incision, drainage and packing of calcaneal cyst via subtalar joint, and chronic persistent pain. AR 149. The doctor found Plaintiff had a "mild component of reflect sympathetic dystrophy," but the injections had been beneficial. Dr. Kroeker offered no treatment recommendation at that time. He concurred with Dr. Schutz that Plaintiff was permanent and stationary, noting that Plaintiff has only "mild atrophy" with an unquantifiable decrease in strength. The doctor found Plaintiff capable of working at her then-current job with a restriction of "excessive walking on uneven terrain." AR 150. 3. Steven C. Swanson

Psychologist Steven C. Swanson prepared a psychological assessment of Plaintiff on March 18, 2006. AR 162-167. Other than the doctor noting Plaintiff having "poor dentition" there was nothing remarkable about her physical presentation as "[h]er appearance reflected satisfactory concern for personal hygiene and grooming." AR 163-164. Plaintiff was fully oriented to person, time, place and situation. She was friendly and cooperative, and maintained eye contact. Plaintiff's speech was normal, her facial expressions were appropriate, her mood was euthymic to euphoric. She reported she was "kinda down" and dwelled on her inability to do what she used to. There was no evidence of delusion, perception disorder or hallucination, or psychotic process. AR 164. No suicidal or homicidal ideation was perceived, nor were vegetative signs of depression noted. Judgment and insight were intact, and Plaintiff "maintained satisfactory attention and concentration throughout . . .." AR 164. Dr. Swanson did not diagnose on Axis I but noted "Adjustment Disorder with Mixed Anxiety and Depressed Mood, Chronic." There was no diagnosis in Axis II. Under Axis III and IV were noted the following: Plaintiff's morbid obesity and leg complaints, unemployment of she and her spouse, and four children at home. The Axis V diagnoses was a current GAF of 70. AR 165. Dr. Swanson found Plaintiff presented "with euthymic to euphoric mood, a full range of 9

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affect, and intermittent laughter." AR 165. Her emotional and mental functioning were within normal limits, and there did not appear to be any substantial restrictions to Plaintiff's daily activities. AR 165. 4. James A. Nowlan

On March 18, 2006, James A. Nowlan, Jr., M.D., performed a comprehensive medical examination of Plaintiff. AR 168-171. Plaintiff advised Dr. Nowlan that she fell and suffered a sprain in January 2002. She stated the pain was constant and is "unchanged from the initial pain." AR 168. She advised removal of the cyst "produced no relief" from the pain, the pain is worse with weight bearing and she now suffers from right knee pain and lower back pain. AR 168. With regard to Plaintiff's coordination, station and gait, Dr. Nowlan's examination revealed Plaintiff was "limping favoring her right leg." AR 169. Range of motion in the ankle joints revealed "[d]orsiflexion 0-20 degrees and plantar flexion 0-40 degrees on the left. Right ankle has dorsiflexion of 10 degrees and plantar flexion of 15 degrees. Eversion and inversion were about five degrees." AR 169. Generally, regarding the right ankle, the doctor noted a scar and tenderness, "with a fairly brisk pain response." AR 170. Dr. Nowlan concluded that Plaintiff could stand and walk for four hours in an eight-hour day, and could sit for an unlimited period without an assistive device. Additionally, while walking, Plaintiff could lift and carry five pounds frequently and fifteen pounds occasionally; while sitting, Plaintiff could lift and carry fifteen pounds frequently and forty pounds occasionally. Weight bearing on her right ankle would be "limited to some extent" for purposes of postural limitation. The doctor did not identify any manipulative limitations. AR 170-171. 5. Helen C. Patterson

On July 27, 2006, Helen C. Patterson, Ph.D., completed a Psychiatric Review Technique regarding Plaintiff's mental health. AR 273-279. Dr. Patterson found Plaintiff's affective disorder "not severe." AR 273. The doctor noted Plaintiff's degree of limitation was "mild" with regard to (1) restriction of activities of daily living; (2) difficulties in maintaining social functioning; and (3) difficulties in maintaining 10

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concentration, persistence or pace. She found no limitation regarding episodes of decompensation. AR 277. Dr. Patterson's review believed Plaintiff's medical record was "consistent in indicating claimant's depression to cause only mild functional restrictions." AR 279. 6. David A. Browne

In a Mental Disorder Questionnaire Form dated February 14, 2006, Dr. Browne noted Plaintiff's "depressive symptoms" were stable, that she was being treated with counseling and prescription medications Zoloft and Temazepam. AR 157. Plaintiff's symptoms included "crying spells" and "insomnia." AR 157. Dr. Browne noted Plaintiff suffered from "no cognitive deficits" and did not lose touch with reality. AR 158-159. Objective signs of affective disorder were noted to be "depressed affect crying, low energy, insomnia, feeling of hopelessness, being overwhelmed." AR 159. It was noted that Plaintiff was able to care for her personal affairs, function socially, and did not suffer from an inability to maintain attention or concentration. AR 159-160. Dr. Browne noted Plaintiff "would be able mentally to adapt. Limitations are from pain and limitations of motion of [right] leg." AR 160. On May 3, 2007, David A. Browne, M.D., completed a "Mental Impairment Questionnaire" regarding Plaintiff. AR 323-329. Dr. Browne indicated he treated Plaintiff every three months or so, and indicated she suffered from "depression in response to severe ankle injury and pain that is intractable - some depression continues." AR 323. The doctor indicated Plaintiff had "low motivation" and felt "hopelessness" due to her depression and pain. He believed her prognosis was "poor unless [her] ankle heals." AR 323. Asked to identify his patients signs and symptoms, Dr. Browne checked the following categories: anhedonia or pervasive loss of interest in almost all activities, decreased energy, blunt, flat or inappropriate affect, feelings of guilt or worthlessness, mood disturbance, difficulty thinking or concentrating, persistent disturbances of mood or affect, emotional withdrawal or isolation, and sleep disturbance. AR 324. Dr. Browne indicated Plaintiff was moderately limited in understanding and memory, and then indicated she was "serious limited, but not precluded" in all listed mental abilities necessary to perform unskilled work. AR 325-327. Additionally, the doctor checked 11

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moderately limited for all abilities listed under "sustained concentration and persistence." Plaintiff was also moderately limited with regard to social interaction and adaptation. AR 327328. Every work-related stressor scenario was selected by Dr. Browne as one that would increase Plaintiff's previously-identified limitations. AR 328. The doctor believed Plaintiff would be absent more than three or four times per month as a result of her impairments. Dr. Browne indicated that Plaintiff's onset of disability was June 2006. AR 329. On June 12, 2007, Dr. Browne authored a letter addressed "To whom it may concern" wherein he indicated Plaintiff was "totally disabled from working because of chronic pain syndrome and depression. She will be totally disabled fore more than one year." AR 330. ALJ's Findings The ALJ determined that Plaintiff had the severe impairments of obesity, bilateral calcaneal spurs, plantar spurs and status post subchondral cyst removal in the right ankle. Nonetheless, the ALJ determined these severe impairments did not meet or equal any listing impairments so as to result in a disability finding. With regard to Plaintiff's symptoms of possible adjustment disorder, the ALJ found that "no more than `slight' abnormalities that have no more than a `minimal' effect" do not amount to a severe impairment. AR 20-21. Based on his review of the medical evidence, the ALJ determined that Plaintiff retained the residual functional capacity ("RFC") to perform a wide range of sedentary work with certain limitations. AR 21-22. Given this RFC, the ALJ found that Plaintiff could return to her past work as an account representative as it did not require work-related activities precluded by the RFC. AR 25. Alternatively, the ALJ found that, even assuming Plaintiff could not perform her past relevant work and lacked transferable skills, Plaintiff could still perform a significant number of other jobs in the national economy consistent with her impairments, limitations, age, education and experience, in the semiskilled and sedentary job categories. AR 26. SCOPE OF REVIEW Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, 12

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the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405 (g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987). REVIEW In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). This five-step analysis can be summarized as follows: (1) determination of whether the claimant is engaged in substantial gainful activity; if so engaged, the claimant is not presumed disabled and the analysis ends; (2) if not engaged in 13

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substantial gainful activity, determination of whether the claimant has a severe impairment; if not, the claimant is not presumed disabled and the analysis ends; (3) if the claimant has a severe impairment, determination of whether any such severe impairment meets any of the impairments listed in the regulations; if so, the claimant is disabled and the analysis ends; (4) if the claimant's impairment is not listed, determination of whether the impairment prevents the claimant from performing his or her past work; if not, the claimant is not presumed disabled and the analysis ends; and (5) if the impairment prevents the claimant from performing his or her past work, determination of whether the claimant can engage in other types of substantial gainful work that exist in the national economy; if so, the claimant is not disabled and the analysis ends. Here, Plaintiff argues that (1) her mental impairment is severe; (2) the ALJ improperly rejected her treating physician's opinion; (3) the ALJ did not properly incorporate her obesity into the RFC; and (4) the ALJ erroneously discredited her testimony. DISCUSSION A. Plaintiff's Depression Plaintiff asserts the ALJ committed error in finding her depression does not amount to a legally severe impairment, and thus failed to consider its impact at steps four and five of his analysis. Defendant contends the ALJ properly rejected the opinion of Plaintiff's treating physician in concluding her depression was not a severe impairment. 1. The Law

An impairment or combination of impairments is found "not severe" and a finding of "not disabled" is properly made at step two when medical evidence establishes that a claimant has only a slight abnormality which would have no more than a minimal effect on his or her physical or mental ability to perform basic work activities. SSR 85-28. The listings of impairments describe impairments "that are considered severe enough to prevent an adult from doing any gainful activity." 20 C.F.R. § 416.925(a). Most of these impairments are permanent or expected to result in death. Id. For all other impairments, the evidence must show that the impairment has lasted or is expected to last for a continuous period

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of at least 12 months. Id. If a claimant's impairment meets or equals a listed impairment, he or she will be found disabled at step three without further inquiry. 20 C.F.R. § 416.920(d). To demonstrate that an impairment matches a listed impairment, the claimant must show that the impairment meets all of the medical criteria in a Listing. Sullivan v. Zebley, 493 U.S. 521, 530 (1990). "An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Id. To "equal" a listed impairment, a claimant must establish symptoms, signs and laboratory findings "at least equal in severity and duration" to the characteristics of a relevant listed impairment." Tackett v. Apfel, 180 F.3d 1094, 1099 (9th Cir. 1999); 20 C.F.R. §§ 404.1526(a), 416.926(a). Under the law of this circuit, "[i]t is unnecessary to require the Secretary, as a matter of law, to state why a claimant failed to satisfy every different section of the listing of impairments." Gonzales v. Sullivan, 914 F.2d 1197, 1201 (9th Cir.1990). A mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings. 20 C.F.R. § 416.908. Symptoms are a claimant's own description of his or her impairment, and alone are not enough to establish a mental impairment; signs include observable psychological abnormalities and must be medically demonstrable phenomena; laboratory findings must be shown through medically acceptable laboratory techniques. 20 C.F.R. § 416.928. The regulations are clear that reports about a claimant's impairments must come from "acceptable medical sources," and that a licensed social worker is not an accepted medical source. 20 C.F.R. § 416.913(a). To determine whether a plaintiff has a mental impairment, one must assess the impairment according to the Regulations. 20 C.F.R. pt. 404, app. 1, subpt. P, § 112.05 (Listing 12.05). The listing of impairments outlines criteria that claimants must meet in order to be determined impaired. Id. Listing 12.04 pertains to affective disorders.6
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A f fe c tiv e disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or d e p r e ss iv e syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves e i t h e r depression or elation. The required level of severity for these disorders is met when the requirements in both A and B are s a t i s fi e d , or when the requirements in C are satisfied. A. Medically documented persistence, either continuous or intermittent, of one of the following:

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2.

Analysis

ALJ Haubner considered whether Plaintiff's depression was a severe impairment and found as follows: The psychological consultative examiner did not diagnose the claimant with a definite psychiatric disorder, but diagnosed the claimant with only a possible adjustment disorder with mixed anxiety and depressed mood. The consultative examiner determined the claimant had no significant work-related limitations on her ability to perform simple and repetitive work activity on a consistent basis. The consultative examiner stated the claimant remained capable of performing simple job instructions. However, I note that the consultative examiner did not

1 . Depressive syndrome characterized by at least four of the following: a. Anhedonia or pervasive loss of interest in almost all activities; or b. Appetite disturbance with change in weight; or c. Sleep disturbance; or d. Psychomotor agitation or retardation; or e. Decreased energy; or f. Feelings of guilt or worthlessness; or g. Difficulty concentrating or thinking; or h. Thoughts of suicide; or i. Hallucinations, delusions, or paranoid thinking; or 2. Manic syndrome characterized by at least three of the following: a. Hyperactivity; or b. Pressure of speech; or c. Flight of ideas; or d. Inflated self-esteem; or e. Decreased need for sleep; or f. Easy distractibility; or g. Involvement in activities that have a high probability of painful consequences which a r e not recognized; or h. Hallucinations, delusions or paranoid thinking; or 3. Bipolar syndrome with a history of episodic periods manifested by the full symptomatic p i c t u r e of both manic and depressive syndromes (and currently characterized by either or both syn d ro m e s) ; AND B. Resulting in at least two of the following: 1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each of extended duration; OR C. Medically documented history of a chronic affective disorder of at least 2 years' d u r a t i o n that has caused more than a minimal limitation of ability to do basic work activities, with s ym p to m s or signs currently attenuated by medication or psychosocial support, and one of the fo llo w ing : 1. Repeated episodes of decompensation, each of extended duration; or 2. A residual disease process that has resulted in such marginal adjustment that even a m in im a l increase in mental demands or change in the environment would be predicted to cause the in d iv id u a l to decompensate; or 3. Current history of 1 or more years' inability to function outside a highly supportive l i v i n g arrangement, with an indication of continued need for such an arrangement.

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determine the claimant was precluded from performing more complex or detailed work activity, but merely stated that she could perform simple job instructions [citation]. [¶] The psychological consultative examiner also determined the claimant's GAF (Global Assessment of Functioning) was 70 [citation]. A GAF of 70 indicates the claimant was having borderline mild to slight symptoms or borderline mild to slight difficulty in social, occupational, or school functioning. A GAF of 61 to 70 indicates the person is generally functioning pretty well and has some meaningful interpersonal relationships. A GAF of 71 to 80 indicates the person has no more than slight impairment in social, occupational, or school functioning . . .. [¶] The claimant's treating physician described [her] depression as being stable and determined she had essentially no work-related limitations resulting from the depression [citation]. The lack of any limitations imposed by the claimant's treating physician speaks volumes about the relatively mild nature of the claimant's depression symptoms. [¶] The State Agency psychiatric consultant determined the claimant had no more than mild functional limitations from the possible adjustment disorder. The State Agency psychiatric consultant determined the claimant's limitations were so minimal that it justified finding the claimant had no "severe" mental impairment [citation]. [¶] For all the reasons above, I find the claimant's symptoms from her possible adjustment disorder are no more than "slight" abnormalities that have no more than a "minimal" effect upon her ability to work. Accordingly, her possible adjustment disorder is not a "severe" impairment as that term is defined . . .. AR 20-21. In his psychological assessment of March 2006, Dr. Swanson noted Plaintiff was fully oriented to time, person, place and situation; she was friendly and cooperative and maintained eye contact. Her speech was normal and her facial expressions were appropriate. She reported that she was "`kinda down'" but there was no evidence of delusion, perception disorder or hallucination, or psychotic process. Plaintiff did not suffer from suicidal or homicidal ideation, nor were signs of vegetative depression present. Her judgment and insight were intact and she "`maintained satisfactory attention and concentration throughout and the results are considered a valid representation of her current functioning.'" AR 162-164. More particularly, Dr. Swanson noted as follows: She denied psychotic symptomatology and there was no evidence of any serious psychopathological disturbance. She is bitter about her termination earlier this year from her work position due to reported conflict with her supervisor; nevertheless, she presents with euthymic to euphoric mood, a full range of affect, and intermittent laughter. Mental and emotional functioning is seen as falling within normal limits. Her medical health is notable for morbid obesity in addition to the aforementioned. Connie is judged as able to maintain concentration or relate appropriately to others in a job setting. She would be able to handle funds in her own best interests. She is expected to understand, carry out, and remember simple instructions. She is judged as able to respond appropriately to usual work 17

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situations, such as attendance, safety and the like. Changes in routine would not be very problematic for her. There do not appear to be substantial restrictions in daily activities. AR 165, emphasis added. As a consultive examiner, Dr. Swanson's opinion may constitute substantial evidence because it rests on independent clinical findings. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). In February 2006, Dr. Browne noted "depressive symptoms" since January 2002 when Plaintiff sustained injury. He referenced "severe symptoms with crying spells, insomnia" related to frustration regarding the pain and limitations caused by the injury. The doctor stated Plaintiff "has thinking affect by depressed mood," but found Plaintiff did not suffer from a cognitive deficit. AR 158. Dr. Browne also reported that Plaintiff had not experienced a loss of touch with reality, and she had the ability to care for her personal affairs, the ability to function socially, and to pay attention and follow instructions. AR 157-161. With specific regard to Dr. Browne's opinion in May 2007, the ALJ noted: Just before the hearing, the claimant's attorney representative submitted a brief note and fill-in-the blanks/check-the-blocks type of form from David A. Browne, M.D., indicating limitations that would generally prevent the performance of substantial gainful activity [citation]. However, the opinions lacked supporting bases for the conclusions regarding the limitations, such as the claimant's clinical signs and whether the given limitations were based upon the claimant's subjective complaints or upon objective findings or observations. [Citations.] Even more significant, the opinions stated by Dr. Browne . . . are inconsistent with Dr. Browne's own prior statements [citation]. AR 24. Here, the ALJ gave sufficient reasons, supported by substantial evidence in the record, for rejecting the May 2007 opinion of Dr. Browne. An ALJ need not accept a treating physician's opinion that is conclusory and brief and unsupported by clinical findings. Tonapetyan v. Halter, 242 F.3d at 1149. Because Dr. Browne's opinion in May 2007 was unsupported by clinical findings, the ALJ properly elected to afford it little weight. Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (checklist properly rejected for it "lacked substantive medical findings to support conclusion"); see also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996); Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 1988).

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Additionally, as noted by the ALJ, Dr. Browne's May 2007 findings conflict with his earlier findings significantly. Whereas Dr. Browne specifically stated that Plaintiff did not suffer from any cognitive deficit, was able to maintain her personal affairs, function socially, and maintain focus and concentration in February 2006, in May 2007 the doctor indicated Plaintiff was moderately limited in understanding and memory, indicated she was "seriously limited, but not precluded" in all listed mental abilities necessary to perform unskilled work, and moderately limited with regard to social interaction, as well as for all abilities listed under "sustained concentration and persistence." AR 325-328. Notably, a review of Dr. Browne's own treatment notes between the period of February 2006 through May 2007 does not establish any objective bases for Dr. Browne's latter opinion. The notes are lacking for clinical findings. See AR 183, 214, 292-293, 297-298. Finally, Dr. Patterson's psychiatric review concluded that Plaintiff's affective disorder was "not severe." The doctor indicated Plaintiff's limitations were "mild" regarding the activities of daily living, social functioning, and maintaining concentration. AR 273-279. Dr. Patterson's opinion is consistent with Dr. Swanson's opinion. Tonapetyan v. Halter, 242 F.3d at 1149 ("contrary opinion of a non-examining medical expert does not alone constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, it may constitute substantial evidence when it is consistent with other independent evidence in the record"). In sum, there is sufficient evidence to support the ALJ's finding of no more than slight possible adjustment disorder. AR 20-21. Thus, the ALJ did not err and his findings are supported by substantial evidence. B. The Opinion of Treating Physician Schutz Plaintiff contends the ALJ erred in rejecting the opinions of Plaintiff's podiatrist. Defendant counters the ALJ properly rejected the opinions as conclusory, brief and unsupported by clinical findings, and as beyond the doctor's area of expertise. // // // 19

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1.

The Law

The opinions of treating doctors should be given more weight than the opinions of doctors who do not treat the claimant. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.1998); Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). Where the treating doctor's opinion is not contradicted by another doctor, it may be rejected only for "clear and convincing" reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830. Even if the treating doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing "specific and legitimate reasons" supported by substantial evidence in the record. Id. (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983)). This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.1989). The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir.1988). In Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), the Ninth Circuit reiterated and expounded upon its position regarding the ALJ's acceptance of the opinion of an examining physician over that of a treating physician. "When an examining physician relies on the same clinical findings as a treating physician, but differs only in his or her conclusions, the conclusions of the examining physician are not `"substantial evidence."' Orn, 495 F.3d at 632; Murray, 722 F.2d at 501-502. "By contrast, when an examining physician provides `independent clinical findings that differ from the findings of the treating physician' such findings are `substantial evidence.'" Orn, 496 F.3d at 632; Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985). Independent clinical findings can be either (1) diagnoses that differ from those offered by another physician and that are supported by substantial evidence (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir.1985)), or (2) findings based on objective medical tests that the treating physician has not herself considered (see Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)). If a treating physician's opinion is not given controlling weight because it is not well supported or because it is inconsistent with other substantial evidence in the record, the ALJ is 20

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instructed by Section 404.1527(d)(2) to consider the factors listed in Section 404.1527(d)(2)-(6) in determining what weight to accord the opinion of the treating physician. Those factors include the "[l]ength of the treatment relationship and the frequency of examination" by the treating physician; and the "nature and extent of the treatment relationship" between the patient and the treating physician. 20 C.F.R. 404.1527(d)(2)(i)-(ii). Other factors include the supportablility of the opinion, consistency with the record as a whole, the specialization of the physician, and the extent to which the physician is familiar with disability programs and evidentiary requirements. 20 C.F.R. § 404.1527(d)(3)-(6). Even when contradicted by an opinion of an examining physician that constitutes substantial evidence, the treating physician's opinion is "still entitled to deference." SSR 96-2p; Orn, 495 F.3d at 632-633. "In many cases, a treating source's medical opinion will be entitled to the greatest weight and should be adopted, even if it does not meet the test for controlling weight." SSR 96-2p; Orn, 495 F.3d at 633. Licensed podiatrists may be relied upon as an acceptable medical source "for purposes of establishing impairments of the foot, or foot and ankle only . . .." 20 CFR § 404.1513(a)(4). 2. Analysis

Here, the ALJ noted that Not long before the hearing, the claimant's representative submitted a fillin-the-blanks/check-the-blocks type of forms indicating limitations that would generally prevent the performance of substantial gainful activity [citations]. However, the opinions lacked supporting bases for the conclusions regarding limitations, such as the claimant's clinical signs, test results, and whether the given limitations were based upon the claimant's subjective complaints or upon objective findings or observations. Also, the signer of the forms did not provide information in the forms about his qualifications, but after reviewing the medical records, it appears the signer of these forms is a DPM (a podiatrist). Podiatry is the field of medicine that specializes in the study and care of the foot and ankle. There is nothing in the record suggesting the claimant's podiatrist is also a specialist in orthopedic surgery, neurosurgery, or any other medical field [citation]. Therefore, it clearly seems that some of the limits imposed on the claimant by the signer of Exhibits 10F and 11F (e.g., pushing, pulling and bending []) are outside the signer's area of expertise. This fact strongly suggests the opinions of the signer . . . that deal with issues other than the claimant's feet should be discounted or disregarded. AR 24. As explained, the ALJ rejected Dr. Schutz's opinions because they lacked supporting bases: clinical signs, test results, and indication as to whether the limitations recommended were the result of "claimant's subjective complaints or upon objective findings and observations." 21

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were not supported by clinical findings. See Batson v. Commissioner, 359 F.3d at 1195; Crane v. Shalala, 76 F.3d at 253; Young v. Heckler, 803 F.2d at 968; see also Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir.1999) ( "A physician's opinion of disability `premised to a large extent upon the claimant's own accounts of his symptoms and limitations' may be disregarded where those complaints have been `properly discounted'") (quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir.1989)). In the Multiple Impairment Questionnaire dated August 3, 2007, when asked to identify the "positive clinical findings" in support of his diagnosis of "neuralgia" and "regional complex pain syndrome," Dr. Schutz wrote "pain & burning sensations to [right] foot & subtalar [joint]" and that Plaintiff could not "stand or sit too long." AR 311. Asked to identify laboratory or diagnostic test results that support his diagnoses, Dr. Schutz wrote "clinical evaluation." AR 312. A review of Dr. Schutz's treatment notes do not reflect specific findings related to Plaintiff's functional abilities and/or limitations. AR 218, 225-232, 236, 240-241, 243-245, 247250, 257-258. The treatment notes make no reference to Plaintiff being limited with regard to pushing, pulling or bending in any way. A number of the notes specifically reference that Plaintiff's pain was increased with increased activity or "extensive walking." In fact, in his February 9, 2004, progress report, Dr. Schutz indicated his examination was negative for "pushpull and for inversion-eversion stress." AR 233. Dr. Schutz's May 2007 opinion is not consistent with the record as a whole. Dr. Nowlan found no manipulative limitations applied to Plaintiff, and indicated a single postural limitation of weight bearing on the right ankle. AR 170-171. Dr. Kroeker's report included only a work restriction of "excessive walking on uneven terrain." AR 150. In sum, the ALJ declined to assign Dr. Schutz's opinion controlling weight because it was inconsistent with the record as a whole and was based upon "minimal medical signs and laboratory findings." See Orn v. Astrue, 496 F.3d at 632; Allen v. Heckler, 749 F.2d at 579. The ALJ did not err. // 22

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C.

Obesity And RFC Plaintiff argues the ALJ erred in finding Plaintiff's obesity to be legally severe where he

later failed to incorporate consideration of Plaintiff's obesity into his RFC finding. Defendant responds that the ALJ limited Plaintiff in "her postural activities" and to sedentary work, a significantly reduced RFC in light of Plaintiff's age, and that the RFC was based on the ALJ's analysis of the record as a whole such that consideration was given. Defendant also contends that by failing to identify or demonstrate how the ALJ's decision was improper, the claim has not been preserved for purposes of appeal. 1. Discussion

Plaintiff relies on Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003) in support of her position. However, this matter is distinguishable from Celaya. There, the Ninth Circuit reasoned that the ALJ should have considered the claimant's obesity as a disabling factor, even where it was not expressly argued by the claimant, because obesity was raised impliedly in Celaya's report of symptoms, it was clear that Celaya's obesity was close to the listing criterion and was a condition that could exacerbate her reported illness, and Celaya was proceeding pro se and thus the ALJ had a duty to develop the record regarding her obesity. Celaya v. Halter, 332 F.3d at 1182. Significantly, unlike the claimant in Celaya, the record does not indicate that Plaintiff's obesity exacerbated her other impairments nor was it raised in Plaintiff's report of symptoms. Also, the fact Plaintiff is morbidly obese is noted by several physicians, but none have indicated that Plaintiff's obesity adds to her limitations. There is a single passing reference to obesity possibly causing Plaintiff's back pain. In Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005), the Court of Appeals pointed out that a Plaintiff must demonstrate or identify evidence of "functional limitations as a result" of obesity. Id., at 684. Like the claimant in Burch, Plaintiff has failed to point to any evidence of her obesity causing functional limitations. The medical record establishes limitations regarding right ankle pain rather than any limitation pertaining to Plaintiff's obesity. Notably too, like the claimant in Burch, Plaintiff was represented by counsel. Yet she presented no testimony that her 23

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obesity impaired her ability to work or that it affected her daily activities in any way. AR 353385. Finally, the court notes that the ALJ did consider Plaintiff's impairment by adopting the opinion of the state agency medical consultant who specifically considered Plaintiff's obesity and found her able to perform sedentary work. AR 25. D. Plaintiff's Credibility Plaintiff contends that the ALJ's reasons for finding her subjective complaints not credible are insufficient as a matter of law. Defendant responds that the ALJ's credibility finding is well-supported by the evidence. 1. Applicable Law

The ALJ is required to make specific findings assessing the credibility of a plaintiff's subjective complaints. Cequerra v. Secretary of HHS, 933 F.2d 735 (9th Cir. 1991). In rejecting the complainant's testimony, "the ALJ must identify what testimony is not credible and what evidence undermines the claimant's complaints." Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996), quoting Varney v. Secretary of Health and Human Services, 846 F.2d 581, 584 (9th Cir. 1988). "Despite the inability to measure and describe it, pain can have real and severe debilitating effects; it is, without a doubt, capable of entirely precluding a claimant from working." Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989). It is possible to suffer disabling pain even where the degree of pain is unsupported by objective medical findings. Id. "In order to disbelieve a claim of excess pain, an ALJ must make specific findings justifying that decision." Id., citing Magallanes v. Bowen, 881 F.2d at 755. The findings must convincingly justify the ALJ's rejection of the plaintiff's excess pain testimony. Id. at 602. However, an ALJ cannot be required to believe every allegation of disabling pain. "This holds true even where the claimant introduces medical evidence showing that he has an ailment reasonably expected to produce some pain." Id. at 603. Once a claimant produces medical evidence of an underlying impairment likely to cause the alleged pain, the ALJ may not discredit the allegations of the severity of the pain solely 24

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because the evidence does not support plaintiff's statements. Lester, 81 F.3d at 834, citing Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc). The Court turns to address these findings. The ALJ may engage in ordinary techniques of credibility evaluation, such as considering claimant's reputation for truthfulness and inconsistencies in claimant's testimony. Tonapetyan v. Halter, 242 F.3d at 1148; see also Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). Additionally, the ALJ , and may make inferences "logically flowing from the evidence." Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996); see Drouin v. Sullivan, 966 F.2d 1255, 1258-59 (9th Cir. 1992) (ALJ's observations during the hearing, along with other evidence, constitutes substantial evidence); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d at 599 (ALJ's finding that symptoms improved with medication was valid consideration in assessing claimant's credibility). If a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d at 600. The ALJ must make "specific findings relating to [the daily] activities" and their transferability to conclude that a claimant's daily activities warrant an adverse credibility determination. Orn v. Astrue, 495 F.3d 625, 639 (9th Cir. 2007). 2. Analysis

Here, the ALJ found as follows: The claimant's testimony is inconsistent with the objective medical evidence in the record. The claimant testified that her medical condition has steadily deteriorated without fluctuation over the past five years. However, on June 5, 2003, the claimant told her doctor that she had experienced an estimated 40 percent improvement after undergoing surgery on her right ankle [citation]. The claimant also alleged in her testimony that she is "fully" compliant with her medical treatment. However, I note she frequently refuses to be weighed by her doctor [citation]. The claimant appears to exaggerate her limitations. In her testimony at the hearing, she alleged she could concentrate for no more than 15 minutes. However, I observed the claimant pay attention and respond appropriately to questions throughout the entire hearing, which lasted about 45 minutes. The claimant has a poor work history. She has only five full years of working at the substantial gainful activity level during the past 15 years [citation].

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Furthermore, despite the claimant's allegations of having extensive limitations, she engages in a wide range of activities of daily living as indicated by her husband, and discussed below. In her testimony, the claimant also admitted engaging in a wide range of activities of daily living. For example, she admits she cares for two disabled children, she drives them to a special needs school and that she ensures they take care of their personal needs such as bathing and brushing teeth. She also admitted that she cares for all of her own personal needs, cooks once a day, preparing simple meals two to three times [a] day, washes dishes twice a day, does laundry twice a day, makes the bed once a week, changes the sheets on the beds twice a week, dusts furniture every day, sweeps and vacuums once a week, goes grocery shopping twice a week and shopping for other things once a week, talks on the telephone about five times a day, reads 30 minutes a day, watches television one hour a day and plays on a computer about two hours a day. She also admitted that she has a valid driver's licence without any restrictions, and that she drives an automobile about three times a week. For the reasons above, I find the claimant is not credible. AR 23. In this case, the ALJ articulated adequate reasons for finding Plaintiff's pain complaints less than entirely credible. The ALJ was particularly reliant upon Plaintiff's own testimony concerning her daily activities, including caring for two disabled children, cooking and preparing meals, cleaning, driving and meeting her own personal needs. ALJ Haubner properly considered Plaintiff's daily activities in his credibility analysis. If a claimant is able to spend a substantial part of his day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations. See Fair v. Bowen, 885 F.2d at 603; see also Morgan v. Apfel, 169 F.3d 595, 600 (9th Cir. 1999) (claimant's ability to fix meals, do laundry, work in the yard, and occasionally care for his friend' child was evidence of claimant's ability to work). In addition to the ALJ's comment about Plaintiff's ability to concentrate at the hearing, the record contains other evidence of her ability to maintain concentration. Specifically, Dr. Swanson noted that Plaintiff "maintained satisfactory attention and concentration throughout" his examination. AR 164. With regard to Plaintiff's testimony at the hearing that her condition had steadily deteriorated, something the ALJ relied upon in assessing Plaintiff's credibility, the record evidences that she told another physician, Dr. Nowlan, that surgical removal of the cyst from her right ankle "produced no relief." AR 168. This statement is also contradictory to her statements

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to Dr. Schutz following surgery on her right foot. See AR 244 ("improved - by 65-70%" as of 7/10/03), 245 ("Pt feels she is 40+% improved"). In sum, the ALJ is entitled to resolve questions of credibility and conflicts in the testimony. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). Here, the ALJ's credibility determination is supported by substantial evidence, and is sufficiently specific to permit the Court to conclude that the ALJ did not arbitrarily discredit claimant's testimony. Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). CONCLUSION Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. The clerk of this Court is DIRECTED to enter judgment in favor of Defendant Michael J. Astrue, Commissioner of Social Security and against Plaintiff, Constance M. Morphew.

IT IS SO ORDERED. Dated: 6i0kij

August 18, 2009

/s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE

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