Mitchell v. Commissioner of Social Security

Filing 20

ORDER AFFIRMING AGENCY'S DENIAL OF BENEFITS AND ORDERING JUDGMENT FOR COMMISSIONER signed by Magistrate Judge Sandra M. Snyder on 4/15/2015. CASE CLOSED.(Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTIE A. MITCHELL,

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Plaintiff,

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v.

Case No. 1:14-cv-00238-SMS
ORDER AFFIRMING AGENCY’S DENIAL
OF BENEFITS AND ORDERING
JUDGMENT FOR COMMISSIONER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff Christie A. Mitchell, by her attorney, Jacqueline Anna Forslund, seeks judicial

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review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her
application for supplemental security income (“SSI”) pursuant to Title XVI of the Social Security
Act (42 U.S.C. § 301 et seq.) (the “Act”). The matter is before the Court on the parties' cross-briefs,
which were submitted, without oral argument, to the Honorable Sandra M. Snyder, U.S. Magistrate
Judge.
Plaintiff contends that the Administrative Law Judge ("ALJ") failed to give legally adequate

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reasons for rejecting (1) the examining psychologist's opinion and (2) the statement of Plaintiff's
daughter. Following a review of the complete record and applicable law, the Court finds the
decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the
record as a whole and based on proper legal standards.
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I.

Procedural History

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On May 27, 2005, Plaintiff applied for supplemental security income, alleging disability

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beginning June 1, 1986. The Commissioner initially denied the claim on October 26, 2005, and

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upon reconsideration, on March 6, 2007. Following a hearing on March 19, 2008, the ALJ denied

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the application.1

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On March 1, 2010, Plaintiff again applied for supplemental security income, alleging

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disability beginning April 22, 2008. The Commissioner initially denied the claim on October 18,

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2010, and upon reconsideration, on March 10, 2011. On May 9, 2011, Plaintiff filed a timely

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request for a hearing.

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Plaintiff appeared and testified at a hearing on May 14, 2012. Jose L. Chaparro, an impartial
vocational expert, also appeared and testified.
On May 22, 2012, Administrative Law Judge Michael J. Haubner denied Plaintiff’s

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application. The Appeals Council denied review on December 20, 2013. On February 20, 2014,

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Plaintiff filed a complaint seeking this Court’s review.

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II.

Factual Background

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Plaintiff (born December 18, 1948) testified that she last worked, off-the-books, as a

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babysitter in the 1980's. (In her adult disability report, Plaintiff reported that she stopped working

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when she married in 1972.) Plaintiff is a high school graduate. She does not have a driver's license.

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Plaintiff estimated that she could easily walk for two hours at a time. She could stand for

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about thirty minutes at a time and sit for twenty minutes. The most she could carry was twenty

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pounds. Generally, she needed to rest about one hour in an eight-hour day. She could pay attention

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for about twenty minutes at a time.

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Plaintiff shared a single-family home with her elderly mother, her younger brother, and a

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second brother and his wife. Plaintiff cared for two cats and three dogs. She cooked once or twice a

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day, cleaned up afterward, and took out the trash. She swept inside and outside, and mopped the

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floors, but did not vacuum. She did laundry daily. Plaintiff did daily yard work, including watering

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and weeding, but did not mow the grass. She shopped daily. Although Plaintiff helped her

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Plaintiff had also been denied disability benefits in 1992 and 1997.

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bedridden mother to perform her personal needs, she testified that her health would not allow her to

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take care of a sick person as a full-time job.

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Plaintiff visited her adult daughter once or twice a month. She enjoyed writing letters and
watching television. She was able to dress herself and perform her own personal care.
In an adult function report dated June 15, 2010,2 Plaintiff denied that she cared for any other

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family members, including parents. She claimed difficulty dressing herself, particularly managing

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pants, long sleeves, and socks. She was able to prepare her own meals, and to do light housework

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and yard work.

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Plaintiff went outside daily, walking, riding in a car, or using public transportation. She

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stopped driving after seven accidents. Her condition limited lifting, squatting, bending, reaching,

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kneeling, hearing, seeing, completing tasks, concentrating, understanding, following instructions,

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using hands, and getting along with others. She complained of leg, foot, and ear pain, swelling of

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her extremities, and difficulty chewing. (She reported that she had no teeth.) She needed glasses,

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hearing aids, and a cane. From 2008 to 2009, Plaintiff lost 145 pounds.

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Plaintiff's daughter, Andrea Pritchett, completed a third-party adult function report dated

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June 15, 2010. Ms. Pritchett dismissed her mother's cooking and cleaning abilities, reporting that

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she took too long and failed to do an adequate job. Plaintiff, she said, annoyed neighbors and local

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school personnel by talking nonsense and making unwanted telephone calls. When Plaintiff lived

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with Ms. Pritchett and her family, they were forced to take out their phone to end her habit of

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making annoying phone calls to others. For example, Plaintiff repeatedly called the local school

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nurse to complain about her illnesses. Plaintiff could dress herself but lacked a sense of personal

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modesty, going outside to talk to people without pants or in her pajamas.

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According to Ms. Pritchett, Plaintiff no longer shopped because she talked to those she

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encountered about private family matters and came home with items that she should not have

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purchased. She had difficulty following written and spoken instructions. Never having worked,

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Plaintiff lacked the ability to budget or handle money: when Ms. Pritchett was a child, her

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Because Plaintiff went over her handwriting multiple times, the adult function report is difficult to read.

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grandmother supplemented Plaintiff's welfare check and paid Plaintiff's bills for her. Plaintiff

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enjoyed watching children's television programs and writing words.

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Ms. Pritchett opined that, although Plaintiff shook and had difficulty squatting and bending,

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"mostly it's mental." AR 195. She needed glasses and diabetic supplies. Plaintiff, said Ms.

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Pritchett, is a hypochondriac who would feign sickness to avoid stress or an unfamiliar situation.

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Plaintiff also sees and hears things that are not there, and claims to care for ten or twelve

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grandchildren, although she has only two teen-aged grandchildren. Similarly, Plaintiff claimed to

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have had multiple traffic accidents but was actually only in one accident--when she was sixteen

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years old and her mother was driving.

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Medical records. Plaintiff received regular physical medical care at University Health

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Services on April 3, June 25, July 18, and November 10, 2008; and February 3, June 30, and

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December 2, 2009. Her diagnoses reflected high blood pressure and diabetes mellitus. Plaintiff's

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blood sugar ranged from 80 to 108 mg/dL: her physicians attempted to adjust her Metformin3 to

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achieve a consistent normal level. Her blood pressure was generally elevated. Her doctors

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encouraged a low salt diet and exercise.

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Despite Plaintiff's representation of substantial weight loss in this time period, the notes show

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that Plaintiff's weight varied within a range of 153.7 to 184 pounds. Plaintiff was about five feet one

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inch tall. The UHS records reflect diagnoses of bipolar disorder and schizophrenia, and referrals to

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Fresno County Behavioral Services. Plaintiff stopped taking her prescriptions, Metformin and

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thioridazine (Mellaril),4 on multiple occasions.

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On July 18, 2010, internist Robert Wagner, M.D., prepared a consultative internal medicine

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evaluation for the agency. Plaintiff told Dr. Wagner that because she had weighed 338 pounds six

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months to one year before, but now weighed 150 pounds, she no longer needed any medication. Dr.

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Wagner noted that no documentation supported her claim. Plaintiff also told him that her left knee

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"gave out" occasionally, but that she could walk long distances at other times and that she had no

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significant pain. The doctor observed, "She may not be a very reliable historian per review of

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Metformin is used alone or with other medications to treat Type 2 diabetes.
www.nlm.nih.gov/medlineplus/druginfo/meds/a696005.html (April 8, 2015).
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Mellaril (Thioridazine) is an antipsychotic drug used to treat schizophrenia.
www.nlm.nih.gov/medlineplus/druginfo/meds/a682119.html (April 8, 2015).

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records." AR 250. Although Dr. Wagner deferred evaluation of her mental health to psychiatry, he

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noted:

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The client has bright affect, however, she presents speaking very rapidly, often
going off topic and very hard to direct back into the topic at hand. She did
mention coming into the examination that she has multiple 15-year-old daughters
who keep her very busy, a statement that is not true per the records I reviewed.
The claimant was pleasant to talk with.

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AR 250.

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Plaintiff was able to rise from her waiting room chair and walk to the examining room

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without assistance, easily get on and off the examining table, and put on her own shoes and socks.

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Dr. Wagner opined that Plaintiff had no limitations in sitting, standing, walking, or manipulation.

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She could lift and carry fifty pounds occasionally and 25 pounds frequently. Because "she may not
apprehend dangers normally," she should not climb or balance. AR 253.

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On July 23, 2010, psychologist Gerardine Gauch, Psy.D., prepared a consultative psychiatric

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evaluation for the agency. Dr. Gauch reviewed no medical records, relying solely on Plaintiff's
representations.

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According to Plaintiff, her chief psychological complaint was withdrawing into herself and
isolating socially:

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The claimant is seeking SSI benefits because "I pulled into myself and I don't talk
to anymore [sic]. I've had multiple motor vehicle accidents and injury to my left
side." She stated, "I've been going to mental health since 1986 because of an
abusive marriage.["] She stated that she also has a cast on her leg since an
automobile accident in 1964 at age 16. She also has hearing problems, she is deaf
in one ear and her right ear is now sore.

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AR 254.

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Her current medications were Lexapro,5 Lipitor,6 Enalapril,7 Hydrochlorothiazide,8 aspirin,

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Lexapro is used to treat depression and generalized anxiety disorder.
www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html (April 8, 2015).
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Lipitor (atorvastatin) is prescribed with diet, weight loss, and exercise to reduce the risk of heart disease by decreasing
the amount of fatty substances in the blood. www.nlm.nih.gov/medlineplus/druginfo/meds/a600045.html (April 8,
2015).

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Phemfilcon,9 and, in the old days, Dibenzyline.10 Plaintiff had a long history of psychiatric

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treatment and took Mellaril for many years. Plaintiff told Dr. Gauch that she had never been

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hospitalized nor attempted suicide, and that she had recently lost 180 pounds.

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Plaintiff came to the appointment dressed in a shirt, jeans, and bedroom slippers. Although

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she displayed adequate hygiene, her hair was carelessly drawn to the side using a plastic clip. Her

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purse retained its paper tag. She had good eye contact, used appropriate expressions, and was

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cooperative and pleasant.
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Plaintiff's speech was logical, coherent, and concise. Her stream of thought was within

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normal limits without indication of hallucinations or delusions. Intellectual functioning appeared

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normal. Her memory was adequate. Speech was clear and of normal volume, but rapid. Plaintiff

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had sufficient concentration for conversation.

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Plaintiff's abstract thinking was limited. For example, when asked the meaning of the
proverb "People who live in glass houses shouldn't throw stones," Plaintiff stated:

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For one thing glass is expensive, for another thing I wouldn't live in a glass house
if they gave it to me because they hurt people[s'] feelings and they are breaking
things, see that is what my husband does, he lives in a glass house and he is
constantly throwing stones, that would be the best way to describe my exhusband, he lives in a glass house because he thinks he is above everybody and he
is a restless spirit, he is constantly moving. I try to be calm and be with family. I
do know that he loves to travel and I don't, after that accident and several more
after that, you would want me to stay off the road.

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AR 257.

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Dr. Gauch diagnosed:

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Axis I:
Axis II:

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296.9 Mood disorder not otherwise specified.
799.9 Deferred

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Enalapril, an ACE inhibitor, is used with hydrochlorothiazide to reduce high blood pressure.
www.nlm.nih.gov/medlineplus/druginfo/meds/a601047.html (April 8, 2015).
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Hydrochlorothiazide is used alone, or in combination with other medications, to treat high blood pressure. It is a
diuretic that treats edema caused by other medications. www.nlm.nih.gov/medlineplus/druginfo/meds/a682571.html
(April 8, 2015).
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Phemfilcon is a material used in the manufacture of certain soft contact lenses.
www.ncbi.nlm.nih.gov/pubmed/15017179 (April 8, 2015).
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Dibenzaline (Phenoxybenzamine) is used to treat high blood pressure.
www.nlm.nih.gov/medlineplus/druginfo/meds/a682059.html (April 8, 2015).

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Axis III:
Axis IV:
Axis V:

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AR 258.

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The doctor noted that Plaintiff's symptoms and mood disorder were mild, and that there was

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fair likelihood of improvement within twelve months. She opined that Plaintiff had good ability to

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Status-post hysterectomy, diabetes type II
Unemployed, financial stressors
Current GAF 55

understand and remember very short and detailed instructions, and to interact with co-workers; fair

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ability to understand and remember detailed instructions, to maintain concentration and attention, to
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accept instructions from a supervisor and respond appropriately, and to deal with changes in the

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work setting; and poor ability to sustain an ordinary routine without special supervision, and to

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complete a normal workday and work week without interruptions influenced by her mood disorder.

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Because of her mood disorder, Plaintiff also had fair likelihood of emotionally deteriorating in the

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workplace. She was not capable of managing her funds.

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When Plaintiff began receiving routine care at the Family Health Center at Community

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Medical Center on September 3, 2010, she had not taken any medications since January 2010. Her
blood pressure was uncontrolled; the batteries in her blood glucose monitor were dead. When

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Plaintiff returned on December 10, 2010, Dr. Vang noted that Plaintiff had not taken her medications

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for over one year.

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Agency physician H. Amado, M.D., completed the psychiatric review technique on October
14, 2010. Dr. Amado characterized Plaintiff as having affective disorders and anxiety-related

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disorders, with co-existing physical impairments. Her affective disorder did not fit the existing
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categories set forth on the form, diagnosed as either bipolar affective disorder or, per the consultative

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examiner, mood disorder not otherwise specified. Plaintiff's diagnosis of anxiety not otherwise

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specified had been established in the April 2008 hearing decision. Dr. Amado opined that Plaintiff

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had mild restriction of activities of daily living and in maintaining social functioning; moderate

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limitations in maintaining concentration, persistence, or pace; and no repeated episodes of
decompensation. He noted:
After reviewing the evidence on file, would suggest [mental residual functional
capacity] for unskilled work activity with physical issues to the side, applying
Chavez AR and thereby adopting the ALJ['s] decision of 4/08 with no apparent
material changes in circumstances noted. The psych[iatric consulting examiner]
diagnosed a mood disorder as opposed to Anxiety NOS per ALJ, but the latter had
been aware of the mood swings reported, not a newly discovered impairment
since the time of ALJ decision in 4/08. The current [consulting examiner] offered
an adverse [medical source statement] that is not given great weight—Chavez AR
aside for the moment—as it seems disproportionately restrictive compared to the
MSE findings and functional information on file. Mental allegations are partially
supported.

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AR 277.

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Dr. Amado opined that Plaintiff was moderately limited in the ability to carry out detailed

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instructions; to maintain attention and concentration for extended periods; to perform activities
within a schedule, maintain regular attendance, and be punctual within customary tolerances; to
work in coordination with or proximity to others without being distracted by them; to complete a

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normal workday and workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of rest periods; and to

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respond appropriately to changes in the work setting. He acknowledged that these impairments

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might be construed to signify that Plaintiff was unable to be employed gainfully, but that these were

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the same impairments with which the 2008 hearing decision had concluded she was able to work.

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When Plaintiff returned to the Family Health Center on September 20, 2011, she had taken

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no medications since April 2011. Plaintiff claimed that she had been off her diabetes medications
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since 2009 following weight loss. Although Plaintiff complained of burning during urination, tests

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for a urinary tract infection were negative. Blood pressure was at goal. Dr. Vang referred Plaintiff

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for dental care. On December 15, 2011, dental surgeon Kho Choy noted that tooth #31 was decayed

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to the pulp and gum line, and extracted the tooth.

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Vocational expert testimony. Vocational expert Jose Chaparro testified that Plaintiff had

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no past relevant work. For all hypothetical questions, the ALJ directed Chaparro to assume a

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hypothetical person of the same age, education, language, experience, and background as Plaintiff.

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For the first hypothetical question, the ALJ directed Chaparro to assume an individual with

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no standing or walking limitations, who could lift and carry fifty pounds occasionally and 25 pounds
frequently; could not climb or balance; had no manipulative limitations; and should not work around

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heights or heavy machinery. Chaparro opined that the hypothetical person could perform the jobs of
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bagger, retail trade, (medium, unskilled, DOT No. 920.687-014) with approximately 153,000 jobs

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nationally and 21,000 jobs in California; hand packager (medium, unskilled, DOT No. 920.587-018)

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with approximately 54,500 jobs nationally and 7000 to 7300 in California; or hospital cleaner

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(medium, unskilled, DOT No. 323.687-010) with 69,000 jobs nationally and 7200 jobs in California.

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For the second hypothetical question, the ALJ directed Chaparro to assume a hypothetical
person, who was moderately limited in the ability to carry out detailed instructions; to maintain

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attention and concentration for extended periods; to maintain regular attendance and be punctual;
complete a normal work day or work week; work in coordination and proximity to others; and

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respond appropriately to changes in work setting. The individual is not precluded from unskilled,

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entry level work on a sustained basis. Chaparro opined that the second hypothetical person could

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perform "the world of unskilled work" so that the grids would apply.

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For the third hypothetical question, the ALJ directed Chaparro to assume a hypothetical

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person who is not capable of handling her own funds; has fair ability to understand and remember
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detailed instructions, to maintain attention and concentration, to accept instruction from supervisors,

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and to deal with various changes; has poor ability to sustain normal routine without supervision, and

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to complete a regular workday or workweek; has good ability to understand, remember and carry out

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short and simple instructions; and has a fair likelihood of emotional deterioration in the work

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environment. Chaparro opined that no jobs would be available for the third hypothetical person.
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For the fourth hypothetical question, the ALJ directed Chaparro to assume a hypothetical

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person, who could lift and carry 20 pounds; could sit twenty minutes at a time; could walk two hours

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at a time; concentrate twenty minutes at a time; and needed one unscheduled one-hour break per day.

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According to Chaparro, no work would be available for the fourth hypothetical person.

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III.

Discussion

A.

Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner’s decision to

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deny benefits under the Act. In reviewing findings of fact with respect to such determinations, a

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court must determine whether substantial evidence supports the Commissioner’s decision. 42 U.S.C.

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§ 405(g). Substantial evidence means “more than a mere scintilla” (Richardson v. Perales, 402 U.S.

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389, 402 (1971)), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.

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10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be considered,

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weighing both the evidence that supports and the evidence that detracts from the Commissioner’s
decision. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making

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findings, the Commissioner must apply the proper legal standards. See, e.g., Burkhart v. Bowen, 856

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F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the ALJ’s determination that the claimant

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is not disabled if the ALJ applied the proper legal standards and the ALJ’s findings are supported by

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substantial evidence. See Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510
(9th Cir. 1987).

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B.

Legal Standards

To qualify for benefits, a claimant must establish that he or she is unable to engage in

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substantial gainful activity because of a medically determinable physical or mental impairment

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which has lasted or can be expected to last for a continuous period of not less than twelve months.

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See 42 U.S.C. § 423(d)(2)(A); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). A claimant
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must demonstrate a physical or mental impairment of such severity that he or she is not only unable

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to do his or her previous work, but cannot, considering age, education, and work experience, engage

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in any other substantial gainful work existing in the national economy. Id.

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To encourage uniformity in decision making, the Commissioner has promulgated regulations
prescribing a five-step sequential process for evaluating an alleged disability. 20 C.F.R. §§
404.1520; 416.920. The process requires consideration of the following questions:

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Step one:
Is the claimant engaging in substantial gainful activity? If so, the
claimant is found not disabled. If not, proceed to step two.
Step two:
Does the claimant have a “severe” impairment? If so, proceed to
step three. If not, then a finding of not disabled is appropriate.

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Step three:
Does the claimant’s impairment or combination of impairments
meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so,
the claimant is automatically determined disabled. If not, proceed to step four.
Step four:
Is the claimant capable of performing his past work? If so, the
claimant is not disabled. If not, proceed to step five.

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Step five:
Does the claimant have the residual functional capacity to perform
any other work? If so, the claimant is not disabled. If not, the claimant is
disabled.

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Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995). If a claimant is found "disabled" or "not

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disabled" at any step, the remaining steps need not be addressed. Tackett, 180 F.3d at 1098.

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At steps one through four, the claimant bears the burden of proof, subject to the presumed
non-adversarial nature of Social Security hearings and the Commissioner's affirmative duty to assist

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claimants in developing the record whether or not they are represented by counsel. Tackett, 180
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F.3d at 1098 n. 3; Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996). If the first four steps are

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adequately proven, the burden shifts to the Commissioner to prove at step five that considering the

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claimant's residual functional capacity, age, education, and work experience, he or she can perform

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other work that is available in significant numbers. Tackett, 180 F.3d at 1098; Reddick v. Chater,

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157 F.3d 715, 721 (9th Cir. 1998).
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The ALJ found that Plaintiff had not engaged in substantial gainful activity since the

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application date of March 1, 2010. Her severe impairments were anxiety disorder and knee pain.

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Neither of these impairments alone or in any combination met or medically equaled the severity of

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an impairment listed in 20 C.F.R. Part 404, Subpart P, Appx. 1 (416.920(d), 416.925, and 416.926).

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Plaintiff had the residual functional capacity to perform medium work as defined in 20 C.F.R. §

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416.967(c), except that she is limited to performing simple, repetitive tasks but can maintain

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adequate concentration, persistence, and pace for simple tasking. She is capable of dealing with
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routine changes in the work place and appropriately interacting with others. Plaintiff had no past

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relevant work. Nonetheless, considering Plaintiff's age, education, work experience, and residual

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functional capacity, she could perform other jobs that exist in significant numbers in the national

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economy.

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C.

Plaintiff's Credibility

Remembering Plaintiff's consistent lack of credibility before analyzing her substantive claims

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is imperative in this case. Citing her dismal work history, history of unreported income, and a "very
wide range of activities of daily living " that were inconsistent with her claims of disability, the ALJ

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found Plaintiff's credibility to be "quite poor." AR 27. His assessment was consistent with Dr.

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Wagner's observation that Plaintiff was a poor historian, as illustrated by multiple representations

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that could not be documented or were demonstrably untrue, and with Ms. Pritchett's representation

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of her mother as a hypochondriac who would feign illness to avoid challenging or undesirable

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situations.
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When weighing a claimant=s credibility, the ALJ may consider the claimant=s reputation for

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truthfulness, inconsistencies in claimant=s testimony or between her testimony and conduct,

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claimant=s daily activities, claimant=s work record, and testimony from physicians and third parties

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about the nature, severity and effect of claimant=s claimed symptoms. Light v. Social Security

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Admin., 119 F.3d 789, 792 (9th Cir. 1997). The ALJ may consider A(1) ordinary techniques of
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credibility evaluation, such as claimant=s reputation for lying, prior inconsistent statements

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concerning the symptoms, and other testimony by the claimant that appears less than candid; (2)

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unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of

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treatment; and (3) the claimant=s daily activities.@ Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th

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Cir. 2008), citing Smolen, 80 F.3d at 1273. If the ALJ=s finding is supported by substantial evidence,
the Court may not second-guess his or her decision. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir.

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2002).
Reviewing a cold record, the Court cannot be certain whether Plaintiff's many

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misrepresentations and exaggerations are attempts to manipulate the outcome of her disability claim

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or symptoms of the mental impairment. Resolving that question is not required. Medical treatment

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necessarily relies on the patient=s account of his or her physical or mental condition, specific

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symptoms, effects of medications and other treatment, and such. Although Plaintiff certainly

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possesses multiple serious impairments, her medical records are replete with inconsistencies, patent
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exaggerations, and questionable representations that complicate a fact finder=s attempts to identify

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the truth, especially within the limits of an administrative proceeding such as one evaluating a

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claimant=s application for disability benefits. As the ALJ concluded, the opinions of Plaintiff=s

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physicians must be carefully evaluated in light of Plaintiff=s limited credibility.

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D.

Doctors' Opinions and the Presumption of Non-Disability

Since Dr. Amado was a non-examining physician, Plaintiff contends that the ALJ erred in

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rejecting the opinion of Dr. Gauch, who examined Plaintiff. Pointing out that Plaintiff totally
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ignores the presumption of non-disability that applies in this case, the Commissioner responds that

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the ALJ appropriately applied Dr. Amado's opinion in the course of determining whether Plaintiff

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established changed circumstances. The Court agrees with the Commissioner. When an applicant

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has one or more previous denials of applications for disability benefits, as Plaintiff has in this case,

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he or she must overcome a presumption of non-disability.
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The principles of res judicata apply to administrative decisions, although the doctrine is less

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rigidly applied to administrative proceedings than in court. Chavez v. Bowen, 844 F.2d 691, 693 (9th

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Cir. 1988); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). Social Security Ruling (ASSR@)

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96-4(9), adopting Chavez, applies to cases involving a subsequent disability claim with an

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unadjudicated period arising under the same title of the Social Security Act as a prior claim in which

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there has been a final administrative decision that the claimant is not disabled. A previous final

7
determination of non-disability creates a presumption of continuing non-disability in the
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unadjudicated period. Lester, 81 F.3d at 827.
The presumption may be overcome by a showing of changed circumstances, such as new and

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material changes to the claimant=s RFC, age, education, or work experience. Id. at 827-28; Chavez,

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844 F.2d at 693. In evaluating the new application, the ALJ must first determine whether changed

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circumstances exist that prevent a finding of continuing non-disability. Scott v. Colvin, 2014 WL

14
3797491 at * 15 (S.D.Cal. Aug. 1, 2014) (No. 13-CV-1189 W(DHB)). If changed circumstances
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exist, the prior residual functional capacity is still entitled to res judicata. Id. The ALJ must then

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determine whether new and material evidence exists that could support a finding that the plaintiff's

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residual functional capacity had changed. Id.

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"Chavez explicitly states that a claimant must prove 'changed circumstances' indicating
greater disability." Bose v. Astrue, 2011 WL 1211601 at * 9 (D.Ariz. Mar. 31, 2011) (No. CV 0902257-PHX-MHM). Thus, Plaintiff needed to prove both changed circumstances and that those

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changes resulted in greater disability. Id. at *10. Plaintiff does not argue, however, that the Dr.
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Gauch's opinion supported a finding of either changed circumstances or greater disability. In fact, as

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the Commissioner points out, Plaintiff does not address the presumption of non-disability in any

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way.

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The ALJ began his analysis by stating: "The Disability Determination Service psychiatric
consultant, Dr. Amado, imposed limits that would likely preclude substantial gainful activity, but as
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noted by the Disability Determination Service, there is no material change in the claimant's

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psychiatric condition from the April 2008 Administrative Law Judge decision. AR 26 (citations to

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record omitted).11 The ALJ added that, in any event, the Disability Determination Service

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evaluators concluded that Plaintiff remained capable of unskilled, entry-level employment despite

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various continued limitations.

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Since Dr. Gauch did not address whether Plaintiff's circumstances had changed, her opinion

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had little direct relevance to the changed-circumstances analysis. Because Plaintiff failed to
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establish changed circumstances sufficient to overcome the presumption of non-disability, neither

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the ALJ nor this Court need examine her opinion of Plaintiff's limitations or the vocational

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examiner's opinion of the employability of a person with Plaintiff's limitations. Without changed

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circumstances, the Court must presume non-disability.

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D.

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Ms. Pritchett's Third-Party Opinion

Plaintiff contends that the ALJ erred in giving little weight to the opinion of her daughter,

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Ms. Pritchett. In the absence of changed circumstances, Ms. Pritchett's report of her mother's
functioning has little relevance. In any event, the ALJ adequately explained his reasons for giving
substantial weight to some portions of Ms. Pritchett's report and little weight to others.
ALay testimony as to a claimant=s symptoms is competent evidence which the Secretary must

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take into account, unless he ultimately determines to disregard such testimony, in which case >he

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must give reasons that are germane to each witness.=@ Nguyen v. Chater, 100 F.3d 1462, 1467 (9th

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11

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The Court is puzzled by the ALJ's repeated statements that Chavez does not apply directly to Title XVI claims. That
the presumption of nondisability applies in successive Title XVI cases is settled law. Pursuant to Taylor v. Heckler, 765
F.2d 872, 875 (9th Cir. 1985), "[w]hen a claimant's application for SSI benefits is denied and the claimant does not
appeal, the decision denying benefits becomes binding on all parties and creates a presumption of continuing
nondisability." Cabe v. Barnhart, 168 Fed.Appx. 180, 181 (9th Cir. 2006). To prevail, "in a subsequent application for
SSI based on the same disability, the claimant 'must prove 'changed circumstances' indicating a greater disability." Id.
(quoting Chavez, 844 F.2d at 693). "Because [the claimant] applied for SSI on May 8, 1998, and was denied, under res
judicata, the ALJ must respect the decision of previous courts unless there are 'changed circumstances' since the last
request for SSI." Winters v. Barnhart, 2003 WL 22384784 at * 5 (N.D. Cal. Oct. 15, 2003) (No. C 02-5171 SI) (citing
Chavez). See also, for example, Fenton v. Comm'r of Soc. Sec., 2014 WL 3891640 at * 4 (D. Ore. August 6, 2014) (No.
3:13-cv-01455-HZ); Chunglo-Stewart v. Colvin, 2014 WL 3846121 at * 4 (W.D. Wash. August 5, 2014) (No. C13-1872JCC); McAfee v. Colvin, 2013 WL 4008746 at * 1 (C.D. Cal. August 5, 2013) (ED CV 12-01630-VBK); Ingram v.
Astrue, 2010 WL 4392796 at *1 (E.D. Cal. Oct. 29, 2010) (No. 1:08-cv-2829-GGH); Moua v. Astrue, 2010 WL 1340853
at * 4 (E.D. Cal. March 31, 2010) (No. 1:08-cv-01941-DAD); Olivas v. Astrue, 2009 WL 2163522 at * 2 (C.D. Cal. July
16, 2009) (No. SACV 08-01085-MLG).

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1

Cir. 1996), quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). Friends and family

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members who are in a position to observe the claimant=s symptoms and daily activities are

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competent to testify about their observations of the claimant=s condition. Dodrill, 12 F.3d at 918-19.

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An ALJ=s disregard of the testimony of friends and family members violates the regulations, which

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provide for consideration of the observations of non-medical sources regarding the effects of the
claimant=s impairments on his ability to work. Id., citing 20 C.F.R. ' 404.1513(e)(2).12 See also
Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). When a claimant alleges symptoms that are
not supported by medical evidence in the record, the agency directs the adjudicator to obtain

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information about those symptoms from third parties likely to have such knowledge. SSR 88-13.

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The ALJ must give Afull consideration@ to such testimony. Id.

12
13

The ALJ gave significant weight to Ms. Pritchett's detailed statements regarding Plaintiff's
activities of daily living, but rejected Ms. Pritchett's statements regarding Plaintiff's physical

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functions as (1) vague and unquantifiable, and (2) inconsistent with Dr. Wagner's findings and
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conclusions. He was not required to do more.

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III.

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The Court finds that the ALJ applied appropriate legal standards and that substantial

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evidence supported the ALJ’s determination that Plaintiff was not disabled. Accordingly, the Court

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DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security.

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Conclusion and Order

The Clerk of Court is DIRECTED to enter judgment in favor of the Commissioner and against

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Plaintiff.
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IT IS SO ORDERED.
Dated:

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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April 15, 2015

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The relevant section is now designated 20 C.F.R. ' 1513 (d)(4).

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