Calvento v. Commissioner of Social Security

Filing 26

ORDER signed by Magistrate Judge Gregory G. Hollows on 09/02/09 DENYING 21 Motion for Summary Judgment CASE CLOSED; GRANTNG 25 Cross- Motion for Summary Judgment. Judgment entered for the Commissioner. CASE CLOSED. (Streeter, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Defendant. 16 17 18 19 20 21 22 23 24 25 26 / Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), and Disabled Widow's Benefits. For the reasons that follow, plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner. BACKGROUND Plaintiff, born March 15, 1934, first applied on December 7, 1983 for disability benefits. Plaintiff alleged she was unable to work due to reaction to chemical exposure, anxiety and depression. (Tr. at 278.) She applied for Disabled Widow's Benefits on May 9, 1984. (Tr. 1 MICHAEL J. ASTRUE, Commissioner of Social Security, ORDER vs. LINA CALVENTO, Plaintiff, No. CIV S-08-0678 GGH IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

at 152.) These applications were denied on March 28, 1987. (Id. at 277.) She then filed another application for SSI in October, 1989, and an application for disabled widow's benefits on January 20, 1993. (Id. at 277.) The SSI application was approved, and the widow's benefits application was approved as of 1991, but plaintiff requested reconsideration of an earlier onset date for that application. (Id. at 277-78.) The Agency then found an established onset date of October 1, 1989. Plaintiff filed a request for an earlier onset date of 1979. (Id. at 278.) This request was denied, with a finding that plaintiff was not disabled from March 29, 1987 through October 1, 1989. (Id. at 26.) The case was remanded by the district court and after a hearing, the ALJ again found that plaintiff was not disabled during the aforementioned dates. (Id. at 277285.) In a decision dated May 23, 2005, ALJ Ariel Sotolongo made the following findings:1

Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment. . . ." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 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. 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. 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. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 2

1

1 2 3 4 5

1.

The claimant meets all of the nondisability requirements for Disabled Widow's Insurance Benefits set forth in Section 202(e) of the Social Security Act (with the exceptions noted in 20 CFR § 404.335(e)). The claimant's prescribed period begins April 11, 1984 and ends March 31, 1991. The claimant has not engaged in substantial gainful activity since the alleged onset of disability. The claimant's mild degenerative disc disease; possible allergic reaction; generalized anxiety disorder with depressive features are considered "severe" based on the requirements in the Regulations 20 CFR § 404.1520(c). These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4. The claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision. The claimant had the following residual functional capacity during the period at issue, March 29, 1987 to October 1, 1989: the claimant is able to lift/carry 50 pounds occasionally, 25 pounds frequently, and stand, walk or sit for 6 out of 8 hours a day. She is able to climb, balance, kneel, crawl, stoop and crouch frequently. She should avoid concentrated exposure to fumes, dust, gases, and other lung irritants. She is able to perform work that is simple and unskilled (not involving complex or detailed instructions). The claimant's past relevant work as a restaurant cashier, DOT 311.472-010, light, unskilled, SVP 2 did not require the performance of work-related activities precluded by her residual functional capacity (20 CFR § 404.1565). The claimant's medically determinable mild degenerative disc disease; possible allergic reaction; generalized anxiety disorder with depressive features do not prevent the claimant from performing her past relevant work. The claimant was not under a "disability" as defined in the Social Security Act, at any time from March 29, 1987 to October 1, 1989 (20 CFR § 404.1520(f)).

2. 3.

6 7 8 9 10 11 12 13 14 15 16 17 7. 18 19 20 21 22 9. 23 24 25 26 8. 6. 5. 4.

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 3

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

(Tr. at 284-85.) For the current application, the time period during which plaintiff must establish disability is after March 28, 1987, the date of the decision on the prior application finding plaintiff was not disabled, due to its administrative res judicata effect, through October 1, 1989, the date plaintiff was approved for benefits. Having been denied disability on her first application, a presumption of continuing nondisability arises. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). Plaintiff "can overcome this presumption by proving `changed circumstances' indicating a greater disability." Id. (quoting Booz v. Secretary, 734 F.2d 1378, 1379-80 (9th Cir.1984)); see also Pearson v. Secretary of Health and Human Services, 780 F. Supp. 682, 686 (E.D. Cal.1991) (presumption from prior decision of continuing non-disability must be overcome by a showing of "changed circumstances" indicating a greater disability). ISSUES PRESENTED Plaintiff has raised the following issues: A. Whether the ALJ Failed to Accurately Characterize the Medical Evidence and Credit the Opinions of the Treating and Examining Physicians Without a Legitimate Basis; B. Whether the ALJ Failed to Credit Plaintiff's Statements as to the Nature and Extent of Functional Limitations as Required by Law; and C. Whether the ALJ Failed to Pose a Legally Adequate Hypothetical to the Vocational Expert. LEGAL STANDARDS The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). ANALYSIS A. The ALJ Properly Considered the Opinions of the Treating and Examining Physicians Plaintiff contends that the opinions of various treating and examining physicians were improperly rejected by the ALJ. The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).2 Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ

The regulations differentiate between opinions from "acceptable medical sources" and "other sources." See 20 C.F.R. §§ 404.1513 (a),(e); 416.913 (a), (e). For example, licensed psychologists are considered "acceptable medical sources," and social workers are considered "other sources." Id. Medical opinions from "acceptable medical sources," have the same status when assessing weight. See 20 C.F.R. §§ 404.1527 (a)(2), (d); 416.927 (a)(2), (d). No specific regulations exist for weighing opinions from "other sources." Opinions from "other sources" accordingly are given less weight than opinions from "acceptable medical sources." 5

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001),3 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831. First, plaintiff claims that the ALJ erred in rejecting Dr. Sison. In regard to this treating doctor, the ALJ explained that Dr. Sison was a pediatrician and not a psychiatrist or psychologist, and therefore she was "venturing far afield from her specialty." (Tr. at 282.) He gave her physical findings little weight, for the same reasons as previous ALJ Warner, because they were completely unsupported by the objective evidence. (Id.) Furthermore, the ALJ found that Dr. Sison's assessment of "virtually total environmental, postural, sitting, standing, lifting, carrying and other physical function restrictions due to degenerative joint disease, arthritis of hands, obesity and peripheral neuropathy" was "so obviously exaggerated, unsupported by clinical findings, contradictory to other medical records and presumabl[y] based on the claimant's own subjective complaints." (Id. at 281.) All of the aforementioned reasons are sufficiently specific and legitimate to reject this physician's opinion, and they are supported by the record. Dr. Sison treated plaintiff from 1986 to 1991. The records in the transcript are dated May 20, 1990 and later, outside of the period at issue. (Tr. at 236-53.) This pediatrician4

The factors include: (1) length of the treatment relationship; (2) frequency of examination; (3) nature and extent of the treatment relationship; (4) supportability of diagnosis; (5) consistency; (6) specialization. 20 C.F.R. § 404.1527
4

3

(Tr. at 364.) 6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

diagnosed generalized anxiety disorder, severe sensitivity after exposure to certain inhaled noxious toxic chemicals, ovarian cysts, status post Bell's Palsy, status post hysterectormy, status post viral neuritis affecting cranial nerves, degenerative joint disease, arteriosclerotic heart disease, and hiatal hernia. (Id. at 245.) In regard to functional limitations, Dr. Sison opined that plaintiff had a fair ability to deal with the public, function independently, maintain attention and concentration, understand, remember and carry out simple instructions, and relate predictably in social situations. (Id. at 239-40.) She had poor or no ability to follow work rules, relate to coworkers, use judgment, interact with supervisors, deal with work stresses, understand, remember and carry out complex or detailed instructions, behave in an emotionally stable manner, and demonstrate reliability. (Id.) Plaintiff argues first that Dr. Sison had clinical findings and objective medical evidence to support her opinions, and second that the testifying medical expert opined that her specialty in pediatrics would change his opinion about her if there was a huge discrepancy between her records and others, but conceded that here there was no discrepancy between Dr. Sison's descriptions and what was described longitudinally. (Id. at 365.) Therefore, plaintiff argues, the ALJ mischaracterized this testimony by noting that the medical expert disagreed with Sison, implying that it was because of Sison's specialty. (Pl.'s Mot., dkt. #21 at 36.) Turning to the second objection first, Dr. Anderson, the medical expert, did testify as plaintiff describes, and the ALJ did mischaracterize Dr. Anderson's testimony on this one point. (Id. at 282.) However, the ALJ also clearly stated to Dr. Anderson, and in his findings, that he had to take into account that Dr. Sison was not a psychiatrist. (Id. at 364, 282.) The ALJ is encouraged to "give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. § 404.1527(d)(5). In certain situations, a treating doctor's opinion may carry little weight, including where the opinion is on a matter not related to her area of specialty. Holohan v. Massanari, 246 F.3d 1195, 1202 n. 2 (9th Cir. 2001). Plaintiff's citation to Sprague v. Bowen, 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

812 F.2d 1226, 1232 (9th Cir. 1987), for the proposition that a long time treating physician is qualified to render an opinion on his patient's mental state, is distinguishable. Here, there is almost no supporting objective evidence of mental problems serious enough to interfere with work. Additionally, there is no evidence that Dr. Sison prescribed any medication for plaintiff's mental ailments, raising the inference that plaintiff's condition was not that severe. Dr. Anderson testified that during the time period at issue, the diagnosis was uniformly described as generalized anxiety or generalized anxiety disorder with depressive features. (Id. at 360.) The only major exhibit by Dr. Sison is the May 20, 1990 report described above which Dr. Anderson noted was outside the time period. (Id. at 361.) Nevertheless, Dr. Sison had described the highest GAF in the past year, which would include the time period at issue, of 70, with a current GAF score of 60 on May 30, 1990, eight months after the period at issue ended.5 (Id. at 362, 252.) As defendant points out, this mild score is inconsistent with Dr. Sison's findings of poor or no ability to handle numerous job functions. (Id. at 239-41.) Dr. Anderson noted that there was very little in the record by Dr. Sison during 1987 or 1988, but of those notes, there was no reference to anxiety or depression. (Id. at 362.) Dr. Anderson's reference to the dearth of records by Dr. Sison pertains to plaintiff's first objection, that Dr. Sison had clinical findings to support her opinions. The court notes that the record consists of only three reports by this doctor, despite the assertion that treatment occurred over a four year period. These records are dated May 25, 1990, May 30, 1990, and April 23, 1991, all of which post-date the period at issue. Although these records include Dr. Sison's clinical findings to support her assessment, there are no progress reports,

GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.1994) ("DSM IV"). According to the DSM IV, A GAF of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." DSM IV at 32. 8

5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

treatment records, mental assessments or mental status exams attached to these assessments. The only discussion of plaintiff's past mental state is Dr. Sison's notation that plaintiff was in weekly or bi-weekly supportive therapy depending on her needs. No dates are given for this therapy. As of the date of the report, May 25, 1990, it was noted that plaintiff was better after years of therapy, and less anxious. She was being seen only once per month or as needed at this time due to her progress.6 (Id. at 245.) In general, medical reports should not be disregarded solely because they are rendered retrospectively. Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). In fact, retrospective medical reports are relevant to a prior period of disability. Id. Considerations to be made in whether to give such a report less weight include: whether the report specifically assessed plaintiff's functional capacity prior to the insured's expiration date, whether the medical reports created during the time period at issue made only limited references to limitations in functional capacity; whether intervening circumstances such as a car accident exacerbated the medical condition; and whether the retrospective opinion conflicted with the same physician's earlier opinion. Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995). Historically, the courts have recognized conflicting medical evidence, the absence of regular medical treatment during the alleged period of disability, and the lack of medical support for a doctor's report based substantially on a claimant's subjective complaints as specific, legitimate reasons for disregarding the treating physician's opinion. Flaten, 44 F.3d at 1463-64; Fair v. Bowen, 885 F.2d 597, 604 (9th Cir.1989). The ALJ is not required to accept the opinion of a treating or examining physician if that opinion is brief, conclusory and inadequately supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Morehead v. Astrue, 2008 WL 3891464, *5 (E.D. Wash. 2008). Furthermore, it is well established that retrospective opinions are even less persuasive in the specialty of mental health. "The opinion of a psychiatrist who examines the Curiously, Dr. Anderson testified that a later report by Dr. Sison dated about a year after May 25, 1990, indicated that plaintiff's condition had worsened. (Id. at 362.) 9
6

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

claimant after the expiration of his disability insured status, however, is entitled to less weight than the opinion of a psychiatrist who completed a contemporaneous exam." Macri v. Chater, 93 F.3d 540, 545 (9th Cir. 1996); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) ("After-the-fact psychiatric diagnoses are notoriously unreliable"); Weetman v. Sullivan, 877 F.2d 20, 23 (9th Cir.1989) (new medical report following adverse administrative decision denying benefits carries little, if any, weight) (citing Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir.1985)). Here, Dr. Sison's assessment of plaintiff's residual functional capacity occurred eight months after the end of the disability period at issue. There are no records assessing plaintiff's functioning during the period at issue. In fact, there are no records from the pertinent time period in the transcript at all. As Dr. Anderson noted at the hearing, Dr. Sison's report dated in 1991 indicates that plaintiff is considerably more disabled than she was described in Sison's report from a year earlier. (Id. at 362.) Furthermore, Dr. Sison's retrospective reports relate to plaintiff's mental health and are therefore even less persuasive.7 Plaintiff next claims that the ALJ ignored Dr. Pilchman's assessment of plaintiff's impairment as being 25 percent. This psychiatrist conducted one exam on May 22, 1986 for purposes of a worker's compensation claim, and diagnosed generalized anxiety disorder with depressive features. (Id. at 169, 189.) This exam was outside the pertinent time period which began on March 29, 1987. Although Dr. Pilchman opined that plaintiff would have difficulty if she attempted to work, his report was limited to that previous time period. Plaintiff was formerly

As analyzed in the next section, plaintiff's credibility is also at issue, and for this additional reason, the ALJ appropriately rejected portions of the mental health opinions. "An ALJ may reject a treating physician's opinion if it is based `to a large extent' on a claimant's selfreports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008), citing Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) (citing Fair V. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)). Furthermore, "the ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence." Id. Here, it is reasonable to assume that Dr. Sison's records were based on plaintiff's subjective complaints. 10

7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

found not disabled for this time period. Even if this report is considered, it found that plaintiff's psychiatric incapacity was reduced by 25 percent, and was between slight and moderate but closer to slight. (Id. at 188.) As to the ALJ's failure to mention this apportionment, since the ALJ did not reject this doctor's opinion, he was not required to articulate reasons to explain his decision. "It is not necessary to agree with everything an expert witness says in order to hold that his testimony contains `substantial evidence.'" Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989), citing Russell v. Bowen, 856 F.2d 81, 83 (9th Cir.1988) (citation omitted). Plaintiff next asserts that the ALJ failed to address a GAF score of 358 as assigned by Hollywood Mental Health Services. This score was assessed between September 23, 1986 and February 25, 1987, and is therefore relevant only to the previous time period which has already been adjudicated. (Id. at 199.) The higher GAF score of 70 was assessed during the relevant period at issue here. Even if this low GAF score is considered, however, the ALJ reasonably could have relied on the higher GAF scores found by other examining sources. The Ninth Circuit has not prescribed a duty for the ALJ to address GAF scores. The court does not disagree with the basic premise that a low GAF score does not alone determine disability, but is a piece of evidence to be considered with the rest of the record. Olds v. Astrue, 2008 WL 339757, at *4 (D. Kan. 2008) (citation omitted). Yet, the GAF scale does not have a direct correlation to the severity requirements in the listings of mental disorders. 65 Fed. Reg. 50746, 50764-65 (2000). Plaintiff also claims that the ALJ failed to discuss Dr. Wendel's conclusion after testing that plaintiff's condition was suggestive of brain damage or dysfunction, and probably a decline in reasoning ability. In this regard, the ALJ described Dr. Wendel's assessment, stating According to the DSM IV, A GAF of 31-40 indicates "some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)." DSM IV at 34. 11
8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

that plaintiff was found to be in the average range of intelligence, with evidence of probable decline in cognitive functioning. "She was mildly depressed, was rather anxious and had a negative self-concept." (Id. at 282.) The ALJ also noted later in his findings that the testifying medical expert considered Dr. Wendel's report along with others, and concluded that although plaintiff had a generalized anxiety disorder with depressive features, she did not meet or equal the listings. All of her other limitations were mild, except for a limitation from doing complex detailed work. (Id. at 282.) Dr. Wendel's report also pre-dates the period at issue here. This psychologist examined plaintiff on September 19, 1986, six months prior to the start of the instant disability period. In any event, he predicted that the finding of evidence of brain damage or dysfunction would likely affect plaintiff's reasoning ability and ability to concentrate and remember. He also noted, however, that plaintiff had an I.Q. of 100, and with vocational rehabilitation and counseling, plaintiff could eventually return to work. (Id. at 191-94.) It was not critical that the ALJ failed to mention these aspects of Dr. Wendel's report. The ALJ is free to rely on whatever evidence he chooses, even though reliance on other evidence would have caused him to reach the opposite conclusion. Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). Furthermore, an ALJ may properly rely upon only selected portions of a medical opinion while rejecting other parts. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ's supported reliance on selected portions of conflicting opinion constitutes substantial evidence). However, such selective reliance must be consistent with the medical record as a whole. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (ALJ cannot reject portion of medical report that is clearly reliable). Here, the ALJ's reliance on only portions of Dr. Wendel's report was consistent with the remainder of the record. The only other record of a brain abnormality was a CT scan of the head on December 9, 1987, which indicated "minimal cortical atrophy and small focal atrophy," and an EEG which tested brain stem auditory evoked response on June 17, 1987, and which indicated 12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

abnormal brainstem evoked response, suggesting an intrinsic brainstem lesion. (Id. at 213, 331.) There is no other evidence of brain damage or similar dysfunction in the record, and no treating physician analyzed these diagnostic studies. Plaintiff has presented no evidence, other than Dr. Wendel's report, indicating the significance of these test results or even mentioning them, despite office visits during this time period, which indicates that they are not too significant. (Id. at 21925.) Furthermore, Dr. Wendel's proposed limitations in reasoning ability and ability to concentrate and remember are consistent with the ALJ's limitations which restricted her to simple unskilled work and found she could do her past work as cashier. These limitations more than take into account any limitations found by Dr. Wendel in regard to brain dysfunction. Moreover, the testifying medical expert had these records before him and nevertheless opined that plaintiff could do simple unskilled work. Plaintiff contends that the ALJ also improperly rejected the opinion of Dr. Landis, plaintiff's treating psychologist, who thought that plaintiff had had major depression since he first started treating plaintiff in 1980. (Tr. at 134.) Plaintiff argues that Dr. Landis' retrospective opinion is relevant; however, plaintiff concedes that Dr. Landis did not treat plaintiff between 1987 and 1989, but only prior to and after this time period. (Tr. at 58, 59.) As noted supra in this section, although such opinions may be relevant, they are less reliable where they concern plaintiff's mental health. Macri v. Chater, 93 F.3d at 545. It is true that Dr. Anderson, the testifying medical expert, did not examine plaintiff; however, his opinion may constitute substantial evidence. "Opinions of a nonexamining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it. The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir.1999) (citations omitted). Furthermore, as pointed out by defendant, SSR 83-20 recommends that a medical expert be called where the 13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

onset date must be determined. Here, the ALJ set forth an appropriate summary and findings. For instance, he summarized Dr. Anderson's testimony who stated after reviewing records for the pertinent time period, that both Dr. Wendel's and Dr. Pilchman's records were consistent in describing plaintiff's condition as slight to moderate. (Id. at 363, 282.) The expert noted that there were very few records for this period, and did acknowledge the GAF of 35 assessed by Hollywood Mental Health during this time. (Id. at 362, 365.) Yet, he explained why he relied on the other reports which were consistent in describing plaintiff's condition as not this severe: They gave her a G.A.F. of 35, which suggests that they found her to be considerably more anxious and depressed and more dysfunctional than the subsequent evaluator three weeks later, that is in the psychological CE. Interestingly enough, that was so [sic] co-signed by a licensed psychiatrist. The exam itself would've been by a psychological intern. So, in summary, I think there's evidence that indeed there were symptoms of principally of anxiety with secondary depressive symptomatology, evaluated both under 12.06 and 12.04. I don't think either separately or together so would she meet either the listings based on the evidence in the records. (Id. at 365.) When the transcript is reviewed for the pertinent time period, it is clear that plaintiff does not have much in the way of treatment during this time period. There is a real dearth of treatment records, especially in regard to mental health, between March 29, 1987 and October 1, 1989.9 The Hollywood Mental Health treatment records consist of only two or three visits, for example, as conceded by plaintiff. (Id. at 199-213, 384-85.) Even when the records surrounding the pertinent time period are considered, as outlined above, they for the most part \\\\\ \\\\\ Plaintiff did receive treatment at the Department of Health Services during the relevant time period; however, it appears to be mostly for physical issues. (Id. at 214-35.) 14
9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

support the ALJ's decision and constitute substantial evidence.10 B. Credibility Analysis Was Proper Plaintiff contends that the ALJ rejected her credibility without clear and convincing reasons. The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ who used the proper process and provided proper reasons. See, e.g., Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief"). In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. July 8, 2009); Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir.1991) (en banc). The ALJ may not find subjective complaints incredible solely because objective medical evidence does not quantify them. Bunnell at 345-46. If the record contains objective medical evidence of an impairment reasonably expected to cause pain, the ALJ then considers the nature of the alleged symptoms, including aggravating factors, medication, treatment, and functional restrictions. See Vasquez, 572 F.3d at 591. The ALJ also may consider the applicant's: (1) reputation for truthfulness or prior inconsistent statements; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) daily activities.11 Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61

Although the records discussed above were closer in time to the period at issue, it is noteworthy that a slightly older evaluation by Dr. Vargas, dated April 10, 1986, found that on examination plaintiff had no overt mental or emotional disorder. (Id. at 167.) Daily activities which consume a substantial part of an applicants day are relevant. "This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in 15
11

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity, and effect of symptoms, and inconsistencies between testimony and conduct, may also be relevant. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177, n.6 (9th Cir. 1990). Plaintiff is required to show only that her impairment "could reasonably have caused some degree of the symptom." Vasquez, 572 F.3d at 591, quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007), Smolen, 80 F.3d at 1282. Absent affirmative evidence demonstrating malingering, the reasons for rejecting applicant testimony must be specific, clear and convincing. Vasquez, 572 F.3d at 591. Plaintiff's credibility was properly questioned for the reasons pointed out by the ALJ. He first noted that her testimony was not supported by the record, as evidenced by the fact that she stopped going to mental therapy after a couple of sessions. The ALJ found it hard to believe her testimony that she stopped going after being told by other group therapy members that she was not welcome, as she could have turned to other therapy alternatives if she was truly in need of serious help.12 The ALJ also questioned plaintiff's recall of symptoms during the time period in question which was 16 to 18 years earlier, and opined that she may have been describing symptoms from a later period after 1989 for which she was previously found disabled. He concluded that based on the lack of medical evidence during this time period which would \\\\\ any way detract from her credibility as to her overall disability. One does not need to be utterly incapacitated in order to be disabled." Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quotation and citation omitted). Plaintiff claims that she was informed that she did not belong there and that there were mostly "rehab addicts and alcoholics" at the sessions. Her citation to Regennitter v. Commissioner of Soc. Sec. Admin., 166 F.3d 1294 (9th Cir. 1999), must be squared with Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989), which permits the ALJ to consider "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment." Here, plaintiff did not fully explain why she did not then seek treatment elsewhere. 16
12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

support the severity of her alleged symptoms, her subjective complaints alone were insufficient. (Id. at 283.) The record supports the ALJ's analysis. As described in the previous section, there is an utter dearth of medical records, especially mental health records, during the period at issue. The records upon which plaintiff most heavily relies, those of Dr. Sison, were properly rejected by the ALJ, and as she noted, were "obviously exaggerated, unsupported by clinical findings, contradictory to other medical records and presumabl[y] based on the claimant's own subjective complaints." (Id. at 281.) As also previously mentioned, the ALJ pointed out that plaintiff, by her own admission, visited Hollywood Mental Health only two or three times during the period in question, raising the question of how severe could her mental impairment be. (Id. at 199-213, 384-85.) Dr. Vargas also questioned the severity of plaintiff's symptoms, and considered the possibility of "somatic delusions." (Id. at 167.) He found that as of April 10, 1986, plaintiff's symptoms "seem to be more of a nuisance than a source of major functional impairment on a continuing basis." (Id. at 168.) Plaintiff also points to her numerous physical impairments to support her credibility, including degenerative joint disease, obesity, angina, pelvic mass (for which she was too fearful to get surgery), chemical/environmental sensitivities, hypertension, angina, and possible brain damage. The medical records for the period from March 29, 1987 to October 1, 1989, do not support the degree of severity alleged by plaintiff, however. Records from LACUSC Medical Center, dated February 15, 1988, reveal possible TIAs, severe allergic reaction, pain all over, possibly old Bells Palsy, inability to elevate eyebrow and slight mouth droop. Apparently these problems were not thought to be too serious, as plaintiff was advised only to return on April 27, 1988. (Id. at 103.) Records from the Los Angeles County Department of Health Services indicate that on November 29, 1987, plaintiff was obese at 187 pounds, and complained of chest pain. It 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

was noted that nitroglycerin relieved pain. "Poor compliance" was noted, as was "resume all meds!!" (Id. at 113.) (emphasis in original). As of November 9, 1989, shortly after the period at issue ended, plaintiff's only diagnoses were hypertension, history of angina, musculoskeletal pain, and pelvic mass. (Id. at 112.) Records provided by the Department of Health Services indicated complaints of chest pain and arthritis. She had stopped taking medications. (Id. at 215.) On October 19, 1987, plaintiff complained of feeling dizzy. (Id. at 228.) On March 30, 1988, it was again noted that plaintiff had not been taking her prescription medications. (Id. at 219.) On August 3, 1988, plaintiff had chest pain and dizziness, and obesity13 was noted. (Id. at 216.) These are not the types of problems which would serve as objective evidence sufficient to support the degree of symptoms alleged by plaintiff. To the extent that plaintiff had a legitimate allergy and/or chemical or environmental sensitivity, the ALJ took this problem into account in assigning her to work which precluded such exposure. Further, although plaintiff claims her blood pressure was consistently elevated during this time period, it might have been because plaintiff was not consistently taking her medication. A condition which can be controlled or corrected by medication is not disabling. See Montijo v. Secretary of HHS, 729 F.2d 599, 600 (9th Cir.1984) (Addison's Disease controlled with medications deemed not disabling); Odle v. Heckler, 707 F.2d 439, 440 (9th Cir.1983) (rib condition controlled with antibiotics not considered disabling). Nor did plaintiff undergo recommended surgery to remove her pelvic mass, diagnosed since 1984, because she was scared. (Id. at 52.)

Plaintiff raises obesity, not as a separate issue, but as one of many ailments which she claims makes her subjective complaints more credible. While obesity is no longer a grounds for disability in a listing, it should be analyzed at the various steps of the sequential analysis as it affects other maladies. However, while at the administrative level, the disability finding process is non-adversarial, Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001), such is not the case at the district court level. The undersigned will not raise theories on his own, and will presume that the medical personnel did take obesity into account in determining the residual functional capacity of plaintiff. Light work as a restaurant cashier is not the type of work that would be precluded by obesity. 18

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 evidence.

Although plaintiff testified at her most recent hearing regarding her subjective complaints and her daily activities, the ALJ put that testimony in perspective by stating that "[plaintiff] appears to have testified some years ago about her condition. That testimony is on the record and that testimony is in the transcript. And I think, in my opinion, that is far more reliable than now, 15 years after the fact. I think it would be very difficult to have a person testify as to her condition 15 years ago." (Id. at 358.) The ALJ addressed plaintiff's physical problems also, noting that her degenerative disc disease was mild with no evidence of nerve root compression, motor loss, or sensory or reflex loss. (Id. at 280.) He also noted that plaintiff's allergic reactions, obesity and other functional limitations did not meet or equal the listings. (Id. at 280-81.) As discussed in the previous section, the ALJ properly rejected Dr. Sison, who also treated plaintiff for her physical ailments. (Id. at 281.) Therefore, those records have been properly discounted as exaggerated and based on plaintiff's subjective complaints. The court finds that the ALJ's credibility findings are supported by substantial

C. Hypothetical to the Vocational Expert Plaintiff's last claim is that the ALJ's hypothetical to the expert did not include the limitations imposed by the physicians whom the ALJ rejected or the limitations suggested by plaintiff's subjective testimony, and since the ALJ erred in rejecting those opinions, their limitations must be included in the hypothetical. Hypothetical questions posed to a vocational expert must include all the substantial, supported physical and mental functional limitations of the particular claimant. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir.1995); see Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir.1997). If a hypothetical does not reflect all the functional limitations, the expert's testimony as to available jobs in the national economy has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). But see Thomas v. Barnhart, 278 F.3d 19

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

947 (9th Cir. 2002) (approving hypothetical directing VE to credit specific testimony which VE had just heard); Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993) (failing to include all limitations in a hypothetical may be harmless error if the ALJ's conclusions are supported by other reliable evidence). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, substantial evidence must support the hypothetical which ultimately serves as the basis for the ALJ's determination. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).14 The first hypothetical, and the one on which the ALJ relied, limited plaintiff to light unskilled work, with ability to lift twenty pounds occasionally and ten pounds frequently. She could stand or walk for six out of eight hours. She could be exposed to dust, fumes, gases and other lung irritants on an occasional basis. (Tr. at 386.) In his findings, the ALJ changed the irritant exposure aspect of this hypothetical. He stated that "she should avoid concentrated exposure to [such irritants]." (Id. at 283.) Plaintiff's objection that this hypothetical failed to include plaintiff's sensitivity to perfume and her need to be around oxygen, is based on her own subjective testimony, which the ALJ properly rejected. See Section B supra. The first hypothetical also took into consideration plaintiff's mental impairment by limiting her to unskilled work. The job of restaurant cashier does not seem to be the kind of work which would aggravate anxiety, especially in light of the fact that it was plaintiff's past work. It is true that the hypothetical did not include any limitations assessed by Drs. Sison, Pilchman, or Wendal; however, for reasons discussed in the first section supra, the ALJ properly discounted these opinions or portions of them. Here, as the court found the ALJ's Similarly, "[t]he ALJ is not bound to accept as true the restrictions presented in a hypothetical question propounded by a claimant's counsel." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). The ALJ is free to accept them if they are supported by substantial evidence or reject them if they are not. Id. at 756-757. 20
14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

reliance on certain opinions and rejection of plaintiff's subjective testimony was proper, he was not required to include limitations reflected by that rejected evidence in his hypothetical. Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001). CONCLUSION Accordingly, IT IS ORDERED that plaintiff's Motion for Summary Judgment is denied, the Commissioner's Cross Motion for Summary Judgment is granted, and judgment is entered for the Commissioner. DATED: 09/02/09 /s/ Gregory G. Hollows GREGORY G. HOLLOWS U.S. MAGISTRATE JUDGE
GGH/076

c a lv e nto 0 6 7 8 .s s .w p d

21