Parhan v. Commissioner of Social Security

Filing 26

ORDER signed by Magistrate Judge Kendall J. Newman on 9/10/2010 ORDERING that Plaintiff's 19 motion for summary judgment or remand is DENIED. The Commissioner's 23 cross-motion for summary judgment is GRANTED. Judgment be entered in favor of the Commissioner. CASE CLOSED. (Duong, D)

(SS) Parhan v. Commissioner of Social Security

Doc. 26

1 2 3 4 5 6 7 8 9 10 11 12 13 14 Defendant. 15 16 17 18 19 20 21 22 23 24 25 26 This case was referred to the undersigned pursuant to Eastern District of California Local Rule 302(c)(15) and 28 U.S.C. § 636(c), and both parties have voluntarily consented to proceed before a United States Magistrate Judge, 28 U.S.C. § 636(c)(1); Fed. R. Civ. P. 73; Local Rule 301. (Dkt. Nos. 7, 9.) This case was reassigned to the undersigned by an order entered February 9, 2010. (Dkt. No. 24.) 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA CHAROLETTA D. PARHAN, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, / Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq. (the "Act").1 In her motion for summary judgment, plaintiff contends that the Administrative Law Judge ("ALJ") erred by: (1) rejecting the opinions of plaintiff's treating psychiatrist and the Social Security consultative examiner without a legitimate basis for doing so; (2) failing to properly evaluate and credit plaintiff's third party witness statements; (3) failing to properly evaluate the severity of plaintiff's ORDER No. 2:08-cv-02770 KJN

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headaches and vertigo; and (4) failing to properly assess plaintiff's residual functional capacity ("RFC") and thus posing a legally inadequate hypothetical to the vocational expert. (Dkt. No. 19 at 4.) The Commissioner filed a cross-motion for summary judgment. (Dkt. No. 23.) After careful consideration of the entire record, the arguments presented, and for the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment. I. BACKGROUND A. Procedural Background On February 17, 2005, plaintiff filed an application for social security disability and supplemental security income, alleging disability beginning on March 31, 2003 (Administrative Transcript ("AT") 14, 192-98.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 174-79, 182-86.) Plaintiff filed a timely request for a hearing, and the ALJ conducted a hearing on April 20, 2007 (AT 14.) Plaintiff, who was represented by counsel, testified at the hearing. (AT 60-95.) Additionally, an impartial medial expert and impartial vocational expert testified at the hearing. (AT 14.) In a decision dated June 29, 2007, the ALJ denied plaintiff's application. (AT 4559.) Plaintiff filed an appeal with the Appeals Council for the Social Security Administration. The Appeals Council, by order dated October 5, 2007, vacated the ALJ's hearing decision and remanded the case. In its remand order, the Appeals Council directed the ALJ to: (1) give further consideration to the treating source opinion and nonexamining source opinion and explain the weight given to such opinions; (2) make a finding regarding the severity of the claimant's alleged headaches and vertigo; (3) obtain additional evidence concerning the claimant's alleged mental impairments; (4) address a certain third party statement; and (5) obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base. (AT 14.) The hearing on remand was held on May 2, 2008. (AT 14-29.) Plaintiff, who was 2

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represented by an attorney, testified at the hearing. (AT 96-159.) The ALJ issued a decision on July 21, 2008, denying plaintiff benefits because she was not under a disability within the meaning of the Social Security Act.2 (AT 11-29.) Plaintiff filed a second appeal. However, the Appeals Council denied review, rendering the ALJ's July 21, 2008 decision the final decision of the Commissioner of Social Security. (AT 6-8.) Plaintiff herein seeks judicial review pursuant to 42 U.S.C. § 405(g). B. Summary of Relevant Medical History and Evidence The facts of the case are set forth in detail in the transcript of proceedings and are

Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. §§ 401 et seq. Generally speaking, SSI is paid to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both benefit structures, the term "disability" is defined, in part, as an "inability to engage in any substantial gainful activity" due to "any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920, 416.971-76; see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The Ninth Circuit Court of Appeals has summarized the sequential evaluation as follows: 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). 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. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id. 3

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briefly summarized here. Plaintiff claims disability on the basis of dizziness, headaches, anxiety, depression, panic attacks, nerve damage in elbows, and neck and back pain. Plaintiff frequently visited emergency rooms for treatment of her symptoms. A November 8, 2006 emergency room report summarized several of plaintiff's emergency room visits as follows: This is a 32-year old African-American female seen for the third time in three days for a different complaint each day. She was seen on 11/05/2006, at that time for an altered level of consciousness. Seen again on 11/07/2006 for headache and on today's date, 11/08/2006 is seen for abdominal pain and shortness of breath. The patient was actually seen in conjunction with the resident on entering through the emergency department family practice resident. Her MPI was evaluated and actually she has a cluster of being seen in the past on multiple occasions. For instance, she was seen for three days in November of 2006, seen within three days of December 30, 2005. A similar presentation in October, 2003. The cluster of emergency room visits seems to run in 2-3's, but nevertheless she currently presents for a four day history of abdominal pain, headache which she was seen for on the day prior to presentation has resolved. On exam she is quite tremulous, has difficulty swallowing and "feels as though something" is in her throat. (AT 770.) On June 20, 2005, subsequent to her application for disability benefits, plaintiff underwent a consultative psychological examination administered by Dr. Janice Nakagawa, Ph.D. (AT 487-90.) At that time, plaintiff was a 31 year old female. She was living with her two children, ages 3 and 7. (AT 488.) Plaintiff told Dr. Nakagawa that she had difficulty being around people because of bad anxiety and vertigo. (AT 487.) She also complained of headaches and sleep problems. (Id.) Dr. Nakagawa found plaintiff to be unreliable, tending to emphasize her limitations and difficulties. (Id.) Dr. Nakagawa stated that plaintiff "put forth very inconsistent effort on all testing. Impression was she was attempting to present in the worst possible light for //// //// 4

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secondary gain, i.e. malinger." (AT 489.) Because malingering3 was suspected, Dr. Nakagawa administered the Rey 15-Item Memory Test, the results of which "clearly indicated malingering." (Id.) In sum, Dr. Nakagawa stated: "She lives alone with her two young children and is able to care for them. She may have some mental health issues, but given the test data in the present assessment, the only diagnosis that could be presently offered is malingering for secondary gain." (AT 490.) Plaintiff also underwent a comprehensive orthopedic examination on July 29, 2005. (AT 491.) Plaintiff complained of neck pain, low back pain, headaches, anxiety and depression. (Id.) Dr. Ethelynda Jaojoco opined that plaintiff seemed to be suffering debilitating headaches and vertigo. Dr. Jaojoco also stated that plaintiff was able to stand and walk less than two hours and sit for less than six hours, and that plaintiff may require an assistive device such as a cane. (AT 495.) Dr. Jaojoco further opined that "[h]opefully the etiology of her problem will be determined and proper treatment initiated. With resolution of the vertigo and headaches she will likely have no restrictions." (Id.) Dr. Jaojoco concluded that plaintiff was able to lift and/or carry less than 10 pounds, and has postural limitations of no bending, stooping, crouching, climbing, kneeling, balancing, crawling and squatting. (Id.) Records also state that plaintiff had been seen by Dr. Henry Ton, M.D., a psychiatrist, for weekly visits since December 2003. (AT 868.) Plaintiff was prescribed a variety of medications for her claimed mental health problems at different times, including Lexapro, Atavan, Cymbalta, Elavil and Prozac. (See AT 510.) Plaintiff sometimes attended a mental health group focused on panic attacks. Plaintiff's Sacramento County Mental Health treatment notes report that plaintiff "remains significantly impaired," and that although her medications were somewhat helpful, her treatment records stated that she would benefit from more "Malingering is recurrent intentional feigning of physical and mental symptoms motivated by an external incentive (e.g., feigning illness to avoid work or military duty, evade criminal prosecution, or obtain financial compensation or drugs for abuse)." The Merck Manual of Diagnosis and Therapy 1737 (Merck Research Labs., 18th ed. 2006). 5
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involvement in the panic attack group. (AT 628.) In February 2007, Dr. Ton issued a treating physician's RFC report which stated that plaintiff suffers from depressed mood, hopelessness, anxiety including fears of leaving her home, and obsessive compulsive hand washing and cleaning. (AT 868.) He diagnosed plaintiff with panic disorder, obsessive compulsive disorder and major depressive disorder. (Id.) He stated that the plaintiff was not capable of traveling alone, and that her prognosis was fair to guarded. (AT 869.) He opined that plaintiff's daily activities were severely restricted because of her condition. (AT 870.) During her May 2, 2008, social security disability hearing, plaintiff testified that she had previously worked in a daycare and as a cashier at Kmart and Big Lots. She stated that she left the Big Lots job because of her anxiety and had not worked since that date. (AT 102.) Plaintiff testified that she did not vacuum, mop, clean the bathroom and rarely did laundry at home. (AT 104.) She stated that her son's father cooked meals and went grocery shopping. (Id.) She testified that her children's godmother helped to get the kids ready for school and took them to and from school. (AT 110.) Plaintiff testified that the children's godmother also sometimes prepared their meals, cleaned the house and helped plaintiff to shower. (Id.) Plaintiff testified that she did not leave the house to go to the movies, church, her children's school events, to play sports, volunteer or exercise. (AT 105-08.) Plaintiff explained that there were days when she did not go out at all, even when she needed to go somewhere, because "I just feel safer in the house." (AT 115.) Dr. Sidney Walter, medical expert, then testified. (AT 123.) He stated that plaintiff had the symptoms of anxiety hysteria, which is linked to a somatoform4 disorder. He testified that plaintiff also had a depressive syndrome, and that both of these diagnoses caused "Somatoform disorders are characterized by physical symptoms or by perceived defects in appearance. Development of the symptoms or perceived defects is unconscious and nonvolitional." The Merck Manual of Diagnosis and Therapy 1736 (Merck Research Labs., 18th ed. 2006). 6
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some impairment in her overall functioning. He concluded, however, that the severity of her symptoms did not meet the Social Security's listing criteria level set forth in 20 C.F.R., Pt. 404, Subpt. P, App.1. (AT 123.) Dr. Walter concluded "[o]verall, I feel she does have symptoms, but not so restrictive that she can not function . . .." (AT 124.) The ALJ next asked the VE the following hypothetical: Mental limitations are based on Dr. Walter's testimony. The claimant can perform simple, unskilled work. No work working in unison with others as a team. Dr. Walter testified she could work in the presence of fellow employees, the presence of the public, but no, no work as a team with the other employees.. . . Okay, the physical limitations, no heights, dangerous machinery, ladders, etcetera, due to spells of dizziness, those are to be my, my physical limitations, but why don't you restrict yourself to light jobs, identify light jobs that fit, fit that RFC. (AT 134-135.) The VE responded that plaintiff could work as a maid or a car washer. He also testified upon further examination by the ALJ and plaintiff's attorney that she would be able to perform simple assembly jobs, such as a fishing reel assembler, which was unskilled and sedentary in nature, or perhaps as a surveillance system monitor. (AT 137-55.) C. Summary of the ALJ's Findings The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff met the insured status requirements of the Act through March 31, 2005. (AT 28.) At step two, the ALJ concluded that plaintiff had the severe impairments of a major depressive disorder, a panic disorder and an obsessive compulsive disorder. (Id.) At step three, he determined that plaintiff's impairments did not meet or medically equal one of the impairments listed in the applicable regulations. (Id.) The ALJ further determined that plaintiff had the RFC to perform unskilled, entry-level work involving simple, routine tasks without frequent public contact. In consideration of the claimant's history of treatment for headaches and dizziness, and plaintiff's continuing complaints of headaches and dizziness, the ALJ found that she was prevented from 7

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working at unprotected heights or with dangerous machinery. (Id.) The ALJ found, at step four, that plaintiff was unable to perform any past relevant work. (AT 26.) Finally, the ALJ found, at step five and in reliance on plaintiff's RFC, that there are jobs that exist in significant numbers in the national economy that the claimant could perform, considering her impairments, limitations, age, education and work experience. (AT 27.) The Appeals Council rejected review of plaintiff's case after the ALJ's decision on remand because it found no reason under its rules for review. (AT 6.) II. ISSUES PRESENTED Plaintiff contends that the ALJ committed four principal errors in reviewing plaintiff's claim. (Dkt. No. 19 at 27.) First, plaintiff argues that the ALJ erred by rejecting the opinions of Dr. Ton, plaintiff's treating psychiatrist, and the opinion of Dr. Jaojoco, the Social Security consultative examiner without a legitimate basis for doing so. (Id.) Second, she argues that the ALJ failed to properly evaluate and credit plaintiff's third party witness statement. (Id.) Third, she contends that the ALJ failed to properly evaluate the severity of plaintiff's headaches and vertigo. (Id.) Fourth, plaintiff argues that the ALJ failed to properly assess plaintiff's RFC and correspondingly pose a legally adequate hypothetical to the vocational expert. (Id.) III. STANDARDS OF REVIEW The court reviews the Commissioner's decision to determine whether it is: (1) free of legal error; and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690 (citing Desrosiers v. Sec'y of Health & 8

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Human Servs., 846 F.2d 573, 576 (9th Cir. 1988)). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222 (citing Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)); see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("`Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a `specific quantum of supporting evidence.'" Ryan, 528 F.3d at 1198 (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)); accord Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). IV. ANALYSIS A. The ALJ Provided Legally Sufficient Reasons For His Treatment of Physician Testimony Plaintiff's initial contention is that the ALJ erred by rejecting the opinions of certain treating and examining physicians and psychologists without legally adequate reasons for doing so. (Dkt. No. 19 at 28.) More specifically, plaintiff contends that the ALJ failed to follow the Appeals' Council's instruction that he "give further consideration" to Dr. Ton's opinion that plaintiff's daily activities were severely impaired. (AT 164.) The medical opinions of three types of medical sources are recognized in social security cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the 9

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claimant (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). Generally, a treating physician's opinion should be accorded more weight than opinions of doctors who did not treat the claimant, and an examining physician's opinion is entitled to greater weight than a non-examining physician's opinion. Id. Where a treating or examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide "clear and convincing" reasons for failing to assign controlling weight to the treating physician's ultimate conclusions. Id. If the treating or examining doctor's medical opinion is contradicted by another doctor, the Commissioner must provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine, 574 F.3d at 692. 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 may resolve the conflict. Andrews, 53 F.3d at 1041 (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In any event, the ALJ need not give weight to conclusory opinions 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. An ALJ may satisfy the burden of providing those "specific and legitimate reasons" by "setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings." Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) ("The ALJ must do more than offer his conclusions. He must set forth his own interpretations and explain why they, rather than the doctors', are correct."). This the ALJ has done in this case. Upon remand, the ALJ concluded that plaintiff was "moderately impaired in her ability to function from a mental standpoint," and noted that this finding was "essentially supported by Dr. Ton's medical source statement which indicates that the claimant is moderately 10

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impaired from a mental standpoint. As such, Dr. Ton's opinion is accorded substantial weight as it is supported by the objective medical evidence of record." (AT 24.) Dr. Ton's report that plaintiff's daily activities were severely restricted is contradicted by other physician's reports, and thus the Commissioner was legally bound to provide specific and legitimate reasons for failing to assign controlling weight to this conclusion. In reviewing the ALJ's analysis, the court finds that the ALJ provided plaintiff with specific and legitimate reasons. He set out a very detailed and thorough summary of the facts and conflicting evidence. He recognized the medical expert's disagreement with Dr. Ton's opinion that plaintiff was severely impaired in her ability to function. (AT 22.) The ALJ also recognized, inter alia, that Dr. Ton assessed plaintiff with a Global Assessment of Functioning ("GAF") of 60, which is indicative of only moderate mental limitations. (AT 24.) The ALJ examined the plaintiff's medical records. He noted that plaintiff's mental health records indicated that she was being treated with medication which helped control her symptoms, and that Dr. Ton noted that those medications were helpful. (AT 24.) The ALJ referenced plaintiff's treating psychiatrist's comments that plaintiff would benefit from further involvement in a panic therapy group. (Id.) The ALJ further noted that claimant stated at one point that she cared for her two children, bathed them, got them ready for school, made breakfast, read, shopped and paid bills. (AT 24.) In sum, the ALJ provided a lengthy factual summary followed by his view of the evidence of record. Moreover, the ALJ provided numerous specific and legitimate examples of plaintiff's daily functioning which supported his rejection of Dr. Ton's extreme RFC assessment. The court must uphold the ALJ's decision where the evidence is susceptible to more than one rational interpretation. Magallanes, 881 F.2d at 750. The ALJ weighed the evidence in the record and found that plaintiff was not disabled. Although plaintiff contends that the ALJ took an unnecessarily "rosy review" of plaintiff's mental health records, the ALJ's finding is a rational interpretation of the evidence. See Tommasetti, 533 F.3d 1041-42 ("[T]he ALJ is the final 11

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arbiter with respect to resolving ambiguities in the medical evidence.") (citing Andrews, 53 F.3d at 1039-40). The ALJ's handling of Dr. Jaojoco's consultative examination opinion, however, requires additional reflection. Dr. E. Jaojoco, M.D., performed an orthopedic evaluation of plaintiff in October 2005. (AT 491-95.) Plaintiff reported neck pain, low back pain, tingling in both hands, headaches, anxiety and depression. The ALJ recognized and initially addressed Dr. Jaojoco's findings as follows: [Dr. Jaojoco] noted that an MRI of the cervical spine dated February 24, 2006 showed no significant disc protrusion, stenosis, or spinal cord abnormalities. An MRI of the brain in January 2005 had also been unremarkable. The claimant was diagnosed [by Dr. Jaojoco] with headaches and vertigo of unclear etiology; low back pain likely secondary to a recent lumbar puncture; vertigo, rule out possible vestibular problems; an anxiety disorder; depression; and bilateral cubital tunnel syndrome. The examiner opined that the claimant is able to stand and walk less than two hours and sit for less than six hours. She may require an assistive device such as a cane in order to steady herself. She is able to lift and/or carry less than ten pounds. She has postural limitation of no bending, stooping, crouching, climbing, kneeling, balancing, crawling and squatting. She has no manipulative restrictions. She has environmental restrictions of no working at heights and has limitations with driving currently because of the headaches and vertigo. With resolution of the vertigo and headaches, she will likely have no restrictions. (AT 18.) Plaintiff argues that the ALJ went on to improperly reject "the uncontradicted examining opinion of Dr. Jaojoco." (Dkt. No. 19 at 31.) This is not an accurate characterization of the ALJ's ruling. The ALJ found only that he did not "credit the functional limitations" assessed by consultative examiner Doctor Jaojoco. The ALJ made the reasoning behind this failure to credit clearly apparent in his ruling: [Dr. Jaojoco's] suggestions that the claimant has significant functional limitations can be given no evidentiary weight, as he provided no explanation or basis or finding to support any 12

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exertional limitations. He noted no musculoskeletal findings. He appears to be repeating the claimant's complaints, as there are no significant clinical findings in his report or other evidence in the record to support such restrictions, and the findings are also reduced by Doctor Nakagawa's findings of claimant malingering. As noted previously, multiple studies were unremarkable. Although there was some suggestion in the treating record that the claimant might have a demyelinating disease, neurological evaluations have show[n] no evidence of multiple sclerosis. CT scans of the brain in September 2003 and December 15, 2004 were negative. Further, in February 2005, Doctor Au, an examining neurologist, concluded that the claimant did not have multiple sclerosis. Significantly, the claimant reported that Meclizine helps her feeling of lightheadedness and dizziness. In December 2006, an MRI scan of the brain showed scattered nonenhancing white matter lesions, which were nonspecific. An MRI of the cervical spine on February 24, 2005 revealed no significant abnormality. An MRI scan of the brain in January 2005 was unremarkable. A thyroid ultrasound in January 2006 showed the thyroid gland was in the upper limits of normal in size, with no focal mass lesion seen. EEG studies in June 2005 and January 2006 were normal. In addition, a Visual Evoked Response study on June 13, 2005, showed no evidence of a visual pathway abnormality on the left or right. Another CT of the brain on November 7, 2006 was negative. Further, in November 2006, an examining neurologist noted that her neurological examination did not reveal any focal abnormalities. Therefore, as directed by the Appeals Council, the undersigned specifically finds that the claimant's complaints of dizziness and headaches do not constitute severe impairments. They do not significantly affect her ability to work.

Plaintiff contends generally, though, that these articulated reasons do not meet the "clear and convincing" test for rejecting the uncontradicted opinion of a treating or examining physician. This court disagrees. The ALJ supported his result with clear and convincing evidence. He stated that Dr. Jaojoco was not a treating source and that his examination was limited to a one-time examination that conflicted with treating source records. (AT 20.) He also recognized that although Dr. Jaojoco indicated certain functional restrictions, that those restrictions were not supported by the other evidence of record. The ALJ recognized the plaintiff's history of treatment for headaches and 13

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dizziness, and her continuing complaints regarding those ailments. (AT 20.) He found that she would be prevented from working at heights or with dangerous machinery. (Id.) Under these circumstances, the district court will not second-guess the well-reasoned determination of the ALJ with regard to his findings on the credibility or strength of the medical testimony offered in light of the depth of analysis presented by the ALJ. See Allen v. Heckler, 749 F.2d 577, 580 (1984). Therefore, no legal error is presented. B. The ALJ Appropriately Evaluated The Testimony Ms. Johnson Plaintiff next contends that the ALJ failed to properly evaluate the third party report of Ms. Timesha C. Johnson, Ms. Parhan's children's godmother. Plaintiff correctly notes that in determining whether a claimant is disabled, an ALJ must consider lay witness testimony concerning a claimant's ability to work. Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006). The ALJ specifically considered Ms. Johnson's statement. (AT 24-25.) He recognized Ms. Johnson's testimony that she helped plaintiff with her chores and children, but found that Ms. Johnson's report tended toward the dramatic. (AT 24.) He stated that "[s]he repeatedly described the claimant's need to `gather her strength' to do such things as shower and perform chores." (Id.) He weighed the various portions of Ms. Johnson's testimony, recognizing on one hand that Ms. Johnson stated that plaintiff had no problems with her personal care, and on the other that she would help make sure the plaintiff did not fall because standing too long caused dizziness. (Id.) The ALJ noted that Ms. Johnson was frequently "only repeating the claimant's subjective complaints because she was not in a position to `feel' for the claimant." Hence, the ALJ accorded minimal weight to Ms. Johnson's lay witness statement because it "only demonstrates that she supports/enables the claimant to the point of repeating her dramatic and exaggerative subjective complaints." (AT 25.) The ALJ satisfied the Ninth Circuit's requirements for evaluating lay witness testimony. The ALJ (1) considered the testimony; (2) addressed and commented on the testimony; and (3) provided specific reasons for his treatment of that testimony that are germane 14

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to Ms. Johnson. See Stout v. Comm'r, 454 F.3d 1050, 1053 (9th Cir. 2006); Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009.) The ALJ properly resolved conflicts in the significant evidence, and after reviewing the opinion of the consultative examiners, other doctor's reports, the witness testimony at issue, and other evidence of record, determined that plaintiff was not entitled to benefits. The ALJ's findings are entitled to deference where, as here, they are sufficiently specific to allow a reviewing court to conclude that the adjudicator analyzed the lay witness testimony on permissible grounds and did not arbitrarily discredit Ms. Johnson's testimony. See Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991). C. The ALJ Properly Evaluated Plaintiff's Headaches And Vertigo Plaintiff next contends that the ALJ erroneously failed to include plaintiff's headaches and vertigo as severe impairments at step two of the sequential evaluation process pursuant to 20 C.F.R. § 404.1520(a). (Dkt. No. 19 at 35.) At step two of the sequential evaluation, the ALJ determines which of claimant's alleged impairments are "severe" within the meaning of 20 C.F.R. § 404.1520(c). A severe impairment significantly limits a person's physical or mental ability to do basic work activities. Id. "An impairment is not severe if it is merely `a slight abnormality (or combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Social Security Ruling ("SSR") 96-3p (1996)). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education and experience were taken into account. Bowen, 482 U.S. at 153. If a severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis. 20 C.F.R. § 404.1523. The ALJ "must consider the combined effect of all of the claimant's impairments on [his] ability to function, without regard to whether each alone [i]s sufficiently severe." Smolen, 80 F.3d at 15

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1290; 20 C.F.R. § 404.1523. Here, the ALJ found that plaintiff had the severe impairments of a major depressive disorder, panic disorder and obsessive compulsive disorder. (AT 28.) Plaintiff asserts that "the ALJ seriously circumscribed [plaintiff]'s claim" by failing to include headaches and vertigo as severe impairments at step two. (Dkt. No. 19 at 35.) While these conditions may indeed be serious, plaintiff's argument ignores the function of step two as a gatekeeping mechanism to dispose of groundless claims. Once a plaintiff prevails at step two, by achieving a finding of some severe impairment, regardless of which condition is found to be severe, the Commissioner proceeds with the sequential evaluation, considering at each step all other alleged impairments and symptoms that may impact her ability to work. See 42 U.S.C. § 423(d)(2)(B) ("In determining whether an individual's physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner of Social Security shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity."). Here, plaintiff prevailed at step two. Thus, the question becomes whether the ALJ properly considered the functional limitations of all medically determinable impairments at the remaining steps. See Smolen, 80 F.3d at 1290 (recognizing that if one severe impairment exists, all medically determinable impairments must be considered in the remaining steps of the sequential analysis) (citing 20 C.F.R. § 404.1523). As discussed above, the ALJ fully considered all of plaintiff's impairments, including her headaches and vertigo, and incorporated those limitations into the RFC. The ALJ ruled that "[c]onsidering the claimant's history of treatment for headaches and dizziness, and her continuing complaints of dizziness and headaches, it is found that she is prevented from working at unprotected heights or with dangerous machinery." (AT 28.) Accordingly, there was no error 16

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in the step two analysis. D. The ALJ's RFC And Hypothetical To The VE Were Proper In a variation of the arguments raised above, plaintiff contends that because the ALJ erred in "rejecting" the opinions of Drs. Ton and Jaojoco, and the statement of Ms. Johnson, that he erred in assessing plaintiff's RFC. Thus, plaintiff continues, the hypothetical question premised on this RFC and presented to the vocational examiner ("VE") was improper. (Dkt. No. 19 at 37-38.) The ALJ found that as to plaintiff's RFC that she was "limited to the performance of unskilled, entry-level work involving simple, routine tasks without frequent public contact. Considering the claimant's history of treatment for headaches and dizziness . . . she is prevented from working at unprotected heights or with dangerous machinery. She has no exertional limitations." (AT 28.) Plaintiff contends in a summary fashion that "had the ALJ credited the opinions of the treating psychiatrist, properly credited the opinion of the examining physician, properly credited Ms. Johnson's statements and properly followed the instructions in the Remand Order from the Appeals Council, a finding of disabled would have followed based on the testimony of the vocational expert." (Dkt. No. 19 at 38.) Plaintiff, however, alleges no additional specific error in the exchange with the VE. The ALJ properly posed a hypothetical question to the VE by including the limitations supported by the appropriate weight of evidence. See, e.g., Robbins v. Soc. Sec. Admin., 466 F.3d 880, 886 (9th Cir. 2006) ("As the Commissioner correctly recognizes, in hypotheticals posed to a vocational expert, the ALJ must only include those limitations supported by substantial evidence."). "It is clear that it is the responsibility of the ALJ, not the claimant's physician, to determine residual functional capacity." Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (citing 20 C.F.R. § 404.1545). The ALJ asked the VE whether an individual with the limitations based on Dr. Walter's testimony could perform simple unskilled work that did not involve working in unison with others as a team. The ALJ also added that the hypothetical individual would have physical 17

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limitations that included no heights, dangerous machinery or ladders due to spells of dizziness, and that the job would be identified as light work. (AT 134-35.) The VE responded that plaintiff would not be able to perform any of her prior jobs as child attendant or sales clerk. (AT 135.) The VE found a variety of positions that did fit this hypothetical, including fishing reel assembler and surveillance system monitor. (AT 136-55.) The ALJ's RFC and subsequent hypothetical to the VE adequately included all supported limitations. Conflicts in the evidence are to be resolved by the Commissioner. Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987). The VE testified that there were a substantial number of jobs for such a person given those limitations. (AT 518.) The ALJ properly reasoned that the record supports plaintiff's ability to make a successful adjustment to other work that exists in significant numbers in the national economy. Accordingly, the Commissioner's decision is free of legal error and supported by substantial evidence in the record as a whole. See Bruce, 558 F.3d at 1115. V. CONCLUSION Based on the foregoing, IT IS HEREBY ORDERED that: 1. 2. 3. Plaintiff's motion for summary judgment or remand is denied; The Commissioner's cross-motion for summary judgment is granted; and Judgment be entered in favor of the Commissioner.

DATED: September 10, 2010

_____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

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