Williamson v. Commissioner Social Security Administration

Filing 17

OPINION AND ORDER - The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter with prejudice. Signed on 6/23/2010 by Judge Anna J. Brown.(See formal Opinion and Order, 30-pages) (ecp)

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION CHRISTINE LEE WILLIAMSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant KATHRYN TASSINARI ROBERT A. BARON Harder Wells Baron & Manning, PC 474 Willamette Street Suite 200 Eugene, OR 97401 [phone] Attorneys for Plaintiff DWIGHT HOLTON Acting United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 [phone] 1 - OPINION AND ORDER 09-CV-6156-BR OPINION AND ORDER

DAVID MORADO Regional Chief Counsel Social Security Administration L. JAMALA EDWARDS Special Assistant United States Attorney Social Security Administration 701 5th Avenue, Suite 2900, M/S 901 Seattle, WA 98104 [phone] Attorneys for Defendant BROWN, Judge. Plaintiff Christine Lee Williamson seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). Following a review of the record, the Court AFFIRMS the decision of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY Plaintiff filed her application for SSI on October 4, 2005, and alleged a disability onset date of December 31, 1997. Tr. 92-94.1 The application was denied initially and on Tr. 81. An Administrative Law Judge (ALJ) held

reconsideration.

Citations to the official transcript of record filed by the Commissioner on November 12, 2009, are referred to as "Tr." 2 - OPINION AND ORDER

1

a hearing on March 20, 2008. represented by an attorney.

At the hearings, Plaintiff was Plaintiff, lay witness Diane Tr. 20-64.

Brending, and a vocational expert (VE) testified.

The ALJ issued a decision on May 30, 2008, in which he found Plaintiff is not entitled to benefits. Tr. 6-19. That decision

became the final decision of the Commissioner on April 9, 2009, when the Appeals Council denied Plaintiff's request for review. Tr. 1-4.

BACKGROUND Plaintiff was born on July 13, 1959, and was 48 years old at the time of the hearing. grade. Tr. 43, 456. Tr. 38. Plaintiff completed eleventh

Plaintiff has past relevant work experience

as a housekeeper.

Tr. 123.

Plaintiff alleges she is disabled due to panic disorder, post-traumatic stress disorder (PTSD), arthritis, scoliosis, and hepatitis C. Tr. 98.

Except when noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 11-13.

STANDARDS The initial burden of proof rests on the claimant to 3 - OPINION AND ORDER

establish disability. (9th Cir. 2005).

Ukolov v. Barnhart, 420 F.3d 1002, 1004

To meet this burden, a claimant must

demonstrate her inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). developing the record. (9th Cir. 2001). The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Batson v. Comm'r of Soc. Sec. "Substantial The Commissioner bears the burden of

Reed v. Massanari, 270 F.3d 838, 841

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

evidence means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)(internal quotations omitted). The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. 2001). Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

The court must weigh all of the evidence whether it Robbins,

supports or detracts from the Commissioner's decision. 4 - OPINION AND ORDER

466 F.3d at 882.

The Commissioner's decision must be upheld even

if the evidence is susceptible to more than one rational interpretation. 2005). Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.

The court may not substitute its judgment for that of the Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

Commissioner. 2006).

DISABILITY ANALYSIS I. The Regulatory Sequential Evaluation The Commissioner has developed a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 2007). Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. Each step is potentially

See also 20 C.F.R. § 416.920.

dispositive. In Step One, the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 See also 20 C.F.R. § 416.920(b).

(9th Cir. 2006).

In Step Two, the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 1052. See also 20 C.F.R. § 416,920(c). In Step Three, the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of a 5 - OPINION AND ORDER Stout, 454 F.3d at

number of listed impairments that the Commissioner acknowledges are so severe they preclude substantial gainful activity. 454 F.3d at 1052. See also 20 C.F.R. § 416.920(a)(4)(iii). Stout, The

criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments). If the Commissioner proceeds beyond Step Three, he must assess the claimant's Residual Functional Capacity (RFC). The

claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. § 416.945(a). 20 C.F.R. "A

See also Social Security Ruling (SSR) 96-8p.

'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete incapacity to be disabled. n.7 (9th Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1284

The assessment of a claimant's RFC is at

the heart of Steps Four and Five of the sequential analysis engaged in by the ALJ when determining whether a claimant can still work despite severe medical impairments. An improper

evaluation of the claimant's ability to perform specific workrelated functions "could make the difference between a finding of 'disabled' and 'not disabled.'" SSR 96-8p, at *4.

In Step Four, the claimant is not disabled if the 6 - OPINION AND ORDER

Commissioner determines the claimant retains the RFC to perform work she has done in the past. Stout, 454 F.3d at 1052. See

also 20 C.F.R. § 416.920(a)(4)(iv). If the Commissioner reaches Step Five, he must determine whether the claimant is able to do any other work that exists in the national economy. Stout, 454 F.3d at 1052. See also 20

C.F.R. § 416.920(a)(4)(v).

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the national economy that the claimant can do. F.3d 1094, 1098 (9th Cir. 1999). Tackett v. Apfel, 180

The Commissioner may satisfy

this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner 20 C.F.R.

meets this burden, the claimant is not disabled. § 416.920(g)(1).

ALJ'S FINDINGS At Step One, the ALJ found Plaintiff had not engaged in substantial gainful activity since her application date of September 27, 2005. Tr. 11.

At Step Two, the ALJ found Plaintiff has the severe impairments of PTSD, panic disorder, history of depression, history of polysubstance abuse, and personality disorder. Tr. 11. 7 - OPINION AND ORDER

At Step Three, the ALJ concluded Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. Tr. 13. The ALJ found Plaintiff has the RFC to perform a

full range of work at all exertional levels with the following nonexertional limitations: She is unable "to consistently follow

detailed or complex instructions[;] . . . to consistently engage in ongoing, cooperative, interactive teamwork endeavors[;] . . . [and] to interact appropriately with the general public." Tr. 14. The ALJ also found Plaintiff should not work around Tr. 14.

dangerous hazards.

At Step Four, the ALJ found Plaintiff was capable of performing her past relevant work. Tr. 17.

At Step Five, the ALJ found even if Plaintiff was not capable of performing her past relevant work, Plaintiff could perform other jobs that exist in significant numbers in the national economy. is not disabled. Tr. 19. Accordingly, the ALJ found Plaintiff

DISCUSSION Plaintiff contends the ALJ erred when he (1) improperly rejected Plaintiff's testimony; (2) improperly rejected the opinion of Judith Eckstein, Ph.D., examining psychologist; and (3) gave only limited weight to the opinion of Plaintiff's case 8 - OPINION AND ORDER

manager, Diane Brending. I. The ALJ did not err when he rejected Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments. Plaintiff alleges the ALJ erred when he failed to provide clear and convincing reasons for rejecting Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments. In Cotton v. Bowen, the Ninth Circuit established two requirements for a claimant to present credible symptom testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Cir. 1986). Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. Smolen, 80 F.3d at 1284. If the claimant satisfies the above test and there is not any affirmative evidence of malingering, the ALJ can reject the claimant's pain testimony only if he provides clear and convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). General assertions that the claimant's testimony is Id. The ALJ must identify "what

not credible are insufficient.

testimony is not credible and what evidence undermines the 9 - OPINION AND ORDER

claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

The ALJ found Plaintiff's medically determinable impairments reasonably could be "expected to produce some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible." Tr. 15. Plaintiff reported limited daily

activities, but the ALJ noted the record reflects she lives by herself and does not need assistance in maintaining her residence or caring for her animals. Tr. 15. The ALJ further noted the

record reflects Plaintiff worked after her alleged onset date as a babysitter and "on logging watch." Tr. 15. Finally, the ALJ

noted Dr. Eckstein in her March 2005 psychological evaluation of Plaintiff suggested Plaintiff "may have endorsed items that present an unfavorable impression, leading to an exaggeration of complaints and problems." Tr. 15, 573. Dr. Eckstein also noted

her opinion "may overepresent the degree or extent of pathology in certain areas" because of Plaintiff's possible exaggeration. Tr. 573. On this record, the Court concludes the ALJ did not err when he rejected Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments because the ALJ provided legally sufficient reasons supported by the record for doing so.

10 - OPINION AND ORDER

II.

The ALJ did not err when he rejected the opinion of Dr. Eckstein. Plaintiff contends the ALJ erred when he failed to fully

credit the opinion of Dr. Eckstein, examining psychologist, that Plaintiff was in "marked distress" and had "severe impairment in functioning overall." Tr. 575.

An ALJ may reject an examining or treating physician's opinion when it is inconsistent with the opinions of other treating or examining physicians if the ALJ makes "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Thomas, 278 F.3d

at 957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). When the medical opinion of an examining or treating

physician is uncontroverted, however, the ALJ must give "clear and convincing reasons" for rejecting it. 957. Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32. A nonexamining physician is one who neither examines nor

treats the claimant.

Lester, 81 F.3d at 830.

"The opinion of a

nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Id. at 831. When

a nonexamining physician's opinion contradicts an examining physician's opinion and the ALJ gives greater weight to the nonexamining physician's opinion, the ALJ must articulate his reasons for doing so. 11 - OPINION AND ORDER See, e.g., Morgan v. Comm'r of Soc. Sec.

Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).

A nonexamining

physician's opinion can constitute substantial evidence if it is supported by other evidence in the record. Id. at 600.

The ALJ noted Dr. Eckstein's "testing showed exaggeration by [Plaintiff] and [she] acknowledged that her conclusions were tentative and might over-represent the degree of pathology." Tr. 16. The ALJ also noted Dr. Eckstein's opinion that

Plaintiff's long-term drug use likely had a negative effect on her testing and that Plaintiff "had only been clean and sober a very short time at the time of [the] evaluation." Tr. 16.

Finally, the ALJ noted Dr. Eckstein's evaluation of Plaintiff's RFC at 40 was inconsistent with the RFCs of 55 to 69 assigned to Plaintiff by a number of treating and examining nurse practitioners. Tr. 16.

On this record, the Court finds the ALJ did not err when he rejected Dr. Eckstein's opinion that Plaintiff was in "marked distress" and had "severe impairment in functioning overall" because the ALJ provided legally sufficient reasons supported by substantial evidence in the record for doing so. III. The ALJ did not err when he gave limited weight to the opinion of Plaintiff's case manager, Diane Brending. Plaintiff contends the ALJ erred when he found Plaintiff had only moderate limitations in social functioning and in concentration, persistence, and pace because in doing so he gave limited weight to Diane Brending's opinion that Plaintiff had 12 - OPINION AND ORDER

marked limitations in social functioning and in concentration, persistence, and pace. Lay testimony regarding a claimant's symptoms is competent evidence that the ALJ must consider unless he "expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." (9th Cir. 2001). Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a claimant's disability, must give full consideration to the testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." Stout, 454 F.3d at 1054. In addition, "medical diagnoses are Nguyen v. Chater, 100

beyond the competence of lay witnesses." F.3d 1462, 1467 (9th Cir. 1996).

The ALJ found Brending's opinion was based solely on Plaintiff's subjective complaints and self-reports, which, as Dr. Eckstein noted, may have been exaggerated. In addition, as

noted, the ALJ found Brending's assignment of Plaintiff a GAF2 of 40 to Plaintiff, which indicates serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting) or a serious impairment in social, occupational, or school functioning The GAF scale is used to report a clinician's judgment of the patient's overall level of social, occupational, and psychological functioning on a scale of 1 to 100. Am. Psych. Ass'n, Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) 31-34 (4th ed. 2000) 13 - OPINION AND ORDER
2

(e.g., few friends, unable to keep a job), was "in sharp contrast to" the GAF assessment of a number of examining nurse practitioners who assigned GAFs of 50 to 69 to Plaintiff.3 Finally, the ALJ noted Plaintiff is able to take care of her house, her yard, and her pets, which belies a GAF of 40. On this record, the Court concludes the ALJ did not err when he gave limited weight to Brending's opinion because the ALJ considered her testimony and gave legally sufficient reasons supported by the record for giving her opinion limited weight.

CONCLUSION For these reasons, the Court AFFIRMS the decision of the

A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 indicates "[s]ome 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." Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) 31-34 (4th ed. 2000). 14 - OPINION AND ORDER

3

Commissioner and DISMISSES this matter with prejudice. IT IS SO ORDERED. DATED this 23rd day of June, 2010. /s/ Anna J. Brown ___________________________ ANNA J. BROWN United States District Judge

15 - OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION CHRISTINE LEE WILLIAMSON, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant KATHRYN TASSINARI ROBERT A. BARON Harder Wells Baron & Manning, PC 474 Willamette Street Suite 200 Eugene, OR 97401 [phone] Attorneys for Plaintiff DWIGHT HOLTON Acting United States Attorney ADRIAN L. BROWN Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2902 [phone] 1 - OPINION AND ORDER 09-CV-6156-BR OPINION AND ORDER

DAVID MORADO Regional Chief Counsel Social Security Administration L. JAMALA EDWARDS Special Assistant United States Attorney Social Security Administration 701 5th Avenue, Suite 2900, M/S 901 Seattle, WA 98104 [phone] Attorneys for Defendant BROWN, Judge. Plaintiff Christine Lee Williamson seeks judicial review of a final decision of the Commissioner of the Social Security Administration (SSA) in which he denied Plaintiff's application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act. This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). Following a review of the record, the Court AFFIRMS the decision of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY Plaintiff filed her application for SSI on October 4, 2005, and alleged a disability onset date of December 31, 1997. Tr. 92-94.1 The application was denied initially and on Tr. 81. An Administrative Law Judge (ALJ) held

reconsideration.

Citations to the official transcript of record filed by the Commissioner on November 12, 2009, are referred to as "Tr." 2 - OPINION AND ORDER

1

a hearing on March 20, 2008. represented by an attorney.

At the hearings, Plaintiff was Plaintiff, lay witness Diane Tr. 20-64.

Brending, and a vocational expert (VE) testified.

The ALJ issued a decision on May 30, 2008, in which he found Plaintiff is not entitled to benefits. Tr. 6-19. That decision

became the final decision of the Commissioner on April 9, 2009, when the Appeals Council denied Plaintiff's request for review. Tr. 1-4.

BACKGROUND Plaintiff was born on July 13, 1959, and was 48 years old at the time of the hearing. grade. Tr. 43, 456. Tr. 38. Plaintiff completed eleventh

Plaintiff has past relevant work experience

as a housekeeper.

Tr. 123.

Plaintiff alleges she is disabled due to panic disorder, post-traumatic stress disorder (PTSD), arthritis, scoliosis, and hepatitis C. Tr. 98.

Except when noted, Plaintiff does not challenge the ALJ's summary of the medical evidence. After carefully reviewing the

medical records, this Court adopts the ALJ's summary of the medical evidence. See Tr. 11-13.

STANDARDS The initial burden of proof rests on the claimant to 3 - OPINION AND ORDER

establish disability. (9th Cir. 2005).

Ukolov v. Barnhart, 420 F.3d 1002, 1004

To meet this burden, a claimant must

demonstrate her inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). developing the record. (9th Cir. 2001). The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). See also Batson v. Comm'r of Soc. Sec. "Substantial The Commissioner bears the burden of

Reed v. Massanari, 270 F.3d 838, 841

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

evidence means more than a mere scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Robbins v.

Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)(internal quotations omitted). The ALJ is responsible for determining credibility, resolving conflicts in the medical evidence, and resolving ambiguities. 2001). Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

The court must weigh all of the evidence whether it Robbins,

supports or detracts from the Commissioner's decision. 4 - OPINION AND ORDER

466 F.3d at 882.

The Commissioner's decision must be upheld even

if the evidence is susceptible to more than one rational interpretation. 2005). Webb v. Barnhart, 433 F.3d 683, 689 (9th Cir.

The court may not substitute its judgment for that of the Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

Commissioner. 2006).

DISABILITY ANALYSIS I. The Regulatory Sequential Evaluation The Commissioner has developed a five-step sequential inquiry to determine whether a claimant is disabled within the meaning of the Act. 2007). Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. Each step is potentially

See also 20 C.F.R. § 416.920.

dispositive. In Step One, the claimant is not disabled if the Commissioner determines the claimant is engaged in substantial gainful activity. Stout v. Comm'r Soc. Sec. Admin., 454 F.3d 1050, 1052 See also 20 C.F.R. § 416.920(b).

(9th Cir. 2006).

In Step Two, the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe impairment or combination of impairments. 1052. See also 20 C.F.R. § 416,920(c). In Step Three, the claimant is disabled if the Commissioner determines the claimant's impairments meet or equal one of a 5 - OPINION AND ORDER Stout, 454 F.3d at

number of listed impairments that the Commissioner acknowledges are so severe they preclude substantial gainful activity. 454 F.3d at 1052. See also 20 C.F.R. § 416.920(a)(4)(iii). Stout, The

criteria for the listed impairments, known as Listings, are enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed Impairments). If the Commissioner proceeds beyond Step Three, he must assess the claimant's Residual Functional Capacity (RFC). The

claimant's RFC is an assessment of the sustained, work-related physical and mental activities the claimant can still do on a regular and continuing basis despite his limitations. § 416.945(a). 20 C.F.R. "A

See also Social Security Ruling (SSR) 96-8p.

'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent schedule." SSR 96-8p, at *1. In other

words, the Social Security Act does not require complete incapacity to be disabled. n.7 (9th Cir. 1996). Smolen v. Chater, 80 F.3d 1273, 1284

The assessment of a claimant's RFC is at

the heart of Steps Four and Five of the sequential analysis engaged in by the ALJ when determining whether a claimant can still work despite severe medical impairments. An improper

evaluation of the claimant's ability to perform specific workrelated functions "could make the difference between a finding of 'disabled' and 'not disabled.'" SSR 96-8p, at *4.

In Step Four, the claimant is not disabled if the 6 - OPINION AND ORDER

Commissioner determines the claimant retains the RFC to perform work she has done in the past. Stout, 454 F.3d at 1052. See

also 20 C.F.R. § 416.920(a)(4)(iv). If the Commissioner reaches Step Five, he must determine whether the claimant is able to do any other work that exists in the national economy. Stout, 454 F.3d at 1052. See also 20

C.F.R. § 416.920(a)(4)(v).

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the national economy that the claimant can do. F.3d 1094, 1098 (9th Cir. 1999). Tackett v. Apfel, 180

The Commissioner may satisfy

this burden through the testimony of a VE or by reference to the Medical-Vocational Guidelines set forth in the regulations at 20 C.F.R. part 404, subpart P, appendix 2. If the Commissioner 20 C.F.R.

meets this burden, the claimant is not disabled. § 416.920(g)(1).

ALJ'S FINDINGS At Step One, the ALJ found Plaintiff had not engaged in substantial gainful activity since her application date of September 27, 2005. Tr. 11.

At Step Two, the ALJ found Plaintiff has the severe impairments of PTSD, panic disorder, history of depression, history of polysubstance abuse, and personality disorder. Tr. 11. 7 - OPINION AND ORDER

At Step Three, the ALJ concluded Plaintiff's medically determinable impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. Tr. 13. The ALJ found Plaintiff has the RFC to perform a

full range of work at all exertional levels with the following nonexertional limitations: She is unable "to consistently follow

detailed or complex instructions[;] . . . to consistently engage in ongoing, cooperative, interactive teamwork endeavors[;] . . . [and] to interact appropriately with the general public." Tr. 14. The ALJ also found Plaintiff should not work around Tr. 14.

dangerous hazards.

At Step Four, the ALJ found Plaintiff was capable of performing her past relevant work. Tr. 17.

At Step Five, the ALJ found even if Plaintiff was not capable of performing her past relevant work, Plaintiff could perform other jobs that exist in significant numbers in the national economy. is not disabled. Tr. 19. Accordingly, the ALJ found Plaintiff

DISCUSSION Plaintiff contends the ALJ erred when he (1) improperly rejected Plaintiff's testimony; (2) improperly rejected the opinion of Judith Eckstein, Ph.D., examining psychologist; and (3) gave only limited weight to the opinion of Plaintiff's case 8 - OPINION AND ORDER

manager, Diane Brending. I. The ALJ did not err when he rejected Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments. Plaintiff alleges the ALJ erred when he failed to provide clear and convincing reasons for rejecting Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments. In Cotton v. Bowen, the Ninth Circuit established two requirements for a claimant to present credible symptom testimony: The claimant must produce objective medical evidence

of an impairment or impairments, and she must show the impairment or combination of impairments could reasonably be expected to produce some degree of symptom. Cir. 1986). Cotton, 799 F.2d 1403, 1407 (9th

The claimant, however, need not produce objective

medical evidence of the actual symptoms or their severity. Smolen, 80 F.3d at 1284. If the claimant satisfies the above test and there is not any affirmative evidence of malingering, the ALJ can reject the claimant's pain testimony only if he provides clear and convincing reasons for doing so. Parra v. Astrue, 481 F.3d 742,

750 (9th Cir. 2007)(citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995)). General assertions that the claimant's testimony is Id. The ALJ must identify "what

not credible are insufficient.

testimony is not credible and what evidence undermines the 9 - OPINION AND ORDER

claimant's complaints."

Id. (quoting Lester, 81 F.3d at 834).

The ALJ found Plaintiff's medically determinable impairments reasonably could be "expected to produce some of the alleged symptoms; however, [Plaintiff's] statements concerning the intensity, persistence and limiting effects of these symptoms are not credible." Tr. 15. Plaintiff reported limited daily

activities, but the ALJ noted the record reflects she lives by herself and does not need assistance in maintaining her residence or caring for her animals. Tr. 15. The ALJ further noted the

record reflects Plaintiff worked after her alleged onset date as a babysitter and "on logging watch." Tr. 15. Finally, the ALJ

noted Dr. Eckstein in her March 2005 psychological evaluation of Plaintiff suggested Plaintiff "may have endorsed items that present an unfavorable impression, leading to an exaggeration of complaints and problems." Tr. 15, 573. Dr. Eckstein also noted

her opinion "may overepresent the degree or extent of pathology in certain areas" because of Plaintiff's possible exaggeration. Tr. 573. On this record, the Court concludes the ALJ did not err when he rejected Plaintiff's testimony as to the intensity, persistence, and limiting effects of her impairments because the ALJ provided legally sufficient reasons supported by the record for doing so.

10 - OPINION AND ORDER

II.

The ALJ did not err when he rejected the opinion of Dr. Eckstein. Plaintiff contends the ALJ erred when he failed to fully

credit the opinion of Dr. Eckstein, examining psychologist, that Plaintiff was in "marked distress" and had "severe impairment in functioning overall." Tr. 575.

An ALJ may reject an examining or treating physician's opinion when it is inconsistent with the opinions of other treating or examining physicians if the ALJ makes "findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record." Thomas, 278 F.3d

at 957 (quoting Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). When the medical opinion of an examining or treating

physician is uncontroverted, however, the ALJ must give "clear and convincing reasons" for rejecting it. 957. Thomas, 278 F.3d at

See also Lester v. Chater, 81 F.3d 821, 830-32. A nonexamining physician is one who neither examines nor

treats the claimant.

Lester, 81 F.3d at 830.

"The opinion of a

nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Id. at 831. When

a nonexamining physician's opinion contradicts an examining physician's opinion and the ALJ gives greater weight to the nonexamining physician's opinion, the ALJ must articulate his reasons for doing so. 11 - OPINION AND ORDER See, e.g., Morgan v. Comm'r of Soc. Sec.

Admin, 169 F.3d 595, 600-01 (9th Cir. 1999).

A nonexamining

physician's opinion can constitute substantial evidence if it is supported by other evidence in the record. Id. at 600.

The ALJ noted Dr. Eckstein's "testing showed exaggeration by [Plaintiff] and [she] acknowledged that her conclusions were tentative and might over-represent the degree of pathology." Tr. 16. The ALJ also noted Dr. Eckstein's opinion that

Plaintiff's long-term drug use likely had a negative effect on her testing and that Plaintiff "had only been clean and sober a very short time at the time of [the] evaluation." Tr. 16.

Finally, the ALJ noted Dr. Eckstein's evaluation of Plaintiff's RFC at 40 was inconsistent with the RFCs of 55 to 69 assigned to Plaintiff by a number of treating and examining nurse practitioners. Tr. 16.

On this record, the Court finds the ALJ did not err when he rejected Dr. Eckstein's opinion that Plaintiff was in "marked distress" and had "severe impairment in functioning overall" because the ALJ provided legally sufficient reasons supported by substantial evidence in the record for doing so. III. The ALJ did not err when he gave limited weight to the opinion of Plaintiff's case manager, Diane Brending. Plaintiff contends the ALJ erred when he found Plaintiff had only moderate limitations in social functioning and in concentration, persistence, and pace because in doing so he gave limited weight to Diane Brending's opinion that Plaintiff had 12 - OPINION AND ORDER

marked limitations in social functioning and in concentration, persistence, and pace. Lay testimony regarding a claimant's symptoms is competent evidence that the ALJ must consider unless he "expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." (9th Cir. 2001). Lewis v. Apfel, 236 F.3d 503, 511

See also Merrill ex rel. Merrill v. Apfel, 224

F.3d 1083, 1085 (9th Cir. 2000)("[A]n ALJ, in determining a claimant's disability, must give full consideration to the testimony of friends and family members."). The ALJ's reasons

for rejecting lay-witness testimony must also be "specific." Stout, 454 F.3d at 1054. In addition, "medical diagnoses are Nguyen v. Chater, 100

beyond the competence of lay witnesses." F.3d 1462, 1467 (9th Cir. 1996).

The ALJ found Brending's opinion was based solely on Plaintiff's subjective complaints and self-reports, which, as Dr. Eckstein noted, may have been exaggerated. In addition, as

noted, the ALJ found Brending's assignment of Plaintiff a GAF2 of 40 to Plaintiff, which indicates serious symptoms (suicidal ideation, severe obsessional rituals, frequent shoplifting) or a serious impairment in social, occupational, or school functioning The GAF scale is used to report a clinician's judgment of the patient's overall level of social, occupational, and psychological functioning on a scale of 1 to 100. Am. Psych. Ass'n, Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) 31-34 (4th ed. 2000) 13 - OPINION AND ORDER
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(e.g., few friends, unable to keep a job), was "in sharp contrast to" the GAF assessment of a number of examining nurse practitioners who assigned GAFs of 50 to 69 to Plaintiff.3 Finally, the ALJ noted Plaintiff is able to take care of her house, her yard, and her pets, which belies a GAF of 40. On this record, the Court concludes the ALJ did not err when he gave limited weight to Brending's opinion because the ALJ considered her testimony and gave legally sufficient reasons supported by the record for giving her opinion limited weight.

CONCLUSION For these reasons, the Court AFFIRMS the decision of the

A GAF of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). A GAF of 61-70 indicates "[s]ome 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." Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV) 31-34 (4th ed. 2000). 14 - OPINION AND ORDER

3

Commissioner and DISMISSES this matter with prejudice. IT IS SO ORDERED. DATED this 23rd day of June, 2010. /s/ Anna J. Brown ___________________________ ANNA J. BROWN United States District Judge

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