William Harris v. Jo Anne B Barnhart

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 1 of 37 Page ID #:65 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALI...

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Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 1 of 37 Page ID #:65

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UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

WILLIAM HARRIS,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, Commissioner) of Social Security, ) ) Defendant. ) )

No. CV 05-02673-SS MEMORANDUM DECISION AND ORDER

17 INTRODUCTION

18 19 20

William Harris (hereinafter “Plaintiff”) brings this action seeking

21

to overturn the decision of the Commissioner of the Social Security

22

Administration (hereinafter the “Commissioner” or the “Agency”) denying

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his application for Supplemental Security Income (hereinafter “SSI”).

24

Alternatively, he asks for a remand.

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consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the

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undersigned United States Magistrate Judge.

27

Court on the parties’ Joint Stipulation filed on February 14, 2006.

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On May 12, 2005, the parties

This matter is before the

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 2 of 37 Page ID #:66

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(Joint Stipulation (“JS”) at 1-15).

For the reasons stated below, the

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decision of the Commissioner is AFFIRMED.

3 PROCEDURAL HISTORY

4 5 6

On February 7, 2003, Plaintiff protectively filed an application

7

for SSI benefits. (Administrative Record (hereinafter “AR”) 70-75). He

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claimed that he became unable to work on June 23, 2002 due to vision and

9

hearing conditions; speech and mental problems; and injuries to the

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head, neck, arms, legs.

(AR 79).

11 The Agency denied Plaintiff’s application on June 13, 2003.1

12

Thereafter,

Plaintiff

requested

a

hearing

before

(AR

13

56-59).

14

Administrative Law Judge (hereinafter “ALJ”).

15

before ALJ Robert Evans was conducted on September 21, 2004.

16

54).

17

behalf.

18

testified.

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denying Plaintiff benefits.

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Appeals Council denied Plaintiff’s request for review and the ALJ’s

21

decision became the final decision of the Commissioner.

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Plaintiff subsequently filed his Complaint on April 14, 2005.

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(AR 60-61).

an

A hearing (AR 25-

Plaintiff, who was represented by counsel, testified on his own (AR 29-44). (AR 44-53).

A vocational expert (hereinafter “VE”) also On November 24, 2004, the ALJ issued a decision (AR 11-19).

On February 18, 2005, the

(AR 5-7).

27 1

28

This being a prototype case, the next level of review was before an Administrative Law Judge. (AR 14, 55, 58). 2

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 3 of 37 Page ID #:67

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FACTUAL BACKGROUND

2 3

Plaintiff was born on June 6, 1956 and was forty-eight years old at

4

the time of the hearing.

5

equivalency diploma (G.E.D.) and his past work experience includes

6

employment as a house painter, a heavy equipment operator and an

7

automobile mechanic. (AR 15, 29-34, 80, 85). Plaintiff alleges that he

8

became disabled on June 23, 2002 due to numerous ailments including

9

vertigo, poor vision, headaches, mental impairments, and pain in his

10

(AR 15; 29; 71).

left leg, left wrist, neck and lower back.

He has a high school

(AR 29, 38, 40, 71, 79).

11 In his daily activities questionnaire, Plaintiff asserted that he

12 13

lived alone in his van.

(AR 104).

He stated that he tries to “stay out

14

of the van as much as possible” due to fear of being “closed in.”

15

105).

16

“fear of people.”

17

able to prepare his own meals and perform household chores.

(AR

Plaintiff also stated that he did not shop often because of his (AR 106).

However, Plaintiff also stated that he was (AR 106).

18 19

A.

Plaintiff’s Testimony

20 21

Plaintiff testified that his ailments arose after being assaulted

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with a sledge hammer.

(AR 34).

Among his numerous ailments, Plaintiff

23

stated that his vertigo and the leg pain (i.e., “from the knee down”)

24

were his most severe disabilities.

25

vertigo

26

wrist.

27

“foot is asleep and [his] toes are tingling”).

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Plaintiff alleged that, due to the pain in his left wrist, he did not

(AR 34).

He asserted that his

has caused him to fall down, resulting in further injury to his (AR 36-37).

He also alleged that his leg “gets numb” (i.e., his

3

(AR 42).

In addition,

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 4 of 37 Page ID #:68

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use his left hand often because he “[did not] trust it.”2

2

Plaintiff

3

interfered with his concentration.

4

headaches compounded his vision problems, causing him to see “spots” and

5

“flashes.”

stated

that

he

suffered

from

constant

(AR 37-38).

(AR 38).

headaches,

which

He testified that the

(AR 38-39).

6 7

As for his mental impairments, Plaintiff testified that he had

8

auditory hallucinations, short-term memory impairment, claustrophobia

9

and social anxiety.

(AR 29, 40-42). (AR 42).

He commented that he “get[s] real

10

fidgety” around people.

Plaintiff stated that he did not seek

11

treatment for his hallucinations because he was not insured.

(AR 41).

12 13

Plaintiff opined that he was only able to walk for about 100 feet

14

without

resting.

15

continuously

16

continuously sit for more than thirty minutes.

17

addition, Plaintiff testified that he was able to lift and carry only “a

18

gallon of water.”

stand

(AR

42).

He

for

more

than

alleged fifteen

that or

he

was

thirty

unable

to

minutes,

or

(AR 42-43).

In

(AR 43).

19 20

B.

Treating Physicians’ Evaluation

21 1.

22

Harbor-UCLA Medical Center

23 Plaintiff

24 25

received

medical

care

and

therapy

from

Harbor-UCLA

Medical Center (hereinafter “Harbor”) from June 23, 2002 to September

26 27 2

28

Plaintiff’s left wrist was fractured during the assault.

38). 4

(AR

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 5 of 37 Page ID #:69

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28, 2002.3

2

from St. Mary’s Hospital to the emergency department at Harbor for

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further evaluations of the head injury suffered during the assault. (AR

4

130). The record indicates that Plaintiff suffered injuries to his head

5

and extremities, including his left knee and left wrist.

6

120, 128-30, 132-33, 138).

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be suffering postconcussive syndrome or intoxication and/or withdrawal.

8

(AR 130).

9

he asserted that he did not currently use drugs.

(AR 113-46).

On June 23, 2002, Plaintiff was transferred

(AR 115-18,

The physician also noted that Plaintiff may

Furthermore, Plaintiff’s social history was noted, in which

10

that he tested positive for amphetamines.4

11

“drugs”), 130).

However, it appears

(AR 116 (notation following

12 Multiple CT scans of the head and an EEG of the brain were

13 14

conducted, all returning with normal results.5

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There was no evidence of intraparenchymal hemorrhage but minimal scalp

16

swelling was present in the mid-frontal region. (AR 145). Furthermore,

17

a CT scan of Plaintiff’s left knee was performed due to his complaints

18

of pain.

(AR 122).

(AR 122, 143, 145).

The doctor opined that the pain was the result of

19 20 21 22 23 24 25

3

Plaintiff therapists.

received

medical

care

from physicians and

4

The record indicates that Plaintiff informed the UCLA emergency department that he is a “former” speed user. (AR 130). Additionally, the record contains conflicting information as to whether he uses alcohol. Plaintiff denied consuming alcohol to Dr. Murphy, (AR 130), while to another physician he admitted to doing so. (AR 136). Still, Harbor’s laboratory report indicates that Plaintiff tested positive for less than 5 mg/dL of ethanol. (AR 142).

26 5

27 28

CT scans were conducted twice at Harbor, on June 23, 2002 and on June 24, 2002. (AR 122). The record also indicates that a CT scan was performed at St. Mary’s, which similarly displayed normal results. (AR 130). 5

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 6 of 37 Page ID #:70

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arthritis

but

2

unnecessary.

determined

that

acute

surgical

intervention

was

(AR 122).

3 On

4

June

24,

2002,

Casie

Graham,

a

speech

pathology

intern,

5

determined that Plaintiff had reduced language skills (i.e., auditory

6

processing and word retrieval deficiencies).

7

she

8

understandable.6

9

cognition was “automatic” and therefore appropriate.7

noted

that

Plaintiff’s (AR 131).

speech

was

(AR 131).

distorted

In addition,

but

was

still

Ms. Graham assessed that Plaintiff’s She opined that

10

Plaintiff’s prognosis was “good to reach [the] premorbid level of

11

communication.”

(AR 131).

12 Rodica Gudea, a physical therapist, conducted an evaluation on

13 14

August 2, 2002.

(AR 121, 125).

Ms. Gudea determined that Plaintiff had

15

passive range of motion in both of his lower extremities.

16

She also noted Plaintiff’s complaints concerning lower back pain, which

17

derived from his necessity to limp, due to the pain in his legs.8

18

125).

19

scheduled for August 20, 2002.

20

2002, Ms. Gudea noted that progress had not been made and that Plaintiff

(AR 125).

(AR

Plaintiff missed his next physical therapy session that was (AR 119).

Thereafter, on September 12,

21 22 6

23 24 25 26 27 28

Problems with his denture bridge may have contributed to Plaintiff’s speech distortions. (AR 135). 7

Plaintiff was assessed a cognition rating of level 7 (out of eight levels). Level 7 is assessed to a person whose cognition is deemed “automatic-appropriate” while level 8 is for one whose cognition is “purposeful-appropriate.” (AR 131). 8

Plaintiff complained that he now felt pain in both of his legs. (AR 125). This was probably due to Plaintiff’s need to overcompensate with his right leg. 6

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would be discharged because “[patient] declines to cont. intervention.”

2

(AR 119).

3 4

On September 28, 2002, Plaintiff returned to Harbor, complaining of

5

pain in his left wrist.

(AR 115-18).

He asserted that the pain arose

6

after his cast fell off.

7

returned negative, but the treating physician noted that Plaintiff had

8

a limited range of motion in his left wrist.

9

the physician commented that though Plaintiff’s cast fell off five days

10

prior to this current visit, Plaintiff did not seek recasting as

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instructed by the orthopedic physicians.

(AR 116, 118).

The x-rays on the wrist

(AR 115-16).

In addition,

(AR 116).

12 2.

13

Dr. Salvatore Danna

14 Dr. Salvatore Danna was Plaintiff’s treating physician from October

15 16

28, 2002 to July 22, 2004.

(AR 197-209).

Throughout the course of

17

treatment, Dr. Danna noted Plaintiff’s complaints of dizziness.

18

198-99, 205-08).

19

pressure.

20

had mood swings and was feeling depressed. (AR 207-08). Thereafter, an

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EEG and MRI of Plaintiff’s brain were performed on June 25, 2003 and

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November 8, 2003, respectively.

23

with normal results.

(AR

Dr. Danna also diagnosed Plaintiff with high blood

(AR 208).

On April 15, 2003, Dr. Danna noted that Plaintiff

(AR 203, 206).

Both tests returned

(AR 203, 206).

24 25

On September 24, 2003, Dr. Danna commented that though arthritis

26

was forming in the site of Plaintiff’s wrist fracture, Plaintiff “ha[d]

27

done remarkably well in the past few months.”

28

noted

that

Plaintiff

was

“doing

physical 7

(AR 204).

therapy

on

his

Dr. Danna own

and

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 8 of 37 Page ID #:72

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ambulating continuously throughout the day.”

2

commented that Plaintiff continues to have stiffness and incoordination

3

in the left wrist.

4

be able function as “an active person...and perform whatever labor he

5

can[,]” for the weakness and incoordination of the wrist were mild. (AR

6

204).

(AR 204).

(AR 204).

Dr. Danna

However, he opined that Plaintiff should

7 On December 12, 2003, Dr. Danna diagnosed Plaintiff with cervical

8 9

strain, vertigo and head trauma.

(AR 198).

Then, on July 22, 2004, he

10

diagnosed Plaintiff with lumbar disk disease.

11

indicates that Dr. Danna planned to inject Plaintiff’s L5 nerve root

12

with

13

analgesics), due to Plaintiff’s complaints of lumbar disk disease and

14

radiculopathy.

Depo-Medrol

and

Sensorcaine

(i.e.,

(AR 198).

muscle

The record

relaxants

and

(AR 198, 202).

15 C.

16

Consultative Evaluations

17 Plaintiff underwent multiple consultative examinations.

18

On April

19

14, 2003, Dr. John Sedgh conducted an internal medicine evaluation. (AR

20

147-53). He commented that Plaintiff was well-developed, well-nourished

21

and in no acute distress.

22

Sedgh determined Plaintiff’s grip strength to be 110 pounds of force for

23

his right hand and ninety pounds of force for his left hand.

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Dr. Sedgh opined that Plaintiff’s grip was normal.

25

found no evidence of synovial thickening or deformities in Plaintiff’s

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(AR 148).

8

Using the Jamar dynamometer, Dr.

(AR 150).

(AR 148). He also

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 9 of 37 Page ID #:73

1

wrists.

(AR 150).

Furthermore, the range of motion of Plaintiff’s

2

wrists was within normal limits.9

(AR 150).

3 4

Dr. Sedgh noted that the range of motion of Plaintiff’s lumbar

5

spine was limited, with the flexion of 20/90 degrees and extension and

6

lateral flexion of 15/30 degrees. (AR 149; 151). X-rays of Plaintiff’s

7

lumbosacral spine showed spondylosis, but there was no evidence of

8

compression or other fractures and the pedicles were intact.10 (AR 153).

9

Additionally, Dr. Sedgh found no evidence of muscle spasm or paraspinal

10

tenderness, and the straight-leg-raising test was negative.

11

He also determined that Plaintiff’s knees were normal, with no evidence

12

of inflamation or deformities and the range of motion within normal

13

limits.

14

within normal limits.

(AR 150).

(AR 149).

Moreover, Dr. Sedgh found that Plaintiff’s gait was (AR 151).

15 16

Dr. Sedgh also conducted a neurological examination, which revealed

17

that Plaintiff’s motor strength in all of his extremities was normal

18

(i.e., 5/5).

19

cerebellar functioning (i.e., coordination) were intact.

20

also determined that Plaintiff’s sensations and vision were grossly

21

intact.11

(AR 150).

In addition, Dr. Sedgh noted that Plaintiff’s (AR 150).

He

(AR 150).

22 23 24 25

9

Dr. Sedgh also found that Plaintiff had full range of motion of the neck. (AR 151). 10

26 27 28

The x-rays also revealed that Plaintiff had atherosclerosis of the abdominal aorta. (AR 153). 11

The visual acuity test revealed that Plaintiff had a corrected vision (i.e., with glasses) of 20/25 when examining both of his eyes together and each eye separately. (AR 152). 9

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 10 of 37 Page ID #:74

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Thereafter, Dr. Sedgh opined that Plaintiff could lift and carry

2

twenty pounds occasionally and ten pounds frequently; could stand and

3

walk for six hours and sit for six hours in an eight-hour workday; and

4

did not have any postural, manipulative or environmental limitations.

5

(AR 151).

6 On

7

June

5,

2004,

Dr.

Norma

Aguilar

conducted

a

psychiatric

8

evaluation and a mental status examination (hereinafter “MSE”) was

9

administered. (AR 178-82). Dr. Aguilar noted that Plaintiff was alert,

10

well-developed, well-nourished and in no acute distress.

11

Plaintiff denied alcohol or drug abuse.

12

oriented to time, place, person and situation; had normal fund of

13

knowledge, memory, concentration, calculation, abstraction, insight and

14

judgment; and did not have disorganized thinking or looseness of

15

association.

16

Plaintiff’s mood during the examination was noted as being sad and

17

irritable.

18

“poor to disturbed” sleep, poor appetite and occasional anxiety.

19

179).

(AR 179-80).

(AR 179).

(AR 179).

(AR 179).

Plaintiff was

Though he denied having mood swings,

Dr. Aguilar also recorded that Plaintiff had (AR

20 Dr. Aguilar noted that Plaintiff denied having hallucinations or

21 22

delusions, or experiencing suicidal or homicidal ideation.

(AR 178,

23

180). Plaintiff also denied any prior psychiatric hospitalization. (AR

24

179).

25

of living in the streets.”

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He stated that he was “stressed because he [was] [o]n the verge (AR 178).

10

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Thereafter, Dr. Aguilar assessed Plaintiff’s Global Assessment of

2

Function (hereinafter “GAF”) at 62.12

3

with adjustment disorder with mixed emotional features and posttraumatic

4

stress disorder.

5

understand,

6

instructions; could make judgments on simple work-related decisions;

7

would have mild difficulty interacting appropriately with the public,

8

coworkers and supervisors; could comply with job rules such as safety

9

and attendance; could respond to changes in the routine work setting;

10

and would have mild difficulty responding appropriately to work pressure

11

in a usual work setting.

12

prognosis was fair.

(AR 180).

remember

and

(AR 180).

He diagnosed Plaintiff

Dr. Aguilar opined that Plaintiff could carry

out

(AR 180).

short,

simple

and

detailed

He concluded that Plaintiff’s

(AR 180).

13 14

On

June

7,

2004,

(AR 183-92).

Dr.

Sarah

Maze

conducted

a

neurological

15

evaluation.

She noted Plaintiff’s complaints of weakness

16

in his left arm, vertigo, short-term memory impairment, coordination

17

impairment and fear of being around people.

18

recorded Plaintiff’s statement that he takes daily walks for about

19

twenty (20) miles in order to relieve stress.

20

Dr. Maze commented that Plaintiff appeared tense and gave poor eye

(AR 184).

(AR 184).

Dr. Maze also

In addition,

21 22 23 24 25 26 27 28

12

A GAF score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereinafter “DSM IV”). A GAF of 61-70 denotes “[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 relationship).” See DSM IV at 34. 11

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1

contact.

(AR 185).

However, Plaintiff was oriented to person, place

2

and time, and his attention and concentration were not impaired.

3

185).

(AR

4 5

A motor examination of Plaintiff’s extremities revealed essentially

6

normal strength.

(AR 185).

7

extremities (i.e., left hip flexion, left leg extension, left leg

8

flexion, left foot dorsiflexion, left foot eversion and left foot

9

inversion) were assessed a rating of 5-/5, while his other extremities

10

(i.e., both deltoids, both biceps, both triceps, both wrist extensions,

11

right hip flexion, right extension, right leg flexion, right foot

12

dorsiflexion, right foot eversion and right foot inversion) were given

13

a rating of 5/5.

14

Plaintiff’s grip strength was assessed at 75/75/75 for his right hand

15

and 90/90/90 for his left hand.

(AR 185).

Specifically, Plaintiff’s lower left

In addition, using the Jamar dynamometer,

(AR 185).

16 17

A sensory examination revealed that Plaintiff’s sensations were

18

intact to light touch, pinprick, temperature and vibration throughout

19

Plaintiff’s upper and lower extremities.

20

recorded that the cerebellar functioning of Plaintiff’s left side was

21

mildly impaired. (AR 186). Specifically, the finger-nose-finger, rapid

22

alternating movements and rhythmic-toe-tapping tests were performed with

23

slight coarse slowness on Plaintiff’s left side.

24

also noted that Plaintiff ambulated with a slight widened base and was

25

unsteady while performing a tandem walk.

(AR 186).

However, Dr. Maze

(AR 186).

Dr. Maze

(AR 186).

26 27 28

Dr. Maze diagnosed Plaintiff with post-head trauma and opined that Plaintiff had “some slight focal findings.” 12

(AR 186).

She commented

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 13 of 37 Page ID #:77

1

that “the CT scan did not reveal significant abnormalities after [the]

2

injury.”

3

carry twenty-five pounds occasionally and frequently; could stand and/or

4

walk for about six hours and sit for an unlimited time period in an

5

eight-hour workday; had no limitations in pushing and/or pulling; could

6

climb

7

occasionally; could kneel, crouch, crawl and stoop frequently; and had

8

no manipulative, visual, communicative or environmental limitations.

9

(AR 193-96).

10

(AR 186).

(ramps,

Dr. Maze opined that Plaintiff could lift and/or

stairs,

ladders,

ropes

and

scaffolds)

and

balance

She reasoned that Plaintiff had exertional and postural

limitations due to mild ataxia of the lower extremities.

(AR 194).

11 On

12

April

29,

2003,

a

physical

residual

functional

capacity13

13

(hereinafter “RFC”) assessment was completed by Dr. Wilson, a state

14

Disability Determination Service (hereinafter “DDS”) physician.

15

154-62).

16

twenty pounds occasionally and ten pounds frequently; could stand and/or

17

walk for about six hours and sit for about six hours in an eight-hour

18

workday; had no limitations in pushing and/or pulling; could never climb

19

ladders, ropes or scaffolds; could occasionally climb ramps or stairs;

20

could occasionally balance, stoop, kneel, crouch and crawl; had no

21

manipulative, visual, or communicative limitations; and must avoid

22

concentrated exposures to heights (but otherwise had no environmental

23

limitations).

24

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25

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(AR

Dr. Wilson opined that Plaintiff could lift and/or carry

(AR 155-58).

26 27 28

13

RFC is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 13

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 14 of 37 Page ID #:78

1

On June 2, 2003, Dr. Mendelsohn completed a psychiatric review

2

technique form but could not make an assessment, due to insufficient

3

data.

4

and argumentative during two prior psychiatric examinations, and thus

5

the evaluations could not be conducted.

6

commented that Plaintiff was diagnosed with postconcussive syndrome but

7

his mental state was cleared while he was at Harbor.

8

Mendelsohn also noted that Plaintiff was suspected of possible substance

9

intoxication or withdrawal.

(AR 163-77).

However, he noted that Plaintiff was very agitated

(AR 175; 177).

Dr. Mendelsohn

(AR 175).

Dr.

(AR 175).

10 11

D.

Vocational Expert’s Testimony

12 13

Ms. Jeannie Metildi testified at the hearing as a VE.

(AR 25-26,

14

44-53).

She asserted that Plaintiff’s past positions as a house

15

painter, a heavy equipment operator and an automobile mechanic required

16

medium exertion and were considered to be skilled.

17

posed several hypotheticals to Ms. Metildi, including one involving an

18

individual of the same age, education and vocational background as

19

Plaintiff,

20

occasionally; could stand or walk for six hours and sit unlimitedly in

21

an eight-hour workday; could occasionally but not frequently climb

22

stairs and ramps, balance, crouch, crawl, stoop and kneel; could never

23

climb ladders or ropes; and could never work on scaffolds or other

24

unprotected heights.

25

the VE indicated that the individual could not understand, remember or

26

execution short, simple and detailed instructions; could make judgments

27

on simple work-related decisions; could not understand and follow

28

complex instructions; had mild difficulty interacting appropriately with

who

could

lift

about

(AR 44-46).

twenty

pounds

(AR 44).

The ALJ

frequently

and

Furthermore, the question posed to

14

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 15 of 37 Page ID #:79

1

the public, coworkers or supervisors; could comply with job rules such

2

as safety and attendance; could respond to changes in the work setting;

3

and had mild difficulty responding appropriately to work pressures in a

4

usual work setting.

(AR 46-47).

5 6

Ms. Metildi opined that although the individual could not perform

7

Plaintiff’s past relevant work, the individual could perform certain

8

unskilled,

9

inspector/hand packager.

light

work,

including (AR 47).

work

as

an

office

helper

and

Ms. Metildi acknowledged that these

10

jobs required Reasoning Level 2 within the DOT’s scale of General

11

Education Development (hereinafter “GED”), whereby one must be able to

12

apply commonsense understanding to carry out detailed but uninvolved

13

instructions.

14

concept of “detailed” did not require an individual to understand

15

detailed instructions and perform semiskilled work.

16

she testified that these jobs were unskilled, simple work, where an

17

individual did not have to make any difficult decisions.

18

Furthermore, Ms. Metildi stated that she had observed many packaging

19

jobs and that they did not involve “detailed” instructions.

(AR 49-50, 52).

However, she asserted that the DOT’s

(AR 50).

Rather,

(AR 51).

(AR 53).

20 21

THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS

22 23

To qualify for disability benefits, a claimant must demonstrate a

24

medically determinable physical or mental impairment that prevents him

25

from engaging in substantial gainful activity14 and that is expected to

26 27 28

14

Substantial gainful activity means work that involves doing significant and productive physical or mental duties, and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 15

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 16 of 37 Page ID #:80

1

result in death or to last for a continuous period of at least twelve

2

months.

3

U.S.C. § 423(d)(1)(A)).

4

incapable of performing the work he previously performed and incapable

5

of performing any other substantial gainful employment that exists in

6

the national economy.

7

1999) (citing 42 U.S.C. § 423(d)(2)(A)).

Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 The impairment must render the claimant

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

8 9 10

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry.

20 C.F.R. §§ 404.1520, 416.920.

The steps are:

11 12

(1)

Is the claimant presently engaged in substantial gainful

13

activity? If so, the claimant is found not disabled. If

14

not, proceed to step two.

15

(2)

Is

the

claimant’s

impairment

16

claimant is found not disabled.

17

three.

18

(3)

severe?

If

not,

the

If so, proceed to step

Does the claimant’s impairment meet or equal one of a

19

list of specific impairments described in 20 C.F.R. Part

20

404, Subpart P, Appendix 1? If so, the claimant is found

21

disabled.

22

(4)

If not, proceed to step four.

Is the claimant capable of performing his past work?

23

so, the claimant is found not disabled.

24

to step five.

25

(5)

If

If not, proceed

Is the claimant able to do any other work?

If not, the

26

claimant is found disabled. If so, the claimant is found

27

not disabled.

28 16

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 17 of 37 Page ID #:81

1

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d

2

949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098-99); 20

3

C.F.R. §§ 404.1520(b) - 404.1520(f)(1) & 416.920(b) - 416.920(f)(1).

4 5

The claimant has the burden of proof at steps one through four, and

6

the Commissioner has the burden of proof at step five.

7

F.3d at 953-54 (citing Tackett, 180 F.3d at 1098).

8

ALJ has an affirmative duty to assist the claimant in developing the

9

record at every step of the inquiry.

Id. at 954.

Bustamante, 262

Additionally, the

If, at step four, the

10

claimant meets his burden of establishing an inability to perform past

11

work, the Commissioner must show that the claimant can perform some

12

other work that exists in “significant numbers” in the national economy,

13

taking into account the claimant’s RFC, age, education, and work

14

experience.

15

20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1).

16

by the testimony of a vocational expert or by reference to the Medical-

17

Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P,

18

Appendix 2 (commonly known as “the Grids”).

19

F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1100-01).

20

When a claimant has both exertional (strength-related) and nonexertional

21

limitations, the Grids are inapplicable and the ALJ must take the

22

testimony of a vocational expert.

23

(9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir.

24

1988)).

25

\\

26

\\

27

\\

28

\\

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; The Commissioner may do so

Osenbrock v. Apfel, 240

Moore v. Apfel, 216 F.3d 864, 869

17

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 18 of 37 Page ID #:82

THE ALJ’S DECISION

1 2 3

The

ALJ

employed

the

five-step

sequential

evaluation

process

4

discussed above.

At the first step, the ALJ found that Plaintiff had

5

not engaged in substantial gainful activity since his alleged onset of

6

disability.

7

Plaintiff

8

posttraumatic stress disorder, left knee and left wrist arthritis,

9

lumbar spondylosis and atherosclerosis.15

(AR 18).

had

At the second step, the ALJ determined that

adjustment

disorder

with

mixed

emotional

(AR 18).

features,

These impairments,

10

in combination, were deemed to be “severe.”

(AR 18).

At the third

11

step, the ALJ found that the impairments did not meet or medically equal

12

any of the impairments set forth in 20 C.F.R. Part 404, Subpart P,

13

Appendix 1.

(AR 18).

14 15

At the fourth step, the ALJ found that Plaintiff was unable to

16

perform any of his past relevant work.

(AR 19).

17

based on the ALJ’s finding that Plaintiff retained the RFC to perform a

18

significant range of light work.

19

could lift twenty-five pounds occasionally and frequently; stand, walk

20

and sit without limitations; climb and balance occasionally; and kneel,

21

crouch, crawl and stoop frequently.16

(AR 19).

(AR 19).

This determination was

Specifically, Plaintiff

In addition, Plaintiff

22 23 24 25 26 27 28

15

The ALJ mistakenly states that Plaintiff had right knee and right wrist arthritis. (AR 18). However, the record shows that the ailments concerned Plaintiff’s left knee and left wrist. (AR 29, 38, 40, 115-18, 130, 147, 204). 16

In addition, the ALJ found that Plaintiff was a “younger” individual between the ages of forty-five and forty-nine, had a high school (or high school equivalent) education and had no transferable skills from any past relevant work and/or transferability of skills was not an issue in this case. (AR 19). 18

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 19 of 37 Page ID #:83

1

could perform simple, repetitive tasks; could make simple judgments;

2

would have mild difficulty interacting with others; could comply with

3

job safety and attendance rules; could respond to changes in the routine

4

work setting; and would have mild difficultly responding to pressures in

5

the workplace.

(AR 18-19).

6 7

The ALJ did not accept the consultative examiner’s assessment

8

conducted by the internist, but instead gave Plaintiff “the benefit of

9

the

doubt

and

adopt[ed]

the

more

restrictive

residual

functional

10

capacity assessment of the examining neurologist.”

(AR 15).

However,

11

the ALJ did not fully credit Plaintiff’s allegations regarding his

12

limitations because they were not totally credible.

(AR 18).

13 At the fifth step, based on Plaintiff’s RFC and the VE’s testimony,

14 15

the

ALJ

concluded

16

significant

17

inspector/hand packager or office helper. (AR 19). Thus, Plaintiff was

18

not disabled at any time through the date of the decision.

numbers

that in

Plaintiff the

could

national

perform

economy,

work

such

as

existing

in

that

an

of

(AR 19).

19 STANDARD OF REVIEW

20 21 22

Under

42

U.S.C.

§

405(g),

a

district

court

may

review

the

23

Commissioner’s decision to deny benefits.

24

Commissioner’s decision when the ALJ’s findings are based on legal error

25

or are not supported by substantial evidence in the record as a whole.

26

Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing

27

Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th

28

Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 19

The court may set aside the

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 20 of 37 Page ID #:84

“Substantial evidence is more than a scintilla, but less than a

1 2

preponderance.”

3

112 F.3d 1064, 1066 (9th Cir. 1997)).

4

reasonable person might accept as adequate to support a conclusion.”

5

Reddick, 157 F.3d at 720 (citing Jamerson, 112 F.3d at 1066; Smolen, 80

6

F.3d at 1279).

7

finding, the court must “‘consider the record as a whole, weighing both

8

evidence

9

[Commissioner’s] conclusion.’”

that

Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, It is “relevant evidence which a

To determine whether substantial evidence supports a

supports

and

evidence

that

detracts

from

the

Aukland, 257 F.3d at 1035 (citing Penny

10

v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

If the evidence can

11

reasonably support either affirming or reversing that conclusion, the

12

court may not substitute its judgment for that of the Commissioner.

13

Reddick, 157 F.3d at 720-21 (citing Flaten v. Sec’y of Health & Human

14

Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

15 DISCUSSION

16 17

Plaintiff contends that the ALJ erred for four reasons.17

18

First,

19

he claims that the ALJ’s nondisability finding was not supported by

20

substantial evidence. (JS at 3). Second, Plaintiff argues that the ALJ

21

failed to properly reject Plaintiff’s subjective complaints. (JS at 4).

22

Third, he alleges that the ALJ failed to develop the record.

23

9).

24

Plaintiff retained the ability to perform the alternate occupations

(JS at 5,

Fourth, Plaintiff alleges that the ALJ erred in finding that

25 26 27 28

17

The first three issues were raised under a single argument which questioned whether the ALJ’s nondisability finding was supported by substantial evidence. (JS at 2). 20

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 21 of 37 Page ID #:85

1

identified by the VE.

2

contentions.

(JS at 10).

The Court disagrees with Plaintiff’s

3 4

A.

The ALJ’s RFC Finding Was Supported By Substantial Evidence

5 6

Plaintiff argues that the ALJ’s RFC finding was not supported by

7

substantial evidence. (JS at 3). He contends that the medical evidence

8

of record supports a more restrictive RFC than that found by the ALJ.

9

(JS at 3).

10 11

In determining a claimant’s RFC, the ALJ must consider whether a

12

claimant’s impairments may disable him to such an extent that he is

13

unable to perform available work.

14

Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997).

15

RFC determination based upon medical information in the record plus all

16

other record evidence. 20 C.F.R. § 404.1545(a); see Andrews v. Shalala,

17

53 F.3d 1035, 1043 (9th Cir. 1995).

20 C.F.R. § 404.1523; Light v. Soc. The ALJ must make the

18 19

Here, the ALJ found that Plaintiff could lift twenty-five pounds

20

occasionally and frequently; stand, walk and sit without limitations;

21

climb and balance occasionally; and kneel, crouch, crawl and stoop

22

frequently.

23

repetitive

24

difficulty interacting with others; could comply with job safety and

25

attendance rules; could respond to changes in the routine work setting;

26

and

27

workplace.

would

(AR 19). tasks;

have

In addition, Plaintiff could perform simple,

could

mild

make

simple

difficultly

(AR 18-19).

28 21

judgments;

responding

to

would

have

pressures

in

mild

the

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 22 of 37 Page ID #:86

1

The ALJ determined Plaintiff’s physical RFC based on a neurological

2

examination conducted by Dr. Maze, who opined that Plaintiff had some

3

“slight focal findings.”

4

cerebellar functioning of Plaintiff’s left side was slightly impaired,

5

Plaintiff’s right side was normal.

6

examination testing the strength of Plaintiff’s extremities did not

7

reveal any significant impairment. (AR 185). Furthermore, CT scans and

8

EEGs of the brain returned with normal results.

9

203, 206).

(AR 15, 186).

Specifically, though the

(AR 186).

In addition, a motor

(AR 122, 143, 145, 183,

10 11

In regard to Plaintiff’s left wrist, Dr. Danna opined that the

12

weakness and incoordination in the left wrist were mild.

(AR 15, 204).

13

Furthermore, using the Jamar dynamometer, Plaintiff’s grip strength was

14

assessed at 75/75/75 for his right hand and 90/90/90 for his left hand.

15

(AR 185).

16 17

The ALJ also noted Dr. Sedgh’s record that Plaintiff had a limited

18

range of motion in his lumbar spine (i.e., flexion was 20/90 degrees,

19

extension and lateral flexion was 15/30 degrees and straight-leg-raising

20

test was negative).

21

spine revealed spondylosis, but the intervertebral disc spaces were not

22

significantly compromised and there was no evidence of compression or

23

other fracture.

(AR 15, 149).

In addition, x-rays of the lumbar

(AR 153).

24 25

In determining Plaintiff’s mental RFC, the ALJ noted that Plaintiff

26

did not take any psychiatric drugs, has never been psychiatrically

27

hospitalized, did not have suicidal or homicidal ideation, and did not

28

have any hallucinations.

(AR 16, 178-79). 22

The ALJ also noted the MSE

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 23 of 37 Page ID #:87

1

administered by Dr. Aguilar, which revealed that Plaintiff was alert and

2

oriented; had normal speech rate, tone, fund of knowledge, memory,

3

concentration, calculation, abstraction, insight and judgment; and did

4

not have disorganized thinking or looseness of association.

5

179-80).

6

alleged physical and mental impairments support the ALJ’s RFC finding.

7

As such, no remand is required.

Accordingly,

the

medical

records

concerning

(AR 16,

Plaintiff’s

8 9

B.

The ALJ Properly Rejected Plaintiff’s Subjective Symptom Testimony As Not Credible

10 11 12

Plaintiff contends that the ALJ erred in finding that Plaintiff’s

13

subjective complaints were not credible.

14

Plaintiff argues that the ALJ failed to make an “explicit, full and

15

detailed” finding as to credibility, supported by specific, cogent

16

reasons for the disbelief.18 (JS at 5-6). Plaintiff argues that the ALJ

17

improperly isolated parts of the record to support his nondisability

18

finding.

19

demonstrates the significant limitations in his ability to stand and

20

walk for prolonged periods.

(JS at 5).

(JS at 4).

Specifically,

He contends that close scrutiny of the record

(JS at 5).

21 22 23 24 25 26 27 28

18

In the Joint Stipulation, Plaintiff initially argued that the “ALJ may not reject [Plaintiff’s] subjective allegations solely on the lack of objective medical evidence to fully corroborate the severity of the alleged symptoms.” (JS at 4). Defendant then responded that the ALJ also considered inconsistencies in Plaintiff’s testimony. (JS at 8). Plaintiff now contends that the ALJ erred because the “ALJ’s sole reason for rejecting [Plaintiff’s] subjective complaints was that his activities were incompatible with these complaints.” (JS at 9). Plaintiff is essentially acknowledging that the ALJ based his credibility determination on at least two different reasons. However, as will be discussed below, the ALJ provided numerous other reasons in discrediting Plaintiff’s complaints. 23

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 24 of 37 Page ID #:88

1

Generally, a claimant’s credibility becomes important at the stage

2

where the ALJ assesses RFC because the claimant’s subjective statements

3

may

4

Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001) (citing Social

5

Security Ruling 96-7p).

6

testimony regarding his limitations if the ALJ makes specific findings

7

stating clear and convincing reasons for doing so.

8

at 1283-84 (citing Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993);

9

see also Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995) (as amended)

10

(explaining that unless there is affirmative evidence showing that the

11

claimant is malingering, the ALJ’s reasons for rejecting the claimant’s

12

testimony must be “clear and convincing”).

13

plaintiff’s testimony if he makes an explicit credibility finding that

14

is “supported by a specific, cogent reason for the disbelief.”

15

v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (internal citations

16

omitted).

denote

greater

limitations

than

can

medical

evidence

alone.

However, the ALJ may discredit a claimant’s

See Smolen, 80 F.3d

The ALJ may reject a

Rashad

17 18

Although the absence of objective medical findings to support the

19

degree

of

pain

cannot

be

the

sole

reason

to

reject

subjective

20

complaints, it has been recognized as one valid consideration.

21

Wainwright v. Sec’y of Health & Human Servs., 939 F.2d 680, 682 (9th

22

Cir. 1991).

23

claimant’s subjective complaints include the following: (1) ordinary

24

techniques of credibility evaluation, such as the claimant’s reputation

25

for lying, prior inconsistent statements concerning the symptoms and

26

other testimony by the claimant that appears less than candid; (2)

27

unexplained or inadequately explained failure to seek treatment or to

28

follow a prescribed course of treatment; and (3) the claimant’s daily

See

Other factors that the ALJ may use to discredit a

24

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 25 of 37 Page ID #:89

1

activities.

Smolen, 80 F.3d at 1284; see also Thomas v. Barnhart, 278

2

F.3d 947, 958-59 (9th Cir. 2002) (listing factors including: (1) the

3

claimant's reputation for truthfulness; (2) inconsistencies either in

4

the claimant's testimony or between his testimony and his conduct; (3)

5

the claimant’s daily activities; (4) the claimant’s work record; and (5)

6

testimony from physicians and third parties concerning the nature,

7

severity and effect of the symptoms of which the claimant complains)

8

(citing Light, 119 F.3d at 792).

9 10

Plaintiff testified that the vertigo and the leg pain were his most

11

severe disabilities. (AR 34). He asserted that he experienced episodes

12

of dizziness, which caused him to fall down “quite a bit.”

13

He also alleged that his leg felt numb.

14

Plaintiff testified that he did not use his left hand due to the pain

15

and lack of strength in his wrist.

16

experienced pain in his lower back.

17

alleged that he suffered from constant headaches, which interfered with

18

his concentration. (AR 37-38). He stated that the headaches compounded

19

his vision problems, causing him to see “spots” and “flashes.”

20

39).

(AR 38). (AR 40).

(AR 42).

(AR 36-37). In addition,

He also stated that he Furthermore, Plaintiff

(AR 38-

21 22

In regard to his mental impairments, Plaintiff testified that he

23

experienced auditory hallucinations of “the Lord” speaking to him.

24

29).

25

Additionally, Plaintiff asserted that he had claustrophobia, as he felt

26

uneasy in rooms without windows and “real fidgety” around people.

27

41-42).

He also stated that “he forget[s] things real eas[ily].”

28 25

(AR

(AR 41).

(AR

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 26 of 37 Page ID #:90

1

Plaintiff estimated that he was able to walk for about 100 feet

2

without

resting.

3

continuously

4

continuously sit for more than thirty minutes.

5

addition, Plaintiff alleged that he was able to lift and carry about “a

6

gallon of water.”

stand

(AR

42).

for

more

He than

asserted

that

fifteen

or

he

was

thirty

unable

to

minutes,

or

(AR 42-43).

In

(AR 43).

7 8

The ALJ cited several reasons for discounting Plaintiff’s testimony

9

regarding his mental limitations.19 (AR 16). For example, the ALJ found

10

that the psychiatric examinations were not consistent with the degree of

11

mental illness expressed by Plaintiff.

12

an MSE and found that Plaintiff was alert, well-developed, well-

13

nourished

14

Plaintiff’s intellectual functioning and sensorium were normal and his

15

reality contact (i.e., hallucinations, confusion, etc.) was similarly

16

normal.

and

in

no

acute

(AR 16).

distress.

(AR

Dr. Aguilar conducted

179).

Additionally,

(AR 179-80).

17 18 19 20 21 22 23 24 25 26 27 28

19

One of the reasons for the ALJ’s discrediting Plaintiff’s allegation of disabling mental illness was based on Plaintiff’s failure to seek mental health treatment at a free or low-cost clinic. See Smolen, 80 F.3d at 1284. However, Plaintiff’s failure to receive mental health treatment is not a substantial basis upon which to reject a claim of mental disability. See Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996) (quoting Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (questioning practice of chastising an individual with a mental impairment for his exercise of poor judgment in seeking rehabilitation)). Nevertheless, as will be elaborated below, the ALJ provided other sufficient grounds for rejecting Plaintiff’s subjective allegations. Therefore, to the extent the ALJ’s reliance on Plaintiff’s failure to seek mental health treatment was error, it was harmless error. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (harmless error rule applies to review of administrative decisions regarding disability); Booz v. Sec’y of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (same). 26

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 27 of 37 Page ID #:91

1

Thereafter, with

Dr.

mixed

Aguilar

diagnosed

emotional

Plaintiff and

adjustment

2

disorder

3

disorder.

4

that his prognosis was fair.

5

could understand, remember and carry out short, simple and detailed

6

instructions; could make judgment on simple work-related decisions;

7

would have mild difficulty interacting appropriately with the public,

8

coworkers and supervisors; could comply with job rules, such as safety

9

and attendance; could respond to changes in the routine work setting;

10

and would have mild difficulty responding appropriate to work pressure

11

in a usual work setting.

12

psychiatric evaluation was inconsistent with Plaintiff’s assertions that

13

he could not concentrate, had poor short-term memory and experienced

14

auditory hallucinations.

15

ALJ may consider testimony from physicians concerning the nature,

16

severity and effect of the symptoms of which a claimant complains when

17

rejecting subjective testimony). This was a specific, cogent reason for

18

discounting Plaintiff’s testimony.

(AR 179-80).

features

with

posttraumatic

stress

She assessed Plaintiff’s GAF at 62 and opined (AR 180).

(AR 180).

She concluded that Plaintiff

The ALJ correctly found that the

See Light, 119 F.3d at 792 (holding that an

19 20

Additionally, the ALJ noted Plaintiff’s inconsistent statements

21

regarding the existence of his auditory hallucinations.

(AR 16); see

22

Smolen, 80 F.3d at 1284.

23

hallucinations at the hearing, he denied any history of such illness

24

during his psychiatric examination, held less than four months prior to

25

the hearing.20

Though Plaintiff complained of auditory

(AR 25, 29, 40, 178, 180).

Furthermore, although

26 27 28

20

At the hearing, Plaintiff asserted that he started to experience auditory hallucinations “[r]oughly about when [he] was in the hospital” (i.e., after the assault in June 2002). (AR 41). 27

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 28 of 37 Page ID #:92

1

Plaintiff asserts to have complained of his auditory hallucinations to

2

Dr. Danna, the record does not indicate such a complaint.21

3

209).

4

subjective allegations.

(AR 198-

This was a legitimate reason for discrediting Plaintiff’s

5 6

The ALJ also discredited Plaintiff’s subjective allegations because

7

Plaintiff’s conduct during the hearing was not consistent with a

8

disabling mental illness.

9

1087, 1090 (9th Cir. 1999) (finding an ALJ’s reliance on observations of

10

the claimant at the hearing proper when the claimant’s symptoms were

11

inconsistent with the medical evidence and other behavior the claimant

12

exhibited at the hearing).

13

from constant headaches, which interfered with his concentration, he was

14

able to sit through the hearing and participate in answering questions.

15

(AR 37-38).

(AR 16); see Verduzco v. Apfel, 188 F.3d

Though Plaintiff alleged that he suffered

16 17

Furthermore, the ALJ discounted Plaintiff’s complaints of physical

18

disability

(i.e.,

pain)

based

on

the

incompatibility

between

his

19

complaints and his activities. (AR 16); see Thomas, 278 F.3d at 958-59.

20 21

21 22 23 24 25 26 27 28

In his decision, the ALJ noted the inconsistency of reported symptoms by stating that Plaintiff complained of his psychological symptoms only once. (AR 18). It appears that the ALJ is crediting Plaintiff’s assertion that he complained of auditory hallucinations to Dr. Danna. In addition, Plaintiff complained of depression only once to Dr. Danna, despite at least fifteen visits. (AR 16). However, Plaintiff has complained of mood swings twice. (AR 207-08). One of these complaints was made on the same day that he complained of his depression. (AR 207). In addition, the record indicates that Plaintiff had previously been diagnosed with posttraumatic stress disorder (i.e., the record for the first day of treatment from Dr. Danna contains the following: “s/p post trauma stress synd.”). (AR 208). 28

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 29 of 37 Page ID #:93

1

Despite Plaintiff’s testimony that he could only walk 100 feet and stand

2

for less than fifteen or thirty minutes, he reported to Dr. Maze that he

3

walked twenty miles per day in an effort to relieve stress.

4

This admission to Dr. Maze strongly suggests that Plaintiff was not

5

severely limited in his ability to walk or stand.

6

September 24, 2003, Dr. Danna, the treating physician, noted that

7

Plaintiff had been doing “remarkably well in the past few months” and

8

was “ambulating continuously throughout the day.”

9

properly relied on this evidence to conclude that Plaintiff’s assertions

10

(AR 184).

In addition, on

(AR 204).

The ALJ

about his ability to walk were not credible.

11 12

The ALJ made an explicit credibility finding that is supported by

13

specific, cogent reasons for the disbelief, as the ALJ has provided

14

numerous reasons for discounting Plaintiff’s subjective allegations.

15

Accordingly, the ALJ properly rejected Plaintiff’s subjective complaints

16

as not credible.

17

F.3d 947, 959 (9th Cir. 2002) (“If the ALJ’s credibility finding is

18

supported by substantial evidence in the record, [the Court] may not

19

engage in second-guessing.”).

See Rashad, 903 F.2d at 1231; Thomas v. Barnhart, 278

20 21

C.

The ALJ Satisfied His Duty To Develop The Record

22 23

Plaintiff asserts that the ALJ has an affirmative obligation to

24

seek out an explanation for the inconsistencies between Plaintiff’s

25

complaints and his daily activities before using them to discredit him.

26

(AR 5, 9).

27

to develop the record, the Court rejects this claim.

As the ALJ here met his obligations and satisfied his duty

28 29

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 30 of 37 Page ID #:94

1

The ALJ has an affirmative duty to fully and fairly develop the

2

record in a social security case.

3

1150 (9th Cir. 2001). However, the ALJ’s duty to conduct an appropriate

4

inquiry

5

ambiguous

6

inadequate to allow for proper evaluation of the evidence.

7

also Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (duty not

8

triggered where the ALJ did not make a finding that the medical report

9

was inadequate to make a disability determination); Mayes v. Massanari,

10

276 F.3d 453 459-60 (9th Cir. 2001) (stating that an ALJ’s duty to

11

develop the record is triggered by ambiguous or inadequate evidence in

12

the record).

or

gather

evidence

additional or

the

Tonapetyan v. Halter, 242 F.3d 1144,

information

ALJ’s

own

is

finding

solely that

triggered the

record

by is

Id.; see

13 14

Here, the ALJ fulfilled his duty to fully and fairly develop the

15

record.

The agency sought all of Plaintiff’s treating records.

16

hearing, Plaintiff was questioned about his physical and mental ailments

17

and their impact on his daily life.

18

was asked about his education and past work history.

(AR 29-34).

19

Plaintiff underwent multiple consultative examinations.

The ALJ then

20

further developed the record by calling a VE to testify and answer

21

several hypothetical questions. (AR 44-53).

(AR 29, 36-44).

At the

In addition, he

22 23

Plaintiff does not point to any true ambiguity in the record.

To

24

the extent there were inconsistencies in Plaintiff’s testimony, the ALJ

25

properly

26

Plaintiff’s credibility.

27

would have required the ALJ to do more.

28

history and the consultative examinations sufficed to present a full and

considered

those

inconsistencies

in

his

evaluation

of

There was no uncertainty in the record that

30

Plaintiff’s past medical

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 31 of 37 Page ID #:95

1

clear picture of Plaintiff’s impairments.

2

required to further develop the record.

Accordingly, the ALJ was not

3 4

D.

5

The ALJ Properly Concluded That Plaintiff Could Perform The Alternative Occupations Identified By The VE

6 7

Plaintiff contends that the ALJ erred in finding that he retained

8

the ability to perform the alternative work identified by the VE.

9

at 10). Specifically, Plaintiff argues that the VE’s testimony deviated

10

from the Dictionary of Occupational Titles (hereinafter “DOT”) without

11

providing legally sufficient reasons. (JS at 11). The Court disagrees.

(JS

12 13

At step five of the sequential evaluation, the ALJ has the burden

14

to prove that the claimant is able to make an adjustment to other work.

15

Bustamante, 262 F.3d at 953-54.

16

rely on the VE’s testimony that contradicts the DOT if the record

17

contains persuasive evidence to support the deviation.22

18

Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995).

In making his assessments, the ALJ may

See Johnson v.

19 20

According to DOT codes 559.687-074 and 239.567-010, the occupations

21

of an inspector/hand packager and office helper require Reasoning Level

22

2 (out of a six-point scale), where the claimant must have the mental

23

capacity to perform the following:

24 25 26 27 28

22

DOT classifications provide a rebuttable presumption regarding certain jobs and require that the ALJ take notice of the DOT’s classifications. 20 C.F.R. § 404.1566(d)(2)-(5)(e). 31

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 32 of 37 Page ID #:96

1

Apply commonsense understanding to carry out detailed but

2

uninvolved written or oral instructions.

3

involving a few concrete variables in or from standardized

4

situations.

Deal with problems

5 6

(JS, Exhs. 2, 3) (emphasis added).

7 8

The ALJ found that Plaintiff was limited to performing “simple,

9

repetitive” tasks. (AR 18). Plaintiff therefore contends that the VE’s

10

testimony that Plaintiff possessed Reasoning Level 2 deviated from the

11

DOT,

12

“detailed” instructions.23

13

the VE may deviate from the DOT.

14

did not articulate sufficient bases for the deviation.

because

Plaintiff

necessarily

lacks

(JS at 10-11).

the

capacity

to

execute

Plaintiff acknowledges that

However, Plaintiff argues that the ALJ (JS at 11).

15 16

Here, the deviation alleged by Plaintiff does not exist because the

17

reasoning level required of an inspector/hand packager and office helper

18

is consistent with Plaintiff’s RFC to perform “simple, repetitive”

19

tasks.

20

Reasoning Level 2, the second lowest level of reasoning development.

21

Plaintiff assumes that the capacity to carry out “detailed” instructions

22

exceeds that of one who can perform “simple, repetitive” tasks.

23

contrary,

Plaintiff first errs by misreading the DOT’s definition of

the

VE

affirms

that

an

individual

with

To the

Plaintiff’s

24 25 26 27 28

23

Plaintiff contends that he has the mental capability commensurate with Reasoning Level 1, which requires the ability to apply commonsense understanding to carry out simple one- or two-step instructions and deal with standardized situations with occasional or no variables in or from these situations encountered on the job. (JS at 10). 32

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 33 of 37 Page ID #:97

1

limitations, as introduced by the ALJ, can perform tasks commensurate

2

with Reasoning Level 2.

3 4

In his hypothetical, the ALJ asked the VE, Ms. Metildi, whether an

5

individual possessing Plaintiff’s limitations (e.g., one who “[could

6

not]. . . carry[]out short, simple, and detailed instructions,” “could

7

make judgments on simple work[-]related decisions” and “would probably

8

not be able to understand and follow complex instructions”) could

9

perform other work.24

(AR 46-47).

Ms. Metildi testified that such an

10

individual could perform the occupation of an inspector/hand packager or

11

office helper.

(AR 47-48).

12 13

The ALJ then asked whether these jobs could be performed by the

14

hypothetical

individual

15

instructions. (AR 50). Ms. Metildi responded by stating that the DOT’s

16

meaning of “detailed” was different from that of the Social Security

17

regulations.

18

pertained to work that was complex and semi-skilled.

19

Conversely, the DOT’s definition concerned work that was “standardized,

20

uninvolved, [and] not complicated.”

21

stated that the occupations of an inspector/hand packager and office

22

helper were “unskilled[,]” “simple[,] repetitive jobs” and that they

23

“[would] not vary very much at all.”

24

that she had personally witnessed many packaging jobs across numerous

(AR 50).

even

though

they

involved

“detailed”

The Social Security’s definition of “detailed”

(AR 50).

(AR 51).

(AR 18, 50, 52).

Furthermore, Ms. Metildi

She concluded by stating

25 26 27 28

24

In proffering the hypothetical, the ALJ used the term “detailed instructions” consistent with the Social Security regulations’ definition of “detailed,” which means complex. (AR 47, 50). Therefore, the hypothetical concerned an individual who could not carry out complex instructions but could carry out simple, repetitive tasks. 33

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 34 of 37 Page ID #:98

1

factories and did not understand why “the DOT [] describ[ed] [those

2

jobs] as detailed.”

3

these jobs (i.e., those involving the ability to carry out “detailed”

4

instructions according to the DOT) were consistent with the ability to

5

perform “simple, repetitive” tasks.

6

capable of performing simple, repetitive tasks, the VE testified that

7

she believed he could perform the occupations of an inspector/hand

8

packager or office helper. (AR 47-53). Thereafter, the ALJ adopted Ms.

9

Metildi’s testimony.

(AR 53).

Accordingly, Ms. Metildi opined that

(AR 50-53).

As Plaintiff was

(AR 18).

10 11

Plaintiff also fails to account for the qualifier that the DOT

12

places on the term “detailed” as also being “uninvolved.” (JS, Exhs. 2,

13

3).

14

“detailed

15

instructions and reinforces the notion that such a requirement is not as

16

rigorous as Plaintiff alleges.

The requirement of being able to carry out instructions that are but

uninvolved”

displays

the

elementary

nature

of

such

17 18

Although the Ninth Circuit has never reached this issue, other

19

courts have found that a job requiring Reasoning Level 2 is not

20

necessarily inconsistent with a limitation to doing “simple, repetitive

21

tasks.”

22

(stating that Reasoning Level 2 appears more consistent with claimant’s

23

RFC to “simple and routine work tasks”); Meissl v. Barnhart, 403 F.

24

Supp. 2d 981, 983-85 (C.D. Cal. 2005) (holding that Reasoning Level 2

25

jobs are consistent with the ALJ’s limitation to simple, repetitive

26

tasks); Flaherty v. Halter, 182 F. Supp. 2d 824, 850 (D. Minn. 2001)

27

(holding that DOT’s Reasoning Level 2 requirement did not conflict with

28

the ALJ’s limitation to “simple, routine, repetitive, concrete, tangible

See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005)

34

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 35 of 37 Page ID #:99

1

tasks[,]” as the DOT “specifically caveats that the instructions would

2

be uninvolved-that is, not a high level of reasoning”).

3

similarly found Plaintiff’s RFC to be limited to “simple, repetitive”

4

tasks and determined that Plaintiff could perform other work that

5

required Reasoning Level 2. (AR 18-19).

Here, the ALJ

6 7

Furthermore, Ms. Metildi unequivocally testified that Reasoning

8

Level 2 was consistent with the ALJ’s determination that Plaintiff could

9

perform “simple, repetitive” tasks.

(AR 50-53).

This was based on her

10

expertise as a VE and her observations visiting “many factories and

11

see[ing] many packaging jobs[.]”

12

acknowledged in Johnson v. Shalala that relying on a VE’s testimony that

13

a particular claimant can perform a particular work “seems an eminently

14

appropriate use of the vocational expert’s knowledge and experience.”

15

Johnson, 60 F.3d at 1435.

16

of reasoning required by the occupations of an inspector/hand packager

17

and office helper, the Court finds that the VE’s testimony did not

18

deviate from the DOT.

Moreover, the Ninth Circuit has

Given the VE’s testimony on the minimal level

19 20

Even if Ms. Metildi’s testimony had deviated from the DOT, the

21

outcome would have been the same.

As stated above, Ms. Metildi

22

explained that she had personally observed these occupations being

23

performed and knows that the work is simple and repetitive.

24

Metildi’s testimony as to how this work is actually performed would

25

constitute persuasive evidence to support the deviation.

26

60 F.3d at 1435.

27

error was therefore harmless.

28

F.2d at 1380-81.

Ms.

See Johnson,

Because the outcome would have been the same, any See Curry, 925 F.2d at 1131; Booz, 734

35

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 36 of 37 Page ID #:100

1

The

Court

must

affirm

the

Commissioner’s

decision

if

it

is

2

supported by substantial evidence and if the Commissioner applied the

3

correct legal standards.

4

Accordingly, the ALJ did not err in finding that Plaintiff retained the

5

ability to perform other work as an inspector/hand packager or office

6

helper.

Id. (citing Tackett, 180 F.3d at 1097).

7 8

CONCLUSION

9 10

Consistent with the foregoing, IT IS ORDERED that Judgment be

11

entered AFFIRMING the decision of the Commissioner and dismissing this

12

action with prejudice.

13

this Order and the Judgment on counsel for both parties.

The Clerk of the Court shall serve copies of

14 15

DATED: August 31, 2006.

16 17 18

/s/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

19 20 21 22 23 24 25 26 27 28 36

Case 2:05-cv-02673-SS Document 17 Filed 08/31/06 Page 37 of 37 Page ID #:101

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