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finding claimant was not credible because she worked part-time at Subway
Summary of this case from Benjamin M. v. BerryhillOpinion
Case No. EDCV 11-1077-OP
01-23-2012
DEBRA L. FOSTER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
MEMORANDUM OPINION; ORDER
The Court now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS").
Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (ECF Nos. 6, 7.)
As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 4 at 3.)
I.
DISPUTED ISSUES
As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as the grounds for reversal and/or remand are as follows:
(1) Whether the Administrative Law Judge ("ALJ") properly considered the treating physician's opinion regarding Plaintiff's depression and anxiety; and(JS at 5.)
(2) Whether the ALJ properly considered Plaintiff's credibility.
II.
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).
III.
DISCUSSION
A. The ALJ's Decision.
The ALJ, F. Keith Varni, found that Plaintiff has the severe impairment of osteoarthritis of the right knee. (AR at 21.) He specifically found that her "medically determinable mental impairments of anxiety disorder, depressive disorder, and drug abuse, in remission, does [sic] not cause more than minimal limitation in the claimant's ability to perform basic mental work activities." (Id. at 22.) The ALJ further found that Plaintiff has the residual functional capacity ("RFC") to perform the full range of light work; can lift and/or carry twenty pounds occasionally and ten pounds frequently; has no sitting limitation; is able to stand and/or walk for six to eight hours in an eight-hour workday; requires an assistive device for prolonged ambulation; and is not able to kneel or squat. (Id. at 24.) Finally, the ALJ found that Plaintiff is capable of performing her past relevant work as a sandwich maker, and a security guard checking exiting customer's receipts, as actually performed. (Id. at 26.) B. Whether the ALJ Properly Considered the Treating Physician's Opinion Regarding Plaintiff's Depression and Anxiety.
1. Background.
The ALJ expressly found that Plaintiff's depression and anxiety "do not cause more than minimal limitation in the claimant's ability to perform basic mental work activities and [are] therefore nonsevere." (Id. at 22.) In arriving at this finding, the ALJ reviewed the assessments of Plaintiff's treating physician, Dr. Michelle Clark, and that of a psychiatrist at the Kedren Community Mental Health Clinic ("Kedren Clinic"). He discounted these two opinions as well as the opinion of the State agency reviewing physician, Dr. R. Tashjian, giving great weight to the opinion of Dr. Sohini Parikh, the consulting examining psychiatrist. (Id. at 23.)
Plaintiff contends the ALJ's rationales for granting little or no weight to the opinions of the two treating psychiatrists and the State agency review physician, all of whom she claims endorsed greater mental functional limitations than found by the ALJ, "are significantly logically flawed." (JS at 6.) Specifically, she focuses on the global assessment of functioning ("GAF") score of 42 assessed by Dr. Clark, and the GAF score of 47 assessed by the Kedren Clinic. (Id.) Plaintiff also complains that the ALJ improperly rejected the moderate mental function limitations endorsed by Dr. Tashjian, on the basis that Dr. Tashjian's findings were not supported by the "evidence as a whole." (Id.. at 12 (citing AR at 23).)
A GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Diagnostic and Statistical Manual of Mental Disorders 34 (American Psychiatric Ass'n ed., 4th ed. 2000) ("DSM-IV").
2. Legal Standards.
It is well-established in the Ninth Circuit that a treating physician's opinions are entitled to special weight, because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). As with a treating physician, the controverted findings of an examining physician may only be rejected by the ALJ for specific and legitimate reasons supported by substantial evidence in the record. Lester, 81 F.3d at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)).
With regard to GAF scores, the Commissioner has no obligation to credit or even consider GAF scores in the disability determination. See 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000) ("The GAF scale . . . is the scale used in the multiaxial evaluation system endorsed by the American Psychiatric Association. It does not have a direct correlation to the severity requirements in our mental disorders listings."); see also Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ("While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate."). GAF scores include a significant number of non-medical factors, such as homelessness and legal troubles, that do not necessarily translate into work-related functional impairments. DSM-IV 33. Further, GAF scores reflect the "clinician's judgment of the individual's overall level of functioning." Id. 32. They encompass "psychological, social and occupational functioning," but are not meant to be a conclusive medical assessment of overall functioning, but rather, are only intended to be "useful in planning treatment[,] . . . measuring its impact, and in predicting outcome." Id.
3. Analysis.
According to Plaintiff, the ALJ provided several flawed rationales for discrediting the GAF scores assessed by Dr. Clark and the Kedren Clinic: (1) the GAF scores of 42 assessed by Dr. Clark and of 47 assessed by the Kedren Clinic, were based largely on Plaintiff's subjective symptoms; (2) Dr. Clark's later assessments and mental status reports indicate a much higher level of functioning than reflected by her initial GAF score of 42; and (3) Dr. Clark's mental disorder questionnaire did not delineate any limitations that would establish a finding of severe impairment. (JS at 10-12 (citations omitted).) Plaintiff contends that none of these rationales "is a reasonable interpretation of the treatment record." (Id. at 6, 10.)
a. The GAF Scores Were Based on Plaintiff's Subjective
Symptoms.
The ALJ found that the GAF scores suggested both by Dr. Clark and at the Kedren Clinic were based largely on Plaintiff's subjective symptoms. (AR at 22.) Although Plaintiff contends there is no evidentiary basis for that presumption, both GAF scores were suggested as part of an intake assessment. (Id. at 265, 334-37.) As such, the GAF scores were a "snapshot" assessment of Plaintiff's condition at the time she presented to either clinic, and were based primarily on Plaintiff's self-reports. (Id. at 265-69, 334-37.) There is no indication that any other objective testing was conducted as part of the intake assessments. (Id.) "An ALJ may reject a treating physician's opinion if it is based 'to a large extent' on a claimant's self-reports that have been properly discounted as incredible." Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (citation omitted). Furthermore, "the ALJ is the final arbiter with respect to resolving ambiguities in the record." Id..
As discussed in detail below (see Discussion supra Part III.B.3.b), the longitudinal evidence, including later treatment records from Dr. Clark, indicates Plaintiff's continued improvement with medication and treatment and, in any event, is consistent with the ALJ's RFC findings.
b. No Support for GAF Scores in Other Examinations or
Mental Status Reports.
The ALJ discounted the GAF scores of 42 and 47 in part because "[s]ubsequent examinations and mental status reports [by Dr. Clark] indicate a much higher level of functioning." (AR at 22 (citing id. at 313-37).) Plaintiff contends this was error because Dr. Clark's later treatment notes "contain no other GAF scores," and the "ALJ's declaration to the contrary is simply false." (JS at 11.)
A review of Dr. Clark's treatment notes indeed finds no other GAF score suggested by Dr. Clark. However, the ALJ did not state that Dr. Clark assessed later GAF scores. A reasonable interpretation of the ALJ's finding is that Dr. Clark's later treatment notes failed to lend support to the GAF score assessed at intake. Plaintiff points to no records that are inconsistent with the ALJ's reasons for rejecting Dr. Clark's initial GAF assessment. In fact, this Court's review of Dr. Clark's treatment notes supports the ALJ's finding that Plaintiff was able to function at a higher level than the initial intake GAF score of 42 would seem to indicate:
Plaintiff began seeing Dr. Michelle Clark in November of 2008, and saw her monthly through October 2009. (AR at 314-37.) On initial evaluation, Dr. Clark noted that Plaintiff presented with a strong family history of mood disorder, and lifelong symptoms of mood and anxiety disturbance aggravated by trauma and loss. (Id. at 337.) She diagnosed Plaintiff with major depression, severe, non-psychotic, and assessed a GAF score of 42. (Id.) Dr. Clark prescribed Paxil for treatment of anxiety and dysphoria. (Id.)
In December 2008, Plaintiff reported her son had been hospitalized because of a bipolar disorder, she had to take a week off of work because of her knee, and she could not think straight and was nauseated by the medication. (Id. at 314.) Dr. Clark noted Plaintiff had also obtained some relief from a "hypnotic" medication prescribed by her primary care physician. (Id. at 314-15.) Dr. Clark noted Plaintiff's complaint of nausea as a side effect of the medication, discontinued the Paxil, continued the sleep aid, and began treatment with Lexapro. (Id. at 315.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was appropriate; judgment, insight, and impulse control were good; she was alert, attentive, and oriented; concentration and memory were intact; and her thought processes were linear. (Id.)
On January 8, 2009, Plaintiff reported to Dr. Clark that it was "getting really stressful @work," that her concentration was "no where," that her knees and legs were bothering her, and that she was sad every day for about two to three hours. (Id. at 316.) Dr. Clark noted a "favorable response to medication" but that Plaintiff "may respond better with a higher dose," and increased the Lexapro to 20 mg per day. (Id. at 317.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was appropriate; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; her thought processes were linear; and there was some decrease in concentration and memory. (Id.)
Plaintiff incorrectly notes the Lexapro was decreased because of insomnia. In fact, the note merely states "Increase lexapro to 20 mg. - may take [illegible] if insomnia worse." (AR at 317.)
On February 5, 2009, Plaintiff reported the medication was helping her but on some days she felt frustrated for no reason and could not be around a lot of people. (Id. at 318.) Dr. Clark noted "some improvement" and also indicated that Plaintiff was still experiencing frustration and irritability. (Id.) She also noted that Plaintiff was particularly bothered by loud noise and had made progress in setting limits. (Id.) Plaintiff remained depressed about her granddaughter being in the foster care system. (Id.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was appropriate; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; concentration and memory were intact; and her thought processes were linear. (Id. at 319.)
On February 5, 2009, Dr. Clark also completed a Mental Disorder Questionnaire Form. (Id. at 258-62.) She stated that she found Plaintiff polite and cooperative; often tearful and overwhelmed by multiple losses in her life; and with a predominantly dysphoric mood. (Id.. at 262.) She also stated that although Plaintiff complained of poor concentration and short-term memory loss, she had no deficits; suffers severe insomnia and anxiety; experiences visual illusions; was employed but was having difficulty managing public transportation; attempted visitation with her granddaughter in foster care; has few friends; was somewhat isolated; was independent in her activities of daily living; could follow three-step commands; and had been criticized at work for being "slow," but had no difficulty with coworkers. (Id.) She concluded that Plaintiff's prognosis was "good." (Id.)
Plaintiff incorrectly contends this form was completed after the November 8, 2009, treatment. (JS at 9.) However, the form is dated much earlier, on February 5, 2009, and indicates that the date of last examination had been January 8, 2009. (AR at 262 (see also id. at 316).) As the report also indicates that Plaintiff was still employed, and Plaintiff has stated she did not leave her job until June 2009, there is no reason to believe the form was completed on the later date indicated by Plaintiff.
On March 5, 2009, Plaintiff reported improved mood yet continued symptoms of anxiety and an increased startle reaction. (Id. at 320.) Plaintiff denied any medication side effects. (Id.) Plaintiff reported some problem at the workplace regarding harassment and discrimination, feeling that her coworkers were speaking in Spanish to malign her without her knowledge. (Id.) The notes reflect that Plaintiff believed her manager supported her, but the assistant manager did not. (Id.) Dr. Clark noted that Plaintiff presented as "loquacious" and was responding well to medications and coping properly with stressors. (Id. at 321.) Dr. Clark also noted that Plaintiff might benefit from vitamins to help her with perimenopausal symptoms and prescribed vitamin B6 and Centrum Sr. (Id.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was appropriate; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; concentration had decreased but memory was intact; and her thought processes were linear. (Id.)
Plaintiff incorrectly states that Dr. Clark noted "excessive loquaciousness." (JS at 8.) In fact, Dr. Clark crossed out the word "Excessive" in the Mental Status Exam category describing Plaintiff's speech, and wrote in "Loquacious." (AR at 321.)
On April 7, 2009, Plaintiff told Dr. Clark that she was "feeling OK," and that "Most days are better - some are iffy." (Id. at 322.) She also stated that she believed that "if I get away from that environment I'll be alright," and hoped to move soon. (Id.) Dr. Clark noted that Plaintiff's "job remained stressful and her neighborhood is [a] disaster." (Id.) Although Plaintiff reported experiencing early morning awakening ("EMA"), her "bad dreams were gone." (Id. at 323.) Dr. Clark noted that Plaintiff had experienced an "improvement in all symptoms," but that her sleep remained disturbed, and she might benefit from an increase in the dosage of the sleep aid. (Id.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was appropriate; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; concentration and memory were intact; and her thought processes were linear. (Id.)
On May 7, 2009, Plaintiff reported "I've been doing better but . . . it's just I don't know seems like every month when my period comes . . . sometimes I just wanna give up . . . it seems like everything bothers me . . . " (Id. at 324.) Dr. Clark noted that Plaintiff described ongoing irritability provoked by dysfunctional family members, remained adherent to her medication regimen, and did not complain of any medication side effects. (Id.) She also noted that Plaintiff "is making progress and attending to her health." (Id. at 325.) She increased Plaintiff's dosage of Celexa. (Id.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and irritable but that her affect was appropriate; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; concentration and memory were intact; and her thought processes were linear. (Id.)
On June 9, 2009, Plaintiff complained to Dr. Clark of anxiety over changes in her housing - she had applied to move her Section 8 housing to San Bernardino and was afraid her application was "in jeopardy" because of problems with her soon-to-be eighteen-year-old son's record. (Id. at 326.) Dr. Clark also noted that Plaintiff "is out of work due to remodeling of the store." (Id. at 326.) Also in June, Dr. Clark reported that Plaintiff was "fearful of losing income and housing." (Id. at 327.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but that her affect was congruent; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; and her thought processes were linear. (Id.)
This seems to conflict with Plaintiff's testimony at the hearing where she indicated that because her doctor had said she could not work, the manager of the store let her go, telling her she was not able to fulfill her duties. (AR at 36-37.) The Court also notes that at the time she was working at the Subway, Plaintiff lived in Los Angeles and the Subway she worked at also was located in Los Angeles. (Id. at 137, 141). The record indicates that Plaintiff moved to San Bernardino sometime between June 9, 2009, and July 16, 2009. (See, e.g., id. at 326, 328, 354, 363.)
On July 16, 2009, Plaintiff reported she had moved, it was more peaceful for her at her new home, but that she still had not been sleeping. (Id. at 328.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense, dysphoric, and anxious but her affect was congruent; judgment and impulse control were fair; insight was fair to poor; she was alert, attentive, and oriented; concentration and memory were intact; and her thought processes were linear. (Id. at 329.)
In September 2009, Plaintiff reported to Dr. Clark that she had been having mood swings and there was "a lot going on." (Id. at 330.) Dr. Clark noted that Plaintiff was "frustrated, angry and overwhelmed by multiple psychosocial problems." (Id.) Apparently, her new apartment had been burglarized, she was in chronic pain and struggling with her changed insurance, and she was "in the midst of custody of her 17 yr. old son." (Id.) Despite this, Dr. Clark reported that Plaintiff "remained stable on current regimen," and was "proceeding appropriately to her goals." (Id. at 331.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense and dysphoric but her affect was congruent; judgment was good; impulse control and insight were fair; she was alert; and her thought processes were linear. (Id.)
Dr. Clark's last progress note in October 2009 noted that Plaintiff had "relocated to the North Valley" and complained of the slower traffic in her commute, but preferred the quiet spacious neighborhood. (Id. at 332.) She also noted that Plaintiff "has been stabilized on the current regimen," and denied any side effects from her medication except "possibly AM headache and nausea." (Id. at 333.) In her Objective/Mental Status Exam, Dr. Clark noted Plaintiff was tense; her mood was euthymic and her affect was congruent; judgment and impulse control were good; insight was fair; she was alert, attentive, and oriented; concentration was reduced; memory was intact; and her thought processes were linear. (Id.)
Euthymia indicates a reasonably positive mood.
In sum, the Court finds that the record more than supports the ALJ's assessment that Dr. Clark's later notes did not show the level of functioning associated with the initial GAF score of 42.
c. Dr. Clark's Additional Questionnaire Responses.
Plaintiff claims that the ALJ improperly discredited Dr. Clark's GAF assessment by relying on the February 2009 questionnaire wherein Dr. Clark noted that Plaintiff is independent in her activities of daily living, can follow three-step instructions, and has no difficult with coworkers. (JS at 11 (citing AR at 22-23, 260-61).) Plaintiff claims this is an incomplete summary of Dr. Clark's report and omits her additional opinions that Plaintiff was having difficulty managing public transportation, had her grandchild taken from her, had few friends and was somewhat socially isolated, and had been criticized at work for being slow. (Id.) She claims those additional limitations "would certainly impact [Plaintiff's] ability to regularly perform the mental requirements of substantial gainful activity." (Id.) The Court does not agree that there is any evidence in Dr. Clark's reports or elsewhere in the record that although Plaintiff was experiencing these difficulties, these events indicated any functional limitations or in any way impacted Plaintiff's ability to perform the mental requirements of work. Indeed, at the time Dr. Clark completed her February 2009 report, Plaintiff was gainfully employed. Thus, the Court finds that this was a valid reason for discounting Dr. Clark's GAF assessment.
The fact that Plaintiff had few friends and was socially isolated may lend support, in part, for the GAF score assessed by Dr. Clark, as a score between 41 and 50 may reflect that an individual has "no friends." DSM IV 34.
d. Kedren Clinic GAF Assessment.
With regard to the Kedren Clinic GAF assessment, the ALJ also noted that the record reflected Plaintiff's subjective complaints and did not document either observed behavior or Plaintiff's response to treatment over time. (Id. at 11.) The Kedren Clinic notes reflect that on August 1, 2008, Plaintiff presented for outpatient treatment. (AR at 265-74.) She presented with symptoms of daily sadness; frustration; anger outbursts; mood swings; poor appetite; sleep disturbance; racing thoughts; visual hallucinations of "a light or shadow," which she believed might be her deceased daughter; isolative behavior; paranoid ideation; nervousness around people; poor concentration/ focus; irritability; anxiety like symptoms; and psychosocial stressors. (Id. at 265.) Based on this intake assessment, Plaintiff was diagnosed with a Mood Disorder NOS and given a GAF score of 47. (Id. at 269.) The August 14, 2008, progress note indicated Plaintiff was still feeling "stressed out," depressed, angry, overwhelmed, and upset about her granddaughter that had been taken away from her. (Id. at 273.) She had been offered individual supportive therapy to vent "stressors and concerns," and "discuss court hearing," was cooperative, and agreed to follow up with therapy and her treatment plan. (Id. at 270, 273.) The February 13, 2009, Discharge Summary reflects, however, that Plaintiff "did not follow up . . . or continue w/recommended [treatment] plan as agreed. Attempts to contact client were unsuccessful." (Id. at 270.) The Discharge Summary indicated a discharge date of August 14, 2008, presumably the last service date. (Id.)
The Commissioner's regulations provide that more weight is given to longitudinal opinion evidence. 20 C.F.R. § 416.927(d)(2). As previously discussed, the GAF score assessed by the Kedren Clinic was a "snapshot" assessment of Plaintiff's condition at the time she presented to the clinic and was based primarily on Plaintiff's self-reports. As she apparently only visited the clinic once more, two weeks after her initial visit, the Kedren Clinic records do not constitute any kind of longitudinal assessment of Plaintiff's mental health. Indeed, the longitudinal evidence, including Plaintiff's later treatment records with Dr. Clark, reflect Plaintiff's improvement with medication and treatment and is not inconsistent with the ALJ's RFC findings. Thus, the Court finds that there was no error in discounting the Kedren Clinic GAF score on this basis.
e. Dr. Tashjian's Limitations.
Plaintiff contends that the ALJ also improperly rejected the May 29, 2009, findings of the State agency reviewing physician, Dr. Tashjian. (JS at 12.) Dr. Tashjian found moderate limitations in Plaintiff's ability to understand, remember, carry out detailed instructions, interact appropriately with the public; and respond appropriately to workplace changes. (AR at 308-09.) Dr. Tashjian also found Plaintiff capable of performing simple, repetitive tasks. (Id. at 310.)
The ALJ found that Dr. Tashjian's findings were not supported by the evidence as a whole and gave more weight to the March 3, 2009, opinion of the consultative examiner, Dr. Parikh. (Id. at 23.) Dr. Parikh assessed Plaintiff with a GAF score of 65, which the ALJ noted reflected mild symptoms. (Id. (citing id. at 287).) Dr. Parikh also stated that Plaintiff's "functional assessment is normal, if she complies with medications," and found no restrictions or difficulties in daily activities or social functioning. (Id. at 287.) She also found no impairment in Plaintiff's concentration, persistence, and pace, ability to understand, carry out, and remember simple and complex instructions, and her ability to respond appropriately to coworkers, supervisors, the general public, and usual work situations, including her ability to deal with changes in a routine work setting. (Id. at 287-88.) Because an examining physician, such as Dr. Parikh, provides an assessment based on independent clinical findings, such an examination may be considered to be substantial evidence, even if it varies from that of a treating or non-examining physician. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); 20 C.F.R. §§ 404.1527(d), (f), 416.927(d), (f) (providing that more weight generally is given to the opinions of examining physicians over non-examining physicians). Thus, the Court finds that there was no error in the ALJ's discounting Dr. Tashjian's opinion. C. The ALJ Properly Assessed Plaintiff's Credibility.
1. Background.
As noted by the ALJ, Plaintiff testified at the hearing and/or noted in her Function Report - Adult (AR at 174-81) that as a result of her physical and mental impairments she had constant back pain, that her leg went out, that she could not focus at work, that she gets angry a lot, that she gets headaches, that she had difficulty sleeping, lifting, squatting, bending, standing, kneeling, and climbing stairs, that she was unable to work because of pain standing and being slow, and that she could sit for no more than twenty minutes at a time, and stand for no more than five minutes at a time. (Id. at 24.) She also testified that she became unable to work because of difficulty standing, she was slow, and she took too many breaks. (Id.)
In his opinion denying benefits, the ALJ rejected Plaintiff's subjective complaints as follows:
The claimant's allegations are not altogether [sic] with the other statements that she has made. For example, the claimant's admission that she worked until June 2009 is not consistent with her allegation of inability to work and the inability to focus at work due to her impairments. It is unlikely the claimant could have held a job for so long after the alleged onset date (i.e., nearly two years)[] if she truly could not focus at work. These inconsistencies detract from the credibility of the claimant's allegations.(Id. at 25 (citation omitted).)
In addition, as discussed previously, the claimant is able to perform many, if not most, activities of daily living. She admits: she can drive a car and use public transportation; she shops, pays bills, and
manages her finances; she goes to work and church regularly; she has no problems with self-care; she does household chores and she prepares meal[s]. The claimant's admitted functional level exceeds her alleged level of impairment. This contradiction undermines the credibility of the claimant's allegations.
Plaintiff correctly notes that she worked approximately seven months from her alleged date of onset, not "nearly two years." (JS at 21-22.) The incorrect statement makes no difference in the Court's analysis.
Plaintiff faults the ALJ for failing to provide sufficient reasons for rejecting her subjective complaints of impairment. (JS at 21-23.)
2. Legal Standard.
An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient).
In assessing the credibility of the allegedly disabling subjective symptoms, an ALJ may properly consider "[t]he nature, location, onset, duration, frequency, radiation, and intensity" of any pain or other symptoms; "[p]recipitating and aggravating factors;" "[t]ype, dosage, effectiveness, and adverse side-effects of any medication;" "[t]reatment, other than medication;" "[f]unctional restrictions;" "[t]he claimant's daily activities;" "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment;" and "ordinary techniques of credibility evaluation." Bunnell v. Sullivan, 947 F.2d 341, 346-47 (9th Cir. 1991) (en banc) (citations omitted); see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Magallanes, 881 F.2d at 756 (an ALJ may take into account a claimant's level of activity, along with other probative evidence of disability or lack thereof); Morgan v. Comm'r of Soc. Sec., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff's daily activities, and on conflict between claimant's testimony of subjective complaints and objective medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily activities inconsistent with total disability, and helpful medication); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant's daily activities and the lack of side effects from prescribed medication).
The Ruling lists factors to be considered such as: 1) the individual's daily activities; 2) the location, duration, frequency, and intensity of the individual's pain and other symptoms; 3) factors that precipitate and aggravate the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6) any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7) any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms. Soc. Sec. Ruling 96-7p.
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Under the "Cotton test," where the claimant has produced objective medical evidence of an impairment that could reasonably be expected to produce some degree of pain and/or other symptoms, and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell, 947 F.2d at 343. The ALJ must set forth "findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas, 278 F.3d at 958; Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345.
3. Analysis.
Here, the ALJ set forth several reasons for discounting Plaintiff's credibility: (1) she had worked part-time until June 2009, which was inconsistent with her allegation of inability to work and inability to focus at work due to her impairments; (2) she was able to perform "many, if not most," activities of daily living, including driving and using public transportation, shopping, paying bills, managing finances, attending church, working, doing household chores, and preparing meals; and (3) the objective medical records did not support her allegations of disability. (AR at 25 (citing id. at 174-81).)
a. Part-Time Work.
Plaintiff worked part-time at a Subway for seven months after her alleged date of onset of disability. The ability to perform part-time work is a factor the ALJ may consider in assessing credibility. See, e.g., Bray v. Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009) (claimant was not credible because she "recently worked as a personal caregiver for two years, and has sought other employment since then"); McCalmon v. Astrue, 319 Fed. App'x 658, 660 (9th Cir. 2009) (ALJ properly considered daily activities, including part-time work, as part of his assessment of medical improvement).
Plaintiff points out that in her February 2009 assessment, Dr. Clark noted that "[Plaintiff] is employed but is having increasing difficulty managing public transportation." (JS at 22.) Plaintiff contends this corroborates her testimony that her inability to continue to perform the tasks required of her work led to her termination. (Id.) The Court does not find this argument persuasive since any unexplained "difficulty" with public transportation would appear to be unrelated to performing work-related tasks at Subway. As noted by Defendant, Dr. Clark's statement regarding Plaintiff's difficulty with public transportation is also inconsistent with Plaintiff's personal statement on January 7, 2009, in which she stated that she used public transportation when she went out and that she can go out alone. (AR at 177.)
Accordingly, the Court finds that there was no error in the ALJ considering Plaintiff's part-time work when assessing the credibility of her disabling allegations.
b. Activities of Daily Living and Objective Medical Records.
As discussed above, an ALJ may take into account a claimant's level of activity, along with other probative evidence of disability or lack thereof, when considering a claimant's credibility. Magallanes, 881 F.2d at 756. Thus, the ALJ's consideration of Plaintiff's daily activities was not error.
Moreover, the ALJ also reviewed Plaintiff's medical records and found they also did not "establish any limitations greater than those assessed herein . . . ." (Id.) "Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis." Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). Here, the ALJ gave great weight to the opinion of the consultative examiner, Dr. Ella-Tamayo, whose limitations mirrored the ALJ's RFC determination, noting that "[i]n light of the dearth of limitations found on physical examinations, the limitations outlined by Dr. Ella-Tamayo[] give a generous benefit of the doubt to the claimant's subjective complaints . . . [and] is supported by the objective medical evidence." (Id.) He concluded that his RFC assessment was supported "by the opinion of Dr. Ella-Tamayo, the objective medical evidence, the claimant's admitted ability to work after the alleged onset date, and the claimant's admitted ability to perform many activities of daily living." (Id.) Thus, the lack of objective medical evidence to support Plaintiff's allegations, in combination with the additional reasons discussed herein, was a valid consideration for the ALJ in making his credibility determination.
Based on the foregoing, the Court finds that the ALJ stated clear and convincing reasons, supported by substantial evidence in the record, for rejecting Plaintiff's credibility. Thus, relief is not warranted on this claim.
IV.
ORDER
Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.
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HONORABLE OSWALD PARADA
United States Magistrate Judge