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holding that the ALJ was entitled to rely on inconsistencies between the claimant's subjective complaints and her daily activities, which included watching television, going to the library and checking out books, using the library computer, going to the store, checking the mail, making dinner, and doing puzzles
Summary of this case from Mulay v. ColvinOpinion
MEMORANDUM OPINION AND ORDER AFFIRMING THE COMMISSIONER
JEAN P. ROSENBLUTH, Magistrate Judge.
I. PROCEEDINGS
Plaintiff seeks review of the Commissioner's final decision denying her application for Social Security disability insurance benefits ("DIB") and supplemental security income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed October 28, 2013, which the Court has taken under submission without oral argument. For the reasons discussed below, the Commissioner's decision is affirmed and this action is dismissed.
II. BACKGROUND
Plaintiff was born on August 10, 1970. (Administrative Record ("AR") 195.) She has a bachelor's degree in Christian education. (AR 35-36, 229.) Plaintiff previously worked as a cashier at a hotel casino and retail store, hostess in a restaurant, and clerical worker in a dentist's office. (AR 36-37.)
On February 15 and 28, 2008, respectively, Plaintiff filed applications for SSI and DIB. (AR 70-71, 195-204.) After Plaintiff's applications were denied, she requested a hearing before an Administrative Law Judge. (AR 96.) A hearing was held on January 14, 2011, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert ("VE"). (AR 31-69.) On February 9, 2011, the ALJ issued a written decision finding Plaintiff not disabled. (AR 16-25.) On March 1, 2011, Plaintiff requested review of the ALJ's decision. (AR 183.) On January 25, 2012, the Appeals Council denied review. (AR 7-11.) On March 29, 2012, the Appeals Council set aside its earlier denial, and on November 5, after considering Plaintiff's brief, it again denied review. (AR 1-5, 193.) This action followed.
III. STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g); Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Parra v. Astrue , 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means such evidence as a reasonable person might accept as adequate to support a conclusion. Richardson , 402 U.S. at 401; Lingenfelter v. Astrue , 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla but less than a preponderance. Lingenfelter , 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater , 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can reasonably support either affirming or reversing, " the reviewing court "may not substitute its judgment" for that of the Commissioner. Id. at 720-21.
IV. THE EVALUATION OF DISABILITY
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423 (d) (1) (A); Drouin v. Sullivan , 966 F.2d 1255, 1257 (9th Cir. 1992).
A. The Five-Step Evaluation Process
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a) (4), 416.920(a) (4); Lester v. Chater , 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as amended Apr. 9, 1996). In the first step, the Commissioner must determine whether the claimant is currently engaged in substantial gainful activity; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a) (4) (i), 416.920(a) (4) (i). If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting her ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied. §§ 404.1520(a) (4) (ii), 416.920(a) (4) (ii). If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded. §§ 404.1520(a) (4) (iii), 416.920(a) (4) (iii). If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform her past work; if so, the claimant is not disabled and the claim must be denied. §§ 404.1520(a) (4) (iv), 416.920(a) (4) (iv). The claimant has the burden of proving she is unable to perform past relevant work. Drouin , 966 F.2d at 1257. If the claimant meets that burden, a prima facie case of disability is established. Id . If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because she can perform other substantial gainful work available in the national economy. §§ 404.1520 (a) (4) (v), 416.920(a) (4) (v). That determination comprises the fifth and final step in the sequential analysis. §§ 404.1520, 416.920; Lester , 81 F.3d at 828 n.5; Drouin , 966 F.2d at 1257.
RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; see Cooper v. Sullivan , 880 F.2d 1152, 1155 n.5 (9th Cir. 1989).
B. The ALJ's Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since December 28, 2007, the alleged onset date. (AR 18.) At step two, the ALJ concluded that Plaintiff had the severe impairments of "affective disorders diagnosed as depressive disorder and bipolar disorder, anxiety-related disorders diagnosed as panic disorder and social phobia, and personality disorders diagnosed as avoidant personality disorder, schizoid personality disorder, and dependent personality disorder." (Id.) At step three, the ALJ determined that Plaintiff's impairments did not meet or equal any of the impairments in the Listing. (AR 19-21.) At step four, the ALJ found that Plaintiff had the RFC to perform "a full range of work at all exertional levels" but was "limited to one-to-two step instruction jobs with occasional contact with the public and co-workers." (AR 21-23.) Based on the VE's testimony, the ALJ concluded that Plaintiff could perform two jobs that existed in significant numbers in the national economy: industrial cleaner, DOT 381.687-018, 1991 WL 673258, and hand packager, DOT 920.587-018, 1991 WL 687916. (AR 23-24.) Accordingly, the ALJ determined that Plaintiff was not disabled. (AR 24-25.)
V. DISCUSSION
Plaintiff alleges that the ALJ erred in (1) determining that she could perform the jobs of industrial cleaner and hand packager and (2) failing to properly assess her credibility. (J. Stip. at 5.)
A. Any Error in the ALJ's Determination that Plaintiff Could Perform Certain Jobs Was Harmless
Plaintiff asserts that "the ALJ's assessed [RFC]" for one-or two-step-instruction jobs "does not allow for the performance of the identified occupations" because they both require level-two reasoning skills under the Dictionary of Occupational Titles ("DOT"), which is allegedly inconsistent with the RFC determination. (J. Stip. at 6.) Plaintiff also argues that the VE's testimony, upon which the ALJ relied in finding Plaintiff capable of the two jobs, conflicted with the DOT and that the ALJ failed to elicit a reasonable explanation for that deviation. (Id. at 9-10.)
1. Applicable law
At step five of the five-step process, the Commissioner has the burden to demonstrate that the claimant can perform some work that exists in "significant numbers" in the national or regional economy, taking into account the claimant's RFC, age, education, and work experience. Tackett v. Apfel , 180 F.3d 1094, 1100 (9th Cir. 1999); 42 U.S.C. § 423 (d) (2) (A); 20 C.F.R. §§ 404.1560 (c), 416.960 (c). The Commissioner may satisfy that burden either through the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2. Tackett , 180 F.3d at 1100-01; see also Hill v. Astrue , 698 F.3d 1153, 1161 (9th Cir. 2012). When a VE provides evidence about the requirements of a job, the ALJ has a responsibility to ask about "any possible conflict" between that evidence and the DOT. See SSR 00-4p, 2000 WL 1898704, at *4 (Dec. 4, 2000); Massachi v. Astrue , 486 F.3d 1149, 1152-54 (9th Cir. 2007) (holding that application of SSR 00-4p is mandatory). An ALJ's failure to do so is procedural error, but the error is harmless if no actual conflict existed or the VE provided sufficient evidence to support the conclusion. Massachi , 486 F.3d at 1154 n.19.
Because the parties are familiar with the facts, they are summarized here only to the extent relevant to the contested issues.
On April 23, 2008, psychologist Susan Patrick examined Plaintiff at the Social Security Administration's request. (AR 349-60.) After performing a mental-status examination and administering several psychological tests, Patrick diagnosed major depressive disorder and provided the following functional assessment:
[Plaintiff's] test results indicate that her overall intellectual functioning is in the Low Average range and her memory abilities fall in the Average to Low Average range. [Plaintiff] appears to have been able to sustain employment in the past when she was receiving supportive counseling services, although she reported that she has been fired from at least three jobs due to poor attitude and not showing up for work. [Plaintiff] appears to have poor affect management, poor motivation and low frustration tolerance.
[Plaintiff's] ability to remember was adequate. Her attention and concentration skills were adequate. [Plaintiff's] ability to interact appropriately with supervisors, co-workers and the public may be fair as she exhibits poor frustration tolerance and poor anger management skills. [Plaintiff] has no impairment in her ability to understand and carry out simple one or two-step instructions in a standard work environment. [Plaintiff] has no impairment in her ability to understand and carry out uncomplicated instructions. [Plaintiff] would likely have impairment in her ability to understand and carry out complex instructions in a standard or fast paced work setting.
[Plaintiff's] current mental health deficits are unlikely to prevent [her] from sustaining gainful employment in a work environment where she has simple non-complicated tasks that do not require high levels of responsibility or judgment.
(AR 353 (emphasis in original).)
On May 13, 2008, consulting psychologist Brady Dalton reviewed Plaintiff's medical records and completed psychiatric-review-technique and mental-RFC-assessment forms. (AR 361-78.) On the PRT form, Dalton opined that Plaintiff's major depression and anxiety resulted in no restriction of activities of daily living; mild difficulties in maintaining concentration, persistence, and pace; moderate difficulties in maintaining social functioning; and no episodes of decompensation. (AR 364, 366, 371.) Dalton noted that Plaintiff's mental conditions "appear[] to respond well to medications" and Plaintiff "has never been hospitalized for psychiatric purposes." (AR 373.) He believed that Plaintiff's "current level of functioning, performance on psychological testing and MSS suggest no deficits in [her] ability to understand, remember or perform simple or complex tasks" and that she had an "adequate" ability to sustain attention, concentration, persistence, and pace. (Id.) Dalton opined that Plaintiff was capable of substantial gainful activity "in a setting with limited social/public contacts." (Id.)
"MSS" presumably refers to Patrick's "medical source statement." (See AR 354 ("Psychological/Psychiatric Medical Source Statement").)
On the mental-RFC form, Dalton opined that Plaintiff had moderate limitations on her ability to perform activities within a schedule, maintain regular attendance, be punctual, complete a normal workweek without interruption, perform at a consistent pace, interact appropriately with the general public, and get along with coworkers and peers. (AR 375-76.) Plaintiff was not significantly limited in her ability to perform any other listed tasks, including carrying out simple or detailed instructions, making simple work-related decisions, and maintaining attention and concentration for extended periods. (Id.) Dalton concluded that Plaintiff was "capable of simple and detailed work in a setting with limite[d] social/public contacts." (AR 377.)
At the January 14, 2011 hearing, Plaintiff testified that she suffered from three or four panic attacks a week, had anger problems and would start screaming without knowing why, did not socialize, was "extremely self-conscious, " had "racing thoughts, " and could concentrate for only about 20 minutes. (AR 39-41, 45, 50, 52-53.) She said she could not maintain a job sitting and putting things together, even without any other people around, because she didn't think she would "be able to follow the instructions." (AR 55-56.)
After Plaintiff testified, the ALJ asked the VE whether suitable jobs existed for "a hypothetical individual of [Plaintiff's] age, education, [and] work background, with the following limitations: no exertional limitations, but limited to one- to two-step simple instruction jobs, with occasional contact with public and coworkers." (AR 64.) The VE testified that such a person could perform the jobs of industrial cleaner, DOT 381.687-018, and hand packager, DOT 920.587-018. (Id.) The ALJ did not ask the VE whether her testimony was consistent with the DOT. (See AR 63-68.)
In her February 9, 2011 decision, the ALJ found that Plaintiff's mental impairments resulted in an RFC limitation to "one-to-two step instruction jobs with occasional contact with the public and co-workers, " without the limitation to "simple" such instructions. (AR. 21.) In so finding, the ALJ determined that the "most reasonable" assessment of Plaintiff's limitations was that of examining psychologist Patrick, who found that Plaintiff could work in an "environment where she has simple, non-complicated tasks that do not require high levels of responsibility or judgment." (AR 22.) The ALJ gave "reduced weight" to the opinion of consulting psychologist Dalton "because the evidence tends to support moderate limitations in concentration and persistence." (Id.) The ALJ found that Plaintiff could perform the two jobs identified by the VE: industrial cleaner, DOT 920.587-018, and hand packager, DOT 920.587-018. (AR 24.) The ALJ noted that the VE's testimony was "consistent with the information contained in the [DOT]." (Id.)
The ALJ gave "little weight" to the opinion of therapist Brian Holmes and a check-off form completed by providers at Mojave Mental Health, both of which stated that Plaintiff was unable to work, because the medical record did not support them. (AR 22, 565-66, 575-77.) Plaintiff does not challenge the ALJ's rejection of that evidence.
3. Discussion
The ALJ's RFC finding that Plaintiff was limited to jobs involving just one- and two-step instructions, without the additional requirement that they be "simple, " was not inconsistent with her finding that Plaintiff could perform jobs requiring reasoning level two, as Plaintiff argues. See DOT 381.687-018, 1991 WL 673258 (stating that industrial-cleaner job requires level-two reasoning); DOT 920.587-018, 1991 WL 687916 (stating that hand-packager job requires level-two reasoning). Appendix C of the DOT defines "reasoning development" on a scale of one to six, with level one, the lowest, requiring the following aptitudes:
Apply commonsense understanding to carry out simple one- or two-step instructions. Deal with standardized situations with occasional or no variables in or from these situations encountered on the job.
1991 WL 688702. Level two, on the other hand, requires that an employee
[a]pply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.
(Id.) An RFC limitation to simple one- or two-step instructions would clearly correspond to the "simple one- or two-step instructions" required by level-one reasoning. See Grigsby v. Astrue, EDCV 08-1413-AJW , 2010 WL 309013, *2-*3 (C.D. Cal. Jan. 22, 2010). The ALJ, however, limited Plaintiff to "one-to-two step instruction jobs, " without any additional requirement that they be "simple." (AR 21.) The ALJ's RFC limitation therefore did not conflict with her finding that Plaintiff could perform the identified jobs, which required only that she apply "commonsense understanding" to perform the "detailed but uninvolved" instructions.
Indeed, the DOT's descriptions of the two identified jobs show that they mainly involved only basic cleaning and packaging tasks. The industrial-cleaner job involves, for example, transporting materials using a handtruck; arranging boxes and materials in a neat and orderly manner; cleaning lint, dust, oil, and grease from machines and overhead pipes; cleaning floors; and picking up scrap, see 381.687-018, 1991 WL 673258, while the hand-packager job involves cleaning packaging containers, lining and padding crates and cartons, sorting products, wrapping products in protective material, using a conveyor, filling containers from a spout or chute, sealing containers, and recording information such as weight and date packed, see DOT 920.587-018, 1991 WL 687916.
Plaintiff is correct, however, that the VE's testimony in response to the ALJ's hypothetical conflicted with the DOT and that the ALJ failed to elicit an adequate explanation for that conflict. The ALJ included in her hypothetical to the VE a limitation to "simple" one- to two-step instruction jobs, and the VE testified that a person with such limitations could perform the two identified jobs. (AR 64.) A limitation to "simple" one- to two-step instructions, however, is inconsistent with jobs requiring level-two reasoning. See, e.g., Groom v. Astrue, EDCV 12-1509 JC, 2013 WL 304518, at *4 (C.D. Cal. Jan. 25, 2013) (finding plaintiff limited to "simple" one- and two-step instructions precluded from level-two-reasoning jobs because "[l]evel 2 reasoning jobs involve detailed but uninvolved written or oral instructions, ' which by definition is more complex than Level 1 reasoning jobs which are limited to simple one-or two-step instructions'"); Ruiz v. Colvin, EDCV 12-1628 AGR , 2013 WL 3878957, at *3 (C.D. Cal. July 26, 2013) ("A limitation to simple one and two step tasks is inconsistent with Reasoning Level Two."). Despite the ALJ's statement in her decision that the VE's testimony that Plaintiff could perform those jobs was consistent with the DOT (AR 24), it plainly was not, and the ALJ never asked the VE to clarify or explain the inconsistency. Thus, the ALJ erred. See Massachi , 486 F.3d at 1153-54.
Reversal is not necessary, however, because any error was harmless. First, the ALJ ultimately found that Plaintiff had the RFC to perform one- to two-step instructions without including a limitation that they be "simple, " which as discussed above is not inconsistent with level-two-reasoning jobs. Second, none of the credited medical evidence shows that Plaintiff was incapable of exercising her "commonsense understanding" to perform the "detailed but uninvolved" instructions required by jobs with level-two reasoning. Psychologist Dalton, whose opinion the ALJ partially credited (AR 22), including on this ground, found that Plaintiff had "no deficits" in her ability to "understand, remember or perform simple or complex tasks" (AR 371, 373). Psychologist Patrick, whose opinion the ALJ found to be "most reasonable" (AR 22), found that Plaintiff had "adequate" memory, attention, and concentration and "no impairment" in her ability to "understand and carry out simple one or two-step instructions" or "understand and carry out uncomplicated instructions" (AR 353 (emphasis omitted)). Patrick opined that Plaintiff could perform "simple non-complicated tasks that do not require high levels of responsibility or judgment." (Id.) Nothing in those assessments suggests that Plaintiff was unable to perform jobs with level-two reasoning. See Meissl v. Barnhart , 403 F.Supp.2d 981, 985 (C.D. Cal. 2005) (noting that DOT defines level-two reasoning as "requir[ing] the understanding to carry out detailed instructions" but "specifically caveats that the instructions would be uninvolved - that is, not a high level of reasoning"); see also id. at 984 (noting that level-one reasoning applies "to the most elementary of occupations" requiring "only the slightest bit of rote reasoning"). Plaintiff, of course, has a bachelor's degree (AR 35-36, 229), further undermining any suggestion that she was incapable of performing instructions involving more than "the slightest bit of rote reasoning."
The ALJ rejected Dalton's opinion only as it concerned Plaintiff's limitations involving concentration and persistence. (AR 22.)
For example, the Meissl court noted that "the DOT describes the following jobs as requiring only a reasoning level of one: Counting cows as they come off a truck (job title Checker (motor trans.)); pasting labels on filled whiskey bottles (job title Bottling-Line Attendant (beverage)); and tapping the lid of cans with a stick (job title Vacuum Tester, Cans)." 403 F.Supp.2d at 984.
Accordingly, even though the ALJ erred in not seeking further clarification from the VE, any error was necessarily harmless because the ALJ's RFC determination was appropriate and the credited evidence showed that Plaintiff could perform level-two reasoning. See Bordbar v. Astrue , 475 F.App'x 214, 215 (9th Cir. 2012) (finding any error in ALJ's reliance on VE testimony that person limited to "one to two-step simple instruction kinds of jobs" could perform jobs with level-two reasoning harmless because court "ha[d] no doubt, based on the record, that [plaintiff] could perform jobs at Reasoning Level Two"); see also Molina v. Astrue , 674 F.3d 1104, 1115 (9th Cir. 2012) (ALJ's error harmless when "inconsequential to the ultimate nondisability determination" (internal quotation marks omitted)); Stout v. Comm'r, Soc. Sec. Admin. , 454 F.3d 1050, 1055 (9th Cir. 2006) (same). Plaintiff is not entitled to remand on this ground.
B. The ALJ Permissibly Discounted Plaintiff's Credibility
Plaintiff argues that the ALJ decision is "void of any sufficient rationale at all as to why the ALJ ignored and disregards [sic] [Plaintiff's] testimony." (J. Stip. at 23.)
1. Applicable law
An ALJ's assessment of symptom severity and claimant credibility is entitled to "great weight." See Weetman v. Sullivan , 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler , 779 F.2d 528, 531 (9th Cir. 1986). "[T]he ALJ is not required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423 (d) (5) (A)." Molina , 674 F.3d at 1112 (internal quotation marks omitted). In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. See Lingenfelter , 504 F.3d at 1035-36. "First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged." Id. at 1036 (internal quotation marks omitted). If such objective medical evidence exists, the ALJ may not reject a claimant's testimony "simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged." Smolen v. Chater , 80 F.3d 1273, 1282 (9th Cir. 1996) (emphasis in original). When the ALJ finds a claimant's subjective complaints not credible, the ALJ must make specific findings that support the conclusion. See Berry v. Astrue , 622 F.3d 1228, 1234 (9th Cir. 2010). Absent affirmative evidence of malingering, those findings must provide "clear and convincing" reasons for rejecting the claimant's testimony. Lester , 81 F.3d at 834. If the ALJ's credibility finding is supported by substantial evidence in the record, the reviewing court "may not engage in second-guessing." Thomas v. Barnhart , 278 F.3d 947, 959 (9th Cir. 2002).
2. Discussion
At the January 2011 hearing, Plaintiff testified that she could not work because she was depressed and "unable to function socially." (See AR 37.) Plaintiff said she was fired from her cashiering job in December 2007 because of her "attitude" and because she had been "afraid to go to work" and as a result was absent two or three days a week. (AR 37-38.) Plaintiff further alleged that because of her mental impairments, she had angry outbursts and panic attacks, could concentrate for only about 20 minutes, and could not follow instructions. (AR 39-41, 52-53, 55-56.)
After considering Plaintiff's subjective complaints, the ALJ largely accommodated them by limiting her to work involving only one- or two-step instructions and occasional contact with the public and coworkers. (See AR 21 (listing Plaintiff's RFC), 22 ("Although [Plaintiff] testified to problems in dealing with people, the [RFC] limits her to only occasional contact with people.").) For the reasons discussed below, moreover, the ALJ did not err in discounting Plaintiff's subjective complaints to the extent they were inconsistent with that RFC. (See AR 23 (noting that Plaintiff's statements "are not credible to the extent they are inconsistent with" her RFC).)
As an initial matter, contrary to Plaintiff's contention that "[t]here is simply no evidence of malingering here" (J. Stip. at 27), at least two of Plaintiff's providers noted that she was in fact malingering (see AR 396 (noting that Plaintiff "continues to malinger and not make any positive choices to better her lifestyle"), 445 (noting that Plaintiff "has made some progress regarding her treatment but continues to have issues with malingering")). The ALJ was therefore likely relieved of her obligation to provide "clear and convincing" reasons for rejecting Plaintiff's testimony. See Bagoyan Sulakhyan v. Astrue , 456 F.App'x 679, 682 (9th Cir. 2011) ("When there is affirmative evidence of malingering... the ALJ is relieved of the burden of providing specific, clear, and convincing reasons to discount claimant's testimony."); Schow v. Astrue , 272 F.App'x 647, 651 (9th Cir. 2008) ("the weight of our cases hold that the mere existence of affirmative evidence suggesting' malingering vitiates the clear and convincing standard of review"); Flores v. Comm'r of Soc. Sec. , 237 F.App'x 251, 252-53 (9th Cir. 2007) ("an ALJ may reject a claimant's subjective pain testimony if the record contains affirmative evidence of malingering"). Even if the clear and convincing standard applies, however, reversal is not warranted because the ALJ's findings amply met that standard.
First, the ALJ summarized Plaintiff's various activities and correctly found that her "testimony did not indicate a complete inability to function in the workplace, " as she claimed she had. (AR 22.) Indeed, Plaintiff's statements regarding her daily activities contradicted her claims that, for example, she was too depressed to work, did not socialize, and was unable to "function socially, " follow directions, or concentrate. (AR 37, 41, 52-53, 55-56.) For example, Plaintiff testified that she lived with two other women in a house owned by her father. (AR 41-42, 61.) She collected the rent from her roommates and had no problem getting along with them. (Id.) Plaintiff made her own meals, did laundry, shopped for groceries, cleaned her room, cleaned the common areas of the house when the owner, her father, was coming over, and went to the movies with friends. (AR 41-43, 50-51; see also AR 247 (function report stating that Plaintiff prepared her own food, did laundry, cleaned, and shopped).) Plaintiff got along well with her family members and occasionally drove an hour to her parents' house. (AR 53-54.) And although Plaintiff testified that she could watch a game show for only 20 minutes at a time (AR 52-53), in an earlier function report Plaintiff had written that she watched wrestling on television, read, and watched movies daily and had "no problems" doing those activities (AR 249). Plaintiff also wrote in the function report that she went to the library for an hour three or four times a week, talked on the phone with her parents and sister five or six times a week, attended church once a week, and shopped for groceries for two hours once a week. (AR 245, 249.) She was able to pay bills, count change, handle a savings account, and use a checkbook. (AR 248.)
Similarly, Plaintiff reported to psychologist Patrick that her daily activities included watching television, going to the library and checking out books, using the library computer, going to the store, checking the mail, making dinner, and doing puzzles. (AR 350.) Her hobbies included reading, going to the movies, and watching wrestling on television, and she attended church most Sundays. (Id.) Plaintiff also reported that she could independently care for her personal hygiene, administer her medications, make medical appointments, look up numbers in the phone book, cook simple meals, keep her house clean, shop, use a checkbook, and manage money. (Id.) Although Plaintiff testified that her excessive work absences had been because she was "afraid" to go to work (AR 38), she told Patrick that she had been absent because "she would have Thursday and Friday off work and then decide she wanted to have more days off and take Saturday and Sunday off" (AR 351). The ALJ was therefore entitled to discount Plaintiff's credibility because her claims of disability were inconsistent and conflicted with her reported activities. See Bray v. Comm'r of Soc. Sec. Admin. , 554 F.3d 1219, 1227 (9th Cir. 2009) (ALJ properly discounted claimant's testimony because "she leads an active lifestyle, including cleaning, cooking, walking her dogs, and driving to appointments"); Smolen , 80 F.3d at 1284 (in assessing credibility, ALJ may use "ordinary techniques of credibility evaluation, " such as "prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid"); Thomas , 278 F.3d at 958-59 (in assessing credibility, ALJ may consider inconsistencies either in claimant's testimony or between testimony and conduct); cf. Molina , 674 F.3d at 1113 ("Even where [claimant's] activities suggest some difficulty functioning, they may be grounds for discrediting the claimant's testimony to the extent that they contradict claims of a totally debilitating impairment.").
The ALJ also permissibly discounted Plaintiff's credibility because the "longitudinal evidence d[id] not support a finding of disability." (AR 21.) Indeed, examining psychologist Patrick found that Plaintiff's ability to interact with people was "fair"; her memory, attention, and concentration were "adequate"; and her ability to carry out uncomplicated instructions was unimpaired. (AR. 353.) Psychologist Dalton similarly found that Plaintiff was moderately limited in social functioning but had an adequate ability to sustain attention, concentration, persistence, and pace and no limitation on her ability to understand, remember, or perform simple or complex tasks. (AR 373.) Both psychologists believed that Plaintiff could work, albeit with some limitations. (AR 353, 373.) Indeed, Plaintiff's own providers often encouraged her to seek employment. (See, e.g., AR 401 (advising Plaintiff to attend vocational rehabilitation group), 403 (noting that Plaintiff "continues to avoid p[u]rsuing any employment opportunities and has not presented with any significant mental impairments"), 404 (advising Plaintiff that "sometimes the best thing that she could do is to locate a job"), 430 (encouraging Plaintiff to "cont. to seek further info/education on poss. career choices"), 446 (listing "locate employment opportunities" and "locate job" as "goals" of treatment), 593 (encouraging Plaintiff to "continue seeking employment as she is only counting on SSDI and this may not be a good option for her").) The ALJ therefore reasonably concluded that Plaintiff's claim of total disability was not supported by the objective medical evidence.
Plaintiff does not argue that the medical evidence supports her subjective symptom testimony but instead incorrectly contends that the rejection of a claimant's testimony based on a lack of objective evidence is "always legally insufficient." (J. Stip. at 24-25.) An ALJ may not disregard a claimant's subjective-symptom testimony " solely because it is not substantiated affirmatively by objective medical evidence." Robbins , 466 F.3d at 883 (emphasis added); see also Bunnell v. Sullivan , 947 F.2d 341, 346-47 (9th Cir. 1991). The ALJ may, however, use the medical evidence in the record as one factor in the evaluation. See Carmickle v. Comm'r, Soc. Sec. Admin. , 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."); Lingenfelter , 504 F.3d at 1040 (in determining credibility, ALJ may consider "whether the alleged symptoms are consistent with the medical evidence"); Burch v. Barnhart , 400 F.3d 676, 681 (9th Cir. 2005) ("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."); Kennelly v. Astrue , 313 F.App'x 977, 979 (9th Cir. 2009) (same). Here, as explained above, the ALJ's credibility determination was supported by at least one other clear and convincing reason, the inconsistencies between her testimony and the extent of her daily activities; thus, there was no error.
This Court may not "second guess" the ALJ's credibility finding simply because the evidence may have been susceptible of other interpretations more favorable to Plaintiff. See Tommasetti v. Astrue , 533 F.3d 1035, 1039 (9th Cir. 2008). The ALJ reasonably and properly discredited Plaintiff's testimony regarding the severity of her symptoms and gave clear and convincing reasons for her adverse credibility finding, even though a lesser standard was likely applicable because of the evidence of Plaintiff's malingering. Reversal is therefore not warranted on this basis.
VI. CONCLUSION
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g), IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties.
This sentence provides: "The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing."