Opinion
No. CV 07-2236-RC.
July 16, 2008
OPINION AND ORDER
Plaintiff Nathan L. Hunter, aka Nathan Lavell Hunter, filed a complaint on April 10, 2007, seeking review of the Commissioner's decision denying his application for disability benefits. The Commissioner answered the complaint on August 31, 2007, and the parties filed a joint stipulation on October 9, 2007.
BACKGROUND I
On July 25, 2005, plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, claiming an inability to work since January 1, 2001, due to mental problems. Certified Administrative Record ("A.R.") 46-53. The plaintiff's application was denied initially on December 5, 2005. A.R. 22-27. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Zane A. Lang ("the ALJ") on March 8, 2006. A.R. 28-29, 287-321. On June 30, 2006, the ALJ issued a decision finding plaintiff is not disabled. A.R. 10-20. The plaintiff appealed this decision to the Appeals Council, which denied review on February 16, 2007. A.R. 4-7, 283-84.
II
The plaintiff, who was born on July 28, 1963, is currently 44 years old. A.R. 46. He has a tenth-grade education, and has previously worked as a machinist and tool maker. A.R. 54, 56-57, 85-92.
The plaintiff was imprisoned for child molestation and, while in prison, received mental health treatment. A.R. 100-63, 205-08, 212-52. On or about May 31, 2000, Cristine Cardin, Psy.D., a prison psychologist, examined plaintiff, conducted psychological testing, and diagnosed plaintiff with: schizoaffective disorder, depressive type; pedophilia, sexually attracted to females, limited to incest, exclusive type; and an unspecified personality disorder with borderline, antisocial and narcissistic features; and determined plaintiff's Global Assessment of Functioning ("GAF") was 45. A.R. 114-19. On February 22, 2001, Tim Ross, MSW, a psychiatric social worker, opined plaintiff "should be psychiatrically unassigned . . . through 8-31-01 due to gross perceptual disturbances and severe paranoia while his condition is being stabilized by medications." A.R. 113. On July 24, 2001, a prison interdisciplinary treatment team found plaintiff was totally disabled due to gross perceptual disturbances resulting in plaintiff's inability to understand, remember, and carry out simple instructions or to maintain basic attention for at least 30 minutes, as well as by severe paranoia that causes an inability to relate and interact appropriately with supervisors. A.R. 112.
A GAF of 41-50 means that the individual exhibits "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job)." American Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).
This report is incomplete, undated, and poorly photocopied, making it difficult to review.
On October 25, 2001, plaintiff was sent to Atascadero State Hospital ("ASH") for treatment. A.R. 207. On July 23, 2002, John Cannell, M.D., a staff psychiatrist at ASH, diagnosed plaintiff as having an unspecified personality disorder with antisocial and obsessive-compulsive features, found plaintiff's GAF was 60, recommended plaintiff be returned to prison under California Penal Code ("P.C.") § 2685, and opined plaintiff will need continued psychiatric followup for his paranoid schizophrenia. A.R. 109. On August 29, 2002, Edward Cavanagh, M.D., another ASH staff psychiatrist, examined plaintiff and also recommended plaintiff be returned to prison under P.C. § 2685 since plaintiff "has shown nothing but stability and no evidence of severe symptoms of an Axis I disorder" during the previous month. A.R. 111.
A GAF of 60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).
P.C. § 2685 provides, in pertinent part:
When in the opinion of the superintendent the mentally ill, mentally deficient or insane prisoner has been treated to such an extent that such person will not benefit by further care and treatment in the state hospital, the superintendent shall immediately notify the Director of Corrections of that fact. The Director of Corrections shall immediately send for, take and receive the prisoner back into prison.
P.C. § 2685.
On or about September 11, 2002, plaintiff was returned to prison because he "ha[d] been treated to such an extent that he [would] not benefit from further care and treatment in a state facility[,]" A.R. 110, and he was initially placed in an intensive outpatient care/locked observation unit. A.R. 207. On September 18, 2002, Shirley Stack, Ph.D., a clinical psychologist, examined plaintiff, concluded he was quite stable, and discharged him from the unit. A.R. 207-08.
On November 4, 2003, J. Roorda, a licensed clinical social worker, opined plaintiff was malingering. A.R. 150. On January 7, 2004, Janet N. Sotomayor, Ph.D., a staff psychologist, examined plaintiff, found he was stable without medication, and determined plaintiff's GAF was 70. A.R. 149. On February 4, 2004, J. Roorda opined there was still no evidence of an Axis I diagnosis for plaintiff. A.R. 147. On February 11, 2004, plaintiff was found to be noncompliant with his medication, but also found to be alert and oriented, cooperative, and with clear speech and no somatic complaints. A.R. 146. On April 7, 2004, O. Taylor, M.D., a staff psychiatrist, examined plaintiff, found plaintiff's mental status was good, and opined it was unusual for a schizophrenic to maintain stability without psychotropic medication. A.R. 142. On April 7, 2004, Madeline M. Daniels, Ph.D., a licensed psychologist, examined plaintiff, opined plaintiff had an inconsistent presentation of symptoms and did not appear schizophrenic or psychotic, and diagnosed plaintiff as "rule out" malingering. A.R. 238. On April 27, 2004, after plaintiff reported feeling paranoid, Dr. Sotomayor examined plaintiff and opined plaintiff did not pose any danger to himself or others. A.R. 133, 140.
A GAF of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000).
Plaintiff was placed in administrative segregation from April 26 to May 4, 2004, and while there, it was determined he was stable and oriented, showed no signs or symptoms of decompensation, and had no somatic complaints. A.R. 134, 136. On May 4, 2004, a staff psychologist opined plaintiff "appears to be malingering." A.R. 233. On June 9, 2004, Dr. Sotomayor found plaintiff was not compliant with his medication, observed he appeared stable without psychotropic medication, and determined plaintiff's GAF was 66. A.R. 130. On August 10, 2004, Dr. Sotomayor again determined plaintiff was stable without medication and his GAF was 65. A.R. 129. On November 10, 2004, Dr. Sotomayor met with plaintiff at plaintiff's request, and plaintiff complained that his correctional counselor was planning to house him in the gym, where he did not want to be housed; but Dr. Sotomayor stated there was no mental health reason why plaintiff could not be transferred to the gym. A.R. 127.
On April 27, 2005, Dr. Sotomayor continued to report that plaintiff appeared stable without psychotropic medication, and determined plaintiff's GAF was 68. A.R. 123. Furthermore, Dr. Sotomayor noted plaintiff, who was shortly to be released from prison, talked about how he would not be able to succeed in society because of his history and inquired about the criteria for disability benefits and whether he qualified for such benefits. Id. Dr. Sotomayor concluded caution should be used when evaluating plaintiff for disability benefits. Id.
On October 7, 2005, Jobst Singer, M.D., a non-prison psychiatrist, examined plaintiff, diagnosed him with an unspecified psychosis and determined plaintiff's GAF was 50. A.R. 164-67. Dr. Singer concluded:
[Plaintiff's] ability to understand, remember and perform instructions is mildly impaired for simple tasks and moderately impaired for complex tasks. Although persistence cannot be fully evaluated in an evaluation of this type, the [plaintiff's] mental slowness could significantly interfere somewhat with the [plaintiff's] ability to complete a normal day of work. The [plaintiff's] judgment showed no significant impairment during the interview that would increase safety risks above normal in the usual work setting. [¶] Based on behavior during the interview, the [plaintiff's] ability to relate and interact with coworkers and the public, as well as the ability to be supervised, is not impaired. [¶] It is not clear to the interviewer if the [plaintiff's] presentation is real or simulated.
A.R. 166-67 (emphasis added).
On December 5, 2005, C.H. Dudley, M.D., a nonexamining psychiatrist, diagnosed plaintiff as having a severe mental impairment that causes a "mild" restriction in his activities of daily living and "moderate" difficulty maintaining social functioning and concentration, persistence or pace; however, there was "insufficient evidence" to demonstrate whether plaintiff has ever experienced any episodes of decompensation. A.R. 178-89. Dr. Dudley further opined plaintiff is moderately limited in his ability to: understand, remember and carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; work in coordination with or proximity to others without being distracted by them; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; get along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness; and respond appropriately to changes in the work setting, but he was otherwise not significantly limited. A.R. 174-76. Dr. Dudley concluded plaintiff is capable of performing simple repetitive tasks in a low stress public contact environment. A.R. 176.
On February 16, 2006, Gary Chase, M.D., a psychiatrist, who had been treating plaintiff since January 31, 2005, diagnosed plaintiff as having paranoid schizophrenia and opined plaintiff is not competent, is dependent on others, and requires residential care. A.R. 256-59. Dr. Chase reported plaintiff is actively psychotic at times, is guarded, paranoid, and socially reclusive, experiences depression, irritability, anxiety, and mood swings, among other symptoms, has had multiple head injuries, appears cognitively impaired, and has problems with short — and long-term memory, impulsivity, and poor judgment. A.R. 257-58. Dr. Chase further opined plaintiff's ability to concentrate and complete tasks is severely impaired and he has a poor ability to adapt to work or work-like situations. A.R. 258. Furthermore, Dr. Chase opined plaintiff has a "severe" impairment in his ability to: maintain attention for two-hour segments; maintain regular attendance and be punctual; sustain an ordinary routine without special supervision; work in coordination with or in close proximity to others without being distracted by them; make simple work-related decisions; complete a normal work day without interruptions from psychologically-based symptoms, performing at a consistent pace without an unreasonable number of and length of rest periods; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; respond appropriately to changes in a work setting; and be aware of normal hazards and take appropriate precautions. A.R. 253-55. Dr. Chase also determined plaintiff has "marked" limitations in his ability to remember work-like procedures, understand, remember and carry out short and simple instructions, and ask simple questions and request assistance. A.R. 253-54.
"Severe" means "[n]o useful ability to function in this area." A.R. 255.
"Marked" means "[a]bility to function is seriously limited but not severe." A.R. 255.
On April 18, 2006, Ahmad R. Riahinejad, Ph.D., a licensed clinical psychologist, examined plaintiff and diagnosed him as malingering on examination and as having a schizoaffective disorder and pedophilia per prison history, an antisocial personality disorder, and rule out moderate mental retardation. A.R. 271-81. Dr. Riahinejad described plaintiff's appearance at the examination as follows:
The [plaintiff] appeared poorly groomed. . . . When he came into the examination room, he was trying to search behind the door and underneath the desk. He said that he was accompanied by an imaginary friend named, "Eddie." He was talking to "Eddie" during the evaluation, laughing and crying, and at one point, he jumped off the chair and dove onto the floor, as he was getting [into] a fight with "Eddie."
A.R. 272. Dr. Riahinejad further noted plaintiff "was generally very suspicious. He was constantly talking to his imaginary friend. He was minimally cooperative. . . . It appeared that he was trying to simulate mental illness. His overall attitude was characterized by what appeared to be insufficient effort." A.R. 273-74 (emphasis added). Dr. Riahinejad concluded he could not comment on plaintiff's work-related abilities because plaintiff put forth no effort on psychological testing and plaintiff's GAF was "unclear," while plaintiff's actions during the examination were felt to be a simulation. A.R. 276, 279-81. On the other hand, Dr. Riahinejad stated that "as he presented himself today, he is unable to manage funds on his own behalf. He was not able to understand, remember or carry out even the simplest instructions." A.R. 276.
DISCUSSION III
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).
"In determining whether the Commissioner's findings are supported by substantial evidence, [this 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. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S. Ct. 1068 (2008);Lingenfelter, 504 F.3d at 1035.
The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).
The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. § 404.1520. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. § 404.1520(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. § 404.1520(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. § 404.1520(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. § 404.1520(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520(g).
Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments. Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. § 404.1520a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. § 404.1520a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 404.1520a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. § 404.1520a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ's decision "must incorporate the pertinent findings and conclusions" regarding plaintiff's mental impairment, including "a specific finding as to the degree of limitation in each of the functional areas described in [§ 404.1520a(c)(3)]." 20 C.F.R. § 404.1520a(d)(3), (e)(2).
Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since his alleged onset date. (Step One). The ALJ then found plaintiff's mild degenerative disc disease is a "severe" impairment, but plaintiff does not have a severe mental impairment (Step Two), and he does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff is able to perform his past relevant work as a machine operator II; therefore, he is not disabled. (Step Four).
IV
The Step Two inquiry is "a de minimis screening device to dispose of groundless claims." Smolen, 80 F.3d at 1290; Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). The Supreme Court has recognized that including a severity requirement at Step Two of the sequential evaluation process "increases the efficiency and reliability of the evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account." Bowen v. Yuckert, 482 U.S. 137, 153, 107 S. Ct. 2287, 2297, 96 L. Ed. 2d 119 (1987). However, an overly stringent application of the severity requirement violates the Act by denying benefits to claimants who meet the statutory definition of disabled. Corrao v. Shalala, 20 F.3d 943, 949 (9th Cir. 1994).
A severe impairment or combination of impairments within the meaning of Step Two exists when there is more than a minimal effect on an individual's ability to do basic work activities.Webb, 433 F.3d at 686; Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); see also 20 C.F.R. § 404.1521(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [a person's] physical or mental ability to do basic work activities."). Basic work activities are "the abilities and aptitudes necessary to do most jobs," including physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling, as well as the capacity for seeing, hearing and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers and usual work situations, and dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b); Webb, 433 F.3d at 686. If the claimant meets his burden of demonstrating he suffers from an impairment affecting his ability to perform basic work activities, "the ALJ must find that the impairment is `severe' and move to the next step in the SSA's five-step process." Edlund v. Massanari, 253 F.3d 1152, 1160 (9th Cir. 2001) (emphasis in original); Webb, 433 F.3d at 686.
Here, the ALJ extensively reviewed the medical records and concluded plaintiff "does not have a `severe' medically determinable mental impairment." A.R. 15-17. To the contrary, the ALJ found plaintiff "is clearly a malingerer" and there is no evidence "establish[ing] a medically determinable impairment when the [plaintiff's] subjective allegations and easily feigned behavior is not considered." Id. The ALJ further determined that "[e]ven assuming that the record does establish a medically determinable mental impairment or combination of impairments, the record does not — in the absence of the [plaintiff's] feigned behavior — establish any mental limitations flowing from such impairment." A.R. 17.
"[A]n ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is `clearly established by medical evidence.'" Webb, 433 F.3d at 687 (citation omitted). Here, substantial evidence in the record supports the ALJ's conclusion that plaintiff is a malingerer. Initially, the ALJ found plaintiff "malingered in a very crude and obvious fashion during the consultative psychological examination" with Dr. Riahinejad. A.R. 15. Indeed, plaintiff pretended he was accompanied to the examination by an imaginary friend, "Eddie," who plaintiff began to search for from the moment he entered the examining room. A.R. 272. Then, having found "Eddie," plaintiff began a constant conversation with his imaginary friend, which culminated with plaintiff jumping off his chair and diving onto the floor, as if he was fighting with "Eddie." A.R. 272-74. Furthermore, during one of the psychological tests he was supposed to be taking, plaintiff stopped the test and instead offered his pencil to "Eddie," stating "Eddie" wanted to do the rest of the examination, A.R. 274; plaintiff did not respond to any questions on the Minnesota Multiphasic Personality Inventory; and plaintiff's results on the Wechsler Adult Intelligence Scale — 3rd edition demonstrated moderate mental retardation, even though there is no other evidence of mental retardation in plaintiff's medical records. A.R. 275. Based on these and other findings, Dr. Riahinejad opined plaintiff was malingering during the consultative examination, and the test results were invalid. A.R. 275-76. Dr. Riahinejad's opinion supports the ALJ's determination that plaintiff is a malingerer. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001).
Apart from Dr. Riahinejad's examination of plaintiff, there is not any mention of an imaginary friend named "Eddie" anywhere in plaintiff's medical records, and plaintiff apparently created "Eddie" as part of his ploy to obtain disability benefits.
Moreover, plaintiff's prison records also support the ALJ's determination that plaintiff is a malingerer. That is, although plaintiff was initially thought to be severely mentally ill while incarcerated, it soon became apparent to the treatment staff that plaintiff was manipulating his "illness," which waxed and waned depending on plaintiff's particular needs. Thus, while plaintiff was extensively observed and found to be "quite stable" on medication at ASH, A.R. 111, following his return from ASH, A.R. 207, and when he stopped taking psychotropic medication all together, see, e.g., A.R. 123, 129-30, 141-42, 146-47, 149, 238, he nevertheless attempted to use his "illness" to avoid prison grooming standards, see A.R. 150 (finding plaintiff malingering to avoid compliance with grooming standards), and to attempt to manipulate his housing situation to his satisfaction. See A.R. 127, 133-34, 136, 140. Further, several prison staff found plaintiff is a malingerer. See, e.g., A.R. 123 (staff psychologist recommended caution in evaluating plaintiff for disability benefits), 133 (staff psychologist opined secondary gain should be considered regarding plaintiff's renewed psychiatric complaints following his placement in an unfavorable housing situation), 138 (staff psychiatrist diagnosed plaintiff with history of malingering), 142 (staff psychiatrist opined it was unusual for schizophrenic to maintain stability without psychotropic medication), 150 (licensed clinical social worker opined plaintiff was malingering to avoid compliance with grooming standards), 233 (staff psychologist opined plaintiff "appears to be malingering"), 238 (staff psychologist diagnosed plaintiff as "rule out malingering," finding plaintiff had an inconsistent presentation of symptoms and did not appear schizophrenic or psychotic).
The plaintiff, although not seriously challenging the ALJ's finding that he is a malingerer, contends the ALJ's Step Two determination is not supported by substantial evidence because the ALJ improperly rejected the opinions of Drs. Cardin, Chase, Singer and Dudley. There is no merit to this claim.
Since the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual[,]" Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999), the ALJ must provide clear and convincing reasons for rejecting the uncontroverted opinion of a treating or examining physician, and "[e]ven if [a] treating [or examining] doctor's opinion is contradicted by another doctor, the ALJ may not reject this opinion without providing `specific and legitimate reasons' supported by substantial evidence in the record." Reddick, 157 F.3d at 725; Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). The ALJ may only "reject the opinion of a nonexamining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). While "not bound by findings made by State agency or other program physicians and psychologists, [the ALJ] may not ignore these opinions and must explain the weight given to the opinions in their decisions." S.S.R. 96-6p, 1996 WL 374180, *2 (S.S.A.); 20 C.F.R. § 404.1527(f).
Here, the ALJ fully explained the nature of plaintiff's manipulations and malingering, stating:
[N]one of the diagnoses of mental illness found in the record are based on signs or symptoms not reproducible by a clever malingerer. Indeed, the [plaintiff] appears to be skilled at "working the system: . . . the [plaintiff] attempted to feign mental illness in order to be assigned to a psychiatric unit. [Prison] records indicate that the alleged symptoms appeared to wax and wane depending on whether or not he wanted to be in a psychiatric unit. For instance, at one point while in a psychiatric unit, the [plaintiff] asked for specific criteria for discharge. Thereafter the [plaintiff] exhibited increased coping skills and a remission from hallucinations. Given the [plaintiff's] history of feigning, the undersigned concludes that the [plaintiff's] episode of "mental illness" and subsequent remarkable "recovery" were mere manipulations.
A.R. 16 (citations omitted). The ALJ then rejected the medical opinions of Dr. Chase, plaintiff's treating physician, as well as Drs. Singer and Dudley, primarily because their opinions were based "almost exclusively" on the plaintiff's claims and observations of easily feigned signs and symptoms of psychotic behavior. A.R. 17; see also id. (Dr. Singer's "diagnosis and limitations were based on the [plaintiff's] allegations and history: the mental status examination was completely benign with no sign of hallucinations or delusions."). Although noting Dr. Cardin based her diagnosis in part on psychometric testing, the ALJ rejected Dr. Cardin's opinion because plaintiff "has feigned on psychometric testing during other examinations." Id. Finally, the ALJ gave Dr. Dudley's opinion no weight because Dr. Dudley found plaintiff to be at least partially credible, A.R. 190, while the ALJ determined plaintiff was "generally incredible." A.R. 17. Since plaintiff does not challenge the ALJ's adverse credibility determination, the ALJ provided proper bases for rejecting the opinions of Drs. Cardin, Chase, Singer and Dudley.Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005); see also Tonapetyan, 242 F.3d at 1149 ("Because the present record supports the ALJ in discounting [plaintiff's] credibility . . ., he was free to disregard [the examining physician's] opinion, which was premised on her subjective complaints" and "on testing within [plaintiff's] control."); Morgan, 169 F.3d at 602 ("A physician's opinion of disability `premised to a large extent upon the claimant's own accounts of his symptoms and limitations' may be disregarded where those complaints have been `properly discounted.'" (citations omitted)); Hubbard v. Barnhart, 225 Fed. Appx. 721, 723 (9th Cir. 2007) (Unpublished Disposition) ("[Plaintiff's] malingering and lack of credibility is a considerable taint that affects most of the evidence she marshals. [Plaintiff's] treating physicians all relied on her subjective complaints about pain, discomfort and lack of energy when making their diagnoses. The ALJ properly discounted the treating physicians' opinions after considering the [evidence of and] opinions about [plaintiff's] malingering.").
Moreover, Dr. Singer was not sure whether plaintiff's presentation was real or he was malingering. A.R. 167.
See Fed.R.App.P. 32.1(a); Ninth Circuit Rule 36-3(b).
On the other hand, the record contains substantial evidence, including the opinions of treating psychologist Dr. Sotomayor, supporting the ALJ's conclusion that plaintiff does not have a severe mental impairment. Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th Cir. 2005); Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998); see also Raboubi v. Barnhart, 2003 WL 22458903, *5-6 (N.D. Cal.) (ALJ properly found claimant did not have severe mental impairment when claimant "behaved uncooperatively and deceptively during diagnostic tests" and her "mental condition was suggestive of malingering, rather than a valid mental disability"); Rosenbaum v. Astrue, 2008 WL 80149, *2 (E.D. Tenn.) (ALJ did not err in determining nonseverity of claimant's mental impairments in light of claimant's gross "malingering and the simple paucity of objective medical evidence in the record showing that [claimant] suffers from the severity of mental impairments which he claims . . ."). Thus, the ALJ did not err in making his Step Two determination that plaintiff does not have a severe mental impairment.
To the extent plaintiff argues his malingering was caused by a personality disorder and, thus, is a severe impairment in and of itself, see Jt. Stip. at 9:4-15, his claim is without merit since plaintiff points to absolutely no evidence in the record demonstrating his malingering was caused by a personality disorder. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993);Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999).
ORDER
IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.