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Johnson v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


September 15, 2008

KATHLEEN R. JOHNSON, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding pro se, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the consent of the parties, this case is before the undersigned for final decision on plaintiff's motion for summary judgment (Docs. 40, 43) and defendant's cross-motion for summary judgment (Doc. 41).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on October 12, 2004. In her application, plaintiff claims that her disability began on October 1, 2004. Plaintiff claims her disability consists of a combination of breathing problems due to chronic obstructive pulmonary disease (COPD), and leg and back pain. Plaintiff's claim was initially denied. Following denial of her request for reconsideration, plaintiff requested an administrative hearing, which was held on May 9, 2006, before Administrative Law Judge ("ALJ") John M. Bodley. In his October 25, 2006, decision, the ALJ made the following findings:

1. The claimant filed applications for a Period of Disability, Disability Insurance Benefits, and Supplemental Security Income (SSI) benefits on October 12, 2004, alleging "disability," beginning on October 1, 2004.

2. Examination of the claimant's earnings record discloses that she was insured for Title II Disability Insurance Benefits on October 1, 2004, the alleged onset of "disability" date, and remains so insured through at least December 31, 2010.

3. The claimant has not engaged in substantial gainful activity (SGA) since October 1, 2004. Her current part-time work as a home telemarketer is not generating earnings sufficient to raise the presumption of SGA (see text).

4. The claimant's "severe" impairment is chronic obstructive pulmonary disease (COPD). It is agree[d] with the State Agency Medical Consultant (and Dr. Beech) that there is no medically-determinable impairment of record to explain complaints of leg pain. In addition, despite the claimant's rather bizarre missives, there is no evidence of any medically-determinable mental impairment (see Exhibit 9E).

5. The claimant has no impairment or combination of impairments meeting or equaling in severity any impairment set forth in the Listing of Impairments in Appendix 1, Subpart P, Regulations No. 4.

6. I[t] is found that the claimant retains the following residual functional capacity (RFC): From an exertional standpoint, she is limited to "light" work activities, as defined at 20 CFR 404.1567(b), 416.967(b) (see also SSR 96-8p), with the proviso that the claimant should avoid concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. There are no other non-exertional limitations (20 CFR 404.1545, 416.945). The claimant's symptom allegations to the contrary are not credible or reliable for the reasons set forth in the body of this decision. The testimony of the lay witnesses was contrived, biased, and basically a repetition of the claimant's allegations which are grossly exaggerated and not at all credible.

7. The claimant reported that she is now 49 years old, received a high school education, is literate, and has past relevant work (PRW) as a landscaper, motel maid, and home telemarketer.

8. Given the above-noted RFC, it is agreed with the State Agency that the claimant has failed to meet the burden of showing that her pulmonary impairment prevents her from doing her PRW as a home telemarketer. She admittedly is able to do this job part-time, and no reason is seen in this record why she cannot do the job on a full-time basis. It is therefore found that the claimant [is] "not disabled" at the fourth sequential step (20 CFR 404.1520(f), 416.920(f)).

9. The claimant was not under a "disability" within the meaning of the Act at any time on or before the date of this decision.

(CAR at 19). After the Appeals Council declined review on January 24, 2007, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following:

(1) Medical records dated November 4, 2003 from Northern California Research Corporation (CAR 196-206);

(2) Medical records covering the period from December 3, 2003 to January 6, 2004 from Med 7 Urgent Care Facility (CAR 207-13);

(3) Internal Medicine Consultive Examination dated November 29, 2004 by MDSI Physician Group, Jenna Beech, M.D. (CAR 214-18);

(4) Medical report dated January 13, 2005 by Marvin Gatz, M.D. (CAR 219-24);

(5) Residual Functional Capacity Assessment-Physical (DDS) dated December 14, 2004 (CAR 225-34);

(6) Medical records dated March 29, 2005 from Donald Rifas, M.D. (CAR 235-38); and

(7) Medical records dated May 16, 2006 from the UC Davis Medical Center (CAR 239-239A).

Relevant Medical Records: 2003 On November 4, 2003, plaintiff had a Pulmonary Function Test. The report indicates a moderate obstructive pulmonary impairment, "indicated by the finding of a moderate reduction in the forced expired volume in one second as a [percentage] of the forced vital capacity (FEV1/FVC). The degree of functional impairment reflected by the reduction in forced expired volume in the first second (FEV1) is found to be mild." (CAR at 196).

Plaintiff was seen on December 3, 2003 at the Urgent Care Center by Dr. Dean Kim. Dr. Kim noted that plaintiff brought in a pulmonary function test, which indicated mild Chronic Obstructive Pulmonary Disease (COPD). Dr. Kim diagnosed plaintiff with COPD, but did not indicate any treatment, follow-up, or limitations. Plaintiff was simply instructed to recheck as needed.

2004

There are medical records indicating that plaintiff was seen on January 6, 2004 at the Urgent Care Center by Dr. Kim, but there are no medical notes from that visit. The medical record simply states her chief complaint was "PP" and "COLD," and gives plaintiff's weight. The only other notation, beyond Dr. Kim's signature, is "VOID."

On November 29, 2004, plaintiff had a comprehensive internal medicine evaluation by Dr. Jenna Beech. Plaintiff's chief complaints were breathing and leg pain. Dr. Beech noted she had a copy of the pulmonary function test from November 2003. Petitioner indicated that she has become increasingly short of breath over the past 20 years, including the inability to walk distances further than two blocks, and becoming short of breath when talking. She also indicated increased leg pain, "right greater than left calf pain" which is worse with standing and better with sitting. Plaintiff stated she was able to do her own hygiene, cook, do dishes, vacuum, and laundry with frequent breaks. All of plaintiff's medications were over-the-counter, and she was not on any prescription medication. Dr. Beech noted plaintiff did not speak with significantly shortened sentences. On examination, Dr. Beech found plaintiff's "chest wall shows bilateral equal extension. The lungs have diminished breath sounds, but no wheezing or crackles. There is no increased expiratory phase." (CAR at 215). Dr. Beech diagnosed plaintiff with:

COPD with pulmonary function testing in November 2003. This demonstrated moderate obstructive pulmonary impairment. The claimant feels her symptoms have progressed and I have ordered a repeat pulmonary function testing to be obtained. Of note, she is not currently on treatment. Even though this is a chronic progressive illness, she is not being treated, in terms of oxygen and inhaler treatments. (CAR at 217)*fn1.

Dr. Beech's functional assessment of plaintiff is that she can be expected to stand and/or walk for two hours during an eight-hour workday. This is secondary to her shortness of breath. The claimant can be expected to sit without limitations. [Dr. Beech does] not believe that the claimant has any medical necessity for an assistive device for short distances and for level terrain. She does require a wheelchair for distances beyond her reported limitation of two blocks. The claimant can lift and carry 20 pounds occasionally and 10 pounds frequently. She is limited by her shortness of breath. The claimant has postural limitations and can perform bending, stooping, and crouching occasionally. This is based on her shortness of breach. She has no manipulative limitations. The claimant does, by history, have a communicative limitation, in that she is unable to speak for long periods of time secondary to her dyspnea. I was not able to confirm this on my evaluation. She has no visual or workplace environmental limitations.

(Id.)

On December 14, 2004, plaintiff had a physical RFC assessment. Dr. Clancey found plaintiff could frequently lift 10 pounds; could stand and/or walk about six hours in an eight-hour workday; sit about six hours in an eight-hour workday; had the unlimited ability to push and/or pull; had no postural, manipulative, or visual communicative limitations; the only environmental limitations was to avoid concentrated exposure to fumes, odors, gases, etc.

2005

Plaintiff was seen by Dr. Marvin Gatz on January 13, 2005 on a self-referral. Plaintiff's chief complaint was increased shortness of breach, and she was requesting an evaluation and treatment of her COPD. Plaintiff indicated her only medications were herbal medicines. Dr. Gatz's review stated plaintiff had "increasing dyspnea with exertion, increased difficulty doing housework. Fatigue, dizziness, occasional cough, increased mucous secretions." (CAR at 222). On examination, Dr. Gatz noted plaintiff's blood pressure was 118/70, pulse was 76, respirations were 16, weight was 121 pounds, her oxygen saturation was 100%, her chest was clear and she had a regular heart rate and rhythm. Dr. Gatz performed a pulmonary function test, the results of which were normal. The interpretation of the pulmonary function test, dated January 13, 2005, was "NORMAL SPIROMETRIC VALUES indicate the absence of any significant degree of obstructive pulmonary impairment and/or restrictive ventilatory defect." (CAR at 224). Dr. Gatz's impression was "[questionable] asthma/reactive airways state. However, she does have normal pulmonary function test, I doubt any significant degree of underlying COPD." (CAR at 223). Dr. Gatz recommended a trial of Advair and Albuterol, and suggested a follow up in two weeks.

On January 30, 2005, plaintiff was seen in the emergency room, with complaints of breathing difficulties. The report/discharge instructions notes that all of plaintiff's labs and x-rays were all essentially normal. Plaintiff was given Albuterol and Atrovent for her shortness of breach. She was instructed to return to the ER for chest pain or difficulty breathing, and to get established with a doctor to be seen in seven days.

Relevant Hearing Testimony

At the hearing Plaintiff was without council and after repeated efforts by the ALJ to convince Plaintiff to obtain council, plaintiff chose to continue the hearing without council. Plaintiff testified on her own behalf, and had witnesses Rhonda Danielle Johnson (plaintiff's daughter) and Karen Chapman (plaintiff's friend) testify on her behalf.

Plaintiff testified that she was forty-nine and a half, has a twelfth grade education, has received training in medical transcription but is not certified, and at one time took a journalist course, which she did not complete. Plaintiff stated that at the time of the onset of her alleged disability, she had "two phone work jobs," a part time job working for an insurance company, and "yard work jobs." (CAR at 310-11). In October 2004, she quit her part time job with the insurance company, and had to cut back her hours in her other jobs due to her breathing trouble. At the time of the hearing, plaintiff was working about 20 hours a week, making $800.00 per month on a contract, working for the "Sacramento Association Retarded." (CAR at 311). She testified that she gets "real dizzy, sir, from talking. My oxygen level is low." (Id.)

Plaintiff explained that her current physician was Dr. Jennifer Lee at UC Davis Medical Center. She had an appointment with Dr. Lee on May 25, 2006. Previously, plaintiff had seen Dr. Rifus, who took some x-rays which showed white spots on her lungs. She was taking Advair and Combivent at the time, and she was told that in order to obtain an accurate reading, she only had to wait four to six hours after taking the medication to have the tests run. However, she testified that she later found out that information was incorrect, and the medication could stay in her system for 48 hours. So, when Dr. Rifus "gave a PFT and FEV went way up. They said there was nothing wrong with me. And then he showed me the x-rays again and there was hardly a spot on there. It was really strange." (CAR at 314). She stated she had a doctor friend give her a PulseOx 5500 in order for her to check her own oxygen levels, which have been in the 80's and inconsistent with her physician's readings. She also testified that due to her low oxygen levels, she is "having trouble breathing and the meds aren't working." (CAR at 315). Plaintiff thought her doctor's machines were very old and needed to be calibrated.

Plaintiff's 13-year old daughter, Rhonda, testified that she does a lot of the housework, and she pushed her mother in a wheelchair before she got an electric one. Rhonda stated that she does a lot of the cooking and housecleaning because plaintiff can hardly do it.

Plaintiff's friend Karen Chapman also testified. Ms. Chapman testified that plaintiff's health has deteriorated over the past nine years, she now struggles to do things she used to be able to do (like singing and walking), and plaintiff had to be rushed to emergency because she wasn't breathing.

III. STANDARD OF REVIEW

The court reviews the Commissioner's final decision to determine whether it is:

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is "... such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

IV. DISCUSSION

In her motion for summary judgment, plaintiff argues that the ALJ erred in determining that she was not disabled. Specifically, plaintiff argues: (1) the ALJ erred in finding her not disabled; (2) the ALJ improperly rejected her testimony as not credible; and (3) the ALJ improperly rejected or ignored the medical opinions of her treating physicians. Plaintiff has also submitted new evidence to support her contention that she is disabled.

A. FIVE-STEP DISABILITY EVALUATION

To achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation to determine whether a claimant is physically or mentally disabled. 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). If during any point of this review, it is determined that the claimant is not disabled, the claim is not to be considered further. 20 C.F.R. §§ 404.1520(a) and 416.920(a). The five-step process is summarized as follows:

1. Determination of whether the claimant is engaged in substantial gainful activity, and if so engaged, the claimant is not presumed disabled and the analysis ends;

2. If not engaged in substantial gainful activity, determination of whether the claimant has a severe impairment; if the claimant does not, the claimant is not presumed disabled and the analysis ends;

3. If the claimant has a severe impairment, determination of whether any such severe impairment meets any of the impairments listed in the regulations;*fn2 if the claimant does have such an impairment, the claimant is disabled and the analysis ends;*fn3

4. If the claimant's impairment is not listed, determination of whether the impairment prevents the claimant from performing his or her past work;*fn4 if the impairment does not, the claimant is not presumed disabled and the analysis ends; and

5. If the impairment prevents the claimant from performing his or her past work, determination of whether the claimant can engage in other types of substantial gainful work that exist in the national economy;*fn5 if the claimant can, the claimant is not disabled and the analysis ends.

To qualify for benefits, a claimant must establish that he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 1382c(a)(3)(A). A claimant must show that he or she has a physical or mental impairment of such severity that he or she is unable to do his or her previous work and cannot, considering his or her age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bower, 882 F.2d 1453, 1456 (9th Cir. 1989).

The claimant has the initial burden of proving the existence of a disability within the meaning of the Act. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). The claimant establishes a prima facie case of disability by showing that a physical or mental impairment prevents him from engaging in his previous occupation (steps 1 through 4 noted above). Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). However, once the claimant establishes a prima facie case of disability, the burden of going forward with the evidence shifts to the Commissioner. Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986). The Commissioner has the burden to establish the existence of alternative jobs available to the claimant, given his or her age, education, and medical-vocational background (step 5 noted above). In an appropriate case, the Secretary may meet this burden through application of the medical-vocational guidelines set forth in the regulations.*fn6 See 20 C.F.R. Pt. 404, Subpt. P, App. 2; Heckler v. Campbell, 461 U.S. 458 (1983); Olde v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983). If the guidelines do not accurately describe a claimant's limitations, the Commissioner may not rely on them alone to show availability of jobs for the claimant. See Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 577 (9th Cir. 1988).*fn7

Here, plaintiff submitted a minimal amount of evidence in support of her contention that she had a medical condition so serious she was unable to engage in her previous employment. In support of her assertion that she is disabled, she provided to the Commissioner an unsigned pulmonary function test from November 2003, which showed she had a mild impairment. She also submitted notes from Dr. Kim which indicated she was diagnosed with mild COPD, but there was no follow-up or additional treatment from Dr. Kim. The only other relevant medical records plaintiff provided was from her visit with Dr. Gatz in January 2005. After conducting another pulmonary function test, which was normal, Dr. Gatz found plaintiff may be suffering from asthma, but doubted any significant degree of COPD. Plaintiff did not provide the Commissioner any medical opinion which found plaintiff was limited to any degree by her medical condition.

The ALJ found plaintiff's COPD was a severe impairment, but found plaintiff was capable of performing her past relevant work as a home telemarketer and therefore was not considered disabled. Plaintiff argues that she is unable to perform her past work as a telemarketer due to her inability to breath adequately. She essentially argues that her COPD causes her to be short of breath, and without the ability to breath adequately, she is not able to talk on the phone for any significant length of time, which is required as a telemarketer.

Plaintiff has submitted additional evidence in support of her contention, which is discussed below. However, given the lack of medical evidence available to the ALJ, the court cannot find the ALJ erred. Plaintiff failed to meet her burden of proof that she has a medical condition severe enough that she is not able to perform her past relevant work.

B. DUTY TO DEVELOP THE RECORD

The ALJ has an independent duty to fully and fairly develop the record and assure that the claimant's interests are considered. See Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). When the claimant is not represented by counsel, this duty requires the ALJ to be especially diligent in seeking all relevant facts. See id. This requires the ALJ to "scrupulously and conscientiously probe into, inquire of, and explore for all the relevant facts." Cox v. Califano, 587 F.2d 988, 991 (9th Cir. 1978). Ambiguous evidence or the ALJ's own finding that the record is inadequate triggers this duty. See id. The ALJ may discharge the duty to develop the record by subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow for supplementation of the record. See id. (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998)).

Plaintiff proceeded in this matter without counsel. Therefore, the ALJ had a duty to be especially diligent in seeking all relevant facts. In accordance with his duty, the ALJ ordered a consultative examination. Plaintiff was examined by Dr. Beech in November 2004. On examination, Dr. Beech found plaintiff did not have difficulty speaking, had diminished breath sounds but no wheezing or crackles, and no increased expiratory phase. Dr. Beech reviewed plaintiff's November 2003 pulmonary function test, and found it demonstrated moderate obstructive pulmonary impairment. Dr. Beech noted she ordered a repeat pulmonary function test. Although there is no repeat pulmonary function test from Dr. Beech, plaintiff saw Dr. Gatz in January 2005 who performed a pulmonary function test. Dr. Gatz, plaintiff's own physician, found the pulmonary function test results were normal.

The ALJ is required to fully develop the record, including ordering a consultative examination when necessary. The ALJ fulfilled his duty in this case. Plaintiff submitted a pulmonary function test from 2003 which indicated she suffered from mild COPD. The ALJ ordered a consultative examination, which occurred. In furtherance of the record, Dr. Beech found a new pulmonary function test was needed. Plaintiff obtained this on her own in 2005, the results of which were normal.*fn8 In addition, plaintiff had indicated at the hearing that she had additional medical appointments scheduled. The ALJ then held the hearing open for plaintiff to supplement the record by providing the ALJ with copies of any test results that were done through the end of May 2006. The ALJ thus provided her the means to submit any additional reports to support her application. However, she did not provide any additional evidence within the allotted time, nor did she ask for additional time to submit the supplemental medical reports. The court finds the ALJ adequately discharged his duty.

C. MEDICAL EVIDENCE

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. See Lester, 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes, 881 F.2d at 751.

Here, there was no opinion from plaintiff's treating physician regarding her limitations. The only supporting medical evidence plaintiff submitted was a diagnosis from Dr. Kim as to her COPD. Her only other treating physician, Dr. Gatz, found plaintiff perhaps had asthma, but doubted any significant degree of COPD.*fn9 Giving the limited medical evidence as to plaintiff's limitations, the ALJ obtained a consultative examination from Dr. Beech. Dr. Beech found plaintiff capable of standing and/or walking for two hours, secondary to her shortness of breath, and sitting without limitation. Dr. Beech found plaintiff required a wheelchair to assist her with mobility beyond walking two blocks, capable of lifting and carrying 20 pounds occasionally and 10 pounds frequently, and bending, stooping and crouching occasionally, again limited by her shortness of breath. Dr. Beech also found plaintiff may have a communication limitation in being unable to speak for long periods of time secondary to her dyspnea, but she was not able to confirm this on examination.

The ALJ also a had residual functional capacity assessment from a State Agency Medical Consultant. This non-examining medical professional found plaintiff capable of lifting 10 pounds, and stand/walk/sit for about six hours. No other limitations were found, except to avoid concentrated exposure to fumes, odors, gases, etc.

The ALJ, giving plaintiff the benefit of doubt, found her COPD severe. However, he found her RFC included the ability to perform light work, but avoiding fumes, etc. The ALJ agreed with the State Agency's physician that plaintiff does not need to use a wheelchair for mobility, citing the lack of medical evidence for such limitation. There was no opinion from a treating physician for the ALJ to utilize. Without a treating physician's opinion, the next best source is an examining physician, in this case Dr. Beech. Dr. Beech found plaintiff more limited than the non-examining State Agency's physician. The main difference between these two professionals was in plaintiff's ability to stand and/or walk. Dr. Beech found plaintiff limited in her ability to stand and/or walk, and limited her to about two hours. The State Agency's physician found plaintiff had the ability to stand and/or walk for six hours.

The ALJ agreed with the State Agency's physician's limitations, finding plaintiff capable of performing light work.*fn10 He did so citing to the lack of medical evidence of a need for a wheelchair, and the lack of ER treatment records, hospitalization records, or doctor's office notes. The court notes that Dr. Beech's limitations are based on plaintiff's subjective complaints, not on any clinical findings. Accordingly, although minimal, the ALJ's reasons for agreeing with the non-examining physician's limitations are sufficient to resolve the conflict.*fn11

D. PLAINTIFF'S CREDIBILITY

The Commissioner determines whether a disability applicant is credible, and the court defers to the Commissioner's discretion if the Commissioner used the proper process and provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). An explicit credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester, 81 F.3d at 834.

Rather, the Commissioner must identify what testimony is not credible and what evidence undermines the testimony. See id. Moreover, unless there is affirmative evidence in the record of malingering, the Commissioner's reasons for rejecting testimony as not credible must be "clear and convincing." See id.

If there is objective medical evidence of an underlying impairment, the Commissioner may not discredit a claimant's testimony as to the severity of symptoms merely because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 341, 347-48 (9th Cir. 1991) (en banc). The Commissioner may, however, consider the nature of the symptoms alleged, including aggravating factors, medication, treatment, and functional restrictions. See id. at 345-47. In weighing credibility, the Commissioner may also consider: (1) the claimant's reputation for truthfulness, prior inconsistent statements, or other inconsistent testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; (4) work records; and (5) physician and third-party testimony about the nature, severity, and effect of symptoms. See Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (citations omitted).

Here, the ALJ found plaintiff's testimony not credible given the pervasive evidence of symptom exaggeration and symptom embellishment in this record; the inconsistencies in the record...; the almost total lack of treating medical evidence; the claimant's admitted activities of daily living as set forth in Dr. Beech's report...; and the claimant's admitted ability to work part-time as a home telemarketer (20 CFR 404.1529, 416.929, SSR 96-7p). (CAR at 18).

The reasons the ALJ provides for rejecting plaintiff's testimony are clear and convincing. The ALJ used the proper process and provided proper reasons, and the court therefore defers to his opinion.*fn12

E. WITNESS CREDIBILITY

In determining whether a claimant is disabled, an ALJ generally must consider lay witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, "lay testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence... and therefore cannot be disregarded without comment." See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). Consequently, "[i]f the ALJ wishes to discount the testimony of lay witnesses, he must give reasons that are germane to each witness." Dodrill, 12 F.3d at 919. The ALJ, however, need not discuss all evidence presented. See Vincent on Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, he must explain why "significant probative evidence has been rejected." Id. (citing Cotter v. Harris, 642 F.2d 700, 706 (3d Cir.1981)).

Here, there were two witnesses who testified at the hearing, plaintiff's daughter and friend. Plaintiff's daughter testified that she did most of the house work and cooking, and that she pushed her mother in a wheelchair before she got an electric one. Plaintiff's friend testified that she has witnessed plaintiff's health deteriorate and that plaintiff now struggles to do the things she used to be able to do. Plaintiff's friend also testified that she took plaintiff to the emergency room due to plaintiff's inability to breath. The ALJ discussed the witnesses' testimony and found both witnesses' testimony "contrived, biased, and basically a repetition of the claimant's allegations which are found grossly exaggerated and not at all credible." (CAR at 16, 17). In addition, the ALJ found no record of the emergency room visit.

The ALJ did not ignore or silently disregard this evidence. The ALJ found it not credible, controverted by the available medical evidence, and provided proper reasons for rejecting it. The court defers to the ALJ's discretion in finding the lay witness testimony not credible.

F. NEW EVIDENCE

Plaintiff has submitted additional medical records and asks this court to consider these records in determining whether the matter should be remanded to the Commissioner. The new evidence consists of records and reports from Victor A. Kyaw, M.D. and Mary Jean Ailarey, P.T. In a medical report for the California Department of Health and Human Services, dated June 19, 2007, Dr. Kyaw states plaintiff has been diagnosed with COPD (with an onset date of October 2004), is on oxygen, and is physically incapacitated and does not have the ability to work. (See Request for Remand (Doc. 30) at 6). Plaintiff also submitted an evaluation from her physical therapist who has recommended the use of a power wheelchair. (See id. at 3).

A case may be remanded for the consideration of new evidence if the evidence is material and good cause exists for the absence of the evidence from the prior record. Sanchez v. Sec'y of Health & Human Servs., 812 F.2d 509, 511-12 (9th Cir. 1987). In order for new evidence to be "material," the court must find that, had the Secretary considered this evidence, the decision might have been different. The court need only find a reasonable possibility that the new evidence would have changed the outcome of the case. Booz v. Sec'y of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984).

Defendant objects to this new evidence as a basis for remand because it "is immaterial to the instant case and does not warrant remand." (Defendant's Motion (Doc. 41) at 8). He argues that the records do not cover the period covered by the ALJ's decision and do not support plaintiff's medical problems, but may speak to "alleged new medical problems." (Id.)

The court does not agree with defendant's contentions. The new evidence plaintiff has submitted supports her position that she suffers from severe COPD. Dr. Kyaw's statement indicates plaintiff has been diagnosed with COPD, the medical condition she alleged in her application. In addition, Dr. Kyaw notes that the onset date of her condition was October 2004, the exact time frame that was before the ALJ. The ALJ specifically found a lack of treatment and a lack of medical records contributed to his findings. The new evidence not only supports plaintiff's contention that she suffers from COPD, but it also indicates that plaintiff has some severe limitations from that diagnosis. Given that the new evidence is from plaintiff's treating physician, there is a reasonable possibility that this new evidence may have changed the outcome of the case. Providing there was good cause for the absence of this evidence, plaintiff should have an opportunity to present this new evidence, as her treating physician's opinion, to the Commissioner in support of her application.

"The good cause requirement often is liberally applied, where... there is no indication that a remand for consideration of new evidence will result in prejudice to the Secretary." Burton v. Heckler, 724 F.2d 1415, 1417-18 (9th Cir. 1984) (citing Johnson v. Schweiker, 656 F.2d 424, 425-27 (9th Cir. 1981)). Defendant does not indicate any prejudice will result upon remand for consideration of this evidence. This evidence did not exist at the time of the ALJ's decision. When the evidence did not exist at the time of the ALJ's decision, good cause can be found for plaintiff's failure to introduce it. See id. Accordingly, the undersigned finds a remand for further proceedings is appropriate for plaintiff to be able to produce this new evidence in support of her application.

V. CONCLUSION

For the foregoing reasons, this matter will be remanded under sentence four of 42 U.S.C. § 405(g) for further development of the record and/or further findings addressing the deficiencies noted above.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment is granted;

2. The Commissioner's cross motion for summary judgment is denied;

3. This matter is remanded for further proceedings consistent with this order;

and

4. The Clerk of the Court is directed to enter judgment and close this file.


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