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Gasparyan v. Astrue


January 13, 2009


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge


Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for supplemental security income ("SSI"). He asks the Court to reverse the Agency's decision and award benefits or, in the alternative, to remand the case to the Agency for further proceedings. Because the Agency's decision that Plaintiff was not disabled is supported by substantial evidence, the decision is affirmed.


A. Plaintiff's Personal History and Work History

Plaintiff was born on October 23, 1956, and was 50 years old at the time of the administrative hearing. (Administrative Record ("AR") 321.) He was born in Armenia and completed eight years of school there. (AR 113, 321.) Plaintiff worked as a part-time laborer in Armenia. (AR 113, 331.) In 1989, he emigrated to the United States. (AR 113, 321.) Since then, he has worked as a driver and janitor. (AR 58, 113.) Plaintiff claimed in his benefits application that he has been unable to work since July 5, 2001, because of head and body injuries, depression, anxiety, mental disorder, headache, pain, dizziness, and loss of balance. (AR 57.)

B. Plaintiff's Medical Condition and Treatment

In a June 24, 2005 report, Dr. Wayne Taubenfeld, Plaintiff's former treating psychologist, who met with Plaintiff on 14 occasions between April 2003 and June 2005, indicated that Plaintiff had been diagnosed with post traumatic stress disorder; major depression, recurrent, severe; headaches, severe; anxiety neurosis; nightmares; and panic disorder. (AR 182.) Dr. Taubenfeld indicated that these diagnoses were based on "neuro-psychological testing," mental status examination, background medical records, family testimony, and Plaintiff's "current emotional state." (AR 182.)

Dr. Taubenfeld reported that, in 1988, Plaintiff was buried alive under rubble in an earthquake in Armenia and spent eight days in a coma. (AR 183.) In 1990, Plaintiff dislocated his shoulder and was hospitalized. (AR 183.) In 1992, Plaintiff "sustained severe physical and emotional injury" in an automobile accident. (AR 183.) In part due to these traumas, according to Dr. Taubenfeld, Plaintiff is seriously impaired in intellectual functioning: his cognitive performance is "in the low range of borderline"; his insight, judgment, and concentration are impaired; and he has organic brain damage as reflected in his poor performance on the Bender-Gestalt test. (AR 183.)

Dr. Taubenfeld noted that Plaintiff had been taking "Prosac [sic], Xanax, Maxalt, Buspar, [and] Tylenol extra-strength [with] Codeine" for over four years, without any apparent improvement in his condition. (AR 182, 183.) Dr. Taubenfeld reported that, in fact, "there has been an increase in depression, insomnia, feelings of hopelessness as well as cognitive deterioration which includes loss of memory and concentration." (AR 183.)

On June 24, 2005, Dr. Noubar Janoian, another of Plaintiff's treating physicians, reported that Plaintiff had been treated since July 2001 for, among other complaints, "[d]epressed mood, panic attacks, choking sensation, low energy level, tension, predominance of negative mood, difficulty to concentrate, and nightmares," as well as "[m]oderate memory impairment, decreased ability to concentrate, read, write or watch television." (AR 186, 187.) Dr. Janoian noted that Plaintiff was taking Prozac and Xanax. (AR 188.) Dr. Janoian diagnosed Plaintiff with depression, insomnia, and anxiety/panic disorder. (AR 189.) In Dr. Janoian's view, Plaintiff's "main disability is anxiety, frequent panic attacks, depression, which started as a result of [the] earthquake in 1988." (AR 190.) Dr. Janoian opined that Plaintiff "has lost hope for recovery and feels hopeless and helpless," and found that his prognosis was "guarded to poor." (AR 190, 191.)

Treatment records from between March 31, 2004 and October 16, 2006 furnished by Dr. Janoian show that Plaintiff was seen on various occasions for depression, insomnia, and anxiety, and was prescribed Prozac and Xanax. (AR 205-06, 210-11, 212-13, 220-21, 224-25, 228-29, 235-36, 245-46.) In a chart note dated June 1, 2006, it was noted that Plaintiff was being prescribed Seroquel, Buspar, and Prozac. (AR 264.) The report also noted that Plaintiff was "anxious, fearful, negative for paranoia, depressed mood, irritable, obsessive-compulsive behaviors, denies suicidal thoughts, experiencing sleep disturbance, no picking behavior, has no mood swings, no prior psych. hospitalization." (AR 265.)

On November 30, 2005, clinical psychologist Dr. Rosa Colonna conducted an evaluation of Plaintiff for the state department of social services. (AR 154-59.) Dr. Colonna noted that Plaintiff reported that he suffered from chronic depression and anxiety, that he felt paranoid because people were talking about him and following him, and that his memory was poor. (AR 154.) Plaintiff told her that his problems first began after the 1988 earthquake and got worse after the car accident in 1992. (AR 155.) Although Plaintiff stated that he was receiving outpatient mental health treatment once every two months and taking various medications, including Prozac, he told Dr. Colonna that the treatment was only minimally helpful. (AR 155.) Dr. Colonna noted that Plaintiff stated he drank approximately four shots of alcohol per day and had attended AA meetings in the past. (AR 156.)

Dr. Colonna reported that Plaintiff was "minimally cooperative" and exhibited poor effort in testing. (AR 154, 156.) She reported that his thoughts were organized in a linear fashion and that there was no evident psychomotor slowing. (AR 156.) She assessed his current intellectual functioning as low average and found his memory, attention, and concentration mildly diminished. (AR 156.) She reported that the results of Plaintiff's testing on memory malingering were indicative of poor effort, and that his test results overall "do not appear to be a totally valid estimation of the claimant's ability at this time." (AR 157.) Her diagnosis was: rule out alcohol abuse v. alcohol dependence, dysthymia; personality disorder, dependent traits. She assessed a Global Assessment of Functioning ("GAF") score of 60.

Dr. Colonna concluded that Plaintiff would be able to understand, remember, and carry out "short, simplistic instructions without difficulty," but would have a "mild inability" to understand, remember, and carry out detailed instructions. (AR 158.) She found that Plaintiff would be able to interact appropriately with supervisors, co-workers, and peers, but recommended that he continue to obtain outpatient mental health treatment services owing to his long history of emotional disturbance accompanied by alcohol abuse. (AR 158.)

On May 2, 2006, Plaintiff went to the Los Angeles County Department of Mental Health. There, he filled out an initial contact form in which he stated that he suffered from anxiety, depression, headaches, and paranoid delusions. (AR 277.) Plaintiff reported that he was not a recovering alcoholic and that he was not currently abusing any substances. (AR 277.) Cecilia Garcia, a social worker who met with him, noted on an initial assessment form that Plaintiff had no history of psychiatric hospitalization or suicide attempts, and that he had been attending outpatient therapy with his psychologist, which ended when the therapist moved away. (AR 281, 310.) Ms. Garcia diagnosed major depressive disorder, assigned a GAF of 40, and referred Plaintiff to Dr. Larisa Levin for medical evaluation. (AR 286.)

Plaintiff was thereafter seen by Dr. Levin. On May 22, 2006, she noted that Plaintiff reported a history of being depressed, fearful, and having poor sleep, and was currently on Prozac. (AR 288.) In a medication note dated June 22, 2006, Dr. Levin noted that Plaintiff was paranoid and fearful but denied suicidal ideation, and that he did not experience anhedonia or panic attacks. (AR 290.) On July 27 and September 27, 2006, Dr. Levin noted that Plaintiff should continue on his current prescription medications, which were Prozac, Buspar, and Seroquel. (AR 291, 292.)

On January 10, 2007, after the ALJ issued his decision denying Plaintiff's application, Dr. Levin completed a Mental Impairment Questionnaire provided by Plaintiff's counsel. (AR 315-18.) In it, Dr. Levin diagnosed Plaintiff with major depressive disorder, assigned a GAF of 48, and noted that Plaintiff was continuing to experience disturbing thoughts and feelings, despite his compliance with medication. (AR 315.) In response to a question asking for a description of the clinical findings that "demonstrate the severity of [Plaintiff]'s mental impairment and symptoms," Dr. Levin wrote: "[D]epressed mood, [illegible] isolation, paranoid ideations, [illegible] to concentration, forgetful." (AR 315.) Dr. Levin noted that Plaintiff did not have reduced intellectual functioning, but opined that Plaintiff would have marked restrictions in activities of daily living; marked difficulties in maintaining social functioning; marked deficiencies of concentration, persistence, or pace; and noted that Plaintiff had experienced three episodes of decompensation, each of at least a two-week duration, within a 12-month period. (AR 317.) Dr. Levin opined that Plaintiff's impairments would cause him to be absent from work more than four days per month, that his impairment had lasted or would be expected to last at least twelve months, and that Plaintiff was not a malingerer. (AR 318.)*fn1

C. The Administrative Proceedings

On July 15, 2005, Plaintiff filed an application for SSI benefits that was denied initially and upon reconsideration. (AR 32, 37, 43, 45.) An Administrative Law Judge ("ALJ") then held a hearing on November 2, 2006, at which Plaintiff testified. (AR 319-42.) Plaintiff testified that he could lift only five to seven pounds, walk no more than one or two blocks, and sit no more than two to three hours at a time. (AR 338-39.) Plaintiff testified that he could not sleep more than two to three hours at night without waking up because of fearful thoughts and headaches. (AR 339.) He also testified that at his last job he had to miss three or four days a month because he was not feeling well. (AR 339-40.)

On November 28, 2006, the ALJ issued a written decision, denying Plaintiff's application. (AR 16-23.) Employing the Agency's five-step sequential evaluation process, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. (AR 17.) At step two, he ALJ found that Plaintiff had severe medically determinable impairments consisting of hypertension and osteoarthritis, but that Plaintiff's mental condition of "mild dysthymia" was not severe. (AR 18.) At step three, he concluded that these impairments did not alone or in combination meet or equal a Listed impairment. (AR 18.)

At step four, the ALJ determined, consistent with the opinion of examining internist Dr. Concepcion Enriquez, that Plaintiff possessed the residual functional capacity to lift or carry up to twenty-five pounds frequently and fifty pounds occasionally; and stand or walk for six hours in an eight-hour workday. (AR 21.) The ALJ rejected the opinions of Plaintiff's treating physicians that Plaintiff suffered from a severe mental condition, and discounted Plaintiff's own allegations that he was unable to work, finding that Plaintiff was not fully credible. (AR 19-21.)

Based on the opinion of examining psychologist Dr. Rosa Colonna, who determined that Plaintiff would have no problems performing basic work activities and only mild difficulties carrying out more detailed instructions, the ALJ determined that Plaintiff had "no more than minimal limitations in his ability to perform normal activities of daily living, engage in social functioning, and perform activities requiring concentration, persistence and pace." (AR 19, 21.) The ALJ found, therefore, that there were no non-exertional limitations that would prevent Plaintiff from performing the full range of medium work. (AR 21-22.) After determining that Plaintiff had no past relevant work, the ALJ concluded at step five that Rules 203.25 and 203.18 of the Medical-Vocational Guidelines (the "Grids") directed a finding of "not disabled." (AR 21, 22.)

On April 27, 2007, the Appeals Council denied Plaintiff's request for review of the ALJ's decision. (AR 5.) The Appeals Council considered Plaintiff's arguments and additional evidence that he submitted on appeal, but determined that the evidence did not warrant a different result. (AR 5-6.) Plaintiff then filed the instant Complaint.


Plaintiff argues that the ALJ erred when he: (1) failed to offer cogent and legitimate reasons for rejecting the opinions of treating physicians Dr. Taubenfeld, Dr. Janoian, and Dr. Levin, regarding the severity of his mental disorders; (2) failed to find that Plaintiff's mental impairments were severe at step two of the sequential disability analysis; (3) improperly rejected Plaintiff's subjective complaints of pain and other symptoms; and (4) found that Plaintiff had no non-exertional limitations and, therefore, could perform a full range of medium work. (Joint Stip. at 10-15, 27-30, 35-37, 41-44.)

A. Standard Of Review

"Disability" under the regulations is defined as the inability to perform substantial gainful activity due to any "medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A). The Court may overturn the ALJ's decision that a claimant is not disabled only if the decision is not supported by substantial evidence or if the decision is based on legal error. Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks and citation omitted). It is "more than a mere scintilla but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (quoting Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). This Court must uphold the ALJ's conclusion even if the evidence in the record "is susceptible to more than one rational interpretation." Burch, 400 F.3d at 679.

B. The Agency Properly Rejected the Opinions of Dr. Taubenfeld, Dr. Janoian, and Dr. Levin Regarding the Severity of Plaintiff's Mental Impairments

In his first claim of error, Plaintiff argues that the ALJ erred when he rejected the opinions of his treating doctors, Dr. Taubenfeld, Dr. Janoian, and Dr. Levin, and relied, instead, on the opinion of examining psychologist Dr. Colonna. (Joint Stip. at 10-15.) For the following reasons, the Court concludes that Plaintiff's claim does not warrant reversal or remand.

"By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians." Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). Nevertheless, where the treating physician's opinion is contradicted by another physician, the ALJ may reject the treating physician's opinion for specific and legitimate reasons, supported by substantial evidence in the record. Id. As explained below, the Court finds that the ALJ provided specific and legitimate reasons supported by substantial evidence in the record for rejecting the treating physicians' opinions.

As an initial matter, Plaintiff argues that Dr. Colonna's report "is not contradictory evidence of impairment" and, therefore, "the medical evidence is uncontradicted in proving Plaintiff's mental disability." (Joint Stip. at 13.) The record, however, contradicts this argument. As set forth above, Dr. Taubenfeld diagnosed Plaintiff with post traumatic stress disorder, major depression, recurrent depressive episodes without psychotic features, anxiety neurosis, and panic disorder. (AR 182.) Dr. Taubenfeld also opined that Plaintiff was severely impaired in intellectual functioning, suffered from organic brain damage and psychomotor slowing, and there was no likelihood of his condition improving. (AR 183, 184.) Dr. Janoian diagnosed Plaintiff with depression and anxiety/panic disorder, concluding that Plaintiff would be prevented from leading a normal life and that his prognosis was guarded to poor. (AR 189, 191.) Dr. Levin diagnosed Plaintiff with major depressive disorder and found that Plaintiff would be markedly restricted in activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace. (AR 315, 317.)

By contrast, Dr. Colonna specifically found that there was no evidence of psychomotor slowing and that Plaintiff's attention and concentration were only "mildly diminished." (AR 156.) Dr. Colonna diagnosed dysthymia, rather than major depression, in addition to possible alcohol abuse or dependence, and did not diagnose any form of anxiety disorder. (AR 158.) In addition, Dr. Colonna opined that Plaintiff would be able to understand, remember, and carry out simple instructions; make simple work-related decisions without special supervision; and interact appropriately with others. (AR 158.) Thus, Dr. Colonna's opinion contradicted Drs. Taubenfeld, Janoian, and Levin's opinions and the ALJ was tasked with determining which opinion to accept and which to reject.*fn2

The ALJ accepted Dr. Colonna's opinion over Dr. Taubenfeld's because he found:

[T]here are no treating records, progress notes or objective findings to support [Dr. Taubenfeld's] diagnoses or even to establish a treating relationship. Dr. Taubenfeld has merely given a generalized summary of neuropsychological testing allegedly administered to [Plaintiff]. The undersigned finds that this report is not entitled to the weight accorded a treating source as there is no longitudinal evidence of mental health care. (AR 19.)

This was a legitimate reason for rejecting Dr. Taubenfeld's opinion and it was supported by substantial evidence. Although Dr. Taubenfeld claimed to have seen Plaintiff on 14 occasions over two years, his opinion was conveyed in a three-page letter, addressed "to whom it may concern," which was not accompanied by any progress notes or treatment records. Nor did it provide details of the "neuro-psychological testing" or "mental status exam" that Dr. Taubenfeld claimed to be relying on, other than a cursory mention of WMS-R results and of Plaintiff's "poor performance on the Bender-Gestalt test." (AR 182, 183.) Absent any objective support for his opinion, the ALJ was not required to accept it. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.").

Similarly, the ALJ properly rejected Dr. Janoian's opinion regarding the severity of Plaintiff's mental impairments in favor of Dr. Colonna's. The ALJ noted that Dr. Janoian's records were "indicative merely of general health maintenance and do not support the poor prognosis and severe symptoms, diagnoses, and restrictions he has implied." (AR 20.) The ALJ found that Dr. Janoian had "indicated a variety of vague and unsupported diagnoses (many of which are merely generalized descriptions of symptoms rather than actual medical diagnoses)," and that his progress notes were "all on pre-printed forms and indicate very cursory examinations with a brief recitation of [Plaintiff]'s alleged symptoms and diagnoses, with few (if any) significant objective findings." (AR 18.) The ALJ also noted that Plaintiff's admitted history of alcohol abuse, which Dr. Colonna referenced in her diagnosis, was "notably absent from Dr. Janoian's report."*fn3 (AR 19.) Finally, the ALJ noted that Dr. Janoian did not provide a residual functional capacity assessment, but merely stated that Plaintiff's prognosis was "poor." (AR 19.)

The record supports the ALJ's findings regarding Dr. Janoian. Like Dr. Taubenfeld's, Dr. Janoian's records contain few, if any, objective or clinical findings but, instead, consist of Plaintiff's complaints regarding his depression and anxiety, and details of his prescription medications. (AR 220, 228, 258, 260.) The ALJ was, therefore, entitled to disregard Dr. Janoian's ultimate conclusion of disability. Thomas, 278 F.3d at 957. The ALJ's finding regarding Dr. Janoian's failure to address Plaintiff's past alcohol use is also supported by the record. (AR 148, 156, 158, 186-91.) Moreover, the ALJ correctly observed that Dr. Janoian's opinion was conclusory because, among other things, it failed to provide a residual functional capacity determination. (See AR 186-91.) This, too, was a legitimate reason for rejecting it. Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995) (affirming ALJ's rejection of treating physician's opinion that claimant was disabled where opinion was unsubstantiated by medical documentation and did not include specific assessment of functional capacity).

Plaintiff argues that the ALJ erred in rejecting Dr. Levin's report on the ground that she only saw Plaintiff once. (Joint Stip. at 12.) As Plaintiff points out, the record establishes that Dr. Levin saw Plaintiff at least four times before the administrative hearing on November 2, 2006. (AR 287, 290, 291, 292.) Moreover, even if Dr. Levin had seen Plaintiff on only one occasion, that fact could only be used to discount Dr. Levin's opinion, not to disregard it entirely. See Benton v. Barnhart, 331 F.3d 1030, 1035-39 (9th Cir. 2003) (declining to hold that doctor who may have seen patient only once did not have "treating physician" status). He contends that this is especially so in view of the ALJ's reliance on Dr. Colonna, who only examined Plaintiff once. Though the Court agrees with Plaintiff that the ALJ erred when he found that Plaintiff had only seen Dr. Levin once, any error was harmless because the Appeals Council did review Dr. Levin's submissions and correctly ruled that her work did not alter the ALJ's ultimately finding that Plaintiff was not disabled. (AR 6.) In reviewing the Agency's decision, this Court must look not only at the ALJ's decision, but also at the Appeals Council's decision. See Ramirez v. Shalala, 8 F.3d 1449, 1452-53 (9th Cir. 1993) (noting that both ALJ's decision and Appeals Council's decision that considered additional material were subject to review on appeal). Looking at both decisions, the Court concludes that the Agency correctly concluded that, even with Dr. Levin's submission, Plaintiff had not established disability.

Plaintiff complains that the ALJ's findings were inconsistent with Dr. Levin's subsequent report, prepared after the ALJ denied Plaintiff's disability claim. (Joint Stip. at 12, 15.) There, Dr. Levin reported, among other things, that Plaintiff had a GAF of 48 and was not a malingerer. But, again, the Appeals Council considered and properly rejected Dr. Levin's opinion, finding it was not supported by her treatment notes, which showed "no symptoms other than chronic depression, made no mention of problems concentrating or socializing, and reported few findings regarding the mental status examinations she conducted." (AR 6.) Additionally, the Appeals Council found that Dr. Levin provided no information to support her findings regarding Plaintiff's memory, inability to concentrate, mood/affect, and response to medication. (AR 6.) The Appeals Council also noted that Dr. Levin did not identify the episodes of decompensation she referred to in her final report and found that the limitations she assessed were not consistent with Plaintiff's reported daily activities. (AR 6.)

In sum, the Court finds that the Agency properly set out "a detailed and thorough summary of the facts and conflicting clinical evidence, stat[ed] [its] interpretation thereof, and ma[de] findings . . . explain[ing] why [its interpretations], rather than the doctors', are correct." Orn, 495 F.3d at 632; see also Batson v. Comm'r, Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming ALJ's rejection of treating physicians opinions based on "subjective complaints without objective evidence," which were conclusory and lacked supporting medical findings.) For these reasons, Plaintiff's claim that the Agency erred in relying on the examining doctor's opinion instead of the treating doctors' opinions is rejected.

C. The ALJ Did Not Err in Determining at Step Two that Plaintiff's Mental Impairments Were not Severe, and, Even if He Did Err, Any Error Was Harmless

In his second claim of error, Plaintiff argues that the ALJ erred in determining at step two that Plaintiff's mental impairments were "non-severe" and, more generally, in concluding that the impairments were not disabling. (Joint Stip. at 27-30.) Plaintiff contends that even Dr. Colonna's report established that Plaintiff suffers from moderate mental impairments that would impair his ability to perform work activities. (Joint Stip. at 28.) For the following reasons, the Court disagrees.

At step two, the ALJ is tasked with identifying a claimant's "severe" impairments. An impairment is severe if it has more than a minimal effect on an individual's ability to do basic work activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. § 416.921(a). The governing regulations define "basic work activities" as "the abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 416.921(b). Such abilities include "[u]nderstanding, carrying out, and remembering simple instructions; [u]se of judgment; [r]esponding appropriately to supervision, co-workers and usual work situations; and [d]ealing with changes in a routine work setting." 20 C.F.R. § 416.921(b)(3)-(6). The step-two inquiry is intended to be a "de minimis screening device." Smolen, 80 F.3d at 1290.

Under Social Security Ruling ("SSR") 85-28: The severity requirement cannot be satisfied when medical evidence shows that the person has the ability to perform basic work activities, as required in most jobs. . . . A determination that an impairment(s) is not severe requires a careful evaluation of the medical findings which describe the impairment(s) and an informed judgment about its (their) limiting effects on the individual's physical and mental ability(ies) to perform basic work activities[.]

In addition, an ALJ "must consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity" at step two. Smolen, 80 F.3d at 1290.

Here, the ALJ carefully evaluated the medical evidence and determined, relying primarily on Dr. Colonna's findings, that the evidence established that Plaintiff's mental impairment was only a slight abnormality which had no more than a minimal effect on his ability to do basic work activities. As discussed above, the ALJ's rejection of the treating physicians' diagnoses of Plaintiff's mental impairment was legitimate and supported by substantial evidence in the record. Thus, the ALJ was entitled to rely on Dr. Colonna's assessment, in which she found that Plaintiff would be able to "understand, remember, and carry out short, simplistic instructions [and] . . . make simplistic work-related decisions without special supervision[,]" and that Plaintiff "is generally socially appropriate . . . and presents with the ability to interact appropriately with supervisors, co-workers, and peers." (AR 158.) For these reasons, the Court finds that the ALJ's step-two determination is supported by substantial evidence in the record.

Even assuming, arguendo, that the ALJ erred at step two in finding that Plaintiff's mental impairment was not severe, any error was harmless. Had he found at step two that Plaintiff's mental impairment was severe, the record supports his ultimate conclusion that Plaintiff could perform work existing in the economy despite any mental impairment. See Stout, 454 F.3d at 1055 (defining harmless error as error that was "irrelevant to the ALJ's ultimate disability conclusion.")

At step five of the analysis, the burden of proof shifts to the Agency to demonstrate that there are a significant number of jobs in the economy that an individual with the claimant's residual functional capacity and experience can perform. Osenbrock v. Apfel, 240 F.3d 1157, 1162-63 (9th Cir. 2001). This burden may be met either by the use of vocational expert testimony or, as here, by reference to the Grids. Osenbrock, 240 F.3d at 1162. In this case, the ALJ correctly determined that the Grids (Rules 203.25 and 203.18) directed a finding of not disabled. (AR 22.) Thus, even if the ALJ had deemed Plaintiff's mental impairment to be severe at step two, he still would have concluded at step five, based on Dr. Colonna's opinion, that Plaintiff could perform basic work activities, and, therefore, Plaintiff's mental impairment did not constitute a significant non-exertional limitation that precluded application of the Grids. See Hoopai v. Astrue, 499 F.3d 1071, 1076 (9th Cir. 2007) (holding that "a step-two determination that a non-exertional impairment is severe does not require that the ALJ seek the assistance of a vocational expert at step five.") Therefore, any error that the ALJ may have committed at step two did not affect the ultimate conclusion that Plaintiff was not disabled. Thus, this claim does not warrant reversal or remand.

D. The ALJ's Credibility Analysis Was Sufficiently Specific and Supported by Substantial Evidence

In his third claim of error, Plaintiff contends that the ALJ's finding that Plaintiff was not credible was erroneous and not based on substantial evidence. (Joint Stip. at 35-37.) For the following reasons, the Court disagrees.

An ALJ must undertake a two-step analysis when considering a claimant's subjective symptom testimony. Smolen, 80 F.3d at 1281. First, he must determine whether the claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce the symptoms alleged. Id. at 1281-82. Second, he must determine the claimant's credibility as to the severity of the symptoms. Id. at 1282. If the claimant produces objective medical evidence of an impairment, shows that the impairment could be expected to produce the symptoms alleged, and there is no evidence of malingering, the ALJ can only reject the claimant's testimony concerning the severity of the symptoms by citing specific, clear, and convincing reasons for doing so. Id. at 1283-84.

In evaluating Plaintiff's credibility, the ALJ was free to consider many factors, including "ordinary techniques of credibility evaluation,. . . unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment, . . . and the claimant's daily activities." Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quoting Smolen, 80 F.3d at 1284). As long as the ALJ's credibility finding is supported by substantial evidence in the record, the Court may not engage in second-guessing. Id.

The ALJ determined at step two that Plaintiff suffered from hypertension and osteoarthritis. (AR 22.) At the administrative hearing, Plaintiff testified that he could not walk for a long time because of dizziness and pain. (AR 327.) He also testified that he could not lift more than seven pounds, walk further than one block, or sit for longer than two hours. (AR 338-39.)

The ALJ found that Plaintiff's testimony was not credible for a number of reasons. First, the ALJ noted that the medical evidence, including Dr. Janoian's report and notes, did not support Plaintiff's complaints of "almost total body pain and weakness . . . ." (AR 20.) Second, the ALJ found that Plaintiff's "deliberately poor performance on the consultative psychological study (found to be consistent with malingering) severely damage[d] his overall credibility." (AR 20-21.) Third, the ALJ noted that Plaintiff had never received any "formal ongoing mental health care subsequent to the May 2006 evaluation at a county health facility." (AR 21.) Fourth, the ALJ found that Dr. Taubenfeld's assertion that he treated Plaintiff between 2003 and 2005 to be entirely unsupported. (AR 21.) Fifth, the ALJ noted that Plaintiff had failed to establish any condition that would limit him to the extent alleged in his daily activities.*fn4 (AR 21.)

As discussed above, the ALJ was mistaken in finding that Plaintiff had not received further mental health care after May 2006. Other than that error in his justification for rejecting Plaintiff's credibility, the rest of his reasons are specific, clear, and convincing and are supported by substantial evidence. For that reason, his credibility finding is affirmed.

First and foremost, the ALJ properly relied upon Dr. Colonna's finding that Plaintiff was malingering. Dr. Colonna found that Plaintiff was "somewhat apathetic toward psychometric testing" and that his effort was poor. (AR 156.) She reported that Plaintiff's results on the test of memory malingering were lower than the "minimal cut-off score for just guessing" and that the results did not appear to be a valid estimation of his ability. (AR 157.) The ALJ was entitled to infer from Dr. Colonna's findings that Plaintiff was malingering. See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) (noting that "the ALJ is entitled to draw inferences logically flowing from the evidence.") Moreover, Plaintiff's poor effort during the testing was itself a specific, clear, and convincing reason for discounting his credibility. See Thomas, 278 F.3d at 959 ("[The claimant]'s efforts to impede accurate testing of her limitations supports the ALJ's determinations as to her lack of credibility.")

The remaining reasons given by the ALJ to discount Plaintiff's credibility concern the lack of objective medical evidence in the record to support his subjective claims. The record does not contain any indication that Plaintiff was ever referred for surgery or specialized treatment for his physical pain; rather, the treatment records reveal that Plaintiff's condition was stabilized with pain medication. (AR 226-27, 230-31, 236-37.) The ALJ could properly use the evidence of conservative treatment and the lack of objective medical evidence to support the extent of Plaintiff's alleged symptoms as an additional reason to disregard his testimony. See Osenbrock, 240 F.3d at 1165-66 (upholding ALJ's credibility determination in part because evaluations revealed little evidence of disabling abnormality of the claimant's spine); Johnson, 60 F.3d at 1434 (affirming ALJ's credibility determination where conservative treatment suggested lower level of pain and functional limitation).

In light of these specific, clear, and convincing reasons for discounting Plaintiff's credibility, the ALJ's error regarding Plaintiff's failure to receive mental health treatment after May 2006 was harmless. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 2008) (holding error harmless where ALJ's error as to two proffered reasons for discounting credibility did not negate validity of the ultimate adverse credibility finding). Thus, this claim does not warrant reversal or remand.

E. The ALJ Was Entitled to Rely On the Grids In Finding That Plaintiff Was Not Disabled

In his fourth claim of error, Plaintiff contends that the ALJ erred in determining at step four that Plaintiff could perform the full range of medium work and in relying on the Grids to find that Plaintiff was not disabled. (Joint Stip. at 41-44.) Plaintiff argues that the ALJ did not base his residual functional capacity determination on all of the relevant evidence and erred in applying the Grids because Plaintiff was "limited by significant non-exertional limitations such as depression, anxiety or pain." (Joint Stip. at 42, 43.) This argument is without merit.

As detailed above, the ALJ considered all of the relevant record evidence. Furthermore, although Plaintiff argues that the ALJ was not entitled to rely on the reports of examining physicians Enriquez and Colonna because their reports did "not contradict the findings of Plaintiff's treating doctors," (Joint Stip. at 42), Plaintiff fails to specify what evidence the ALJ did not consider or to explain how Dr. Enriquez' finding that Plaintiff could perform a full range of medium work, (AR 152), was consistent with Dr. Janoian's conclusion that Plaintiff had difficulty sitting, standing, or walking.*fn5 (AR 190.) Moreover, Plaintiff has not demonstrated why the ALJ could not rely on Dr. Enriquez' opinion, which was based on his independent clinical examination and test results, (AR 148-52), in making the residual functional capacity determination. See Tonapetyan, 242 F.3d at 1149 (holding that examining physician's opinion constituted substantial evidence to support the ALJ's decision because it rested on "his own independent examination" of the claimant).

As for Plaintiff's contention that the ALJ erred in applying the Grids, the Court notes that the ALJ implicitly found in his adverse credibility determination and in his reliance on the opinions of Drs. Enriquez and Colonna that Plaintiff's non-exertional limitations were not significant. That finding is supported by substantial evidence in the record. Where, as here, there are no non-exertional limitations, the ALJ is free to use the Grids. Osenbrock, 240 F.3d at 1162. Further, even if the ALJ had concluded at step two that Plaintiff's mental impairment was severe, he still would have found at step five that Plaintiff's non-exertional limitations were not significant and would have applied the Grids to find that Plaintiff was not disabled. See Hoopai, 499 F.3d at 1076. Thus, this claim does not warrant reversal or remand.


For the foregoing reasons, the Agency's decision is affirmed and the case is dismissed with prejudice.


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