Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court will deny plaintiff's motion for summary judgment or remand and grant the Commissioner's cross-motion for summary judgment.
I. Factual and Procedural Background
In a decision dated June 7, 2007, the ALJ determined plaintiff was not disabled.*fn1
The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. The ALJ found plaintiff has a severe impairment of chronic low back painbut this impairment does not meet or medically equal a listed impairment; plaintiff's complaints regarding low back pain are slightly credible and his other complaints very slightly credible; plaintiff can perform medium work, with walking/standing of six hours and sitting for six hours; plaintiff can perform his past relevant work as an appliance line assembler; and plaintiff is not disabled. Administrative Transcript ("AT") 14-19. Plaintiff contends the ALJ improperly assessed the severity of his impairments, improperly discredited his testimony, improperly assessed his residual functional capacity, and incorrectly found he could perform his past relevant work.
The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also 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 finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), 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).
A. Severity of Mental Impairment
Plaintiff challenges the finding of the ALJ at step two that plaintiff does not have a severe mental impairment. See Pl.'s Mem. P. & A. at 16:12-16. An impairment is not severe only if it "would have no more than a minimal effect on an individual's ability to work, even if the individual's age, education, or work experience were specifically considered." SSR 85-28. The purpose of step two is to identify claimants whose medical impairment is so slight that it is unlikely they would be disabled even if age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S. 137 (1987). "The step-two inquiry is a de minimis screening device to dispose of groundless claims." Smolen v. Chater 80 F.3d 1273, 1290 (9th Cir. 1996).
Plaintiff contends the ALJ should have found at step two that he has a severe mental impairment because he was diagnosed with depression and post traumatic stress disorder. A diagnosis does not a "severe" impairment make within the meaning of the regulations. The ALJ concluded plaintiff's mental impairment was not severe based on the conclusions of the psychiatric consultative evaluation performed by Dr. Behniwal, who concluded plaintiff was capable of performing simple and repetitive tasks as well as detailed and complex tasks, with only mild difficulties associated with accepting instructions from supervisors, performing work on a consistent basis and in maintaining regular attendance. AT 14-15, 169. The ALJ also relied on the assessment of the state agency physician, that plaintiff does not have a severe mental impairment. AT 14, 183, 200. The ALJ also considered the entirety of the medical record, which indicated no treatment by mental health professionals and plaintiff's diagnosed depression and PTSD treatment only with medication. AT 15, 149-165, 201-205. This evidence constitutes substantial evidence supporting the finding of a non-severe mental impairment. See 20 C.F.R. §§404.1521, 416.921 (impairment not severe if it does not significantly limit ability to engage in work activities).
Plaintiff also contends the ALJ improperly discredited plaintiff's testimony that he was unable to perform work due to pain, depression, dizziness and numbness. See AT 231, 237-241. The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ's discretion if the ALJ used the proper process and provided proper reasons. See, e.g., Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief").
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ then may consider the nature of the symptoms alleged, including aggravating factors, medication, treatment and functional restrictions. See id. at 345-47. The ALJ also may consider:
(1) the applicant'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, and (3) the applicant's daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity and effect of symptoms, and inconsistencies between testimony and conduct also may be relevant. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ in determining whether the alleged associated pain is not a significant non-exertional impairment. See Flatten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 ...