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Stalling v. Astrue


July 22, 2009


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Donna Stalling filed a complaint on January 4, 2008, seeking review of the decision denying her application for disability benefits. On June 2, 2008, the Commissioner answered the complaint, and the parties filed a joint stipulation on August 13, 2008.



On March 8, 2002, plaintiff applied for disability benefits under the Supplemental Security Income program of Title XVI of the Social Security Act ("the Act"), 42 U.S.C. § 1382(a), claiming an inability to work since February 1, 1999, due to depression and diabetes. Certified Administrative Record ("A.R.") 13, 52-54, 63. The plaintiff's application was initially denied on May 10, 2002, and was denied again on December 31, 2003, following reconsideration. A.R. 24-27, 30-35. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Joseph Schloss ("the ALJ") on December 16, 2004. A.R. 36, 394-419. On April 7, 2005, the ALJ issued a decision finding plaintiff is not disabled. A.R. 9-21. The plaintiff appealed this decision to the Appeals Council, which denied review on May 18, 2005. A.R. 5-8.

On July 15, 2005, plaintiff filed her first complaint seeking review of the Commissioner's decision denying her application for disability benefits, Stalling v. Astrue, EDCV 05-0610-RC ("Stalling I"),*fn1 and on March 7, 2007, this Court granted plaintiff's request for relief and remanded the matter to the Social Security Administration under 42 U.S.C. § 405(g), sentence four. A.R. 451-67. The Appeals Council, in turn, remanded the matter for further administrative proceedings, A.R. 468-70, and on September 19, 2007, the ALJ held a new administrative hearing. A.R. 501-26. On October 22, 2007, the ALJ again issued a decision finding plaintiff is not disabled, A.R. 420-35, and this decision is before the Court for review.


The plaintiff, who was born on March 10, 1965, is currently 44 years old. A.R. 52, 397. She has an eleventh-grade education and has never worked. A.R. 64, 69, 397-98, 400.

This Court, in its Stalling I decision, summarized plaintiff's relevant medical evidence,*fn2 as follows:

Between January 10, 2000, and October 9, 2003, plaintiff received mental health treatment at the San Bernardino County Department of Behavioral Health ("SBC Dept."), where she was prescribed various medications and group therapy.

On September 30, 2000, plaintiff was diagnosed with severe recurrent major depressive disorder and her Global Assessment of Functioning ("GAF") was determined to be 45.*fn3

On February 7, 2001, Michael Oliver, a licensed clinical social worker, diagnosed plaintiff with recurrent moderate major depression, determined her GAF to be 50, and opined plaintiff had a "moderate" dysfunction rating due to depression, a history of drug use, and because she "can't work" and her children were taken away from her. Also on February 7, 2001, Jesse Devera, M.D., diagnosed plaintiff with recurrent moderate major depression and prescribed medication to her. [¶] On May 9, 2002, Kenneth D. Michael, M.D., a nonexamining psychiatrist, diagnosed plaintiff as having major depression, with no psychosis, and opined plaintiff has "mild" restriction in her activities of daily living, "mild-to-moderate" difficulties maintaining social functioning, "moderate" difficulties maintaining concentration, persistence or pace, and there was "insufficient evidence" to ascertain whether plaintiff experienced any episodes of decompensation. Dr. Michael further opined plaintiff is "moderately" limited in her ability to understand, remember, and carry out detailed instructions and to interact appropriately with the general public, but is otherwise not significantly limited. Between May 21 and May 30, 2003, plaintiff was involuntarily hospitalized at Community Hospital of San Bernardino ("SB Hospital"), based on her suicidal ideations. She was diagnosed with a schizoaffective disorder, depression, and a past history of polychemical dependency, and she was determined to have a GAF of 25*fn4 upon admission and a GAF of 60 upon discharge.*fn5 [¶] On January 26, 2004, plaintiff was initially examined at the Riverside County Department of Mental Health ("RCDMH"), where she was diagnosed with a schizoaffective disorder, bipolar type, and began treatment. On March 16, 2004, plaintiff was involuntarily hospitalized at San Gorgino Memorial Hospital with suicidal ideations, after holding a knife to her throat. She was transferred to Riverside County Regional Medical Center ("Medical Center"), where she remained involuntarily confined until March 22, 2004. Upon admission to the Medical Center, plaintiff was diagnosed with a schizoaffective disorder and her GAF was determined to be 40.*fn6 Plaintiff was treated with medication, and when she was discharged, her GAF was determined to be 65.*fn7 On March 23, 2004, plaintiff was again examined at RCDMH, where she was diagnosed with recurrent moderate major depression and an unspecified psychotic disorder, and her GAF was determined to be 50. [¶] On January 13, 2005, Robin Rhodes-Campbell, Ph.D., a licensed clinical psychologist, examined plaintiff and conducted psychological testing on her. Dr. Rhodes-Campbell diagnosed plaintiff with a schizoaffective disorder, by history, determined her GAF to be 65, and concluded plaintiff was malingering. Specifically, Dr. Rhodes-Campbell found plaintiff gave a poor effort on testing, the Minnesota Multiphasic Personality Inventory was invalid, showing a "strong possibility" plaintiff was exaggerating or feigning psychological symptoms, the test of memory malingering showed plaintiff is likely malingering memory deficits, and the Miller Forensic Assessment of Symptoms Test indicated plaintiff was malingering psychiatric symptoms. Dr. Rhodes-Campbell concluded plaintiff should have no impairment in understanding, remembering, and carrying out short and simple or detailed instructions, making judgments on simple work-related decisions, or relating appropriately to the public, supervisors and co-workers, but her ability to withstand the stress and changes associated with an 8-hour workday and day-to-day work activities is moderately impaired.

Stalling I at 2:22-6:9 (footnotes renumbered; citations omitted).

Following remand, plaintiff submitted additional medical evidence, which shows that on April 2, 2007, Nellie Anosa, M.D., a psychiatrist at RCDMH, examined plaintiff and diagnosed her with a non-psychotic recurrent major depressive episode and amphetamine dependence, and determined plaintiff's GAF was 55. A.R. 495-96. Dr. Anosa observed that plaintiff was alert, coherent and oriented (x3) with a neutral mood, average intelligence, and unimpaired judgment and insight. A.R. 495. There was no evidence of auditory hallucinations and no delusions or suicidal or homicidal ideations were noted. Id.

Medical expert David M. Glassmire, Ph.D., a psychologist, testified at the 2007 administrative hearing that plaintiff has a schizoaffective disorder and methamphetamine abuse, in remission, and her condition does not meet or equal a listed impairment. A.R. 504-12. Dr. Glassmire opined plaintiff has a "mild" impairment in her activities of daily living, "moderate" difficulties maintaining social functioning and concentration, persistence or pace, and has had one or two episodes of decompensation. A.R. 507-08. Dr. Glassmire also opined plaintiff should be limited to simple repetitive tasks of two or three steps and only occasional, non-intense contact with the public, co-workers and supervisors, no hypervigilance and no responsibility for the safety of other employees. A.R. 508-09.



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. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); Bray v. Astrue, 554 F.3d 1219, 1222 (9th Cir. 2009).

"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); Bray, 554 F.3d at 1222.

The claimant is "disabled" for the purpose of receiving benefits under the Act if she 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. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(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).

Applying the five-step sequential evaluation process set forth in the Stalling I decision, the ALJ found plaintiff has not engaged in substantial gainful activity since her application date of March 8, 2002. (Step One). The ALJ then found plaintiff has the severe impairments of: a schizoaffective disorder, a depressive disorder and a hearing disorder (Step Two);*fn8 however, she does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff has no past relevant work. (Step Four). Finally, the ALJ determined plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five). See A.R. 423-35.


A claimant's residual functional capacity ("RFC") is what she can still do despite her physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). Here, the ALJ found plaintiff has the RFC to perform medium work,*fn9 with the following non-exertional limitations:

The [plaintiff] can do simple repetitive tasks that are two to three steps; she can have occasional contact with the public, co-workers, and supervisors; she is precluded from intense contact; she is precluded from tasks that require hypervigilance or the safety of others; she should have no jobs requiring quotas; and she should not be exposed on a repetitive basis to loud noise or any tasks that require fine hearing.

A.R. 427. However, plaintiff contends the ALJ's decision is not supported by substantial evidence because the ALJ did not properly consider her testimony, lay witness evidence, and the 2001 opinion of licensed clinical social worker Michael Oliver.

A. Credibility

The plaintiff testified at the 2004 administrative hearing that she cannot work due to "depression, panic attacks, and stuff like that." A.R. 400, 404. She stated she often hears voices telling her to hurt herself, and she gets a bad panic attack every couple of months. A.R. 408-11. The plaintiff also explained at both administrative hearings that she is isolated and does not associate with anybody, but just watches television or sleeps, A.R. 408, 412-13, 516-17, but she does not like to be by herself because she gets "real shaky and stuff[,]" is often emotional and sometimes feels as though other people are out to harm her. A.R. 408-09, 412, 516. Plaintiff also testified she has diabetes, back pain, arthritis in her left knee, and she is completely deaf in her left ear. A.R. 404-07, 515. The plaintiff testified in 2004 that when it gets cold, she cannot move her left knee, and if she walks to the corner store, her knee hurts, and she has to stop and rest before she gets there. A.R. 405, 414. Finally, plaintiff stated at both hearings that she has difficulty sleeping, takes sleeping pills, and is always tired. A.R. 412, 516.

Once a claimant has presented objective evidence she suffers from an impairment that could cause pain or other non-exertional limitations,*fn10 the ALJ may not discredit the claimant's testimony "solely because the degree of pain alleged by the claimant is not supported by objective medical evidence." Bunnell v. Sullivan, 947 F.2d 341, 347 (9th Cir. 1991) (en banc); Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004). Thus, if the ALJ finds the claimant's subjective complaints are not credible, he "'must provide specific, cogent reasons for the disbelief.'" Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006) (citations omitted); Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007). "Factors that an ALJ may consider in weighing a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and 'unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment.'" Orn, 495 F.3d at 636 (citations omitted); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Furthermore, if there is medical evidence establishing an objective basis for some degree of pain and related symptoms, and no evidence affirmatively suggesting the claimant is malingering, the ALJ's reasons for rejecting the claimant's testimony must be "clear and convincing." Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1160 (9th Cir. 2008).

Here, the ALJ found plaintiff's "statements concerning the intensity, persistence, and limiting effects of [her] symptoms are not entirely credible" for several reasons, including that the information plaintiff provided in a daily activities questionnaire is inconsistent with what she told Dr. Rhodes-Campbell. A.R. 428. This finding is supported by substantial evidence in the record. A.R. 78-83, 387. For instance, although plaintiff stated in her questionnaire that she just lies on the couch and watches television, A.R. 78, Dr. Rhodes-Campbell reported plaintiff "state[d] that she is able to do household chores, run errands, shop, drive, cook, and dress and bathe herself." A.R. 387. An ALJ may properly rely on inconsistencies in a claimant's statements to determine she is not a credible witness. See, e.g., Bray, 554 F.3d at 1227 (ALJ properly found claimant not credible in part when her testimony at administrative hearing contradicted her statements to evaluating physician); Batson v. Comm'r of the Soc. Sec. Admin., 359 F.3d 1190, 1196 (9th Cir. 2004) (ALJ properly rejected claimant's testimony based, in part, on contradictory statements regarding his daily activities).

The ALJ also found plaintiff not to be credible because "[t]here is evidence of malingering and that the [plaintiff] exaggerates."

A.R. 433. This finding also is supported by substantial evidence in the record, particularly Dr. Rhodes-Campbell's conclusion that plaintiff was malingering. A.R. 388-89. An ALJ may properly consider the claimant's tendency to exaggerate in rejecting her excess pain testimony. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (per curiam). Similarly, the ALJ properly cited plaintiff's "very poor work history," which stretched back over 15 years, A.R. 433, as a reason supporting his adverse credibility determination. See, e.g., Thomas, 278 F.3d at 959 (ALJ's finding that claimant had an "extremely poor work history" and showed "little propensity to work in her lifetime" supports adverse credibility determination); 20 C.F.R. § 416.929(c)(3) (in assessing symptoms such as pain, fact-finder "will consider all of the evidence presented, including information about [the claimant's] prior work record. . . .").

Further, the ALJ found plaintiff was not a credible witness because she "has received conservative treatment for all of her physical complaints[,] consisting [solely] of medications." A.R. 432-33. Since plaintiff has not identified any evidence in the record contradicting this finding, it also supports the ALJ's adverse credibility determination. Parra, 481 F.3d at 751; Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995). Thus, "[t]he ALJ's reasons for his credibility determination were clear and convincing, sufficiently specific, and supported by substantial evidence." Celaya v. Halter, 332 F.3d 1177, 1181 (9th Cir. 2003); Thomas, 278 F.3d at 959.

B. Lay Witness Testimony

"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Bruce, 557 F.3d at 1115. Third party function reports are such competent lay evidence, and are "an important source of information about a claimant's impairments." Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1297 (9th Cir. 1999); Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000).

Plaintiff's daughter, Kimberly Orozco ("Kimberly"), testified at the 2007 administrative hearing that plaintiff is always lying down and sleeping. A.R. 517-21. Kimberly also testified plaintiff avoids people, has no friends, and sometimes cries for no reason. A.R. 521-22. Additionally, Kimberly stated plaintiff also has some memory difficulties, such as misplacing pill bottles or the remote control. A.R. 522-23. Another daughter, Victoria Orozco ("Victoria"), completed a daily activity questionnaire in which she indicated plaintiff typically spends her time lying on the couch and watching television. A.R. 72-77. Victoria also indicated plaintiff is not sociable and does not leave the house unless she has an appointment, and she is forgetful and has problems concentrating. A.R. 72-73, 76. Finally, Victoria indicated plaintiff often talks to herself, makes weird noises with her mouth, and paces for no reason. A.R. 77.

Here, the ALJ considered the evidence presented by plaintiff's daughters, but rejected Kimberly's testimony for the same reasons he rejected plaintiff's testimony and rejected Victoria's questionnarie because it was inconsistent with plaintiff's responses to Dr. Rhodes-Campbell. A.R. 428. Thus, the ALJ provided germane reasons for rejecting the third-party opinions. Carmickle, 533 F.3d at 1164; Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998).

C. Social Worker's Opinion

Finally, plaintiff contends the ALJ's decision is not supported by substantial evidence because the ALJ failed to properly consider the opinion of Michael Oliver, a licensed clinical social worker, who completed an assessment of plaintiff on February 7, 2001, diagnosed plaintiff as having recurrent moderate major depression, determined plaintiff's GAF was 50, and opined plaintiff has a "moderate" dysfunction rating due to depression and a history of drug use. A.R. 152-56.

Plaintiff contends that "[a]lthough Mr. Oliver is not a physician or other acceptable medical source, his opinion may qualify as a treating source since he was working in conjunction with a psychiatrist. . . ." Jt. Stip. at 21:12-16. Even if the Court treats Mr. Oliver's statements and opinions as being encompassed by Dr. Devera's opinions of the same date, see Stalling I at 12 n.9, it does not benefit petitioner. To the contrary, the ALJ properly considered Dr. Devera's opinions and the SBC Dept. medical records in assessing plaintiff's RFC, and, in so doing, specifically noted that those records show plaintiff "was doing well with medication compliance. On some dates she was more depressed and failed to follow up with her appointments. She reported that she was doing well except for some nightmares, but it was noted she was not in any acute distress during this time period." A.R. 429. The plaintiff has not identified any evidence refuting the ALJ's assessment of the SBC Dept. medical records, which included Mr. Oliver's opinions and Dr. Devera's opinions. In fact, when Dr. Devera examined plaintiff on February 7, 2001, she noted plaintiff was alert and oriented (x3), had no auditory or visual hallucinations, no suicidal or homicidal ideations, was pleasant and cooperative and in no distress, but had decreased insight, a sad affect, and a depressed mood. A.R. 150. On April 30, 2001, plaintiff was feeling better with an intact memory, was alert and oriented (x3), had no auditory or visual hallucinations, no suicidal or homicidal ideations, but had a sad affect and a depressed mood. A.R. 148. The rest of plaintiff's treating notes from SBC Dept. are similar. A.R. 108-47. Since the ALJ properly addressed these notes and the SBC Dept. medical evidence, as well as Dr. Glassmire's expert testimony and the opinions of examining physician Dr. Rhodes-Campbell, the ALJ's RFC determination, and Step Five determination, are supported by substantial evidence in the record.*fn11

See Tonapetyan, 242 F.3d at 1149; Morgan, 169 F.3d at 600.


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.

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