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Johnson v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


August 19, 2009

CASSANDRA JOHNSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On January 25, 2007, plaintiff Cassandra Johnson ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's applications for benefits. On October 1, 2007, the parties filed a Joint Stipulation ("JS") setting forth their respective positions on plaintiff's claims. On July 23, 2009, the matter was transferred and referred to the current Magistrate Judge. The parties thereafter filed consents to proceed before the current Magistrate Judge. On August 13, 2009, the matter was formally reassigned to the instant Court for final disposition. The Court has taken this matter under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15.

Based on the record as a whole and the applicable law, the decision of the Commissioner AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn2

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

A. Previously Adjudicated Applications

On or about August 13, 2001, plaintiff previously filed applications for Supplemental Security Income and Disability Insurance Benefits due to seizures and hypertension. (Administrative Record ("AR") 23, 59-61, 81-90, 158-60). An ALJ (the "prior ALJ") examined the medical record and heard testimony from plaintiff on August 22, 2002. (AR 166).

On November 8, 2002, the prior ALJ issued an unfavorable decision denying benefits based upon the ALJ's conclusion that plaintiff was not disabled at any time through the date of the decision (the "prior ALJ's decision"). (AR 170). The prior ALJ found: (1) plaintiff suffered from hypertension and a seizure disorder (AR 169); (2) plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments (AR 169); (3) plaintiff had no exertional limitations, but her ability to work was limited by her need to avoid heights, by her need to avoid operating a motor vehicle, and by her need to avoid working around hazards in the workplace (AR 169); (4) plaintiff could perform her past relevant work as a secretary/administrative assistant (AR 169-70); and (5) plaintiff's allegations of "excess" symptoms and functional limitations were not credible. (AR 169). Plaintiff did not appeal seek review of the prior ALJ's decision. (JS 2).

B. Applications In Issue

On or about January 13, 2003, plaintiff filed subsequent applications for Supplemental Security Income and Disability Insurance Benefits which are in issue in the instant action. (AR 181-84, 423-25). Plaintiff asserted that she became disabled in July 2001 due to seizures. (AR 195-204). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), Rita Brown (the daughter of plaintiff's former guardian), and a vocational expert on March 31, 2005. (AR 441-67).

On June 24, 2005, the ALJ determined that plaintiff was not disabled at any time from November 8, 2002 -- the date the prior ALJ's decision became final -- through the date of the decision. (AR 30). Specifically, the ALJ found:

(1) the prior ALJ's decision was final and binding and created a presumption of continuing non-disability (AR 29); (2) plaintiff had not overcome the presumption of continuing non-disability (AR 29); (3) plaintiff suffered from hypertension and a seizure disorder (AR 29); (4) plaintiff's impairment or combination of impairments did not meet or medically equal one of the listed impairments (AR 29); (5) plaintiff had no exertional limitations, but her ability to work was limited by her need to avoid heights, by her need to avoid operating a motor vehicle, and by her need to avoid working around hazards in the workplace (AR 30); (6) plaintiff's allegations and testimony, Rita Brown's testimony, and the statements of plaintiff's neighbor, Mary Burbank, regarding plaintiff's functional limitations and "excess" symptoms were not entirely credible (AR 30).

The Appeals Council denied plaintiff's application for review. (AR 9-11).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a 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 at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not*fn3 disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).

C. Presumption Based Upon the Prior ALJ's Decision

Although the Commissioner may apply res judicata to bar reconsideration of a disability claim with respect to a period during which the Commissioner has already determined that a claimant is not disabled, the Commissioner's authority to apply res judicata to a subsequent unadjudicated period is more limited. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) as amended (1996). A prior final determination that a claimant is not disabled creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lyle v. Secretary, 700 F.2d 566, 568 (9th Cir. 1983). The claimant can, however, overcome this burden by proving "changed circumstances," such as the existence of an impairment not previously considered, an increase in the severity of an impairment, or a change in the claimant's age category. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (finding two changed circumstances -- new allegation of mental impairment not raised in prior application or addressed in prior denial and fact that claimant was approaching advanced age); Schneider v. Commissioner, 223 F.3d 968, 973 (9th Cir. 2000) (finding changed circumstances based on worse psychological test scores and diagnosis); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (attainment of advanced age constitutes changed circumstance precluding application of res judicata to first administrate law judge's ultimate finding against disability because advanced age often outcome-determinative under Medical-Vocational grids); Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir.), as amended (1997) (increased severity of carpal tunnel syndrome and diagnosis of ADHD constitute changed circumstances); Lester, 81 F.3d at 828 (finding two changed circumstances -- new allegation of mental impairment not raised in prior application or addressed in prior denial and fact that claimant was approaching advanced age); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988) (res judicata could not be applied to bar claim since claimant raised psychological impairment not previously considered); Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989) (en banc) (attainment of advanced age constitutes changed circumstance precluding application of res judicata to first administrative law judge's ultimate finding against disability); Taylor, 765 F.2d at 875 (finding claimant's condition improved rather than deteriorated and claimant failed to show requisite changed circumstances); Booz v. Secretary of Health & Human Services, 734 F.2d 1378, 1379-80 (9th Cir. 1984) (finding no changed circumstance).*fn4

Even when a claimant has demonstrated changed circumstances and thus overcomes the presumption of continuing non-disability, a prior ALJ's findings concerning the claimant's residual functional capacity, education, and work experience or other findings required at a step in the sequential evaluation process for determining disability, are still entitled to some res judicata consideration in subsequent proceedings. Chavez, 844 F.2d at 693 (rejecting Commissioner's assertion that res judicata should not apply to first ALJ's finding that claimant was unable to perform past work in absence of showing that alleged "new and material" evidence was in fact "new" and not previously presented to first ALJ; holding that because second ALJ failed, inter alia, to afford preclusive effect to prior ALJ's determinations that claimant had residual functional capacity of light work, was of limited education, and was skilled or semi-skilled, second ALJ's decision was not supported by substantial evidence); Social Security Acquiescence Ruling 97-4(9), 1997 WL 742758 (if claimant rebuts presumption of continuing non-disability, adjudicators must adopt prior findings of residual functional capacity, education, work experience, or other findings required at a step in the sequential evaluation process for determining disability, unless there is new and material evidence relating to such finding or there has been change in law, regulations or rulings affecting finding or method of arriving at the finding).

IV. SUMMARY OF PERTINENT MEDICAL EVIDENCE

A. Martin Luther King/Drew Medical Center Records

Between at least July 22, 1999 to March 24, 2005, plaintiff was seen and treated at the Martin Luther King/Drew Medical Center ("MLK Medical Center" or "MLK"). (AR 123-35, 261-303, 338-421). Among other physicians, plaintiff was seen by neurologist, Dr. Lowell Nelson. (AR 167-68, 270-71, 277-78, 284-85, 390-91, 394-95, 402-04).

Dr. Nelson's February 13, 2002 report reflects: Plaintiff reported that she began to have seizures in the "early 90s" for unknown reasons. (AR 284). She thought she had an average of two seizures per month. (AR 284). Plaintiff was alert, oriented, attentive and briskly responsive. (AR 285). It was Dr. Nelson's impression that plaintiff had probable secondarily generalized seizures of undetermined etiology at quite a high frequency (twice a month) despite medication.

Dr. Nelson's July 23, 2002 report reflects: Plaintiff reportedly had had seizures about once or twice monthly since her last visit -- mostly small spells with drooling from her mouth; one generalized convulsion in May. (AR 277). She had missed a dose of medication a few days before her convulsion in May, and reported having been under a lot of stress. (AR 277). Plaintiff indicated that her encounters with her psychiatrist were stressful. (AR 277). There was no change in plaintiff's condition since her last visit in February. (AR 277). It was Dr. Nelson's impression that plaintiff had incomplete seizure control. (AR 277).

Dr. Nelson's December 3, 2002 report reflects: Plaintiff had reportedly been under a high level degree of stress due to the unexpected death of an uncle, difficulty returning to work given her age and uncontrolled seizures, and the possibility of eviction from her home of twenty years. (AR 270). She reported that she was having seizures twice a month despite medication. (AR 270). She also reported having had some problems with depression, but noted that she was menopausal, in addition to the various emotional stresses in her life. (AR 270).

Dr. Nelson's December 3, 2002 report reflects: There was no change in plaintiff's condition. (AR 270). She was alert and normally responsive, but appeared depressed and near to weeping at times. (AR 271). It was Dr Nelson's impression that plaintiff still had unsatisfactory seizure control with moderate levels of medication. (AR 271). He prescribed an increased dose of a specified medication on a trial basis. (AR 271).

Dr. Nelson's April 8, 2003 report reflects: Plaintiff reportedly had had a convulsion in February. (AR 267). She further reported that in March, during a one week visit, her son had told her that she had had three recurrent seizures in her sleep on one night, but none on the remaining nights of the week. (AR 267). She reportedly had been unable to find a job, and had had a job interview that day, which she interrupted to come to the clinic. (AR 267). There was no change in plaintiff's condition. (AR 267). She was nervous and somewhat irritable and frustrated that her seizures remained uncontrolled. She spent some time weeping during the interview. (AR 267). It was Dr Nelson's impression that plaintiff had incomplete seizure control. (AR 268). He further noted that she had had no adverse effects from a specified medication and might tolerate an increase in dose, which he prescribed. (AR 268).

Dr. Nelson's August 26, 2003 report reflects: Since her last visit, plaintiff reportedly had had one small seizure at home in June, and what she assumed to be a seizure the previous day while riding a bus to a job interview. (AR 402). She reportedly found herself on the street, off the bus, and disoriented; when she recovered her orientation she found herself about 10 miles from her intended destination. (AR 402). Plaintiff indicated that she was excessively sleepy, enough to significantly interfere with her normal functions. (AR 402). She stated: "If someone found it in her heart to hire me, I don't think I could do the job because if I sit still for half an hour I fall asleep. . . I'm going out of my damned mind. I don't know where to go or what to do. . . I can't find a job. . . ." (AR 402). Plaintiff reported that she had been looking for a job for the last year and a half and that she had applied for a part time job but did not get it because, she was told, they wanted someone who was bilingual. (AR 402). Plaintiff was tearful, angry, and frustrated with her life, which had largely been destroyed by unemployment resulting from seizures. (AR 402). It was Dr. Nelson's impression that plaintiff still had incomplete seizure control, that the somnolence was probably a medication side effect which substantially interfered with her function, but that it did not appear that she could reduce her medications to address the issue of somnolence.

A November 3, 2003 report generated by the MLK Emergency Department reflects that plaintiff reported having had a seizure the prior night while sleeping and that her last seizure had occurred in July 2003. (AR 399).

On December 9, 2003, plaintiff again visited Dr. Nelson. (AR 394). Dr. Nelson noted that plaintiff was angry and irritable, but that she communicated quite clearly and rationally, and related well to the interview. (AR 394). He found that plaintiff had grossly normal spontaneous movements and normal associated movements. (AR 394). Dr. Nelson determined that there was unsatisfactory seizure control. (AR 395). He also noted that plaintiff was markedly non-compliant, with self adjustment of medications to essentially zero medications, associated with generalized convulsion. (AR 395).

On April 14, 2004, plaintiff again visited Dr. Nelson. (AR 390). Dr. Nelson's report reflects that although plaintiff remembered "no paroxymsal activity," it appeared, based upon reports from her family, that they happened about two or three times per month. (AR 390). Plaintiff had yet to take her medication that day. (AR 390). Dr. Nelson concluded that plaintiff experienced possible complex partial seizures, but no convulsions with her current dose of medication. (AR 391). Treatment notes for the same date reflect that plaintiff was alert and oriented and denied having had any seizures since her last visit. (AR 392).

MLK Medical Center treatment notes dated May 11, 2004, reflect that plaintiff was non-compliant with her medications. (AR 370).

MLK Medical Center Neuroscience Outpatient Clinic treatment notes dated December 1, 2004, reflect that plaintiff reported last having a seizure on November 24, 2004 during her sleep, and that she had previously had a seizure in May 2004. (AR 341).

B. Hubert H. Humphrey Comprehensive Health Center Medical Evidence

Between at least August 27, 2001 and March 17, 2003, plaintiff was seen and treated by multiple different medical practitioners at the Hubert H. Humphrey Comprehensive Health Center ("HHH Health Center" or "HHH") in Los Angeles. (AR 231-60). Treatment notes dated June 11, 2002, reflect that plaintiff admitted to anxiety problems and was going to see a psychiatrist. (AR 246). Treatment notes dated September 24, 2002, reflect that plaintiff's anxiety was being followed by a psychiatrist. (AR 242).

C. Treating Psychologist/Psychiatrist -- Dr. Ferrara-Guthrie

Between May 10, 2002 and at least March 2005, plaintiff was seen by treating psychologist/psychiatrist Dr. Ferrara-Guthrie of the August Hawkins Mental Health Clinic. (AR 154-55, 330, 422). Plaintiff was initially seen "for depression associated with her medical condition, seizure disorder, and the consequent inability to find employment." (AR 330). Plaintiff reported "interrupted sleep, anxiety, feeling hopeless & helpless and [being] unable to be entirely independent. (AR 330). Dr. Ferrara-Guthrie noted that plaintiff's lack of employment had "caused a number of insurmountable hurdles, beginning with inability to pay for housing & possibly becoming homeless and more hopeless and helpless." (AR 330).

On August 26, 2002, Dr. Ferrara-Guthrie completed a "Physician's Supplementary Certificate" which reflects: Her primary diagnosis was that plaintiff suffered from a mood disorder to due to a medical condition. (AR 155).*fn5

Plaintiff had a seizure disorder which impaired her ability to function at work, causing depression and memory loss. (AR 155). Plaintiff's continued seizures rendered her unable to obtain employment. (AR 155). She was unable to function independently for lack of funds due to unemployment and emotional stress. (AR 155).

On October 30, 2003, Dr. Ferrara-Guthrie generated a handwritten letter in which she noted the following: She had seen plaintiff approximately eleven times. (AR 330). Plaintiff's situation had not improved. (AR 330). Plaintiff reportedly had an "acute outburst" on October 2, 2003, while being interviewed at the Social Security Office, during which she cried, screamed and stated that she could not "keep on like this." (AR 330). Dr. Ferrara-Guthrie diagnosed plaintiff with depression not otherwise specified v. depression secondary to general medical condition (seizure disorder). (AR 330).

On March 22, 2005, Dr. Ferrara-Guthrie generated another handwritten letter in which she noted the following: Plaintiff's condition had not changed since October 2003. (AR 422). She had become more hopeless given her inability to find work and therefore to support herself due to her continued medical debilitating condition: seizure disorder. (AR 422). Plaintiff's current psychiatric diagnosis was depression not otherwise specified, ruling in a depression due to seizure disorder. (AR 422). Plaintiff would be unable to find employment due to her disabling neurological condition and therefore needed financial support for her sustenance. (AR 422).

D. Consultative Examiner -- Dr. Nguyen

On June 13, 2003, plaintiff underwent a complete psychiatric evaluation by consultative examiner, Dr. Nguyen, of the East West Medical Group. (AR 304-07). Dr. Nguyen's report reflects: Plaintiff had no history of psychiatric hospitalization or outpatient treatment, and was not seeing a psychiatrist at the time. (AR 304). Her speech was normal, spontaneous, goal-directed and articulate. (AR 305). Plaintiff did not show any abnormal, bizarre or psychotic behavior, and was cooperative. (AR 305). Plaintiff's affect was unremarkable, and she had no suicidal or homicidal ideation. (AR 305). Plaintiff had no looseness of association and no paranoid ideation, delusions, auditory or visual hallucinations. (AR 306). Plaintiff was oriented times four and was able to recall three out of three objects immediately and after five minutes. (AR 306). She was able to recall 7 digits going forward and 4 digits going backwards. (AR 306). She could do simple math, was able to name the current and recent past Presidents, and gave appropriate responses to questions regarding the similarities between two objects and what to do in an emergency. (AR 306). There was no evidence of a psychiatric disorder and no evidence of any particular psychiatric diagnosis at the time. (AR 306). Plaintiff's mental status examination was unremarkable. (AR 306). She could focus and maintain attention, and could understand, remember and follow instructions. (AR 306). She was competent to manage her own funds. (AR 306).

E. State Agency Physician -- Dr. Kalmar

On June 23, 2003, State Agency Physician Dr. Kalmar completed a Physical Residual Functional Capacity Assessment in which such doctor opined: Plaintiff had no exertional, postural, manipulative, visual, or communicative limitations. (AR 309-13). Although she should avoid concentrated exposure to hazards (machinery, heights, etc.), she had no other environmental limitations. (AR 313).

V. DISCUSSION

A. The ALJ's Assessment of the Opinions of Plaintiff's Treating Psychologist/Psychiatrist

Plaintiff contends that the ALJ erroneously failed to give appropriate weight to the opinion of her treating psychologist/psychiatrist, Dr. Ferrara-Guthrie. (JS 3). This Court finds no material error in the ALJ's assessment of this medical opinion.

1. Applicable Law

In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians"). Lester, 81 F.3d at 830 (footnote omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion. See id. In general, the opinion of a treating physician is entitled to*fn6 greater weight than that of a non-treating physician because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).

The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). The ALJ can reject the opinion of a treating physician in favor of a conflicting opinion of another examining physician if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. (citation and internal quotations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite "magic words" to reject a treating physician opinion -- court may draw specific and legitimate inferences from ALJ's opinion). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id. "Broad and vague" reasons for rejecting the treating physician's opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

2. The ALJ's Assessment of Dr. Ferrara-Guthrie's Opinions

In the ALJ's decision, the ALJ expressly addressed the opinions of Dr. Ferrara-Guthrie, noting that such doctor had opined that plaintiff was disabled as a result of a seizure disorder and a nonspecific depressive disorder. (AR 27). The ALJ affirmatively rejected Dr. Ferrara-Guthrie's opinion and gave it no weight assertedly because (1) the opinion was unsupported by treatment notes; (2) a finding of disability is a legal determination reserved for the ALJ -- Dr. Ferrara-Guthrie was only qualified to give an opinion about plaintiff's functional abilities; and (3) the opinion was completely contradicted by the findings of Dr. Nguyen and Dr. Kalmar. (AR 27) (citing Exhibits B-3F [AR 304-07] and B-5F [AR 309-16]).

3. Analysis

As a threshold matter, this Court declines to apply, and finds that the ALJ erred in applying, the presumption of continuing non-disability to the unadjudicated period post-dating the prior ALJ's decision because plaintiff turned 50 after the date of the prior ALJ's decision and thus entered the "closely approaching advanced age" category as defined by the applicable regulations. See Vasquez v. Astrue, 572 F.3d at 597-98 (fact that claimant turned 50 after date of earlier decision and thus entered the "closely approaching advanced age" category was a changed circumstance precluding application of presumption of continuing non-disability); Lester, 81 F.3d at 828 (same). This Court nonetheless finds that*fn7 the ALJ did not materially err in rejecting Dr. Ferrara-Guthrie's opinion because such rejection is supported by findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record.

As noted above, the ALJ cited three reasons for rejecting Dr. FerraraGuthrie's opinion: (1) her opinion was unsupported by treatment notes; (2) her opinion that plaintiff was disabled was a legal opinion reserved for the ALJ; and (3) her opinion was contradicted by Drs. Nguyen and Kalmar. As to the first*fn8 reason, plaintiff argues that Dr. Ferrara-Guthrie's opinion is supported by treatment notes from another, unaffiliated treating physician, Dr. Nelson. (JS 3). Even assuming this to be true, it misses the point. A treating doctor's opinion about the severity of the claimant's impairments can properly be discounted if the opinion is unsupported by the doctor's own treatment notes. See Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003); see also Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (variance between physician's opinion and his own treatment notes may be used to deem opinion untrustworthy), cert. denied, 519 U.S. 1113 (1997).*fn9

Although plaintiff does not address the second reason articulated by the ALJ, this Court notes that the ALJ was not bound by the Dr. Ferrara-Guthrie's opinion on the ultimate issue of disability. See 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). The ALJ was nonetheless required to provide specific and legitimate reasons to reject such opinion. Tommasetti, 533 F.3d at 1041. As discussed herein, the ALJ did so.

As to the third reason articulated by the ALJ to reject Dr. Ferrara-Guthrie's opinion -- the fact that it was contradicted by the opinions of Drs. Nguyen and Kalmar -- plaintiff contends that such opinions do not constitute substantial evidence and were erroneously relied upon by the ALJ. However, Dr. Nguyen personally examined plaintiff, administered objective tests, and made independent clinical findings. When an examining physician provides independent clinical findings that differ from the findings of a treating physician, such examiner's findings themselves constitute substantial evidence. Orn, 495 F.3d at 632. Here, Dr. Nguyen's opinion was buttressed by that of Dr. Kalmar. Although plaintiff points out that Dr. Nguyen did not review plaintiff's medical records and that the Dr. Kalmar did not examine plaintiff -- facts which were certainly appropriate for the ALJ to consider in assessing the weight to give to such opinions -- the ALJ is responsible for resolving conflicts in medical testimony. Magallanes, 881 F.2d at 750.

As the ALJ in this case rejected Dr. Ferrara-Guthrie's opinions by setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record, plaintiff is not entitled to a reversal or remand based upon the instant claim.

B. The ALJ's Determination That Plaintiff Did Not Suffer from a Severe Mental Impairment

Plaintiff argues that the ALJ erred in failing to find that plaintiff suffered from a severe mental impairment. (JS 11). Defendant disagrees. This Court finds that the ALJ's determination that plaintiff did not suffer from a severe mental impairment is supported by substantial evidence and is free from material error.

1. Applicable Law

As noted above, plaintiff has the burden of proving that she has a severe impairment at step two of the sequential evaluation process. An impairment is severe if it significantly limits one's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment is "non-severe" if it does not significantly limit one's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are the "abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (4) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b), 416.921(b).

Step two is "a de minimis screening device [used] to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). An ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when this conclusion is clearly established by medical evidence. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citation omitted). Applying the normal standard of review to the requirements of step two, a court must determine whether an ALJ had substantial evidence to find that the medical evidence clearly established that the claimant did not have a medically severe impairment or combination of impairments. Webb, 433 F.3d at 687; see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) ("Despite the deference usually accorded to the Secretary's application of regulations, numerous appellate courts have imposed a narrow construction upon the severity regulations applied here.").

2. The ALJ's Decision Regarding Plaintiff's Alleged Mental Impairment

The ALJ determined that the medical record did not support a finding that plaintiff had any significant limitations in her mental functioning abilities. (AR 26). The ALJ noted that plaintiff had never required psychiatric hospitalization and that when plaintiff was evaluated by the consultative psychiatric examiner, she did not show any bizarre or psychotic behavior. (AR 26). Instead, her speech was normal, spontaneous, and goal-directed. (AR 27). She had no suicidal or homicidal ideation. (AR 27). Her psychomotor activity was within normal limits. (AR 27). She had no looseness of association, paranoid ideation, delusions or auditory/visual hallucinations. (AR 27). The ALJ noted that the consultative examiner had concluded that plaintiff had no evidence of a psychiatric disorder and had opined that plaintiff was able to focus and maintain attention as well as understand, remember, and follow instructions. (AR 27) (citing Exhibit B-3F [AR 304-07 -- Dr. Nguyen's report]). The ALJ pointed to multiple treatment notes between December 2002 and February 2005 which reflect that plaintiff was alert and oriented. (AR 28) (citing Exhibit B-2F at 4, 10 [AR 264, 270 -- MLK records], Exhibit B-1F at 7 [AR 237 -- HHH records], Exhibit B-9F at 3, 21, 55, 59, 60, 68 [AR 341, 359, 392, 396, 397, 405 -- MLK records] and Exhibit B-10F at 4 [AR 420 -- MLK records]. The ALJ also considered and rejected Dr. FerraraGuthrie's opinion regarding plaintiff's alleged mental impairment for the reasons discussed above. (AR 27).

3. Analysis

Plaintiff contends that medical evidence from three sources demonstrates that she had a severe mental impairment: (1) HHH records in June 2002 and September 2002 which reflect that she had an anxiety problem and was referred to a psychiatrist; (2) MLK records in April 2003 and August 2003 which reflect that she was nervous, somewhat irritable, weeping, tearful, angry, and frustrated with her life; and (3) Dr. Ferrara-Guthrie's diagnosis that plaintiff had depression, not otherwise specified due to her uncontrolled seizure disorder, and had symptoms of hopelessness and helplessness.

First, to the extent plaintiff's position is predicated upon Dr. FerraraGuthrie's opinion, plaintiff fails to meet her burden to demonstrate that she suffered from a severe mental impairment because, as discussed above, the ALJ properly rejected such opinion.

Second, even including and crediting Dr. Ferrara-Guthrie's opinion, plaintiff still fails to meet her burden to demonstrate that she suffered from a severe mental impairment -- i.e., an impairment that significantly limited her ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c).*fn10

Third, substantial evidence in the form of Dr. Nguyen's opinion, clearly supports the ALJ's determination that plaintiff did not suffer from a severe impairment. The record also supports the ALJ's reliance on the remaining*fn11 medical evidence cited in support of the ALJ's conclusion that plaintiff did not suffer from a severe mental impairment.

As plaintiff has failed to meet her burden to demonstrate that plaintiff suffered from a severe mental impairment and as the ALJ's determination that plaintiff did not suffer from a severe mental impairment is supported by substantial evidence and is free from material error, plaintiff is not entitled to a reversal or remand on this claim.

C. The ALJ's Assessment of Plaintiff's Credibility

Plaintiff asserts that the ALJ failed properly to evaluate plaintiff's subjective symptoms and credibility. Defendant disagrees.This Court finds that the ALJ's assessment of plaintiff's subjective symptoms and credibility is supported by substantial evidence and is free from material error.

1. Applicable Law

Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn, 495 F.3d at 635 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard a claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.

2. Analysis

First, for the reasons discussed in Part VA3, above, this Court rejects defendant's assertion that the ALJ's decision should be affirmed based upon a presumption of continuing non-disability.

Second, however, the Court nonetheless affirms the ALJ's determination regarding plaintiff's credibility because the ALJ provided clear and convincing reasons which are supported by substantial evidence in the record. The ALJ rejected plaintiff's allegations and testimony regarding "excess" symptoms and functional limitations because plaintiff assertions were (1) contradicted by treatment notes (as detailed by the ALJ with multiple citations to the record); and (2) contradicted by plaintiff's conduct in multiple respects, e.g., her non-compliance with a prescribed course of treatment, her failure to seek continuous treatment, her active seeking of employment (again, as detailed by the ALJ with multiple citations to the record). (AR 27-29). These are appropriate bases upon which to reject a claimant's credibility. See Orn, 495 F.3d at 636 (Factors that ALJ may consider in weighing claimant's credibility include inconsistency between testimony and conduct, and unexplained or inadequately explained failure to seek treatment or follow prescribed course of treatment). Plaintiff correctly notes that the failure to seek treatment where a plaintiff cannot afford to seek it is not an appropriate basis upon which to discount a claimant's credibility. (JS 17). However, the only evidence cited by plaintiff for her current assertion that she did not seek treatment because she could not afford it, is an at best ambiguous statement by Rita Brown -- a witness whose credibility the ALJ rejected in a finding that is not challenged here. (JS 17). Plaintiff points to no testimony or statements of her own in the record which suggest that she refrained from seeking treatment or failed to take her prescribed medication for financial reasons or other adequately explained reasons.

In short, plaintiff is not entitled to reversal or remand on this claim because the ALJ's articulated reasons for rejecting her allegations are clear and convincing and are supported by substantial evidence in the record.

VI. CONCLUSION

For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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