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Borrie v. Astrue


August 19, 2009


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court*fn1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ("JS")*fn2.


As reflected in the Joint Stipulation, the disputed issues which Plaintiff is raising as the grounds for reversal and/or remand are as follows:

1. Whether the ALJ properly considered the relevant medical evidence of record; and

2. Whether the ALJ properly considered Plaintiff's subjective complaints and properly assessed Plaintiff's credibility.

(JS at 3.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. The ALJ Properly Considered the Relevant Medical Evidence of Record

Plaintiff contends the ALJ failed to provide sufficient reasons for disregarding much of the relevant medical evidence of record. (JS at 3.)

1. Failure to Consider Global Assessment of Functioning Score

Plaintiff contends the ALJ rejected the Global Assessment of Functioning ("GAF") score of 40*fn3 , assessed by a social worker, without providing specific and legitimate reasons for doing so. (Id.; see also AR at 21, 304.)

In his report, after setting forth the GAF scores assessed by various practitioners, the ALJ specifically stated that he did not find GAF scores to be reliable:

There are GAF assessments in the file, as indicated above, but these are of limited value. Although the DSM-IV gives some descriptions that can be followed in defining a GAF score, there is no evidence to indicate the reliability of cross raters where one can conclude a particular GAF score means a particular limitation in work ability. Although it indicates some limitations in functioning, it does not speak directly to a person's work capacity. (AR at 23.)

Preliminarily, a social worker is not generally considered to be an acceptable medical source. See 20 C.F.R. § 404.1513(d) (including social worker as an "other" medical source). Because a social worker is not an acceptable medical source, evidence from the social worker is not considered relevant medical evidence. Id. The ALJ may, but is not required to, use evidence from such other sources to show the severity of an impairment. Id.

Further, GAF scores only reflect the "clinician's judgment of the individual's overall level of functioning and include[] psychological, social and occupational functioning." Diagnostic and Statistical Manual of Mental Disorders - Revised 32-34 (American Psychiatric Ass'n ed., 4th ed. 2000). They are not meant to be a conclusive medical assessment of overall functioning, but rather, are only intended to be "useful in planning treatment[,] . . . measuring its impact, and in predicting outcome." Id. The Social Security regulations do not require an ALJ to take the GAF score into account in determining the extent of an individual's disability. While the score may help the ALJ assess the claimant's ability to work, it is not essential, and even an ALJ's failure to mention the GAF score does not constitute an improper application of the law. Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ("While a GAF score may be of considerable help to the ALJ in formulating the [residual functional capacity ("RFC")], it is not essential to the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate.").

Here, the ALJ considered the GAF score, but finding such scores unreliable, did not find it mandated disability. (AR at 23.) This is a specific and legitimate reason for discounting this score. Moreover, since the ALJ is not required to take the GAF score into account in determining disability or even to mention it, the ALJ's failure to reconcile this low GAF score with the other GAF scores in the record or with other medical opinions, does not make the RFC inaccurate. Howard, 276 F.3d at 241. Thus, there was no error requiring remand. 2.

Failure to Consider Plaintiff's Chronic Fatigue

Plaintiff maintains that the ALJ failed to properly consider his severe and chronic fatigue. (JS at 5.) Plaintiff contends that he consistently complained of severe fatigue,*fn4 and the medical expert, Dr. Nafoosi, also testified to fatigue as a symptom of Plaintiff's Hepatitis C disorder. (Id.)

However, after considering fatigue as a symptom, Dr. Nafoosi found an even higher physical exertional capacity than the ALJ. (AR at 18.) In fact, the ALJ, in deference to Plaintiff's subjective complaints of fatigue and the medical expert's suggestion, actually reduced the exertional level to sedentary. (Id.) Thus, the ALJ did properly consider Plaintiff's chronic fatigue.

Based on the foregoing, the Court finds that the ALJ properly considered the relevant medical evidence of record as well as Plaintiff's chronic fatigue. Thus, there was no error.

B. The ALJ Properly Considered Plaintiff's Subjective Complaints and Properly Assessed Plaintiff's Credibility

Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for rejecting Plaintiff's subjective complaints of fatigue and weakness. (JS at 10.) Plaintiff further contends the ALJ failed to properly assess Plaintiff's credibility. (Id.)

An ALJ's credibility finding must be properly supported by the record and sufficiently specific to ensure a reviewing court that the ALJ did not arbitrarily reject a claimant's subjective testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight." Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When an ALJ's disbelief of a claimant's testimony is a critical factor in a decision to deny benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that claimant was not credible is insufficient).

It is well established that when a claimant has produced objective medical evidence of an impairment or impairments that could reasonably be expected to produce some degree of pain and/or other symptoms and the record is devoid of any affirmative evidence of malingering, the ALJ may reject the claimant's testimony regarding the severity of the claimant's pain and/or other symptoms only if the ALJ makes specific findings stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); Bunnell, 947 F.2d at 343; Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986). Further, it is incumbent on the ALJ to specify which statements by a claimant concerning his symptoms and functional limitations were not credible and/or in what respect(s) the claimant's statements were not credible. See Smolen, 80 F.3d at 1284; see also Social Security Ruling ("SSR") 96-7p (requiring that the ALJ's decision "contain specific reasons for the finding on credibility, supported by the evidence in the case record," and that the decision "be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight").

To determine whether a claimant's testimony regarding the severity of his symptoms is credible, the ALJ may consider, the following evidence: (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; (3) the claimant's daily activities; and (4) testimony from physicians and third parties concerning the nature, severity, and effect of the claimant's symptoms. Thomas, 278 F.3d at 958-59; see also Smolen, 80 F.3d at 1284; see also Soc. Sec. Ruling 96-7p.

Here, even though Plaintiff had not produced objective medical evidence, the ALJ stated clear and convincing reasons for discounting Plaintiff's credibility and subjective complaints based on evidence of daily activities that were inconsistent with his subjective complaints, additional inconsistent statements made by Plaintiff, and the medical opinion of other treating and consulting physicians.

As to Plaintiff's inconsistent statements, the ALJ provided:

The claimant's testimony and reports regarding his history of heroin abuse are inconsistent. On January 27, 1997, the claimant said he quit taking heroin one week prior when he entered a Methadone detoxification program. On November 6, 2001, the claimant said he quit taking heroin in 1990. On December 11, 2001, the claimant said he had a history of taking heroin for 15 years. . . . During the November 1, 2005 psychiatric consultative examination, the claimant said he had not used speed or heroin for five years, which would have been the year 2000. On September 13, 2007, the claimant said he last used it 3 years ago. The claimant told this to the mental health technician, and he later told it to the psychiatrist who saw him. This is consistent with what he told another treating source on October 2, 2007, when the claimant said he last used intravenous drugs three years ago. Yet, at the hearing and under oath, the claimant denied making such statements and said it had been at least 10 years since he used heroin.

(AR at 22 (citations omitted).)

Relying upon Plaintiff's own description of his daily activities, the ALJ found Plaintiff not to be a credible witness and discredited the severity of his subjective complaints. (Id.) According to Plaintiff's own statements and testimony, he was able to perform household chores including laundry, dishes, cleaning, yard work, gardening, cooking, making snacks, dressing and bathing himself, shopping, and running errands. (Id.) The Court notes that the ALJ could properly rely on Plaintiff's daily activities, such as completing household chores and working side jobs, to support his adverse credibility determination. See, e.g., Thomas, 278 F.3d at 958-59 (ALJ may properly consider inconsistencies between claimant's testimony and claimant's daily activities); Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 1999) (ALJ may properly rely on contradictions between claimant's reported limitations and claimant's daily activities); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (daily activities inconsistent with total disability undermined subjective testimony of disabling pain); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant's daily activities, including ability to drive); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (ALJ may properly rely on daily activities inconsistent with claim of disabling pain); SSR 96-7p. Additionally, the ALJ found Plaintiff was able to engage in substantial gainful activity because on several occasions, Plaintiff reported that he was working part time. (AR at 22.)

Finally, none of the treating or examining physicians, including the medical experts and the consulting psychiatrist, suggested any greater limitations than those found by the ALJ. Neither of the medical experts found any severe limitations. (Id. at 18, 20.) In fact, Dr. Nafoosi found greater functional capacity than that found by the ALJ. (Id. at 18, 392-98.) Dr. Smith, the psychiatrist, did not find any severe mental impairment. (Id. at 21, 248-56.) The consultative examiner, Dr. Jamil, also reported Plaintiff could walk, sit and stand for six hours in a eight-hour workday and was capable of lifting and carrying up to fifty pounds occasionally. (Id. at 19, 22, 261.) These medical opinions also constituted clear and convincing reasons for rejecting Plaintiff's subjective complaints and discounting his credibility.

Based on the foregoing, the Court finds that the ALJ provided clear and convincing reasons, supported by substantial evidence, for rejecting Plaintiff's subjective symptoms of fatigue and weakness, and discounting Plaintiff's credibility. Thus, there was no error.


IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.

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