The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge
Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
The parties are familiar with the procedural facts, which are set forth in the joint stipulation. [See JS 2-3]. In a written hearing decision that constitutes the final decision of the Commissioner, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of diabetes mellitus and hypertension, both well-controlled, and that those impairments did not preclude him from performing his past relevant work as a truck driver.[See JS 2-3; Administrative Record ("AR") 15-21].
The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It 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 omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff contends that the ALJ erred in finding that he did not have a severe mental impairment. Specifically, plaintiff argues that the ALJ improperly rejected the opinion of plaintiff's treating psychiatrist and failed adequately to develop the record following the administrative hearing, during which plaintiff appeared without a representative. [See JS 4-18].
At step two of the five-step sequential evaluation procedure, the Commissioner must determine whether the claimant has a severe, medically determinable impairment or combination of impairments. See Smolen v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987)). A medically determinable mental impairment is one that results "from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques," and it "must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908; see 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). A medically determinable impairment or combination of impairments may be found "not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2006) (quoting Smolen, 80 F.3d at 1290).
To assess severity, the ALJ must determine whether a claimant's impairment or combination of impairments significantly limits his or her physical or mental ability to do "basic work activities." 20 C.F.R. §§ 404.1521 (a), 416.921(a); see Webb, 433 F.3d at 686. 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, speaking, understanding, carrying out, and remembering simple instructions; (3) the use of judgment; and (4) the ability to respond appropriately to supervision, co-workers, and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). The ALJ is required to consider the claimant's subjective symptoms in making a severity determination, provided that the claimant "first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s)." SSR 96-3p, 1996 WL 374181, at *2.
Plaintiff alleged that he was disabled by depression, anxiety, and post-traumatic stress disorder stemming from a 1983 motor vehicle accident. Plaintiff was driving an 18-wheel hay truck that slammed into a car fleeing Border Patrol agents, killing eleven people. Plaintiff was found not at fault in causing the collision. He continued to work as a truck driver until 2001 or 2002. He testified, however, that he experienced nightmares and flashbacks of the accident, and that he sometimes had to pull off the road due to anxiety that he might hit someone again. Eventually, plaintiff said, his anxiety became too much for him, and he quit driving a truck. [AR 44, 51-52, 60, 67, 341, 338, 344, 358-372].
Plaintiff testified that he was receiving mental health treatment from Dr. Rashidi, and that he took medication that helped him feel better. [AR 361, 372]. The record includes two "Short Form Evaluation for Mental Disorders" signed by Dr. Nasrollah Rashidi in June 2005 and July 2004. [AR 192-196]. Dr. Rashidi said that plaintiff had seen him weekly to monthly since October 2003. [AR 192, 194]. In the July 2004 report, Dr. Nashidi noted the following mental status examination findings. Plaintiff was well-groomed, cooperative, and fully oriented. He exhibited a tremor, slow speech, irritability, slightly distracted concentration, mildly impaired memory, anxious and depressed mood, blunted affect, circumstantial associations, obsessive worries about his job and life, and mildly impaired judgment. He exhibited no hallucinations or delusions. Intelligence was average. [AR 194-195]. Dr. Nashidi's diagnoses were bipolar disorder and post-traumatic stress disorder ("PTSD"). [AR 194]. Dr. Nashidi commented that plaintiff had "suffer[ed] from panic disorder (PTSD) and depression" since his 1983 accident. [AR 194]. In a section labeled "Progress in Treatment and Prognosis," Dr. Nashidi said that plaintiff was less depressed, less anxious, more hopeful, and more optimistic about the future. [AR 196]. Asked to rate plaintiff's current work-related skills, Dr. Nashidi indicated that plaintiff had (1)"fair"*fn1 ability to maintain concentration, attention, and persistence; understand, remember, and carry out complex instructions; complete a normal workday and workweek without interruptions from psychologically-based symptoms; and respond appropriately to changes in a work setting; and (2) "good"*fn2 ability to perform activities within a normal schedule and maintain regular attendance; and understand, remember, and perform simple instructions. [AR 193].
On mental status examination in June 2005, Dr. Nashidi indicated that plaintiff exhibited a tremor, pressured speech, irritability, poor impulse control, mildly impaired concentration and memory, anxious mood, labile affect, and blocking of associations. Plaintiff was well-groomed, fully oriented, and cooperative. No delusions or preoccupations were noted. Judgment was intact. He had no hallucinations. Intelligence was average. Dr. Nashidi's diagnoses of bipolar disorder and PTSD were unchanged. He commented that plaintiff had mood swings, depression, anxiety, and "post traumatic disorder" due to his 1983 accident, still had panic attacks "off and on," isolated himself, and avoided socialization. [AR 192-193]. Regarding plaintiff's current work-related skills, Dr. Nashidi wrote that plaintiff had (1) a "fair -poor" ability to maintain concentration for two-hour periods; (2) a "fair" ability to interact with co-workers and supervisors; handle responsibilities common to a basic work environment; and understand, remember, and perform complex instructions; and (3) an "OK" ability to sustain an ordinary routine without special supervision and to understand, remember, and perform simple instructions. [AR 193]. The terms "poor," "fair," and "OK" ...