The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge
ORDER: ADOPTING REPORT AND RECOMMENDATION; [Doc. No. 17] DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; [Doc. No. 12] GRANTING DEFENDANT'S CROSS -MOTION FOR SUMMARY JUDGMENT [Doc. No. 15]
Pending before the Court is the Report and Recommendation of Magistrate Judge William McCurine, Jr., filed on April 23, 2010, recommending that the Court deny Plaintiff's motion for summary judgment (Doc. No. 12) and grant Defendant's cross-motion for summary judgment (Doc. No. 15). (Doc. No. 17.) On May 8, 2010, Plaintiff objected to the R&R (Doc. No. 18), and on May 14, 2010, Defendant replied (Doc. No. 19).*fn1 Having considered the arguments of the parties and for the reasons noted herein, the Court ADOPTS the Magistrate Judge's Report and Recommendation ("R&R") in its entirety.
On March 22, 2006, the Plaintiff filed an application for a period of disability and disability insurance benefits, alleging that her disability began on January 1, 2004. The Social Security Administration denied the application on June 2, 2006, and denied a motion for reconsideration on December 8, 2006. On February 6, 2007, Plaintiff filed a request for a hearing, which was held on January 7, 2008 in San Diego, California. The Administrative Law Judge considered Plaintiff's medical records, as well as testimony from Plaintiff, Plaintiff's friends and family members, Michael Goldhamer, M.D., an impartial medical expert, and Gloria J. Lasoff, an impartial vocational expert. On August 19, 2008, Administrative Law Judge Edward D. Steinman ("ALJ") issued a decision, in which he found that Plaintiff was not disabled under Sections 216(i) and 223(d) of the Social Security Act. The ALJ made his decision based on Plaintiff's residual functional capacity ("RFC"), age, education, and work experience. (ALJ Decision [Administrative Record ("AR") 14--22] at 21.)
Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1) set forth the duties of the district court in connection with a magistrate judge's report and recommendation. The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(c); see also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989); United States v. Raddatz, 447 U.S. 667, 676 (1980).
The Social Security Act entitles a claimant to disability benefits if he is unable to "engage in any substantial gainful activity by reason of any 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 not less than twelve months." 42 U.S.C. §§ 416(i), 423(d)(1)(A). To qualify for benefits, the impairment must result from "anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423(d)(3); Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). Further, the impairment must be of "such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A).
Sections 205(g) and 1631(c)(3) of the Social Security Act allow unsuccessful applicants to seek judicial review of the Commissioner's final agency decision. 42 U.S.C. §§ 405(g), 1383(c)(3). However, the scope of review is limited. A court may not overturn the Commissioner's final action unless (1) the ALJ's findings of fact are not supported by substantial evidence, or (2) the ALJ failed to apply the proper legal standards. See Flatten v. Secretary of Health and Human Svcs., 44 F.3d 1453, 1457 (9th Cir. 1995). "Substantial evidence" means evidence a reasonable person might accept as adeqate to support the ALJ's conclusion, considering the record as a whole. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). In other words, substantial evidence means "more than a scintilla but less than a preponderance" of the evidence. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). The Court must consider both the evidence that supports and detracts from the Commissioner's conclusions. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 2001); Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).
Even if substantial evidence supports the ALJ's findings, a court must set the decision aside if the ALJ failed to apply the proper legal standards in weighing the evidence and reaching a decision. See Benitez v. Califano, 573 F.2d 653, 655 (9th Cir. 1978). But if the evidence supports more than one rational interpretation, the court must uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1989).
Plaintiff objects to the R&R on multiple grounds. First, she contends that the Magistrate Judge improperly consulted the record in reaching the conclusion that the ALJ's decision to discredit Plaintiff's testimony was supported by clear and convincing evidence. (Pl.'s Objections at 2:3--4:9.) Second, Plaintiff contends that the Magistrate Judge overlooked the ALJ's failure to explain why he rejected the testimony of Plaintiff's friends and family, as well as the fact that the ALJ's failed to cite to the record. (Pl.'s Objections at 4:13--5:16.) Third, Plaintiff contends that the Magistrate Judge erred when he determined that the ALJ did not err by failing to include fatigue as a limitation in the hypothetical questions he posed to the vocational expert. (Pl.'s Objections at 5:17--6:17.) Fourth, Plaintiff contends that the Magistrate Judge disregarded the ALJ's failure to provide specific reasons for rejecting the opinion of Plaintiff's treating physician on the improper basis that the ALJ's credibility determination was supported by the record. (Pl.'s Objections at 8:16--10:26.) Fifth, Plaintiff contends that the Magistrate Judge erred when he concluded that the ALJ provided sufficient reason for not considering medical evidence found in a Department of Motor Vehicles ("DMV") Disability Placard Application. (Pl.'s Objections at 11:2--13.) Sixth, Plaintiff objects the Magistrate Judge's conclusion that the ALJ's RFC determination was supported by substantial evidence.(Pl.'s Objections at 6:18--8:15.) Finally, Plaintiff objects to the Magistrate Judge's conclusion that the ALJ's failure to include a function-by-function assessment within his written decision was not error. (Pl.'s Objections at 11:14--12:11.) The Court shall address each of these objections in turn.
I. ALJ's Determination Plaintiff's Subjective Pain and Symptom Testimony was not Credible
Plaintiff testified at length about excessive pain, symptoms, and limitations. The ALJ, however, disregarded Plaintiff's testimony regarding her alleged disabling pain and limitations because he found them to be inconsistent with the evidence of record, including the statements of Plaintiff's friends and family. Specifically, the ALJ determined that Plaintiff's testimony depicted a condition that was more limited than that depicted by her friends and family. The ALJ also stated that Plaintiff's statements were not consistent "with the preponderance of the opinions and observations by medical doctors in this case." (ALJ Decision at 6--7.) In her motion for summary judgment, Plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff's testimony regarding her pain. (Pl.'s Mot. for Summ. J. at 3:24--9:21.) The Magistrate Judge disagreed, concluding that the ALJ adequately explained his reason for determining that Plaintiff's credibility was impeached and the reason was supported by the record. (R&R at 8:15--9:10.) Plaintiff objects to the R&R on grounds that the Magistrate Judge improperly consulted the record in reaching the conclusion that the ALJ's decision to discredit Plaintiff's testimony was supported by clear and convincing evidence. (Pl.'s Objections at 2:3--4:9.)
Unless the ALJ finds evidence of malingering, the ALJ must express clear and convincing reasons for rejecting a plaintiff's testimony of subjective pain. Benton v. Barnhart, 331 F.3d 1030, 1040 (9th Cir. 2003). "If the ALJ finds that claimant's testimony as to the severity of her pain and impairments is unreliable, the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958--59 (9th Cir. 2002) (citing Bunnell v. Sullivan, 947 F.2d 341, 345--46 (9th Cir. 1991) (en banc)). The ALJ can consider the following when assessing the Plaintiff's credibility: (1) the plaintiff's reputation for truthfulness; (2) inconsistences in either the plaintiff's testimony or between her testimony and her ...