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 supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.
Plaintiff filed an SSI benefits application alleging disability due to mood swings, depression, hyperactivity, anxiety disorders, and affective mood disorder. Plaintiff's amended alleged date of onset of disability is November 28, 2007. [JS 2; Administrative Record ("AR") 27, 51-55].
In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled because he did not have a severe physical or mental impairment or combination of impairments for twelve consecutive months. [AR 9-14].
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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).
Plaintiff contends that the ALJ erred in finding that plaintiff did not have a severe mental impairment.
A medically determinable impairment or combination of impairments is not severe 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 v. Chater, 80 F.3d 1273, 1289-1290 (9th Cir. 1996)). 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 if 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.
The ALJ noted that the record concerning the period on and after November 28, 2007 revealed no objective findings suggesting that plaintiff was unable to perform basic work activities. There was no evidence of any physical impairment; however, the record contained evidence of some treatment for mental symptoms during the relevant period. Plaintiff had a history of extensive incarceration since 1986, primarily for offenses arising from drug possession and sale, weapons possession, robbery, and manslaughter, for which plaintiff served ten years of a fifteen-year sentence. Plaintiff was arrested again in 2006 for marijuana possession with intent to sell. He was paroled on November 24, 2007. Plaintiff alleges that he became disabled four days later, when he filed his SSI benefits application. [AR 12, 27-31, 33].
Plaintiff's California state prison medical records indicate that after his incarceration in 2006, he was treated for mood swings and depression, but that his symptoms improved with use of medication. [AR 12, 154-201]. In February and March 2007, his diagnosis was history of adjustment disorder with anxiety and history of cannabis dependence. [AR 164-165]. In February and March 2007, plaintiff was assessed as stable on his current medication, Seroquel, which can be prescribed for depression or bipolar disorder.*fn1 [AR 169-170].
Plaintiff's diagnosis was unchanged according to progress notes from April 2007 and May 2007. [AR 162, 165]. Plaintiff complained that he was having a hard time waking up early for a job assignment on Seroquel, so he underwent a trial off medication after his April visit. [AR 165]. In May 2007, he reported an increase in irritability and stress. He was started on a trial of VPA ER (extended release sodium valproate), a generic mood stabilizer similar to Depakote, but that caused gastrointestinal upset, so he was started on Trileptal (oxcarbazepine)*fn2 , another mood stabilizing drug. [AR 160]. In August 2007, plaintiff reported that Trileptal gave him a skin rash, but that he had continued to take it.[AR 156, 158]. Trileptal was discontinued, and he was prescribed hydroxyzine for anxiety and lithium. [AR 156, 158-160]. Plaintiff subsequently said ...