The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
Plaintiff, who is represented by counsel, seeks judicial review of a
final decision of the Commissioner of Social Security ("Commissioner")
denying plaintiff's applications for Disability Insurance Benefits
under Title II of the Social Security Act ("Act") and Supplemental
Security Income benefits under Title XVI of the Act.*fn1
In his motion for summary judgment, plaintiff contends that
the administrative law judge ("ALJ") in this case erred by: (1)
relying on plaintiff's medical records and the examining opinions
evaluating plaintiff's mental health provided by Phyllis Williamson,
Ph.D. and Timothy Canty, M.D. in assessing plaintiff's residual
functional capacity, rather than the examining opinion of Shohreh
Ghaemian, M.D.; (2) finding
that plaintiff's testimony regarding the impact of his mental
conditions on his ability to work was not credible to the extent that
it was inconsistent with the residual functional capacity found by the
ALJ; (3) adopting but failing to "accurately summarize" the
third-party lay witness reports provided by James A. Beal; and (4) not
calling a vocational expert to testify about plaintiff's ability to
work. (See generally Pl.'s Mot. for Summ. J., Dkt. No. 17.) The
Commissioner filed an opposition to plaintiff's motion and a
cross-motion for summary judgment. (Defs.' Cross-Motion for Summ. J.,
Dkt. No. 18.) Plaintiff chose not to file a reply brief. For the
reasons stated below, the court denies plaintiff's motion for summary
judgment and grants the Commissioner's cross-motion for summary
In March 2007, plaintiff filed applications for Disability Insurance Benefits and
Social Security Income that alleged a disability onset date of May 6, 2004. (See Admin. Tr. ("AT") 4-9, 13, 119.) The Social Security Administration denied plaintiff's applications initially and upon reconsideration. (See AT 4-9, 26-41.) Plaintiff requested a hearing before an ALJ, and the ALJ conducted a hearing regarding plaintiff's applications on October 29, 2008. (AT 42-43, 47, 53, 57, 66-86.) Plaintiff testified at the hearing and was represented by counsel. Plaintiff also submitted, and the ALJ considered, two third-party function reports prepared by plaintiff's friend and landlord, Mr. Beal. (AT 21, 141-48, 179-86.) The ALJ did not call a vocational expert to testify at the hearing about plaintiff's ability to perform work.
In a written decision dated December 15, 2008, the ALJ denied plaintiff's applications for benefits based on a finding that plaintiff was "capable of performing his past relevant work as a Production Worker."*fn3 (AT 21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 23-25, 92.) Plaintiff subsequently filed this action.
B. Summary of the ALJ's Findings
The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ found that plaintiff had actually "engaged in substantial gainful employment after May 6, 2004 the alleged onset date until approximately May of 2006." (AT 15.) The ALJ noted that plaintiff had worked at Camp Pendleton as a "mess hall attendant" for about one year, but that employment ended "due to a verbal confrontation with the building manager." (Id.) He also found that plaintiff worked as a "Production Worker" at the Sacramento Bee newspaper, stacking newspapers and loading them into a sorting machine. (Id.; see also AT 71.) The ALJ noted that plaintiff was "fired due to a verbal confrontation with a non-employee." (AT 15.) Although the ALJ found that plaintiff engaged in substantial gainful employment after the alleged date of onset and likely could have found plaintiff not disabled at that point in the analysis, he proceeded to the next steps of the analysis, stating: "In order to provide the claimant every benefit of the doubt, the undersigned continues with the sequential evaluation process given the fact that the claimant has not been currently engaging in [substantial gainful employment]." (AT 16.)
At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "Major depressive disorder and anti-social personality disorder." (AT 16.) The ALJ specifically rejected the state agency's determination that plaintiff had "no severe mental impairment or no medically determinable mental impairment." (Id.) The ALJ also noted plaintiff's asthma condition, but found that plaintiff had no severe physical impairments at step two. (Id.) Plaintiff does not contest the ALJ's findings at step two.
At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments listed in the applicable regulations. (Id.) In reviewing the criteria relevant to the assessment mental impairments at step three of the sequential evaluation, the ALJ discussed plaintiff's mental health treatment records and evaluations at length. (At 16-19.) Plaintiff does not contest the ALJ's findings at step three.
Prior to reaching step four of the analysis, the ALJ determined plaintiff's residual functional capacity ("RFC") as follows:
[T]he claimant has the residual functional capacity to perform the full range of work at all exertional levels but with the following non-exertional limitations: the claimant is able to perform unskilled work with no frequent interaction with supervisors, co-workers, or the public. (AT 19.) Relevant here, the ALJ did "not accord substantial weight to the opinion of consulting psychiatrist, Dr. Shohreh Ghaemian." (AT 20.) Instead, the ALJ relied on the opinions of Drs. Williamson and Canty, and plaintiff's other medical records. (Id.) Additionally, in assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found that plaintiff testimony was not credible to the extent that it conflicted with the assigned RFC. (See AT 19-20.) The ALJ relied, in part, on the third-party reports of Mr. Beal in discounting plaintiff's testimony and finding plaintiff not disabled. (AT 21.)
Having assessed plaintiff's RFC, the ALJ found at step four that plaintiff "is capable of performing his past relevant work as a Production Worker." (AT 21.) The ALJ found that plaintiff could perform his past work "as actually performed" because plaintiff's work at the newspaper "did not require frequent interaction with others." (Id.) As a result of the ALJ's finding at step four, the ALJ found that plaintiff was "not disabled" without reaching step five of the analysis.
The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); accord Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "'Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities."
Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. § 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by ...