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 application 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 her motion for summary judgment, plaintiff contends that
the administrative law judge ("ALJ") in this case erred by failing
(1) find that plaintiff's depression was a severe impairment; (2)
properly assess the impact of plaintiff's obesity; and (3) properly
evaluate and credit the lay testimony of plaintiff's daughter
regarding plaintiff's pain and functional limitations. (See generally
Pl.'s Mot. For Summ. J. and Memo. In Supp. Of Mot. ("Pl. Memo.") at 1,
Dkt. No. 19.) Plaintiff asks the court to remand this
matter to the agency so that these alleged errors may be addressed.
The Commissioner filed an opposition to plaintiff's motion and a
cross-motion for summary judgment. (Dkt. No. 20.) Plaintiff did not
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 judgment.
On September 10, 2006, plaintiff protectively filed concurrent applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits that alleged a disability onset date of July 15, 2005. (Admin. Tr. ("AT") 78-80, 85.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 30, 31, 35, 36.) The ALJ conducted a hearing regarding plaintiff's claim on November 19, 2007. (AT 13-29.) Plaintiff was represented by counsel at the hearing and testified with the assistance of an interpreter. A vocational expert ("VE") also testified at the hearing.
In a written decision dated June 24, 2008, the ALJ denied plaintiff's application for benefits based on a finding that plaintiff could perform other work in the representative occupations of "small parts assembler" and "fast food worker," which are jobs that exist in significant numbers in the California economy.*fn3 (AT 37-48.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff request for review. (AT 1-5.) 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 not engaged in substantial gainful employment since July 15, 2005, the onset date of plaintiff's alleged disability. (AT 42.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "status post back injury (lumbar sprain/strain with radiculopathy versus annular tears) exacerbated by obesity; and, history of bunion surgery." (Id.) Central to plaintiff's first assignment of error, the ALJ also concluded that plaintiff suffered the "medically determinable, but not severe, impairment: depression" (emphasis added). (AT 43.) The ALJ's finding that plaintiff's depression was not severe cited: (1) a consultative psychiatric examination that concluded plaintiff's depression would improve within 3-6 months with treatment and that plaintiff "had the ability to perform work activities on a sustained basis"; and (2) the state agency reviewing medical consultant's agreement that plaintiff's mental impairment was not severe. (AT 43.) 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.)
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 lift/carry 20 pounds occasionally and 10 pounds frequently; stand/walk 6 hours/8 hour workday; sit 6 hours/8 hour workday; frequently climb ramps or stairs; frequently balance kneel, or crawl; occasionally climb ladders/ropes/scaffolds; and, occasionally stoop or crouch. (AT 43.) Central to plaintiff's second assignment of error, the ALJ's formulation of plaintiff's RFC did not expressly discuss the impact plaintiff's obesity might have on her ability to function in a sustained manner. (See AT 43-44.) In assessing plaintiff's RFC, the ALJ addressed plaintiff's testimony and found that plaintiff was not credible to the extent that her testimony conflicted with the RFC. (AT 44.) Plaintiff has not challenged that finding. Central to plaintiff's third assignment of error, the ALJ addressed the lay testimony of plaintiff's daughter, Veronica Pacheco, regarding plaintiff's physical and mental impairments, and gave "greater weight to the documented medical evidence of record." (AT 44.)
Having assessed plaintiff's RFC, the ALJ found at step four that plaintiff was "unable to perform any past relevant work" as a Certified Nursing Aide. (AT 46.) At step five, the ALJ concluded that considering plaintiff's age, education, work experience, the RFC, and the VE's testimony, plaintiff was not disabled within the meaning of the Act. (AT 47.) Relying on the VE's testimony, the ALJ determined that plaintiff could perform work in the representative occupations of "small parts assembler" and "fast food worker" and that jobs in those occupations existed in significant numbers in the California economy. (Id.)
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). 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 ...