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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 1 of 11 Page ID #:466

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

Case No.: CV 12-9459-SH
MEMORANDUM DECISION

KAY HAMILTON,



Plaintiff,

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Defendant.

v.

I. PROCEEDINGS

This matter is before the Court for review of the decision of the

Commissioner of Social Security denying plaintiff’s applications for Social
Security Disability Insurance Benefits and Supplemental Security Income
Benefits. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case
may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g),

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 2 of 11 Page ID #:467

which authorizes the Court to enter judgment upon the pleadings and transcript
of the record before the Commissioner. The plaintiff and the defendant have
filed their pleadings (Defendant’s Brief in Support of Defendant’s Answer; Brief
in Support of Plaintiff’s Complaint [“Plaintiff’s Brief”]), and the defendant has
filed the certified transcript of record. After reviewing the matter, the Court
concludes that the decision of the Commissioner should be affirmed.

II. BACKGROUND

On March 8, 2010, plaintiff Kay Marie Hamilton (“plaintiff”) filed an
application for a period of disability or Disability Insurance Benefits and an
application for Supplemental Security Income. Both applications alleged an
inability to work since August 31, 2009, due to an affective (mood) disorder and
asthma. (See Administrative Record [“AR”] 93-97, 120-127). Plaintiff’s
applications were denied on July 16, 2010, and denied upon reconsideration on
October 28, 2010. (See AR 99-110). On August 10, 2011, following the
administrative hearing on July 11, 2011, an Administrative Law Judge (“ALJ”)
found that plaintiff had a non-severe impairment -- an affective (mood) disorder-
- and a severe impairment -- asthma-- but determined that plaintiff was not
disabled within the meaning of the Social Security Act. (See AR 12-17).

Following the Appeals Council’s denial of plaintiff’s request for a review

of the hearing decision (AR 1-2), plaintiff filed an action in this Court.

Plaintiff makes one challenge to the ALJ’s Decision denying benefits.

Plaintiff alleges that the ALJ erred in finding plaintiff’s mental impairment
(affective [mood] disorder) non-severe.

For the reasons discussed below, the Court finds that plaintiff’s claim of

error does not have merit.

III. DISCUSSION

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 3 of 11 Page ID #:468

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ISSUE NO. 1:
Plaintiff asserts that the ALJ improperly found plaintiff’s impairment to be

non-severe. Specifically, plaintiff claims that: (1) the ALJ did not apply the
correct standard of law; (2) the ALJ did not properly consider the treating
psychiatrists’ opinions; (3) the ALJ did not properly consider plaintiff’s
credibility; and (4) the ALJ did not properly consider the lay witness testimony.
In response, defendant argues that the ALJ properly concluded that plaintiff’s
mood disorder was not severe.

A. The ALJ Applied the Correct Legal Standard.
Plaintiff contends that the ALJ applied the wrong standard of law in
determining that plaintiff’s impairment (affective [mood] disorder) was not
severe1. Specifically, plaintiff claims “the ALJ improperly looked to only
[paragraph B] listing criteria” in determining severity and failed to consider other
evidence in the record, including “medical evidence, plaintiff’s testimony, and
statements of lay witnesses.” (Plaintiff’s Brief at 6, 22). Plaintiff further
contends that because the ALJ failed to consider the other evidence in the record,
the ALJ did not have sufficient evidence to “clearly establish” his finding of non-
severity. (Plaintiff’s Brief at 6). In response, defendant argues that the ALJ
applied the correct standard of law and properly considered record evidence.

Here, the ALJ found that plaintiff’s “medically determinable depression

and anxiety disorders do not cause more than minimal limitations in her ability to
perform basic mental work activities.”2 (AR 13). In making this finding, the

1 Although plaintiff asserts that the ALJ applied the wrong legal standard in
determining plaintiff’s severity, plaintiff’s contention appears to be not whether the
ALJ used the right legal standard, but whether substantial evidence supported the
ALJ’s determination that plaintiff’s mental impairment was not severe. This court
will address the issue of whether the ALJ had substantial evidence to support his
findings.
These activities include: (1) physical functions such as walking, standing,
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sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) capacities for
seeing, hearing, and speaking; (3) understanding, carrying out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers and usual work situations; and (6) dealing with changes in

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 4 of 11 Page ID #:469

ALJ “considered four broad functional areas known as paragraph B criteria”
which are “set out in the disability regulations for evaluating mental disorders.”
(AR 13). In his decision, the ALJ identified each of these criteria -- activities of
daily living, social functioning, concentration, persistence or pace, and episodes
of decompensation, see 20 C.F.R., Part 404, Subpt. P, App. 1 -- and determined
that since plaintiff had “no more than ‘mild’ limitations in any of the first three
functional areas, and ‘no’ episodes of decompensation,” her impairment (mood
disorder) was non-severe. (AR 12-15).

Plaintiff argues that it was improper for the ALJ to look at the paragraph B

listing criteria in determining severity. However, the ALJ properly applied
paragraph B criteria pursuant to 20 C.F.R., Part 404, Subpt. P, App. 1 (stating
that severity is measured according to “the functional limitations imposed by
mental impairments” and that those functional limitations are assessed by “using
the four criteria in paragraph B of the listings”). Therefore, it was proper for the
ALJ to apply the paragraph B criteria in determining that plaintiff’s mental
impairment was not severe.

Plaintiff also argues that the ALJ erred by looking at the paragraph B

criteria to the exclusion of other evidence in the record. However, in
determining the degree of plaintiff’s limitations under each of the paragraph B
criteria, the ALJ clearly considered the record evidence. The ALJ examined the
following: the opinions of plaintiff’s physicians (see AR 13-15 )[discussing the
medical assessments of the two treating psychiatrists, the state agency
psychiatrist, and the consultative examiner as they pertain to social functioning
and concentration, persistence, and pace]; plaintiff’s testimony (see AR 13-
14)[discussing plaintiff’s testimony about her daily activities and personal
relationships as they pertain to activities of daily living, social functioning, and
concentration, persistence and pace]; and lay witness testimony (see AR 13-

a routine work setting. 20 C.F.R. § 404.1521(b).

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 5 of 11 Page ID #:470

14)[discussing written statements from plaintiff’s friend, brother, father, and
former employer about the limitations caused by plaintiff’s mental impairment].
Therefore, the ALJ’s decision about the non-severity of plaintiff’s mental
impairment was supported by substantial evidence in the record. See Molina v.
Astrue, 674 F.3d 1104, 1110-11 (9th Cir. 2012)(substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion” and “must be more than a mere scintilla, but may be less
than a preponderance”).

B. The ALJ Properly Considered the Treating Psychiatrists’ Opinions.
Plaintiff asserts that the ALJ failed to give proper weight to the opinions of
Dr. Cotsen and Dr. Brown, plaintiff’s treating psychiatrists. Defendant asserts that
the ALJ provided specific reasons for rejecting the treating psychiatrists’ opinions.

Although a treating physician's opinion is generally afforded the greatest

weight in disability cases, it is not binding on an ALJ with respect to the
existence of an impairment or the ultimate determination of disability. Batson v.
Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). The weight
given a treating physician’s opinion depends on whether it is supported by
sufficient medical data and is consistent with other evidence in the record. 20
C.F.R. § 416.927(b)-(d). If the treating doctor's opinion is contradicted by
another doctor, the ALJ must provide “specific and legitimate reasons” for
rejecting the treating physician’s opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th
Cir. 2007).

Adam Cotsen, M.D., a psychiatrist at the Cedars-Sinai Medical Center,

treated plaintiff from December 1996 until January 2011. (See AR 238-50, 293-
304). Dr. Cotsen diagnosed plaintiff with “major depression that has been
complicated by intense anxiety and overspending/shopping.” (AR 290). In a
Work Capacity Evaluation (Mental) form, dated February 12, 2010, Dr. Cotsen
opined that plaintiff had the following ability to do work related activities on a

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day to day basis: none to slight limitations in most areas of functioning3, and that
plaintiff would miss one day of work a month. (See AR 174-176).

Paul Brown, M.D., a psychiatrist, treated plaintiff from March 2011 to
May 2011. In a Medical Opinion Re: Ability To Do Work-Related Activities
(Mental) form, dated June 8, 2011, Dr. Brown opined that plaintiff was seriously
limited or unable to meet competitive standards in most areas of functioning4,
and would miss more than four days of work a month. (See AR 356-357).

The ALJ found the opinions of the two treating psychiatrists inconsistent

with each other, and specified where he found those opinions to be
irreconcilable. The ALJ specifically found inconsistencies as follows: Dr. Paul
Brown “found the claimant was ‘limited but satisfactory’ regarding instructions
and criticism from supervisors (compared to the extreme limitations determined

In the Work Capacity Evaluation (Mental) form, Dr. Cotsen determined that
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plaintiff is: not limited in her ability to remember locations and work-like
procedures, to carry out very short and detailed instructions, to sustain an ordinary
routine without special supervision, to make simple, work-related decisions, to get
along with co-workers or peers without distracting them, and to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness;
slightly limited in her ability to understand and remember very short and simple
instructions, to maintain attention and concentration for extended periods, to
perform activities within a schedule, to work in coordination with or in proximity
to others, to act appropriately with the general public, and to set realistic goals or
make plans independently of others; markedly limited in her ability to ask simple
questions or request assistance, and to respond appropriately to changes in the work
place; and extremely limited in her ability to accept instructions and respond
appropriately to criticism of supervisors. (See AR 174-175).
In the Medical Opinion Re: Ability To Do Work-Related Activities (Mental)
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form, Dr. Brown determined that plaintiff is: limited but satisfactory in her ability
to carry out very short and detailed instructions, to accept instructions and respond
appropriately to criticism of supervisors, to get along with co-workers or peers
without distracting them, to interact appropriately with the general public, and to
maintain socially appropriate behavior; seriously limited in her ability to remember
work-like procedures, to understand and remember very short and simple
instructions, to maintain attention in a two hour segment, to sustain an ordinary
routine without special supervision, to make simple, work-relate decisions, to ask
simple questions or request assistance, and to understand and remember detailed
instructions; and unable to meet competitive standards in her ability to work in
coordination with or in proximity to others, to deal with normal work stress, to carry
out detailed instructions, and set realistic goals or make plans independently of
others. (AR 356-357).

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 7 of 11 Page ID #:472

by Dr. Cotsen); ‘unable to meet competitive standards’ in working in
coordination with proximity to others without distraction (compared to light
limitations [determined by Dr. Cotsen]); ‘limited but satisfactory’ in getting
along with coworkers or peers without undue distraction or behavioral extremes
(compared to no limitations [determined by Dr. Cotsen]) …” (AR 14). (See AR
13-15).

In resolving these conflicts, the ALJ found that plaintiff had only mild

limitations in concentration, persistence, and pace, and in her abilities to socially
function, based on the medical evidence in the record, including: the Psychiatric
Review Technique form prepared by Dr. P. M. Balson, the State Agency
psychiatric consultant (see AR 261-71)[finding that plaintiff is capable of doing
simple and complex tasks; has only mild limitations in peers and public relations;
and has mild to moderate limitations in handling stress]; and the Consultative
Psychiatric Examination report prepared by Dr. Ernest Bagner, the psychiatric
consultative examiner (see AR 252-55)[finding that plaintiff has no limitations
completing simple tasks; mild limitations interacting with peers and the public,
maintaining concentration, and completing complex tasks; and mild to moderate
limitations handling normal stress at work and completing a normal work week
without interruption].

Since an examining physician’s opinion may constitute substantial
evidence in support of the ALJ’s finding of an impairment, and since the
opinions of non-examining physicians may also serve as substantial evidence
when their opinions are consistent with other evidence in the record, the ALJ
appropriately gave the opinions of Dr. Balson and Dr. Bagner significant weight.
Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Thomas v. Barnhart,
278 F.3d 947, 957 (9th Cir. 2002).

C. The ALJ Properly Considered Plaintiff’s Credibility.

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Case 2:12-cv-09459-SH Document 21 Filed 07/30/13 Page 8 of 11 Page ID #:473

Plaintiff argues that the ALJ selectively reviewed plaintiff’s testimony and
failed to provide a clear and convincing reason for rejecting it. Defendant asserts
that the ALJ relied on substantial evidence to discredit plaintiff’s testimony.

At the hearing on July 11, 2011, plaintiff testified about her background,
work history, symptoms, medications, and daily activities. (See AR 69-76, 81-
84). Specifically, plaintiff testified she is able to cook, clean, drive, do laundry,
go grocery and clothes shopping, use a computer, care for her cats, attend Living
History reenactments, teach Scottish Highland dancing, and attend Scottish
Highland dancing events. (See AR 71-75). Plaintiff also testified that she was
unable to work due to her inability to cope with stress and because criticism from
others would elicit a “fight or flight” response, or cause her to “fall apart.” (See
AR 75-78).

In the Decision, the ALJ noted inconsistencies between plaintiff’s above

testimony and the record evidence as follows:

The claimant has mild limitations [in the functional area of
activities of daily living]. The record, including statements of the
claimant’s friend Connie Nader, shows that she is able to: take care of her
personal needs; prepare meals; clean the house; take out the trash; do the
laundry; read; watch videos; use a computer; care for her cats; drive a car;
shop in stores; and teach Scottish Highland dancing and attend dancing
events. (AR 13).
Additionally, in regard to plaintiff’s social functioning, the ALJ noted that

one of the plaintiff’s treating psychiatrists, Dr. Brown, had found the plaintiff
“limited but satisfactory” regarding instructions and criticism from supervisors.
(AR 14, citing 356-57).

The ALJ properly found plaintiff’s testimony less reliable based on

physician evidence saying that she is capable of complex tasks and only mildly
limited in her ability to socially function. (See AR 271); See Thomas, 278 F.3d

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at 958-59 (holding that an ALJ may consider “testimony from physicians and
third parties concerning the nature, severity, and effect of the symptoms of which
claimant complains,” when weighing credibility).

Moreover, the ALJ properly found plaintiff less credible based on Ms.

Nader’s statement about plaintiff’s daily conduct. (See AR 180-90); See
Thomas, 278 F.3d at 958-59 (noting that when weighing the claimant’s
credibility, the ALJ may consider inconsistencies between claimant’s testimony
and her conduct).

Therefore, the ALJ provided clear and convincing reasons for rejecting

plaintiff’s subjective complaints. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th
Cir. 1996)(holding that the ALJ may reject the claimant's testimony about the
severity of her symptoms by offering specific, clear and convincing reasons for
doing so).

D. The ALJ Properly Considered Lay Witness Testimony.
Plaintiff contends that the ALJ did not properly consider the testimony of

the lay witnesses. In response, defendant argues that the ALJ provided valid
reasons, supported by substantial evidence, for rejecting the lay witness
statements.

Here, plaintiff’s brother, father, former employer, and friend each

submitted a written statement. (See AR 180-90, 226-27, 367, 370). To properly
reject lay testimony, the ALJ must give a reason germane to the witness for
doing so. Carmickle v. Commissioner, 533 F.3d 1155, 1164 (9th Cir. 2008).

Plaintiff argues that the ALJ failed to properly consider lay witness

testimony because the ALJ did not explicitly reject the testimony in regard to the
severity of plaintiff’s mental impairment. (Plaintiff’s Brief at 21). Although the
ALJ did not recite particular words for rejecting lay testimony, see Magallanes v.
Bowen, 881 F.2d 747, 755 (9th Cir. 1989)(holding that it is not required for the
ALJ to “recite the magic words, ‘I reject [an individual’s] opinion because…’”),

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the ALJ clearly considered the testimony of each witness and discussed evidence
to the contrary of their statements. See Id (holding that as long as the ALJ
summarizes “the facts and conflicting clinical evidence in detailed and thorough
fashion, stating his interpretation and making findings,” the reviewing court may
draw inferences from the ALJ’s opinion).

The ALJ considered the witness testimony as follows:

The claimant’s brother and father state that the claimant has

difficulty accepting criticism; a friend reports difficulty with work and
personal relationships; a former employer cites difficulties in relationships
with other employees. However, the evidence shows [plaintiff] has a close
relationship with her family; … has a good relationship with her friends;
talks to her family and friends frequently; e-mails her friends and her
brother; celebrates birthdays; teaches Scottish Highland dancing and meets
with her dancing friends one to four days a week from an hour to the entire
day; and has a long-term relationship with a male friend (who is also her
landlord). … A review of other [medical] opinions in the record …
indicates only mild limitations in social functioning. (AR 13, citing, 72-75,
180-87, 226, 253, 255, 269, 367, 370).
Additionally, the ALJ considered the lay witness testimony in regard to

concentration, persistence or pace as follows:

According to her former employer, the claimant would be shown

something on one day but would look at it like she had never seen it before
on the next day. Ms. Nader, the claimant’s friend also reports problems
with memory, completing tasks, concentration, and following instructions.
However, the claimant is still able to read, study history, use a computer,
and teach Scottish Highland dancing.

[The examining and state agency physician] both only find mild

limitations in this area. …I conclude that the claimant has mild limitations

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in concentration, persistence, and pace. (AR 14, citing, 72-75,184-86,
226, 255, 269).
The ALJ properly considered the opinions of plaintiff’s brother, father,

former employer, and friend because they were inconsistent with plaintiff’s
testimony and the medical evidence. See Baylis v. Barnhart, 427 F.3d 1211,
1218 (9th Cir. 2005)(holding that “inconsistency with medical evidence” is a
germane reason for discounting lay witness testimony); Carmickle v. Comm'r,
Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008)(holding that
inconsistency with plaintiff’s conduct is a proper basis on which to reject lay
witness testimony).

IV. CONCLUSION

For the forgoing reasons, the decision of the Commissioner is affirmed.

DATED: July 30, 2013



STEPHEN J. HILLMAN

UNITED STATES MAGISTRATE JUDGE

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