Opinion
No. C 00-4712 MMC
December 13, 2002
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Plaintiff Glenn T. Bourbon ("Bourbon") brings the above entitled action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits pursuant to Title II and part A of Title XVIII of the Social Security Act ("the Act"). Before the Court is plaintiffs motion for summary judgment and the Commissioner's cross-motion for summary judgment. Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument. Having considered the papers submitted in support of and in opposition to the motions, the Court rules as follows.
Jo Anne B. Barnhart is substituted for her predecessor, Larry G. Massanari, as Commissioner of the Social Security Administration. See Fed.R.Civ.P. 25(d)(1).
I. BACKGROUND
On March 23, 1995, Bourbon, who was then 35 years old, filed an application for disability benefits, alleging that he has been unable to work since August 2, 1994 as a result of back pain. (Certified Transcript of Administrative Proceedings ("TR") at 54-61.) After the application was denied initially and on reconsideration by the Social Security Administration ("SSA") (Tr. at 61-64, 76-79), Bourbon requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. at 80.)
On February 25, 1997, in anticipation of the hearing, Bourbon filed a pre-hearing memorandum in support of his application, contending therein that his impairments included depression. (Tr. at 176-77.) On February 27, 1997, the ALJ, after determining that Bourbon was raising "the issue of his mental impairment" for the first time, vacated the prior administrative determination, and remanded the application to the agency for evaluation of the mental impairment issue. (Tr. at 180-83.) The SSA again denied the application, and Bourbon requested a hearing before the ALJ. (Tr. at 196-201).
On December 1, 1998, the ALJ conducted a hearing, analyzing Bourbon's application under the five-step sequential evaluation process set forth in the Code of Federal Regulations. On February 8, 1999, the ALJ issued a Notice of Decision, finding that Bourbon was not disabled. The ALJ concluded that Bourbon has "severe degenerative disc disease of the lumbar spine and major depression," but that Bourbon did not have an impairment, or combination of impairments, listed in or equal to an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listing"). (Tr. at 26.) The ALJ also found that, although Bourbon could not perform his past relevant work as a machine operator and laborer, Bourbon retained the residual functional capacity ("RFC") to perform sedentary work involving the performance of "simple, repetitive tasks which do not require any contact with the general public." (Id.) The ALJ further found, based on the testimony of a vocational expert, that Bourbon could work as a bench assembler and that a significant number of such jobs existed in the national economy.
"The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled.
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App.1? If so, the Claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled." McCartey v. Massanari, 298 F.3d 1072, 1074 n. 6 (9th Cir. 2002).
Bourbon requested review of the ALJ'S decision by the Appeals Council, which denied the request on October 20, 2000. Thereafter, Bourbon commenced this action for judicial review pursuant to 42 U.S.C. § 405(g).
II. STANDARD OF REVIEW
The Commissioner's determination to deny disability benefits will not be disturbed if it is supported by substantial evidence and based on the application of correct legal standards. See Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). "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." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The reviewing court must consider the administrative record as a whole, and weigh both the evidence supporting and detracting from the ALJ'S decision. See id. If the evidence is susceptible to more than one rational interpretation, the reviewing court will uphold the decision of the ALJ. See id.
III. DISCUSSION
In an administrative proceeding to determine whether a claimant is entitled to benefits, the claimant has the burden of proving a disability within the meaning of the Act. See Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984). Under the Act, a claimant is considered disabled when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." See 42 U.S.C. § 423(d)(1)(A). Where the claimant establishes a prima facie case of disability by showing an inability to perform past relevant work, the burden shifts to the Commissioner to show the claimant can engage in other types of substantial gainful work existing in the national economy. See Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).In his motion for summary judgment, Bourbon argues that the ALJ'S decision should be reversed with directions to award benefits, or in the alternative, the matter should be remanded for further proceedings. Bourbon asserts the ALJ erred by: (1) failing to set forth as required by 42 U.S.C. § 405(b)(1) the reasons for his finding that Bourbon's impairments did not meet or equal an impairment in the Listing; (2) improperly rejecting evidence supporting Bourbon's argument that his mental impairment met or equaled an impairment in the Listing; (3) concluding that Bourbon's daily activities supported a finding that Bourbon was not disabled; and (4) failing to consider Social Security Ruling 85-15 at step five of the sequential analysis.
A. Compliance With 42 U.S.C. § 405(b)(1)
Bourbon argues that the ALJ did not articulate the reasons for his determination that Bourbon's impairments did not meet or equal any impairment in the Listing and, thus, failed to comply with the procedural requirements of 42 U.S.C. § 405(b)(1).
Under 42 U.S.C. § 405(b)(1), the Commissioner shall "make findings of fact, and decisions as to the rights of any individual applying for a payment under [the Act]." See 42 U.S.C. § 405(b)(1). If the decision is unfavorable to the claimant, the decision "shall contain a statement of the case, in understandable language, setting forth a discussion of the evidence, and stating the Commissioner's determination and the reason or reasons upon which it is based." See id.
Here, the ALJ'S decision includes a statement of the case, in which he discusses the evidence and sets forth reasons for his decision that Bourbon's impairments did not meet or equal an impairment in the Listing. In discussing the evidence, the ALJ refers to the opinions of physicians, psychologists and other sources, and where those opinions are not accepted by the ALJ, the ALJ sets forth the reasons for his decision. (See Tr. at 20-24.)
Accordingly, the ALJ has complied with the requirements of § 405(b)(1).
B. Listed Impairment
Step three of the five-step sequential analysis requires a determination of disability if a claimant has an impairment that meets the duration requirement and is listed in, or is equal to an impairment listed in, the Listing. See 20 C.F.R. § 404.1520(d).
Bourbon argues that the ALJ'S decision at step three was erroneous because the ALJ improperly rejected the opinions, or portions thereof, of a treating psychotherapist, consulting psychiatrist, examining physician, and examining psychologist, all of which supported Bourbon's claim that he has an "Affective Disorder," an impairment listed in Appendix 1 of the Listing.
"Affective Disorders" are characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. To meet the required level of severity for this type of disorder, a claimant must satisfy the requirements listed in both sections A and B of the regulation.
To satisfy section A, a claimant must present medically documented persistence, either continuous or intermittent, of one of the following: (1) Depressive syndrome; (2) Manic syndrome; or (3) Bipolar syndrome. Depressive syndrome, which our on contends is the relevant syndrome here, is characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or worthlessness; or
g. Difficulty concentrating or thinking; or
h. Thoughts of suicide; or
I. Hallucinations, delusions, or paranoid thinking.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(A)(1).
To satisfy section B, a claimant must establish that his disorder results in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B) (emphasis added).
1. Treating Therapist Dipman
Bourbon first argues that the ALJ erred in rejecting the opinion of his treating therapist, Richard Dipman, M.S.W. ("Dipman"). Dipman, a social worker, saw Bourbon on nine occasions from May 17, 1996 to September 26, 1996. (See Tr. at 20.) In a letter addressed to Bourbon's attorney dated September 13, 1996, Dipman stated that Bourbon had been "diagnosed as experiencing Major Depression, Recurrent, Moderate 296.32" and that:
[h]is symptoms include: frequent severely depressed mood, markedly diminished interest in activities, extreme irritability, insomnia, psychomotor agitation, fatigue, feelings of worthlessness and diminished ability to think and concentrate. During periods of depression he tends towards social withdrawal and experiences thoughts of death. His frequent irritability makes it difficult for him to maintain ongoing relationships and interferes with his ability to parent his daughter.
(See Tr. at 175.) In a letter addressed to the Department of Social Services, dated May 15, 1997, Dipman also stated that "[Bourbon's] back injury represents his most significant disablement. However, his psychiatric symptoms are also of such severity that employment is not a realistic option for him." (See Tr. at 221.)
The ALJ provided specific reasons for rejecting Dipman's opinions. First, with respect to Dipman's letter indicating that Bourbon had been diagnosed with Major Depression, the ALJ noted that Dipman failed to state who had made such a diagnosis or upon what information the diagnosis was based. (See Tr. at 20.) In addition, the ALJ found that the opinions stated by Dipman were "based solely on the claimant's own self-reports of his symptoms," and that Dipman failed to report any symptoms he observed during sessions or the results of any examinations he may have conducted. (See id.) In sum, the ALJ found Dipman's opinions were not credible "because they [were] not supported by objective medical and clinical findings." (See Tr. at 20.) An ALJ may properly reject the opinion of a treating physician that is not supported by clinical findings. See Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Accordingly, the ALJ did not err in not affording Dipman's opinions any weight.
Bourbon further argues that because the ALJ stated that "no treating or examining physician has mentioned findings equivalent in severity to the criteria of any listed impairments," (see Tr. at 19), and because, in Bourbon's view, Dipman's opinions can be interpreted as supporting a finding that Bourbon has the listed impairment of an Affective Disorder, the ALJ'S actual reason for rejecting Dipman's opinion was for the improper reason that Dipman was not a physician. This argument lacks merit for two reasons. First, the ALJ did consider Dipman's opinions on the merits, and rejected them as being unsupported by clinical findings, not because of Dipman's status as a social worker. Second, assuming,arguendo, that the ALJ implicitly rejected Dipman's opinions because Dipman was a social worker, such reason is proper. A social worker is not an "acceptable medical source." See 20 C.F.R. § 404.1513 (a) (listing acceptable medical sources). An opinion from a person who is not an "acceptable medical source" need not be afforded any deference by the ALJ. See Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990), rev'd en banc on other grounds, 947 F.2d 341 (9th Cir. 1991).
A social worker can be an "acceptable source" of medical evidence only if the worker acts as an agent of a licensed physician or psychologist. See Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). This occurs where the social worker acts so "closely under the supervision" of the treating physician that the social worker's opinion should be "properly considered as part of the opinion" of the treating physician. See id. at 971. Bourbon does not contend that Dipman acted in such a capacity.
Lastly, Bourbon argues that the ALJ'S rejection of Dipman's opinions deprived Bourbon of equal protection. Bourbon states that because he cannot afford, or otherwise gain access to, the services of an "acceptable medical source," he was treated differently than claimants who have access to acceptable medical sources. As Bourbon acknowledges, his theory, at a minimum, is dependent on a showing that indigent persons in Mendocino County, where he resides, do not have access to psychiatrists or psychologists. Bourbon, however, offered no such evidence before the ALJ or the Appeals Council. Instead, Bourbon, for the first time on appeal, and only then in his reply, offers excerpts included in the administrative record of an unrelated case filed in 1998, and requests that this Court take "judicial notice" of such evidence.
In that case, Giese v. Halter, C 98-04471 TEH, the administrative record included testimony from an unidentified witness who, in response to a question about why a claimant had not been treated by a psychiatrist, stated: "Well, the situation in this — in Ukiah now, in this county is that only people that have severe, chronic mental health problems are usually treated through the mental health department and see a psychiatrist." (See Exhibit to Howard Decl., attached to Pl.'s Reply.)
Construing Bourbon's request for judicial notice as a motion to remand for consideration of new evidence, the Court denies the motion. The excerpts from the administrative record in the earlier case were in existence at the time of Bourbon's hearing before the ALJ and appeal therefrom, as well as at the time he filed his motion for summary judgment with this Court, and Bourbon fails to provide a reason for his failure to offer the evidence earlier. See Sanchez v. Secretary of Human Health Services, 812 F.2d 509, 511 (9th Cir. 1987) (holding party seeking remand must show "good cause for his failure to incorporate that evidence into the administrative record"). Consequently, Bourbon is not entitled to remand for consideration of new evidence offered by Bourbon on appeal.
Moreover, the record establishes that Bourbon did obtain psychiatric evaluations by two acceptable medical sources, and that the results of those evaluations were presented to the ALJ. Pursuant to the ALJ'S February 1997 remand order, the SSA directed consultative psychiatrist Stefan Lampe, M.D., a board-certified psychiatrist, to conduct an evaluation. (See Tr. at 223-226.) Additionally, Bourbon's attorney referred him for psychological testing to Richard A. Robinson, PhD., a licensed psychologist. (See Tr. at 236.) Further, Bourbon received at least some medical care for his mental impairments because John D. Williams, M.D., prescribed various antidepressants to Bourbon. (See, e.g., Tr. at 263, 266, 269.)
2. Examining Psychiatrist Dr. Lampe.
Bourbon argues that the ALJ erred by failing to fully consider the opinion offered by an examining psychiatrist, Stefan Lampe, M.D. ("Dr. Lampe").
On May 31, 1997, Bourbon, at the request of the SSA, was examined by Dr. Lampe, who reviewed Bourbon's medical history and performed a comprehensive psychiatric and limited neurological examination. (See Tr. at 223-226.) After examining Bourbon, Dr. Lampe diagnosed Bourbon as having major depression, and provided the opinion that Bourbon could "relate and interact with supervisors and co-workers," could "understand, remember and carry out simple instructions," and could "maintain concentration and attention for two hour increments." (See Tr. at 226.) Dr. Lampe also provided the opinion that "[w]ith aggressive, adequate antidepressant treatment, [Bourbon's] depression should resolve within a two to four month period." (See id.) Lastly, Dr. Lampe opined that "[w]ithout further treatment, most likely [Bourbon] would have difficulty withstanding the stress and pressures associated with an eight hour work day." (See id.)
Bourbon argues that the ALJ erred by not addressing Dr. Lampe's "crucial finding that, at the time of the examination in May 1997, [Bourbon] was not able to work an eight-hour day." (See Pl.'s Mot. at 14:22-24.) Dr. Lampe, however, did not include such a "finding" in his report. To the extent Bourbon relies on Dr. Lampe's opinion that Bourbon likely would have difficulty working an eight-hour day if he did not receive further treatment, Bourbon's argument likewise is unavailing as Bourbon did receive treatment from John P. Williams, M.D. ("Dr. Williams"), who, inter alia, prescribed antidepressant medications for Bourbon. (See Tr. at 20.) Bourbon does not argue that the antidepressant medications failed to provide any relief.
The record establishes that Dr. Williams prescribed Prozac on October 17, 1997 (see Tr. at 269), Elavil on January 6, 1998 (see Tr. at 266), and Effexor on March 12, 1998. (See Tr. at 263.)
Accordingly, the ALJ did not err with respect to his consideration of Dr. Lampe's opinion.
3. Consulting Physician Dr. Agcaoili
Bourbon also argues that the ALJ erred by failing to address the opinion of Dr. Agcaoili, a consulting physician.
Following an evaluation of Bourbon's medical records for a state agency, Dr. Agcaoili completed a Disability Determination and Transmittal form, in which he stated that Bourbon had met the criteria to establish a depressive syndrome under § 12.04(A), but that Bourbon did not meet the criteria necessary to establish a functional limitation under § 12.04(B). (See Tr. at 186-95.) Further, Dr. Agcaoili opined that, although Bourbon's impairment was severe, it was not expected to last twelve months. (See Tr. at 183.) In sum, Dr. Agcaoili recommended that Bourbon's application, to the extent it was based on mental impairments, be denied. (See id.)
Specifically, Dr. Agcaoili classified Bourbon's degree of limitation under § 12.04(B)(1)-(3) as "slight," "slight" and "seldom," respectively, while leaving the degree of limitation for § 12.04(B)(4) unmarked. (See Tr. at 194.) See supra, footnote 3, for a discussion of §§ 12.04(A) and 12.04(B).
Bourbon argues that the ALJ erred by failing to address Dr. Agcaoili's opinion that Bourbon "meets the Listings." (See Pl.'s Mot. at 15:1-2.) As noted, however, Dr. Agcaoili expressed no such opinion and, indeed, offered an opinion to the contrary.
To the extent Bourbon argues that Dr. Agcaoili's ultimate recommendation was incorrect based on Dr. Agcaoili's findings, Bourbon's argument is not persuasive. Bourbon relies on Dr. Agcaoili's opinion that, as of May 1998, Bourbon likely would have "slight" restrictions on daily living activities and "slight" difficulties in maintaining social functioning, and, would "seldom" have deficiencies of concentration.(See Tr. at 194.) According to Bourbon, "[i]f they will be slight by May 1998, then they must be more than slight in June 15 1997 when the document was prepared." (See Pl.'s Mot. at 15:4-6.) Bourbon, however, fails to point to any observations or findings by Dr. Agcaoili to suggest that Dr. Agcaoili was of the unstated opinion that Bourbon's mental impairments caused severe functional limitations as of June 1997.
Accordingly, the ALJ did not err when he failed to construe Dr. Agcaoili's unfavorable opinion as actually being favorable to Bourbon.
4. Examining Psychologist Dr. Robinson
Bourbon argues that the ALJ erred by rejecting the opinion of an examining psychologist, Richard A. Robinson, PhD. ("Dr. Robinson"), that Bourbon suffered from a listed impairment.
At the request of his attorney, Bourbon met with Dr. Robinson on October 30, 1997 for a psychological evaluation, which lasted 5.67 hours. (See Tr. at 236.) Based on his review of Bourbon's history and the results of the psychological tests he conducted, Dr. Robinson concluded that Bourbon retained the ability to successfully understand simple instructions and to carry out and remember those instructions. (See Tr. at 246-247.) Dr. Robinson also concluded that Bourbon would not respond appropriately to co-workers, supervisors, the general public and to usual work situations, and could not deal with changes in a routine work setting. (See Tr. at 247.) Based on those findings, Dr. Robinson opined that 5 of the 7 factors under § 12.04(A) were met, that all of the factors under § 12.04(B) were met, and that, therefore, Bourbon suffered from an Affective Disorder, a listed impairment. (See id.)
The ALJ rejected Dr. Robinson's opinion that Bourbon's mental impairment met or equaled the listed impairment of an Affective Disorder, on the ground that the conclusion was inconsistent with Dr. Robinson's own findings. As the ALJ noted, although Dr. Robinson ultimately concluded that Bourbon had frequent" limitations on his abilities to concentrate and to complete tasks in a timely manner, that conclusion was inconsistent with Dr. Robinson's finding that Bourbon would have no difficulty performing simple repetitive tasks and that his intellectual functioning was average. (See Tr. at 22, 241, 246-47.) Further, although Dr. Robinson concluded that Bourbon had "repeated" episodes of "deterioration or decompensation" in work settings that would cause Bourbon to withdraw from the situation or experience exacerbation of his symptoms, (see Tr. at 247), the ALJ noted the absence of any findings in Dr. Robinson's report to support that conclusion (see Tr. at 22), and Bourbon points to none on appeal. Lastly, with respect to Dr. Robinson's conclusion that Bourbon has a "marked" restriction of his daily activities, the ALJ found such conclusion unsupported by Dr. Robinson's description of Bourbon's daily activities, which included caring for his school-age daughter, preparing meals, watching television, playing guitar, walking, and reading. (See Tr. at 239.) Dr. Robinson did not describe any daily activities in which Bourbon was markedly restricted as a result of depression. (See id.)
Dr. Robinson is not a treating physician and did not offer an uncontradicted opinion. (See, e.g., Tr. at 183, 194, 226.) Even where a treating physician has offered an uncontradicted opinion, however, an ALJ may properly reject that opinion if it is contradicted by findings made by that same physician. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995) (holding ALJ properly rejected uncontradicted opinion of treating physician that claimant was totally disabled where physician also opined that claimant needed only "program of conservative care");see also Knight v. Chater, 55 F.3d 309, 314 (7th Cir. 1995) (holding ALJ properly rejected uncontradicted opinion of treating physician where conclusion was internally inconsistent with treatment notes). Here, the ALJ articulated sufficient reasons for rejecting Dr. Robinson's opinion that Bourbon was disabled, namely, that the bases of that opinion were contradicted by findings within Dr. Robinson's report.
Accordingly, the ALJ did not err in rejecting Dr. Robinson's opinion.
C. Credibility
Bourbon argues that the ALJ erred in finding Bourbon's daily activities supported the conclusion that Bourbon was not disabled. The ALJ made such a finding as part of his overall determination of Bourbon's credibility.
An ALJ cannot reject a claimant's subjective testimony "without making findings sufficiently specific to permit the reviewing court to conclude that the ALJ did not arbitrarily discredit the claimant's testimony." See Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1994). Among the factors the ALJ may consider in making a credibility determination include the claimant's "ability to perform household chores, the lack of side effects from prescribed medications, and the unexplained absence of treatment for excessive pain." See id.
As noted, Bourbon's claim of disability is predicated on allegations of depression and back pain. At the hearing, Bourbon testified that he is "always angry, frustrated, stressed," (see Tr. at 43), and that his back pain is "constant." (See Tr. at 39.) Bourbon reported to his physical therapist that he could not find relief in any position, that his maximum sitting, standing, and walking time is 5 minutes for each of those activities, and that on a scale 1 to 10, his back pain was 10/10. (See Tr. at 274.) ln addition, Bourbon told the SSA that his depression and anger interfere with everything he does, and that sometimes he spends as much as three straight days in bed. (See Tr. at 202, 204.) The ALJ found Bourbon was not credible to the extent Bourbon relied on such statements to prove he could not perform simple, repetitive tasks that required no contact with the public. (See Tr. at 23.)
The ALJ relied on Bourbon's daily activities as a ground for finding that Bourbon's depression and back pain did not preclude him from working. (See Tr. at 23-24.) The ALJ described Bourbon's daily activities as follows:
On a typical day, [Bourbon] arises at 6:00 AM and awakens his daughter, supervises her school preparation, returns home and depending on the day may return to bed, walk around the block, watch television or perform housework, he usually discusses his daughter's school day when she returns from school and helps her with her homework, cooks dinner for the two of them most evenings, and enforces "quiet time' after dinner during which time he may read to his daughter, watch television, or play guitar. In addition, he has consistently reported that he performs various household chores on a daily basis such as cooking, shopping, cleaning, and driving. Finally, the [ALJ] notes that the claimant is the single parent and sole caretaker of his disabled, 12-year-old daughter.
Bourbon does not contend that the ALJ'S factual findings concerning Bourbon's daily activities are unsupported by the record.
The ALJ concluded that the above-referenced daily activities were not inconsistent with a finding that Bourbon could perform sedentary work activity, specifically, simple repetitive tasks that did not require contact with the general public. (See id.) This specific finding for discrediting Bourbon's statements concerning the extent of his depression and back pain is sufficient. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (noting that "if, despite his claims of pain, a claimant is able to perform household chores and other activities that involve many of the same physical tasks as a particular type of job, it would not be farfetched for an ALJ to conclude that the claimant's pain does not prevent the claimant from working").
Additionally, the ALJ provided other reasons for declining to fully credit Bourbon's subjective testimony and statements. With respect to Bourbon's depression, the ALJ stated that Bourbon had yet to receive the full benefit of anti-depressants because those medications had only been prescribed "on an irregular basis." (See Tr. at 24.) The ALJ, relying on Dr. Lampe's opinion that Bourbon's depression should resolve within a two to four-month period of aggressive and adequate treatment, observed that Bourbon had received only periodic antidepressant prescriptions from Dr. Williams, who was not a specialist in mental health and who had not referred Bourbon to a psychiatrist. (See Tr. at 20, 24.) The lack of aggressive treatment, the ALJ reasoned, indicated that Bourbon's depression is not of a severe and debilitating nature. (See Tr. at 24.) With respect to Bourbon's back impairment, the ALJ relied on the fact that Bourbon had not required frequent medical treatment for back pain, had never been hospitalized for back pain, and had never been referred by his treating physician for surgical consultation or for "extensive conservative treatment." (See Tr. at 23.) With the exception of one or two sessions with a physical therapist, the only treatment that Bourbon had received for his back pain was a prescription for Percocet and Soma. (See id.) Bourbon has failed to directly address these aspects of the ALJ'S credibility findings. In any event, the ALJ'S statement of 8 reasons for discrediting Bourbon's statements is sufficient. See Orteza, 50 F.3d at 750 (holding ALJ is allowed to consider the lack of side effects from prescribed medications and "the unexplained absence of treatment for excessive pain").
As noted, Bourbon does argue, for the first time in his reply, that he does not have access to psychiatric care in his county of residence. An ALJ may not base an adverse credibility finding on the failure to obtain treatment where the claimant provides evidence of "a good reason" for the failure to obtain treatment. See Fair, 885 F.2d at 602. No such evidence was offered to either the ALJ or to the Appeals Board, and, for the reasons discussed above, the evidence presented to this Court is insufficient to warrant remand.
Accordingly, the ALJ did not err by not affording full credibility to Bourbon's subjective testimony.
D. Social Security Ruling 85-15
Lastly, Bourbon argues that the ALJ erred at step five of the sequential disability analysis by failing to consider Social Security policy statement 85-15 ("SSR 85-15").
SSR 85-15 "supplements regulations providing the manner in which the Secretary will evaluate disability claims when the claimant suffers only 'nonexertional' impairments." See Roberts v. Shalala, 66 F.3d 179, 183 (9th Cir. 1995). Where a claimant has both nonexertional impairments, such as mental impairments, and exertional impairments, such as limited abilities to sit, stand, walk or lift, SSR 85-15 is inapplicable. See id. Here, Bourbon claims both nonexertional and exertional impairments, and the ALJ found that both types of impairments exist. (See Tr. at 26 (finding Bourbon limited to repetitive tasks that do not involve contact with the public, and that Bourbon cannot lift and carry more than 10 pounds)).
Accordingly, SSR 85-15 is inapplicable to the instant action and the ALJ did not err by failing to consider it.
CONCLUSION
For the reasons stated above:
1. Plaintiffs motion for summary judgment is hereby DENIED.
2. Defendant's cross-motion for summary judgement is hereby GRANTED and the decision of the Commissioner is hereby AFFIRMED.
The Clerk shall close the file and terminate all pending motions.