Opinion
No. CIV S-06-2530 GGH.
February 28, 2008
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter judgment for the Commissioner.
The case is before the undersigned pursuant to 28 U.S.C. § 636(c) (consent to proceed before a magistrate judge).
BACKGROUND
Plaintiff, born June 18, 1969, applied on January 5, 2004 for disability benefits, with a protective filing date of December 15, 2003. (Tr. at 70, 73, 29.) Plaintiff alleged she was unable to work due to schizoaffective disorder, obsessive compulsive disorder, paranoia, poor memory, and anxiety disorder. (Tr. at 144.)
In a decision dated October 26, 2005, ALJ James M. Mitchell determined plaintiff was not disabled. The ALJ made the following findings:
1. The claimant meets the nondisability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
3. The claimant's a [sic] schizoaffective disorder, an obsessive-compulsive disorder, and a cannabis induced anxiety disorder are considered "severe" based on the requirements in the Regulations 20 CFR §§ 404.1520(c) and 416.920(c).
4. These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision.
6. The claimant has the residual functional capacity to lift/carry 20 pounds occasionally and 10 pounds frequently. She can sit/stand/walk for 6 hours in an 8 hour workday. She experiences a slight to moderate level of pain. She has a slight limitation in her ability to pay attention and concentrate and a slight limitation in her ability to understand and remember. She should have limited contact with the public. She has the ability to work with only occasional supervision. She retains the understanding, memory, sustained concentration, persistence, social interaction, and adaptation to perform simple, routine, repetitive tasks.
7. The claimant's past relevant work as file clerk did not require the performance of work-related activities precluded by her residual functional capacity ( 20 CFR §§ 404.1565 and 416.965).
8. The claimant's medically determinable schizoaffective disorder, obsessive-compulsive disorder, and cannabis induced anxiety disorder do not prevent the claimant from performing her past relevant work.
9. The claimant is a "younger individual between the ages of 18 and 44" ( 20 CFR §§ 404.1563 and 416.963).
10. The claimant has "more than a high school (or high school equivalent) education" ( 20 CFR §§ 404.1564 and 416.964).
11. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case ( 20 CFR §§ 404.1568 and 416.968).
12. The claimant has the residual functional capacity to perform a significant range of light work ( 20 CFR §§ 404.1567 and 416.967).
13. In the alternative, using Medical-Vocational Rule 202.21 as a framework for decision-making, there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include work as a fast food worker, with 23,500 jobs in the State of California.
14. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision ( 20 CFR §§ 404.1520(g) and 416.920(g)).
Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in part, as an "inability to engage in any substantial gainful activity" due to "a medically determinable physical or mental impairment. . . ." 42 U.S.C. §§ 423(d)(1)(a) 1382c(a)(3)(A). A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:
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.Lester v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n. 5, 107 S. Ct. at 2294 n. 5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.
(Tr. at 35-36.)
ISSUES PRESENTED
Plaintiff has raised the following issues: A. Whether the ALJ Erred in Concluding that Plaintiff's Past Work as File Clerk Constituted Past Relevant Work; B. Whether the Vocational Expert's Testimony Fails to Support the ALJ's Finding that Plaintiff Can Work as a File Clerk or Fast Food Worker; and C. Whether the ALJ Failed to Properly Evaluate Plaintiff's Subjective Complaints.
LEGAL STANDARDS
ANALYSIS
42 U.S.C. § 405Tackett v. Apfel180 F.3d 10941097Saelee v. Chater94 F.3d 520521Richardson v. Perales402 U.S. 38940291 S. Ct. 1420Consolidated Edison Co. v. N.L.R.B.305 U.S. 197229 59 S. Ct. 206 Edlund v. Massanari253 F.3d 11521156Thomas v. Barnhart278 F.3d 947954 Whether the ALJ Erred in Concluding that Plaintiff's Past Work as File Clerk Constituted Past Relevant Work
Plaintiff contends that the ALJ erred in finding that her past work as file clerk qualified as substantial gainful activity because she only performed it for about three months. "`Substantial gainful activity' is: . . . work activity that `involves doing significant physical or mental activities' on a full or part-time basis, and is the `kind of work usually done for pay or profit, whether or not a profit is realized.'" 20 C.F.R. §§ 416.972(a) (b). Byington v. Chater, 76 F.3d 246, 248 (9th Cir. 1995) citing Katz v. Sec. HHS, 972 F.2d 290, 292 (9th Cir. 1990).
The concept of substantial gainful activity involves the amount of compensation and the substantiality and gainfulness of the activity itself. 20 C.F.R. § 404.1532(b); Chicager v. Califano, 574 F.2d 161, 163 (3d Cir. 1978). The mere existence of earnings over the statutory minimum is not dispositive. Chicager, 574 F.2d at 163. However, there is a presumption of substantial gainful employment if the applicant earns over the amount specified in the guidelines. 20 C.F.R. §§ 404.1574(b)(2), 404.1575(b)(2); Josefowicz v. Heckler, 811 F.2d 1352, 1356 (10th Cir. 1987). The claimant may rebut a presumption based on earnings with evidence of his inability to be self-employed or to perform the job well, without special assistance, or for only brief periods of time. Anderson v. Heckler, 726 F.2d 455, 456 (8th Cir. 1984).Keyes v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990).
In this case, the ALJ found that plaintiff could do her past relevant work as a file clerk based on the vocational expert's testimony that she could do this work either as she had performed it, or as it was performed in the national economy. (Tr. at 33.) Plaintiff disagrees that these jobs constitute substantial gainful activity because her earnings did not reach SGA levels and because the work was sporadic in lasting only about three months through a temporary agency.
It is true that sporadic substantial gainful activity during the period of alleged disability might permit ignoring of the abortive work. See Gatliff v. Commissioner of Social Sec. Admin., 172 F.3d 690, 692 (9th Cir. 1999). In Gatliff, the court found that two months was not a significant period of time and that eleven months is a significant period. Id. at 694, 693.
Clearly, plaintiff's work as file clerk did not last long enough to be considered a significant period. (Tr. at 110.)
Plaintiff completed a work history report stating that she performed this job from June, 2001 to September, 2001, but other records indicate plaintiff worked for Kelly Services for the same period of time in 2000. (Id. at 76.)
Assuming arguendo that this work lasted long enough to be significant, it still did not earn enough to qualify as substantial gainful activity. No one disputes that plaintiff earned $1,810.25 for approximately three months of work as a file clerk, most likely in 2000. (Tr. at 76.) Her earnings were therefore $603.42 per month. This amount indicates she is well below the dollar limit that will create a presumption of substantial gainful employment. See 20 C.F.R. §§ 404.1574(b)(2) 416.974(b)) (more than $700.00/month for years July, 1999 through December, 2000, are earnings that ordinarily show substantial gainful activity).
Both the longevity of this job and its earnings indicate there is no presumption of SGA. Defendant argues against permitting plaintiff raising this issue at this late date, when she had counsel throughout the proceedings and failed to object to the ALJ's characterization of the file clerk job as past relevant work. Objection on these grounds would have made no difference to the outcome as the ALJ found in the alternative that plaintiff could perform other work at step five. See discussion infra. Remand is not required on this basis for the same reason, and any error by the ALJ was harmless. An error which has no effect on the ultimate decision is harmless. Curry v. Sullivan, 925 F.2d 1127, 1121 (9th Cir. 1990).
B. Hypothetical to Vocational Expert
Plaintiff asserts that the hypothetical to the vocational expert failed to support the ALJ's finding that plaintiff can work as a file clerk or fast food worker.
Hypothetical questions posed to a vocational expert must include all the substantial, supported physical and mental functional limitations of the particular claimant. Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995); see Light v. Social Sec. Admin., 119 F.3d 789, 793 (9th Cir. 1997). If a hypothetical does not reflect all the functional limitations, the expert's testimony as to available jobs in the national economy has no evidentiary value. DeLorme v. Sullivan, 924 F.2d 841, 850 (9th Cir. 1991). But see Thomas v. Barnhart, 278 F.3d 947 (9th Cir. 2002) (approving hypothetical directing VE to credit specific testimony which VE had just heard); Matthews v. Shalala, 10 F.3d 678 (9th Cir. 1993) (failing to include all limitations in a hypothetical may be harmless error if the ALJ's conclusions are supported by other reliable evidence). While the ALJ may pose to the expert a range of hypothetical questions, based on alternate interpretations of the evidence, substantial evidence must support the hypothetical which ultimately serves as the basis for the ALJ's determination. Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).
Similarly, "[t]he ALJ is not bound to accept as true the restrictions presented in a hypothetical question propounded by a claimant's counsel." Magallanes v. Bowen, 881 F.2d 747, 756 (9th Cir. 1989). The ALJ is free to accept them if they are supported by substantial evidence or reject them if they are not. Id. at 756-757.
The file clerk job, although not constituting substantial gainful activity for purposes of determining whether it qualified as past work, is analyzed differently under step five. At the hearing, the vocational expert testified that plaintiff can do this job. He testified that the file clerk job did not involve heavy personal interaction. (Tr. at 283.) Further, it fit within the hypothetical posed to the expert which was light work with the following restrictions:
She is slightly limited in attention, concentration, understanding, and memory. Vision, hearing, reaching, fine and gross manipulative abilities are intact and unlimited. She is slightly limited in the ability to do a simple routine repetitive task, environmentally, no restrictions. She would be limited in contact with the public to six hours or less per shift, would require only occasional supervision and have a physical pain level described as light to moderate.
(Tr. at 283.).
The VE's testimony is clear in permitting plaintiff to do this past work. The question of substantial gainful activity is important at step five in order to determine whether there exist significant numbers of jobs in the national economy. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). It is presumed that if this job has been selected by the VE that it is considered substantial and gainful employment. The reasons why this work did not reach SGA levels at step four do not apply here. Plaintiff would be doing this job long term and would earn more if she were not working at a temporary employment agency as she did previously.
The above-mentioned hypothetical was relied upon by the ALJ to determine plaintiff could do the job of file clerk and fast food worker. The VE testified that she could be a file clerk and a fast food worker, but in regard to this latter job, about half of the previously stated 47,000 jobs would be eliminated due to these aforementioned limitations. (Id. at 282-83.)
Plaintiff argues that this hypothetical to the expert was not complete as it did not encompass the limitation placed by the state agency medical consultant that plaintiff had moderate difficulties in maintaining concentration, persistence or pace. (Tr. at 185.) When this limitation was placed before the vocational consultant, plaintiff contends, he testified that there were no jobs plaintiff could do. (Id. at 284, 286.)
In forming his hypothetical, the ALJ gave substantial weight to the DDS opinion, yet determined that plaintiff had only a slight limitation in ability to concentrate and pay attention. (Id. at 33, 32.) The psychiatric review technique form completed by the DDS physician found that plaintiff had moderate difficulties in maintaining concentration, persistence, or pace, (id. at 185), yet the mental residual functional capacity assessment form, completed by the same physician, found that plaintiff was not significantly limited in her ability to maintain attention and concentration for extended periods. (Id. at 171.) An ALJ may properly rely upon only selected portions of a medical opinion while rejecting other parts. See, e.g., Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (ALJ's supported reliance on selected portions of conflicting opinion constitutes substantial evidence). However, such selective reliance must be consistent with the medical record as a whole. See, e.g., Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (ALJ cannot reject portion of medical report that is clearly reliable). Furthermore, the ALJ was not required to articulate reasons to explain why he relied on the portion of the opinion indicating only a slight limitation in these areas because he did not reject the opinion of the DDS doctor. "It is not necessary to agree with everything an expert witness says in order to hold that his testimony contains `substantial evidence.'" Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989), citing Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988) (citation omitted).
The ALJ's reliance on the least restrictive assessment of maintaining attention, concentration, persistence and pace is consistent with the remainder of the record. The ALJ also gave substantial weight to the opinion of Dr. Behniwal, a consulting psychiatrist, who did not specifically address plaintiff's ability to maintain concentration, persistence or pace, but opined that despite a diagnosis of schizoaffective disorder and obsessive compulsive disorder, plaintiff's problems were treatable and her likelihood of recovery within the next twelve months was fair. (Id. at 169.) In regard to her functional ability, the psychiatrist stated that she did not have any drug problems, could do simple and repetitive, as well as detailed and complex tasks, could accept instructions from supervisors and get along with coworkers and the public, could perform activities on a consistent basis without special supervision, and could maintain regular attendance and complete a normal work week. She might have difficulty, however, in handling usual workplace stress due to her depression and lack of interest. (Id. at 169.)
Plaintiff's GAF was 63 at this time. GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994) ("DSM IV"). According to the DSM IV, A GAF of 61-70 indicates "some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." DSM IV at 32.
These descriptors of plaintiff's functional capacity, although not specifically mentioning concentration, persistence or pace, are similar enough to these characteristics to permit an inference that Dr. Behniwal most likely would opine that plaintiff did not have a difficulty in these areas. Therefore, substantial evidence supports the ALJ's decision not to include this particular limitation in the hypothetical.
Plaintiff also contends that the hypothetical failed to include limited contact with the public, which would have eliminated the job of fast food worker. Pl.'s Ex. A. The description of this job in the DOT lists "significant" contact with people as a requirement. (Id.) The hypothetical as set forth above does limit plaintiff to six hours or less contact with the public. In response, the expert stated that plaintiff could only do half of the previously mentioned 47,000 fast food worker jobs. (Tr. at 283.) Plaintiff was represented by counsel at the hearing who failed to question the VE about this response. (Tr. at 286.)
The United States Dept. of Labor, Employment Training Admin., Dictionary of Occupational Titles (4th ed. 1991), ("DOT") is routinely relied on by the SSA "in determining the skill level of a claimant's past work, and in evaluating whether the claimant is able to perform other work in the national economy." Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). The DOT classifies jobs by their exertional and skill requirements. It is used by the SSA to classify jobs as skilled, unskilled, or semiskilled. (Id.) The DOT is a primary source of reliable job information for the Commissioner. 20 C.F.R. § 404.1566(d)(1).
The medical evidence of record supports this stated limitation in public contact. Dr. Behniwal specifically found that plaintiff could interact with the public without limitation. (Tr. at 169.) The DDS doctor found that plaintiff was not significantly limited in any form of social interaction, including interacting appropriately with the general public. (Id. at 172.) In regard to maintaining social functioning, which is a similar function but not as specific to the claim made by plaintiff, this DDS physician found that plaintiff was only mildly limited. (Id. at 185.) Therefore, the ALJ's limitation of six hours of interaction with the public was more protective of plaintiff's abilities than the medical evidence required.
Because the hypotheticals to the vocational expert accurately reflected plaintiff's limitations, substantial evidence supports the ALJ's finding in this regard, and his findings that plaintiff could do work as a file clerk or fast food worker.
C. Whether the ALJ Failed to Properly Evaluate Plaintiff's Subjective Complaints
Plaintiff contends that the ALJ failed to properly evaluate her complaints of pain on her ability to work.
The ALJ determines whether a disability applicant is credible, and the court defers to the ALJ who used the proper process and provided proper reasons. See, e.g., Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v. Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be supported by "a specific, cogent reason for the disbelief").
In evaluating whether subjective complaints are credible, the ALJ should first consider objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341, 344 (9th Cir. 1991) (en banc). The ALJ may not find subjective complaints incredible solely because objective medical evidence does not quantify them. Id. at 345-46. If the record contains objective medical evidence of an impairment possibly expected to cause pain, the ALJ then considers the nature of the alleged symptoms, including aggravating factors, medication, treatment, and functional restrictions. See id. at 345-47. The ALJ also may consider the applicant's: (1) reputation for truthfulness or prior inconsistent statements; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) daily activities. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-01; SSR 88-13. Work records, physician and third party testimony about nature, severity, and effect of symptoms, and inconsistencies between testimony and conduct, may also be relevant. Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). The ALJ may rely, in part, on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir. 1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177, n. 6 (9th Cir. 1990). Absent affirmative evidence demonstrating malingering, the reasons for rejecting applicant testimony must be clear and convincing. Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).
Daily activities which consume a substantial part of an applicants day are relevant. "This court has repeatedly asserted that the mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise, does not in any way detract from her credibility as to her overall disability. One does not need to be utterly incapacitated in order to be disabled." Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (quotation and citation omitted).
Although plaintiff complains that the ALJ failed to address her pain, her argument focuses on the ALJ's failure to address the side effects of her medication which are nausea and drowsiness. Plaintiff's other focus of discontent is her claim that the ALJ misstated the record in significant respects, all of which have nothing to do with pain, nausea, or drowsiness. Because plaintiff has made no argument regarding pain and none is evident in the record, the court will not address it.
The ALJ did address plaintiff's complaints of chest pains and stomach problems by rejecting them as severe impairments because plaintiff did not meet her burden to show they significantly limited her ability to work over a twelve month period. (Tr. at 31.) He noted that plaintiff did not report these problems when she filed her application and there was no evidence indicating that she ever sought treatment for them. (Id.)
In regard to side effects of medication, the ALJ is required to consider all of the factors in SSR 88-13, which includes medication and its side effects, if any. Smolen v. Chater, 80 F.3d 1273, 1284 n. 8 (9th Cir. 1996). Here, the ALJ specifically noted, albeit not in his credibility analysis, that plaintiff reported her response to medications was good, and that they helped her. (Tr. at 31-32.) This finding is supported by the record. For example, on August 28, 2003, plaintiff stated that the medications were helping. She did not report any side effects, but stated that she slept well at night. (Id. at 199.) On March 5, 2004, plaintiff reported that "I am feeling good. My meds are working great. My mood is improved." Her only side effect at that time was drowsiness, but plaintiff stated that she preferred it to the symptoms she had been having before. (Id. at 195.) "Drowsiness often accompanies the taking of medication, and it should not be viewed as disabling unless the record references serious functional limitations." Burns v. Barnhart, 312 F.3d 113, 131 (3d Cir. 2002). Further, allegations of side effects from medication must be specific and clinically supported. Miller v. Heckler, 770 F.2d 845 (9th Cir. 1985). Plaintiff's references to the record include only one visit where plaintiff complained of "mild nausea," and the aforementioned isolated report of drowsiness, which disadavantage plaintiff preferred in comparison to the symptoms she had experienced previously. (Tr. at 195, 197.) Here, the ALJ did consider plaintiff's medications, but was not required to address her side effects as they were de minimus.
In regard to the ALJ's alleged misstatements of the record, the ALJ found her testimony and other statements inconsistent with the medical record. He analyzed plaintiff's credibility by noting plaintiff's report to Dr. Behniwal that she attends college, socializes with friends, reads books, and does other daily activities. (Id. at 32.) "She arrived on time for her mental health appointments, went shopping, ate out and attended movies occasionally, socialized with friends, read novels/magazines every day and did drawings. She left home every day by either walking or riding public transportation." (Id. at 33.)
The ALJ also noted that in seeking mental health treatment, plaintiff gave inconsistent reports regarding her drug use. (Id. at 32.) Plaintiff has variously stated that she has not used drugs in years, and that she last used drugs eight months ago.See tr. at 156 (smokes marijuana as of July 24, 2002), 211 (smoked marijuana two months prior to February 18, 2003), 208 (not using drugs on March 10, 2003), 269-70 (addicted to marijuana for one year but quit eight months prior to May 16, 2005 hearing), 167 (denied any current or past drug abuse on April 24, 2004). The ALJ also explained that when plaintiff received regular treatment and was compliant, her mental health improved. (Id. at 33.) Further, although plaintiff claimed she had problems with anxiety, concentration, memory, keeping schedules, social situations, relating to others and following instructions, she had attended college in 2003 and 2004. (Id.) Further, plaintiff denied any college education. (Id.) The ALJ added that plaintiff sought mental health treatment on an as needed basis only, and her depressive episodes did not last for twelve months. Other than one time in January, 2003, plaintiff's GAF score was 60 and above. Finally, the ALJ thought plaintiff's testimony at hearing was exaggerated and her candor was only fair. (Id.)
Defendant mischaracterizes the record by referring to a statement in a report, "never smokes marijuana," when in actuality the record states, "alcohol — Never; Smokes Marijuana." Def.'s Mot. at 9. (Tr. at 156.)
All of these reasons are supported by the record. In regard to her claim that the ALJ has misstated the record, she first contends that the ALJ incorrectly stated that plaintiff reported she had no college education, when her hearing testimony was that plaintiff had tried to go to college, but had not been able to finish a semester. (Id. at 251.) In fact, plaintiff testified:
Q And have you had any college or university?
A I try to go to college, and I can never seem to finish a semester.
Q So, you've had none?
A Right. I've completed none.
(Tr. at 251.)
Whether or not plaintiff had a college education is not relevant (but never finishing a semester is equivalent to no education). Rather, the fact that she attended college indicates that her impairments were not disabling as she was able to function in this setting for purposes of work. The fact that she did not complete coursework and failed a class is not important to the ALJ's analysis. What is important is that she was able to relate to the public while attending college, kept a schedule, and adapted to this type of social situation. The fact that she got a B in French, and a B in drama after she retook it, are pertinent to her ability to work, and that she is not disabled as she claims. See tr. at 230, 246. Plaintiff also took various dance classes which she also completed and passed, evidencing her activity and interaction with others. (Id. at 246.)
Plaintiff further alleges that the ALJ misstated the record when he noted that she only obtained mental health treatment "as needed." In fact, plaintiff testified to this effect as the ALJ also noted. Plaintiff testified that she saw Dr. Javeed for about two years, about "every six months and then in between if I needed to." (Tr. at 268-69.) The ALJ's statement was not a mischaracterization of her testimony. Plaintiff claims she was seen 24 times over a period from February 18, 2003 through September, 2004, which approximates to more than once a month, citing tr. 190-212. Plaintiff may be correct, however, she claims disability since August 15, 2002, despite treatment records showing regular visits only between February, 2003 and September, 2004. (Tr. at 94.) Many of these records indicate that plaintiff was doing well with medications which were improving her condition. (Tr. at 212, 208, 201, 199, 196, 195, 191.) On February 2, 2003, plaintiff's affect was cheerful. Memory was intact, and judgment was good. (Id. at 197.) On March 5, 2004, after plaintiff reported she was feeling good, the medication was working, and her mood was improved, the practitioner noted that plaintiff was verbally responsive, pleasant, cooperative, coherent, and had good cognitive processes, and good memory, concentration, judgment, and insight. (Id. at 195.) Similar notes were repeated on other visits. (Id. at 194, 197.) Further, as pointed out by defendant, plaintiff reported on March 10, 2003, that she was working full time on a temp job as a teacher's aide, and "does a better job at it than `normal' people." (Id. at 208.) This statement was made despite plaintiff's alleged onset of disability on August 15, 2002.
Plaintiff also claims that the ALJ improperly summarized her GAF scores as 60 or higher except for January, 2003. She asserts correctly that her score was also 50 in June, 2003. (Tr. at 201.) The ALJ will not be faulted for failing to mention one other low GAF score. The majority of GAF scores are more reflective of plaintiff's overall condition, and they are consistently much higher. For example, on April 24, 2004, plaintiff's GAF score was 63. (Id. at 169.) On February 2, 2003, plaintiff's GAF was 70, and her GAF in the past year was reported to be 65. (Tr. at 197.) On October 1, 2003, plaintiff's GAF was 65 and her GAF in the past year was 60. (Tr. at 198.)
Plaintiff's final argument with respect to the credibility analysis is the ALJ's interpretation of her daily activities which she claims he misstated. She points to her testimony wherein she stated she goes shopping once a week, but that she needs her social worker with her when she shops, which the ALJ failed to mention. (Id. at 33, 263.) Contrary to the ALJ's statement that plaintiff goes to movies occasionally, she stated in her daily activities questionnaire that she only goes to movies or to a restaurant every three to four months, and only when invited by "one of my trusted family members." (Id. at 121.) In this report, plaintiff points out that she stated that she is less able to cope with social situations and is more and more afraid of people generally. (Id.) Although plaintiff concedes that she reads daily, she stated that the record reflects that she only remembers "bits and pieces," and has to "keep looking at the writing to jog my memory." (Id. at 120.)
All of these references by plaintiff are to statements made by her in support of her disability applications. Although plaintiff reported distractions, fear, and loss of concentration in some of her activities, Dr. Behniwal's assessment was that plaintiff socializes with her friends, related well to himself and his staff, was able to concentrate and read a book, and can perform her daily activities in a timely manner. (Id. at 167.) Plaintiff regularly checked in for her medical appointments on time. (Tr. at 191-95, 197-98.) In addition to the testimony mentioned above, plaintiff also testified that she does all kinds of chores around the house on a regular basis, including sweeping, vacuuming, dusting, laundry, cleaning bathrooms, shopping, and making the bed. (Id. at 263-64.) She also visits friends or family at least once a day, and goes for a walk twice a day. (Id. at 264.) She also attends Narcotics Anonymous meetings once a week due to previous addiction to marijuana for a year. (Id. at 269.) These other references in the record tend to refute plaintiff's own statements in support of her disability claim. An ALJ may disregard a claimant's self-serving statements if they are not supported by the objective evidence. Hudson v. Bowen, 849 F.2d 433, 434 (9th Cir. 1988). The ALJ is accorded great weight in his determination of credibility. Id. See also Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). Furthermore, this court gives deference to the ALJ's assessment of plaintiff's testimony, and he opined that it appeared to be exaggerated and that her candor was only fair. (Tr. at 33.) "Credibility determinations are the province of the ALJ." Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). In this regard, questions of credibility and resolutions of conflicts in the testimony are functions solely of the [Commissioner]. See Yuckert v. Bowen, 841 F.2d 303, 307 (9th Cir. 1988); Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)." Morgan v. Apfel, 169 F. 3d at 599. The ALJ properly analyzed the evidence in relation to the appropriate factors required by the Bunnell line of cases.
CONCLUSION
In sum, the court finds the ALJ's assessment is fully supported by substantial evidence in the record or based on the proper legal standards. Accordingly, plaintiff's Motion for Summary Judgment is DENIED, the Commissioner's Cross Motion for Summary Judgment is GRANTED, and the Clerk is directed to enter Judgment for the Commissioner.