RALPH ZAREFSKY, Magistrate Judge.
The Court finds the first and third of Plaintiff's four arguments insufficient to overturn the Commissioner's denial of disability benefits. The pertinent parts of those Administrative Law Judge rulings were free of legal error and supported by substantial evidence. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). However, because the Court agrees in part with Plaintiff's third argument, essentially that the ALJ did not sufficiently explain his finding of no "severe" mental impairment, the Court will remand the matter without reaching Plaintiff's fourth issue.
Plaintiff argues first that the Administrative Law Judge did not supply a proper basis for discounting the medical opinions of Plaintiff's treating physician, Dr. Andrew Hesseltine, whom Plaintiff visited with complaints of pain. [AR 105-06, 152-53, 163] (Dr. Hesseltine limited Plaintiff to sitting, standing or walking for only a few minutes at a time, among other marked restrictions. [AR 591-92]) Plaintiff tellingly does not point out two things, however, about the results of Dr. Hesseltine's referral of Plaintiff to Dr. Kenneth Jordan for tests (although the ALJ relies on both). First, the results of Dr. Jordan's tests, including a nerve conduction test and a CT scan, were negative and normal [AR 169-73, 174-79, 205-08], as were other, prior test results that Plaintiff presented to Dr. Jordan [AR 174]. Second and perhaps worse for Plaintiff, Dr. Jordan did not stop at noting that "the underlying cause of Mr. Brown's lower extremity pain has not yet been determined" in light of the various normal test results. Dr. Jordan went further, expressly indicating that Plaintiff was malingering or exaggerating his symptoms. Although Dr. Jordan employed medical jargon as a euphemism of sorts, it is nonetheless a striking conclusion from the very physician to whom Dr. Hesseltine himself referred Plaintiff for tests meant to discover the organic source of the reported pain:
[AR 175 (emphasis added).] The ALJ prominently cited this aspect of Dr. Jordan's report, among others. [AR 20-21] So did the non-examining state agency physician, Dr. Kevin Gregg — fact the ALJ also noted. [AR 301, 20]. The ALJ's citations to Dr. Jordan's and Dr. Gregg's reports provide a specific and legitimate reason for discounting the opinion of Dr. Hesseltine. As the ALJ pointed out, Dr. Hesseltine substantially relied on Plaintiff's subjective accounts in reporting symptoms and ability or inability to perform various tasks. In sum, the ALJ's discounting of Dr. Hesseltine's opinion in favor of the other opinions was not error.
Plaintiff's third argument, challenging the discounting of his credibility, fails for essentially the same reasons. The ALJ properly made specific findings, stating "clear and convincing" reasons, namely the numerous negative (and uncontradicted) clinical findings by Dr. Jordan, coupled with Dr. Jordan's clear conclusion that Plaintiff was exaggerating or worse.
Plaintiff's date last insured was March 31, 2008. The ALJ found that, as of that date, Plaintiff suffered no medically determinable mental impairment. Plaintiff faults the ALJ in two essential respects. The Court agrees with both arguments, at least technically, but the second is harmless error at worst. The first requires remand.
First, Plaintiff asserts that the ALJ "failed to discuss any of the evidence" about mental issues prior to the date last insured (DLI), Mem. at 11. On the one hand, there is little pre-DLI evidence other than Plaintiff's subjective reports of various symptoms and lay self-diagnoses, such as "anxiety" and "depression." [AR 245, 219] But "severity" is a matter of work-related functions, not symptoms alone. Plaintiff correctly notes that he was prescribed Effexor in 2006 [AR 278] and Zoloft in January 2008 [AR 334], but that may indicate only that Plaintiff's mental symptoms were properly controlled. On the other hand, Plaintiff is correct that the ALJ should have discussed his reasons, based on the pre-DLI evidence (or lack thereof), for finding no severe mental impairment.
Second, Plaintiff faults the ALJ for improperly rejecting a post-DLI report by a psychologist, Dr. Kreger, as evidence of a pre-DLI severe mental impairment. The ALJ indeed gave short shrift to Dr. Kreger's June 2009 evaluation, largely a check-the-boxes affair which concluded Plaintiff suffered from depression. [AR 391-98] Perhaps this is because, in the portion of the form report calling for Dr. Kreger to "Identify the
An ALJ cannot deny benefits based on "the Grids" when a claimant has significant non-exertional limitations. See Derosiers v. Sec. of HHS, 846 F.2d 573, 577 (9th Cir. 1988). Plaintiff argues that his pain and mental impairments are non-exertional limitations that bar the ALJ's Grids-based denial. The Court must defer ruling on this argument. As noted above, remand is required to address the pre-DLI portion of Plaintiff's argument asserting an improper finding of no "severe" mental impairment, and a "severe" mental impairment is a non-exertional limitation. Thus, the remanded issue is intertwined with this (Grids use) issue.
In accordance with the foregoing, the decision of the Commissioner is reversed, and the matter is remanded for further proceedings consistent with this memorandum opinion.