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United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TRACY WINTERS ROGERS,

Plaintiff,

 v.

MICHAEL J. ASTRUE, Commissioner of Social

Security

Defendant. /

No. C 09-02573 SI

ORDER GRANTING DEFENDANT’S

CROSS MOTION FOR SUMMARY

JUDGMENT AND DENYING

PLAINTIFF’S MOTION FOR SUMMARY

JUDGMENT

Plaintiff Tracy Rogers filed this action seeking review of a decision to deny her Supplemental

Security Income (“SSI”) benefits by the Social Security Administration (“SSA”). The parties have filed

cross-motions for summary judgment. Having considered the parties’ papers and the administrative

record, the Court hereby DENIES plaintiff’s motion for summary judgment and GRANTS defendant’s

motion for summary judgment.

BACKGROUND

I. Factual Background

At the time of her application, plaintiff was a 44 year old Caucasian woman. Administrative

Record (“AR”) at 25. Her physical health problems include hepatitis C, cirrhosis of the liver, and

abdominal pain related to ulcers or recurring urinary tract infections. Id. at. 20-21, 400. Plaintiff does

not have a high school diploma and quit school in 9th grade when she had her first child. Id. at 44. She

has a history of psychological problems that she attributes to the fact that when plaintiff was 16 years

old, her mother shot her father six times, which paralyzed and later killed her father. Id. at 400.

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In a third party report submitted to the Administrative Law Judge (“ALJ”), plaintiff’s

grandmother wrote that plaintiff “cleans [the] house, takes shower, gets ready for the day, gets daughter

ready for school, and makes breakfast for me and granddaughter, waits till neighbor picks granddaughter

to go to school then she goes to the methadone clinic and then comes home.” Id. at 113.

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Additionally, plaintiff has a history of addiction to heroin, which she described as a $100/day habit. Id.

at 39. From the ages of 17 to 45, plaintiff testified that she has been in prison almost every year for

crimes that she describes as “mostly shoplifting” to fund her heroin habit. Id. at 38-39. While in prison,

she continued to use heroin, and was released on parole eight months prior to her SSI application.

Plaintiff has a limited work history, working last at a thrift shop in 2000 before being terminated

for providing a “discount” on merchandise to family. Id. at 37. Prior to that, plaintiff worked at

Mervyn’s Warehouse and then “did window blinds.” Id. at 35. She attributes her limited work history

to the fact that “[m]y whole life, I’ve been in prison really.” Id.

Plaintiff lives with her grandmother and granddaughter. Her daughter was in jail at the time of

plaintiff’s SSI application, and was scheduled to be released in June 2007. In her ordinary day, plaintiff

wakes up at 5am, takes a shower, puts on her makeup, gets her granddaughter ready for school and then

takes her to school. Id. at 42. Afterwards, she takes care of her grandmother, feeding her things like

applesauce and providing water. Id. Her grandmother recently got out of the hospital and has limited

mobility. Id. Plaintiff testified that caring for her grandmother is “really, really hard.” Id. At the end

of her day, plaintiff picks up her granddaughter from school, and then brings her home. Id. at 44. Later,

plaintiff makes “hot dogs or something for dinner.” Id. During the day, plaintiff concedes that she does

“housekeeping, vacuuming, [and] laundry” but that such activities are a “strain on my health” and that

“[t]he house is a never ending thing and there’s always something to do.”1

 Id. Plaintiff does not believe

she will go back to work anytime soon. Id.

Several medical experts reviewed plaintiff’s psychological and physical health. Dr. Ranald

Bruce concluded that “Ms. Rogers has some depression but it is not clear it is serious or disabling.”

Id. at 209. Additionally, her “[l]imited adjustment and history of substance abuse and incarceration

suggest personality disorder.” Id. Although the IQ test administered by Dr. Bruce revealed plaintiff had

an IQ of 64, he determined that her “[t]esting was compromised and actual intellectual memory abilities

are probably in the low average range.” Accordingly, he concluded that plaintiff:

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. . . could carry out simple, detailed and complex instructions in an average work setting.

She could have problems cooperating with workers due to personality disorder. She has

no psychological limitations in the areas of common daily activities or in social

relationships. She should not have problems with concentration and attention in an

average work setting. She could have problems with persistence and pace due to fatigue

related to Hepatitis C.

Id. at 209-210. Additionally, he concluded that she has “adequate arithmetic skills to conduct simple

monetary transactions.” Id. at 210.

Plaintiff’s own medical expert, Dr. Michael Wolfe, found that plaintiff scored a 71 on the IQ test.

AR at 401. In Dr. Wolfe’s tests, plaintiff showed an ability to retain information in the 4th percentile.

Id. at 403. In contrast to Dr. Bruce, Dr. Wolfe determined that plaintiff’s “performance did not suggest

malingering” or exaggeration of symptoms. Id. Accordingly, he found that she had borderline

intellectual ability, difficulty shifting her mental focus, and an impaired ability to learn new information.

Id. at 405. Additionally, Dr. Wolfe stated that plaintiff showed signs of depression and anxiety, and has

limited resources for coping with ordinary stresses and demands of everyday life. Id. Thus, plaintiff “is

likely to act in ways that are surprisingly inappropriate for the situation and exhibit poor impulse control

and bad judgment.” Id.

When the ALJ questioned the vocational expert, he asked about the skill level of plaintiff’s past

work. Id. at 50. The vocational expert replied that when she functioned as a clothes hanger, it was

unskilled and light labor, and while as a cashier she was semiskilled, pointing to Dictionary of

Occupational Titles (“DOT”) 299.677-010. Id. The ALJ then provided two hypotheticals to the

vocational expert based on the following assumptions: (1) assume a person “can have no more than

occasional contact with coworkers,” and (2) assume that “the person can have no more than occasional

interaction with supervisors or the general public and cannot understand, remember or carry out detailed

or complex instructions.” Id. at 51, 53. As to the first hypothetical, the vocational expert suggested jobs

like an unarmed night watchman (or alarm security guard, gate guard, lobby guard), DOT 372.667-030,

and an assembler, DOT 706.684-022, would be appropriate. The vocational expert asserted that such

jobs require some interaction with a supervisor but the hypothetical worker could choose whether or not

to interact with fellow employees. Id. at 52. In response to the second hypothetical, the vocational

expert stated that the new assumptions “wouldn’t change my opinion.” The ALJ did not ask the

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vocational expert any questions related to IQ and borderline intellectual ability. Finally, the ALJ applied

the five-step sequential evaluation procedure set forth under 20 C.F.R. § 416.920(a)(4). At the first step,

the ALJ found that plaintiff had not engaged in substantial gainful activity since June 22, 2005. AR at

19. Second, plaintiff has the severe impairments of opioid abuse/dependence, and personality disorder

(NOS) (probable). Id. Third, the ALJ found that the plaintiff does not have an impairment that meets

one of the listed impairments under 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 21. Fourth, the

ALJ found that plaintiff had the “residual functional capacity to perform work at any level of exertion,

but she may have no more than occasional contact with co-workers, no more than occasional interaction

with a supervisor or the general public, and she cannot understand, remember, or carry out detailed

instructions. In all other respects, claimant is not functionally limited.” Id. at 22. Fifth, the ALJ found

that the SSA met its burden in showing that plaintiff could perform other work based upon plaintiff’s

residual functioning capacity (“RFC”). In particular the ALJ found that “there are jobs that exist in

significant numbers in the national economy that the claimant can perform.” AR at 25.

II. Procedural Background

On July 7, 2005, plaintiff applied for SSI benefits under the Social Security Act. The

Commissioner denied plaintiff’s application on November 4, 2005 and upon reconsideration on March

25, 2006. Id. at 60, 68. Plaintiff requested a hearing and appeared before ALJ Steven B. Berlin on

March 7, 2007. On March 27, 2007, the ALJ denied plaintiff’s benefits claim. On June 10, 2009, after

an appeals council declined review, plaintiff filed this action for judicial review of the ALJ’s decision.

STANDARD OF REVIEW

This action comes before the Court for judicial review pursuant to 42 U.S.C. § 405(g) of the

Social Security Act. The statute authorizes judicial review “after any final decision of the

Commissioner of Social Security.” 42 U.S.C. § 405(g). The Court may conduct only a limited review

of the final decision and may disturb the decision “only if it is not supported by substantial evidence or

if it is based on legal error.” Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005) (citation and

internal quotation omitted). Substantial evidence means such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

Even if substantial evidence supports the ALJ’s factual findings, the decision must be set aside if

improper legal standards were applied in reaching that decision. See Frost v. Barnhart, 314 F.3d 359,

367 (9th Cir. 2002).

DISCUSSION

I. Substantial Evidence for RFC Conclusion

Plaintiff contends that the ALJ did not have substantial evidence to support his RFC conclusion.

The ALJ’s RFC provided that plaintiff could work at any level of exertion, but with no more than

occasional contact with coworkers, no more than occasional interaction with supervisors and the general

public, and that she cannot carry out complicated or detailed instructions. AR at 22. Plaintiff makes five

arguments: (1) the ALJ should have included the borderline intellectual ability revealed in her IQ tests

as part of the RFC determination, (2) the ALJ should have posed hypotheticals to the vocational expert

which included borderline intellectual ability, (3) the ALJ should have discounted Dr. Bruce’s opinion

that plaintiff gave a compromised effort on her IQ test, (4) the ALJ should not have given limited weight

to Dr. Wolfe’s opinion that her IQ scores showed no malingering, and (5) the ALJ failed to provide

proper credibility findings when he allegedly rejected plaintiff’s testimony without specific and

legitimate reasons. 

A. Conflicting Medical Testimony on Borderline Intellectual Functioning

Plaintiff asserts that her RFC was much lower than the ALJ’s determination, and should have

included borderline intellectual functioning with mild to moderate impairment. Plaintiff argues that

because “[t]here is no objective basis to support Dr. Bruce’s validity conclusion,” the ALJ should have

discounted Dr. Bruce’s conclusion that plaintiff provided a compromised effort on her IQ test.

Additionally, plaintiff argues that Dr. Wolfe’s test results “bolster the earlier [IQ] test results

documented by Dr. Bruce” and show that there was no malingering. Mtn. at 5. Defendant asserts that

Dr. Bruce’s opinion alone constitutes substantial evidence, and that where the ALJ is faced with

conflicting conclusions between medical experts “the ALJ had the duty to resolve the conflicts and

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determine Plaintiff’s RFC.” Opp. at 3.

It is not the function of this Court to resolve conflicts of evidence that are appropriately reserved

for the trier of fact. See Richardson v. Perales, 402 U.S. 389, 399 (1971); Tommasetti v. Astrue, 533

F.3d 1035, 1041, 1042 (9th Cir. 2008). The ALJ’s conclusions are given deference in part because the

ALJ is “the individual optimally positioned to observe and assess witness credibility.” Casias v.

Secretary of Health and Human Serv., 933 F.2d 799, 801 (10th Cir. 1991). It is within the responsibility

of the ALJ to determine “whether inconsistencies are material (or are in fact inconsistencies at all) and

whether certain factors are relevant to discount the opinions” of medical experts. Morgan v.

Commissioner of Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999). Accordingly, the trier of fact’s

conclusions are determinative so long as those conclusions are supported by substantial evidence.

Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Substantial evidence is defined as “such

relevant evidence as a reasonable mind would accept as adequate to support a conclusion.” Id. at 1230.

Here, Dr. Bruce’s medical conclusion was that plaintiff gave a compromised effort on her IQ

test, and that her actual intellectual capacity was likely in the “low average” range. AR at 209. The ALJ

discounted Dr. Wolfe’s opinion in part because “[h]e is not a treating source and was selected by the

claimant” but more importantly because “the claimant repeatedly misinformed him, especially about

her drug use.” Id. at 20. In particular, plaintiff informed Dr. Wolfe that she had been on methadone for

years and that her drug use was in the past, but only three days later at her hearing before the ALJ she

stated she had only been clean for six months with a few relapses even in that period. Id. The ALJ was

careful to state “I’m not saying that I give no weight to Dr. Wolfe’s opinion, and I will include some

of his opinion in the residual functioning capacity assessed below, but I conclude that his opinion can

only get limited weight because it relies too much on erroneous information.” Id. (emphasis added)

Additionally, the ALJ considered the plaintiff’s general credibility issues, discussed below, in

considering how to resolve the conflict in medical expert testimony. Id. at 24. Ultimately, the ALJ

accepted Dr. Bruce’s conclusion that plaintiff “gave a compromised effort on testing” and that her true

intellectual and memory abilities were “probably in the low average range.” Id.

While plaintiff does not agree with Dr. Bruce’s conclusion, that does not mean the testimony of

a medical expert should not constitute substantial evidence in this case. The ALJ evaluated the evidence

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and concluded that Dr. Bruce’s medical opinion better reflected plaintiff’s ability to perform work in

comparison to Dr. Wolfe, who was a nontreating physician selected by plaintiff. This Court finds that

there was substantial evidence to support the ALJ’s decision that plaintiff’s IQ scores were the result

of compromised effort and to discount them. 

B. Vocational Expert Hypothetical

Plaintiff also contends that because “[n]one of the hypothetical questions posed to the vocational

expert took into account [the] low IQ scores,” the “vocational expert’s testimony has absolutely no

evidentiary value,” and thus the ALJ’s reliance on the vocational expert’s testimony constituted

reversible error. Mtn. at 5. Plaintiff cites several cases which state that it is necessary for an ALJ to

pose hypotheticals related to mental limitations where borderline intellectual functioning has been

established. See, e.g., Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997) (borderline intellectual

functioning requires hypothetical question to vocational expert). Defendant contends that because the

ALJ appropriately determined that plaintiff did not have borderline intellectual functioning, those cases

are not on point and it was therefore not necessary for the ALJ to pose a hypothetical to the vocational

expert assuming mental limitations. Opp. at 5.

When questioning a vocational expert for the purposes of determining a claimant’s ability to

perform specific jobs, the ALJ must include all relevant limitations and restrictions of the particular

claimant. Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993) (citing Embrey v. Bowen, 849 F.2d

418, 422 (9th Cir. 1988)). If the hypotheticals posed to the vocational expert are based upon incorrect

assumptions, the vocational expert’s testimony lacks evidentiary value. Id. 

Here, the hypothetical questions posed to the vocational expert were based upon the limitations

the ALJ found in his residual functioning capacity determination. Having already determined that there

was substantial evidence to support the ALJ’s conclusion that plaintiff had a “low average” intellectual

capacity rather than borderline intellectual functioning, this Court finds that the ALJ appropriately

questioned the vocational expert with relevant assumptions. 

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C. ALJ’s Credibility Determination of Plaintiff

Plaintiff contends that the ALJ “failed to provide proper credibility findings” because “the ALJ

has not cited to any objectively verified evidence of malingering in the record.” Mtn. at 7. However,

the ALJ cited several reasons for discounting plaintiff’s credibility that are supported by substantial

evidence and plaintiff simply disagrees with those conclusions. Plaintiff disagrees with the ALJ’s

reasons because: (1) Dr. Wolfe’s testimony supported her subjective complaints, (2) her criminal history

is “part and parcel” of her mental impairment, and (3) her ability to perform daily activities “does not

necessarily translate into the ability to perform these functions in a work setting on a consistent basis.”

Mtn. at 8-9.

The ALJ may consider the following factors in weighing a claimant’s credibility: “the claimant’s

reputation for truthfulness; inconsistencies either in [her] allegations of limitations or between [her]

statements and conduct; daily activities and work record; and testimony from physicians and third

parties concerning the nature, severity, and effect of the alleged symptoms.” Light v. Social Sec. Admin,

119 F.3d 789, 792 (9th Cir. 1997). Where there is no affirmative evidence showing that a claimant is

malingering, “the Commissioner’s reasons for rejecting the claimant’s testimony must be ‘clear and

convincing.’” Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 

Here, the ALJ provided several pieces of evidence to support his belief that the plaintiff was not

credible beyond the three referenced by plaintiff. First, the ALJ determined that plaintiff’s past criminal

record of theft goes to credibility. AR at 24. Moreover, the ALJ questioned how plaintiff’s admission

of “petty theft” could support a $100 per day habit for 20 years. Id. Second, plaintiff admitted in her

hearing that at her previous job she was fired for stealing, which also goes to credibility. Id. Third, the

ALJ found that there were inconsistencies in her statements. For example, Dr. Wolfe was under the

impression that plaintiff “had been clean and sober now for four years.” Id. at 400. However, in her

testimony only three days later in her hearing before the ALJ, plaintiff asserted she had last used heroin

“[m]aybe like six months [ago], but it was just like once, and [then I was] back on methadone.” AR at

39. Fourth, the ALJ determined that her daily activities, both as self reported and as declared by third

parties “do not seem too debilitating” because they enable her to have some social life and occasionally

permit her to “get[] out of the house.” Id. at 24-25. Additionally, as this Court previously stated, the

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ALJ’s assessment of medical testimony as to her mental limitations was appropriately determined to be

in the “low average” range rather than “borderline intellectual functioning” range. 

The record clearly shows that the ALJ had Dr. Bruce’s conclusions to support his finding that

plaintiff gave a compromised effort on testing. This expert opinion constitutes affirmative evidence of

malingering from which the ALJ could make his factual determination. Plaintiff implies that the ALJ

should have questioned the expert opinion of Dr. Bruce simply because plaintiff’s own expert testified

plaintiff did not put forth a compromised effort on her IQ tests. However, as previously stated, the ALJ

had substantial evidence to give less weight to Dr. Wolfe’s testimony and to determine that plaintiff was

not credible. Additionally, although plaintiff asserts that her criminal history is “part and parcel” of her

disabilities, her criminal history was not the only basis for questioning her credibility. 

Accordingly, this Court GRANTS defendant’s cross motion for summary judgment, and

DENIES plaintiff’s motion for summary judgment.

CONCLUSION

For the foregoing reasons and for good cause shown, the Court hereby GRANTS defendant’s

cross motion for summary judgment and DENIES plaintiff’s motion for summary judgment. (Docket

Nos. 15 & 16).

IT IS SO ORDERED.

Dated: June 22, 2010 

SUSAN ILLSTON

United States District Judge

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