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Defendant substituted pursuant to F.R.C.P. 25(d)(1) and 42 U.S.C. § 405(g). Michael J.

Astrue became Commissioner of Social Security on February 12, 2007.

REPORT AND RECOMMENDATION

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UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

SHANNON LOVETT,

)

Plaintiff, ) CASE NO. C06-724-JCC-MJB

)

v. ) REPORT AND 

) RECOMMENDATION

MICHAEL J. ASTRUE,1 )

Commissioner of Social Security, )

)

Defendant. )

_________________________________ )

Plaintiff Shannon Lovett appeals to the District Court from a final decision of the

Commissioner of the Social Security Administration (the “Commissioner”) denying her

application for Disability Insurance Benefits under Title II of the Social Security Act. 

For the reasons set forth below, it is recommended that the Commissioner’s decision be

AFFIRMED.

I. PROCEDURAL HISTORY

Plaintiff applied for Disability Insurance Benefits (“DIB”) on November 23,

1994, alleging disability since June 1, 1992, and identifying her impairments as post

traumatic stress disorder (“PTSD”) and depression as a result of being raped in 1988. 

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(Tr. 63-66, 92). The Social Security Administration denied Plaintiff’s application

initially (Tr. 72) and upon reconsideration (Tr. 84-86). A hearing was held before

Administrative Law Judge (“ALJ”) Verrell Dethloff on July 15, 1996. (Tr. 10-23, 40-

62). Plaintiff, who was represented by counsel, testified at the hearing. (Tr. 43-61). 

The ALJ issued an unfavorable decision on December 24, 1996, finding that Plaintiff

was able to perform a significant number of jobs in the state and national economies

despite her limitations, and thus, she was not under a disability at any time through the

date of the decision. (Tr. 22-23). On June 5, 1998, the Appeals Council denied

Plaintiff’s request for review, making the ALJ’s decision the final decision of the

Commissioner. (Tr. 3-4). Plaintiff appealed to the District Court, where a stipulation to

remand to the Agency for further proceedings was entered on April 12, 1999. (Tr. 398-

401).

On remand, a hearing was held before ALJ Ruperta Alexis on October 15, 1999. 

(Tr. 552-58). Plaintiff, who was represented by counsel, testified at the hearing. (Tr.

552). Dr. Freed, the Plaintiff’s treating psychiatrist, testified at trial, and a vocational

expert (“VE”) also testified. (Tr. 552). On March 15, 2000, the ALJ issued an

unfavorable decision, finding that the Plaintiff was able to perform a significant number

of jobs in the state and national economies despite her limitations, and thus, was not

under a disability at any time through the date of the decision. (Tr. 557-58). Plaintiff

requested administrative review (Tr. 563), and the Appeals Council remanded the matter

for further proceedings because a transcript of the October 1999 hearing could not be

generated. (Tr. 565). 

A third hearing was held on October 8, 2003, before ALJ Edward Nichols. (Tr.

620-59). Plaintiff, who appeared with counsel, testified (624-51), as did a VE, Robert

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Plaintiff has alleged five errors. Plaintiff’s allegations regarding Dr. Freed’s October

2003 opinion have been addressed in the first issue. Plaintiff’s allegations regarding the burden of

proof is not separately addressed because Plaintiff acknowledges that she has the burden of

proving that she has been disabled since her insured status expired. (Dkt. #10 at 7).

REPORT AND RECOMMENDATION

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Aslan. (Tr. 650-59). The ALJ issued an unfavorable decision on February 27, 2004,

finding that Plaintiff was able to perform a significant number of jobs in the state and

national economies despite her limitations, and thus, she was not under a disability at

any time through the date of the decision. (Tr. 393-95). Plaintiff requested

administrative review, but the Appeals Council declined, making this the final decision

of the Commissioner for purposes of judicial review. (Tr. 3-4). Plaintiff timely filed her

appeal with this Court.

II. THE PARTIES’ POSITIONS

Plaintiff requests that the Court reverse the Commissioner’s decision and either

remand for payment of benefits or remand for further administrative proceedings. 

Plaintiff argues that the ALJ erred by: 1) improperly rejecting the opinion of her treating

psychiatrist; 2) improperly relying on the VE’s testimony that Plaintiff could perform

semi-skilled work as a file clerk; and 3) improperly rejecting Plaintiff’s credibility.2

Defendant responds that the Commissioner’s decision should be affirmed because the

ALJ applied correct legal standards and supported his decision with substantial evidence.

III. STANDARD OF REVIEW

The Court may set aside the Commissioner’s denial of social security disability

benefits when the ALJ’s findings are based on legal error or not supported by substantial

evidence in the record as a whole. Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993). 

Substantial evidence is defined as more than a mere scintilla but less than a

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preponderance; it is such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.

1989). The ALJ is responsible for determining credibility, resolving conflicts in medical

testimony, and for resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

Cir. 1995). Where the evidence is susceptible to more than one rational interpretation, it

is the Commissioner’s conclusion which must be upheld. Sample v. Schweiker, 694 F.2d

639, 642 (9th Cir. 1982).

IV. EVALUATING DISABILITY

A claimant must establish that the current disability began on or prior to the date

last insured. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Disability is

defined as the inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment, which can be expected to result

in death, or which has lasted or can be expected to last for a continuous period of not

less than twelve months. 42 U.S.C. § 423(d)(1)(A).

The Social Security regulations set out a five-step sequential evaluation process

for determining whether claimant is disabled within the meaning of the Social Security

Act. See 20 C.F.R. § 416.920. At step one, the claimant must establish that he or she is

not engaging in any substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 

At step two, the claimant must establish that he or she has one or more medically severe

impairments or combination of impairments. If the claimant does not have a “severe”

impairment, he or she is not disabled. Id. at § (c). At step three, the Commissioner will

determine whether the claimant’s impairment meets or equals any of the listed

impairments described in the regulations. A claimant who meets one of the listings is

disabled. See id. at § (d).

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At step four, if the claimant’s impairment neither meets nor equals one of the

impairments listed in the regulations, the Commissioner evaluates the claimant’s residual

functional capacity and the physical and mental demands of the claimant’s past relevant

work. Id. at § (e). If the claimant is not able to perform his or her past relevant work,

the burden shifts to the Commissioner at step five to show that the claimant can perform

some other work that exists in significant numbers in the national economy, taking into

consideration the claimant’s residual functional capacity, age, education, and work

experience. Id. at § (f); Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999). If the

Commissioner finds the claimant is unable to perform other work, then the claimant is

found disabled.

V. SUMMARY OF THE RECORD EVIDENCE

Plaintiff was 40 years old at the time of the hearing before the ALJ. (Tr. 63, 387). 

She has obtained a Bachelor of Arts degree in Communication and in Theater (Tr. 96,

213, 387), and she previously worked as a retail salesperson, manager trainee, and

manager. (Tr. 100-02). Plaintiff last worked in June 1992. (Tr. 92). Plaintiff has been

diagnosed with depression and PTSD, which resulted from her being sexually assaulted

at work. (Tr. 134, 151, 155, 394). Other evidence relevant to Plaintiff’s claims is

incorporated into the discussion below.

VI. THE ALJ’S DECISION

The ALJ found that Plaintiff has not engaged in substantial gainful activity since

the alleged onset of her disability. (Tr. 394). He determined that Plaintiff has the

following severe impairments: PTSD and depression. (Tr. 394). The ALJ found that

these impairments do not meet or equal one of the listed impairments in Appendix 1,

Subpart P of the Regulations. (Tr. 394). 

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The ALJ determined that Plaintiff can perform work in a safe environment, with

no travel alone, and with very limited pubic or co-worker contact and little chance of

confrontation. (Tr. 394). Thus, she concluded that Plaintiff is unable to perform her

past relevant work. (Tr. 394). In reaching this conclusion, the ALJ found that Plaintiff’s

allegations regarding her limitations were not totally credible. (Tr. 394). 

At step five, the ALJ determined that Plaintiff has no exertional limitations, and

she retains the capacity to adjust to work that exists in significant numbers in the

national economy, including file clerk, light unskilled assembly worker, and medium

unskilled hand packaging worker. (Tr. 394). Therefore, the ALJ concluded that Plaintiff

was not disabled at any time through the date of the decision and is not eligible for DIB. 

(Tr. 394-95).

VII. DISCUSSION

A. ALJ’s Assessment of Treating Psychiatrist’s Opinion

Plaintiff argues that the ALJ improperly rejected her treating psychiatrist Dr.

Freed’s retrospective opinion from October 2003. The Commissioner contends that the

ALJ properly evaluated the opinion of Dr. Freed. 

Greater weight is given to the treating physician’s opinion; however, that opinion

is not necessarily conclusive of a physical condition or on the ultimate issue of

disability. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). To reject an

uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and

convincing reasons that are supported by substantial evidence. Lester v. Chater, 81 F.3d

821, 830-31 (9th Cir. 1995). If a treating or examining doctor’s opinion is contradicted

by another doctor’s opinion, an ALJ may reject it by providing specific and legitimate

reasons that are supported by substantial evidence. Id.; see also Andrews v. Shalala, 53

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F.3d 1035, 1043 (9th Cir. 1995); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). 

In this case, the ALJ must provide clear and convincing reasons for rejecting Dr. Freed’s

uncontradicted opinion.

Dr. Freed began providing psychiatric treatment to Plaintiff in 1988. (Tr. 611). 

She diagnosed Plaintiff as having PTSD and major depression. (Tr. 611). Dr. Freed’s

treatment notes from before Plaintiff’s date last insured indicated that Plaintiff’s

prognosis was good and never stated that Plaintiff could not work. (Tr. 133, 134, 139,

140, 144). In addition, Dr. Freed encouraged Plaintiff to consider several jobs, such as

drug counselor, but she later suggested a home-based job. (Tr. 195-202, 256, 391). In

fact, Dr. Freed’s notes stated that the Plaintiff had earned excellent grades in school and

was able to focus and concentrate on school assignments. (Tr. 159, 162, 273). 

In her October 2003 opinion, which is at issue here, Dr. Freed stated that the

Plaintiff cannot deal with the stress of a normal work environment, the stress placed on

her by deadlines, and the stress placed on her by dealing with co-workers and

supervisors. (Tr. 614). Acknowledging that Dr. Freed was Plaintiff’s treating physician,

the ALJ indicated that he was giving her October 2003 opinion “little value” because: 1)

Dr. Freed’s conclusions in her 2003 interrogatories are not supported by her earlier

notes; and 2) Dr. Freed encouraged the Plaintiff to attend school and work, noted

Plaintiff’s successes, and even signed off on a couple of jobs. (Tr. 391, 393).

Plaintiff first argues that it was an error of law for the ALJ to reject Dr. Freed’s

opinion because it was obtained for litigation. Indeed, in the absence of other evidence

to undermining the credibility of such a medical report, litigation is not a legitimate basis

for rejecting it. Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998); see also Lester v.

Chater, 81 F.3d 821, 832 (9th Cir. 1996). Other reasons must be given which explain

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giving less weight to the opinion. 

The ALJ stated that Dr. Freed’s notes on Plaintiff’s progress do not support the

extreme limitations identified in Dr. Freed’s 2003 interrogatories. (Tr. 391, 393). When

evaluating conflicting medical opinions, internal contradictions between a physician’s

opinion, that doctor’s notes, and observations provide clear and convincing reasons for

not relying on that doctor’s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th

Cir. 2005). This court’s review of the record shows that the ALJ accurately described

Dr. Freed’s opinions as inconsistent. During the relevant period, Dr. Freed’s notes

indicate that Plaintiff’s performance in school was excellent, Plaintiff was able to focus

and concentrate on her school assignments, Dr. Freed was hopeful that Plaintiff could

return to alternative full-time employment, and Dr. Freed actually agreed that Plaintiff

could work. (Tr. 159-62, 256-58). These notes stand in stark contrast with Dr. Freed’s

October 2003 interrogatories which state that Plaintiff cannot deal with the stress of a

normal work environment and has problems concentrating. (Tr. 614-15). Accordingly, 

the ALJ’s determination is supported by substantial evidence in the record.

The ALJ also stated that Dr. Freed “was far too general in her opinion, running a

lot together based on the current situations. ” (Tr. 393). When evaluating conflicting

medical opinions, an ALJ need not accept the opinion of a doctor if that opinion is brief,

conclusory, and inadequately supported by clinical findings. Tonapetyan v. Halter, 242

F.3d 1144, 1149 (9th Cir. 2001). The ALJ articulated the following reasons for not

accepting certain limitations on Plaintiff’s functioning that Dr. Freed identified in the

2003 interrogatories: 

Dr. Freed . . . ignored the fact that during the relevant period the claimant

married, flirted with recreational chemicals, had a child with problems

(hydrocephalus) and attended a couple of schools with good results. 

Consequently, I do not accept a total inability to accept supervisor

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criticism. Indeed, the claimant not only continued working for four years,

but also went through school for years after her cessation of work with no

difficulty, in which presumably professors and/or students challenged her

work. I also see absolutely no support for “marked” difficulties in

concentration, including Dr. Freed’s interrogatories, and this is belied by

the claimant’s excellent school work. Counsel further mentioned Dr.

Freed’s opinion that the claimant has a “marked” inability to tolerate

workplace pressures; but again, the claimant’s activities during the relevant

period belie this contention.

(Tr 393) (internal citations omitted). Careful review of Dr. Freed’s October 2003

interrogatories reveals that the ALJ’s determination that they were general and

conclusory . (Tr. 615). 

Plaintiff also argues that the ALJ misinterpreted Moore v. Comm’r of Social

Serv., 278 F.3d 920 (9th Cir. 2002). The ALJ stated that the expert testimony generated

by Dr. Freed subsequent to Lovett’s date last insured is of little relevance, citing to

Moore). However, the record reflects that the ALJ mentioned Moore in a footnote, and

he acknowledged that Moore was not specifically on point. (Tr. 393). Thus, the ALJ’s

reference to Moore was plainly not a primary reasons he rejected Dr. Freed’s 2003

interrogatories. Further, it is appropriate for an ALJ to reject a contradicted retrospective

diagnosis in light of evidence that is contemporaneous with the period in question. See

Magallanes v. Bowen, 881 F.2d 747, 754 (9th Cir. 1989). This claim of error fails.

B. File Clerk Position

Plaintiff argues that she is unable to perform work as a file clerk because she does

not have transferable skills. The Commissioner concedes that the ALJ erred in

determining that transferable skills were not an issue in the case of the filing clerk

position. However, the Commissioner asserts that the ALJ also identified two other

positions, assembler (14,902 positions in the local region) and hand packager (24,045

positions in the local region), each of which exists in significant numbers in the national

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economy. (Tr. 394, 652-53).

While this Circuit has never clearly defined the minimum jobs necessary to

constitute a “significant number,” it has found that as few as 1,000 jobs in the local area

constitutes a significant number. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.

1999) (stating that 1,000-1,500 jobs in the local area was a significant number); see also

Barker v. Sec’y of Health and Human Servs., 882 F.2d 1474, 1479 (9th Cir. 1989)

(stating that 1,266 jobs in the Los Angeles/Orange County area constituted a significant

number); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986) (stating that 3,750-

4,250 jobs was a significant number). Here, the two additional positions that the ALJ

found Plaintiff capable of performing have 38,947 positions in the local region, which

exceeds the number of jobs deemed significant in Meanel, Barker, and Martinez. Thus,

the ALJ met his burden of production at step five because the positions of assembler and

hand packager exist in significant numbers.

C. Plaintiff’s Credibility

Plaintiff argues that the ALJ erred when she stated that Plaintiff was a very

credible witness but later concluded that her testimony regarding her limitations was not

credible. If a claimant has established an underlying impairment which reasonably could

be expected to produce the alleged substantive complaints and there is no evidence of

maligning, the ALJ must provide clear and convincing reasons for rejecting the claimant’s

testimony. See Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). General findings

are insufficient, rather, the ALJ must identify what testimony is not credible and what

evidence undermines the claimant’s complaints. Dodrill v. Shalala, 12 F.3d 915, 918

(9th Cir. 1993). 

In assessing credibility, the ALJ may consider, for example: 1) ordinary techniques

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 Additionally, despite Plaintiff’s claim of not having the concentration to work 40

hours per week, she received excellent grades while attending school full-time and caring

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of credibility evaluations, such as the claimant’s reputation for lying and prior

inconsistent statements concerning symptoms; 2) unexplained or inadequately explained

failure to seek treatment or to follow a prescribed course of treatment; 3) the claimant’s

daily activities; and 4) medical evidence tending to discount the severity of subjective

claims. Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001). If a claimant

engages in numerous daily activities involving skills that could be transferred to the

workplace, the ALJ may discredit the claimant’s allegations upon making specific

findings relating to those activities. See Fair v. Bowen, 885 F.2d 597, 603 (9th Cir.

1989).

Plaintiff argues that if the ALJ stated that Plaintiff was a credible witness in the

body of her decision, she should have concluded that Plaintiff was disabled. Here, the

ALJ points out that Plaintiff’s allegations regarding her limitations are not totally credible

because they are inconsistent with her active lifestyle. (See Tr. 391, 394). For example,

the ALJ stated that during the relevant period Plaintiff cared for her child with

hydrocephalus while attending school full-time. (Tr. 391, 394). Further, the ALJ noted

that Plaintiff obtained excellent marks in her academic endeavors while caring for her

child and her husband, regularly attended church, drove a car, went shopping, went to the

movies, and took aerobics classes. (Tr. 391). Thus, the ALJ concluded that Plaintiff

should be able to perform some low-level jobs provided by the VE. (Tr. 391). A

plaintiff’s ability to take care of her personal needs, prepare meals, do light housework,

and shop for some groceries may be seen as inconsistent with the presence of a condition

which would preclude all work activity.3

 See Curry v. Sullivan, 925 F.2d 1127, 1130 (9th

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for a child with disabilities. (Emphasis added). (Tr. 631-34, 649). 

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Cir. 1990); see also Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005). Although

evidence of Plaintiff’s daily activities may also allow an interpretation more favorable to

her, the ALJ’s interpretation was rational, and we must uphold the ALJ’s decision where

the evidence is susceptible to more than one rational interpretation. See Burch v.

Barnhart, 400 F.3d 676, 680-81 (9th Cir. 2005); Magallanes v. Bowen, 881 F.2d 747, 750

(9th Cir. 1989). Accordingly, the ALJ has provided several clear and convincing

examples of Plaintiff’s active lifestyle that contradict her description of her limitations

Plaintiff next argues that the ALJ’s credibility finding is unreviewable based 

Peterson v. Chater, 96 F.3d 1015 (7th Cir. 1996). In Peterson, the court reversed an

ALJ’s decision because it concluded that the ALJ had rendered conflicting findings that

the Plaintiff could perform sedentary work, yet the Plaintiff was not capable of working

in a job that required prolonged sitting, standing, and walking. Id. at 1016. In this case,

however, no such conflict exists. Here the ALJ stated that he did not find Plaintiff’s

allegations regarding her limitations totally credible in his formal findings, and he

explained his credibility determination in the body of the decision by describing the

inconsistencies between Plaintiff’s alleged limitations and her active lifestyle. This is not

error and thus distinguishable from Peterson. (Tr. 391-94). Accordingly, the Court

concludes that Plaintiff’s claim of error is without legal support.

//

//

//

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VIII. CONCLUSION

The Commissioner’s determination to deny Plaintiff Disability Insurance Benefits

is free of legal error and supported by substantial evidence. Based on the record

evidence, the undersigned recommends that the Commissioner’s decision be AFFIRMED. 

A proposed Order accompanies this Report and Recommendation.

DATED this 16th day of February, 2007.

AMONICA J. BENTON

United States Magistrate Judge

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