Valera Rebecca Foster v. Michael J. Astrue, No. 2:2008cv06287 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is affirmed. (See Order for Details) (rp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 VALERA REBECCA FOSTER, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 08-6287 PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her 20 applications for Disability Insurance benefits ( DIB ). 21 claims that the Administrative Law Judge ( ALJ ) erred in: 1) 22 assessing her residual functional capacity; 2) rejecting a finding 23 from a previous administrative decision that she suffered from a 24 severe mental impairment; 3) discounting her testimony; and 4) failing 25 to consider an Office of Personnel Management ( OPM ) decision 26 approving her application for disability retirement benefits. 27 Stip. at 3, 11, 14, 20.) 28 decision is supported by substantial evidence, it is affirmed. Plaintiff (Joint As explained below, because the Agency s 1 II. BACKGROUND 2 On April 27, 2006, Plaintiff protectively filed for DIB. 3 (Administrative Record ( AR ) 135-39.) 4 application. 5 hearing before an ALJ. 6 Plaintiff appeared with counsel at the hearing and testified. 7 78.) 8 (AR 14-23.) 9 review, (AR 1-4), she commenced this action. (AR 102-06.) The Agency denied the Plaintiff then requested and was granted a (AR 109, 113-19.) On January 9, 2008, (AR 33- On March 12, 2008, the ALJ issued a decision denying benefits. After the Appeals Council denied Plaintiff s request for 10 III. ANALYSIS 11 A. 12 In her first claim of error, Plaintiff challenges the ALJ s 13 residual functional capacity assessment, arguing that it did not 14 account for work-related limitations found by treating physicians 15 Vernon Williams and Drayton Graham. 16 no merit to this claim. 17 The ALJ s Residual Functional Capacity Assessment (Joint Stip. at 3-5.) There is Dr. Williams, an orthopedist who saw Plaintiff at the Kerlan-Jobe 18 Orthopaedic Clinic between August 2000 and March 2003, and for two 19 follow-up evaluations in 2006, offered diagnoses and treatment 20 recommendations that remained essentially unchanged throughout that 21 period. 22 examining Plaintiff on August 29, 2000, he noted spasm, tenderness, 23 and a decreased range of flexion and extension in Plaintiff s cervical 24 area, and also noted MRI results that showed small central disc bulges 25 and a possible small calcified extrusion in Plaintiff s cervical 26 spine. 27 disease, cervical radiculitis, lumbar strain, and cervical myofascial 28 pain. (AR 251-61, 273-80, 283-310, 312-20.) (AR 275, 278-79.) (AR 279.) After initially He diagnosed cervical degenerative joint Dr. Williams recommended physical therapy, 2 1 biobehavioral treatment, Vicodin, and myofascial ointment. (AR 2 279.) He noted that trigger point injections might be helpful. 3 280.) He made similar findings after additional examinations on May 4 10, July 16, and December 11, 2001, and February 28, 2002. 5 295, 299, 303.) (AR (AR 290, 6 On December 11, 2001, Dr. Williams noted that the biobehavioral 7 treatments had not been authorized by Plaintiff s insurance carrier, 8 and stated that I am reluctantly recommending that she have a 9 functional capacity evaluation so that she can be made permanent and 10 stationary. 11 evaluation on February 28, 2002, concluding that, [e]ssentially, 12 there is no significant interval changes from her initial evaluation. 13 (AR 302.) 14 work according to the U.S. Department of Labor standards based on an 15 eight-hour day, adding that she also complains of increase in pain 16 with prolonged sitting so that she may require frequent breaks from 17 sitting and ability to stand and stretch for three to four minutes at 18 a time, every two to three hours. 1 19 (AR 299-300.) Dr Williams conducted the functional He determined that Plaintiff would be limited to sedentary (AR 304.) Dr. Graham, an internal medicine specialist, was Plaintiff s 20 primary care physician from at least March 1997. (AR 369-72.) On May 21 9, 2000, he diagnosed her with trapezius myofascitis and tension 22 23 1 24 25 26 27 28 Dr. Williams thereafter noted no change in Plaintiff's condition in October 2002 and March 2003, though on the latter date he commented that "I felt [as of February 2002] that she had demonstrated ability to participate in sedentary work . . . . She should be able to participate in vocational rehabilitation or school/training activities." (AR 305, 308.) On April 24, 2006, Dr. Williams opined that a new functional evaluation showed that Plaintiff "is capable of sedentary work," and also that "[t]here was self-limiting behavior (due to pain) with inconsistencies on several tests." (AR 317.) 3 1 headaches. (AR 395.) In treatment records between May 2000 and 2 September 2003, Dr. Graham noted tenderness of the trapezius and 3 Plaintiff s complaints of pain, and prescribed Vicodin and Celebrex, 4 among other medications. (AR 398-99, 403-06, 408, 410.) 5 On March 9, 2006, Dr. Graham completed a physical residual 6 functional capacity assessment form, in which he noted that, from as 7 early as July 15, 1998, Plaintiff could not lift or carry any weight; 8 could stand or walk less than two hours in an eight-hour workday; 9 could sit less than six hours in an eight-hour workday; would need a 10 job that permitted shifting positions at will; would need to take 11 hourly breaks for 15 minutes during a normal workday; and would be 12 absent from work more than three times a month on average owing to 13 her impairments. 14 unable to pull with her arms without pain, could never climb, crouch, 15 kneel, or crawl, and only occasionally balance, and needed to avoid 16 breezes and cool temperatures. 17 (AR 218, 221.) He also opined that Plaintiff was (AR 219.) At the administrative hearing on January 9, 2008, medical expert 18 Dr. Stephen Gerber testified that he gave very heavy weight to the 19 opinion of Dr. Williams that Plaintiff could perform at a sedentary 20 level of activity because his notes were very detailed and because he 21 was an orthopedist. 22 Dr. Graham s more restrictive functional assessment because Dr. 23 Graham s notes were far less detailed, he had made certain 24 diagnoses, such as fibromyalgia syndrome, that were unsupported by any 25 evidence, and he was not a specialist in the relevant field. 26 58.) 27 that, as of December 2003, Plaintiff could stand and walk at least two 28 hours in an eight-hour workday, but was unlimited in her ability to (AR 56-57.) Dr. Gerber assigned less weight to (AR 57- Based on his review of the medical record, Dr. Gerber opined 4 1 sit; could lift and carry at least ten pounds; and was restricted to 2 only occasional overhead reaching and pushing and pulling using her 3 arms. (AR 58.) 4 In his decision, the ALJ determined that Plaintiff had the 5 residual functional capacity to perform sedentary work, except that 6 she could only occasionally perform postural activities, overhead 7 reaching, and pushing/pulling. 8 determination was consistent with Dr. Williams February 2002 9 functional evaluation. (AR 17.) (AR 20.) The ALJ noted that this The ALJ also noted that, according 10 to the vocational expert, Plaintiff could perform her past work as it 11 is generally performed even with the requirement that she needed to 12 stand and stretch and take frequent breaks from sitting. 13 n.1.) 14 assessment. 15 (AR 20 & The ALJ rejected Dr. Graham s residual functional capacity (AR 21.) Plaintiff argues that the ALJ s residual functional capacity 16 determination was inconsistent with Dr. Williams opinion because it 17 did not include a requirement that Plaintiff be allowed to take 18 frequent breaks from sitting and to stand and stretch every two to 19 three hours. 20 interpreted Dr. Williams restriction on frequent breaks from 21 sitting as the need for 10 minute breaks every hour, during which 22 time she would cease all work, which restriction would have 23 precluded all work, according to the testimony of the vocational 24 expert. 25 (Joint Stip. at 3.) (Joint Stip. at 4, 9.) She contends that [t]he ALJ There is no merit to this claim. The ALJ did not interpret Dr. Williams statement that Plaintiff 26 may require frequent breaks from sitting as a requirement that she 27 cease all work for ten minutes each hour. 28 vocational expert testified that a person with Plaintiff s vocational 5 At the hearing, the 1 and educational background who could do sedentary work, occasionally 2 bend, crouch, and crawl, and have the opportunity to get up for three 3 or four minutes every few hours could perform her past work. 4 72.) 5 to sedentary work who required frequent breaks from sitting could work 6 in this type of job . . . because she wouldn t be sitting all the 7 time. 8 9 (AR 71- The vocational expert also testified that an individual limited She d be [doing] different kinds of tasks. (AR 73.) The ALJ then added, I guess it also depends . . . on what you mean by frequent. If frequent means once an hour or once every five 10 minutes or ten minutes, I think that would make a difference. 11 74.) 12 sedentary job such as the one that [Plaintiff] was doing how often on 13 an hourly basis . . . would a person be allowed to have a break? 14 a break for a few minutes. 15 to be typing, would not be sitting. 16 stretching, or doing whatever. 17 responded, that would not be a problem because . . . she s not 18 required to sit continuously and she controls her own time. 19 (AR He continued, perhaps a way of phrasing would be typically in a Say By that I mean that person wouldn t have Could be changing positions, (AR 74.) The vocational expert (AR 74.) The ALJ then added, [n]ow if by break you mean the person would 20 have [to] cease all activities for ten minutes every hour that would 21 preclude the work[,] to which the expert testified, Right. 22 had to do nothing . . . just go off and lay down some place or do 23 something, that would preclude [work]. 24 administrative assistant you pretty much control your own time because 25 you do different tasks. 26 If she But in this kind of job the (AR 74-75.) In sum, it is clear that the ALJ did not interpret Dr. Williams 27 opinion to mean that Plaintiff was required to have a ten-minute break 28 every hour but, rather, that she would need a break from sitting for a 6 1 few minutes each hour and would be able to do that in her old job. 2 This was a reasonable inference to be drawn from the record. 3 Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996). 4 pointed to any medical evidence in the record that would support her 5 contention that she needed a ten-minute break every hour, during which 6 she would have to cease all activities. 7 is rejected. 8 2005) (affirming ALJ where he took into account those limitations for 9 which there was record support that did not depend on [the claimant] s 10 11 See Nor has Plaintiff For these reasons, this claim See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. subjective complaints. ) Plaintiff also contends that the ALJ did not provide specific and 12 legitimate reasons for rejecting Dr. Graham s residual functional 13 capacity assessment. 14 disagrees. 15 capacity assessment was so extreme as to be implausible. 16 Plaintiff takes issue with this finding, noting that Dr. Gerber, the 17 medical expert, also found that Plaintiff would be unable to lift or 18 carry more than ten pounds or stand and walk more than two hours in an 19 eight-hour workday. 20 ignores Dr. Graham s other findings that Plaintiff could never lift 21 anything, even if it weighed less than ten pounds; would require 22 hourly breaks for 15 minutes; would be absent from work more than 23 three times a month; could never perform any postural activities 24 other than balancing; and avoid breezes and cool temperatures, 25 limitations which were not found by any other physician and which were 26 significantly more restrictive than those found by Dr. Williams. 27 28 (Joint Stip. at 4-5.) Again, the Court The ALJ found that Dr. Graham s residual functional (Joint Stip. at 4.) (AR 21.) This argument, however, Because Dr. Graham s assessment conflicted with those of Dr. Williams and Dr. Gerber, the ALJ had to provide specific and 7 1 legitimate reasons for rejecting it. 2 (9th Cir. 2007). 3 Dr. Graham, was an orthopedic specialist. 4 opinions of specialists take priority over the opinions of non- 5 specialists. 6 Second, he found that Dr. Graham s reports were not as detailed as Dr. 7 Williams . 8 conclusory. 9 (9th Cir. 2009). He did so here. Orn v. Astrue, 495 F.3d 625, 632 He noted that Dr. Williams, unlike (AR 21.) In general, the Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). (AR 21.) An ALJ can discount a doctor s opinion that is Bray v. Comm r, Soc. Sec. Admin., 554 F.3d 1219, 1228 And third, he found that Dr. Graham appeared to base 10 his findings on Plaintiff s own subjective complaints, which the ALJ 11 discounted. 12 a doctor s opinion. 13 602 (9th Cir. 1999). 14 (AR 21.) This, too, is a legitimate reason for rejecting Morgan v. Comm'r, Soc. Sec. Admin., 169 F.3d 595, Because the ALJ s residual functional capacity assessment was 15 based on substantial evidence and was not founded on an incorrect 16 application of the law, this claim does not merit remand or reversal. 17 See Valentine v. Comm r, Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 18 2009). 19 B. 20 In her second claim of error, Plaintiff contends that the ALJ Plaintiff s Alleged Mental Impairment 21 erred in rejecting the findings regarding Plaintiff s alleged mental 22 impairment made by another ALJ in a previous decision. 23 following reasons, this claim is rejected. For the 24 The ALJ found that, because a prior ALJ s decision denying 25 benefits had not been appealed, the issue of Plaintiff s disability 26 between her alleged onset date of July 15, 1998 and the date of the 27 earlier decision (May 8, 2000) was res judicata. 28 then found that Plaintiff had rebutted the presumption of continuing 8 (AR 14.) The ALJ 1 non-disability by showing changed circumstances and, therefore, made 2 new residual functional capacity findings. 3 found that the prior determination that Plaintiff was limited to 4 semi-skilled work as a result of her alleged severe mental 5 impairments had been undermined by the longitudinal record, which 6 showed no mental health treatment between May 2000 and December 2003, 7 and concluded that Plaintiff did not suffer from any mental 8 impairment. 9 (AR 15.) The ALJ also (AR 15, 22.) Plaintiff contends that this was error because the previous ALJ 10 had found that Plaintiff had a severe psychiatric impairment that was 11 secondary to her medical condition. 12 Plaintiff argues that, because the record shows that her physical 13 condition deteriorated after the prior administrative decision of May 14 2000, it follows that her psychiatric impairment could not have 15 improved. 16 (Joint Stip. at 11.) (Joint Stip. at 11; AR 92-93). There is no basis for this argument. The ALJ s interpretation of the medical record -that the lack of 17 any diagnosis or treatment of a mental impairment in the 2000-2003 18 period showed that Plaintiff did not suffer from such an impairment, 19 (AR 15) -was a reasonable one. 20 hearing that she had been seeing a psychiatrist in 1998, but did not 21 testify about any mental health treatment after 1998. 22 did she contend in this court that she sought or received any 23 treatment after 1998. 24 did not suffer from a severe mental impairment between May 2000 and 25 December 2003 was a reasonable one and, further, because it is 26 supported by substantial evidence in the record, it is upheld. 27 Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) ( If the Plaintiff testified at the 2008 (AR 69.) Nor Because the ALJ s determination that Plaintiff 28 9 See 1 evidence is susceptible to more than one rational interpretation, the 2 court may not substitute its judgment for that of [the ALJ] ).2 3 C. Credibility Determination 4 In her third claim of error, Plaintiff contends that the ALJ 5 failed to provide specific, clear and valid reasons for finding her 6 not credible. 7 medical expert testified that her complaints were supported by 8 examination findings and test results, and that treating orthopedist 9 Dr. Williams stated that he strongly disagree[s] . . . that her (Joint Stip. at 15.) Plaintiff points out that the 10 complaints are out of proportion to her physical examination findings 11 or to her diagnostic imaging findings. 12 claim is rejected. (Joint Stip. at 15.) This 13 ALJ s are tasked with judging the credibility of witnesses. 14 making a credibility determination, an ALJ may take into account 15 ordinary credibility evaluation techniques. 16 Where, as here, a claimant has produced objective medical evidence of 17 an impairment which could reasonably be expected to produce the 18 symptoms alleged and there is no evidence of malingering, the ALJ can 19 only reject the claimant s testimony for specific, clear, and In Smolen, 80 F.3d at 1284. 20 2 21 22 23 24 25 26 27 28 The Court further observes that the previous ALJ stated that he was giving every reasonable benefit of doubt to [Plaintiff] s subjective complaints in limiting her to semi-skilled work, (AR 91), whereas the ALJ who issued the decision under review found Plaintiff not entirely credible. (AR 19-22.) Moreover, although Plaintiff contends that the previous ALJ based his decision on the opinions of treating psychologist Dr. Gary Strahle, the record shows that the ALJ gave Dr. Strahle s assessments little weight because he did not produce any treating records, his conclusions were "nothing more than recitations of [Plaintiff]'s self-reported limitations," and the second and third reports he submitted "were obviously copied from the first report, by someone whose creativity in spelling . . . is exceeded only by unorthodoxy in grammar . . . . [Dr. Strahle] obviously pays little attention to what he signs." (AR 89.) 10 1 convincing reasons. Id. at 1283-84. 2 determination, the ALJ may take into account, among other things, 3 ordinary credibility evaluation techniques and the claimant s daily 4 activities. 5 supported by substantial evidence in the record, the Court may not 6 engage in second-guessing. 7 Cir. 2002). Id. at 1284. In making a credibility If the ALJ's credibility finding is Thomas v. Barnhart, 278 F.3d 947, 959 (9th 8 The ALJ noted Plaintiff s allegations that reaching overhead 9 causes her pain, as does stooping, lifting, bending, typing, writing, 10 holding her head in one position, and reaching forward. 11 45.) 12 both arms, carry groceries, carry more than ten or fifteen pounds, do 13 more than a few minutes of chores, or drive for more than 30 minutes. 14 (AR 18, 46-48.) 15 work, but not the part that required her to lift files or folders, 16 bend, and stoop, and that she could not have done even similar work 17 eight hours a day, 40 hours a week, because of the pain she suffered. 18 (AR 18, 49-51.) (AR 18, 42- Plaintiff also alleged that she could not stretch forward with She testified that she could do some of her past 19 The ALJ concluded that Plaintiff s statements regarding the 20 effects of her alleged symptoms were not credible to the extent that 21 they were inconsistent with her residual functional capacity. 22 19.) 23 specific reasons for discounting her testimony. 24 his residual functional capacity assessment was consistent with the 25 functional evaluation made by Dr. Williams, the treating orthopedist, 26 and he also noted that Dr. Williams had repeated in March 2003 and 27 March 2006 his opinion that Plaintiff could do sedentary work. 28 20.) (AR Contrary to Plaintiff s contentions, the ALJ offered a number of First, he found that This was a legitimate basis for disbelieving Plaintiff s 11 (AR 1 subjective symptom testimony. See, e.g., Carmickle v. Comm'r, Soc. 2 Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) (affirming ALJ s 3 rejection of claimant s testimony that conflicted with contrary 4 opinion of treating doctor).3 5 Additionally, the ALJ noted that Plaintiff did not receive 6 treatment at the Kerlan-Jobe Orthopaedic Clinic between her initial 7 evaluations in 1997 and 1998, and July 2000; that she was not seen by 8 Dr. Williams between March 2003 and March 2006; and that she failed to 9 keep three appointments with Dr. Graham in 2003, and four more in 10 2004. 11 substantial evidence in the record, (AR 250-51, 311, 410-11), and is a 12 legitimate reason for discounting Plaintiff s credibility. 13 495 F.3d at 638 ( [A]n unexplained, or inadequately explained, failure 14 to seek treatment may be the basis for an adverse credibility 15 finding[.] ). 16 (AR 19, 20, 21.) This justification is supported by See Orn, Finally, the ALJ noted that the level of daily activity reported 17 by Plaintiff in a written statement was not inconsistent with his 18 finding that she could work at the sedentary level. 19 the Court is not convinced that this reason is supported by the 20 record, i.e. Plaintiff stated, for example, that she could do chores 21 for 15 minutes before needing a rest break of 15-20 minutes and that 22 she naps constantly , (AR 179), it nevertheless finds that this error 23 does not undermine the ALJ s credibility determination. (AR 22.) While See 24 3 25 26 27 28 Although, as Plaintiff contends, Dr. Williams noted in May 2001 that her complaints were not "out of proportion" to the medical evidence, (AR 291), Dr. Williams himself did not incorporate all the limitations claimed by Plaintiff in the functional capacity evaluation report he prepared in February 2002, and he continued to opine that she could perform sedentary-level work in 2003 and 2006. (AR 304, 307, 317.) 12 1 Carmickle, 533 F.3d at 1162-63 (finding that ALJ s reliance on two 2 invalid reasons supporting his adverse credibility finding was 3 harmless because substantial evidence remained to support his 4 conclusions). 5 supported by substantial evidence in the record, this claim does not 6 warrant remand or reversal. Because the ALJ s credibility determination was See id. 7 D. 8 In her fourth claim of error, Plaintiff contends that the ALJ 9 Previous Administrative Disability Determination erred by failing to address OPM s approval of her application for 10 disability retirement benefits under the Federal Employees Retirement 11 System. 12 Security Ruling ( SSR ) 06-03p, the ALJ was required to consider that 13 decision. 14 (Joint Stip. at 20.) Plaintiff argues that, under Social (Joint Stip. at 20.) This claim, too, is without merit. First and foremost, the ALJ expressly adopted the findings and 15 conclusions of the prior ALJ except for the residual functional 16 capacity analysis and mental impairment finding. 17 previous decision, the prior ALJ did not give controlling weight to 18 the OPM decision, which was issued in August 1999, (AR 500-03), and he 19 provided a number of reasons why. 20 appeal that decision and has failed to demonstrate that the second ALJ 21 was required to revisit the issue under SSR 06-03 or any other 22 authority.4 23 Cir. 2002) (finding error where the ALJ inexplicably ignored a VA 24 disability determination that was in the record). (AR 88-90.) (AR 22.) In that Plaintiff did not C.f. McCartey v. Massanari, 298 F.3d 1072, 1075-76 (9th 25 26 27 28 4 SSR 06-03p provides, in relevant part, that we are required to evaluate all the evidence in the case record that may have a bearing on our determination or decision of disability, including decisions by other governmental and nongovernmental agencies. Therefore [such evidence] cannot be ignored and must be considered. 13 1 Even assuming that the ALJ erred by not directly addressing the 2 OPM decision, any error was harmless. The previous ALJ explained in 3 some detail why OPM s determination did not bind the Agency, and why 4 it was not given controlling weight. 5 attempted to show why the previous ALJ s decision was wrong. 6 any error by the ALJ in failing to re-address the OPM decision was 7 inconsequential to the ultimate nondisability determination, it was 8 harmless. 9 Agency s decision is affirmed. (AR 88-90.) See Carmickle, 533 F.3d at 1162. Plaintiff has not For these reasons, the 10 11 IT IS SO ORDERED. 12 DATED: December 15, 2009. 13 14 15 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\FOSTER, V 6287\Memo_Opinion.wpd 14 Because
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