Tracy Gregory v. Michael J. Astrue, No. 2:2008cv07439 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. See document for details. (yb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 TRACY GREGORY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ____________________________________ ) Case No. CV08-07439 AJW MEMORANDUM OF DECISION 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff s application for disability insurance 20 benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect to each 21 disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. 24 [See JS 2]. Plaintiff alleges that she became disabled on March 23, 2004 due to asthma and breathing 25 problems, depression, and anxiety. [JS 3; Administrative Record ( AR ) 46-47]. In a written hearing 26 decision that constitutes the Commissioner s final decision in this case, an Administrative Law Judge 27 ( ALJ ) concluded that plaintiff was not disabled because she retained the residual functional capacity 28 ( RFC ) to perform her skilled, light past relevant work as a medical assistant. [JS 2; AR 32-35]. In the 1 alternative, based on the testimony of a vocational expert and Rules 202.21 and 201.28 of the Medical- 2 Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the grids ), the ALJ found that 3 plaintiff s RFC did not preclude her from performing unskilled sedentary or light jobs that exist in 4 significant numbers in the national economy. [AR 35]. 5 Standard of Review 6 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 7 evidence or is based on legal error. Stout v. Comm r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 8 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 9 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 10 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 12 required to review the record as a whole and to consider evidence detracting from the decision as well as 13 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 14 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 15 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 16 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 17 Discussion 18 Medical opinion evidence 19 Plaintiff contends that the ALJ erred in finding that plaintiff had no more than mild mental functional 20 limitations that did not constitute a severe mental impairment. Specifically, plaintiff argues that the ALJ 21 improperly rejected the opinions of a workers compensation treating psychiatrist, Dr. Friedman, and two 22 examining physicians, Dr. Brawer and Dr. Zodkevitch, in favor of the conflicting opinion of another 23 examining psychiatrist, Dr. Greils. [See JS 8-31]. 24 In her statements to doctors and testimony, plaintiff alleged that she stopped working as a medical 25 assistant in a Kaiser Permanente sigmoidoscopy clinic due to respiratory problems, and that she was 26 diagnosed with asthma, probably exacerbated by exposure to Cidex (glutaraldehyde), a chemical solvent 27 used in a machine for sterilizing medical equipment that plaintiff routinely used and maintained as part of 28 her job duties. She alleged that she developed anxiety and depression due to her concerns about her past 2 1 exposure to Cidex and phobias about possible present or future exposure to other chemical irritants. [See 2 AR 18-22, 46-47, 370, 405-408, 462-464, 501, 564-565]. 3 At step two of the sequential evaluation procedure, the ALJ found that plaintiff had no severe mental 4 impairment. [AR 14]. Although a finding of no severe mental impairment ordinarily disposes of the issue 5 of any mental functional limitations, the ALJ returned to the question of the existence and severity of a 6 mental impairment when she assessed plaintiff s RFC at step four. The ALJ analyzed the evidence of record 7 in detail and ultimately found that plaintiff had only mild mental functional limitations that no more than 8 minimally affected her ability to perform basic work activities. [AR 22-30]. Accordingly, any error in the 9 ALJ s severity finding at step two was harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 10 2007)(holding that where the ALJ failed to consider the claimant s bursitis at step two, any error was 11 harmless because he extensively considered that impairment at step four)(citing Stout, 454 F.3d at 12 1054)(recognizing that harmless error applies in the social security context)). 13 Dr. Friedman 14 David L. Friedman, M.D., evaluated plaintiff in connection with her workers compensation 15 examination case in June 2004 and July 2005. Plaintiff was seen by other providers in his office for 16 medication management and group therapy from July 2005 through November 2005. [AR 249-268, 271- 17 274, 276-292]. During his initial evaluation in June 2004, Dr. Friedman elicited a history, reviewed 18 available medical records, administered psychological testing, and conducted a mental status examination. 19 [AR 276-294]. Dr. Friedman diagnosed plaintiff with anxiety disorder, not otherwise specified ( NOS ). 20 He explained that plaintiff had developed a mixed picture of anxiety and depression, best characterized as 21 Anxiety Disorder NOS , as an emotional response to concerns over the extent and impact of pulmonary 22 problems created by plaintiff s vocational exposure to Cidex. [AR 277, 290]. Dr. Friedman concluded that 23 plaintiff had been temporarily disabled since March 23, 2004, when she stopped working due to pulmonary 24 problems, and that her temporary total disability would last three to six months, or until her physical 25 condition stabilized. [AR 290-291]. He recommended cognitive behavioral therapy and medication. [AR 26 291]. Plaintiff was prescribed Prozac and responded as expected. [AR 275]. 27 Dr. Friedman issued a supplemental report in November 2004 stating that plaintiff remained 28 psychiatrically temporarily totally disabled and will remain so until [her] physical condition stabilizes. 3 1 [AR 273]. He added that he anticipates substantial permanent psychiatric disability. [AR 273]. Dr. 2 Friedman said that anti-anxiety and anti-depressant medication remained indicated, but that plaintiff s 3 desire to receive such care remains unclear. [AR 273]. 4 Dr. Friedman reevaluated plaintiff for her workers compensation case in June 2005. He elicited an 5 interim history, reviewed available medical records and plaintiff s deposition testimony, administered 6 psychological tests, and conducted a mental status examination. [AR 254-270]. Dr. Friedman remarked 7 that since beginning her initial evaluation, plaintiff had gone on several out-of-town trips ; she went to 8 Louisiana for a family reunion, to Alabama to spend a weekend with her brother for his birthday, and on 9 a cruise, which she loved, to Puerto Rico, Aruba, and several other places with her mother. [AR 254-255]. 10 Dr. Friedman noted the continued presence of anxiety and depression due to the limitations and concerns 11 created by her pulmonary disease. [AR 265]. His diagnosis of anxiety disorder NOS was unchanged. He 12 rated her condition permanent and stationary beginning on April 7, 2005, with psychiatric disability in 13 the range of slight to moderate . . . . [AR 267]. Dr. Friedman opined that plaintiff was slightly impaired 14 in the ability to comprehend and follow instructions, perform simple and repetitive tasks, perform complex 15 or varied tasks, relate to others beyond giving and receiving instructions, and make generalizations, 16 evaluations, or decisions without immediate supervision. She was slightly to moderately impaired in the 17 ability to maintain work pace appropriate to a given work load, influence people, accept and carry out 18 responsibility for direction, control, and planning. [AR 268]. Progress reports dated from July 14, 2005 19 through November 30, 2005 indicate that plaintiff had benefitted from cognitive behavioral therapy and 20 reported reduced symptomatology. [AR 249-253]. 21 At the request of plaintiff s social security disability attorney, Dr. Friedman completed a 22 Psychiatric/Psychological Impairment Questionnaire dated May 8, 2006. [AR 549-556]. He listed 23 plaintiff s diagnosis as anxiety disorder NOS. In all 20 work-related functional abilities Dr. Friedman was 24 asked to rate, he rated plaintiff as markedly limited, which was defined as effectively precludes the 25 individual from performing the activity in a meaningful manner. [AR 552-554]. 26 The vocational expert testified that a hypothetical person of plaintiff s age, education, and work 27 experience with the physical limitations found by the ALJ and the mental functional limitations described 28 by Dr. Friedman in his June 2005 permanent and stationary report could not perform plaintiff s skilled past 4 1 relevant work as a medical assistant, but could perform unskilled sedentary or light jobs. The vocational 2 expert further testified that the hypothetical person could perform no work with the limitations spelled out 3 by Dr. Friedman in his May 2006 questionnaire. [AR 65, 70-71, 73]. 4 A treating physician s opinion is not binding on the Commissioner with respect to the existence of 5 an impairment or the ultimate issue of disability. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 6 2001). Where, however, a treating physician's medical opinion as to the nature and severity of an 7 individual's impairment is well-supported and not inconsistent with other substantial evidence in the record, 8 that opinion is entitled to controlling weight. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); 9 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see 20 C.F.R. §§ 404.1527(d)(2), 10 416.927(d)(2); Social Security Ruling ("SSR") 96-2p, 1996 WL 374188, at *1-*2. Even when not entitled 11 to controlling weight, treating source medical opinions are still entitled to deference and must be weighed 12 in light of (1) the length of the treatment relationship; (2) the frequency of examination; (3) the nature and 13 extent of the treatment relationship; (4) the supportability of the diagnosis; (5) consistency with other 14 evidence in the record; and (6) the area of specialization. Edlund, 253 F.3d at 1157 & n.6 (quoting SSR 96- 15 2p and citing 20 C.F.R. § 404.1527); Holohan, 246 F.3d at 1202. 16 If a treating source opinion is uncontroverted, the ALJ must provide clear and convincing reasons, 17 supported by substantial evidence in the record, for rejecting an uncontroverted treating source opinion. If 18 contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific 19 and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm r of Soc. Sec. 20 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1148-1149; Lester v. Chater, 81 F.3d 21 821, 830-831 (9th Cir. 1995). The opinion of a nonexamining physician cannot by itself constitute 22 substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating 23 physician. Lester, 81 F.3d at 831. 24 To support her finding that plaintiff did not have more than mild mental functional limitations that 25 did not restrict her RFC, the ALJ relied primarily on the opinion of Howard M. Greils, M.D., who performed 26 a psychiatric Workers Compensation Qualified Medical Examination on June 3, 2004. [AR 639-717]. Dr. 27 Greils spent between five and six hours on the evaluation, which entailed obtaining a history, administering 28 psychological tests, and conducting a mental status examination. In a supplemental report dated April 11, 5 1 2005, Dr. Greils reviewed and summarized numerous medical records from Dr. Friedman and others, as well 2 as plaintiff s deposition testimony. [AR 639-658]. Dr. Greils opined that plaintiff had no psychiatric 3 impairment. [AR 657]. The ALJ relied on that assessment. She also relied on a detailed critique of Dr. 4 Friedman s June 2004 examination report undertaken by Dr. Greils in his April 2005 supplemental report. 5 The ALJ noted that Dr. Greils disagreed with Dr. Friedman s findings and conclusions. [AR 24, 6 654]. Dr. Greils wrote that when he examined plaintiff a week before Dr. Friedman s evaluation, her mental 7 status examination was completely within normal limits, her mood was euthymic, and signs of depression 8 and anxiety were absent. [AR 24, 654]. Dr. Greils said that his psychological testing did not reflect 9 psychopathology consistent with a psychiatric diagnosis. In addition, plaintiff described no widespread 10 impairments in her ability to function from a psychiatric perspective. She had good rapport with family 11 friends. She reported leading an active social life, including outings to football games, regular church 12 attendance, and all of the usual family functions. Plaintiff was psychiatrically capable of doing household 13 chores, running errands, and caring for her children. [See AR 24, 264]. Dr. Greils noted that plaintiff was 14 angry and upset about not having been informed regarding the risks of exposure to Cidex, but anger is 15 not a mental disorder or psychiatric illness. [AR 24, 654]. Plaintiff s reaction never reached a threshold 16 indicative of any psychiatric diagnosis or mental condition. [AR 25, 654]. 17 The ALJ also summarized what Dr. Greils described as flaws in [Dr. Friedman s] evaluation 18 procedures and in his reasoning. [AR 654; see AR 24-25]. First, Dr. Greils noted that the validity scores 19 on the Minnesota Multiphasic Personality Inventory 2 ( MMPI-2 ) test administered by Dr. Friedman 20 indicated evidence of faking bad, leading Dr. Greils to conclude that Dr. Friedman s diagnosis was 21 based on an exaggeration of symptoms. 1 [AR 24, 654]. The only scales that were elevated on the MMPI-2 22 were hypochondriasis and hysteria, which can be interpreted to indicate an overly dramatic presentation 23 of symptoms. [AR 654; see AR 24]. Dr. Friedman said that plaintiff s scores on the hypochondriasis scale 24 25 26 27 28 1 In the context of the MMPI test, faking bad means to exaggerate one s symptoms and consequently appear more pathological than is really the case. Bryan v. Singletary, 140 F.3d 1354, 1360 n.11 (11th Cir. 1998)(per curiam). Dr. Friedman stated that plaintiff s F minus K value (18) might be construed as evidence of faking it bad, given that she has been suffering from as asthmatic condition which has continued to worsen, this might more likely represent a cry for help. [AR 288]. 6 1 were consistent with a complaining, pessimistic outlook. [AR 24, 654]. Dr. Greils noted that a 2 complaining, pessimistic outlook does not indicate that there is a mental disorder, but does point to a 3 situation where an exaggerated or overly dramatic presentation of symptomatology would be present. [AR 4 24-25, 654]. The remaining tests administered by Dr. Friedman were subjective self-report measures that 5 lack validity checks, and evidence of plaintiff s exaggeration on the MMPI-2 also calls into question the 6 reliability of those subjective measures, which are transparent to the examinee and easily subject to 7 exaggeration of symptoms. [AR 25, 654]. Dr. Greils concluded that plaintiff s scores on the tests 8 conducted by Dr. Friedman reflect an exaggerated, overly dramatized report of symptoms and complaints, 9 not a cry for help, the interpretation offered by Dr. Friedman. [AR 22-25, 288, 654]. Dr. Greils also 10 pointed out that the sentence completion test showed themes of frustration and anger, but not themes of 11 anxiety, and he reiterated that frustration and anger are reasonable [emotional] responses to plaintiff s 12 chemical exposure at work, and are not indicative of a diagnosable mental disorder or psychiatric 13 disability. [AR 655; see AR 25]. 14 Second, Dr. Greils said that Dr. Friedman engaged in flawed reasoning with respect to the report of 15 the agreed medical examiner, Dr. Reynolds, who concluded that plaintiff s pulmonary problems were 16 industrial in causation. [AR 655]. Dr. Friedman wrote that Dr. Reynolds s opinion clearly supports the 17 contention that [plaintiff] is temporarily totally disabled from a psychiatric standpoint, but Dr. Greils 18 characterized that as an unreasonable reading of Dr. Reynolds s report. [AR 655; see AR 25]. Dr. Greils 19 asserted that the conclusions of an internist regarding causation of an internal medical condition had no 20 bearing on the presence or causation of a psychiatric disability. [AR 25, 655]. Moreover, Dr. Greils noted 21 that plaintiff s asthma appeared to be mild. While he deferred conclusions regarding plaintiff s respiratory 22 condition to appropriate specialists, Dr. Greils pointed out that plaintiff testified that she rarely had asthma 23 attacks and had been found only temporarily partially disabled due to respiratory problems. Thus, the 24 agreed medical examiner s report did not persuasively support Dr. Friedman s opinion regarding the 25 severity of plaintiff s emotional impairment. [AR 25, 657]. 26 Third, Dr. Greils took issue with Dr. Friedman s prediction of substantial psychiatric permanent 27 disability. Dr. Greils said that even if plaintiff had a diagnosis of anxiety disorder NOS, a point Dr. Greils 28 did not concede, it is a relatively mild diagnosis with a good prognosis, and thus was not predictive of 7 1 any permanent psychiatric disability, let alone a substantial one. [AR 655; see AR 25]. See Sample v. 2 Schweiker, 694 F.2d 639, 642-643 (9th Cir. 1982) (noting that the existence of a diagnosed emotional 3 disorder is not per se disabling, and that there must be proof of the impairment's disabling severity ). 4 That observation is consistent with Dr. Friedman s initial evaluation report, wherein he anticipate[d] that 5 the instant temporary disability will last 3-6 months or until the physical condition stabilizes. [AR 291]. 6 Dr. Greils emphasized that his evaluation of plaintiff led him to conclude that she had no psychiatric 7 diagnosis or disability. [AR 655]. 8 Fourth, Dr. Greils pointed to testimony from plaintiff s deposition in her workers compensation 9 case that contradicted plaintiff s allegations of disability and supported his opinion that plaintiff did not have 10 any diagnosable psychiatric disorder. [AR 25, 647-653, 655]. Specifically, Dr. Greils noted that: 11 (i) plaintiff testified that she could return to work at the family practice clinic, but not to her former 12 position at the sigmoid clinic, because the family practice clinic would not require her to work with 13 the chemical that caused her respiratory injury [AR 25, 649, 655]; 14 (ii) 15 16 plaintiff testified that she could not got back to working around that chemical, Cidex, but she could do the rest of her usual job duties and still be effective as a medical assistant [AR 25, 652, 656]; (iii) asked to define depression, plaintiff said it means feeling just low, just sad, just down, feelings 17 that Dr. Greils characterized as within the normal spectrum of emotions rather than as indicative 18 of a psychiatric disorder [AR 25, 651, 656]; 19 (iv) 20 plaintiff said that the only activities she can no longer participate in are those, such as bike-riding, that require physical exertion and may cause shortness of breath [AR 25, 651, 656]; 21 (v) plaintiff did not identify any activities precluded by mood or anxiety symptoms [AR 25, 651, 656]; 22 (vi) plaintiff testified that she was enrolled at community college, where she was taking a math class 23 towards her R. N. degree, and that she went to school two to three times a week for two to three 24 hours [AR 25, 648-649, 656]; and 25 (vii) 26 Dr. Greils observed that the criteria in the DSM-IV for a psychiatric disorder require that there be 27 significant impairment in social or occupational functioning, and that there is nothing in [plaintiff s] 28 testimony that indicates that she has psychiatric or psychological symptoms of the level of severity that plaintiff testified that she did all of the care taking of her children [AR 25, 650, 656]. 8 1 impair either social or occupational functioning. [AR 656]. 2 Fifth, Dr. Greils cited plaintiff s deposition testimony undermining the credibility of her statement 3 to him that she was experiencing panic attacks whenever I enter a medical office. [AR 656]. For example, 4 she testified that after her alleged initial panic attack, she had not had another that was severe like that 5 and said I didn t actually go into an attack, and she exhibited no signs of panic or anxiety when visiting 6 his office in a medical building [AR 650, 657]. 7 Sixth, in response to plaintiff s testimony that a physician had diagnosed her with Post Traumatic 8 Stress Syndrome, Dr. Greils commented that while he had not been provided with those records for review, 9 plaintiff did not even come close to meeting the extensive and stringent DSM-IV criteria for this severe 10 disorder. [AR 25, 657]. 11 The ALJ articulated additional valid reasons for rejecting Dr. Friedman s assessments. She noted 12 that she was not bound by Dr. Friedman s workers compensation disability opinion, and that his workers 13 compensation disability rating is not equivalent to the RFC used for social security disability purposes. 14 While the ALJ cannot disregard a physician s opinion merely because it is rendered in a workers 15 compensation case, the ALJ was correct that a permanent and stationary workers compensation disability 16 rating does not necessarily mean that the individual is disabled for social security disability purposes. That 17 is borne out by the vocational expert s testimony that plaintiff would have no problem performing unskilled 18 work with the limitations described by Dr. Friedman in his June 2005 workers compensation permanent 19 and stationary report.2 20 The ALJ also questioned whether Dr. Friedman assessed plaintiff s RFC with sufficient specificity, 21 but even if Dr. Friedman did so, the ALJ pointed to other weaknesses in Dr. Friedman s assessments. She 22 noted that Dr. Friedman relied heavily on subjective complaints and subjective assessment measures, the 23 credibility of which were undermined by discrepancies and inconsistent statements in the record. For 24 example, plaintiff asserted that she had disabling anxiety about leaving the house or entering medical office 25 buildings and other places where she might be exposed to fumes, gases, and other emissions that could 26 27 28 2 Dr. Friedman s May 2006 report, which portrayed plaintiff as more severely impaired than his earlier assessments, was not prepared for use in plaintiff s workers compensation case, but rather at the request of plaintiff s social security disability attorney. [See AR 549-556]. 9 1 aggravate her respiratory problems. Nonetheless, plaintiff reported that she frequently attended doctors 2 appointments, she flew on airplanes and traveled on a cruise ship without incident, she engaged in a variety 3 of normal daily activities, including caring for her children, performing household chores, shopping, and 4 family outings, and she was able to attend college classes two or three times a week during her alleged 5 period of disability.3 [See AR 16, 23, 28-29, 31, 255-257, 260]. The ALJ also cited the unexplained 6 inconsistency that existed between plaintiff s near-normal mental status examination and Dr. Friedman s 7 assertion that she was significantly impaired or disabled by anxiety. [AR 28]. In addition, the ALJ 8 permissibly declined to give weight to Dr. Friedman s May 2006 questionnaire, which was prepared solely 9 for the purpose of obtaining social security benefits and reflected much more severe symptoms than his 10 workers compensation reports, without any contemporaneous clinical evidence or findings supporting a 11 material deterioration in plaintiff s mental functioning.4 [AR 29, 549-556]. 12 The ALJ s reasons for rejecting Dr. Friedman s opinions in favor of the conflicting opinion of Dr. 13 Greils were specific, legitimate, and based on substantial evidence in the record. See Batson, 359 F.3d at 14 1195 (stating that an ALJ need not accept a doctor s opinion that is unsupported by the record as a whole 15 or by objective medical findings, and holding that the ALJ did not err in giving minimal evidentiary 16 weight to two treating physicians opinions that were contradicted by a consultative examiner s opinion); 17 Morgan, 169 F.3d at 602-603 (stating that internal inconsistencies can constitute relevant evidence to 18 support rejection of a treating physician s opinion, and that a disability opinion premised to a large extent 19 upon the claimant s own accounts of his symptoms and limitations may be disregarded where those 20 complaints have been properly discounted )(quoting Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989); 21 cf. Matthews v. Shalala, 10 F.3d 678, 680-681 (9th Cir. 1993) (concluding that the ALJ properly rejected 22 23 24 25 26 27 28 3 Plaintiff does not challenge the ALJ s adverse credibility finding. 4 Even if the ALJ erred in rejecting Dr. Friedman s June 2005 workers compensation permanent and stationary report, the vocational expert testified that the hypothetical person described by the ALJ with the mental limitations described in that report could perform unskilled light or sedentary jobs. Based on that testimony and the grids, the ALJ made an alternative finding at step five that plaintiff could perform other sedentary or light unskilled work. Therefore, the ALJ committed reversible error only if she improperly rejected Dr. Friedman s May 2006 assessment, which would preclude performance of plaintiff s past relevant work and alternative work. 10 1 the claimant s subjective complaints based, in part, on the claimant s ability to attend school three days a 2 week and to perform housecleaning, light gardening, and shopping). Dr. Greils s opinion, which was based 3 on independent clinical findings, including a mental status examination and psychological testing, 4 constituted substantial evidence supporting the ALJ s finding that plaintiff did not have a severe mental 5 impairment. Dr. Brawer and Dr. Zodkevitch 6 The ALJ did not err in evaluating the opinions of Stephen I. Brawer, Ph.D. and Rod Zodkevitch, 7 M.D. As examining physicians, their opinions were not entitled to greater weight than that of Dr. Greils. 8 Dr. Brawer , the Commissioner s consultative examining psychologist, examined plaintiff in March 9 2006. He obtained a history, conducted a mental status examination, and administered several psychological 10 tests. [AR 25-26, 369-375]. Unlike Dr. Greils, he did not review any records. [AR 370]. Dr. Brawer 11 described plaintiff as a sub-optimal historian. Based on her clinical presentation and test results, Dr. 12 Brawer s impression was (1) anxiety disorders, with indications of phobia and panic attacks, related to 13 anxiety over exposure to toxic chemicals, and (2) depressive disorder, secondary to general medical 14 condition. [AR 374]. Dr. Brawer concluded that plaintiff could perform simple, repetitive tasks and some 15 detailed, varied, or complex tasks. Her ability to sustain attention and concentration for extended periods 16 of time may be mildly diminished, due to emotional factors. [AR 374]. During testing, plaintiff exhibited 17 adequate to mildly diminished attention, concentration, persistence, and pace in completing tasks. Dr. 18 Brawer opined that plaintiff may have a mild impairment in managing customary work stresses and 19 persisting for a regular work day. She could follow a routine and organize herself for basic tasks. 20 However, given her anxiety, dysphoria and physical complaints, [plaintiff] may experience difficulty 21 sustaining the necessary stamina for full-time employment in the competitive work force. The appropriate 22 medical specialist should evaluate the effects of any physical limitations upon work functioning. [AR 374]. 23 Plaintiff appeared capable of working independently, sustaining cooperative relationships with coworkers 24 and supervisors, relating in an appropriate manner with authority figures, and managing her own funds. [AR 25 374]. 26 Even though he diagnosed plaintiff with anxiety and depression, Dr. Brawer still concluded that 27 plaintiff had, at most, mildly diminished mental functioning. [AR 374]. He suggested that she may 28 experience difficulty having the stamina for a full-time job due to a combination of mental and physical 11 1 limitations, but he deferred a conclusion about her physical limitations to the appropriate specialist. [AR 2 374 (italics added)]. The ALJ permissibly discounted the subjective symptoms that plaintiff related to Dr. 3 Brawer in light of the record as a whole. [See AR 30 (noting that the record did not corroborate the 4 subjective limitations that plaintiff reported to Dr. Brawer)]. Therefore, the ALJ did not err in evaluating 5 Dr. Brawer s opinion. 6 In October 2007, plaintiff was referred to Dr. Zodkevitch for an examination by her social security 7 disability attorney. [AR 50, 522-539]. Dr. Zodkevitch elicited a history, conducted a mental status 8 examination, reviewed medical records, and administered one test, the Beck Depression Inventory. His 9 diagnosis was major depressive disorder, severe, without psychotic features; panic disorder with 10 agoraphobia; and psychological factors affecting medical condition. [AR 529]. He concluded that plaintiff 11 was totally disabled from a psychiatric standpoint, unable to perform basic work duties, unable to 12 concentrate, unable to relate to people, and unable to carry on a personal relationship with others. [AR 529- 13 530]. On a checklist, he rated her as moderately limited ( significantly affects but does not preclude the 14 individual s ability to perform the activity ) or markedly limited ( effectively precludes the individual from 15 performing the activity in a meaningful manner ) in 16 out of 20 work-related functional abilities, including 16 the ability to remember and carry out one- or two-step instructions and the ability to perform activities 17 within a schedule, maintain regular attendance, and be punctual within customary tolerance. [AR 534-537]. 18 The ALJ permissibly rejected Dr. Zodkevitch s examining source opinion as inconsistent with the 19 record as a whole, including Dr. Greils s conflicting examining source opinion, and because Dr. Zodkevitch 20 gave too much weight to plaintiff s properly discounted subjective symptoms and limitations. See Brawner 21 v. Sec y of Health & Human Services, 839 F.2d 432, 433-434 (9th Cir. 1988) (per curiam) (stating that 22 medical conclusions are entitled to less weight to the extent that they rely on the claimant s properly 23 discounted subjective history). 24 25 26 27 28 12 1 2 Conclusion For the reasons stated above, the Commissioner s decision is supported by substantial evidence and 3 reflects application of the proper legal standards. Accordingly, defendant s decision is affirmed. 4 IT IS SO ORDERED. 5 6 7 8 March 19, 2010 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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