Armenuhi Pambukchyan v. Michael J. Astrue, No. 2:2009cv06682 - Document 18 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. (rp)
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Armenuhi Pambukchyan v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ARMENUHI PAMBUKCHYAN, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-06682-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in Dockets.Justia.com 1 failing 2 physicians (JS at 2-14; 3 2. 4 5 to give appropriate weight to the treating Whether Defendant erred in determining Plaintiff s Residual Functional Capacity (JS at 15-20); and 3. 6 Whether the ALJ erred in improperly evaluating Plaintiff s credibility (JS at 20-27). 7 8 9 10 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 11 12 I 13 THE ALJ DID NOT ERR IN ASSESSING THE OPINIONS 14 OF PLAINTIFF S VARIOUS TREATING PHYSICIANS 15 A. Procedural Background. 16 As indicated by the ALJ in his decision of September 4, 2008 (AR 17 74-85), Plaintiff has filed several prior applications for 18 Supplemental Security Income ( SSI ). 19 14, 2001 resulted in denial by an ALJ decision of March 28, 2005. 20 After proceeding unsuccessfully to the Appeals Council, Plaintiff 21 filed suit in District Court concerning that decision. 22 case, which was later adjudicated against Plaintiff, was pending, she 23 filed the application which is the subject of this lawsuit. 24 Plaintiff filed the underlying application for SSI in this case, 25 alleging an onset date of March 29, 2005, the day after the previous 26 unfavorable decision was issued. (AR 74.) Her fourth application of June While that Indeed, 27 Plaintiff takes issue with the ALJ s citation to the Ninth 28 Circuit s opinion in Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 2 1 1988). Under that case, findings made by a previous ALJ as to a 2 plaintiff s residual functional capacity ( RFC ), education, and work 3 experience will receive some res judicata consideration. 4 presumption of continuing disability may be rebutted by a claimant if 5 changed circumstances, such as a change in age category, or an 6 increase in severity of impairments, are demonstrated. 7 argues that since the last decision, she attained the age of 50, 8 therefore entering into a new age category, which has been determined 9 to constitute a changed circumstance precluding the application of res 10 judicata (JS at 13); however, Plaintiff does acknowledge that other 11 issues in the previous decision may be entitled to some res judicata 12 effect, but can be overcome with new and material evidence. (Id., 13 citing Chavez, 844 F.2d at 694.) 14 provided new and additional material evidence from her treating 15 physicians 16 impairments. which show both a A resulting Plaintiff Plaintiff believes that she has continuing and worsening of her For the reasons to be set forth, the Court disagrees. 17 18 B. Discussion. 19 In his decision, the ALJ found Plaintiff has the RFC to lift 20 and/or carry 20 pounds occasionally and 10 pounds frequently, stand 21 and/or walk for six out of eight hours; and sit for six hours in an 22 eight-hour workday. 23 imposed, and as to mental limitations, it was found that Plaintiff can 24 perform 25 supervisors and coworkers. (AR 79.) simple Certain postural and related limitations were repetitive tasks with occasional contact with 26 Plaintiff asserts error in the ALJ s diminishment of the opinions 27 of certain of her treating physicians: Dr. Ciasca (with regard to 28 mental limitations); Dr. Balian, and Dr. Maissian. 3 1 1. Dr. Balian. 2 As the ALJ noted, Plaintiff saw Dr. Balian once monthly from 3 October 2001 until June 1, 2004. (AR 83.) Although she testified that 4 she saw Dr. Balian once every two or three months, she did not see him 5 again until March 27, 2007, and after June 26, 2007, did not see him 6 again until April 23, 2008. (Id.) 7 Balian s opinion that Plaintiff can perform less than the full range 8 of sedentary work, because Dr. Balian relied on certain conditions, 9 including neck pain, knee pain and hand pain, that the ALJ found 10 Plaintiff failed to establish as medically determinable. Further, Dr. 11 Balian performed no muscle strength testing, although Plaintiff s 12 counsel argues that there is no evidence that this kind of objective 13 testing is necessary to render an opinion. The ALJ declined to accept Dr. 14 As the previous ALJ noted in his decision of March 28, 2005, Dr. 15 Balian, among other treating physicians, assessed extreme limitations 16 as to Plaintiff s ability to work, despite minimal objective findings. 17 (AR 64.) 18 which the previous ALJ found inconsistent with the entire record, and 19 therefore detracted from Dr. Balian s credibility and the weight of 20 his opinion. (Id.) Dr. Balian opined that Plaintiff was required to use a cane, 21 In the current case, Plaintiff strenuously argues that the ALJ 22 erred in finding no objective support for Dr. Balian s opinion, noting 23 that he ordered and reviewed an MRI of Plaintiff s lumbar spine in 24 July of 2007. (AR 339-40.) 25 opinion that Dr. Balian relied upon impairments which were in fact not 26 medically determinable. (AR 83-84.) Moreover, as the ALJ discussed in 27 some detail, Dr. Balian documented positive straight leg raising in 28 only the extremes of motion, a reduced range of back motion, and But, Plaintiff has not refuted the ALJ s 4 1 reduced sensation in the L5 area, in addition to what he called a 2 guarded gait. (AR at 82.) 3 the consultative examiner ( CE ), Dr. Saeid, who examined Plaintiff on 4 April 26, 2007 (AR 292-96), and reported that although there was a 5 reduced 6 bilateral straight leg raise testing. (AR 79, 295.) 7 normal range of motion in her hands (AR 78, 295), and finally, normal 8 range of motion in her knees, with no effusion or evidence of 9 instability. (AR 77-78, 295.) 10 range Concerning of motion the res These findings contrasted with those of in Plaintiff s judicata back, impact of she had negative Further, she had the previous ALJ s 11 determination of Dr. Balian s opinion, Plaintiff has not demonstrated 12 changed circumstances indicating a greater disability after the March 13 28, 2005 date of her last ALJ decision. 14 Plaintiff s limitations have not changed since October 2002. (AR 334.) 15 Logically 16 rejected by the previous ALJ s Decision, there is an absence of 17 changed 18 controlling weight to Dr. Balian s opinions. speaking, therefore, circumstances which since would Even Dr. Balian noted that Dr. Balian s militate in opinions favor of were giving 19 20 21 2. Dr. Maissian. On April 11, 2008, Dr. Maissian diagnosed Plaintiff with a 22 psychotic disorder (AR 78), but the ALJ found insufficient 23 documentation of a psychotic disorder in Dr. Maissian s clinical 24 notes. 25 2009, finding a failure to document any specific symptoms, nor was 26 there any indication that a mental status test was performed. (Id.) 27 Consequently, 28 uncorroborated by clinical observations or assessments. (Id.) For example, the ALJ examined treatment notes of April 9, the ALJ rejected 5 Dr. Maissian s opinion as Dr. 1 Maissian also largely accepted Plaintiff s subjective complaints 2 rather than relying upon objective observations and testing. (AR 81- 3 82.) 4 similar to the one he had provided in 2003, asserting that Plaintiff 5 could not walk more than half a block; could not sit or stand for more 6 than ten minutes at a time; could never lift more than ten pounds, 7 could only occasionally move her head or hold it still; and was 8 significantly limited in reaching, handling and fingering. (AR 314- 9 316.) For example, on April 9, 2008, Dr. Maissian gave an opinion As the ALJ observed, there is no indication that Dr. Maissian 10 ever did any objective testing to substantiate such extreme findings. 11 He never recommended intensive treatment. (AR 84.) 12 relied upon the objective testing and opinions of the CE, Dr. Saeid, 13 which were based upon independent clinical findings, and thus entitled 14 to reliance as substantial evidence. 15 F.3d 1144, 1149 (9th Cir. 2001). The ALJ instead See Tonapetyan v. Halter, 242 16 17 3. Dr. Ciasca. 18 After the ALJ issued his September 4, 2008 decision, Plaintiff 19 submitted additional evidence from the Los Angeles County Department 20 of Mental Health - Verdugo Mental Health Center. (AR 4-8, 350-68.) 21 Included in this evidence was a new opinion from Dr. Ciasca dated 22 April 28, 2009, and some treatment records. (AR 357-60.) 23 records were reviewed by the Appeals Council, which determined that 24 they did not provide a basis for changing the ALJ s decision. (AR 5.) 25 Dr. Ciasca first treated Plaintiff in 2003 (AR 365-68), and in 26 that year, rendered an opinion that Plaintiff had major depressive 27 disorder and panic disorder and a Global Assessment of Functioning 28 ( GAF ) of 45. (AR 368.) 6 These 1 When Plaintiff returned to Verdugo Mental Health Center on 2 December 23, 2008, she was interviewed by psychiatric intern Grace 3 Salinda, who completed an Intake Form. (It should be noted that the 4 Commissioner acknowledges that a psychologist signed the form after it 5 was completed, and therefore, the Commissioner does not challenge the 6 reliability of Ms. Salinda s information.) 7 overall assessment was that Plaintiff had unimpaired intellectual 8 functioning, no perceptual disturbances, and that her judgment and 9 insight were intact. (AR 354.) Indeed, Ms. Salinda s 10 Dr. Ciasca s April 29, 2009 mental RFC questionnaire (AR 357-60) 11 rendered the somewhat extreme opinion that Plaintiff was unable to 12 deal with work stress; to accept instructions or criticism from 13 supervisors; perform at a consistent pace; sustain an ordinary routine 14 without special supervision; or maintain regular attendance. (AR 359.) 15 Dr. Ciasca noted that Plaintiff has had these limitations since June 16 6, 2003. (AR 360.) 17 decision, and there has been no demonstration of changed circumstances 18 indicating a greater disability since the last decision. 19 Council noted that the assessment of Ms. Salinda demonstrated mostly 20 normal functioning, and reflected economic concerns more than mental 21 health concerns. (AR 5, 355.) Further, most of Dr. Ciasca s treatment 22 notes stem from 2003, a period already assessed by the previous ALJ. 23 As such, and based upon all these factors, there was no error in 24 rejecting Dr. Ciasca s opinion submitted post-hearing in this case. These assessments were rejected in the previous The Appeals 25 26 II 27 THE ALJ PROPERLY DETERMINED PLAINTIFF S RFC 28 Plaintiff s second issue is characterized as an attack on an 7 1 improper determination by the ALJ of Plaintiff s RFC, but it is 2 closely related to the first issue, in that its resolution depends 3 upon whether the ALJ s rejection of the opinions of Drs. Balian and 4 Maissian was supported by substantial evidence. The Court has already 5 determined that it was. 6 Plaintiff also asserts that the ALJ erred in finding that her 7 shoulder impairment would not pose additional limitations. (AR 83.) 8 Finally, Plaintiff asserts that the ALJ failed to consider her 9 frequent use of the bathroom due to her medication. (AR 83.) 10 Plaintiff argues that this has an effect on her ability to function 11 and must be considered. 12 The Court need not devote additional discussion to the ALJ s 13 rejection of Dr. Maissian and Balian, since these matters have already 14 been extensively discussed. 15 impairment, the ALJ noted that Dr. Saeid did not have certain records 16 documenting calcified tendinitis of the left shoulder (AR 83, 329), 17 there was in fact no record evidence that Plaintiff s left shoulder 18 required ongoing treatment. (Id.) 19 complete examination, finding, as to Plaintiff s shoulders, that she 20 had normal range of bilateral motion. (AR 295.) 21 her left shoulders has not been shown to have any effect on her 22 capacity to work. Concerning Plaintiff s left shoulder Further, Dr. Saeid did perform a Any calcification in 23 With regard to Plaintiff s assessment that medications required 24 her to often use the bathroom, and this would have an effect upon her 25 ability to work, the Court s examination of the record does not 26 demonstrate that Plaintiff in fact required such frequent use of the 27 bathroom that would limit her capacity for work. 28 Court finds no error, and if there was any error, it was certainly 8 Consequently, the 1 harmless. 2 3 III 4 THE ALJ PROPERLY EVALUATED PLAINTIFF S CREDIBILITY 5 The ALJ depreciated Plaintiff s credibility regarding subjective 6 symptoms. The ALJ followed the regulations (20 C.F.R. §404.1529(c)), 7 and Social Security Ruling ( SSR ) 96-7p, which, together, describe 8 the methodology for assessment of credibility, and the evidence which 9 may be considered. After examining this evidence, the ALJ found that 10 Plaintiff s medically determinable impairments could reasonably be 11 expected to produce the alleged symptoms, but that the statements made 12 by 13 effects of these symptoms are not entirely credible. The ALJ examined 14 the objective evidence, or lack of it, including evidence of her 15 treating physician, Dr. 16 With regard to Plaintiff s testimony that she falls, the ALJ found no 17 evidence of treatment for injuries sustained in a fall. 18 Plaintiff s counsel argues that a person does not necessarily need to 19 obtain treatment for a fall every time this occurs (JS at 22), it is 20 fair to say that Plaintiff is a person who has historically obtained 21 a wide variety of medical treatment for numerous types of conditions, 22 and it could be expected that a serious condition, such as repeatedly 23 falling down, would result in Plaintiff seeking medical care. 24 there is no such evidence in the record. 25 restating much of the evidence in the record, many of the objective 26 observations attributed to Plaintiff s treating physicians are in fact 27 largely recitations of her subjective complaints. 28 Plaintiff concerning intensity, persistence and Maissian (AR 81), and Dr. the limiting Balian (AR 82). Although Here, Indeed, without again Plaintiff also complained of incapacitating headaches, but, as 9 1 the ALJ observed, there is nothing in the medical records to establish 2 ongoing treatment for severe headaches. 3 Despite a diagnosis by her family doctor, Dr. Maissian, of 4 depression, there is no evidence that Plaintiff was ever referred to 5 a mental health specialist, and no evidence that she sought such 6 treatment, 7 Plaintiff s complaints based upon this lack of treatment. or received it. The ALJ justifiably depreciated 8 Looked at in total, as the Court must, there were in fact 9 specific and legitimate reasons articulated to justify the ALJ s 10 11 12 13 depreciation of Plaintiff s credibility. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 14 15 16 DATED: July 27, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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