Maria C. Mota v. Michael J. Astrue, No. 2:2009cv07047 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For these reasons, the Agency's decision is reversed and the case is remanded to the Agency for further proceedings consistent with this Opinion. PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS. (ca)
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Maria C. Mota v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MARIA C. MOTA, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 09-7047 PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration ( the Agency ), denying her application for Disability 21 Insurance benefits ( DIB ). 22 Judge ( ALJ ) erred when she: (1) found that Plaintiff was not 23 credible; and (2) failed to properly consider the limitations imposed 24 by Plaintiff s mental impairment. 25 the following reasons, the Court concludes that the ALJ erred in 26 addressing Plaintiff s mental impairment and remands the case to the 27 Agency for further proceedings consistent with this Opinion. She claims that the Administrative Law (Joint Stip. at 5-16, 23-28.) For 28 Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 On December 15, 2000, Plaintiff protectively filed for DIB. 4 (Administrative Record ( AR ) 124-26.) 5 application initially and on reconsideration, she requested and was 6 granted an administrative hearing. 7 4, 2002, Plaintiff appeared with counsel at the hearing and testified. 8 (AR 556-604.) 9 Plaintiff s application. 10 After the Agency denied the (AR 68-69, 94-100.) On September On November 27, 2002, the ALJ issued a decision denying (AR 70-82.) On November 27, 2005, the Appeals Council granted Plaintiff s 11 request for review and remanded the case to the ALJ to obtain 12 additional evidence concerning Plaintiff s depression and anxiety, 13 including, if warranted and available, a consultative mental health 14 examination with psychological testing and medical source statements 15 . . . . 16 obtain evidence from a medical doctor to clarify the nature and 17 severity of [Plaintiff s] back impairment. 18 (AR 118.) The Appeals Council also ordered the ALJ to (AR 119.) On January 22, 2007, the ALJ held a hearing, at which Plaintiff 19 again appeared with counsel and testified. 20 2007, the ALJ issued a new decision denying benefits. 21 Plaintiff appealed the ALJ s decision to the Appeals Council and the 22 Appeals Council denied review. 23 action.1 (AR 7-11.) (AR 605-44.) On March 27, (AR 13-34.) She then commenced this 24 25 26 27 28 1 The ALJ failed to comply with the Appeal s Council s instructions to obtain medical and psychological testing/examinations. (AR 16.) Instead, she pointed out the fallacy of the Appeals Council s reasoning and explained that, as a result, she would not comply with the mandate. (AR 16.) After she issued her decision, Plaintiff appealed to the Appeals Council again, and the Appeals 2 1 III. 2 ANALYSIS 3 4 A. The Credibility Determination Plaintiff argues that the ALJ erred when she concluded that 5 Plaintiff was not credible. 6 clear and convincing reasons for rejecting her testimony. 7 Stip. at 9-16.) 8 the ALJ did not err. 9 She contends that the ALJ did not provide (Joint For the following reasons, the Court concludes that ALJ s are tasked with judging the credibility of witnesses. 10 Where a claimant has produced objective medical evidence of an 11 impairment which could reasonably be expected to produce the symptoms 12 alleged and there is no evidence of malingering, the ALJ can only 13 reject the claimant s testimony for specific, clear, and convincing 14 reasons. 15 making a credibility determination, the ALJ may take into account 16 ordinary credibility evaluation techniques as well as the claimant s 17 daily activities. 18 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In Id. at 1284.2 Plaintiff alleged that she suffered from severe pain that limited 19 the use of her left side as a result of an injury she sustained at 20 work in 1997. (AR 146, 284.) At the initial hearing in 2002, 21 22 Council apparently chose to ignore the ALJ s refusal to follow its mandate. 23 2 24 25 26 27 28 Some of Plaintiff s doctors included in their reports subtle and not so subtle comments suggesting that they believed that Plaintiff was exaggerating her symptoms. These comments ranged from noting that Plaintiff does exaggerate somewhat (AR 293), to the more nuanced, Her subjective complaints are considerably out of proportion to the objective findings. (AR 334.) Ultimately, though, the ALJ did not find that Plaintiff was malingering, so the Court will apply the more stringent standard -i.e., specific, clear, and convincing evidence -in evaluating the ALJ s credibility findings. 3 1 Plaintiff testified that her back and hips hurt when she sat for a 2 long time. 3 hour before having to get up and walk around for about 15 minutes and 4 that she could walk comfortably for about 45 minutes before having to 5 sit down for 20 to 30 minutes. 6 that she could stand comfortably for no longer than ten or 15 minutes. 7 (AR 566.) 8 raised her arms, that her left knee hurt whenever she bent it, and 9 that her left ankle hurt when she stood for a long time. (AR 564.) She estimated that she could sit for about one (AR 564, 565.) She also testified Plaintiff complained that her left shoulder hurt when she (AR 565, 10 566.) 11 walk for the past year. 12 losing her grip when she lifted heavy objects with her left hand and 13 that her left hand hurt when she lifted it. 14 testified that she was taking pain medication, which helped a little 15 bit, and receiving physical therapy twice a week, which also relieved 16 her pain somewhat. 17 prescribed daily exercises, but the exercises caused her pain. 18 571-72.) 19 day for a half hour to relieve her pain. 20 testified that she suffered from memory and concentration problems and 21 depression. 22 She testified that she had been using a prescription cane to (AR 567.) (AR 570-71.) Plaintiff also complained of (AR 568-69.) She She explained that her doctor had (AR According to Plaintiff, she had to lie down once or twice a (AR 572.) She also (AR 569-70, 580-81, 610.) The ALJ did not find Plaintiff s testimony credible. (AR 25-26.) 23 She based this finding on the fact that: (1) Plaintiff s allegations 24 were out of proportion to the objective medical findings; 25 (2) Plaintiff s treatment for her physical and mental ailments was 26 limited; (3) There was no objective evidence that Plaintiff suffered 27 memory or attention problems; (4) Plaintiff s recitation of her daily 28 physical activities suggested that she was not as limited as she 4 1 claimed; and (5) The evidence suggested that Plaintiff exaggerated her 2 claims with her doctors and with the ALJ. 3 below, the ALJ s reasons are legitimate and her findings are supported 4 for the most part by this record. 5 Plaintiff was not credible will be affirmed. 6 (AR 25-26.) As explained As such, her determination that The first reason offered by the ALJ to discount Plaintiff s 7 credibility was that Plaintiff s subjective complaints could not be 8 explained by the medical evidence. 9 Plaintiff presents to doctors with exaggerated and out of proportion (AR 25.) The ALJ noted that 10 subjective complaints and non-anatomic complaints. 11 an appropriate basis for discounting a claimant s testimony, see 12 Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001), and is 13 supported by the record. 14 (AR 26.) This is Dr. M.I. Sami examined Plaintiff in December 1997 and noted that 15 her complaints were considerably out of proportion to the objective 16 findings and did not correlate with normal anatomic relationships. 17 (AR 334.) 18 exaggerate somewhat, especially in the area of the left ankle and the 19 left shoulder. 20 Dr. Wertheimer noted once again that she tended to exaggerate. 21 390.) 22 that the sensory deficit in the left arm and left leg is 23 nonanatomic. 24 report similar findings, the ALJ was tasked with resolving the 25 conflicts in the medical evidence. 26 F.3d 947, 956-57 (9th Cir. 2002). 27 finding that Plaintiff should not be believed because she exaggerated 28 her symptoms will be upheld. In May 2000, Dr. Wertheimer noted that Plaintiff does (AR 293.) After reexamining Plaintiff in July 2003, (AR Dr. Ibrahim Yashruti examined Plaintiff in 2001 and determined (AR 186.) Though Plaintiff s other doctors did not See, e.g., Thomas v. Barnhart, 278 Given this record, the ALJ s 5 1 The second reason offered by the ALJ to discount Plaintiff s 2 testimony was that she was receiving very little, if any, treatment/ 3 medication for what she claimed was debilitating pain. 4 ALJ noted that Plaintiff had undergone steroid injections and had 5 taken pain medication in the past, but also noted, for example, that 6 in February 2001 Plaintiff reported that she was not taking any pain 7 medication at all. 8 testified at the second administrative hearing, Plaintiff testified 9 that she was not receiving any treatment and that the only medication 10 11 (AR 25.) (AR 25.) The Almost six years later, when she that she was taking was Motrin. (AR 610.) An unexplained failure to obtain medical treatment for a serious 12 medical condition is a legitimate basis to question a claimant s 13 testimony. 14 1999) ( [T]he ALJ properly considered [the treating physician s] 15 failure to prescribe ... any serious medical treatment for this 16 supposedly excruciating pain ). 17 legitimate reason for the fact that she was purportedly suffering 18 debilitating pain but was not being treated for it or taking 19 medication for it. 20 reason for finding Plaintiff incredible is legitimate and is supported 21 by the record. 22 See, e.g., Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. Plaintiff failed to provide a As such, the Court concludes that the ALJ s second The third reason offered by the ALJ to discount Plaintiff s 23 testimony was that she did not demonstrate any memory or attention 24 problems--which she claimed she suffered from--when she was being 25 examined by the examining psychiatrist or when she was testifying in 26 the administrative hearings. 27 part by the record. 28 examined Plaintiff in May 2001 in connection with her application for (AR 25.) This finding is supported in For example, psychiatrist Eden Magpayo, who 6 1 benefits, found few objective abnormalities. (AR 79, 198-201.) 2 Magpayo did not note any memory loss. 3 she found that Plaintiff s memory was affected by her depression and 4 that she would be limited in her ability to focus her attention. 5 200-01.) 6 administrative hearings, the transcripts do not reveal that Plaintiff 7 exhibited memory or concentration problems. 8 the end, the Court finds that, though some of the evidence contradicts 9 the ALJ s findings in this regard, her findings are, for the most (AR 200.) Dr. On the other hand, (AR As to Plaintiff s testimony at the 2002 and 2007 10 part, supported by the record. 11 (AR 559-82, 609-12.) In disturbed. 12 For this reason, they will not be The fourth reason relied on by the ALJ to find that Plaintiff s 13 claimed limitations were not credible was that her daily activities 14 were inconsistent with her alleged limitations. 15 a legitimate reason for discounting a claimant s credibility, Orn v. 16 Astrue, 495 F.3d 625, 639 (9th Cir. 2007); Thomas, 278 F.3d at 958-59, 17 it is not fully supported by the record. 18 Though this, too, is In a written submission prior to the first administrative hearing 19 in 2002, Plaintiff reported that she was able to take her daughter to 20 school, do household chores, cook dinner, grocery shop, fold and put 21 away clothes, watch television, read the newspaper, go to church, 22 drive, socialize, and talk on the telephone. 23 2002 hearing, however, Plaintiff qualified many of these statements. 24 For example, she testified that she could cook with some help, that 25 she could dust a little, that she could do laundry with her 26 daughters help, and that she needed help with grocery shopping. 27 574-76.) (AR 158-62.) At the (AR The ALJ determined that these activities were inconsistent 28 7 1 with Plaintiff s claim that she was limited in her ability to sit, 2 stand, and drive. 3 (AR 25.) Based on Plaintiff s qualifications regarding these chores, it is 4 difficult for the Court to conclude that her ability to perform them 5 proves that she is not being candid when she claims that she cannot 6 work. 7 her written submission and in her testimony -is not so great as to 8 undermine her claim that she cannot work for eight hours a day, forty 9 hours a week. In fact, the level of activity claimed by Plaintiff -both in For this reason, the Court rejects the ALJ s finding 10 that Plaintiff s daily activities support a finding that she is not 11 credible. 12 The fifth reason relied on by the ALJ to discount Plaintiff s 13 testimony was that the evidence did not support her claimed 14 impairments. 15 though Plaintiff claimed that she had trouble thinking and reasoning 16 and did not understand English, Plaintiff passed the U.S. Citizenship 17 test in English. 18 the first administrative hearing, Plaintiff testified while standing 19 and leaning on her left arm for 15 minutes, though she complained that 20 her left arm caused her extreme discomfort. 21 that, when she asked Plaintiff about this apparent contradiction at 22 the hearing, Plaintiff denied that she had been leaning on her left 23 arm. 24 are valid reasons to question a claimant s testimony. 25 Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ALJ may rely 26 on behavior exhibited by claimant at a hearing that undermines a 27 claimant s alleged symptoms.) (AR 26.) (AR 26.) The ALJ pointed out, for example, that, even (AR 26.) The ALJ also pointed to the fact that, in (AR 26.) The ALJ noted These inconsistencies are supported by the record and 28 8 See, e.g., 1 In the end, though the Court might quibble with some of the 2 reasons relied on by the ALJ for discounting Plaintiff s credibility, 3 her overall finding that Plaintiff was not credible is supported by 4 the record and will be affirmed. 5 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008) (Explaining that, in the 6 context of credibility findings, an error is harmless [s]o long as 7 there remains substantial evidence supporting the ALJ s conclusions on 8 . . . credibility and the error does not negate the validity of the 9 ALJ s ultimate credibility conclusion. See Carmickle v. Comm r, Soc. Sec. Id. (quoting Batson v. 10 Comm r, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)). 11 B. 12 Plaintiff s Mental Impairment Relying on the opinion of reviewing psychiatrist Paul Balson, the 13 ALJ concluded that Plaintiff was capable of performing simple, 14 repetitive tasks, despite a mental impairment. 15 contends that this conclusion was in error. 16 She argues that the ALJ did not account for limitations noted by 17 examining psychiatrist Eden Magpayo and did not provide specific and 18 legitimate reasons for rejecting Dr. Magpayo s opinion. 19 at 23-28.) 20 (AR 24.) Plaintiff (Joint Stip. at 23-28.) (Joint Stip. For the following reasons, the Court agrees. As a general rule, among the three types of physicians-- 21 (1) treating physicians (those who treat the claimant), (2) examining 22 physicians (those who examine but do not treat), and (3) non-examining 23 physicians (those who neither examine or treat)--the ALJ should grant 24 the most weight to the opinion of a treating source. 25 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (citations omitted). 26 opinion of an examining physician is, in turn, entitled to greater 27 weight than the opinion of a nonexamining physician. 28 general, the opinion of the non-treating, non-examining physician is 9 See Lester v. Id. The Thus, in 1 given the least weight. 2 however, the ALJ can reject an examining physician s opinion in favor 3 of a non-treating, non-examining physician s opinion for specific and 4 legitimate reasons supported by substantial evidence in the record. 5 Id. at 830-31 (citing Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 6 1995)). 7 As with the opinion of a treating physician, Psychiatrist Eden Magpayo performed a complete psychiatric 8 evaluation of Plaintiff in May 2001. (AR 198-201.) Her examination 9 revealed, among other things, that Plaintiff had depressive symptoms 10 which distract[ed] her from activities requiring some concentration 11 and good memory. 12 attention and her capacity to interact with others is limited. 13 200-01.) 14 untreated depression causes some moderate limitations. When she is depressed, her ability to focus (AR The ALJ read Dr. Magpayo s opinion to mean that Plaintiff s (AR 24.) 15 Reviewing psychiatrist Paul Balson did not examine Plaintiff. 16 Instead, he read Dr. Magpayo s report, considered the other mental 17 health records (of which there were few), and determined that 18 Plaintiff was capable of performing simple, repetitive tasks. 19 202-19.) 20 activities of daily living, had mild difficulties in maintaining 21 social functioning and moderate difficulties in maintaining 22 concentration, persistence, and pace. 23 Balson s opinion, explaining, In the absence of a supported residual 24 functional capacity assessment from a treating source showing greater 25 functional limitations, I accept the assessment from [Dr. Balson.] 26 (AR 24.) 27 28 (AR In Dr. Balson s view, Plaintiff was not restricted in (AR 212.) The ALJ accepted Dr. The ALJ erred in silently rejecting Dr. Magpayo s opinion and accepting Dr. Balson s opinion instead. 10 All things being equal, the 1 ALJ was required to give greater weight to Dr. Magpayo s opinion. 2 Lester, 81 F.3d at 830. 3 specific and legitimate reasons for choosing Dr. Balson s opinion over 4 Dr. Magpayo s. 5 further analysis. 6 At a minimum, she was required to provide Id. at 830-31. The Agency disagrees. As such, the case must be remanded for Though it implicitly concedes that the ALJ 7 did not set forth specific and legitimate reasons for rejecting Dr. 8 Magpayo s opinion, it argues that she was not required to because she 9 was, in effect, accepting Dr. Magpayo s opinion, which the Agency 10 contends was consistent with Dr. Balson s. 11 The record does not support this view. 12 (Joint Stip. at 28-31.) The Court reads the ALJ s unambiguous statement that she is 13 accepting Dr. Balson s opinion as an equally unambiguous statement 14 that she is rejecting Dr. Magpayo s opinion. 15 is bolstered by the ALJ s 2002 decision. 16 Magpayo s report, she discounted her opinion that Plaintiff suffered 17 from a mental impairment because it was primarily based on Plaintiff s 18 subjective complaints to Dr. Magpayo and the ALJ found that Plaintiff 19 was not credible. 20 highlights the fact that she did not believe that Dr. Magpayo s and 21 Dr. Balson s opinions were consistent. 22 the 2007 decision to mean that the ALJ had concluded that the critical 23 portions of the opinions were the same and that, therefore, when she 24 accepted Dr. Balson s opinion, she was, in effect, accepting Dr. 25 Magpayo s opinion, too. (AR 79.) The Court s conclusion There, after summarizing Dr. The ALJ s analysis in the 2002 decision Thus, the Court will not read Even were this the case, the ALJ should have 26 27 28 11 1 accepted Dr. Magpayo s opinion in the first instance, not Dr. 2 Balson s.3 3 On remand, the ALJ will be required to address Plaintiff s 4 alleged mental impairment and Dr. Magpayo s and Dr. Balson s opinions 5 regarding it. 6 can and should rely on Dr. Magpayo s opinion, since under the law that 7 opinion is entitled to priority. 8 opinions are not the same and further determines that Dr. Magpayo s 9 opinion is infirm, she should provide specific and legitimate reasons 10 If the ALJ finds that the opinions are the same, she If, instead, she determines that the for rejecting Dr. Magpayo s opinion and accepting Dr. Balson s.4 11 12 13 14 15 16 17 18 19 3 In the 2007 decision, the ALJ incorporated by reference the medical evidence reported in [her 2002] decision. (AR 19.) The Court has interpreted this to mean that the ALJ was incorporating only the medical evidence, not the analysis of that evidence, e.g., her 2002 finding that Dr. Magpayo s opinion should be discounted because it was based on Plaintiff s subjective complaints that the ALJ found incredible. (AR 79.) 20 4 21 22 23 24 25 26 27 28 There are spots in the Agency s brief where it appears to be arguing that the ALJ rejected Dr. Magpayo s opinion for specific and legitimate reasons. For example, in arguing that the ALJ s decision should be affirmed, it points out that the ALJ considered the fact that there was no history of mental health treatment in the medical record and that neither Plaintiff s doctor or her lawyer referred her for treatment. (Joint Stip. at 30.) The Agency also notes that the ALJ considered Plaintiff s daily activities in determining that she was not severely impaired. (Joint Stip. at 30.) The Court has thoroughly reviewed the ALJ s decisions in this case and recognizes that it is possible that the ALJ was attempting to set forth specific reasons for rejecting Dr. Magpayo s opinion in her 2007 decision. Ultimately, however, the Court concludes that the decision is not clear and, therefore, remand is required. 12 1 IV. 2 CONCLUSION 3 For these reasons, the Agency s decision is reversed and the case 4 is remanded to the Agency for further proceedings consistent with this 5 Opinion.5 6 IT IS SO ORDERED. 7 DATED: March 18, 2011 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 S:\PJW\Cases-Soc Sec\MOTA, M 7047\Memo_Opinion.wpd 21 22 23 24 25 26 27 28 5 By setting forth that the ALJ is required to reconsider the psychiatrists opinions, the Court is not suggesting that the ALJ is limited to only that narrow issue on remand. The ALJ may consider additional evidence and conduct any further hearing she deems appropriate, provided that she addresses the psychiatrists opinions and explains her decision regarding them. 13
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