Mireya Parra v. Michael J. Astrue, No. 2:2010cv00865 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION and ORDER by Magistrate Judge Marc L. Goldman. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (db)
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Mireya Parra v. Michael J. Astrue Doc. 16 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 WESTERN DIVISION 9 10 MIREYA PARRA, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-00865-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Mireya Parra seeks judicial review of the Social Security 19 Commissioner’s final decision denying her application for Disability 20 Insurance Benefits (“DIB”). For the reasons set forth below, the 21 decision of the Commissioner is affirmed. 22 23 I. Background Plaintiff was born on March 28, 1950. (Administrative Record (“AR”) 24 25 55.) 26 cosmetology. 27 coordinator/import-export manager for an aerospace company from 1979 to 28 She is a high (AR school 74-75.) graduate, Plaintiff with was additional employed as training a in traffic 1999. (AR 70.) Dockets.Justia.com 1 Plaintiff filed an application for DIB on November 16, 2005, 2 alleging that she has been disabled since April 16, 1999, as a result of 3 depression, 4 concentrate, and carpal tunnel syndrome. (AR 55, 69.) Plaintiff’s date 5 last insured was December 31, 2004. (AR 401.) In order to qualify for 6 disability insurance benefits, Plaintiff is required to establish that 7 she was disabled on or before the date her insured status expired. 8 C.F.R. §404.131(b)(1); Vincent ex rel. Vincent v. Heckler, 739 F.2d 9 1393, 1394 (9th Cir. 1984); Flaten v. Secretary of Health & Human Serv., 10 44 F.3d 1453, 1463 (9th Cir. 1995). Plaintiff was therefore required to 11 establish that she was disabled on or before December 31, 2004, in order 12 to be eligible for disability insurance benefits. high blood pressure, migraine headaches, inability to 20 13 Plaintiff’s application was denied initially by the Social Security 14 Administration (“SSA”) on the basis of insufficient evidence. (AR 27.) 15 On reconsideration, the SSA affirmed its decision that there was 16 insufficient evidence to establish disability on or before December 31, 17 2004. (AR 31-35.) An administrative hearing was started on November 7, 18 2006, before Administrative Law Judge (“ALJ”) Lawrence D. Wheeler, and 19 was continued to April 12, 2007. (AR 343-364, 365-388.) On August 8, 20 2007, ALJ Wheeler issued a decision denying Plaintiff’s application for 21 benefits. (AR 22 severe impairments of cervical spine pain, headaches and carpal tunnel 23 syndrome but that Plaintiff’s impairments did not meet, or were not 24 medically equal to, one of the listed impairments in 20 C.F.R., Part 25 404, Subpart P, Appendix 1. (AR 21.) The ALJ found that Plaintiff 26 retained the residual functional capacity (“RFC”) to do the full range 27 of light work and that she was able to perform her past relevant work. 28 (Id.) 11-22.) The ALJ found that Plaintiff suffered from the 2 1 On March 21, 2008, the Appeals Council denied review (AR 5-7) and 2 Plaintiff sought judicial review in this Court. On January 26, 2009, 3 this 4 proceedings, finding that the ALJ had erred in finding that Plaintiff’s 5 mental impairment was not severe. Parra v. Astrue, CV 08-3173-MLG. (AR 6 417-435.) Court remanded the case to the Commissioner for further 7 On June 16, 2009, a second administrative hearing was held before 8 ALJ Wheeler. (AR 461-481.) On September 11, 2009, the ALJ issued a 9 decision again concluding that Plaintiff was not disabled. (AR 400-408.) 10 The ALJ found that Plaintiff suffered from the severe impairments of 11 cervical spine pain, headaches, carpal tunnel syndrome, and depression. 12 (AR 13 prevented her from performing her past relevant work, but that it was 14 not sufficiently severe to preclude all work. (AR 407.) Relying on 15 testimony from a vocational expert, the ALJ concluded that there were 16 jobs existing in significant numbers in the national economy that 17 Plaintiff could perform, such as assembler, small products and back 18 office helper. (Id.) On December 4, 2009, the Appeals Council denied 19 review. (AR 389-392.) 402.) The ALJ further determined that Plaintiff’s depression 20 Plaintiff then filed this action for judicial review. On August 11, 21 2010, the parties filed a Joint Stipulation (“Joint Stp.”) of disputed 22 facts and issues. Plaintiff alleges: (1) the ALJ failed to accord proper 23 weight to the opinion of Plaintiff’s treating psychiatrist; (2) the 24 ALJ’s finding that Plaintiff was only mildly to moderately impaired due 25 to her depression was not supported by substantial evidence; and (3) the 26 ALJ erred in assessing and weighing Plaintiff’s testimony and subjective 27 complaints. (Joint Stp. 3.) Plaintiff seeks an award of benefits. (Joint 28 Stp. 17.) The Commissioner requests that the ALJ’s decision be affirmed. 3 1 (Joint Stp. 18.) 2 3 II. Standard of Review The 4 Court must uphold the Social Security Administration’s 5 disability determination unless it is not supported by substantial 6 evidence or is based on legal error. Ryan v. Comm’r of Soc. Sec., 528 7 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm’r of Soc. Sec. 8 Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means 9 more than a scintilla, but less than a preponderance; it is evidence 10 that 11 conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 12 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 13 2006)). To determine whether substantial evidence supports a finding, 14 the reviewing court “must review the administrative record as a whole, 15 weighing both the evidence that supports and the evidence that detracts 16 from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 17 720 (9th Cir. 1996). “If the evidence can support either affirming or 18 reversing the ALJ’s conclusion,” the reviewing court “may not substitute 19 [its] judgment for that of the ALJ.” Robbins, 466 F.3d at 882. a reasonable person might accept as adequate to support a 20 21 22 23 24 III. Discussion A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff’s Treating Physician Plaintiff contends that the ALJ erred in failing to give 25 controlling weight to the opinion of her treating psychiatrist, Dr. Adib 26 Bitar. (Joint Stp. 3.) Dr. Bitar, who first began treating Plaintiff on 27 June 14, 2005, diagnosed her with major depression. In a letter to 28 counsel dated April 16, 2007, Dr. Bitar opined that cumulative stress 4 1 beginning in 1998, when she lost her job, “perpetuated a disabling 2 depression” for which Plaintiff “remains in treatment for indeterminate 3 time.” (AR 337.) 4 An ALJ should generally accord greater probative weight to a 5 treating physician’s opinion than to opinions from non-treating sources. 6 See 7 legitimate reasons for rejecting a treating physician’s opinion in favor 8 of a non-treating physician’s contradictory opinion. Orn v. Astrue, 495 9 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1996). However, the ALJ need not accept the opinion of any medical 11 source, including a treating medical source, “if that opinion is brief, 12 conclusory, and inadequately supported by clinical findings.” Thomas v. 13 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 14 Halter, 15 considered by the adjudicator in determining the weight to give a 16 medical opinion include: “[l]ength of the treatment relationship and the 17 frequency of examination” by the treating physician; and the “nature and 18 extent of the treatment relationship” between the patient and the 19 treating 20 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 20 C.F.R. 242 § F.3d 404.1527(d)(2). 1144, physician. 1149 Orn, The (9th 495 ALJ Cir. F.3d must 2001). at give The 631-33; specific factors 20 to C.F.R. and be §§ 21 The ALJ provided several legitimate reasons for refusing to give 22 Dr. Bitar’s opinion controlling weight, each of which was supported by 23 substantial evidence in the record. First, the ALJ noted that Dr. Bitar 24 did not examine Plaintiff until June 14, 2005, six months after the date 25 last insured of December 31, 2004, and did not complete a Mental 26 Disorder form until February 2006, fifteen months after her date last 27 insured. (AR 253-256, 405.) Thus, there was no medical evidence within 28 the relevant period that established that Plaintiff’s mental impairment 5 1 was disabling. See Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 2 1982) (“The existence of emotional disorder, however, is not per se 3 disabling .... there must be proof of the impairment’s disabling 4 severity.”). 5 Plaintiff argues that Dr. Bitar’s medical reports, even though 6 issued after the date last insured, are relevant to assess disability, 7 citing Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Although 8 medical reports rendered retrospectively may not be disregarded solely 9 on the basis that they were prepared after the claimant’s insured status 10 expired, there is no medical evidence in the record which supports a 11 finding 12 employment prior to December 31, 2004, because of her depression. The 13 claimant bears the initial burden of showing that he or she is unable to 14 perform any substantial gainful activity due to a medically determinable 15 physical or mental impairment. 42 U.S.C. § 1382c(a)(3)(4); Burch v. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). In light of the evidence in 17 the record, the ALJ correctly determined that Plaintiff had not met this 18 burden. that Plaintiff was unable to perform substantial gainful 19 Moreover, the only medical opinion rendered during the relevant 20 time period does not establish that Plaintiff’s depression prevented her 21 from 22 neurologist, Dr. Fawaz Al Faisal, began treating Plaintiff in January 23 2002 24 Plaintiff with “classic migraine headaches” and “distal paresthesias in 25 both hands,” but did not diagnose her with depression. (Id.) Although 26 Plaintiff notes that Dr. Faisal prescribed her Celexa in 2002 to treat 27 depression, this was based solely on Plaintiff’s self-reported symptoms 28 as Dr. Faisal never conducted a mental status examination of Plaintiff. performing for any migraine substantial headaches. gainful (AR 6 employment. 210-212.) Dr. Plaintiff’s Faisal diagnosed 1 Further, Dr. Faisal never diagnosed Plaintiff with depression nor did he 2 ever find that her depression was disabling. (AR 187-88, 194-212, 403.) 3 In addition, Dr. Faisal did not refer Plaintiff to Dr. Bitar for mental 4 health treatment until June 2005, over three years after he first began 5 treating her for migraine headaches, presumably because her depression 6 was not sufficiently severe until then. 7 The ALJ also rejected Dr. Bitar’s February 2006 opinion because it 8 was very general and did not “quantify a deficit in attention or 9 concentration or clearly explain the limitation in social functioning.” 10 (AR 253-256, 405.) The ALJ also found that Dr. Bitar’s report was 11 “partially countered by Dr. Faisal’s reported examination that, while 12 also somewhat brief and general, at least describes the claimant as 13 alert, attentive, cooperative, and with intact memory.” (AR 210-212, 14 405.) This is the type of conclusory, brief, and unsupported report that 15 may be properly discounted by an ALJ. Batson v. Comm’r, 359 F.3d 1190, 16 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1149. 17 The ALJ provided specific and legitimate reasons for rejecting Dr. 18 Bitar’s assessment, each of which was supported by substantial evidence 19 in 20 prevented her from performing substantial gainful activity prior to her 21 date last insured. Therefore, no relief is warranted on this claim. 22 the B. 23 record. Plaintiff has failed to show that her depression The ALJ’s Determination That Plaintiff’s Depression Was Not Functionally Limiting Was Supported by Substantial Evidence 24 Plaintiff next contends that the ALJ’s determination that Plaintiff 25 had only mild to moderate limitation in activities of daily living and 26 in 27 depression was not supported by substantial evidence. (Joint Stp. 9.) 28 The ALJ stated that although there was “evidence of some depression maintaining social functioning 7 and concentration due to her 1 reasonably linked [to] the alleged onset date and, more clearly, 2 established by December 31, 2004,” there was a lack of medical evidence 3 in 4 significantly 5 employment. (AR 406.) the record to support limited her a finding ability to that Plaintiff’s perform depression substantial gainful 6 Substantial evidence supported the ALJ’s finding that Plaintiff’s 7 depression caused only mild to moderate limitation in activities of 8 daily living and in maintaining social functioning. As discussed in 9 detail above, there is no medical opinion in the record during the 10 relevant 11 depression was disabling and precluded her from working. In fact, 12 Plaintiff even concedes that Dr. Faisal, her treating physician during 13 the relevant disability period, “never expressed an opinion as to 14 whether [P]laintiff was employable or disabled, nor did he assess her 15 functional capacity.” (Joint Stp. 9.) 16 In period of addition, disability the ALJ which noted that establishes Plaintiff’s that Plaintiff’s claim that her 17 depression was disabling was undermined by her lack of credibility. (AR 18 406.) As the Court concluded in its January 26, 2009 opinion remanding 19 the case for further proceedings, the ALJ properly rejected Plaintiff’s 20 testimony as not being fully credible.1 21 Accordingly, the ALJ’s determination that Plaintiff only had mild 22 to moderate limitation in activities of daily living and in maintaining 23 social functioning and concentration due to her depression was supported 24 by substantial evidence in the record, and Plaintiff is not entitled to 25 relief on this issue. 26 27 1 28 The Court will discuss in greater detail the issue of Plaintiff’s credibility in Section C below. 8 1 2 C. The ALJ Accorded Appropriate Weight to Plaintiff’s Testimony and Subjective Complaints 3 Plaintiff contends that the ALJ failed to properly evaluate her 4 testimony and subjective complaints. (Joint Stip. 13.) As he did in the 5 August 8, 2007, decision finding Plaintiff not disabled, the ALJ cited 6 Plaintiff’s lack of credibility as adversely affecting the evaluation of 7 the severity of her impairments prior to the date last insured. (AR 8 405.) The ALJ incorporated his analysis of Plaintiff’s testimony from 9 the August 8, 2007, decision into the September 11, 2009, decision 10 finding Plaintiff not disabled. (AR 401.) 11 As discussed in detail in the Court’s January 26, 2009, opinion, 12 the ALJ gave multiple reasons for finding that Plaintiff’s subjective 13 testimony was not entirely credible, all of which are fully supported by 14 the record. (AR 428-431.) 15 In addition, the ALJ also found that Plaintiff was not fully 16 credible based upon her testimony at the second administrative hearing 17 held on June 16, 2009. (AR 459-482.) Although Plaintiff testified at the 18 first administrative hearing that she wanted to work after being laid 19 off from her job and sent out resumes for many years, at the second 20 administrative hearing, she claimed that she could not have worked even 21 if she had been offered a job. (AR 467.) As the ALJ noted, this 22 inconsistency 23 credibility. (AR 405.) in Plaintiff’s testimony further diminishes her 24 The ALJ made specific findings articulating clear and convincing 25 reasons for his rejection of Plaintiff’s subjective testimony. Smolen v. 26 Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). It is the responsibility of 27 the ALJ to determine credibility and resolve conflicts or ambiguities in 28 the evidence. Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989). A 9 1 reviewing court may not second-guess the ALJ’s credibility determination 2 when it is supported by substantial evidence in the record, as here. See 3 Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). It was reasonable for 4 the ALJ to rely on all of the reasons stated above, each of which is 5 fully 6 Plaintiff’s subjective complaints. In sum, the ALJ reasonably and 7 properly discredited Plaintiff’s subjective testimony regarding the 8 severity of her symptoms as not being wholly credible. supported by the record, in rejecting the credibility of 9 10 11 12 IV. CONCLUSION For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 13 14 DATED: August 25, 2010 15 16 17 ______________________________ Marc L. Goldman United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 10
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