Wa Wei Chong v. Michael J. Astrue, No. 2:2010cv01171 - Document 15 (C.D. Cal. 2011)
Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge David T Bristow: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)
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1 2 3 4 5 O 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 WA WEI CHONG, Plaintiff, 12 13 vs. 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 16 Defendant. ___________________________ ) Case No. CV 10-1171-DTB ) ) ) ORDER AFFIRMING DECISION OF ) COMMISSIONER ) ) ) ) ) 17 18 Plaintiff filed a Complaint on February 22, 2010, seeking review of the 19 Commissioner s denial of his application for Disability Insurance Benefits and 20 Supplemental Security Income under Titles II and XVI of the Social Security Act. In 21 accordance with the Magistrate Judge s Case Management Order, the parties filed a 22 Joint Stipulation ( Jt. Stip. ) on October 25, 2010. Thus, this matter now is ready for 23 decision.1 24 25 1 As the Court advised the parties in its Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative 27 Record ( AR ), and the Joint Stipulation filed by the parties. In accordance with 28 Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 1 DISPUTED ISSUE 2 3 Whether the Administrative Law Judge ( ALJ ) properly considered the medical evidence as contained in the examining physician s opinion. (Jt. Stip. 4.) 4 5 6 DISCUSSION I. Reversal is not warranted based on the ALJ s alleged failure to properly 7 consider the medical evidence as contained in the examining physician s 8 opinion. 9 Plaintiff asserts that the ALJ failed to properly consider an aspect of the opinion 10 of examining physician, Margaret Donohue, Ph.D. (Jt. Stip. 5-6.) Specifically, plaintiff 11 contends that the ALJ improperly disregarded Dr. Donohue s opinion regarding 12 plaintiff s ability to handle stress in a work environment. (Jt. Stip. 7.) The Court 13 disagrees. 14 In evaluating medical opinions, the Ninth Circuit distinguishes among three types 15 of physicians: (1) Treating physicians (who examine and treat), (2) examining 16 physicians (who examine but do not treat), and (3) non-examining physicians (who 17 neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as 18 amended). Generally, an opinion of an examining physician is given more weight than 19 an opinion of a non-examining physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 20 2007). When evaluating any medical opinion, including the opinion of an examining 21 physician, the ALJ considers several factors, including the following: (1) The amount 22 of relevant evidence supporting the opinion and the quality of the explanation provided; 23 (2) the consistency of the medical opinion with the record as a whole; (3) the 24 physician s specialty; and (4) other factors that tend to support or contradict the opinion 25 such as the degree of understanding a physician has of the Administration s disability 26 programs and their evidentiary requirements and the degree of his or her familiarity 27 with other information in the case record. Id. (internal quotation marks and citations 28 omitted); see also 20 C.F.R. § 404.1527(d)(3)-(6). Furthermore, if the examining 2 1 physician s opinion is supported by independent clinical findings based on objective 2 medical tests, such opinion constitutes substantial evidence. Orn, 195 F.3d at 632. 3 The Court concludes that the ALJ properly evaluated, and fully considered, Dr. 4 Donohue s opinion. The ALJ found Dr. Donohue s opinion to be fully credible and 5 given weight based on the nature of the examining relationship[], supportability with 6 medical signs and laboratory findings, consistency with the record, and area[] of 7 specialization. (AR 19-20.) On December 1, 2006, Dr. Donohue conducted a 8 complete psychiatric evaluation of plaintiff at the request of the Department of Social 9 Services. (AR 240-43.) Dr. Donohue diagnosed plaintiff with cyclothymia2 and 10 concluded, inter alia, that plaintiff has difficulty interacting with people, handling stress 11 in a work environment and with both concentration and attention. (AR 242.) The ALJ 12 noted that Dr. Donohue diagnosed plaintiff with an affective disorder and opined that 13 plaintiff had difficulty interacting with people on a consistent basis in a work setting. 14 (AR 18.) The ALJ accordingly concluded that plaintiff has a depressive disorder that 15 is a severe impairment within the meaning of the regulations. (AR 18.) 16 The ALJ also expressly considered Dr. Donohue s opinions regarding plaintiff s 17 limitations and incorporated the findings into her residual functional capacity ( RFC ) 18 assessment. (AR 18-19.) For example, Dr. Donohue found that plaintiff has difficulty 19 interacting with other people. 20 episodically in employment settings and has worked historically on a part time basis. 21 (AR 242.) The ALJ concluded that plaintiff must avoid public interaction but he can 22 tolerate incidental public contact. (AR 18.) Dr. Donohue also found that plaintiff has 23 a [sic] mild concentration and attention difficulties and may require instructions being 24 repeated. (AR 242.) The ALJ concluded that plaintiff is limited to simple, repetitive 25 tasks. (AR 18.) In explaining her RFC findings, the ALJ stated that Dr. Donohue He is able to do that for a brief period of time 26 27 2 A mental disorder characterized by marked swings of mood from 28 depression to hypomania but not to the degree that occurs in bipolar disorder. Stedman s Medical Dictionary 455 (27th ed. 2000). 3 1 opined [plaintiff] would have difficulty interacting with people on a consistent basis in 2 a work setting and would have mild difficulty with concentration and attention. This 3 is the most restrictive assessment of record. (AR 19.) 4 As discussed, the ALJ found that Dr. Donohue s opinion was fully credible and 5 well-supported by relevant evidence, and consequently, afforded Dr. Donohue s opinion 6 greater weight. (AR 18-20.) It appears that, in making this finding, the ALJ considered 7 many factors, including the amount of relevant evidence supporting the opinion, the 8 quality of the explanations, the consistency of the opinion with the record as a whole, 9 and Dr. Donohue s area of specialization. (Id.) The record indicates that for purposes 10 of evaluating the plaintiff, Dr. Donohue reviewed and/or considered the following 11 information: Plaintiff s medical records; plaintiff s past medical, family, social and 12 environmental histories (including plaintiff s past history of mental disorder); analyzed 13 plaintiff s current level of functioning, and conducted a mental status examination of 14 plaintiff. (AR 240-42.) In her findings, Dr. Donohue provided thorough general 15 observations, diagnostic impressions and a medical source statement with detailed 16 explanations for her opinion. (Id.) For example, Dr. Donohue s conclusion that 17 plaintiff had difficulty interacting with people was supported by evidence that plaintiff 18 had a history of easily becoming angry and verbally violent, was irritable and 19 argumentative, did not want to be around people, and almost never saw friends. (Id.) 20 The ALJ also noted that Dr. Donohue s opinion is consistent with the record as 21 a whole. (AR 18-20.) For example, plaintiff established care with Dr. John Child for 22 cardiac treatment, and during the course of such treatment, plaintiff complained of 23 depressive symptoms. (AR 17-18, 302.) Dr. Child referred plaintiff to Elisa Moreno, 24 M.D., for a psychiatric consultation in February, 2008. (AR 18.) Dr. Moreno opined 25 that plaintiff endorses symptoms of depression and noted that plaintiff experiences 26 anxiety when he is around people and in public places. (AR 306-308.) Dr. Moreno 27 recommended that plaintiff treat his depression and anxiety with medication and regular 28 outpatient psychiatric care. (AR 308.) Dr. Donohue s diagnosis of cyclothymia, as 4 1 noted above, and finding that plaintiff has difficulty interacting with people, is 2 consistent with Dr. Moreno s opinion. (AR 242, 308.) Finally, Dr. Donohue is a 3 licensed psychologist, and thus, her opinion can be accorded greater weight as a 4 specialist in the mental health profession. 20 C.F.R. § 404.1527(d)(3). Given theses 5 considerations, the ALJ properly considered the requisite factors to evaluate Dr. 6 Donohue s opinion and accordingly afforded her opinion greater weight. 7 Plaintiff contends that the ALJ ignor[ed] pertinent portions of Dr. Donohue s 8 opinion regarding [plaintiff s] need to avoid stressful situations while working . . . . (Jt. 9 Stip. 7.) However, it is not clear that the ALJ did not include this aspect of Dr. 10 Donohue s opinion in her RFC assessment. As explained, the ALJ concluded that 11 plaintiff was limited to simple repetitive tasks and must avoid public interaction. (AR 12 18.) This limitation appears to implicitly address plaintiff s complaints of stress due to 13 interacting with people and working in new situations, and ostensibly amounts to an 14 acceptance of Dr. Donohue s findings. (AR 18-19, 241-42.) Although the ALJ did not 15 specifically address this aspect of Dr. Donohue s opinion, the ALJ s conclusion about 16 plaintiff s RFC appears to take into account Dr. Donohue s opinion regarding stress 17 limitations. 18 Furthermore, in interpreting the evidence and developing the record, the ALJ 19 need not discuss every piece of evidence; rather, the ALJ need only discuss evidence 20 that is significant and probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 21 1012 (9th Cir. 2003); Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per 22 curiam). Also, the ALJ need not accept the opinion of any physician, including a 23 treating physician, if that opinion is brief, conclusory, and inadequately supported by 24 clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also 25 Batson v. Comm r of the Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). Here, 26 Dr. Donohue s opinion regarding any stress limitation for plaintiff was not elaborated 27 upon elsewhere in her psychiatric evaluation. 28 assessments in the record that support this specific limitation. (AR 19.) Although 5 Additionally, there are no other 1 plaintiff criticizes the ALJ for not specifically mentioning this portion of Dr. Donohue s 2 opinion, plaintiff fails to show why this omission was material. The Court cannot 3 conclude that this portion of Dr. Donohue s opinion, although relevant in the RFC 4 determination, constitutes significant probative evidence. 5 Moreover, to the extent the ALJ did not expressly address all of Dr. Donohue s 6 statements regarding plaintiff s symptoms and history, such omission was harmless 7 because it would not have affected the ALJ s ultimate disability determination. See 8 Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (an ALJ s 9 error is harmless where such error is inconsequential to the ultimate disability 10 determination); see also Carmickle v. Comm r of the Soc. Sec. Admin., 533 F.3d 1155, 11 1162 (9th Cir. 2008). It does not appear that the ALJ would have reached a different 12 disability determination had she expressly referenced Dr. Donohue s opinion regarding 13 plaintiff s ability to handle stress in a work environment. Dr. Donohue concluded that, 14 although plaintiff expressed that interacting with other people caused him stress, [h]e 15 is able to do that for a brief period of time episodically in employment settings and has 16 worked historically on a part time basis. (AR 241-42.) Dr. Donohue noted that 17 plaintiff had congenial employment while working as a host at a restaurant operated 18 by his family, but he discontinued working due to his impending heart surgery. (AR 19 241.) Taking Dr. Donohue s opinion as whole into account, any error the ALJ may 20 have made would not have sufficiently altered the ALJ s conclusions regarding 21 plaintiff s RFC. 22 Finally, substantial evidence in the record supports the ALJ s disability 23 determination. The ALJ found that the objective medical evidence failed to support 24 plaintiff s claims of debilitating depressive symptoms. (AR 19.) The ALJ considered 25 evidence of plaintiff s denial of depressive symptoms after hospitalization for alcohol 26 intoxication. (AR 17-19.) The hospital discharge summary stated that plaintiff was 27 calm and cooperative with no severe depression. (AR 19, 206.) The ALJ also 28 considered plaintiff s lack of further psychiatric care. (AR 18-19.) The Court notes, 6 1 to the extent that plaintiff failed to seek further psychiatric care due to a lack of 2 financial resources, such failure cannot be a basis for the ALJ s decision to deny 3 disability benefits. See Gamble v. Shalala, 68 F.3d 319, 321 (9th Cir. 1995) ( We 4 certainly agree with all the other circuits that a disabled claimant cannot be denied 5 benefits for failing to obtain medical treatment that would ameliorate his condition if 6 he cannot afford that treatment. ). However, in this instance, the record indicates that 7 plaintiff was provided with low and no-cost referrals for outpatient psychiatric care, but 8 there is no evidence that he took advantage of such for any further treatment. (AR 18- 9 19, 308.) Finally, Dr. Donohue noted that plaintiff complained of symptoms of 10 depression but opined that plaintiff is not showing any evidence for depression. (AR 11 242.) 12 supports the ALJ s determination that plaintiff is not disabled. Accordingly, remand is 13 not warranted on this basis. Under these circumstances, the Court concludes that substantial evidence 14 To the extent plaintiff contends that the ALJ failed to consider all aspects of Dr. 15 Donohue s opinion in eliciting testimony from the vocational expert ( VE ), this claim 16 does not merit reversal. (Jt. Stip. 9.) In posing a hypothetical question to the VE, the 17 ALJ is required to include limitations that he found credible and supported by 18 substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); 19 Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); Rollins v. Massanari, 261 20 F.3d 853, 857 (9th Cir. 2001). 21 Donohue s findings, and to the extent she failed to note a single observation, this error 22 was harmless. Since the ALJ s hypothetical questions to the VE relied on her complete 23 impairment determinations, new vocational expert testimony is unnecessary. See 24 Osenbrock, 240 F.3d at 1163. 25 /// 26 /// 27 /// 28 /// As discussed, the ALJ properly considered Dr. 7 1 2 3 4 5 ORDER IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. DATED: July 27, 2011 6 7 8 DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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