Deborah Belcher-George v. Michael J. Astrue, No. 2:2010cv02559 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION; ORDER by Magistrate Judge Oswald Parada:IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (am)
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Deborah Belcher-George v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEBORAH BELCHERGEORGE, ) Case No. CV 10-2559-OP ) ) Plaintiff, ) MEMORANDUM OPINION; ORDER v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) The Court1 now rules as follows with respect to the disputed issues listed in 17 18 19 20 21 the Joint Stipulation (“JS”).2 /// /// /// 22 23 24 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See Dkt. Nos. 8, 9.) 2 As the Court advised the parties in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative 26 Record (“AR”), and the Joint Stipulation filed by the parties. In accordance with 27 Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined 28 which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 25 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. 6 7 Whether the Administrative Law Judge (“ALJ”) properly considered the opinion of the treating physician; and 2. Whether the ALJ posed a complete hypothetical to the vocational 8 expert (“VE”) and properly considered side effects of Plaintiff’s 9 medications. 10 (JS at 2, 19.) 11 II. 12 STANDARD OF REVIEW 13 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision 14 to determine whether the Commissioner’s findings are supported by substantial 15 evidence and whether the proper legal standards were applied. DeLorme v. 16 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means “more 17 than a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 18 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec’y of 19 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 20 evidence is “such relevant evidence as a reasonable mind might accept as adequate 21 to support a conclusion.” Richardson, 402 U.S. at 401 (citation omitted). The 22 Court must review the record as a whole and consider adverse as well as 23 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 24 Where evidence is susceptible of more than one rational interpretation, the 25 Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 26 1452 (9th Cir. 1984). 27 / / / 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ’s Findings. 4 The ALJ found that Plaintiff has the severe impairment of degenerative disc 5 disease. (Administrative Record (“AR”) at 12.) He concluded that Plaintiff’s 6 diagnosis for hepatitis C was not a severe impairment. (Id.) He also found that 7 her alleged mental impairments, depression and anxiety, “do not cause more than 8 minimal limitation” in her ability to perform basic mental work activities and, 9 therefore, were non-severe. (Id.) 10 The ALJ further found that Plaintiff had the RFC to perform light work with 11 the following limitations: lift/carry twenty pounds occasionally and ten pounds 12 frequently; stand/walk about six hours in an eight hour workday; and sit about six 13 hours in an eight hour workday with a sit/stand option. (Id. at 16.) The ALJ 14 concluded that Plaintiff would not be able to perform her past relevant work as a 15 waitress. (Id. at 18.) 16 Relying on the testimony of the VE to determine the extent to which 17 Plaintiff’s limitations eroded the occupational base of unskilled work at all 18 exertional levels, the ALJ asked the VE whether jobs exist in the national 19 economy for an individual with Plaintiff’s age, education, work experience, and 20 RFC. (Id. at 40-41.) Based on the testimony of the VE, the ALJ determined 21 Plaintiff could perform the requirements of such light work as assembler, 22 inspector, and packager, and such sedentary work as sorter, inspector, and 23 assembler. (Id. at 19.) 24 B. The ALJ Properly Considered the Opinion of Plaintiff’s Treating 25 Physician. 26 On March 28, 2008, Plaintiff’s treating physician, Mark Jaffe, M.D., 27 completed a Mental Disorder Questionnaire Form on behalf of Plaintiff. (Id. at 28 279-84.) In that form, he noted that Plaintiff admitted to being tearful and fearful 3 1 frequently during the day and to having difficulty completing her daily household 2 chores; she was oriented x3; her memory and concentration were impaired; she 3 had perceptual and thinking impairment, and judging impairment; she admitted to 4 being depressed and having insomnia, decreased energy, feelings of guilt or 5 worthlessness; she admitted to having paranoid ideation believing that people are 6 trying to kill her and to having frequent panic attacks; he observed that she was 7 anxious during the evaluation; she admitted to doing her shopping using public 8 transportation, paying her bills, and taking care of her personal hygiene; she 9 admitted to having a personal inheritance sold for failure to pay rent; she stated 10 her day began usually around 9:30 a.m. and ended around 1:00 a.m.; she admitted 11 to “affective [sic]” communication with family, neighbors, and landlords but 12 stated that her husband is the primary facilitator in those relationships; she stated 13 she needs her husband’s assistance to pay her bills on time as a result of her 14 changed condition; she admitted to having difficulty concentrating, completing 15 daily tasks, and routine household tasks without frequent distractions; she prefers 16 written instructions for assigned work; and she admitted she was a good employee 17 in the past. (Id. at 279-83.) Dr. Jaffe diagnosed Plaintiff with a Major Depressive 18 Disorder, Recurrent, Moderate. (Id. at 284.) He indicated he had first examined 19 her on July 5, 2007, last examined her on March 20, 2008, and that her visits were 20 monthly. (Id.) 21 The ALJ indicated the following regarding Dr. Jaffe’s opinion: 22 A mental disorder questionnaire completed by the claimant’s treating 23 doctor, Dr. Mark Jeffe [sic], from the outpatient parole clinic, stated that 24 the claimant admits to being tearful and fearful during the day, having 25 feelings of guilt, having difficulty completing household chores, having 26 problems with concentration, memory, and perceptual thinking. 27 (Exhibit 15F). However, despite these symptoms, Dr. Jeffe [sic] noted 28 that the claimant admitted that she is able to do her shopping, use public 4 1 transportation, pay her bills, and take care of her personal hygiene. 2 (Exhibit 15F). In addition, as stated above, a review of the treatment 3 notes indicate that the claimant’s symptoms are stabilized with 4 medication and was able to participate in vocational rehabilitation 5 programs and attend writing classes. (Exhibit 15F; 18F). 6 (AR at 13-14.) 7 Plaintiff contends that the ALJ failed to properly consider Dr. Jaffe’s 8 opinion or to provide specific and legitimate reasons, supported by substantial 9 evidence, to reject that opinion. (JS at 4.) Specifically, she claims that in order to 10 support his decision, the ALJ impermissibly misrepresented Dr. Jaffe’s findings 11 regarding her ability to pay her bills. (Id. at 4-5.) She also claims the ALJ failed 12 to consider Dr. Jaffe’s “serious diagnosis,” a diagnosis that, she conclusorily 13 claims, indicates that Plaintiff “would have difficulty sustaining full-time 14 employment. For example, the fact that plaintiff would have a diminished ability 15 to think or concentrate, or indecisiveness nearly everyday would significantly 16 impact her job performance.” (Id. at 6.) She claims that the ALJ also failed to 17 address Dr. Jaffe’s finding that Plaintiff’s judgment was impaired, claiming “a 18 person with an impaired judgment . . . would be extremely limited in her ability to 19 remember work-like procedures, her ability to perform activities within a 20 schedule, maintain regular attendance, and be punctual within customary 21 tolerances, or her ability to get along with others without distracting them or 22 exhibiting behavioral extremes.” (Id.) She complains the ALJ failed to address 23 Plaintiff’s apparent anxiousness and autonomic reaction to the evaluation, the fact 24 that she was having frequent panic attacks, and had decreased energy, all of which 25 she claims would impact her work-related performance or attendance. (Id.) 26 Finally, she contends there are “numerous examples” in the progress notes, which 27 fully support Dr. Jaffe’s findings, and dispute the ALJ’s statement that Plaintiff’s 28 symptoms are stabilized with medication and that she was able to participate in 5 1 vocational rehabilitation programs and attend writing classes. (Id. at 6-7.) 2 Plaintiff provides no authority for these self-serving and conclusory statements. 3 Further, the Court finds they are unsupported by any evidence of record. 4 It is well-established in the Ninth Circuit that a treating physician’s opinions 5 are entitled to special weight, because a treating physician is employed to cure and 6 has a greater opportunity to know and observe the patient as an individual. 7 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). “The treating 8 physician’s opinion is not, however, necessarily conclusive as to either a physical 9 condition or the ultimate issue of disability.” Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989). The weight given a treating physician’s opinion depends on 11 whether it is supported by sufficient medical data and is consistent with other 12 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating 13 physician’s opinion is uncontroverted by another doctor, it may be rejected only 14 for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 15 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 16 physician’s opinion is controverted, it may be rejected only if the ALJ makes 17 findings setting forth specific and legitimate reasons that are based on the 18 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 19 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 20 Cir. 1987). 21 However, the Ninth Circuit also has held that “[t]he ALJ need not accept the 22 opinion of any physician, including a treating physician, if that opinion is brief, 23 conclusory, and inadequately supported by clinical findings.” Thomas, 278 F.3d 24 at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 25 1992). A treating or examining physician’s opinion based on the plaintiff’s own 26 complaints may be disregarded if the plaintiff’s complaints have been properly 27 discounted. Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 28 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 6 1 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, “[w]here the opinion 2 of the claimant’s treating physician is contradicted, and the opinion of a 3 nontreating source is based on independent clinical findings that differ from those 4 of the treating physician, the opinion of the nontreating source may itself be 5 substantial evidence; it is then solely the province of the ALJ to resolve the 6 conflict.” Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. 7 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 8 Preliminarily, the Court notes that the the questionnaire completed by Dr. 9 Jaffe primarily reflects Plaintiff’s self-reported symptoms (Plaintiff “admits” to 10 being tearful, fearful, feelings of guilt, inability to complete household chores, 11 frequent panic attacks, decreased energy, problems with concentration, and so on). 12 These statements do not reflect Dr. Jaffe’s opinion, but are simply a recitation of 13 what Plaintiff reported to him. Thus, it is not entirely clear that the ALJ actually 14 discounted Dr. Jaffe’s conclusions; he merely found, based on the substantial 15 evidence of record, that the alleged diagnosed impairment was not severe. 16 Plaintiff’s arguments that the ALJ failed to address Dr. Jaffe’s finding that 17 her judgment was impaired and that she was anxious at the evaluation also is 18 unavailing. An ALJ is not required to address every piece of information in the 19 record. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003 20 (ALJ need not discuss “evidence this is neither significant nor probative”). Dr. 21 Jaffe does not discuss the extent to which his finding that Plaintiff had a “judging 22 impairment,” or exhibited anxiety in the evaluation session, would affect 23 Plaintiff’s ability to work. In fact, despite being asked to specifically describe 24 Plaintiff’s “ability to adapt to stresses common to the work environment, including 25 decision making, attendance, schedules, and interaction with supervisors,” and to 26 describe how these abilities may have changed as a result of her condition, he 27 merely noted that she “[a]dmits to having been in the past a good employee . . . 28 and attendance schedule and interactions with supervisor was [sic] appropriate.” 7 1 (AR at 282.) Accordingly, after reviewing all of the evidence of record regarding 2 Plaintiff’s mental impairment, including Dr. Jaffe’s notes and conclusions, the 3 ALJ properly found any limitations to be non-severe, as discussed below. 4 To the extent, if any, the ALJ may have rejected Dr. Jaffe’s conclusions, the 5 Court agrees with the Commissioner that the ALJ provided numerous specific and 6 legitimate reasons for doing so, and for concluding that Plaintiff’s mental 7 limitations were non-severe. (JS at 10.) In fact, he carefully reviewed the entire 8 medical record and opinion evidence regarding Plaintiff’s alleged depression and 9 anxiety. (AR at 12-16.) 10 He first reviewed Plaintiff’s mental health treatment while in prison from 11 October 2006 through June 2007. He noted that treatment records from the 12 California Department of Corrections reflected mild symptoms of depression and 13 some anxiety. (Id. at 13 (citing id. at 153-61).) Although she originally exhibited 14 poor social skills, poor recall, poor speech, confusion, and poor concentration (id. 15 (citing id. at 171, 174, 177), psychotropic medications improved her symptoms, 16 and Plaintiff reported that the medications reduced her anxiety, improved her 17 sleep, and enabled her to participate in full-day business vocational classes. (Id. 18 (citing id. at 155, 160-61); see Warre v. Barnhart, 439 F.3d 1001, 1006 (9th Cir. 19 2006) (impairments that can be controlled effectively with medication are not 20 disabling for purposes of determining eligibility under the Act). Plaintiff herself 21 stated “it’s amazing what medications can do.” (AR at 161.) The ALJ noted that 22 participation in business classes requires significant concentration, motivation, 23 and social interaction. (Id. at 13); see Magallanes, 881 F.2d at 755 (court may 24 draw reasonable inferences from the record). There is no indication Plaintiff had 25 difficulty with the classes. (AR at 13.) 26 The ALJ also evaluated Plaintiff’s records from the parole outpatient clinic 27 and fully explained why he found these notes also supported a finding that her 28 8 1 mental impairments were not severe. (Id.) He reviewed treating notes reflecting 2 Plaintiff’s desire to participate in a vocational rehabilitation program and stating 3 she had acquired a position as a speaker for the Substance Abuse Community 4 Outreach Program. (Id. (citing id. at 285-89, 305-12.) In addition to these and 5 other concurrent activities (attending English classes and earning above average 6 grades), he noted that Plaintiff’s medication had stabilized her, she was 7 maintaining with no psychotic symptoms, or suicidal or auditory hallucinations, 8 and she was behaving pleasantly in her interactions. (Id. (citing id. at 285-89, 9 305-12.) 10 After reviewing these records, the ALJ reviewed the questionnaire 11 completed by Dr. Jaffe as noted above. (Id. at 13-14.) He properly noted the 12 inconsistences in Plaintiff’s complaints to Dr. Jaffe, e.g., she reported being 13 tearful, fearful, feeling guilty, having difficulty completing chores, and problems 14 with concentration, memory and perceptual thinking; yet, Dr. Jaffe also noted she 15 could shop for herself, use public transportation, pay her own bills, handle her 16 own funds, and care for her personal hygiene. Thomas, 278 F.3d at 958-59 (an 17 ALJ may consider inconsistencies in plaintiff’s testimony, or between his 18 testimony and his conduct); see also Morgan, 169 F.3d at 600 (ALJ may properly 19 rely on plaintiff’s daily activities, and on conflict between claimant’s testimony of 20 subjective complaints and objective medical evidence in the record); Tidwell v. 21 Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak 22 objective support, lack of treatment, and daily activities inconsistent with total 23 disability). 24 The ALJ then reviewed the consultative examination report of Sohini P. 25 Parikh, M.D., consultative examining psychiatrist. (AR at 14 (citing id. at 20626 12.) He noted that Dr. Parikh performed a complete psychiatric evaluation of 27 Plaintiff and found no mental limitations in her ability to reason and make social, 28 occupational, and personal adjustments. (Id. (citing id. at 211-12.) He highlighted 9 1 Plaintiff’s ability to use public transportation, manage funds and pay bills, care for 2 her personal hygiene, attend church, attend AA, complete household tasks, 3 participate in all activities at a rehabilitation program, and get along with family, 4 friends, and neighbors. (Id. (citing id. at 208).) Dr. Parikh found Plaintiff 5 cooperative and well-groomed, with logical thoughts, ability to focus and 6 concentrate, to follow simple and complex instructions, and make decisions. (Id. 7 (citing id. at 208, 211.) Although Plaintiff reported feelings of hopelessness and 8 worthlessness, Dr. Parikh opined that her mental health would improve if she 9 refrained from using drugs and alcohol. (Id. (citing id. at 210).) 10 Finally, the ALJ reviewed the psychiatric review technique assessment 11 completed by R. Starce, Ph.D. (Id. (citing id. at 232-50).) Dr. Starce found 12 Plaintiff moderately impaired in social functioning and concentration, persistence, 13 and pace; but also found her capable of sustaining concentration, persistence and 14 pace, and interacting well socially. (Id. (citing id. at 243, 245). The ALJ 15 explained that Dr. Starce did not have a chance to review the entire medical record 16 and did not know that the parole outpatient clinic records indicated that Plaintiff’s 17 condition improved with medication, nor that she participated in vocational 18 rehabilitation programs and writing classes. (Id.) 19 20 21 22 23 24 25 26 Based on all of the above records, the Court finds that to the extent, if any, he rejected Dr. Jaffe’s opinions, the ALJ properly provided specific and legitimate reasons to support his determination that Plaintiff’s mental restrictions and limitations were mild and, therefore, non-severe. Thomas, 278 F.3d at 957; Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller, 770 F.2d at 849. Thus, there was no error. C. Hypothetical to the VE and Side Effects of Medications. 27 1. Hypothetical to the VE. 28 Plaintiff contends that the ALJ failed to pose a complete hypothetical 10 1 question to the VE because the ALJ’s hypothetical did not include the limitations 2 reflected in Dr. Jaffe’s March 28, 2008, report. (JS at 19, 21-22.) 3 “In order for the testimony of a VE to be considered reliable, the 4 hypothetical posed must include ‘all of the claimant’s functional limitations, both 5 physical and mental’ supported by the record.” Thomas, 278 F.3d at 956 (quoting 6 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical questions 7 posed to a VE need not include all alleged limitations, but rather only those 8 limitations which the ALJ finds to exist. See, e.g., Magallanes, 881 F.2d at 9 756-57; Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. 10 Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). As a result, an ALJ must propose 11 a hypothetical that is based on medical assumptions, supported by substantial 12 evidence in the record, that reflects the claimant’s limitations. Osenbrock v. 13 Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 14 179, 184 (9th Cir. 1995)); see also Andrews, 53 F.3d at 1043 (although the 15 hypothetical may be based on evidence which is disputed, the assumptions in the 16 hypothetical must be supported by the record). 17 As the Court concluded above, the ALJ properly rejected the opinions of Dr. 18 Jaffe as reflected in his March 28, 2008, report. Accordingly, the ALJ was not 19 obligated to include those limitations in his hypothetical to the VE. See, e.g., 20 Magallanes, 881 F.2d at 756-57; Copeland, 861 F.2d at 540; Martinez, 807 F.2d at 21 773-74. Thus, the ALJ did not err by presenting an incomplete hypothetical 22 question to the VE. 23 2. Side Effects of Medications. 24 Plaintiff also claims that the ALJ failed to mention that “plaintiff is taking 25 26 numerous medications, [which] clearly . . . have significant side effects that must 27 be considered when determining whether plaintiff can perform work on a full-time 28 basis.” (Id. at 19.) Plaintiff’s argument is without merit. 11 1 Under Ninth Circuit law, the ALJ must “consider all factors that might have 2 a ‘significant impact on an individual’s ability to work.’” Erickson v. Shalala, 9 3 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec’y of Health & Human 4 Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988)). Such 5 factors “may include side effects of medications . . .” Id. at 818. When the ALJ 6 disregards the claimant’s testimony as to subjective limitations of side effects, he 7 must support that decision with specific findings similar to those required for 8 excess pain testimony, as long as the side effects are in fact associated with the 9 claimant’s medications. See Varney, 846 F.2d at 545; see also Muhammed v. 10 Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *6 (N.D. Cal. 1999). 11 There is no indication in the record that Plaintiff ever was experiencing any 12 side effects severe enough to impair or interfere with her ability to work. See, e.g., 13 Osenbrock, 240 F.3d at 1164 (side effects properly excluded because “no evidence 14 of side effects severe enough to interfere with . . . ability to work,” even though 15 “[t]here were passing mentions of the side effects” in “some of the medical 16 records”); Miller, 770 F.2d at 849 (no clinical evidence that narcotics impaired 17 ability to work). She did not testify to any side effects at the hearing. (AR at 2218 36.) While Plaintiff occasionally mentioned to her doctors what may have been 19 mild side effects of the medication – e.g., complaining the medications were not 20 working (see, e.g., id. at 153 (Effexor works better, Cymbalta not working)); or 21 caused physical symptoms (see, e.g., id. at 159 (Cymbalta gives her a “queasy 22 stomach”), 287-88 (Lamictal made her feel badly and caused headaches), 290 23 (Wellbutrin gave her headaches/dizziness), 291 (Vistaril caused an overactive 24 bladder); or that she had side effects from tapering off her medication (see, e.g., id. 25 at 305); most of the progress notes indicate she had no side effects from her 26 medications (see e.g., id. at 155 (no side effects to Cymbalta and Wellbutrin, 156 27 (no side effects to psychotropics), 160 (same), 165 (denies side effects), 170, 28 194).) 12 1 Plaintiff’s limited self-reporting, to which the doctor usually responded by 2 decreasing or discontinuing the offending medication, fails to provide substantial 3 evidence of any ongoing or disabling side effects, particularly considering the 4 ALJ’s finding that Plaintiff was not completely credible, a finding Plaintiff does 5 not contest. Thomas, 278 F.3d at 960 (dismissing side effect allegations where 6 there was no supporting objective evidence and plaintiff found generally not 7 credible). 8 Based on the foregoing, the Court finds there was no error in the ALJ’s 9 failure to mention the alleged side effects of Plaintiff’s medications. 10 IV. 11 12 13 14 15 ORDER Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. 16 17 18 Dated: October 25, 2010 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28 13
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