Doria A. McClintock v. Michael J. Astrue, No. 2:2010cv04239 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision is affirmed and the case is dismissed with prejudice. (See Order for details) (afe)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DORIA A. MCCLINTOCK, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-4239-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying her application for 20 Supplemental Security Income ( SSI ). 21 Administrative Law Judge ( ALJ ) erred when he: (1) found that she was 22 not credible; (2) rejected the treating doctors opinions; (3) found 23 that her mental impairments were not severe; and (4) determined her 24 residual functional capacity. 25 Court finds that the ALJ did not err and affirms the Agency s decision 26 denying benefits. 27 28 She claims that the For the reasons discussed below, the 1 II. 2 SUMMARY OF PROCEEDINGS This case has been bouncing around for more than a decade. In 3 2000, Plaintiff applied for SSI after injuring her back in a car 4 crash. 5 was denied initially and on reconsideration, after which she requested 6 and was granted a hearing before an ALJ. 7 Following a hearing in January 2002, the ALJ issued a decision, 8 finding that Plaintiff was not disabled. 9 appealed to the Appeals Council, which denied review. (Administrative Record ( AR ) 13, 103-05.) Her application (AR 74, 82, 98, 100.) (AR 11-16, 473-518.) She (AR 519-20.) 10 Plaintiff then filed an action in this court and, in 2003, the parties 11 stipulated to a remand for further proceedings. 12 (AR 522-25.) On remand, the ALJ held another hearing and, in December 2004, 13 again denied the application. 14 appealed to this court and, in September 2005, the parties, again, 15 stipulated to a remand. 16 (AR 326-338, 369-452.) Plaintiff (AR 641-46.) On remand, a new ALJ held a third hearing and, in 2008, denied 17 Plaintiff s application. 18 review of the ALJ s decision. 19 in March 2010, the Appeals Council denied review. 20 June 2010, Plaintiff appealed to this court. 21 February 2012, the parties were apparently attempting to resolve the 22 case, to no avail. 23 Stipulation and the case is now ready for decision. 24 25 26 (AR 598-612, 852-890.) (AR 591.) More than two years later, (AR 586-88.) In Between June 2010 and In February 2012, the parties filed a Joint III. A. Plaintiff requested ANALYSIS The ALJ s Credibility Finding The ALJ determined that Plaintiff was not credible. 27 contends that he erred in doing so. 28 Court concludes that the ALJ did not err. 2 Plaintiff For the following reasons, the 1 ALJs are tasked with judging the credibility of the witnesses. 2 Where a claimant has produced objective medical evidence of an 3 impairment which could reasonably be expected to produce the alleged 4 symptoms and there is no evidence of malingering, an ALJ can only 5 reject the claimant s testimony for specific, clear, and convincing 6 reasons. 7 making a credibility determination, the ALJ may take into account 8 ordinary credibility evaluation techniques. 9 Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). In Id. at 1284. The ALJ cited several reasons for questioning Plaintiff s 10 credibility. (AR 603-04, 610.) 11 that she had been exempted from work requirements by Cal Works because 12 she was disabled but that the documentation from Cal Works stated that 13 her exemption was based on the fact that she was caring for her then- 14 20-year-old disabled son.1 15 the same time, Plaintiff claimed to the Agency that her 22-year-old 16 daughter was providing care for her son because Plaintiff was unable 17 to do so. 18 misrepresenting who was doing what before Cal Works or the Agency in 19 an effort to manipulate the process and receive payments from both. (AR 397, 603.) He noted that Plaintiff testified (AR 399, 603.) As the ALJ pointed out, at Thus, Plaintiff was obviously 20 21 22 23 24 25 26 27 28 1 Arguably, there is some confusion as to what Plaintiff was saying when she testified about her exemption from Cal Works. (AR 399, 449, 451.) But the ALJ s interpretation of what Plaintiff meant when she testified is not unreasonable and the Court will accept that interpretation. See Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) ( Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ s decision, the ALJ s conclusion must be upheld. ). 3 1 This is a valid reason for questioning Plaintiff s testimony, see 2 Smolen, 80 F.3d at 1284, and is supported by the record.2 3 The ALJ also questioned Plaintiff s testimony because it was 4 contradicted by her activities. 5 herself as someone who was so wracked with pain that she was unable to 6 function. 7 she could not even drive her son to school anymore and relied on her 8 daughter to drive. 9 driven 45 minutes to the administrative hearing with her daughter in (AR 388-407.) (AR 604.) For example, she presented She explained that she was so limited that (AR 397, 402.) Yet, she admitted that she had 10 the car and had no credible explanation as to why her daughter had not 11 driven or why Plaintiff was suddenly able to perform such a task 12 despite her alleged inability to do so. 13 valid reason for questioning Plaintiff s veracity and it is supported 14 by the record. 15 (AR 402.) Again, this is a The ALJ also relied on the fact that the objective medical 16 evidence did not support the extent of Plaintiff s claimed 17 limitations. 18 Plaintiff to be as debilitated as she claimed. The MRIs and the CT scans did not reveal any reason for (AR 170 (noting normal 19 20 21 22 23 24 25 26 27 28 2 In the context of this case it seems obvious that Plaintiff s efforts to convince the ALJ in 2004 that she was not taking care of her son were in response to the ALJ s previous finding that her ability to do so undermined her testimony that she was incapacitated. In 2002, she testified that she spent her time taking care of her disabled son, which required her to, among other things, drive him (and his brother) to doctors appointments daily. (AR 491-92.) In the ALJ s 2002 decision, she found that Plaintiff s testimony that she was too incapacitated to work was not believable because, among other things, she was able to care for her son and drive him to the doctor every day. (AR 458-59.) Plaintiff was evidently conscious of this finding when she testified at the second hearing in 2004 in front of the same ALJ that she did not take care of her son anymore. (AR 397.) It appears, however, that, at the time, she was being paid by Cal Works to do so. (399-400.) 4 1 CT scan from January 2000), 172.) And, contrary to the medical 2 evidence, Plaintiff claimed at the administrative hearing in 2004, 3 five years after the accident that caused her injuries, that her 4 condition had dramatically changed for the worse (AR 388-89), yet 5 there was nothing in the medical record to support such a claim. 6 ALJ s reliance on this reason to reject Plaintiff s credibility was 7 valid. 8 Cir. 2008) ( Contradiction with the medical record is a sufficient 9 basis for rejecting the claimant's subjective testimony. ). The See Carmickle v. Comm r, Soc. Sec., 533 F.3d 1155, 1161 (9th 10 In the end, the Court finds that the ALJ set forth specific, 11 clear, and convincing reasons for questioning Plaintiff s credibility. 12 For that reason, the credibility determination will not be disturbed. 13 B. 14 The Treating Doctors Opinions The ALJ rejected the opinions of Plaintiff s treating doctors, 15 Dr. Booker and Dr. Brubaker, that Plaintiff was, in essence, incapable 16 of working due to her impairments and the pain and limitations that 17 they caused her. 18 and reviewing doctors. 19 so. 20 He accepted, instead, the opinions of the examining Plaintiff contends that the ALJ erred in doing For the following reasons, the Court disagrees. Generally speaking, a treating physician s opinion is entitled to 21 deference. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); see also 22 Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 1999) (explaining 23 treating physician s opinion is given deference because he is 24 employed to cure and has a greater opportunity to know and observe the 25 patient as an individual. ) (quoting Sprague v. Bowen, 812 F.2d 1226, 26 1230 (9th Cir. 1987)). 27 doctor s opinion regarding a claimant s capacity to work should be 28 given controlling weight. Thus, all things being equal, a treating Orn, 495 F.3d at 631; Embrey v. Bowen, 849 5 1 F.2d 418, 421 (9th Cir. 1988). 2 not required to simply accept a treating doctor s opinion. 3 here, the opinion is contradicted by another doctor s opinion, the ALJ 4 is empowered to reject it for specific and legitimate reasons 5 supported by substantial evidence in the record. 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (quoting Magallanes v. 7 Bowen 881 F.2d 747, 751 (9th Cir. 1989)); Morgan, 169 F.3d at 600. 8 9 That being said, however, an ALJ is Where, as See Thomas v. Plaintiff s back pain stemmed from a car accident that she was involved in in 1999. (AR 163-67, 485-87.) She was not taken to the 10 hospital after the accident but within days she began experiencing 11 pain. 12 and, sporadically thereafter, by Dr. Brubaker. 13 Her treatment consisted primarily of physical therapy, pain 14 medication, and injections in her back. 15 727-851.) 16 She was treated thereafter by her family doctor, Dr. Booker (AR 163-64, 829-51.) (AR 189-233, 256-76, 288-322, In a brief note on a prescription pad sheet in April 2000, Dr. 17 Booker opined that Plaintiff might be able to perform a sedentary job 18 if she did not have to lift more than five pounds and did not have to 19 bend or stoop. 20 in August and September 2000, wrote that she was not released for 21 work. 22 sheet, he wrote that Plaintiff was disabled due to anxiety, 23 depression, chronic neck and back pain, and constipation. 24 (AR 259.) (AR 257-58.) He later changed his mind it appears and, In 2004, in another brief note on a prescription (AR 570.) The ALJ rejected Dr. Booker s opinion because there was very 25 little objective support for it and because it was inconsistent with 26 the objective radiological evidence that revealed that Plaintiff did 27 not have any significant abnormalities. 28 that it was contradicted by the other doctors opinions, except for 6 (AR 606.) The ALJ also noted 1 Dr. Brubaker s, and that these other doctors were specialists and 2 their reports were more detailed. 3 (AR 606.) These are valid reasons for questioning a doctor s opinion and 4 are supported by the record. The radiological evidence showed little 5 if any abnormality in Plaintiff s back. 6 revealed no radiographic abnormality in the thoracic spine (though 7 it did show mild chronic degenerative disease at the C7-T1). 8 172.) 9 June 2000 found only a minimal disc bulge at C5/6 and no herniation. An IC scan in October 1999 A CT scan in January 2000 was normal. (AR 170.) (AR An MRI in 10 (AR 244.) 11 medical records all agreed that she was not as incapacitated as she 12 claimed and was capable of working. 13 of Plaintiff in November 1999, Dr. De La Cerna, an internist, opined 14 that she could return to work the following month. 15 The specialists who examined Plaintiff and/or reviewed the For example, following his exam (AR 151-52.) An ALJ is entitled to rely more heavily on a specialist s opinion 16 than a treating doctor s opinion where, as here, the treating doctor 17 is not a specialist. 18 (9th Cir. 2001) (explaining treating doctor s opinion may be entitled 19 to little or no weight if it relates to a subject area not related to 20 his expertise); Smolen, 80 F.3d at 1285 (noting opinions of 21 specialists are entitled to more weight than general practitioners). 22 An ALJ is also entitled to discount a treating doctor s opinion that 23 is not supported by the objective evidence. 24 F.3d 1190, 1195 (9th Cir. 2004). 25 reject a doctor s opinion that is conclusory and without explanation. 26 Holohan v. Massanari, 246 F.3d 1195, 1202 n.2 See Batson v. Comm r, 359 Finally, an ALJ may legitimately The ALJ rejected Dr. Booker s opinion for all of these reasons. 27 And they are specific and legitimate reasons for doing so. 28 the ALJ s decision to discount Dr. Booker s opinion will be affirmed. 7 As such, 1 The Court arrives at a similar finding with regard to Dr. 2 Brubaker. 3 findings were unsupported by the objective medical evidence in the 4 record and inconsistent with the opinions of the examining doctors, 5 who were specialists. 6 opinion amounted to nothing more than summary statements, which were 7 not only unsupported by the record but were in fact contradicted by 8 it. 9 The ALJ rejected Dr. Brubaker s opinion because his (AR 609.) In the ALJ s view, Dr. Brubaker s (AR 609-11.) Clearly, Dr. Brubaker s findings regarding Plaintiff s condition 10 following her accident in 1999 are not supported by the objective 11 medical evidence, e.g., the CT scans and MRIs, all of which revealed 12 no abnormalities in Plaintiff s back or spine. 13 was also involved in another accident in March 2006 for which she went 14 to see Dr. Brubaker, there are no objective tests that show that any 15 injuries she suffered in this accident were debilitating. 16 38.) 17 periodically treated Plaintiff for the pain that she reported to him 18 and nothing in Dr. Brubaker s medical charts or the other medical 19 evidence in the record supports the extent of the limitations he 20 proposed. 21 Brubaker s opinion, either. 22 C. 23 And, though Plaintiff (AR 836- Rather, a fair reading of Dr. Brubaker s records reveal that he For that reason, the ALJ did not err in rejecting Dr. Plaintiff s Mental Condition Plaintiff claimed that she suffered from anxiety and depression. 24 Her treating doctors prescribed drugs to treat these conditions. 25 Still, the ALJ found that Plaintiff did not have a severe mental 26 impairment. 27 the following reasons, the Court finds that the ALJ did not err. (AR 600-02.) Plaintiff argues that the ALJ erred. 28 8 For 1 At step two, the ALJ is tasked with identifying a claimant s 2 severe impairments. 20 C.F.R. § 416.920(a)(4)(ii). Severe 3 impairments are impairments that significantly limit an individual's 4 physical or mental ability to do basic work activities. 5 F.3d at 1290; 20 C.F.R. § 416.921(a). 6 at step two, the impairment must last for at least 12 months. 7 C.F.R. §§ 416.909, 416.920(a)(4)(ii). 8 it is merely a slight abnormality (or combination of slight 9 abnormalities) that has no more than a minimal effect on the ability Smolen, 80 In addition, to meet the test 20 An impairment is not severe if 10 to do work activities. 11 2005) (quoting Social Security Ruling No. 96-3p). 12 inquiry is intended to be a "de minimis screening device." 13 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). 14 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. The step-two Smolen, 80 The ALJ concluded that Plaintiff s anxiety and depression were 15 not severe impairments because they were transient and associated with 16 events in Plaintiff s life that would naturally cause acute distress 17 for short periods of time. 18 finding. 19 psychiatric problems when she experienced turmoil in her life, for 20 instance, when her mother s murder investigation became active, when 21 her son was diagnosed with colitis, when her boyfriend broke up with 22 her, and when a friend committed suicide. 23 (AR 601.) The record supports this The medical records establish that Plaintiff reported (AR 318, 558.) The ALJ also pointed to the fact that Plaintiff never sought the 24 services of a psychiatrist or psychologist and that Drs. Booker and 25 Brubaker never referred her to one. 26 she received was from a social worker in December 2002 and January 27 2003. 28 extensive it was because the only record regarding it is a one- (AR 582.) (AR 601.) The only counseling It is unclear what the counseling was for or how 9 1 sentence letter from the clinic verifying that Plaintiff had undergone 2 counseling. 3 treatment was occasional prescriptions from her treating doctors, who 4 were family doctors, not psychiatrists. 5 (AR 582.) Thus, as the ALJ noted, her only real (AR 601.) The ALJ also pointed out that the only specialists who offered 6 opinions in this case, two reviewing psychiatrists, found that 7 Plaintiff s mental impairments were not severe. 8 too, is a valid reason for rejecting the treating doctors opinions 9 that Plaintiff s impairments were severe. (AR 246, 284.) This, Smolen, 80 F.3d at 1285 10 (noting opinions of specialists are entitled to more weight than those 11 of general practitioners). 12 Plaintiff argues that the ALJ had a duty to develop the case and 13 obtain evidence of her mental impairments and failed to do so. 14 Stip. at 12.) 15 is ambiguous or when the ALJ finds that the record is inadequate to 16 evaluate the evidence. 17 Cir. 2001). 18 duty to prove that she was disabled. 19 453, 459 (9th Cir. 2001) (citing 42 U.S.C. § 423(d)(5)). 20 case that now spans 12 years, she has never presented any evidence to 21 substantiate her claim that she was severely impaired due to anxiety 22 or depression. 23 administrative hearing in 2008, an ALJ had previously concluded in 24 2002 and 2004 that her mental impairments were not severe. 25 457.) 26 that would support her claim that her impairment is severe or explain 27 why she has not produced them. (Joint That duty, however, is triggered only when the evidence Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th That was not the case here. Moreover, it was Plaintiff s Mayes v. Massanari, 276 F.3d And, in this This, despite the fact that, when she appeared for the (AR 332, Nor does Plaintiff describe for the Court what records exist As such, this argument is rejected. 28 10 1 In the end, the Court agrees with the ALJ that Plaintiff did not 2 produce sufficient evidence to establish that she had a mental 3 impairment that was severe and that lasted for more than twelve 4 months. 5 Plaintiff s statements to her doctors and to the Agency, which were 6 not to be believed. 7 condition throughout these proceedings. 8 ALJ s findings that Plaintiff did not have a severe mental or 9 emotional impairment is affirmed. 10 11 D. The only evidence in the record supporting such a claim were At a minimum, Plaintiff was exaggerating her For all these reasons, the The Residual Functional Capacity Finding Plaintiff complains that the ALJ failed to properly take into 12 account all of her severe and non-severe impairments when he 13 determined her residual functional capacity. 14 She points out, for example, that he did not factor in the impact of 15 her migraine headaches or her anxiety and depression in analyzing her 16 ability to work. 17 (Joint Stip. at 14-16.) There is no merit to this claim. The ALJ was only required to include in the residual functional 18 capacity finding those impairments which he found were supported by 19 the evidence. 20 Plaintiff had complained of headaches, (AR 603), but found that she 21 was not credible. 22 headaches in the residual functional capacity finding. 23 881 F.2d at 756-57. 24 depression but concluded that they were not severe impairments. 25 601-02.) 26 functional capacity assessment, either. 27 argument is rejected. Magallanes, 881 F.2d at 756-57. (AR 604.) The ALJ noted that Thus, he was not required to include Magallanes, The ALJ also discussed Plaintiff s anxiety and Thus, they did not have to be included in the residual 28 11 For these reasons, this (AR 1 2 3 IV. CONCLUSION For the reasons set forth above, the Agency s decision is affirmed and the case is dismissed with prejudice. 4 IT IS SO ORDERED. 5 24 DATED: July ____, 2012. 6 7 8 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\MCCLINTOCK, D 4239\memorandum opinion and order.wpd 12
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