David R. Valadez v. Michael J. Astrue, No. 2:2010cv04782 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the reasons set forth above, the Court concludes that the ALJ did not err. The Agency's decision, therefore, is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DAVID R. VALADEZ, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-4782 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for Supplemental Security Income ( SSI ) and Disability 21 Insurance benefits ( DIB ). 22 Law Judge ( ALJ ) erred when he overlooked two reviewing doctors 23 opinions that Plaintiff was too limited to work. 24 explained below, the Court concludes that the ALJ did not err and 25 affirms the Agency s decision denying benefits. 26 27 28 Plaintiff claims that the Administrative For the reasons II. SUMMARY OF PROCEEDINGS On January 21, 2005, Plaintiff applied for SSI, alleging that he was disabled as of December 26, 2003, due to a head injury, hearing 1 loss, loss of equilibrium, dizzy spells, inability to focus, 2 blackouts, and headaches. 3 224-25.) 4 then requested and was granted a hearing before an ALJ. 5 18, 2007, Plaintiff appeared and testified at the hearing. 6 50.) 7 (AR 16-23.) 8 review. 9 the Court reversed the Agency s decision and remanded the case for His claim was denied initially and on reconsideration. He On January (AR 230- On February 7, 2007, the ALJ issued a decision denying benefits. Plaintiff appealed to the Appeals Council, which denied He then filed an action in this court. 10 further proceedings. 11 (AR 478-514.) 12 benefits. On October 30, 2008, On March 30, 2010, the ALJ held another hearing. On April 28, 2010, the ALJ issued a decision denying (AR 251-65.) 13 14 (Administrative Record ( AR ) 55-59, 70-71, This appeal followed. III. DISCUSSION Reviewing physician Greta Johnson determined that Plaintiff had a 15 cognitive disorder, which resulted in moderate impairment in work- 16 related functions. 17 had the residual functional capacity to perform simple routine work 18 with no more than occasional public contact. 19 contends that the ALJ erred in this finding because it is inconsistent 20 with Dr. Johnson s opinion, which the ALJ expressly adopted. 21 Stip. at 4-5.) 22 Johnson s residual functional capacity assessment as evidenced by the 23 fact that the ALJ did not mention it. 24 following reasons, the Court rejects Plaintiff s argument. 25 (AR 442-44, 453-62.) The ALJ found that Plaintiff (AR 261.) Plaintiff (Joint Plaintiff suspects that the ALJ simply overlooked Dr. (Joint Stip. at 5.) For the The ALJ expressly identified Dr. Johnson s residual functional 26 capacity assessment. That assessment is identified in the record as 27 Exhibit 8F and found at pages 442-44 in the record. 28 Johnson s work, the ALJ identified the exhibit and in fact noted that, 2 In addressing Dr. 1 in it, Dr. Johnson had concluded that Plaintiff could perform simple, 2 repetitive tasks. 3 overlooked Dr. Johnson s assessment as evidenced by the fact that he 4 did not mention is rejected because it is contradicted by the record. (AR 261.) Thus, Plaintiff s argument that the ALJ 5 Plaintiff complains that, assuming that the ALJ had considered 6 the assessment, he never explained why he was rejecting it and that 7 that, in and of itself, was error. 8 Plaintiff s argument has a little more traction. 9 (Joint Stip. at 5.) Here, The ALJ never specifically explained his reasons for rejecting 10 Dr. Johnson s findings that Plaintiff was moderately impaired in 11 essentially every functional ability necessary to perform work, i.e., 12 to understand and remember, to concentrate and persist, and to work 13 with supervisors and the general public. 14 but, for the reasons explained below, the ALJ s error was harmless 15 because it did not affect the ultimate non-disability determination. 16 See Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 17 2006) (explaining, in the Social Security context, an error is 18 harmless if it is inconsequential to the ultimate non-disability 19 determination ). 20 Dr. Johnson s opinion by explaining that he was only generally 21 relying on it. 22 concluded that, despite Plaintiff s limitations, he was able to 23 perform simple, repetitive work. 24 also relied on examining doctor Steven Brawer s opinion. 25 After conducting a complete psychological examination, which included 26 intelligence testing, Dr. Brawer concluded that Plaintiff would have 27 little or no limitations on his ability to perform the various 28 functions necessary for work. The ALJ should have done so, To begin with, the ALJ qualified his reliance on (AR 261.) Further, as the ALJ noted, Dr. Johnson (AR 261, 444.) (AR 445-61.) 3 Finally, the ALJ (AR 261.) Since Dr. Brawer was an 1 examining doctor, his opinion was entitled to more weight than Dr. 2 Johnson s, all things being equal. 3 F.3d 1273, 1285-86 (9th Cir. 1996) (citing Pitzer v. Sullivan, 908 4 F.2d 502 (9th Cir. 1990)). 5 Dr. Johnson s opinion was set forth in two check-the-box forms and Dr. 6 Brawer s was explained in a seven-page individualized report. 7 Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (noting 8 individualized medical opinions are preferred over check-the-box 9 forms). See, e.g., Smolen v. Chater, 80 This is especially true where, as here, See For these reasons, the Court concludes that the ALJ s failure 10 to explain why he was not accepting certain parts of Dr. Johnson s 11 opinion and was, instead, accepting the corresponding parts of Dr. 12 Brawer s decision was harmless.1 13 Plaintiff also contends that the ALJ erred by failing to explain 14 why he did not accept reviewing physician Dr. Estrin s finding that 15 Plaintiff could not perform work that involved balancing. 16 Stip. at 5, 7.) 17 found that Plaintiff could not perform work that required balancing in 18 his residual functional capacity determination and incorporated that 19 limitation in the hypothetical question to the vocational expert. 20 257, 510.) (Joint This claim is not supported by the record. The ALJ (AR As such, this argument does not require reversal.2 21 22 23 24 25 26 27 28 1 It does not take much to justify the rejection of a nonexamining doctor s opinion; specific evidence in the medical record is all that is required. Sousa v. Callahan, 143 F.3d 1240, 1244-45 (9th Cir. 1998) ( The Commissioner may reject the opinion of a nonexamining physician by reference to specific evidence in the medical record. ). 2 Plaintiff had also argued that the ALJ erred in failing to provide any reasons for rejecting the stooping limitation found by Dr. Estrin (Joint Stip. at 5-6), but withdrew that argument in light of the Agency s argument in opposition to that claim. 4 1 2 3 4 IV. CONCLUSION For the reasons set forth above, the Court concludes that the ALJ 5 did not err. The Agency s decision, therefore, is affirmed and the 6 case is dismissed with prejudice. 7 IT IS SO ORDERED. 8 DATED: August 22, 2011. 9 10 ________________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 S:\PJW\Cases-Soc Sec\VALADEZ, 4782\memo.opinion and order.wpd 26 27 28 5

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