Neway Mengistu v. Michael J. Astrue, No. 2:2010cv05227 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NEWAY MENGISTU, 12 Plaintiff, 13 v. 14 15 16 17 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 10-5227 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. SUMMARY 20 On July 21, 2010, plaintiff Neway Mengistu ( plaintiff ) filed a Complaint 21 seeking review of the Commissioner of Social Security s denial of plaintiff s 22 application for benefits. The parties have consented to proceed before a United 23 States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; August 3, 2010 Case Management Order, ¶ 5. 28 /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On May 8, 2007, plaintiff filed applications for Supplemental Security 7 Income benefits and Disability Insurance Benefits. (Administrative Record 8 ( AR ) 14, 113, 115). Plaintiff asserted that he became disabled on May 6, 2006,2 9 due to chronic/acute asthmatic bronchitis, severe nausea, severe migraine 10 headaches, a very weak heart and a severe bladder problem. (AR 14, 152). The 11 ALJ examined the medical record and heard testimony from plaintiff (who was 12 represented by counsel), a medical expert and a vocational expert on May 13, 13 2009. (AR 26). 14 On July 21, 2009, the ALJ determined that plaintiff was not disabled 15 through the date of the decision. (AR 14, 24). Specifically, the ALJ found: 16 (1) plaintiff suffered from the following severe impairments: chronic/acute 17 asthmatic bronchitis, diabetes, hypertension, chemical worker s lung, a fractured 18 ankle and hyperlipidemia (AR 16); (2) plaintiff s impairments, considered singly 19 or in combination, did not meet or medically equal one of the listed impairments 20 (AR 17); (3) plaintiff retained the residual functional capacity to perform medium 21 /// 22 /// 23 24 25 26 27 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 Plaintiff initially asserted that he became disabled on February 16, 1993, but changed his 28 onset date to May 6, 2006 at the administrative hearing. (AR 14, 152). 2 1 work,3 but must avoid concentrated fumes, odors, dusts, gasses and poorly 2 ventilated areas (AR 18); (4) plaintiff could perform his past relevant work as a 3 security guard (AR 23); and (6) plaintiff s allegations regarding his limitations 4 were not credible to the extent they are inconsistent with the ALJ s residual 5 functional capacity assessment. (AR 22). 6 The Appeals Council denied plaintiff s application for review. (AR 1). 7 III. APPLICABLE LEGAL STANDARDS 8 A. 9 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 10 engage in any substantial gainful activity by reason of a medically determinable 11 physical or mental impairment which can be expected to result in death or which 12 has lasted or can be expected to last for a continuous period of at least twelve 13 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 14 § 423(d)(1)(A)). The impairment must render the claimant incapable of 15 performing the work he previously performed and incapable of performing any 16 other substantial gainful employment that exists in the national economy. Tackett 17 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 18 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 19 sequential evaluation process: 20 (1) 21 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 22 (2) Is the claimant s alleged impairment sufficiently severe to limit 23 his ability to work? If not, the claimant is not disabled. If so, 24 proceed to step three. 25 /// 26 27 28 3 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work. 20 C.F.R. §§ 404.1567(c), 416.967(c). 3 1 (3) Does the claimant s impairment, or combination of 2 impairments, meet or equal an impairment listed in 20 C.F.R. 3 Part 404, Subpart P, Appendix 1? If so, the claimant is 4 disabled. If not, proceed to step four. 5 (4) Does the claimant possess the residual functional capacity to 6 perform his past relevant work? If so, the claimant is not 7 disabled. If not, proceed to step five. 8 (5) 9 Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 10 experience, allow him to adjust to other work that exists in 11 significant numbers in the national economy? If so, the 12 claimant is not disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 14 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 15 The claimant has the burden of proof at steps one through four, and the 16 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 17 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 18 (claimant carries initial burden of proving disability). 19 B. 20 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 21 benefits only if it is not supported by substantial evidence or if it is based on legal 22 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 23 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 24 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 25 mind might accept as adequate to support a conclusion. Richardson v. Perales, 26 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 27 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 28 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 4 1 To determine whether substantial evidence supports a finding, a court must 2 consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 A. 10 11 The ALJ Properly Evaluated Plaintiff s Credibility 1. Pertinent Law Questions of credibility and resolutions of conflicts in the testimony are 12 functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th 13 Cir. 2006). If the ALJ s interpretation of the claimant s testimony is reasonable 14 and is supported by substantial evidence, it is not the court s role to second15 guess it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). 16 An ALJ is not required to believe every allegation of disabling pain or other 17 non-exertional impairment. Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007) 18 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes 19 the existence of a medically determinable impairment that could reasonably give 20 rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as 21 to the credibility of the claimant s statements about the symptoms and their 22 functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the 23 record includes objective medical evidence that the claimant suffers from an 24 impairment that could reasonably produce the symptoms of which the claimant 25 complains, an adverse credibility finding must be based on clear and convincing 26 reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 27 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does 28 not apply is when there is affirmative evidence of malingering. Id. The ALJ s 5 1 credibility findings must be sufficiently specific to allow a reviewing court to 2 conclude the ALJ rejected the claimant s testimony on permissible grounds and 3 did not arbitrarily discredit the claimant s testimony. Moisa v. Barnhart, 367 4 F.3d 882, 885 (9th Cir. 2004). 5 To find the claimant not credible, an ALJ must rely either on reasons 6 unrelated to the subjective testimony (e.g., reputation for dishonesty), internal 7 contradictions in the testimony, or conflicts between the claimant s testimony and 8 the claimant s conduct (e.g., daily activities, work record, unexplained or 9 inadequately explained failure to seek treatment or to follow prescribed course of 10 treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 11 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant s 12 testimony solely because it is not substantiated affirmatively by objective medical 13 evidence, the lack of medical evidence is a factor that the ALJ can consider in his 14 credibility assessment. Burch, 400 F.3d at 681. 15 16 2. Pertinent Facts Beginning in 1993, Dr. Garland Dodoo, a physician at Health Care Institute 17 Medical Group, treated plaintiff for symptoms stemming from plaintiff s exposure 18 to several toxic chemicals in approximately 1991 to 1993 (i.e., migraine headache, 19 persistent nausea, respiratory difficulty, anxiety). (AR 264, 268, 323). 20 In progress notes dated August 22, 2007, Dr. Dodoo, stated that plaintiff s 21 symptoms responded to [treatment with] Pepcid, Atrovent and Amytriptylline. 22 (AR 323). Dr. Dodoo noted that, although plaintiff still had symptoms, they were 23 not as frequent as in the past. (AR 323). 24 On September 19, 2007, Dr. Kristof Siciarz, a state-agency physician, 25 performed an internal medicine evaluation of plaintiff which included a physical 26 examination. (AR 307). Dr. Siciarz observed that plaintiff s chest appeared 27 symmetric, and respiratory auscultation revealed normal excursions without any 28 appreciable wheezing, rhonchi, or rubs. (AR 309). A pulmonary function test 6 1 revealed only mild restrictive component and [n]o change with bronchodilator 2 challenge. Based on his examination of plaintiff, Dr. Siciarz opined that plaintiff 3 (i) could push, pull, lift and/or carry 50 pounds occasionally and 25 pounds 4 frequently; (ii) stand and/or walk six hours in an eight-hour work day; (iii) had no 5 restrictions in sitting; and (iv) should avoid exposure to dust, pollen, cigarette 6 smoke and noxious elements. (AR 311). 7 On April 16, 2008, Dr. Michael Gurevitch, one of plaintiff s treating 8 physicians, performed a spirometry test and concluded that the test showed 9 breathing restriction. Dr. Gurevitch prescribed Advair, and planned a follow up 10 breathing test. (AR 19) (citing Exhibit 10F at 3, 4 [AR 389-90]). In June 5, 2008 11 treatment notes, Dr. Gurevitch observed that after treatment plaintiff had 12 remarkably improved, noting specifically that treatment with Advair appeared to 13 have been quite effective as each visit shows progressive improvement, most 14 notable in the small airways. (AR 19) (citing Exhibit 13F at 5, 6 [AR 407-08]). 15 Dr. Allison Diamant was the attending physician at UCLA Medical Center 16 when plaintiff was hospitalized from March 30, 2009 to April 3, 2009 after 17 fracturing his right foot. (AR 351-86). UCLA Medical Center records from 18 plaintiff s hospitalization reflect the following: A chest x-ray showed that 19 plaintiff s lungs were essentially clear with no pleural effusion or significant bony 20 abnormality. Although there was evidence of suboptimal inspiration, there was no 21 acute cardiopulmonary abnormalities. An adult dobutamine stress echo report 22 reflected normal wall motion without evidence of dobutamine-induced ischemia. 23 During a stress treadmill dobutamine test plaintiff denied chest pain and shortness 24 of breath. A pulmonary function test or spirometry reflected moderately reduced 25 FVC and FEV1, normal FEV1/FVC ratio, normal FEF 25-75 with moderately 26 reduced lung volumes, moderately reduced TLC and mildly reduced DLCO. (AR 27 20) (citing Exhibit 9F at 5, 12 [AR 354, 361]). An echocardiogram reflected 28 /// 7 1 normal left ventricular size, wall thickness, wall motion and systolic function. 2 (AR 20) (citing Exhibit 9F at 9 [AR 358]). 3 4 3. Analysis Plaintiff contends that the ALJ inadequately evaluated the credibility of his 5 subjective complaints. (Plaintiff s Motion at 2-9). The Court disagrees. 6 First, in assessing credibility, an ALJ may properly rely on a plaintiff s 7 unexplained failure to request treatment consistent with the alleged severity of his 8 symptoms. Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) (en banc); 9 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999); see Tidwell v. Apfel, 161 10 F.3d 599, 602 (9th Cir. 1999) (lack of treatment and reliance upon nonprescription 11 pain medication clear and convincing reasons for partially rejecting [claimant s] 12 pain testimony ); Fair, 885 F.2d at 604 (ALJ permissibly considered discrepancies 13 between the claimant s allegations of persistent and increasingly severe pain and 14 the nature and extent of treatment obtained). Here, the ALJ concluded that, apart 15 from plaintiff s treatment in 1993 for his chemical exposure and in 2009 for his 16 ankle fracture, the medical records reflect that plaintiff had not sought treatment 17 for his impairments as frequently as one would expect if [plaintiff s] symptoms 18 were as limiting as alleged. (AR 22). Plaintiff points to nothing in the medical 19 evidence which reflects that he sought treatment for his subjective symptoms more 20 than on a sporadic basis over the years.4 21 Second, the ALJ properly discredited plaintiff s subjective complaints as 22 inconsistent with plaintiff s daily activities. See Thomas v. Barnhart, 278 F.3d 23 947, 958-59 (9th Cir. 2002) (inconsistency between the claimant s testimony and 24 the claimant s conduct supported rejection of the claimant s credibility); Verduzco 25 v. Apfel,188 F.3d 1087, 1090 (9th Cir. 1999) (inconsistencies between claimant s 26 27 28 4 As respondent notes, the case law cited by petitioner does not support petitioner s suggestion that the ALJ was required to inquire whether plaintiff could explain the failure to request treatment consistent with the alleged severity of his symptoms. 8 1 testimony and actions cited as a clear and convincing reason for rejecting the 2 claimant s testimony). For example, the ALJ noted that plaintiff lives alone, that 3 plaintiff has been able to keep up with his own personal grooming, cooking, and 4 shopping, and that he uses public transportation.5 (AR 22) (citing Exhibits 8E 5 [AR 178-90], 7F [AR 335-38], 8F [AR 339-49]). 6 Finally, an ALJ may discredit a plaintiff s subjective symptom testimony in 7 part based on conflicts with objective medical evidence. See Burch, 400 F.3d at 8 681; Rollins, 261 F.3d at 857 ( While subjective pain testimony cannot be rejected 9 on the sole ground that it is not fully corroborated by objective medical evidence, 10 the medical evidence is still a relevant factor in determining the severity of the 11 claimant s pain and its disabling effects. ) (citation omitted). Here, contrary to 12 plaintiff s allegations of disabling limitations, the ALJ found that the objective 13 medical evidence reflects only mild exertional limitations which were sufficiently 14 managed by plaintiff s medication. (AR 22). As the ALJ noted, the opinions of 15 Dr. Siciarz based on an independent examination of plaintiff also conflict with 16 plaintiff s allegations of significant functional limitations. While plaintiff 17 contends that the objective medical evidence actually supports his credibility, this 18 Court will not second-guess the ALJ s reasonable interpretation that it does not, 19 even if such evidence could give rise to inferences more favorable to plaintiff. 20 Accordingly, a remand or reversal on this basis is not warranted. 21 22 23 24 25 26 27 28 5 Citing Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001), plaintiff argues that the mere fact that he was able to carry out such daily activities is not a clear and convincing reason for discrediting his testimony. (Plaintiff s Motion at 6). Plaintiff s reliance on the holding in Vertigan, however, is misplaced. (Plaintiff s Motion at 6). In Vertigan, the ALJ discredited plaintiff s subjective complaints of pain based solely on plaintiff s daily activities which, the Ninth Circuit noted, did not consume a substantial part of plaintiff s day. Vertigan, 260 F.3d at 1049-50. The Ninth Circuit concluded that, considering the insubstantial nature of plaintiff s daily activities, evidence of plaintiff s constant quest for medical treatment and pain relief refuted the ALJ s adverse credibility finding. Id. at 1050. Here, unlike in Vertigan, the ALJ gave several clear and convincing reasons for discrediting plaintiff s subjective complaints, including, as noted above, plaintiff s unexplained failure to request treatment consistent with the alleged severity of his symptoms. 9 1 B. 2 The ALJ Properly Evaluated the Opinions of Plaintiff s Treating Physicians 3 Plaintiff contends that the ALJ improperly rejected the opinions of 4 plaintiff s treating physicians, Drs. Diamant and Dodoo.6 (Plaintiff s Motion at 95 18). The Court finds that a remand or reversal on this basis is not warranted. 6 1. 7 Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 8 opinions depending on the nature of the services provided. Courts distinguish 9 among the opinions of three types of physicians: those who treat the claimant 10 ( treating physicians ) and two categories of nontreating physicians, namely 11 those who examine but do not treat the claimant ( examining physicians ) and 12 those who neither examine nor treat the claimant ( nonexamining physicians ). 13 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 14 treating physician s opinion is entitled to more weight than an examining 15 physician s opinion, and an examining physician s opinion is entitled to more 16 weight than a nonexamining physician s opinion.7 See id. In general, the opinion 17 of a treating physician is entitled to greater weight than that of a non-treating 18 physician because the treating physician is employed to cure and has a greater 19 opportunity to know and observe the patient as an individual. Morgan v. 20 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 21 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 22 /// 23 24 25 26 6 Although the status of Dr. Diamant as a treating physician appears to be disputed, this Court assumes, without deciding that Dr. Diamant qualifies as such as doing so does not alter the outcome of this matter. 7 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to 27 draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment 28 relationship and frequency and nature of the contact) (citation omitted). 10 1 The treating physician s opinion is not, however, necessarily conclusive as 2 to either a physical condition or the ultimate issue of disability. Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 4 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 5 contradicted by another doctor, it may be rejected only for clear and convincing 6 reasons. Orn, 495 F.3d at 632 (citation and internal quotations omitted). The ALJ 7 can reject the opinion of a treating physician in favor of another conflicting 8 medical opinion, if the ALJ makes findings setting forth specific, legitimate 9 reasons for doing so that are based on substantial evidence in the record. Id. 10 (citation and internal quotations omitted); Thomas, 278 F.3d at 957 (ALJ can meet 11 burden by setting out detailed and thorough summary of facts and conflicting 12 clinical evidence, stating his interpretation thereof, and making findings) (citations 13 and quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not 14 recite magic words to reject a treating physician opinion court may draw 15 specific and legitimate inferences from ALJ s opinion). The ALJ must do more 16 than offer his conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 17 1988). He must set forth his own interpretations and explain why they, rather 18 than the [physician s], are correct. Id. Broad and vague reasons for rejecting 19 the treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 20 599, 602 (9th Cir. 1989). 21 22 23 2. Dr. Diamant a. Pertinent Facts On April 30, 2009, Dr. Diamant completed a Residual Functional Capacity 24 Questionnaire (Physical) form in which she opined that plaintiff: (i) could sit 25 continuously for no more than 45 minutes, and currently could not stand at all 26 (apparently due to plaintiff s fractured foot); (ii) could stand/walk less than two 27 hours and sit about two hours in an eight hour work day; (iii) would need to take 28 unscheduled, 15-20 minute breaks every 2-3 hours; (iv) would need to have his 11 1 legs elevated with prolonged sitting; (v) could lift and/or carry no more than 10 2 pounds occasionally; (vi) could reach with his arms only five percent of an eight 3 hour work day; (vii) must avoid all exposure to extreme cold/heat, high humidity, 4 chemicals, solvents/cleaners, soldering fluxes, cigarette smoke, perfumes, fumes, 5 odors, dusts and gases; and (viii) would likely be absent from work more than 6 three days per month. (AR 396-402). 7 In a letter dated May 22, 2009, Dr. Diamant summarized the objective 8 findings from clinical and laboratory testing conducted during plaintiff s 2009 9 hospitalization at UCLA Medical Center, and opined that plaintiff was disabled 10 at that time due to likely diagnosis of bronchiolitis obliterans secondary to the 11 prior chemical exposure to [plaintiff s] lungs in 1993. (AR 420-22). 12 13 b. Discussion Dr. Diamant s opinion that plaintiff was essentially incapable of performing 14 even sedentary work is contradicted by the treatment records from plaintiff s 15 hospitalization at UCLA Medical Center. As noted above, the ALJ determined 16 that the objective medical findings in such records reflect only mild functional 17 limitations from plaintiff s conditions which had been sufficiently managed by 18 medication. (AR 20-21). Moreover, as the ALJ correctly notes, neither Dr. 19 Diamant s April 30 form nor her May 22 letter points to any other objective 20 medical findings that would support limitations beyond those already accounted 21 for in the ALJ s residual functional capacity assessment. (AR 20-21, 396-402, 22 420-22). Therefore, to the extent the ALJ rejected Dr. Diamant s opinions, she 23 properly did so for clear and convincing reasons based on substantial evidence. 24 See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (A discrepancy 25 between a physician s notes and recorded observations and opinions and the 26 physician s assessment of limitations is a clear and convincing reason for rejecting 27 the opinion.); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 28 (affirming ALJ s rejection of physician s opinion as unsupported by physician s 12 1 treatment notes); cf. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 2 (an ALJ need not accept a treating physician s opinions that are conclusory and 3 brief, or unsupported by clinical findings or physician s own treatment notes). 4 Although plaintiff disagrees with the ALJ s interpretation of the medical evidence, 5 the Court will not second-guess the ALJ s reasonable conclusions. 6 Moreover, the ALJ properly rejected Dr. Diamant s opinions in favor of the 7 conflicting opinions of Dr. Siciarz, the state-agency examining physician, Dr. 8 Rosa Halpern, the state-agency reviewing physician, and Dr. Harvey Alpern, the 9 testifying medical expert each of whom found no limitations beyond those 10 already accounted for in the ALJ s residual functional capacity assessment. (AR 11 26-27, 33, 272-79). The opinion of Dr. Siciarz was supported by his independent 12 examination of plaintiff, and thus, even without more, constituted substantial 13 evidence upon which the ALJ could properly rely to reject the treating physician s 14 opinions. See, e.g., Tonapetyan, 242 F.3d at 1149 (consultative examiner s 15 opinion on its own constituted substantial evidence, because it rested on 16 independent examination of claimant); Andrews v. Shalala, 53 F.3d 1035, 1041 17 (9th Cir. 1995). The opinions of the state agency reviewing physician and the 18 testifying medical expert also constitute substantial evidence supporting the ALJ s 19 decision since they are consistent with the examining physician s opinions and 20 underlying independent examination, as well as the other medical evidence in the 21 record. See Tonapetyan, 242 F.3d at 1149 (holding that opinions of nontreating or 22 nonexamining doctors may serve as substantial evidence when consistent with 23 independent clinical findings or other evidence in the record); Andrews, 53 F.3d at 24 1041 ( reports of the nonexamining advisor need not be discounted and may serve 25 as substantial evidence when they are supported by other evidence in the record 26 and are consistent with it ); Morgan, 169 F.3d at 600 (testifying medical expert 27 /// 28 /// 13 1 opinions may serve as substantial evidence when they are supported by other 2 evidence in the record and are consistent with it ). 3 4 5 6 Accordingly, a remand or reversal on this basis is not warranted. 3. Dr. Dodoo a. Pertinent Facts In a letter dated May 5, 2008, Dr. Dodoo opined that [plaintiff s] history 7 and test results suggest that he currently has incapacitating respiratory symptoms 8 which are likely to deteriorate with age. (AR 394). 9 On May 1, 2009, Dr. Dodoo completed a Residual Functional Capacity 10 Questionnaire (Physical) form in which he opined that plaintiff: (i) had no pain 11 associated with his conditions; (ii) had symptoms which would frequently interfere 12 with attention and concentration, and had a severe limitation in his ability to deal 13 with work stress; (iii) could continuously sit for no more than one hour, and stand 14 at one time for only 20 minutes; (iv) could stand/walk about two hours and sit 15 about four hours in an eight hour work day; (v) would need to take unscheduled, 16 15 minute breaks twice a day; (vi) could lift and/or carry less than 10 pounds 17 frequently, and no more than 10 pounds occasionally; (vii) had no significant 18 limitations in repetitive reaching, handling or fingering; (viii) must avoid all 19 exposure to extreme cold/heat, high humidity, chemicals, solvents/cleaners, 20 soldering fluxes, cigarette smoke, perfumes, fumes, odors, dusts and gases; and 21 (ix) would likely be absent from work more than three days per month. (AR 41122 17). Dr. Dodoo also opined that [s]ignificant emotional factors [exacerbated 23 plaintiff s] anxiety, depression [and] migraine headaches and increased shortness 24 of breath which impair [plaintiff s] overall functional ability, and thus render 25 plaintiff disabled. (AR 417). 26 27 b. Discussion The May 1, 2009, form Dr. Dodoo submitted contained essentially check- 28 the-box opinions with no adequate explanations for findings that brought the 14 1 doctor to conclude plaintiff was disabled. (AR 411-17). As the ALJ noted, Dr. 2 Dodoo referenced Dr. Gurevitch s April 16, 2008 clinical findings which showed 3 plaintiff with impaired lung function, but made no mention of Dr. Gurevitch s 4 findings in June 5, 2008 that plaintiff had significantly improved with treatment. 5 (AR 19, 21) (citing Exhibit 13F at 5, 6 [AR 407-08]). As the ALJ also noted, Dr. 6 Dodoo provides no detailed reasoning for his environmental restrictions on 7 plaintiff. Nor does Dr. Dodoo provide any clinical findings (either his own or 8 from another doctor) to support his opinions as to limitations from plaintiff s 9 mental conditions. (AR 21). Moreover, plaintiff s treatment history with Dr. 10 Dodoo and the Health Care Institute Medical Group reflects lengthy periods of 11 time where plaintiff apparently sought no treatment at all. (See AR 239-67, 26812 306, 322-29, 330-34, 389-91, 405-08, 441-44). The ALJ reasonably concluded 13 that such a sparse treatment history is not as extensive as might be expected if 14 plaintiff suffered from the severe impairments reflected in Dr. Dodoo s opinions. 15 Moreover, for the reasons discussed above, the conflicting opinions of the state16 agency examining and reviewing physicians and the testifying medical expert (AR 17 26-27, 33, 272-79) constitute substantial evidence supporting the ALJ s rejection 18 of Dr. Dodoo s opinions. Tonapetyan, 242 F.3d at 1149; Andrews, 53 F.3d at 19 1041; Morgan, 169 F.3d at 600. Therefore, the ALJ properly rejected Dr. Dodoo s 20 conclusory and unsupported opinions for clear and convincing reasons based on 21 substantial evidence. See Batson, 359 F.3d at 1195 (ALJ may discredit treating 22 physicians opinions that are conclusory, brief, and unsupported by record as a 23 whole or by objective medical findings); Connett, 340 F.3d at 875 (treating 24 physician s opinion properly rejected where treating physician s treatment notes 25 provide no basis for the functional restrictions he opined should be imposed on 26 [the claimant] ); Tonapetyan, 242 F.3d at 1149; see also Crane v. Shalala, 76 F.3d 27 251, 253 (9th Cir. 1996) (holding that the ALJ properly rejected doctors opinions 28 because they were check-off reports that did not contain any explanation of the 15 1 bases of their conclusions); Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983) 2 (expressing preference for individualized medical opinions over check-off 3 reports). 4 Accordingly, a remand or reversal on this basis is not warranted.8 5 V. CONCLUSION 6 For the foregoing reasons, the decision of the Commissioner of Social 7 Security is affirmed. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: May 19, 2011 10 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 While plaintiff s request for review was pending before the Appeals Council, plaintiff submitted a medical report dated September 1, 2009 from Dr. Gurevitch ( September 1 Report ) for inclusion in the record. (AR 1, 440-44). Plaintiff suggests that Dr. Gurevitch s findings in the September 1 Report reflect limitations which corroborate Dr. Dodoo s opinions. (Plaintiff s Motion at 16-17). Since the Appeal s Council did not consider the September 1 Report when it denied review, this Court declines to consider such evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007); Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.) ( We properly may consider the additional materials because the Appeals Council addressed them in the context of denying Appellant s request for review. ), cert. denied, 531 U.S. 1038 (2000). In any event, a remand is not warranted based on the new evidence because plaintiff fails to demonstrate that the findings in the September 1 Report would support limitations beyond those already accounted for in the ALJ s residual functional capacity assessment. See Mayes v. Massanari, 276 F.3d 453, 462 (9th Cir. 2001) (To warrant a remand, plaintiff must show that new evidence is material to the ALJ s disability determination). 16

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