James Edward Whaley v. Michael J. Astrue, No. 2:2010cv07210 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND 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. (See document for specifics) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JAMES EDWARD WHALEY, Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) Case No. CV 10-7210-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 17 18 19 The Court1 now rules as follows with respect to the four disputed issues listed in the Joint Stipulation ( JS ).2 20 21 1 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 9, 15.) 2 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 Record ( AR ) and the Joint Stipulation filed by the parties. In accordance with 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). (ECF No. 8 at 3.) 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by 4 5 Plaintiff as the grounds for reversal and/or remand are as follows: (1) Whether the Administrative Law Judge ( ALJ ) properly evaluated Plaintiff s mental impairment; 6 7 (2) Whether the ALJ properly considered Plaintiff s testimony; 8 (3) Whether the ALJ properly determined Plaintiff s residual functional capacity ( RFC ); and 9 10 (4) Expert ( VE ). 11 12 Whether the ALJ properly relied on testimony of the Vocational (JS at 6.) 13 II. 14 STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to determine whether the Commissioner s findings are supported by 17 substantial evidence and whether the proper legal standards were applied. 18 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 19 means more than a mere scintilla but less than a preponderance. Richardson 20 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 21 Desrosiers v. Sec y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 22 1988). Substantial evidence is such relevant evidence as a reasonable mind 23 might accept as adequate to support a conclusion. Richardson, 402 U.S. at 24 401 (citation omitted). The Court must review the record as a whole and 25 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 26 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 27 rational interpretation, the Commissioner s decision must be upheld. Gallant v. 28 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. The ALJ found that Plaintiff has severe physical and mental 4 5 impairments, including seizure disorder, alcohol dependence in remission per 6 self-report, mood disorder not otherwise specified, and personality disorder 7 with dependent traits. (AR at 19.) He also found that Plaintiff s medically 8 determinable impairments cause significant limitations in his ability to perform 9 basic work activities. (Id.) The ALJ further found that Plaintiff had the RFC to perform work at all 10 11 exertional levels, with occasional climbing of ramps and stairs. (Id. at 21.) 12 However, he is precluded from climbing ladders, ropes, or scaffolds, and from 13 work around hazards (unprotected heights, moving machinery, etc.). (Id.) 14 Plaintiff was further limited to simple, routine, repetitive work with occasional 15 contact with the public. (Id.) Relying on the testimony of a VE, the ALJ determined that Plaintiff was 16 17 unable to perform his past relevant work of Shipping and Receiving Clerk 18 (Dictionary of Occupational Titles ( DOT ) No. 222.387-050). (AR at 24.) 19 The ALJ also relied on the VE s testimony to determine that there were 20 alternative occupations Plaintiff could perform, such as Product Inspector 21 (DOT No. 712.684-050), Gluer/Labeler (DOT No. 795.687-014), and Product 22 Packer (DOT No. 920.687-166), that exist in significant numbers in the 23 national economy. (AR at 25.) 24 B. 25 The ALJ Properly Evaluated Plaintiff s Mental Impairment. Plaintiff claims that the ALJ erred in translating Plaintiff s mental 26 limitations into an ability to perform only simple, routine, repetitive work 27 without fully considering his impairments. Specifically, Plaintiff faults the 28 ALJ for failing to consider Plaintiff s deficiencies of concentration in 3 1 determining that Plaintiff was capable of performing simple, routine, repetitive 2 work, and by not considering whether Plaintiff would be capable of adapting to 3 the stress of work. (JS at 6-9.) On May 20, 2008, consultative examiner Rosa Colonna, Ph.D., 4 5 conducted a Complete Psychological Evaluation of Plaintiff. (AR at 241-45.) 6 Dr. Colonna reported that Plaintiff s attention and concentration span were 7 mildly diminished. (Id. at 243.) However, Dr. Colonna concluded that 8 Plaintiff was capable of performing simple, repetitive work and would be able 9 to make simplistic work-related decisions without special supervision. (Id. at 10 244-45.) 11 On June 2, 2008, agency physician Raffi Tashjian, M.D., completed a 12 Mental Residual Functional Capacity Assessment and a Psychiatric Review 13 Technique Form. (Id. at 246-59.) Dr. Tashjian reported that Plaintiff was 14 moderately limited in his ability to understand, remember, and carry out 15 detailed instructions, but could complete simple, repetitive tasks. (Id. at 246- 16 48.) Dr. Tashjian gave conflicting indications regarding Plaintiff s ability to 17 maintain concentration, persistence, or pace. On the first page of the 18 Psychiatric Review Technique Form, Dr. Tashjian indicated that Plaintiff was 19 moderately limited in that area. (Id. at 257.) However, on the final page of the 20 form, Dr. Tashjian indicates that Plaintiff is mildly limited in that area. (Id. at 21 259.) 22 On December 10, 2009, just days before Plaintiff s hearing, Plaintiff s 23 treating physician, Noobar Janoian, M.D., completed a general evaluation of 24 Plaintiff s physical and mental impairments. (Id. at 346-50.) Ultimately, Dr. 25 Janoian concluded that Plaintiff will not be able to engage in any type of 26 productive work that requires regular job-related stress, focused attention and 27 concentration, as well as regular contact with coworkers. (Id. at 350.) 28 The ALJ concluded from this evidence that Plaintiff had moderate 4 1 difficulties maintaining concentration, persistence, or pace, but that he would 2 be capable of performing simple, routine, repetitive work. (Id. at 21.) The ALJ 3 found that the opinions of Dr. Janoian were consistent with the opinions of the 4 agency physicians, and thus adopted all of those opinions. (Id. at 23.) 5 The ALJ did not err in failing to consider Plaintiff s limitations in 6 concentration when considering Plaintiff s mental impairment. In Stubbs- 7 Danielson v. Astrue, an examining physician opined that the plaintiff suffered 8 from several mild limitations in areas of mental functioning. Stubbs-Danielson 9 v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008). A state agency physician 10 further identified several moderate limitations in other mental areas, but 11 ultimately concluded [that the plaintiff] retained the ability to carry out simple 12 tasks as evidenced by her ability to do housework, shopping, work on hobbies, 13 cooking and reading. Id. (internal quotation marks omitted). The ALJ 14 concluded that the state agency physician s opinion that the plaintiff was 15 limited to simple tasks included the other limitations opined by the state 16 agency physician. Id. at 1174. Therefore, the Ninth Circuit held that an ALJ s 17 assessment of a claimant adequately captures restrictions related to 18 concentration, persistence, or pace where the assessment is consistent with 19 restrictions identified in the medical testimony. Id. (emphasis added). 20 Here, as the ALJ did in Stubbs-Danielson, the ALJ translated 21 [Plaintiff s] condition . . . into the only concrete restrictions available to him . . 22 . simple tasks. Id. Dr. Janoian did not define what he meant by focused 23 attention and concentration. However, the Agency physicians who also found 24 deficits in Plaintiff s ability to pay attention and concentrate agreed that 25 Plaintiff s limitations in this area did not prevent him from carrying out simple, 26 repetitive work. Ultimately, the ALJ s assessment of Plaintiff adequately 27 captured the concentration restrictions identified in the medical testimony. 28 As to Plaintiff s ability to manage work-related stress, there is simply no 5 1 indication from any medical source that Plaintiff was not capable of handling 2 the potential stress related to simple, repetitive work. Although Dr. Janoian 3 stated that Plaintiff could not perform work requiring regular job-related 4 stress, he again failed to define his conclusion. (AR at 350.) As a result, it is 5 thus unclear whether Dr. Janoian intended to prevent Plaintiff from engaging in 6 work that was accompanied by a stress level that might be found in an average 7 work-place scenario, or whether he might have intended to prevent Plaintiff 8 from engaging in work that resulted in job-related stress on a regular or 9 consistent basis. On the other hand, Dr. Colonna concluded that Plaintiff was 10 capable of making simplistic work-related decisions without special 11 supervision. (Id. at 244-45.) Notwithstanding Dr. Janoian s opinion, there is 12 no evidence that the jobs identified by the ALJ would result in any quantifiable 13 job-related stress or that Plaintiff would be incapable of managing these types 14 of positions. In the end, it is the Plaintiff s burden to prove disability, Bayliss 15 v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005), and Plaintiff has failed to 16 prove that he is incapable of managing the stress, if any, potentially inherent in 17 the jobs identified by the ALJ. Based on the foregoing, the Court finds the ALJ properly assessed 18 19 Plaintiff s mental impairment. Thus, there was no error. 20 C. 21 The ALJ Properly Considered Plaintiff s Testimony. Plaintiff next contends that the ALJ erred by failing to provide clear and 22 convincing reasons for discrediting Plaintiff s testimony regarding his 23 subjective complaints. (JS at 12-14.) 24 1. Applicable Law. 25 An ALJ s assessment of pain severity and claimant credibility is entitled 26 to great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); 27 Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s 28 disbelief of a claimant s testimony is a critical factor in a decision to deny 6 1 benefits, the ALJ must make explicit credibility findings. Rashad v. Sullivan, 2 903 F.2d 1229, 1231 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 3 (9th Cir. 1981); see also Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) 4 (an implicit finding that claimant was not credible is insufficient.) 5 An ALJ s credibility finding must be properly supported by the record 6 and sufficiently specific to ensure a reviewing court that the ALJ did not 7 arbitrarily reject a claimant s subjective testimony. Bunnell v. Sullivan, 947 8 F.2d 341, 345-47 (9th Cir. 1991). An ALJ may properly consider testimony 9 from physicians . . . concerning the nature, severity, and effect of the 10 symptoms of which [claimant] complains, and may properly rely on 11 inconsistencies between claimant s testimony and claimant s conduct and daily 12 activities. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) 13 (citation omitted). An ALJ also may consider [t]he nature, location, onset, 14 duration, frequency, radiation, and intensity of any pain or other symptoms; 15 [p]recipitating and aggravating factors ; [t]ype, dosage, effectiveness, and 16 adverse side-effects of any medication ; [t]reatment, other than medication ; 17 [f]unctional restrictions ; [t]he claimant s daily activities ; unexplained, or 18 inadequately explained, failure to seek treatment or follow a prescribed course 19 of treatment ; and ordinary techniques of credibility evaluation, in assessing 20 the credibility of the allegedly disabling subjective symptoms. Bunnell, 947 21 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. § 404.1529 (2005); 22 Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) 23 (ALJ may properly rely on plaintiff s daily activities, and on conflict between 24 claimant s testimony of subjective complaints and objective medical evidence 25 in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may 26 properly rely on weak objective support, lack of treatment, daily activities 27 inconsistent with total disability, and helpful medication); Johnson v. Shalala, 28 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact that only 7 1 conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 748, 2 750 (9th Cir. 1995) (ALJ may properly rely on claimant s daily activities and 3 the lack of side effects from prescribed medication). 4 2. Analysis. 5 The Court finds that the ALJ provided clear and convincing reasons for 6 finding Plaintiff s subjective complaints less than credible and that any error 7 was harmless. 8 9 The ALJ found that Plaintiff s medically determinable impairments could reasonably be expected to cause the alleged symptoms, but that 10 Plaintiff s statements concerning the intensity, persistence, and limiting effects 11 of the symptoms were not credible to the extent they conflicted with the ALJ s 12 RFC assessment. (AR at 22.) 13 Plaintiff alleged that a mass in the left side of his neck caused him to 14 become dizzy and lightheaded when he turned his neck. (Id. at 57.) With 15 respect to this allegation, the ALJ did not reject Plaintiff s complaints, but 16 merely concluded that the record was devoid of evidence to indicate that this 17 growth creates any limitation in his ability to perform work related activities. 18 (Id. at 19.) The record supports the ALJ s reasoning on this point. There is no 19 medical evidence supporting Plaintiff s allegation. More importantly, Plaintiff 20 did not allege that his symptoms of dizziness and lightheadedness were so 21 severe as to preclude work activity beyond the limitations the ALJ provided for 22 Plaintiff s seizure disorder, i.e., no climbing ladders, ropes, or scaffolds, and no 23 exposure to heights or moving machinery. (Id. at 21.) 24 In addition, with respect to all of Plaintiff s alleged symptoms stemming 25 from his mental impairments, the allegations were credited by the ALJ and 26 incorporated into his RFC assessment. (Id. at 20-21, 23.) 27 28 Next, Plaintiff alleged limitations with respect to his left shoulder resulting from being hit by a car while riding his bicycle. (Id. at 37-38, 60.) 8 1 The ALJ rejected the severity of Plaintiff s shoulder complaints because of the 2 conservative treatment sought and received by Plaintiff. (Id. at 19-20.) This is 3 a legitimate reason for rejecting Plaintiff s complaints regarding his shoulder 4 injury. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996) (ALJ may 5 properly rely on unexplained or inadequately explained failure to seek 6 treatment); Johnson, 60 F.3d at 1432 (ALJ may properly rely on the fact that 7 only conservative treatment had been prescribed). 8 9 Plaintiff further testified that he suffers from major seizures four to five times per year, and smaller seizures one to two times per month. (AR at 38.) 10 The ALJ rejected Plaintiff s complaints regarding his seizures on the basis that 11 Plaintiff has a history of noncompliance with his medications and that his 12 condition is well controlled with medication when used in accordance with 13 prescribed treatment. The ALJ credited Plaintiff s claims that he was 14 noncompliant with medication because he could not afford the cost of the 15 medication, but found evidence that Plaintiff had also been noncompliant for 16 unjustified reasons. (Id. at 22.) The record supports the ALJ s conclusion. For 17 instance, on January 16, 2007, Plaintiff underwent a neurology evaluation at 18 Olive View Medical Center. He indicated at that time that he had not filled his 19 prescription because he didn t want to wait. (Id. at 166.) The doctor 20 concluded at that time that Plaintiff was noncompliant with his medications. 21 (Id. at 167.) This was a sufficient basis upon which the ALJ could reject the 22 severity of symptoms alleged by Plaintiff. Smolen, 80 F.3d at 1284. 23 Finally, there is evidence in the record of Plaintiff s knee problems (id. at 24 191, 269, 308, 337), and there are extensive reports throughout the record 25 regarding Plaintiff s complaints of headaches (id. at 195, 206, 242, 264, 274, 26 276, 286, 297, 303, 304, 306, 313, 314, 320, 336, 339, 346, 349, 355, 370, 27 372). In addition, Plaintiff complained at the hearing before the ALJ that he 28 has gotten headaches every day for the past few years. (Id. at 43.) Later in 9 1 his testimony, Plaintiff clarified that he gets one or two headaches of about 20 2 minute duration every couple of days, and gets headaches lasting about 12 3 hours once or twice every three to four months. (Id. at 58.) Plaintiff testified 4 that he does not take medication such as Excedrin or Aleve for his short 5 headaches because [t]hey would take too long, and most of the time it never 6 even works. (Id at 59.) Plaintiff also testified that he continues to suffer from 7 knee pain. (Id. at 43.) The ALJ never explicitly discussed Plaintiff s 8 headaches or knee pain anywhere in his opinion. However, the ALJ did appear 9 to give a general rejection of Plaintiff s credibility as a whole based on what 10 the ALJ deemed to be inconsistencies in Plaintiff s statements regarding his 11 past use of alcohol. The ALJ stated: 12 Moreover, the claimant s credibility is further reduced by his 13 own reported history of alcohol abuse. At the hearing in December 14 2009, the claimant testified that he had not drunk alcohol in one year. 15 However, at the complete psychological evaluation in May 2008, he 16 stated that he had not had alcohol for several years. 17 inconsistent statements tend to undercut the claimant s credibility 18 regarding his subjective allegations. Accordingly, I have given his 19 allegations of disabling symptoms less weight and find that he does 20 not have limitations beyond those stated in the residual functional 21 capacity given above. 22 23 These (Id. at 23.) The Court finds that this reasoning is not clear and convincing. It is 24 simply not inconsistent for Plaintiff to state that he did not drink alcohol for 25 several years prior to his May 2008 evaluation and again for about one year 26 prior to his December 2009 hearing. It is possible that Plaintiff abstained from 27 alcohol for several years before May 2008, consumed alcohol sometime 28 between May 2008 and December 2008, and again abstained from alcohol for 10 1 the one year between December 2008 and December 2009. Despite the fact that the ALJ s reason is not clear and convincing, the 2 3 error was harmless as it relates to Plaintiff s complaints of headache and knee 4 pain, as it is inconsequential to the ultimate decision and the ALJ s disability 5 determination nonetheless remains valid. Carmickle v. Comm r, Soc. Sec. 6 Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). Despite Plaintiff s complaints of headaches and knee pain, no treating 7 8 source ever provided any specific treatment. Certainly, no medical source ever 9 found that Plaintiff s headaches and knee pain prevented him from working. 10 Similarly, although Plaintiff testified to the headache and knee pain, his 11 testimony did not indicate that he would be prevented from any type of work 12 activity because of the pain. Most significantly, Plaintiff s treating source took 13 Plaintiff s headaches and knee impairment into consideration in concluding 14 that Plaintiff could not engage in any type of productive work that requires 15 regular job-related stress, focused attention and concentration, as well as 16 regular contact with coworkers. (AR at 346, 347, 349, 350.) Based on the 17 medical evidence and Plaintiff s own testimony, even had the ALJ fully 18 credited Plaintiff s complaints of headache pain, it would not have provided a 19 basis on which to conclude that he was disabled. On these facts, any error in not considering Plaintiff s headaches and 20 21 knee pain is inconsequential to the ultimate decision because the ALJ's 22 disability determination nonetheless remains valid. Based on the foregoing, the 23 Court finds the ALJ did not error in rejecting Plaintiff s credibility and any 24 potential error was harmless. Thus, there was no error. 25 D. 26 The ALJ Properly Determined Plaintiff s RFC. Plaintiff alleges that the ALJ erred in assessing Plaintiff s RFC because 27 the ALJ did not consider the combination of all of Plaintiff s alleged 28 impairments. (JS at 22-26.) 11 1 Plaintiff s allegations are simply unsupported by the record. In his 2 December 10, 2009, report, Plaintiff s treating physician, Dr. Janoian, took into 3 account an exhaustive list of complaints and alleged impairments from 4 Plaintiff s medical history. (AR at 346-50.) Dr. Janoian ultimately concluded 5 in this report that Plaintiff could not engage in any type of productive work 6 that requires regular job-related stress, focused attention and concentration, as 7 well as regular contact with coworkers. (Id. at 350.) This conclusion, which 8 encompassed all of Plaintiff s limitations and impairments, was adopted by the 9 ALJ and included in the ALJ s RFC assessment. (Id. at 23.) Thus, there was 10 no error. 11 E. 12 The ALJ Properly Relied on the VE. Plaintiff contends that the ALJ failed to incorporate all of Plaintiff s 13 limitations into the hypothetical question he posed to the VE. (JS at 28-31.) 14 In order for the testimony of a VE to be considered reliable, the 15 hypothetical posed must include all of the claimant s functional limitations, 16 both physical and mental supported by the record. Thomas, 278 F.3d at 956 17 (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical 18 questions posed to a VE need not include all alleged limitations, but rather only 19 those limitations that the ALJ finds to exist. See, e.g., Magallanes v. Bowen, 20 881 F.2d 747, 756-57 (9th Cir. 1989); Copeland v. Bowen, 861 F.2d 536, 540 21 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). 22 Thus, an ALJ must propose a hypothetical that is based on medical 23 assumptions, supported by substantial evidence in the record, that reflects the 24 claimant s limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 25 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995)); see also 26 Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (although the 27 hypothetical may be based on evidence which is disputed, the assumptions in 28 the hypothetical must be supported by the record). 12 1 As discussed above, the ALJ properly determined Plaintiff s RFC. The 2 hypothetical to the VE included those restrictions the ALJ properly found to 3 exist. (AR at 61.) Additionally, the VE independently noted that the Plaintiff 4 could not perform his prior job as a shipping and receiving clerk (DOT 5 222.387.050) because that semiskilled job went beyond simple, routine, 6 repetitive work. (Id. at 62.) Thus, he implicitly took into account the opinions 7 of Dr. Janoian and the agency physicians. 8 Based on the foregoing, the Court finds there was no error in the ALJ s 9 hypothetical question to the VE. Rollins v. Massanari, 261 F.3d 853, 857 (9th 10 Cir. 2001) ( Because the ALJ included all of the limitations that he found to 11 exist, and because his findings were supported by substantial evidence, the ALJ 12 did not err in omitting the other limitations that Rollins had claimed, but had 13 failed to prove. ). 14 IV. 15 ORDER 16 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment 17 be entered affirming the decision of the Commissioner, and dismissing this 18 action with prejudice. 19 20 21 22 DATED: November 9, 2011 HONORABLE OSWALD PARADA United States Magistrate Judge 23 24 25 26 27 28 13

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