Rhonda Mosby v. Michael J. Astrue, No. 2:2010cv07823 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons stated below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 RHONDA MOSBY, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 10-7823-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Rhonda Mosby seeks judicial review of the Social 18 Security Commissioner s denial of her application for disability 19 insurance benefits ( DIB ) and Social Security Disability Insurance 20 ( SSDI ) benefits. For the reasons stated below, the decision of 21 the Commissioner is affirmed and the action is dismissed with 22 prejudice. 23 24 I. Facts and Procedural Background 25 Plaintiff was born on November 25, 1961. She completed high 26 school and has work experience as a certified nurse s assistant. 27 (Administrative Record ( AR ) 17, 98, 102, 106.) Plaintiff filed 28 her applications for benefits on November 29, 2007, alleging 1 1 disability beginning 2 bipolar disorder, and back, hand and leg pain. (AR 45, 90, 101.) 3 Her application was denied initially on May 30, 2008. (AR 47-51.) 4 An administrative hearing was held on June 24, 2009, before 5 Administrative Law Judge ( ALJ ) Maxine R. Benmour. Plaintiff was 6 represented by counsel and testified on her own behalf. (AR 24-37.) 7 ALJ Benmour issued an unfavorable decision on August 11, 2009. (AR 8 12-19.) The ALJ found that Plaintiff suffered from the severe 9 impairments of depression, uterine fibroids, knee pain and obesity. However, these December severe 1, 1996, due impairments to did schizophrenia, 10 (Id.) not meet the 11 requirements of a listed impairment found in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1. (AR 15.) 13 The ALJ found that Plaintiff retained the residual functional 14 capacity ( RFC ) to perform medium work as follows: The claimant 15 can lift and carry 50 pounds occasionally and 25 pounds frequently. 16 She can sit, stand, and walk for six hours in an eight-hour day 17 with normal breaks. She can occasionally climb, balance, stoop, 18 kneel, crouch, crawl, and squat. She is limited to simple, one-to- 19 two-step job instructions with no production quotas and occasional 20 contact with supervisors, co-workers, and the public. (AR 15.) 21 Although Plaintiff could not perform her past relevant work as a 22 certified nurse s assistant, the ALJ concluded that there were jobs 23 in the national economy which Plaintiff could perform, such as hand 24 packager and sandwich maker, and therefore Plaintiff was not 25 disabled under the Social Security Act. (AR 17, 18.) 26 The Appeals Council denied review on August 20, 2010 (AR 1-4), 27 and Plaintiff commenced this action for judicial review. On June 28 20, 2011, the parties filed a Joint Stipulation ( Joint Stip. ) of 2 1 disputed facts and issues, including the following claims of error: 2 (1) the ALJ failed to properly consider the opinion of Plaintiff s 3 treating psychiatrist; and (2) the ALJ failed to provide clear and 4 convincing reasons for rejecting Plaintiff s subjective complaints. 5 (Joint Stip. 3.) Plaintiff asks the Court to reverse and order an 6 award of benefits, or in the alternative, remand for further 7 administrative proceedings. (Joint Stip. 24.) The Commissioner 8 requests that the ALJ s decision be affirmed. (Joint Stip. 24-25.) 9 10 II. 11 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s 13 decision must be upheld unless the ALJ s findings are based on 14 legal error or are not supported by substantial evidence in the 15 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 16 1999); 17 Substantial evidence means more than a scintilla, but less than a 18 preponderance; it is evidence that a reasonable person might accept 19 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 20 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 21 466 22 substantial evidence supports a finding, the reviewing court must 23 review the administrative record as a whole, weighing both the 24 evidence that supports and the evidence that detracts from the 25 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 26 (9th Cir. 1996). If the evidence can support either affirming 27 or reversing the ALJ s conclusion, the reviewing court may not 28 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at Parra F.3d decision v. 880, to Astrue, 882 (9th deny 481 benefits. F.3d Cir. 742, 2006)). 3 746 To The Commissioner s (9th Cir. determine 2007). whether 1 882. 2 3 4 5 III. Discussion A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician 6 Plaintiff contends that the ALJ erred in failing to give 7 controlling weight to the opinion of her treating psychiatrist, Dr. 8 Richard King, M.D. (Joint Stip. 4.) On April 9, 2008, Dr. King 9 diagnosed Plaintiff with major depressive order with psychotic 10 features. (AR 207.) He prescribed the drugs Geodon and Lexapro. 11 (Id.) Also, in a Mental Residual Functional Capacity Questionnaire, 12 completed on May 7, 2009, Dr. King diagnosed Petitioner with 13 depression and bipolar disorder, with a GAF score of 50 and found 14 that Plaintiff had marked limitations in the ability to perform 15 various work-related functions. (AR 226-231.) 16 An ALJ should generally accord greater probative weight to a 17 treating physician s opinion than to opinions from non-treating 18 sources. See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific 19 and legitimate reasons for rejecting a treating physician s opinion 20 in favor of a non-treating physician s contradictory opinion. Orn 21 v. Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 22 821, 830 (9th Cir. 1996). However, the ALJ need not accept the 23 opinion of any medical source, including a treating medical source, 24 if that opinion is brief, conclusory, and inadequately supported 25 by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th 26 Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 27 Cir. 2001). The factors to be considered by the adjudicator in 28 determining the weight to give a medical opinion include: [l]ength 4 1 of the treatment relationship and the frequency of examination by 2 the treating physician; and the nature and extent of the treatment 3 relationship between the patient and the treating physician. Orn, 4 495 5 416.927(d)(2)(i)-(ii). F.3d at 631-33; 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 6 The ALJ provided several legitimate reasons for refusing to 7 give Dr. King s opinion controlling weight, each of which was 8 supported by substantial evidence in the record. First, the ALJ 9 found that the May 7, 2009 Mental Residual Functional Capacity 10 Report completed by Dr. King was not fully credible because there 11 were no medical or other treatment records to support the extreme 12 functional limitations found by Dr. King. (AR 16.) The ALJ noted 13 that there was no evidence in Plaintiff s medical history to 14 support Dr. King s claim that Plaintiff has an extreme inability 15 to maintain attention and concentration for extended periods or 16 perform activities within a schedule, maintain regular attendance, 17 and 18 physician s opinion if it is conclusory, brief, and unsupported by 19 the record as a whole or by objective medical findings. Batson v. 20 Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d 21 at 1149. In addition, although the ALJ did not determine whether or 22 not Plaintiff was a malingerer, the ALJ did note that at least one 23 treating source at the West Central Mental Health Clinic, where 24 Plaintiff received mental health treatment, questioned whether 25 Plaintiff was malingering. (AR 16, citing AR 202.) 26 be punctual.... (Id.) An ALJ may discredit a treating The ALJ also noted that Dr. King s claims of severe mental 27 impairment and limitations was undermined by Plaintiff s failure to 28 follow through with her mental health treatment. For example, the 5 1 ALJ noted that in December 2005, the West Central Mental Health 2 Clinic closed her case file because she had not had any contact 3 with the clinic for at least 90 days. (AR 219.) The records also 4 showed that she did not return to the clinic until October 2007, 5 almost two years after her file was closed. (AR 142-148.) The ALJ 6 may consider the unexplained failure to seek treatment or follow a 7 prescribed course of treatment. See Smolen v. Chater, 80 F.3d 1273, 8 1284 (9th Cir. 1996). 9 In addition, Dr. King s finding of marked limitations in 10 Plaintiff s ability 11 inconsistent with 12 psychiatrist, Dr. Jason Yang, M.D. Contrary to Dr. King s opinion 13 that Plaintiff was extremely limited in her ability to perform a 14 range of work-related functions, Dr. Yang found that Plaintiff only 15 had mild limitations in her ability to understand, remember and 16 carry 17 significantly limited. (AR 160-164.) If a treating physician s 18 opinion is contradicted by an examining professional s opinion, 19 which is supported by different independent clinical findings, the 20 Commissioner may resolve the conflict by relying on the latter. 21 See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 22 495 F.3d at 632 (ALJ may reject opinion of treating physician in 23 favor of examining physician whose opinion rests on independent 24 clinical findings). Here, the ALJ properly resolved the conflict 25 between Dr. King s finding of extreme functional limitations and 26 Dr. Yang s finding that Plaintiff had only mild restrictions by 27 assessing an RFC that limited Plaintiff to simple instructions and 28 only occasional contact with others. (AR 15.) See Andrews v. out complex to the job perform findings work-related of the instructions, 6 activities consultative and was not was examining otherwise 1 Shalala, 53 F.3d 1035, 1039 (9th Cir. 1989) (holding that it is the 2 responsibility of the ALJ to resolve conflicts and ambiguities in 3 the 4 sources). Accordingly, no relief is warranted on this claim of 5 error. 6 medical B. 7 8 record The ALJ and determine Properly the Discredited credibility Plaintiff s of medical Subjective Symptom Testimony Plaintiff contends that the ALJ failed to provide clear and 9 convincing reasons for discrediting 10 testimony. (Joint Stip. 11 administrative hearing that she suffers from recurrent crying 12 spells two or three times a week that last all day. (AR 27.) She 13 also testified that she hears and responds to her deceased mother s 14 voice on a regular basis. (AR 28.) 16.) her Plaintiff subjective symptom testified at the 15 To determine whether a claimant s testimony about subjective 16 pain or symptoms is credible, an ALJ must engage in a two-step 17 analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) 18 (citing Lingenfelter 504 F.3d at 1035-36). First, the ALJ must 19 determine whether the claimant has presented objective medical 20 evidence of an underlying impairment which could reasonably be 21 expected 22 Lingenfelter, 504 F.3d at 1036. [O]nce the claimant produces 23 objective 24 adjudicator may not reject a claimant s subjective complaints based 25 solely on a lack of objective medical evidence to fully corroborate 26 the alleged severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 27 345 (9th Cir. 1991) (en banc). To the extent that an individual s 28 claims of functional limitations and restrictions due to alleged to produce medical the evidence alleged of an 7 pain or underlying other symptoms. impairment, an 1 pain is reasonably consistent with the objective medical evidence 2 and other evidence in the case, the claimant s allegations will be 3 credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ 4 404.1529(c)(4), 416.929(c)(4)).1 5 Unless there is affirmative evidence showing that the claimant 6 is malingering, the ALJ must provide specific, clear and convincing 7 reasons for discrediting a claimant s complaints. Robbins, 466 F.3d 8 at 883. General findings are insufficient; rather, the ALJ must 9 identify what testimony is not credible and what evidence 10 undermines the claimant s complaints. Reddick, 157 F.3d at 722 11 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1996)). The 12 ALJ must consider a claimant s work record, observations of medical 13 providers and third parties with knowledge of the claimant s 14 limitations, aggravating factors, 15 by symptoms, effects of medication, and the claimant s daily 16 activities. Smolen v. Chater, 80 F.3d 1273, 1283-84 & n.8 (9th Cir. 17 1996). The ALJ may also consider an unexplained failure to seek 18 treatment or follow a prescribed course of treatment and employ 19 other ordinary techniques of credibility evaluation. Id. (citations 20 omitted). 21 Here, the ALJ concluded functional restrictions caused that Plaintiff s medically 22 determinable impairments could reasonably be expected to cause the 23 alleged symptoms. (AR 17.) However, the ALJ rejected Plaintiff s 24 description of her symptoms to the extent they are inconsistent 25 1 26 27 28 The Secretary issues Social Security Rulings to clarify the Secretary s regulations and policy .... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary s interpretation of its regulations. Bunnell, 947 F.2d at 346 n.3. 8 1 with the ALJ s assessment that Plaintiff retained the RFC to 2 perform medium work with certain limitations. (Id.) Because there 3 was no evidence of malingering (aside from the single notation in 4 Plaintiff s medical records as noted above), the ALJ was therefore 5 required to provide specific, clear and convincing reasons for 6 rejecting Plaintiff s subjective allegations of pain and functional 7 limitations. 8 The 9 ALJ provided two reasons for rejecting Plaintiff s testimony. The ALJ found that Plaintiff s medication improved her 10 condition 11 activities of daily living was at odds with her claims of disabling 12 depression condition. (AR 17.) The ALJ noted that Plaintiff is 13 able 14 activities 15 medication, and feels better when she takes her medication. (Id.) 16 Although a claimant does not need to be utterly incapacitated in 17 order to be disabled, Vertigan v. Halter, 260 F.3d 1044, 1050 (9th 18 Cir. 2001), the ability to perform certain activities of daily life 19 can support a finding that the claimant s reports of his or her 20 impairment are not fully credible. See Bray v. Comm r of Soc. Sec. 21 Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. Sullivan, 925 22 F.2d 1127, 1130 (9th Cir. 1990) (finding that the claimant s 23 ability to take care of her personal needs, prepare easy meals, do 24 light housework and shop for some groceries ... may be seen as 25 inconsistent with the presence of a condition which would preclude 26 all work activity ) (citing Fair, 885 F.2d at 604). to and take that care that Plaintiff s of she ability her personal enjoys, has and to perform household friends, sleeps various needs, has well with 27 The ALJ also noted that Plaintiff s treatment history does 28 not indicate disabling depression. (AR 17.) The ALJ noted that 9 1 Plaintiff sees her psychiatrist, Dr. King, only every few months 2 and does not see an individual therapist. (Id.) See Fair v. Bowen, 3 885 4 allegations of persistent, severe pain and discomfort belied by 5 minimal conservative treatment ); see also Flaten v. Secretary, 44 6 F.3d 1456, 1464 (9th Cir. 1995) (ALJ permitted to draw rational 7 inferences from treatment history). 8 F.2d The 597, ALJ 604 made (9th Cir. specific 1989) (finding findings that claimant s articulating clear and 9 convincing reasons for his rejection of Plaintiff s subjective 10 testimony. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). It 11 is the responsibility of the ALJ to determine credibility and 12 resolve conflicts or ambiguities in the evidence. Magallanes v. 13 Brown, 881 F.2d 747, 750 (9th Cir. 1989). A reviewing court may not 14 second-guess 15 supported by substantial evidence in the record, as here. See Fair 16 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). It was reasonable for 17 the ALJ to rely on the reasons stated above, each of which is fully 18 supported 19 Plaintiff s subjective complaints. In sum, the ALJ reasonably and 20 properly discredited Plaintiff s subjective testimony regarding the 21 severity of her symptoms as not being wholly credible. by the the ALJ s credibility record, in determination rejecting the when it credibility is of 22 Plaintiff also contends that the ALJ erred by failing to 23 address the written statement of her friend Donald Johnson. (Joint 24 Stip. 18.) In a Function Report - Adult - Third Party, dated March 25 2008, Mr. Johnson reported that Plaintiff is very slow at doing 26 things, that she cries frequently and that she is unable to deal 27 with stress. (AR 116-123.) 28 A lay witness can provide testimony about Plaintiff s symptoms 10 1 and limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th 2 Cir. 1996). Lay testimony as to a claimant s symptoms is competent 3 evidence that an ALJ must take into account, unless he or she 4 expressly determines to disregard such testimony and gives reasons 5 germane to each witness for doing so. Lewis v. Apfel, 236 F.3d 6 503, 511 (9th Cir. 2001); see also Dodrill v. Shalala, 12 F.3d 915, 7 918-919 (9th Cir. 1993). Appropriate reasons include testimony 8 unsupported 9 inconsistent testimony. Lewis, 236 F.3d at 512. by the medical record or other evidence and 10 As a preliminary matter, the Court notes that, unlike lay 11 testimony, there is no controlling precedent requiring an ALJ to 12 explicitly address written statements, such as the Function Report 13 form in this case. 14 to 15 Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). discuss all Indeed, it is clear that an ALJ is not required evidence in the record in detail. Howard v. 16 Moreover, any possible error by the ALJ in failing to discuss 17 the written report completed by Mr. Johnson was harmless error. See 18 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1056 (9th 19 Cir. 20 testimony favorable to the claimant is harmless error if a court 21 can confidently conclude that no reasonable ALJ, when fully 22 crediting the testimony, could have reached a different disability 23 determination ). 24 Plaintiff s limitations were largely cumulative of Plaintiff s own 25 testimony and written reports. Mr. Johnson did not describe any 26 functional limitations that were different or more serious that 27 those Plaintiff herself alleged. Accordingly, even if the ALJ had 28 fully and properly credited Mr. Johnson s report, the ALJ would not 2006) (ALJ s failure Here, to Mr. properly Johnson s 11 discuss competent statements lay regarding 1 have reached a different disability determination, and therefore, 2 any error was harmless. Accordingly, Plaintiff is not entitled to 3 relief. 4 5 IV. Conclusion 6 For the reasons stated above, the decision of the Social 7 Security Commissioner is AFFIRMED and the action is DISMISSED with 8 prejudice. 9 10 Dated: June 27, 2011 11 ______________________________ Marc L. Goldman United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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