Anjela Khalafian v. Michael J Astrue, No. 2:2011cv04570 - Document 19 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Anjela Khalafian filed a complaint on June 3, 2011. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on July 6, 2011 and March 23, 2012. On March 19, 2012, the parties filed a Joint Stipulation (JS) that addressed the disputed issue. The court took the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANJELA KHALAFIAN, 12 Plaintiff, 13 v. 14 15 16 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-4570 AGR MEMORANDUM OPINION AND ORDER 18 Plaintiff Anjela Khalafian filed a complaint on June 3, 2011. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 July 6, 2011 and March 23, 2012. (Dkt. Nos. 8, 17.) On March 19, 2012, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issue. The 22 court took the matter under submission without oral argument. 23 24 25 26 27 28 Having reviewed the entire file, the court affirms the decision of the Commissioner. 1 I. 2 PROCEDURAL BACKGROUND 3 Khalafian filed applications for disability insurance and supplemental 4 security income benefits on October 17, 2005 and October 31, 2005, 5 respectively. Administrative Record ( AR ) 330. The applications were denied 6 initially and upon reconsideration. AR 29-30. Khalafian requested a hearing by 7 an Administrative Law Judge (ALJ). AR 26. On October 31, 2007, the ALJ 8 conducted a hearing at which Khalafian and a vocational expert testified. AR 9 299-313. On February 14, 2008, the ALJ issued a decision denying benefits. AR 10 12-20. On August 29, 2008, the Appeals Council denied the request for review. 11 AR 4-6. On October 24, 2008, Khalafian filed an action in this court. On July 8, 12 2009, the court approved a joint stipulation for voluntary remand to the 13 Commissioner for further proceedings consistent with the terms of the stipulation. 14 AR 336-39. On September 17, 2009, the Appeals Council vacated the final 15 decision of the Commissioner and remanded to an ALJ for further proceedings 16 consistent with the court s order. AR 342. Khalafian filed subsequent concurrent 17 applications for supplemental security income benefits on July 29, 2009, and for 18 disability benefits on November 9, 2009. AR 318. 19 On January 5, 2011, a different ALJ conducted a hearing at which 20 Khalafian and a vocational expert testified. AR 660-84. On March 14, 2011, the 21 ALJ issued a decision denying benefits. AR 314-30. This action followed. 22 II. 23 STANDARD OF REVIEW 24 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 25 decision to deny benefits. The decision will be disturbed only if it is not 26 supported by substantial evidence, or if it is based upon the application of 27 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) 28 (per curiam); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 2 1 Substantial evidence means more than a mere scintilla but less than a 2 preponderance it is such relevant evidence that a reasonable mind might 3 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 4 determining whether substantial evidence exists to support the Commissioner s 5 decision, the court examines the administrative record as a whole, considering 6 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 7 evidence is susceptible to more than one rational interpretation, the court must 8 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 9 10 III. 11 DISCUSSION 12 A. 13 A person qualifies as disabled, and thereby eligible for such benefits, only 14 if his physical or mental impairment or impairments are of such severity that he is 15 not only unable to do his previous work but cannot, considering his age, 16 education, and work experience, engage in any other kind of substantial gainful 17 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 18 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003) (citation and quotation marks 19 omitted). 20 B. 21 The ALJ found that Khalafian met the insured status requirements through 22 June 30, 2008. AR 320. Khalafian had the severe impairments of degenerative 23 joint and degenerative disc disease at C5-7 and L3-5; hypertension; obesity; 24 depressive disorder; and dependent personality disorder. Id. She had the 25 residual functional capacity to lift and carry 20 pounds occasionally and 10 26 pounds frequently, and sit, stand, and walk without significant limitation. 27 Mentally, the claimant is limited to simple, repetitive tasks in a work environment 28 without significant public contact. She has no other significant limitations. AR Disability The ALJ s Findings 3 1 322-23. Khalafian could perform her past relevant work as a sales attendant and 2 pantry goods maker, as actually performed. AR 329-30. 3 C. Past Relevant Work 4 Khalafian s sole claim is that the ALJ erred in concluding she could return 5 to her past work as a sales assistant and pantry goods maker. She argues the 6 ALJ did not properly consider the opinion of her treating primary care physician, 7 Dr. Janoian, that she would have difficulties in regular work settings with regular 8 and proper conduct. 9 At step four of the sequential analysis, the claimant has the burden to 10 prove that he cannot perform [her] prior relevant work either as actually 11 performed or as generally performed in the national economy. Carmickle v. 12 Comm r of Soc. Sec. Admin., 533 F.3d 1155, 1166 (9th Cir. 2008) (citation 13 omitted). Although the burden of proof lies with the claimant at step four, the 14 ALJ still has a duty to make the requisite factual findings to support his 15 conclusion. Pinto v. Massanari, 249 F.3d 840, 844 (9th Cir. 2001). This is 16 done by looking at the residual functional capacity and the physical and mental 17 demands of the claimant s past relevant work. Id. at 844-45; see also 20 C.F.R. 18 §§ 404.1520(e), 416.920(e). 19 On October 25, 2010, Dr. Janoian diagnosed hypertension, depressive 20 disorder mixed with anxiety and maladjustment syndrome, osteoarthritis (L/S, 21 C/S, neck pain), peripheral neuropathy (bilateral hand numbness), 22 hyperlipidemia, and obesity. AR 632. Dr. Janoian reported Khalafian s 23 symptoms as fear of being alone, insomnia, irritability and crying spells. These 24 symptoms escalated because of her grandchild s chromosomal abnormality, 25 which rendered him unable to talk or move his neck or extremities. AR 630. Dr. 26 Janoian observed that Khalafian was tearful throughout her visit and appeared to 27 be emotionally very depressed. AR 632. He advised her to seek professional 28 psychological help, but stated she is financially unable to afford expensive 4 1 treatments. AR 632-33. Emotional instability and poor control over her body 2 movements and her emotions will present with difficulties in regular work 3 settings, where regular attendance and proper conduct is expected. AR 633. 4 The ALJ stated he could not give Dr. Janoian s opinion much weight for 5 two reasons: (1) [t]here is no indication that Dr. Janoian has ever evaluated the 6 claimant s psychiatric claims and symptoms using any generally accepted 7 psychiatric method, or has even conducted a mini mental status examination 8 and (2) his assessment is not consistent with the reports of Dr. Simonian, the 9 [treating] psychiatrist with the greatest longitudinal understanding of the 10 claimant s psychiatric symptoms, or the state agency examining and evaluating 11 psychiatric consultants. AR 325. 12 An opinion of a treating physician is given more weight than the opinion of 13 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When 14 a treating physician s opinion is contradicted by another doctor, the ALJ may not 15 reject this opinion without providing specific and legitimate reasons supported by 16 substantial evidence in the record. This can be done by setting out a detailed 17 and thorough summary of the facts and conflicting clinical evidence, stating his 18 interpretation thereof, and making findings. Id. at 632 (citations and quotation 19 marks omitted). When there is conflicting medical evidence, the Secretary must 20 determine credibility and resolve the conflict. Thomas v. Barnhart, 278 F.3d 21 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 22 The ALJ s first reason for discounting Dr. Janoian s opinion is supported by 23 substantial evidence. An ALJ need not accept the opinion of a treating physician 24 if that opinion is inadequately supported by clinical findings.1 Bray v. Comm r of 25 26 27 28 1 Khalafian cites Sanchez v. Apfel, 85 F. Supp. 2d 986 (C.D. Cal. 2000), for the proposition that the fact that there was no objective evidence offered in support of [the] treating physician s assessment of [the] claimant s mental impairment was not [an] adequate basis for rejecting that assessment. JS at 1415. The court in Sanchez merely acknowledged that the diagnostic techniques in 5 1 Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009); Batson v. Comm r of the 2 SSA, 359 F.3d 1190, 1995 (9th Cir. 2004) (ALJ may discount treating physician s 3 opinion that did not have supportive objective evidence ). The medical records 4 from Dr. Janoian s clinic do not indicate any mental status examination or 5 psychological testing. AR 199-236, 258-83, 513-616. In 2006, Khalafian was 6 reported to be anxious once, with no explanation. AR 519. On January 18, 7 2007, Khalafian was reportedly anxious and agitated with poor judgment. AR 8 524. Something went wrong with her blood pressure testing machine at home. 9 She was scared and came to the doctor s office. It was noted that Khalafian 10 easily calmed down when reassured about her condition, and that she had a 11 normal stress test in April 2006.2 Dr. Janoian noted Khalafian was not taking her 12 prescribed medications at the time. Id. On November 5, 2007, Khalafian 13 reported that she became anxious after seeing her neighbor drop unconscious, 14 and that she became very anxious each time she checked her blood pressure or 15 came to the doctor s office. AR 545. At that time, Khalafian did not want to take 16 the prescribed Buspar medication and declined psychotherapy. AR 547. In 17 2008, Khalafian was noted to be anxious once, with an explanation that Khalafian 18 has a sick grandchild with a genetic disease. AR 560. In 2009, Dr. Janoian 19 20 21 22 23 24 25 26 27 28 the field of psychiatry are less tangible than the objective laboratory testing available for many physical illnesses. Sanchez, 85 F. Supp. 2d at 992. The report of a psychiatrist should not be rejected simply because of the relative imprecision of the psychiatric methodology or the absence of substantial documentation, unless there are other reasons to question the diagnostic technique. Id. (quoting Christensen v. Bowen, 633 F. Supp. 1214, 1220-21 (N.D. Cal. 1986)). In Sanchez, the treating records contained a Global Assessment of Functioning score, self-mutilation, hallucinations, and hospitalization after a suicide attempt. Sanchez, 85 F. Supp. 2d at 991. By contrast, the ALJ in this case discounted Dr. Janoian s opinion because it did not contain psychiatric diagnostic techniques. 2 The ALJ reviewed the stress test. Khalafian had good cardiovascular conditioning for age and gender. AR 449. The stress test had a good outcome. Id. Khalafian exercised for 9 minutes on a Bruce protocol and achieved 10 METS. Id. The ALJ noted that 10 METS consists of vigorous activity. AR 326. 6 1 noted Khalafian was depressed twice, in July and October 2009. Khalafian was 2 crying over her grandchild s genetic disease. AR 586. During the period March 3 2010-July 2010, Khalafian reported feeling hopeless and depressed over her 4 grandchild s genetic disease. AR 609, 612, 615. In September and November 5 2010, Khalafian was noted as anxious, without explanation.3 AR 589, 591. 6 With respect to the ALJ s second reason, Khalafian argues there is nothing 7 in the record that disputes Dr. Janoian s opinion. JS at 4. The ALJ reviewed the 8 records of Khalafian s treating psychiatrist, Dr. Simonian. AR 323-24. In 9 November 2006, based on his mental status examination, Dr. Simonian found 10 Khalafian had coherent thought process, no looseness of association, constricted 11 affect, anxious mood, and was somewhat depressed. AR 256. Dr. Simonian 12 found no delusional thinking and no hallucinations. Her intellectual function and 13 memory were average, but her concentration was poor. On Axis V, he assessed 14 her functional ability to be 50%. His diagnosis was panic disorder, depressive 15 disorder, not otherwise specified, and dependent personality features. Id. More 16 recently, on December 17, 2010, Dr. Simonian noted that Khalafian was in tears 17 when talking about her grandchild, who has a congenital malformation, has 18 frequent seizures and requires constant care. AR 636-37. Dr. Simonian again 19 diagnosed depressive disorder, not otherwise specified, and dependent 20 personality disorder. AR 637. Her functional ability remained at 50% and her 21 mental status examination was unchanged. Id. 22 The ALJ reviewed the examining psychologist s report in February 2006. 23 AR 323; AR 181-86. Khalafian s thoughts were coherent and her speech was 24 clear, but response time was delayed. Although Khalafian reported that she had 25 concentration and memory problems (AR 182), her testing indicated a grossly 26 intact memory and an adequate attention span with the ability to work without 27 28 3 As the ALJ noted, Dr. Janoian treated Khalafian conservatively with medication and exercise. AR 323, 326, 591-92, 613, 615. 7 1 distraction on nonverbal tasks. AR 183. Based on the Comprehensive Test of 2 Nonverbal Intelligence, Khalafian s nonverbal intelligence was in the borderline 3 range. AR 184. Dr. Brawer diagnosed complicated bereavement secondary to 4 the death of Khalafian s mother and nonverbal intellectual functioning in the 5 borderline range. Based on test results and behavioral presentation, the patient 6 would be able [to] learn a simple, repetitive task . . . . Her ability to sustain 7 attention and concentration for extended periods of time may be mildly 8 diminished, due to cognitive and emotional factors. During testing, the patient 9 demonstrated mildly diminished attention, concentration, persistence and pace in 10 completing tasks. AR 185. Dr. Brawer found that Khalafian exhibits depressive/ 11 anxiety symptoms which may result in mild limitations in ability to effectively 12 manage customary work stresses and persist for a regular workday. Id. 13 Khalafian seems capable of following a routine and organizing herself for basic 14 tasks, but given her dysphoria and somatic complaints, the patient may have 15 difficulty maintaining the motivation and stamina. Id. 16 The ALJ found the state agency physician s opinion to be consistent with 17 Dr. Brawer s report. In May 2007, Dr. Carlson found that Khalafian was not 18 significantly limited in her ability to understand, remember and carry out simple 19 instructions and work-like procedures. AR 237. She was not significantly limited 20 in her ability to sustain an ordinary routine without special supervision, and her 21 ability to maintain socially appropriate behavior. AR 237-38. She had mild 22 limitation in maintaining concentration, persistence or pace (AR 249), and was 23 moderately limited in her ability to perform activities within a schedule, maintain 24 regular attendance, and be punctual within customary tolerances. AR 237. Dr. 25 Carlson found Khalafian capable of performing simple repetitive tasks. AR 239. 26 The vocational expert testified that a claimant who could perform simple 27 repetitive tasks would not be precluded from returning to her past relevant work. 28 AR 681-82. The ALJ did not err. 8 1 IV. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 7 8 9 DATED: July 10, 2012 _______________________________ ALICIA G. ROSENBERG United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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