Toya L Russell v. Michael J Astrue, No. 2:2011cv08413 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (twdb)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 WESTERN DIVISION 8 9 TOYA L. RUSSELL, 10 Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 11-08413-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Toya Russell seeks judicial review of the 18 Commissioner s final decision denying her application for Social 19 Security Disability Insurance benefits ( DIB ) and for Supplemental 20 Security Income ( SSI ) benefits. For the reasons discussed below, 21 the decision of the Commissioner is affirmed and the action is 22 dismissed with prejudice. 23 24 I. Facts and Procedural Background 25 Plaintiff was born on July 23, 1960. (Administrative Record 26 ( AR ) at 160.) She completed two years of college and has work 27 experience as a secretary, data entry clerk and receptionist. (AR 28 at 17, 187, 190.) Plaintiff filed her application for DIB on June 1 1 8, 2009, and for SSI benefits on June 10, 2009, alleging disability 2 beginning March 27, 2008, due to shoulder and arm pain, asthma and 3 degenerative 4 application was denied initially on September 14, 2009. (AR at 76- 5 80.) 6 administrative hearing on November 10, 2010. Plaintiff, represented 7 by an attorney, testified as did a vocational expert ( VE ) and a 8 medical expert. (AR at 26-69.) disc Administrative disease. Law (AR Judge at ( ALJ ) 130-133, Robert 134-136.) Eisman held Her an 9 ALJ Eisman issued an unfavorable decision on December 9, 2010. 10 (AR at 7-24.) The ALJ found that Plaintiff suffered from the 11 following severe impairments: obesity, asthma, cervical spine 12 degenerative disease, and history of bilateral upper extremity 13 shoulder 14 impairments did not meet the requirements of a listed impairment 15 found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) sprain/strain. (AR at 13.) However, these severe 16 The ALJ found that Plaintiff retained the residual functional 17 capacity ( RFC ) to perform light work as defined in 20 C.F.R. 18 404.1567(b) as follows: [S]he can exert up to 20 pounds of force 19 occasionally and/or up to 10 pounds of force frequently and/or a 20 negligible amount of force constantly to move objects. The claimant 21 can stand and walk up to 6 hours and sit up to 6 hour in an 8-hour 22 workday with normal breaks. Due to her obesity, she can perform 23 work that does not require climbing ladders, ropes or scaffolds, 24 and no more than occasional climbing of ramps or stairs, balancing, 25 stooping, kneeling, crouching or crawling. The claimant is right- 26 hand dominant and can frequently lift and reach overhead with her 27 left upper extremity. She can frequently operate foot controls with 28 her right and/or left lower extremities. The claimant can perform 2 1 work that does not require concentrated exposure to extreme cold, 2 extreme heat, hazardous machinery, unprotected heights, or other 3 high risk, hazardous or unsafe conditions, and that does not 4 require 5 ventilated areas (i.e., asthma precautions). (AR at 14.) any exposure to environmental irritants or poorly 6 The ALJ found that Plaintiff could perform her past relevant 7 work as a data entry clerk, secretary and receptionist. (AR at 17.) 8 Therefore, the ALJ concluded that Plaintiff was not disabled under 9 the Social Security Act. (AR at 19.) 10 The Appeals Council denied review on August 25, 2011 (AR at 1- 11 3), and Plaintiff commenced this action for judicial review. On May 12 1, 2012, the parties filed a Joint Stipulation ( Joint Stip. ) of 13 disputed facts and issues, including the following claims of error: 14 (1) the ALJ did not properly consider the evidence of a mental 15 impairment; (2) the ALJ failed to properly consider the opinion of 16 the treating physician; and (3) the ALJ erred in evaluating 17 Plaintiff s credibility and subjective testimony. (Joint Stip. at 18 4.) Plaintiff asks the Court to reverse and order an award of 19 benefits, or in the alternative, remand for further administrative 20 proceedings. (Joint Stip. at 31-32.) The Commissioner requests that 21 the ALJ s decision be affirmed. (Joint Stip. at 33.) 22 23 24 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s 26 decision must be upheld unless the ALJ s findings are based on 27 legal error or are not supported by substantial evidence in the 28 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. decision to deny 3 benefits. The Commissioner s 1 1999); 2 Substantial evidence means more than a scintilla, but less than a 3 preponderance; it is evidence that a reasonable person might accept 4 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 5 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 6 466 7 substantial evidence supports a finding, the reviewing court must 8 review the administrative record as a whole, weighing both the 9 evidence that supports and the evidence that detracts from the 10 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 11 (9th Cir. 1996). If the 12 or reversing the ALJ s conclusion, the reviewing court may not 13 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 14 882. Parra F.3d v. 880, Astrue, 882 481 (9th F.3d Cir. 742, 746 2006)). evidence can (9th To Cir. determine support either 2007). whether affirming 15 16 17 III. Discussion A. 18 The ALJ Properly Considered the Evidence Regarding Plaintiff s Alleged Mental Impairment 19 Plaintiff contends that the ALJ improperly relied on the 20 opinion of the consultative examining psychiatrist, Dr. Minh-Khoi 21 Duong, M.D. and disregarded the report of the reviewing State 22 Agency 23 limitations in various mental functions than did Dr. Duong. (Joint 24 Stip. at 4). Dr. Duong diagnosed Plaintiff with major depressive 25 disorder and a global assessment of functioning ( GAF ) score of 26 75. (AR at 13, 247.) Dr. Duong determined that Plaintiff could 27 carry out both simple and complex instructions, relate to others, 28 cope with workplace stress, and deal with changes in a routine work physician, Dr. C. Dudley, 4 M.D., who posited greater 1 setting. (Id.) Dr. Dudley, on the other hand, opined that Plaintiff 2 had moderate difficulties in maintaining concentration, persistence 3 or pace and that Plaintiff could only perform work involving 4 simple, repetitive tasks, given that she had a limited ability to 5 maintain concentration. (AR at 257, 259.) 6 The ALJ properly analyzed the entire medical record and relied 7 on the consultative psychiatrist s opinion in concluding that 8 Plaintiff was not disabled. (AR at 14, 16.) Because there were no 9 mental health records from a treating physician, the ALJ properly 10 gave great weight to Dr. Duong s opinion that Plaintiff had no 11 difficulty carrying out simple or complex instructions. (AR at 16.) 12 The ALJ also appropriately relied on Dr. Duong s opinion because it 13 was the most consistent with the medical record as a whole. See 20 14 C.F.R. §§ 404.1527(d)(4), 416.927(d)(4) ( Generally, the more 15 consistent an opinion is with the record as a whole, the more 16 weight we will give the opinion. ) As noted by the ALJ, Plaintiff 17 had no history of psychiatric hospitalizations, was not seeing a 18 psychiatrist, was able to do relatively well on the psychiatric 19 interview, was taking online courses in English and health, had a 20 GAF score of 75, and had testified that the Zoloft she takes 21 controls her depression. (AR at 13-14, citing AR at 43.) 22 The ALJ also correctly noted that the reviewing physician s 23 opinion was inconsistent with the rest of the medical record (AR at 24 16), which constitutes a specific and legitimate reason to reject 25 the opinion. See Thomas, 278 F.3d 948, 957-58 (9th Cir. 2002). (AR 26 at 16.) It is the responsibility of the ALJ to resolve conflicts 27 and ambiguities in the medical record and determine the credibility 28 of medical sources. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 5 1 1999); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1989). 2 Therefore, 3 consultative examiner. 4 B. The the ALJ ALJ properly Accorded relied Appropriate on Weight the to report the of Opinion the of 5 Plaintiff s Treating Physician 6 Plaintiff contends that the ALJ erred in failing to give 7 controlling 8 physician, 9 September 13, 2010, Dr. Schneider completed a Residual Functional 10 Capacity Questionnaire, which concluded that Plaintiff had the 11 following limitations: she could sit only up to one hour per day; 12 she could stand for only 15 minutes at a time; she would be able to 13 use her hands to grasp, do fine manipulation and reach only 10-15% 14 of a workday; and she would likely not be able to work more than 15 four hours per day. (AR at 279-286.) weight Dr. Mark to the opinion Schneider, D.O. of Plaintiff s (Joint Stip at treating 12.) On 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, 278 F.3d at 957; accord Tonapetyan, 26 242 F.3d at 1149. The factors to be considered by the adjudicator 27 in determining the weight to give a medical opinion include: 28 [l]ength of the treatment relationship and the frequency of 6 1 examination by the treating physician; and the nature and extent 2 of the treatment relationship between the patient and the treating 3 physician. 4 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). Orn, 495 F.3d at 631-33; 20 C.F.R. §§ 5 The ALJ provided several legitimate reasons for refusing to 6 give Dr. Schneider s opinion controlling weight, each of which was 7 supported by substantial evidence in the record. First, the ALJ 8 found that the September 13, 2010 Residual Functional Capacity 9 Questionnaire was not fully reliable because it was conclusory and 10 because there were no treatment records or diagnostic findings to 11 support the extreme functional limitations found by Dr. Schneider. 12 (AR 13 Schneider s own treatment records contradicted his finding of 14 extreme limitations: at 16.) The ALJ noted that the medical record and 15 For example, Dr. Schneider noted in February 2010 that 16 Tylenol helped the claimant s neck pain, and that she 17 needed to stretch and use ergonomic equipment, which is 18 not indicative of an impairment that would result in the 19 severe limitations reflected in his opinion. Moreover, he 20 notes paresthesia and numbness in the claimant s hands, 21 but there are no EMG or NCV studies to confirm the 22 existence 23 Furthermore, a vague notation of decreased grip strength 24 left greater than right is insufficient for a finding of 25 severe 26 objective medical evidence that the claimant has markedly 27 limiting 28 diagnostic tests in the record reveal mild degenerative of hand a physiologic limitations. neck or cause of the Additionally, shoulder 7 function, symptoms. there since is the no only Dr. 1 cervical spine changes. 2 (AR at 16-17.) An ALJ may discredit a treating physician s opinion 3 if it is conclusory, brief, and unsupported by the record as a 4 whole or by objective medical findings. Batson v. Comm r, 359 F.3d 5 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1149. 6 In addition, Dr. Schneider s findings of marked limitations 7 in Plaintiff s ability to perform work-related activities was 8 inconsistent with the findings of the reviewing State Agency 9 physician, Dr. K. Beig, M.D. (AR at 16, citing AR at 237-241.) 10 Contrary to Dr. Schneider s opinion that Plaintiff was extremely 11 limited 12 functions, Dr. Beig found that Plaintiff was capable of a full 13 range of light work. The ALJ was entitled to rely on the reviewing 14 physician s findings, particularly when they were consistent with 15 the evidence as a whole, unlike those of Dr. Schneider. The 16 findings of a nontreating, nonexamining physician can amount to 17 substantial evidence, so long as other evidence in the record 18 supports those findings. Andrews, 53 F.3d at 1041; Magallanes v. 19 Bowen, 881 F.2d 747, 752 (9th Cir. 1989). in her ability to perform a range of work-related 20 The ALJ also noted that he was giving less weight to the 21 September 13, 2010 report because, although it was signed by Dr. 22 Schneider, 23 assistant. (AR at 17.) An ALJ may accord opinions from other 24 sources less weight than opinions from acceptable medical sources. 25 See Gomez v. Chater, 74 F.3d 967, 971 (9th Cir. 1996); see also 20 26 C.F.R. § 416.927(a)(2). Here, it is unclear whether the September 27 13, 2010 report is from an acceptable medical source. (AR at 28 285.) However, even assuming that it is, the ALJ provided proper it was apparently filled 8 out by a non-physician 1 reasons for failing to give controlling weight to Dr. Schneider s 2 opinion, as discussed above, and any error was harmless. See 3 Tommasetti 4 (harmless error rule applies to review of administrative decisions 5 regarding disability); Burch v. Barnhart, 400 F.3d 676, 679 (9th 6 Cir. 2005). 7 C. 8 9 v. The Astrue, ALJ 533 Properly F.3d 1035, Evaluated 1038 (9th Plaintiff s Cir. 2008) Subjective Symptom Testimony Plaintiff contends that the ALJ failed to provide clear and 10 convincing 11 testimony. (Joint Stip. at 21.) 12 testimony about subjective pain or symptoms is credible, an ALJ 13 must engage in a two-step analysis. Vasquez v. Astrue, 572 F.3d 14 586, 591 (9th Cir. 2009) (citing Lingenfelter v. Astrue, 504 F.3d 15 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine 16 whether the claimant has presented objective medical evidence of 17 an underlying impairment which could reasonably be expected to 18 produce the alleged pain or other symptoms. Lingenfelter, 504 F.3d 19 at 1036. [O]nce the claimant produces objective medical evidence 20 of an underlying impairment, an adjudicator may not reject a 21 claimant s 22 objective 23 severity of pain. Bunnell v. Sullivan, 947 F.2d 341, 345 (9th 24 Cir. 1991) (en banc). To the extent that an individual s claims of 25 functional limitations and restrictions due to alleged pain is 26 reasonably consistent with the objective medical evidence and 27 other evidence in the case, the claimant s allegations will be 28 credited. SSR 96-7p, 1996 WL 374186 at *2 (explaining 20 C.F.R. §§ reasons for subjective medical discounting subjective symptom To determine whether a claimant s complaints evidence her to based fully 9 solely on corroborate a the lack of alleged 1 404.1529(c)(4), 416.929(c)(4)).1 2 Unless there is affirmative evidence showing that the 3 claimant is malingering, the ALJ must provide specific, clear and 4 convincing 5 Robbins, 466 F.3d at 883. General findings are insufficient; 6 rather, the ALJ must identify what testimony is not credible and 7 what evidence undermines the claimant s complaints. Reddick, 157 8 F.3d at 722 (quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 9 1996)). reasons The ALJ for must discrediting consider a a claimant s claimant s complaints. work record, 10 observations of medical providers and third parties with knowledge 11 of 12 restrictions caused by symptoms, effects of medication, and the 13 claimant s daily activities. Smolen v. Chater, 80 F.3d 1273, 1283- 14 84 & n.8 (9th Cir. 1996). The ALJ may also consider an unexplained 15 failure 16 treatment and employ other ordinary techniques of credibility 17 evaluation. Id. (citations omitted). claimant s to seek limitations, treatment aggravating or follow a factors, prescribed functional course of 18 Plaintiff testified at the administrative hearing to the 19 following symptoms and functional limitations: she has neck pain 20 which is aggravated by sitting, walking and using her hands and 21 shoulders; she has pain in her knee; she can stand for about 15 22 minutes and can finger for only five to ten minutes twice a day; 23 she spends most of her day lying down; and she suffers from carpal 24 tunnel syndrome and asthma. (AR at 36-42, 46, 52-53.) 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. 10 1 The ALJ found that Plaintiff s medical impairments could 2 reasonably be expected to cause the alleged symptoms. (AR at 17.) 3 The ALJ was therefore required to provide specific, clear and 4 convincing 5 allegations of pain and functional limitations. reasons for rejecting Plaintiff s subjective 6 The ALJ provided various reasons for discrediting Plaintiff s 7 testimony, each of which is fully supported by the record. First, 8 the ALJ noted that Plaintiff s allegation that she could only use 9 her fingers for five to ten minutes at a time without pain was 10 inconsistent with other statements she made regarding her computer 11 use, such as using her computer to read emails and check Facebook 12 and also that she was taking online college courses in English and 13 health. 14 inconsistency 15 credibility. See Thomas, 278 F.3d at 958-59 (inconsistency between 16 the 17 claimant s credibility). (AR at 17, was claimant s citing AR at appropriately testimony and 48-49, 52, considered conduct 57, 245.) in determining supported This rejection of 18 The ALJ also properly determined that Plaintiff s ability to 19 perform certain daily activities, such as cooking and baking, 20 doing housework, grocery shopping, driving, and using the computer 21 were at odds with her claims of debilitating pain. (AR at 17.) 22 While 23 incapacitated in order to be disabled, Vertigan v. Halter, 260 24 F.3d 25 activity here supports the ALJ s finding that Plaintiff s reports 26 of her impairment were not fully credible. See Bray v. Comm r of 27 Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2009); Curry v. 28 Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that the it is 1044, true 1050 that (9th one Cir. does 2001), 11 not the need extent to of be utterly Plaintiff s 1 claimant s ability to take care of her personal needs, prepare 2 easy meals, do light housework and shop for some groceries ... may 3 be seen as inconsistent with the presence of a condition which 4 would preclude all work activity ) (citing Fair v. Bowen, 885 F.2d 5 597, 604 (9th Cir. 1989)). In addition, the ALJ noted that the 6 ability to do all of these daily activities was at odds with 7 Plaintiff s testimony that she had to lie down 75% of the day 8 because of pain and was essentially bedridden. (Id.) 9 The ALJ made specific findings articulating clear and 10 convincing reasons for his rejection of Plaintiff s subjective 11 testimony. Smolen, 80 F.3d at 1284. It is the responsibility of 12 the 13 ambiguities in the evidence. Magallanes, 881 F.2d at 750. A 14 reviewing 15 determination when it is supported by substantial evidence in the 16 record, as here. See Fair, 885 F.2d at 604. It was reasonable for 17 the ALJ to rely on the reasons stated above, each of which is 18 fully supported by the record, in rejecting the credibility of 19 Plaintiff s subjective complaints. In sum, the ALJ reasonably and 20 properly discredited Plaintiff s subjective testimony regarding 21 the severity of her symptoms as not being wholly credible. 22 // 23 // 24 // 25 // 26 // 27 // 28 // ALJ to determine court may credibility not and second-guess 12 resolve the conflicts ALJ s or credibility 1 IV. Conclusion 2 For the reasons stated above, the decision of the Social 3 Security Commissioner is AFFIRMED and the action is DISMISSED with 4 prejudice. 5 6 Dated: May 18, 2012 7 ______________________________ Marc L. Goldman United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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