Francisco J Vargas v. Carolyn W Colvin, No. 2:2012cv06594 - Document 22 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) Case No. CV 12-6594-OP ) Plaintiff, ) ) MEMORANDUM OPINION AND v. ) ORDER ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant. ) ) FRANCISCO J. VARGAS , 17 18 19 20 The Court1 now rules as follows with respect to the disputed issues listed in the Joint Stipulation ( JS ).2 /// /// 21 22 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 23 United States Magistrate Judge in the current action. (ECF Nos. 8, 9.) 24 2 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the Administrative 26 Record 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 27 party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 28 (ECF No. 6 at 3.) 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as 4 the grounds for reversal and/or remand are as follows: 5 (1) 6 Whether the Administrative Law Judge ( ALJ ) properly considered the treating physician s opinion; and 7 (2) Whether the ALJ properly assessed Plaintiff s credibility. 8 (JS at 4.) 9 II. 10 STANDARD OF REVIEW 11 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 12 to determine whether the Commissioner s findings are supported by substantial 13 evidence and whether the proper legal standards were applied. DeLorme v. 14 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 15 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 16 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 17 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 18 evidence is such relevant evidence as a reasonable mind might accept as adequate 19 to support a conclusion. Perales, 402 U.S. at 401 (citation omitted). The Court 20 must review the record as a whole and consider adverse as well as supporting 21 evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where 22 evidence is susceptible of more than one rational interpretation, the 23 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 24 1452 (9th Cir. 1984). 25 III. 26 DISCUSSION 27 28 A. The ALJ s Findings. The ALJ found that Plaintiff has the severe impairment of multiple 2 1 sclerosis. (Administrative Record ( AR ) at 21.) The ALJ concluded that 2 Plaintiff retains the residual functional capacity ( RFC ) to perform sedentary 3 work with the following limitations: he must use a cane for balance; he must 4 avoid hazards such as moving machinery and heights, etc., due to balance 5 issues ; and he can frequently perform postural activities. (Id. at 22.) 6 The ALJ concluded Plaintiff could not perform his past relevant work as a 7 deliverer of merchandise and as a mail carrier. (Id. at 25.) However, relying on 8 the testimony of the vocational expert ( VE ), the ALJ determined that given 9 Plaintiff s age, education, work experience, and RFC, there were jobs in 10 significant number in the national economy he could perform, such as: touch-up 11 screener printed circuit board assembly (Dictionary of Occupational Titles 12 ( DOT ) No. 726.684-110); charge account clerk (DOT No. 205.367-014); and 13 lens inserter, optical (DOT No. 713.687-026). (Id. at 25-26.) The VE testified 14 that the walking for these jobs would be minimal and only in a small area. (Id. at 15 26.) Thus, the ALJ determined that Plaintiff has not been under a disability as 16 defined by the Social Security Act. (Id.) 17 B. The ALJ Properly Considered the Opinion of Plaintiff s Treating 18 Physician. 19 1. 20 It is well established in the Ninth Circuit that a treating physician s opinion 21 is entitled to special weight, because a treating physician is employed to cure and 22 has a greater opportunity to know and observe the patient as an individual. 23 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 24 physician s opinion is not, however, necessarily conclusive as to either a physical 25 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 26 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 27 whether it is supported by sufficient medical data and is consistent with other 28 evidence in the record. 20 C.F.R. §§ 404.1527(d), 416.927(d). Where the treating The Medical Records Before the ALJ Do Not Warrant Remand. 3 1 physician s opinion is uncontroverted by another doctor, it may be rejected only 2 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 3 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 4 physician s opinion is controverted, it may be rejected only if the ALJ makes 5 findings setting forth specific and legitimate reasons that are based on the 6 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 7 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 8 Cir. 1987). The ALJ can meet this burden by setting out a detailed and thorough 9 summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings. Thomas, 278 F.3d at 957 (citation omitted) 11 (quotation omitted). 12 The ALJ is responsible for considering the medical evidence of record in 13 making a determination of disability. 20 C.F.R. §§ 404.1512(d), (e), 404.1527, 14 404.1545(a)(3) (2012). However, the ALJ is not required to discuss every piece 15 of evidence so long as the decision was supported by substantial evidence. 16 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Rather, 17 the ALJ need only explain why significant probative evidence has been rejected. 18 Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 1984); see also 19 Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999) ( The ALJ must set out in 20 the record his reasoning and the evidentiary support for his interpretation of the 21 medical evidence. ). 22 Plaintiff contends that the ALJ failed to provide specific and legitimate 23 reasons for ignoring or discounting Dr. Meir s opinion regarding Plaintiff s 24 functional limitations. (JS at 5.) However, the Court notes that the ALJ has not 25 actually rejected, ignored, or discounted Dr. Meir s opinion. Rather, the ALJ 26 actually relied on Dr. Meir s medical opinion to support Plaintiff s RFC 27 assessment. (AR at 25.) 28 Here, the ALJ reviewed Dr. Meir s November 2010 neurological 4 1 assessment of Plaintiff, the treating physician s most recent assessment of Plaintiff 2 at the time of the ALJ s decision.3 The ALJ noted that Dr. Meir examined 3 Plaintiff and found that Plaintiff had normal strength in his upper extremities and 4 only some diminution of strength in his lower extremities, some loss of 5 coordination, and decreased perception of vibration in hands and feet. (AR at 6 23.) The ALJ further observed that Dr. Meir noted no loss of cognitive ability, 7 personality change, or abnormal behavior or mood. Id. Finally, the ALJ noted 8 the generally mild diminution in the [Plaintiff s] physical and mental abilities 9 expressed in Dr. Meir s assessment. Id. The ALJ s review of Dr. Meir s 10 November 2010 opinion evidence is consistent with the record. (See id. at 293- 11 94.) 12 The ALJ also found Dr. Meir s assessment of Plaintiff to be consistent with 13 Plaintiff s RFC. (Id. at 23.) The Court notes that nothing in Dr. Meir s 14 assessment suggests that Plaintiff cannot perform sedentary work. Moreover, 15 contrary to Plaintiff s contention that the ALJ ignored Dr. Meir s opinion 16 regarding Plaintiff s functional limitations, the ALJ actually incorporated 17 restrictions described by Dr. Meir in Plaintiff s RFC assessment. For example, 18 Dr. Meir noted that Plaintiff needed to use a cane (id. at 293), and the ALJ 19 included this limitation in Plaintiff s RFC assessment, saying that Plaintiff must 20 use a cane for balance (id. at 22). In short, the ALJ fully considered the medical 21 evidence from Dr. Meir that was provided to her and properly incorporated those 22 findings into Plaintiff s RFC. 23 24 Based on the foregoing, the Court finds that there was no error. /// 25 26 3 The Court finds that Dr. Meir s November 2010 assessment of Plaintiff is generally consistent with her assessments of Plaintiff in October 2009 and May 28 2010. (See AR at 292-94, 301-03, 306-07.) 27 5 1 2 3 2. The Additional Medical Evidence Before the Appeals Council Does Not Warrant Remand. Plaintiff contends this case should be remanded to allow the ALJ to 4 consider the whole record, including the additional medical evidence from Dr. 5 Meir that he submitted to the Appeals Council after the ALJ issued her decision. 6 (JS at 8.) Specifically, Plaintiff submitted an RFC Questionnaire and examination 7 notes that were dated July 25, 2011, and completed by Dr. Meir. (AR at 319-20, 8 323-35.) The Appeals Council considered these two additional pieces of evidence 9 and found they did not provide a basis for changing the ALJ s decision (Id. at 1- 10 11 2.) Thus, the Appeals Council denied review. (Id. at 1.) Where, as here, the Appeals Council considers new evidence in deciding 12 whether to review a decision of the ALJ, that evidence becomes part of the 13 administrative record, which the district court must consider when reviewing the 14 Commissioner s final decision for substantial evidence. Brewes v. Comm r of 15 Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). For this reason, the Court 16 considers both the additional material submitted to the Appeals Council and the 17 ALJ s decision to determine whether, in light of the record as a whole, the ALJ s 18 decision was supported by substantial evidence and was free of legal error. See 19 Taylor v. Comm r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011) 20 (citing Ramirez v. Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993)). 21 The Court s review of the new evidence submitted by Plaintiff does not 22 establish that Plaintiff was under a disability through May 18, 2011, the date of 23 the ALJ s decision. While the new evidence might show that Plaintiff s disability 24 worsened after the ALJ s decision, that would be relevant to a new claim and not 25 to the present one. (Sanchez v. Sec y of Health and Human Servs., 812 F.2d 509, 26 512 (9th Cir. 1987) ( The new evidence indicates, at most, mental deterioration 27 after the hearing, which would be material to a new application, but not probative 28 of his condition at the hearing ). 6 1 Even if the new evidence was relevant to Plaintiff s disability at the time of 2 the ALJ s decision, the ALJ s decision is still supported by substantial evidence. 3 That is because Dr. Meir s treatment notes from July 25, 2011, are consistent with 4 Dr. Meir s earlier November 2010 assessment of Plaintiff (see AR at 292-94, 323- 5 25), which the ALJ already found to be consistent with Plaintiff s RFC (id. at 23). 6 Dr. Meir s RFC Questionnaire, however, is inconsistent with and 7 unsupported by her own clinical findings from the same day. For example, Dr. 8 Meir opined that Plaintiff could sit four to five hours in an entire workday, could 9 not stand at all, and could walk for only one half hour or less. (Id. at 319.) She 10 stated that Plaintiff could, therefore, only work for a total of four to five hours per 11 day. (Id.) However, her clinical notes reflect that Plaintiff had mostly normal 12 strength in his major muscle groups and extremities. (Id. at 324.) Dr. Meir also 13 opined that Plaintiff could rarely use his hands for handling, pushing, or pulling 14 and could never use his hands for fine manipulation. (Id. at 319.) However, her 15 treatment notes from the same day state that Plaintiff s coordination was normal. 16 (Id. at 325.) In addition, Dr. Meir s clinical findings from that day are largely 17 unchanged from her previous treatment notes. 18 Thus, after reviewing the entire record, including the evidence presented for 19 the first time to the Appeals Council, the Court finds that the ALJ s decision is 20 supported by substantial evidence. 21 C. The ALJ Properly Considered Plaintiff s Credibility. 22 Plaintiff asserts that the ALJ failed to provide clear and convincing reasons 23 for rejecting his subjective complaints. (JS at 21-28.) Specifically, he states that 24 the ALJ decision is void of any sufficient rationale at all as to why the ALJ 25 ignored and disregards Mr. Vargas s testimony. (Id. at 21.) Plaintiff also 26 contends that the ALJ rejected Plaintiff s testimony using boilerplate language 27 because that testimony is inconsistent with what the ALJ believes it should be, 28 or only because it lacks support in the objective medical evidence. (Id. at 227 1 23.) Moreover, Plaintiff claims that his attempt to perform some minimal daily 2 activities in connection with generous rest periods does not detract from his 3 credibility as to his overall disability because it does not correspond to an ability 4 to perform work activity. (Id. at 25-26.) 5 1. 6 An ALJ s assessment of pain severity and claimant credibility is entitled to 7 great weight. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 8 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). When, as here, an ALJ s disbelief of 9 a claimant s testimony is a critical factor in a decision to deny benefits, the ALJ 10 must make explicit credibility findings. Rashad v. Sullivan, 903 F.2d 1229, 1231 11 (9th Cir. 1990); Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir. 1981); see also 12 Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 1990) (an implicit finding that 13 claimant was not credible is insufficient). Legal Standard. 14 Once a claimant has presented medical evidence of an underlying 15 impairment which could reasonably be expected to cause the symptoms alleged, 16 the ALJ may only discredit the claimant s testimony regarding subjective pain by 17 providing specific, clear, and convincing reasons for doing so. Lingenfelter v. 18 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). An ALJ s credibility finding 19 must be properly supported by the record and sufficiently specific to ensure a 20 reviewing court that the ALJ did not arbitrarily reject a claimant s subjective 21 testimony. Bunnell v. Sullivan, 947 F.2d 341, 345-47 (9th Cir. 1991). 22 An ALJ may properly consider testimony from physicians . . . concerning 23 the nature, severity, and effect of the symptoms of which [claimant] complains, 24 and may properly rely on inconsistencies between claimant s testimony and 25 claimant s conduct and daily activities. See, e.g., Thomas v. Barnhart, 278 F.3d 26 947, 958-59 (9th Cir. 2002) (citation omitted). An ALJ also may consider [t]he 27 nature, location, onset, duration, frequency, radiation, and intensity of any pain 28 or other symptoms; [p]recipitating and aggravating factors ; [t]ype, dosage, 8 1 effectiveness, and adverse side-effects of any medication ; [t]reatment, other 2 than medication ; [f]unctional restrictions ; [t]he claimant s daily activities ; 3 unexplained, or inadequately explained, failure to seek treatment or follow a 4 prescribed course of treatment ; and ordinary techniques of credibility 5 evaluation, in assessing the credibility of the allegedly disabling subjective 6 symptoms. Bunnell, 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 7 C.F.R. 404.1529 (2005); Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 8 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff s daily activities, and on 9 conflict between claimant s testimony of subjective complaints and objective 10 medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 11 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily 12 activities inconsistent with total disability, and helpful medication); Johnson v. 13 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (ALJ may properly rely on the fact 14 that only conservative treatment had been prescribed); Orteza v. Shalala, 50 F.3d 15 748, 750 (9th Cir. 1995) (ALJ may properly rely on claimant s daily activities and 16 the lack of side effects from prescribed medication). 17 2. 18 As stated by the ALJ, Plaintiff alleges the following: he always has aches Analysis. 19 and fatigue, and pain in his joints, fingers, and shoulders make it difficult to do 20 many activities; he has trouble typing, playing the guitar, writing, and running; he 21 cannot stand for long periods, and his back or shoulder pain sometimes cause him 22 difficulty sleeping; he is able to walk about a block before needing to rest, and he 23 takes daily naps; and, he experiences constipation with a bowel movement once a 24 week and in the morning alone, makes 5-6 trips to the bathroom to urinate. (AR at 25 22-23 (citations omitted).) 26 27 28 In his decision, the ALJ generally discounted Plaintiff s credibility as follows: After careful consideration of the evidence, the undersigned finds 9 1 that the claimant s medically determinable impairments could 2 reasonably be expected to cause the alleged symptoms; however, the 3 claimant s statements concerning the intensity, persistence and limiting 4 effects of these symptoms are not credible to the extent they are 5 inconsistent with the above residual functional capacity assessment. 6 (Id. at 23.) 7 The ALJ then provided additional clear and convincing reasons for 8 discounting Plaintiff s subjective complaints. 9 First, the ALJ found that Plaintiff s activities of daily living were 10 inconsistent with the alleged severity of his symptoms. Specifically, she noted that 11 Plaintiff is able to perform several household chores in the morning before doing a 12 twenty minute exercise workout; he is able to sweep, wash dishes, do the laundry, 13 feed the family pets, and do some yard work; he does more cooking now than he 14 used to do; he is able to shop in stores alone for an hour or two, and he can handle 15 his own finances; he is able to type on a keyboard for 1.5 to 2 hours; despite pain 16 in his joints, fingers, and shoulders, he continues to play his guitar and plays video 17 games three to four times a week; he is still able to drive for a few hours with 18 breaks to use the bathroom; his constipation has lessened from before; and, 19 although he usually takes naps for twenty to thirty minutes in the mid-afternoon, he 20 can usually skip the nap and stay awake until evening if he has a cup of coffee. 21 (Id.) These are clear and convincing reasons for discounting Plaintiff s credibility. 22 Morgan, 169 F.3d at 600 (claimant s ability to fix meals, do laundry, work in the 23 yard, and occasionally care for friend s child was evidence of ability to work); 24 Tidwell, 161 F.3d at 602 (ALJ may properly rely on weak objective support, lack 25 of treatment, daily activities inconsistent with total disability, and helpful 26 medication); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (claimant s 27 ability to take care of her personal needs, prepare easy meals, do light housework, 28 and shop for groceries inconsistent with claim she was precluded from all work 10 1 activity). The ALJ s interpretation was reasonable. Burch v. Barnhart, 400 F.3d 2 676, 680-81 (9th Cir. 2005) ( Although the evidence of [the claimant s] daily 3 activities may also admit of an interpretation more favorable to [her], the ALJ s 4 interpretation was rational, and [w]e must uphold the ALJ s decision where the 5 evidence is susceptible to more than one rational interpretation. ). 6 The ALJ also carefully considered the medical opinion evidence from 7 multiple sources and found that the objective evidence in the record does not 8 support Plaintiff s statements as to the severity his symptoms. (AR at 23-25.) To 9 the extent the ALJ relied on the fact that the objective medical evidence does not 10 support Plaintiff s alleged severity of symptoms, although a lack of objective 11 medical evidence may not be the sole reason for discounting a plaintiff s 12 credibility, it is nonetheless a legitimate and relevant factor to be considered. 13 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Here, the ALJ gave the 14 most weight to the opinion of the treating physician, Dr. Meir, who found only a 15 generally mild diminution in the [Plaintiff s] physical and mental abilities. (AR 16 at 23.) The ALJ found this assessment to be consistent with, and supportive of, 17 Plaintiff s RFC. (Id. at 23, 25.) The ALJ also relied on parts of the opinions of 18 other medical examiners in concluding that Plaintiff s complaints of disabling 19 limitations were not fully credible. For example, the ALJ assigned moderate 20 weight to the opinion of internist Dr. Neeraj Gupta, consulting examiner, who 21 found that Plaintiff was able to stand or walk for 2 hours in an 8-hour workday, 22 and was able to sit for 6 hours in an 8-hour workday. (Id. at 23.) Likewise, the 23 ALJ assigned moderate weight to the opinion of psychiatrist and neurologist Dr. 24 David Bedrin, consulting examiner, who found that Plaintiff was able to perform 25 work activities on a consistent basis and was able to complete a normal workday 26 without interruptions from psychiatric conditions. (Id. at 24.) 27 Thus, the ALJ provided clear and convincing reasons for finding Plaintiff s 28 subjective complaints of impairment less than credible. See, e.g., Bunnell, 947 11 1 F.2d at 346-47; Morgan, 169 F.3d at 600 (9th Cir. 1999) (ALJ may properly rely 2 on plaintiff s daily activities, and on conflict between claimant s testimony of 3 subjective complaints and objective medical evidence in the record); Tidwell, 161 4 F.3d at 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support and 5 daily activities inconsistent with total disability). 6 Based on the foregoing, the Court finds the ALJ s credibility finding was 7 supported by substantial evidence and was sufficiently specific to permit the Court 8 to conclude that the ALJ did not arbitrarily discredit Plaintiff s subjective 9 testimony. Thus, there was no error. 10 IV. 11 ORDER 12 Based on the foregoing, IT IS THEREFORE ORDERED, that judgment be 13 entered affirming the decision of the Commissioner of Social Security and 14 dismissing this action with prejudice. 15 16 17 Dated: August 8, 2013 HONORABLE OSWALD PARADA United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 12

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