Kathleen Pitts v. Michael J Astrue, No. 5:2008cv00338 - Document 16 (C.D. Cal. 2008)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Marc L. Goldman. It is ordered that the decision of the Commissioner be affirmed and this case be dismissed without prejudice. (See Order for further details) (db)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 KATHLEEN M. PITTS, Plaintiff, 11 12 13 14 ) ) ) ) ) ) ) ) ) ) ) ) ) v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 Case No. EDCV 08-338-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Kathleen Marie Pitts seeks judicial review of the 19 Commissioner s final decision denying her application for Supplemental 20 Security Income ( SSI ) benefits under Title XVI of the Social Security 21 Act. 42 U.S.C. § 1381 et seq. 22 decision of the Administrative Law Judge ( ALJ ) is affirmed. For the reasons set forth below, the 23 24 25 I. Background Plaintiff was born on June 26, 1956. (Administrative Record ( AR ) 26 at 33). She is a high school graduate, with no additional formal 27 educational 28 previously or vocational employed as a training. stock (AR clerk. at 163). (Id.). Plaintiff Plaintiff filed was an 1 application for SSI benefits on November 28, 2005,1 alleging that she has 2 been disabled since October 21, 2005, as a result of degenerative back 3 pain and affective mood disorder. (AR at 33-34). 4 Plaintiff s application was denied initially on May 12, 2006 and 5 upon reconsideration on January 26, 2007. (AR at 49-53, 41-45). 6 administrative hearing was held on November 8, 2007, before ALJ David M. 7 Ganly at which Plaintiff was 8 at 39-40, 215-233). Plaintiff testified at the hearing (AR at 228-230), 9 as did Vocational Expert ( VE ) Joseph M. Mooney (AR at 228, 231-233), 10 11 An represented by attorney Bill LaTour. (AR and Medical Expert ( ME ) Dr. Joseph Malancharovil (AR at 224-226). On December 8, 2007, ALJ Ganly denied Plaintiff s application for 12 benefits. (AR at 6-21). The ALJ found that the Plaintiff had not 13 engaged in substantial gainful activity during the period at issue. (AR 14 at 11). 15 the medical evidence established that Plaintiff suffered from the 16 following severe impairments: arthritis, bilateral foot fungus, mood 17 disorder not otherwise specified, borderline intellectual deficiencies, 18 and psychophysiological reactions. (Id.). 19 that Plaintiff s impairments did not meet, or were not medically equal The ALJ further found that, pursuant to 20 C.F.R. 416.920(c), However, the ALJ concluded 20 21 22 23 24 25 26 27 28 1 Plaintiff has filed multiple prior applications for SSI benefits (AR at 9). On February 13, 2002, Plaintiff filed an application for SSI benefits, which was denied initially, upon reconsideration, and in an ALJ decision dated February 26, 2004. After the Appeals Counsel denied Plaintiff s request for review, Plaintiff timely filed a civil action for judicial review in this Court. Pitts v. Barnhart, Case No. EDCV 0401247-MLG. The Commissioner s final decision was upheld by this Court on June 30, 2005. On March 2, 2004, Plaintiff filed an application for SSI benefits, which was denied initially, upon reconsideration, and in an ALJ decision dated October 20, 2005. After the Appeals Counsel denied Plaintiff s request for review, Plaintiff timely filed a civil action for judicial review in this Court. Pitts v. Astrue, Case No. EDCV 06-0400-MLG. The Commissioner s final decision was upheld by this Court on March 20, 2007. 2 1 to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, 2 Appendix 1. (AR at 12). 3 made by Plaintiff and her daughter Diana Marie Pitts,2 regarding the 4 degree of Plaintiff s functional limitations and excessive pain, were 5 not credible. (AR at 19-20). 6 residual functional capacity to perform medium work except she is 7 limited [in] frequent postural activities and she is limited to simple 8 repetitive, 4-step, habituated tasks with no rapid pace assembly work 9 and mostly verbal instructions. (AR at 12). The ALJ also determined that the allegations The ALJ found that Plaintiff retained the 10 The ALJ further determined that Plaintiff s past relevant work 11 experience as a stock clerk was unskilled and ordinarily performed at 12 the 13 Plaintiff s impairments prevent her from performing her past relevant 14 work. (Id.). 15 significant numbers in the national economy that Plaintiff could perform 16 (20 C.F.R. 416.960(c), 416.966), such as cleaner, laundry worker and 17 fabric folder. (AR at 20-21). 18 was not disabled within the meaning of the Social Security Act. See 20 19 C.F.R. § 416.920(f). 20 light exertional level. (AR at 20). The ALJ concluded that However, the ALJ found that there were jobs that exist in Thus, the ALJ concluded that Plaintiff On February 14, 2008, the Appeals Council denied review (AR at 2-4, 21 5) and Plaintiff timely commenced this action for judicial review. On 22 December 1, 2008, the parties filed a Joint Stipulation ( Joint Stp. ) 23 of disputed facts and issues. Plaintiff contends that the ALJ erred by: 24 (1) failing to properly consider the mental status examination by 25 Plaintiff s treating psychologist; (2) failing to properly consider the 26 testimony of Plaintiff s daughter; (3) failing to pose a complete 27 hypothetical question to the VE; and (4) finding that Plaintiff s 28 2 Diana Marie Pitts submitted a Function Report - Adult - Third Party form to the Social Security Administration, on behalf of Plaintiff, on December 24, 2005. (AR at 75-82). 3 1 testimony was not entirely credible. (Joint Stp. at 2-3). 2 seeks reversal of the Commissioner s denial of her application and 3 payment 4 administrative hearing. (Joint Stp. at 17). 5 that the ALJ s decision be affirmed. (Joint Stp. at 18). of benefits or, in the alternative, remand Plaintiff for a new The Commissioner requests 6 7 II. Standard of Review Under 8 9 42 U.S.C. § 405(g), a district Commissioner s decision to deny benefits. court may review the The Commissioner s or ALJ s 10 decision must be upheld unless the ALJ s findings are based on legal 11 error or are not supported by substantial evidence in the record as a 12 whole. 13 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 14 such evidence as a reasonable person might accept as adequate to support 15 a conclusion. 16 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 17 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 18 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 19 evidence supports a finding, the reviewing court must review the 20 administrative record as a whole, weighing both the evidence that 21 supports 22 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 23 the evidence can support either affirming or reversing the ALJ s 24 conclusion, the reviewing court may not substitute its judgment for 25 that of the ALJ. Robbins, 466 F.3d at 882. 26 the evidence that detracts // 28 and Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark // 27 Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. // 4 from the Commissioner s 1 2 III. Discussion A. 3 The ALJ Properly Considered Plaintiff s Relevant Mental Health Records 4 Plaintiff contends that the ALJ improperly disregarded a mental 5 status examination conducted on January 17, 2006 by Plaintiff s treating 6 psychologist, Dr. Jon Held. (Joint Stp. at 3-4). 7 Dr. Held noted that Plaintiff s speech was rapid and circumstantial; 8 that she had difficulty concentrating; that her insight and judgment 9 were poor; and that her mood was depressed. (AR at 183). Plaintiff 10 contends that the ALJ failed to discuss this report and did not provide 11 any specific and legitimate reasons for rejecting Dr. Held s opinion. 12 (Joint Stp. at 3-4). 13 In that examination, The January 17, 2006 mental status examination findings of Dr. Held 14 did not constitute a medical source opinion. 15 findings 16 Plaintiff s mental status on the particular day of the examination. 17 (AR at 183). 18 simply recommended that Plaintiff be referred to a medical doctor at the 19 SWIFT/Phoenix Clinic. (AR at 181). 20 examination was not a medical source opinion because it was not prepared 21 for any of the purposes of a medical opinion as defined by the 22 Commissioner s regulations. See 20 C.F.R. § 416.927(a)(2) ( Medical 23 opinions are statements from physicians and psychologists or other 24 acceptable medical sources that reflect judgments about the nature and 25 severity of your impairment(s), including your symptoms, diagnosis and 26 prognosis, what you can still do despite impairment(s), and your 27 physical or mental restrictions ). 28 defined in 20 C.F.R. § 416.927(a)(2) are the only opinions entitled to were simply descriptions of his Rather, Dr. Held s brief observations of In fact, Dr. Held did not make any diagnosis, but rather Consequently, the mental status Furthermore, medical opinions, as 5 1 controlling weight. Social Security Ruling ( SSR ) 96-2p. Therefore, 2 it was not error for the ALJ not to expressly reference Dr. Held s 3 January 17, 2006 mental status examination because it was not considered 4 a medical opinion. See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th 5 Cir. 2003) (finding that the ALJ is not required to discuss evidence 6 that is neither significant nor probative ). 7 The ALJ properly assessed Dr. Held s observations in the context of 8 the entire treatment record from SWIFT/Phoenix Clinic, where Dr. Held 9 practiced (AR at 15). The ALJ found that treatment records from 10 SWIFT/Phoenix Clinic dated from January 2006 through September 2007 11 indicate that the claimant s symptoms were treated with psychotropic 12 medication and her condition was stable and well controlled. (Id.). 13 Further, as shown in the SWIFT/Phoenix Clinic records, Plaintiff was 14 doing well and looked fine even when she was not taking her 15 medication. (Id.) 16 analysis of the entire treatment record from SWIFT/Phoenix Clinic. (AR 17 at 17). 18 was 19 objective medical evidence. (Id.). 20 ALJ did not specifically reference Dr. Held by name or the January 17, 21 2006 report does not constitute error. 22 that this issue is without merit. 23 24 The ALJ specifically found that Dr. Malancharovil s testimony consistent B. The ALJ also relied on ME Dr. Joseph Malancharovil s with the medical evidence of record and based on Therefore, the mere fact that the Accordingly, the Court finds The ALJ Properly Considered the Testimony of Plaintiff s Daughter 25 Plaintiff further contends that ALJ Ganly improperly rejected lay 26 witness testimony offered by Plaintiff s daughter, Diana Marie Pitts. 27 (Joint Stip. at 7). 28 December 24, 2005, Plaintiff s daughter, Diana Marie Pitts, reported In a Function Report - Adult - Third Party dated 6 1 that Plaintiff had significant problems in performing daily activities, 2 such as changing her clothing, brushing her hair, cooking, cleaning, and 3 other various activities. (AR at 75-82). 4 stated 5 depression, slight schizophrenia [and] complains a lot about back and 6 knee pain. (AR at 82). Plaintiff s daughter further opined that 7 Plaintiff 8 illness.... (Id.). that she is not believes able to that work Plaintiff s daughter also Plaintiff due to suffers both from mental and anxiety, physical 9 A lay witness can provide testimony about Plaintiff s symptoms and 10 limitations. See Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996). 11 Lay testimony as to a claimant s symptoms is competent evidence that an 12 ALJ must take into account, unless he or she expressly determines to 13 disregard such testimony and gives reasons germane to each witness for 14 doing so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); see also 15 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). 16 reasons include testimony unsupported by the medical record or other 17 evidence and inconsistent testimony. Lewis, 236 F.3d at 512. Appropriate 18 The Court finds that the ALJ did in fact consider and discuss the 19 evidence from Plaintiff s daughter. (AR at 19-20). The ALJ specifically 20 cited the Function Report supplied by Plaintiff s daughter, finding that 21 the report confirmed other sources, such as statements to physicians and 22 written 23 suggested that Plaintiff was actually quite active. (AR at 19). 24 ALJ noted that Plaintiff s daughter confirmed in the Function Report 25 that Plaintiff does all household chores, including cooks, laundry, 26 irons, 27 granddaughter, and picks up her granddaughter from school, goes to 28 church, and gets along well with others. (Id.). responses waters to questions plants, shops, about takes 7 her care daily of activities, her daughter which The and 1 The Court also finds that ALJ Ganly stated reasons germane to 2 Plaintiff s daughter for discrediting her testimony. The ALJ concluded: 3 Although the claimant s testimony, and that of her daughter, 4 as to the degree of the claimant s subjective symptoms may not 5 be discredited solely on the grounds that they are unsupported 6 by objective evidence, weak objective support, as well as the 7 claimant s poor effort on testing, treatment history, work 8 history, and her activities of daily living, undermine the 9 subjective complaints of disabling symptoms. (AR at 20). 10 Thus, the ALJ properly discredited Plaintiff s daughter s testimony, 11 determining 12 evidence as well as other evidence which demonstrated that Plaintiff was 13 in fact able to work. See Lewis, 236 F.3d at 512. 14 finds this claim is without merit. 15 16 C. that her testimony was inconsistent with the medical Therefore, the Court The ALJ Posed a Complete and Proper Hypothetical to the Vocational Expert 17 Plaintiff contends that the ALJ posed a legally insufficient 18 hypothetical to the VE because it did not include each of Plaintiff s 19 particular limitations and restrictions, specifically the findings of 20 the January 17, 2006 mental status examination conducted by Dr. Held, as 21 discussed above. (Joint Stp. at 10-12). 22 the following question to the VE: 23 Okay. At the hearing, the ALJ posed Mr. Mooney, then, first I d like you to assume you had 24 a lady who could sit, stand or walk for up to six hours out of 25 an eight-hour day, who could lift or carry up to fifty pounds 26 occasionally, up to twenty-five pounds frequently, no other 27 physical limitations. 28 like you to assume there that And then on the mental limitations I d here we are she would be 8 1 limited to simple tasks up to four steps habituated, she 2 should not be required to engage in any rapid-paced work, for 3 example, you know, any sort of high-speed assembly work or 4 anything like that. 5 instructions. 6 limitations. 7 intellectual functioning range, that s somewhat implied by the 8 simple 9 definitions there. She should be given mostly verbal Okay. I believe those would be all the One other: assume that she s in the borderline tasks, but it might Okay. add a little bit to your Given those limitations, would 10 there be any work that this lady could do? 11 the prior relevant work was not SGA? (AR at 231). 12 As previously discussed, the ALJ properly assessed Dr. Held s 13 examination within the context of all of Plaintiff s medical records 14 from the SWIFT/Phoenix Clinic, as well as obtained medical expert 15 testimony 16 examination conducted on January 17, 2006 is not considered a medical 17 source opinion under the Commissioner s regulations, the ALJ was not 18 required to include the alleged mental limitations observed by Dr. Held 19 in the hypothetical posed to the VE. 20 in the hypothetical to the VE limitations that he did not find to exist. 21 See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ( Because 22 the ALJ included all of the limitations that he found to exist, and 23 because his findings were supported by substantial evidence, the ALJ did 24 not err in omitting the other limitations that [Plaintiff] had claimed, 25 but had failed to prove. ); see also Osenbrock v. Apfel, 240 F.3d 1157, 26 1164-1165 27 restrictions in a hypothetical question that are not supported by 28 substantial evidence. ). to (9th assess Cir. these 2001) records. ( An I m assuming that Because the mental status The ALJ is not required to include ALJ is free to accept or reject Furthermore, the ALJ properly determined 9 1 Plaintiff s mental functional capacity (AR at 12) and specifically 2 incorporated his determination as to Plaintiff s mental functional 3 capacity in the hypothetical posed to the VE. (AR at 231). 4 the Court finds that Plaintiff s claim is without merit. 5 D. 6 Therefore, The ALJ Properly Considered Plaintiff s Testimony and Found That She Was Not Fully Credible 7 Finally, Plaintiff argues that the ALJ failed to make proper 8 credibility findings. (Joint Stp. at 13-14). Although the Court assumes 9 that Plaintiff is contending that the ALJ discredited her own testimony 10 at the administrative hearing, the Court notes that Plaintiff has not 11 stated this explicitly nor has she pointed to any particular evidence in 12 the record to support this contention.3 13 When deciding whether to accept the testimony of a claimant, the 14 ALJ must perform a two-step analysis. At the first step, the claimant 15 must produce objective medical evidence of one or more impairments, and 16 show that the impairment or combination of impairments could reasonably 17 be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 18 1273, 1281-82 (9th Cir. 1996) (citing Cotton v. Bowen, 799 F.2d 1403 19 (9th Cir. 1986)). 20 medical evidence of the symptom itself or the severity of the symptom. 21 Id. at 1282 (citing Bunnell v. Sullivan, 947 F.2d 341 (9th Cir. 1991) 22 (en banc)). 23 credibility of the claimant s testimony regarding the severity of his The claimant is not required to produce objective At the second step of the analysis, the ALJ must assess the 24 25 3 26 27 28 Plaintiff merely states, In his decision, the ALJ failed to make proper credibility findings. [AR 6-21]. The pages in the record to which Plaintiff cites are the ALJ s notice of decision, from the first page to the last. The Court admonishes Attorney Bill LaTour to provide specific citations to factual evidence located in the administrative record in a Joint Stipulation filed in this Court. 10 1 symptoms. 2 may reject the claimant s testimony only if the ALJ makes specific 3 findings 4 including which testimony is not credible and what facts in the record 5 lead to that conclusion. Id. at 1284 (citing Dodrill, 12 F.3d at 918). 6 The If there is no affirmative evidence of malingering, the ALJ giving ALJ clear gave and convincing multiple reasons reasons for for finding the that rejection, Plaintiff s 7 subjective testimony was not entirely credible, all of which are fully 8 supported by the record, including: (1) both Plaintiff s daughter s 9 testimony, as well as medical reports, indicated that Plaintiff could do 10 household chores, shop, go to church, and perform many activities of 11 daily 12 demonstrated that Plaintiff s symptoms were controlled by medication; 13 (3) Plaintiff s written statement that she took only Ibuprofen for pain, 14 rather 15 psychiatrist s report dated January 11, 2007 which found that Plaintiff 16 gave poor effort at times on evaluation, thereby affecting the 17 reliability of the test results; (5) the lack of any muscle atrophy or 18 wasting commonly associated with the type of severe pain claimed by 19 Plaintiff; (6) the fact that Plaintiff did not receive any psychiatric 20 treatment from 2003 or 2004 through 2006; and (7) Plaintiff s poor work 21 record, 22 motivation to work and a desire to seek benefits for monetary gain. (AR 23 at 18-19, 62, 75-82, 97-108, 119, 121, 124, 171-188). living; than which, (2) the SWIFT/Phoenix prescription as the ALJ pain Clinic medication; reasonably found, treatment (4) a suggested records consultative a lack of 24 The Court finds that the ALJ made specific findings giving clear 25 and convincing reasons for his rejection of Plaintiff s subjective 26 testimony. Smolen, 80 F.3d at 1284. 27 reasonable for the ALJ to rely on all of the reasons stated above, each 28 of which is fully supported by the record, in rejecting Plaintiff s The Court further finds that it was 11 1 subjective testimony. See, e.g., Burch v. Barnhart, 400 F.3d 676, 680- 2 681 (9th Cir. 2005) (claimant s allegations of disability properly 3 discredited where claimant was, inter alia, able to care for her own 4 personal needs, cook, clean, and shop ); Thomas v. Barnhart, 278 F.3d 5 947, 959 (9th Cir. 2002) (claimant s efforts to impede accurate testing 6 of her limitations by a failure to give maximum or consistent effort 7 on 8 claimant s subjective allegations of disability); Verduzco v. Apfel, 188 9 F.3d 1087, 1090 (9th Cir. 1999) (claimant properly discredited where his 10 hearing testimony was inconsistent with his own statements or actions, 11 as well as with the medical evidence ); Meanel v. Apfel, 172 F.3d 1111, 12 1113-1114 (9th Cir. 1999) (upholding credibility analysis where claimant 13 received 14 significant pain, and where claimant did not exhibit muscular atrophy or 15 any other physical signs of incapacitation); Light v. Soc. Sec. Admin., 16 119 F.3d 789, 792 (9th Cir. 1997) (in weighing claimant s credibility, 17 the 18 inconsistencies either in his testimony or between his testimony and his 19 conduct, his daily activities, his work record, and testimony from 20 physicians and third parties concerning the nature, severity, and effect 21 of the symptoms of which he complains ). 22 the ALJ reasonably and properly discredited Plaintiff s subjective 23 testimony regarding the severity of her symptoms as not being wholly 24 credible. 25 may a conservative consider a compelling treatment, claimant s // 28 minimal, is // 27 ALJ examinations // 26 consultative // 12 reason despite to reputation for discredit claims of truthfulness, In sum, the Court finds that 1 2 3 IV. CONCLUSION For the reasons stated above, it is ORDERED that the decision of the Commissioner be affirmed and this case be dismissed with prejudice. 4 5 6 7 DATED: December 11, 2008 ______________________________ 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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