Sylvia Tarver v. Michael J Astrue, No. 5:2008cv01416 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND OPINION by Magistrate Judge Marc L. Goldman. The decision of the Social Security Commissioner is affirmed. (See Order for 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 SYLVIA TARVER, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 08-01416-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Sylvia Tarver seeks judicial review of the Commissioner s 19 final decision denying her application for Social Security Disability 20 Insurance ( SSDI ) benefits and Supplemental Security Income ( SSI ) 21 benefits. 22 Administrative Law Judge ( ALJ ) is affirmed. For the reasons set forth below, the decision of the 23 24 I. Background 25 Plaintiff filed her application for SSDI and SSI benefits on 26 December 22, 2005, alleging disability as of December 13, 2005 due to 27 bipolar disorder. (Administrative Record ( AR ) at 51, 108-110, 112.) 28 Plaintiff was born on June 18, 1956. (AR at 82.) She completed high 1 school and two years of college. (AR at 28.) Plaintiff was employed for 2 many years as a licensed vocational nurse. (AR at 15, 113.) She last 3 worked in December 2005. 4 Plaintiff s applications were denied initially on March 6, 2006 and 5 upon reconsideration on October 25, 2006. (AR at 55-62, 66-76.) An 6 administrative hearing was started on November 19, 2007 and concluded on 7 January 28, 2008, before ALJ Joseph D. Schloss. (AR at 26-43, 46-50.) 8 Plaintiff, represented by counsel, testified at the November 19, 2007 9 hearing (AR at 27-42) and a medical expert, William H. Soltz, Ph.D., 10 testified at the January 28, 2008 hearing. (AR at 46-50.) 11 On February 25, 2008, ALJ Schloss denied Plaintiff s application 12 for benefits. (AR at 12-23.) The ALJ determined that Plaintiff had not 13 engaged in substantial gainful activity since December 13, 2005, the 14 alleged onset date. (Id.) The ALJ further found that, pursuant to 20 15 C.F.R. 416.920(c), the medical evidence established that Plaintiff s 16 impairment did not significantly limit her ability to perform basic work 17 related activities for a period of 12 consecutive months and therefore, 18 it was not a severe impairment withing the meaning of 20 C.F.R. §§ 19 404.1521, 20 Plaintiff was not disabled within the meaning of the Social Security 21 Act. See 20 C.F.R. § 416.920(f). (AR at 22.) 416.921. (AR at 14.) The ALJ therefore concluded that 22 On August 19, 2008, the Appeals Council denied review (AR at 4-6), 23 and Plaintiff timely commenced this action for judicial review. On 24 August 14, 2009, the parties filed a Joint Stipulation ( Joint Stp. ) of 25 disputed facts and issues. Plaintiff contends that the ALJ erred by 26 failing to properly consider: (1) Plaintiff s treating physician s 27 opinion regarding her mental impairments; (2) the type, dosage and side 28 effects of Plaintiff s medication; (3) all of the evidence in the 2 1 record; and (4) the severity of Plaintiff s mental impairment. (Joint 2 Stp. at 2-3). Plaintiff seeks reversal of the Commissioner s denial of 3 her application and payment of benefits or, in the alternative, remand 4 for 5 Commissioner requests that the ALJ s decision be affirmed. (Joint Stp. 6 at 21.) a new administrative hearing. (Joint Stp. at 20-21.) The 7 8 II. Standard of Review Under 9 42 U.S.C. § 405(g), a district court may review the 10 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 11 decision must be upheld unless the ALJ s findings are based on legal 12 error or are not supported by substantial evidence in the record as a 13 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 14 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 15 such evidence as a reasonable person might accept as adequate to support 16 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 17 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 18 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 19 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 20 evidence supports a finding, the reviewing court must review the 21 administrative record as a whole, weighing both the evidence that 22 supports 23 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 24 the 25 conclusion, the reviewing court may not substitute its judgment for 26 that of the ALJ. Robbins, 466 F.3d at 882. 27 // 28 // and evidence the can evidence support that detracts either 3 from affirming the Commissioner s or reversing the ALJ s 1 2 III. Discussion A. ALJ Accorded Appropriate Weight to the Opinion failed to provide of Plaintiff s Treating Physician 3 4 The Plaintiff contends that the ALJ legally 5 sufficient reasons for rejecting two reports prepared by Plaintiff s 6 treating psychiatrist, Dr. Maurice W. Black. (Joint Stp. at 3.) In a 7 Riverside County Department of Mental Health form, dated November 16, 8 2007, Dr. Black reported that Plaintiff s thoughts were disorganized, 9 she had auditory hallucinations and paranoid thoughts, her judgment was 10 moderately impaired, and that she showed signs of anxiety, isolation and 11 manic syndrome. (AR at 302.) Dr. Black also reported that Plaintiff did 12 not show an ability to maintain a sustained level of concentration, 13 sustain repetitive tasks for an extended period or adapt to new or 14 stressful 15 progress note dated February 28, 2007, Dr. Black reported that Plaintiff 16 had major mood swings. (AR at 301.) situations. (Id.) In addition, in an interdisciplinary 17 Plaintiff argues that the ALJ improperly rejected Dr. Black s 18 medical opinions. (Joint Stp. at 3.) In rejecting the November 16, 2007 19 report, the ALJ stated that it appears [Dr. Black] was motivated by 20 sympathy and the claimant s upcoming disability hearing, because he 21 indicated the claimant had much greater limitations than before, even 22 though her condition had been stable for over two years. (AR at 19.)1 23 Plaintiff contends that it was improper for the ALJ to reject Dr. 24 Black s medical opinions on the basis of the ALJ s unfounded assumption 25 that Dr. Black was motivated by sympathy. (Joint Stp. at 4.) 26 The ALJ should generally accord greater probative weight to a 27 1 28 As noted, the hearing was started on November 19, 2007, three days after the report was written. 4 1 treating physician s opinion than to opinions from non-treating sources. 2 See 3 legitimate reasons for rejecting a treating physician s opinion in favor 4 of a non-treating physician s contradictory opinion. Orn v. Astrue, 495 5 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 6 1996). However, the ALJ need not accept the opinion of any medical 7 source, including a treating medical source, if that opinion is brief, 8 conclusory, and inadequately supported by clinical findings. Thomas v. 9 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and 10 Halter, 11 considered by the adjudicator in determining the weight to give a 12 medical opinion include: [l]ength of the treatment relationship and the 13 frequency of examination by the treating physician; and the nature and 14 extent of the treatment relationship between the patient and the 15 treating 16 416.927(d)(2)(i)-(ii); Orn, 495 F.3d at 631-33. 242 F.3d 1144, physician. 1149 20 (9th Cir. C.F.R. 2001). §§ The factors to be 404.1527(d)(2)(i)-(ii), 17 The ALJ s statement that Dr. Black s November 16, 2007 report 18 appears to have been motivated by Plaintiff s imminent disability 19 hearing is not an unreasonable inference, given that Dr. Black found 20 Plaintiff to have significantly greater limitations and symptoms in that 21 report than had been generally described over the previous two years. 22 Even assuming that it was improper for the ALJ to reject Dr. Black s 23 November 16, 2007 medical report on the basis that Dr. Black was 24 motivated by sympathy for Plaintiff, the ALJ also provided several 25 legitimate, well-supported reasons for rejecting the report. First, the 26 ALJ rejected the November 16, 2007 report based on the fact that it was 27 consistently contradicted by Dr. Black s treatment notes. (AR at 19.) 28 For example, the ALJ noted that, according to the treatment records, 5 1 Plaintiff s condition is controlled as long as she takes her 2 medications, and she is generally only seen for medication refills. (AR 3 at 18.) The ALJ also thoroughly and in detail discussed the records of 4 Plaintiff s monthly visits with Dr. Black from February through November 5 2007. (AR at 18-19.) See Orn, 495 F.3d at 632 (holding that the ALJ may 6 reject the treating physician s opinion by setting out a detailed and 7 thorough summary of the facts and conflicting clinical evidence, stating 8 his interpretation thereof, and making findings ). The ALJ correctly 9 noted that Dr. Black s treatment notes from these monthly visits 10 generally state that Plaintiff is doing well on her medication, has few 11 side effects from her medication, denies delusions or hallucinations, 12 has no suicidal ideation, and that her mental status examinations are 13 usually within normal limits. (Id.) It was reasonable for the ALJ to 14 give less weight to Dr. Black s November 16, 2007 report because it was 15 contradicted by his previous treatment notes and other evidence in the 16 record. See Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995) 17 (holding that contradiction between doctor s treatment notes and finding 18 of disability was valid reason to reject treating physician s opinion); 19 see also Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1989) (holding 20 that it is the responsibility of the ALJ to resolve conflicts and 21 ambiguities in the medical record and determine the credibility of 22 medical sources). 23 The ALJ also rejected Dr. Black s November 16, 2007 opinion because 24 it was a check-the-box form without any supporting clinical or 25 laboratory findings. (AR at 18-19.) The November 16, 2007 opinion is a 26 one-page report, in which Dr. Black circled preprinted choices and did 27 not provide any elaboration or explanation for his opinions. (AR at 19, 28 302.) Thus, it was reasonable for the ALJ to fail to give significant 6 1 weight to Dr. Black s November 16, 2007 report. See Johnson, 60 F.3d at 2 1432 (holding that ALJ properly rejected physician s determination where 3 it 4 documentation ); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ 5 permissibly 6 explanation of the bases of their conclusions ). was conclusory rejected and unsubstantiated check-off reports by that did relevant not medical contain any 7 The ALJ also rejected Dr. Black s November 16, 2007 report because 8 it was contradicted by the opinion of the testifying medical expert, Dr. 9 Soltz. (AR at 19.) Dr. Soltz considered the medical record as a whole 10 and found that, although Petitioner has bipolar disorder, it was not 11 severe because she only has moderate difficulties in social functioning, 12 mild limitations in concentration, persistence, or pace, and no episodes 13 of decompensation of extended duration. (AR at 19, 47-48.) Dr. Soltz 14 disagreed with Dr. Black s November 16, 2007 opinion that Plaintiff was 15 delusional, noting that there was no objective evidence in the file to 16 validate Dr. Black s findings. (Id.) Dr. Soltz also noted that, when 17 Plaintiff is on her medications, her impairment is not severe and she is 18 alert, casual, and coherent. (Id.) The ALJ credited Dr. Soltz s 19 opinion, finding that it was consistent with the evidence as a whole, 20 unlike Dr. Black s November 16, 2007 opinion, which was contradicted by 21 medical and other evidence in the record. (AR at 19.) See Tonapetyan, 22 242 F.3d at 1149 (holding that the contrary opinion of a non-examining 23 medical 24 consistent with other independent evidence in the record ). The ALJ also 25 properly relied on the opinions of the State Agency physicians in 26 rejecting 27 consulting psychiatrists, Drs. Hennings and Skopec, both determined that 28 Plaintiff s mental impairment was not severe. (AR at 19, 219-232, 242- expert Dr. may Black s constitute November substantial 16, 7 2007 evidence report. (AR when at it 19.) is The 1 252.) 2 In addition, the ALJ properly considered Dr. Black s February 28, 3 2007 progress note. (AR at 18.) On that date, Plaintiff saw Dr. Black, 4 complaining of an increase in mood swings following a car accident. (AR 5 at 18, 301.) The ALJ noted that, despite the increased mood swings, 6 Plaintiff reported to Dr. Black that her energy was sufficient; she 7 denied suicidal and homicidal ideation; her sleep was okay; and she 8 was alert, oriented and coherent. (Id.) The ALJ properly considered and 9 discussed Dr. Black s February 28, 2007 progress note. 10 The ALJ provided specific and legitimate reasons for rejecting Dr. 11 Black s November 16, 2007 assessment, each of which is supported by 12 substantial evidence in the record. Further, the ALJ properly considered 13 Dr. Black s February 28, 2007 progress note. Accordingly, no relief is 14 warranted on this claim of error. 15 B. 16 The ALJ Properly Considered the Type, Dosage and Side Effects of Plaintiff s Medication 17 Plaintiff contends that the ALJ failed to properly consider the 18 type, dosage, and side effects of her medication. (Joint Stp. at 10.) In 19 addition, Plaintiff argues that the ALJ failed to properly consider an 20 increase in Plaintiff s prescribed dosage of the drug Trileptal as 21 demonstrating an episode of decompensation. (Joint Stp. at 11.) 22 The ALJ must consider all factors that might have a significant 23 impact on an individual s ability to work. Erickson v. Shalala, 9 F.3d 24 813, 817 (9th Cir. 1993) (emphasis in original) (quoting Varney v. 25 Secretary of Health & Human Serv., 846 F.2d 581, 585 (9th Cir. 1987)), 26 relief modified, 859 F.2d 1396 (1988)). Such factors may include side 27 effects 28 Erickson, 9 F.3d at 818; Varney, 846 F.3d at 585 ( [S]ide effects can be of medications as well as 8 subjective evidence of pain. 1 a highly idiosyncratic phenomenon and a claimant s testimony as to 2 their limiting effects should not be trivialized. ) (citation omitted). 3 However, Plaintiff bears the burden of producing medical evidence to 4 show that any claimed side effects from medication are severe enough to 5 interfere with her ability to work. See Osenbrock v. Apfel, 240 F.3d 6 1157, 1164 (9th Cir. 2001) (finding that passing mentions of the side 7 effects 8 insufficient evidence). of ... medication in some of the medical records was 9 As support for her claim, Plaintiff notes a myriad of possible side 10 effects caused by the medications Risperdal and Lexapro. (Joint Stp. at 11 10). The Court notes that the Social Security regulations do not require 12 an ALJ to consider a claimant s medications as part of every disability 13 determination. The mere fact that a claimant takes a certain medication, 14 in and of itself, is not evidence that the claimant also experiences any 15 one of the possible side effects from that medication. Further, a simple 16 recitation of potential side effects from a particular medication does 17 not establish that this claimant experiences these side effects, which 18 prevents him or her from working for these reasons. 19 This specific information must be presented to the ALJ as part of 20 the 21 medications prevent her from working, she has to say so. Only at that 22 point 23 medication 24 credibility. As the regulations make clear, the ALJ must consider these 25 factors only [w]hen additional information is needed to assess the 26 credibility of the individual s statements about symptoms and their 27 effects, because the adjudicator must make every reasonable effort to 28 obtain available information that could shed light on the credibility of claimant s does the burden type, become to demonstrate dosage, relevant, so disability. effectiveness, the 9 ALJ can and If side evaluate Plaintiff s effects of Plaintiff s 1 the individual s statements. SSR 96-7p, 1996 WL 374186, at *3 (S.S.A. 2 1996). Absent an individual s statements of impairment at the outset, 3 the ALJ has no duty to inquire as to the claimant s medications. 4 Plaintiff has failed to demonstrate that side effects from her 5 medications precluded her from engaging in any substantial gainful 6 activity. During the administrative hearing, Plaintiff stated that she 7 felt tired, but it is unclear from the record whether this fatigue was 8 a side effect of any of her medications. (AR at 37-38, 40.) Plaintiff 9 did not claim that she was unable to work due to side effects from her 10 medication. Further, the ALJ did note that, on a single occasion, 11 Plaintiff had some drowsiness as a side effect, but Dr. Black noted 12 [Plaintiff] had a more even mood. (AR at 18, 297.) Plaintiff also cites 13 to a single entry in her medical records, dated May 18, 2005, which 14 states that she has the adverse reactions of equilibrium/dizzy. (AR at 15 218.) However, it is unclear from the medical record which of three 16 different drugs that Plaintiff was taking caused these alleged adverse 17 reactions. (Id.) Aside from these two isolated entries in a medical 18 record spanning a period of more than two years, there was no other 19 evidence 20 Plaintiff s medication or any evidence indicating that the side effects 21 of Plaintiff s medications would have impaired her ability to work. See 22 Osenbrock, 240 F.3d at 1164. In fact, the longitudinal treatment notes 23 show that Plaintiff had a good response to her medication and generally 24 reported no side effects. (AR at 202, 206, 218, 292, 297, 299, 301, 25 304.) 26 in the record regarding any serious side effects from Plaintiff also claims that an increase in her prescribed dosage of 27 28 10 1 Trileptal2 to 600 milligrams twice daily on June 20, 2007 should have 2 been considered as an episode of decompensation3 by the ALJ. (Joint Stp. 3 at 11; AR at 297.) The ALJ determined that Plaintiff has experienced no 4 episodes of decompensation. [Plaintiff] was hospitalized on one occasion 5 overnight, before the alleged onset date. Since that time, her condition 6 has been stable with medication. (AR at 22.) 7 There is no evidence in the record to show that Plaintiff 8 experienced any episodes of decompensation. In fact, on the date that 9 Plaintiff s dosage of Trileptal was increased, June 20, 2007, the 10 treatment notes indicate that Plaintiff was medically compliant and had 11 a good response to her medication with no side effects. (AR at 297.) It 12 was also reported that Plaintiff had no hallucinations, paranoia, 13 delusions, or suicidal or homicidal ideation; that her sleep and 14 appetite were ok; and that she was alert and coherent. (Id.) On 15 Plaintiff s next visit, on August 27, 2007, her mood, appearance, 16 affect, attention, concentration, and speech were all within normal 17 limits. (AR at 292.) It was also reported on that date that Plaintiff s 18 medication adherence was good and her medication response was very 19 good. (Id.) Further, the State Agency physicians who reviewed the 20 2 21 22 23 24 25 26 27 28 Trileptal is an anticonvulsant and mood stabilizing drug, used primarily in the treatment of epilepsy. It is also used to treat anxiety and mood disorders. http://www.ncbi.nlm.nih.gov/pubmed/17300991. 3 Episodes of decompensation are exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning, as manifested by difficulties in performing activities of daily living, maintaining social relationships, or maintaining concentration, persistence, or pace .... Episodes of decompensation may be inferred from medical records showing significant alteration in medication; ... or other relevant information in the record about th existence, severity, and duration of the episode. Episodes of extended duration means three episodes within 1 year, or an average of once every four months, each lasting for at least 2 weeks. 20 C.F.R. § 404, Subpart. P, App. 1, § 12.00.C.4. 11 1 evidence found no episodes of decompensation. (AR at 19, 219-232, 242- 2 252.) Accordingly, substantial evidence supported the ALJ s finding that 3 there were no episodes of decompensation. 4 Therefore, the ALJ properly considered the type, dosage and side 5 effects of Plaintiff s medication and no relief is warranted on this 6 claim. 7 C. The ALJ Properly Considered All of the Relevant Evidence in 8 the Record 9 Plaintiff next contends that the ALJ improperly determined that she 10 experienced no episodes of decompensation because he failed to address 11 the fact that her dosage of Trileptal was increased. (Joint Stp. at 15.) 12 Plaintiff argues that the ALJ selectively misrepresented the record 13 regarding Plaintiff s episode of decompensation in order to support his 14 own conclusion. (AR at 16.) 15 For the reasons discussed above, the ALJ s determination that there 16 were 17 evidence. An increase in Plaintiff s dosage of Trileptal on a single 18 occasion does not, without more, show that she experienced an episode of 19 decompensation, especially given that there was no other evidence of 20 decompensation in the medical record. The ALJ was not required to 21 address the one-time increase in Plaintiff s dosage of Trileptal. See 22 Howard 23 interpreting the evidence and developing the record, the ALJ does not 24 need to discuss every piece of evidence. ). Therefore, no relief is 25 warranted on this issue. 26 27 28 no D. episodes v. of Barnhart, decompensation 341 F.3d 1006, was 1012 supported (9th by Cir. substantial 2003) ( [I]n The ALJ s Determination that Plaintiff s Mental Impairment Was Not Severe is Supported by Substantial Evidence Plaintiff claims that the ALJ improperly found that her mental 12 1 impairment is not severe. (Joint Stp. at 17.) Plaintiff contends that 2 the treatment records completed by her treating psychiatrist, Dr. Black, 3 on November 16, 2007 (AR at 302) and February 28, 2007 (AR at 299, 301) 4 demonstrate that her mental impairment is severe. (Joint Stp. at 17.) 5 Plaintiff also argues that the increase in her dosage of Trileptal on 6 June 20, 2007 also demonstrates that she has a severe mental impairment. 7 (Joint Stp. at 17-18.) 8 A claimant for disability benefits has the burden of producing 9 evidence to demonstrate that he or she was disabled within the relevant 10 time period. Johnson, 60 F.3d at 1432. The existence of a severe 11 impairment 12 impairment has more than a minimal effect on an individual s ability to 13 perform basic work activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th 14 Cir. 1996); 20 C.F.R. §§ 404.1521(a), 416.921(a). The regulations define 15 basic work activities as the abilities and aptitudes necessary to do 16 most jobs, which include physical functions such as walking, standing, 17 sitting, pushing, carrying; capacities for seeing, hearing and speaking; 18 understanding 19 appropriately in a work setting; and dealing with changes in a work 20 setting. 20 C.F.R. § 404.1521(b). The inquiry at this stage is a de 21 minimis screening device to dispose of groundless claims. Smolen, 80 22 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). An 23 impairment is not severe only if it is a slight abnormality with no 24 more than a minimal effect on an individual s ability to work. See SSR 25 85-28; Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). is demonstrated and when remembering the evidence simple establishes instructions; that an responding 26 Here, the finding that Plaintiff s mental impairment did not have 27 more than a minimal effect on her ability to perform work-related 28 functions for twelve consecutive months is substantially supported by 13 1 the record. As previously discussed, the ALJ properly relied upon 2 Plaintiff s medical records and the opinions of the medical expert, Dr. 3 Soltz, as well as the State Agency reviewing physicians, Drs. Hennings 4 and Skopec, in concluding that Plaintiff does not have a severe mental 5 impairment. (AR at 19, 47-48, 219-232, 242-252.) In addition, as 6 discussed in detail above, the ALJ provided specific and legitimate 7 reasons for rejecting Dr. Black s November 16, 2007 medical report and 8 February 28, 2007 progress report, specifically because these two 9 reports were without any supporting clinical or laboratory findings and 10 were contradicted by the medical record, as well as by the opinions of 11 the testifying medical expert and the reviewing psychiatrists. (AR at 12 16-19.) Also, the increase in Plaintiff s dosage of Trileptal on one 13 occasion does not, without more, show that Plaintiff has a severe mental 14 impairment. 15 The ALJ s conclusion that the impairment was not severe within the 16 meaning of the regulations is supported by substantial evidence. 17 Accordingly, Plaintiff is not entitled to relief on this claim. 18 19 20 21 IV. Conclusion For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 22 23 DATED: August 25, 2009 24 25 26 27 ______________________________ Marc L. Goldman United States Magistrate Judge 28 14
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