Renee M Lara v. Michael J Astrue, No. 5:2009cv00262 - Document 17 (C.D. Cal. 2009)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice.IT IS SO ORDERED. (rp)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 RENEE M. LARA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-00262-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered the lay witness testimony; 2. Whether 3 4 3. properly considered the consultative Whether the ALJ posed a complete hypothetical question to the vocational expert; and 4. Whether 7 8 ALJ examiner s opinion; 5 6 the the ALJ properly considered the severity of Plaintiff s mental impairment. (JS at 3.) 9 10 This Memorandum Opinion will constitute the Court s findings of 11 fact and conclusions of law. After reviewing the matter, the Court 12 concludes that the decision of the Commissioner must be affirmed. 13 14 I 15 THE ALJ DID NOT COMMIT ERROR WITH REGARD TO A FAILURE 16 TO CONSIDER CERTAIN LAY WITNESS TESTIMONY 17 18 19 In Plaintiff s first issue, she identifies certain testimony at the original hearing in this matter.1 The testimony of Plaintiff s sister which is involved in Issue 20 No. 1 occurred at the first hearing. During that testimony, which 21 Plaintiff summarizes (see JS at 3-5), Plaintiff s sister testified 22 that after the year 2000, Plaintiff had more depression. And then 23 1 24 25 26 27 28 The history of this matter indicates that after Plaintiff filed her original claim for a period of disability and disability insurance benefits, on September 24, 2004, it was denied, and ultimately she appeared at an administrative hearing on November 29, 2006. This resulted in an unfavorable decision (AR 51-57), which resulted in a remand by the Appeals Council for a new hearing. (AR 4143.) That hearing occurred on March 27, 2008 (AR 112-149), resulting in the unfavorable decision which is the subject of this litigation. (AR 13-22.) 2 1 she had like a lot of problems with her back. 2 also testified that When she gets real bad, she gets, you know - 3 starts talking about suicide, you know, her suicidal thoughts. (AR 4 105.) 5 Plaintiff asserts that despite this Plaintiff s sister credible lay witness 6 testimony, the ALJ erred by failing to discuss or even mention it in 7 his decision. 8 Plaintiff correctly cites case law which indicates that an ALJ 9 can only reject testimony of a lay witness if he gives reasons which 10 are germane to each witness whose testimony is rejected. (See Smolen 11 v. Chater, 80 F.3d 1273, 1288-1289 (9th Cir. 1996).) 12 ALJ failed to incorporate the first decision in this matter, in which 13 the ALJ made reference to the testimony of Plaintiff s sister, it 14 might appear that Plaintiff has a meritorious issue. 15 argument fails because the overriding principle in Social Security 16 matters is that it is the ALJ s obligation not to discuss all 17 evidence, but only to articulate why significant probative evidence 18 has been rejected. 19 1981), cited with approval in Vincent v. Heckler, 739 F.2d 1393, 1395 20 (9th Cir. 1984). 21 unlike any contested matter presented to a trier of fact, in which the 22 trier of fact must evaluate relevant evidence in order to reach a 23 determination. 24 amount of information presented and then incorporated within an 25 administrative record, such as questionnaires, medical notes and 26 diagnoses, technical reports, lay witness statements, and the like. 27 If it were the obligation, ipso facto, of an ALJ to discuss every bit 28 of evidence, then it might be fair to conclude that an ALJ s decision Here, since the But Plaintiff s Cotter v. Harris, 642 F.2d 700, 706 (3rd Cir. In this sense, Social Security hearings are not In Social Security cases, there is often a very large 3 1 would often be of equal length and volume as the evidence presented. 2 Thus, the question here is whether the statements by Plaintiff s 3 sister were of such probative value that they needed to be considered 4 by the ALJ in the determination of the case. 5 no error was committed. 6 Social Security cases. 7 consider this lay witness statement might be harmless error if, even 8 having credited it, it would not have caused a reasonable ALJ to reach 9 a different determination. If they were not, then Further, harmless error principles apply to Thus, the Court may determine that failure to See Stout v. Commissioner, 454 F.3d 1050, 10 1056 (9th Cir. 2006). 11 the statements from Plaintiff s sister have been noted; that is, that 12 Plaintiff has some depression, some back problems, and sometimes has 13 suicidal ideation. These very issues, however, were well known to the 14 medical professionals whose opinions the ALJ considered. The first is 15 the medical expert ( ME ), Dr. Sherman, who not only testified 16 telephonically at the second hearing, but also provided answers to 17 written interrogatories. 18 Sherman 19 evaluation ( CE ) performed on Plaintiff on November 5, 2007 at the 20 request of the Department of Social Services by Dr. Reznick. (AR 632, 21 489-496.) 22 problem was depression and that she has suicidal ideation. (AR 490.) 23 Similarly, Plaintiff s suicidal ideation is contained in progress 24 notes which the ALJ fully considered. (See, for example, Oasis Crisis 25 Services ( OCS ) progress note of March 19, 2008 (AR 624)( PT admits 26 to feeling suicidal ... )). 27 relied upon all of this evidence in rendering her opinion at the 28 hearing. (See AR at 116-117.) indicates Here, the relevant information contained within she In these answers to interrogatories, Dr. had reviewed a consultative psychological Dr. Reznick considered Plaintiff s claim that her primary Finally, Dr. Sherman incorporated and 4 1 Considering the evidence in this case, it is quite apparent that 2 the statements of Plaintiff s sister about depression and suicidal 3 ideation were, at best, cumulative to similar evidence contained in 4 numerous places in the medical record, which was considered in 5 diagnostic opinions, and also relied upon by the ALJ in making his 6 determination. 7 Plaintiff s sister in the decision, such error would be, at best, 8 harmless. 9 Even if it was error not to discuss the statements of For the foregoing reasons, Plaintiff s first issue has no merit. 10 11 II 12 THE ALJ PROPERLY CONSIDERED THE OPINION 13 OF CONSULTATIVE EXAMINER DR. ROOKS 14 Dr. Rooks performed a consultative psychiatric evaluation ( CE ) 15 on January 4, 2005, and concluded, after conducting his examination, 16 that Plaintiff s functional limitations which pertain to her work 17 adaptability were as follows: 18 [Plaintiff] is able to understand, carry out, and 19 remember simple instructions. 20 detailed and complex tasks, but might not persist with these 21 for long periods of time. 22 She could perform mildly (AR 352.) 23 24 Comparing this to the ALJ s determination as to Plaintiff s 25 mental functional abilities, he found that Plaintiff is capable of 26 simple, repetitive, entry-level tasks in a non-public setting working 27 with things rather than people. (AR 16.) 28 In comparing Dr. Rooks evaluation with the ALJ s conclusions, 5 1 the Court finds a basic concurrence, and for that reason, simply fails 2 to understand Plaintiff s Complaint, incorporated in her second issue, 3 that the ALJ erred by failing to consider the opinion of Dr. Rooks. 4 In particular, the ALJ concluded that, the non-exertional limitations 5 adopted herein consider the [Plaintiff s] mental condition and are 6 consistent with the findings of the consultative examiner, the Board 7 eligible psychiatrist and the licensed psychologists as well as the 8 State Agency board certified psychiatrist. (AR 20, exhibit references 9 omitted.) 10 There is no merit to Plaintiff s second issue. 11 12 III 13 THE ALJ POSED A COMPLETE HYPOTHETICAL QUESTION 14 TO THE VOCATIONAL EXPERT 15 In Plaintiff s third issue, she contends that the ALJ s 16 hypothetical question to the vocational expert ( VE ) was incomplete, 17 in 18 limitations; to wit, that the question fail[s] to set out factors 19 bearing upon Plaintiff s inability to persist with mildly detailed and 20 complex tasks for long periods of time, ... (JS at 14.) 21 that it omitted any reference to Plaintiff s non-exertional Again, the Court is somewhat perplexed as to Plaintiff s framing 22 of this issue. 23 the ALJ limited Plaintiff to simple, repetitive, entry-level tasks in 24 a non public setting working with things rather than people. (AR 16.) 25 Indeed, Plaintiff somehow omits from her quotation of the hypothetical 26 question as actually posed to the VE that it included the following 27 language: 28 The residual functional capacity ( RFC ) as found by I would say this person is restricted to routine, 6 1 repetitive tasks, entry-level work, and working primarily 2 with things rather than with people, also, no production 3 quotas in the nature of assembly-line or piece work. 4 (AR 145.) 5 6 Clearly, the hypothetical question met the requirements 7 established in case law that the limitations posed must set out all of 8 the particular claimant s found limitations and restrictions. 9 Embry v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988). See 10 11 IV 12 THE ALJ DID NOT IMPROPERLY FAIL 13 TO CONSIDER ASSERTED SIDE EFFECTS OF MEDICATIONS 14 In Plaintiff s fourth issue, she notes that Plaintiff is taking 15 various medications, including Seroquel, Cogentin, and Zoloft, and 16 testified that she is slow because she takes these medications. (See 17 JS at 16, citing AR 118, 119.) 18 according to Plaintiff, erred by failing to consider side effects of 19 medications. 20 As a result of this, the ALJ, Again, this is an issue which has no merit. It is Plaintiff s burden to prove that any side effects from 21 medications existed and contributed to a disability finding. See 22 Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 23 reaches for evidence in citing to the Court one assertion: alleging 24 that she is slow to try to substantiate her burden of proof. 25 is nothing more than a classic mention of side effects insufficient to 26 establish the issue relied upon. 27 1157, 1164 (9th Cir. 2001). 28 self-serving statements do not constitute, in and of themselves, Plaintiff This See Osenbrock v. Apfel, 240 F.3d Further, as the Commissioner notes, such 7 1 competent evidence to make the case. 2 528, 531 (9th Cir. 1985). 3 4 5 See Nyman v. Heckler, 779 F.2d The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 6 7 8 DATED: October 5, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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