Josie Baldwin v. Michael J. Astrue, No. 5:2009cv00513 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: For the foregoing reasons, the Agencys decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 JOSIE BALDWIN, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 09-513-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her application 20 for Disability Insurance benefits ( DIB ). 21 Administrative Law Judge ( ALJ ) erred when he: 1) failed to find that 22 Plaintiff s fibromyalgia was a severe impairment at step two of the 23 sequential disability analysis; and 2) rejected a treating doctor s 24 opinion that she could not work. 25 the Agency s decision that Plaintiff was not disabled is supported by 26 substantial evidence, it is affirmed. 27 28 Plaintiff claims that the (Joint Stip. at 3-4, 8-10.) Because 1 2 II. SUMMARY OF PROCEEDINGS Plaintiff applied for DIB on March 27, 2006, alleging that she 3 had been unable to work since February 19, 2005, because of 4 fibromyalgia and, more specifically, increasing stiffness and 5 headaches, hand coordination, trouble sleeping, constant muscle pain 6 and trouble with memory. 7 The Agency denied the application initially and on reconsideration. 8 (AR 23-30.) 9 an ALJ. (Administrative Record ( AR ) 25, 51, 72.) Plaintiff then requested and was granted a hearing before (AR 33, 46-50.) Plaintiff appeared with counsel and 10 testified at the hearing on September 12, 2008. 11 November 13, 2008, the ALJ issued a decision denying benefits. 12 12-21.) Plaintiff appealed to the Appeals Council, which denied 13 review. (AR 5-8, 285.) 14 15 16 17 (AR 287-315.) On (AR She then commenced the instant action. III. DISCUSSION 1. The ALJ s Failure to Consider Plaintiff s Fibromyalgia at Step Two Was Harmless Error In her first claim of error, Plaintiff contends that the ALJ 18 erred in failing to properly consider her fibromyalgia at step two. 19 Plaintiff argues that the medical record, including a longitudinal 20 history of diagnosis and treatment, demonstrates that she suffers from 21 severe fibromyalgia. 22 reasons, the Court concludes that, even assuming that the ALJ erred in 23 failing to find that Plaintiff s fibromyalgia was a severe impairment 24 at step two, any error was harmless. 25 (Joint Stip. at 3-4.) For the following At step two of the sequential evaluation process, the ALJ is 26 tasked with identifying a claimant s severe impairments. 20 C.F.R. 27 § 404.1520(a)(4)(ii). 28 limits an individual's physical or mental ability to do basic work A severe impairment is one that significantly 2 1 activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 20 2 C.F.R. § 404.1521(a). 3 activities as the abilities and aptitudes necessary to do most 4 jobs. 5 85-28, a determination that an impairment(s) is not severe requires a 6 careful evaluation of the medical findings which describe the 7 impairment(s) and an informed judgment about its (their) limiting 8 effects on the individual s physical and mental ability(ies) to 9 perform basic work activities[.] The governing regulations define basic work 20 C.F.R. § 404.1521(b). Under Social Security Ruling ( SSR ) A claimant s subjective symptoms 10 must be considered in this evaluation. Smolen, 80 F.3d at 1290. The 11 step-two inquiry is intended to be a "de minimis screening device." 12 Id. (citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). 13 The ALJ found at step two that Plaintiff s shoulder girdle 14 myositis with tension headache, hypertension, obesity, and depressive 15 disorder, not otherwise specified, were severe impairments. 16 It is not clear why the ALJ did not include her fibromyalgia, given 17 that he noted that, [u]pon application, [Plaintiff] cited 18 fibromyalgia as the sole condition preventing her from sustaining 19 substantial gainful activity[,] and that Plaintiff complained that 20 this condition caused her constant pain and cramping in her legs, 21 back, and chest, difficulty reaching and bending, knots in her back, 22 and pain in her chest. 23 Plaintiff s medically determinable impairments could reasonably be 24 expected to cause her alleged symptoms. 25 symptoms included the symptoms caused by fibromyalgia, (AR 16-17), the 26 ALJ s decision implies that he found that fibromyalgia was a medically 27 determinable impairment. 28 Plaintiff complained of, if believed, had a more than minimal effect (AR 16.) (AR 14.) The ALJ also accepted that (AR 17.) (AR 17.) Because those Further, because the symptoms that 3 1 on her ability to do basic work activities, the ALJ should have found 2 that her fibromyalgia was a severe impairment.1 3 Nevertheless, assuming that the ALJ erred at step two, any error 4 was harmless because the ALJ accounted for the symptoms and 5 limitations allegedly caused by her fibromyalgia in his residual 6 functional capacity determination at step four. 7 Plaintiff s severe impairments, singly or in combination, did not meet 8 or equal a Listed Impairment, the ALJ determined that Plaintiff had 9 the residual functional capacity to do light work.2 After concluding that (AR 14-16.) In 10 making this determination, the ALJ expressly considered the symptoms 11 Plaintiff attributed in whole or in part to her fibromyalgia, 12 including her complaints of constant pain and cramping in her legs, 13 back, and chest; difficulty reaching and bending; stiffness; 14 headaches; hand coordination; trouble sleeping; nausea; dizziness; and 15 exhaustion. 16 determinable impairments could reasonably be expected to produce the 17 alleged symptoms, but discounted Plaintiff s testimony to the extent (AR 16.) The ALJ concluded that her medically- 18 19 20 21 22 23 24 25 26 27 28 1 Additionally, the ALJ noted that Plaintiff s treating physician diagnosed her with fibromyalgia, and that her rheumatologist found 12 out of 18 positive tender points. (AR 17.) On the other hand, the ALJ noted that the treating physician alternatively diagnosed chronic fatigue syndrome, and that her rheumatologist did not make the requisite trigger point identification or rule out other potential sources of discomfort. (AR 17.) It seems that the ALJ was unwilling to fully embrace the fibromyalgia diagnosis. Nevertheless, as discussed in the text, the ALJ went on to consider the symptoms and limitations allegedly arising from Plaintiff s fibromyalgia. 2 The ALJ also found that Plaintiff would be limited to moderately complex work with three to four steps, involving no more than occasional non-intense contact with others, and would be precluded from fast-paced work. (AR 16.) Plaintiff has not challenged those findings here. 4 1 that her description of the intensity and scope of her symptoms was 2 inconsistent with his residual functional capacity assessment. 3 17.) 4 reviewing doctors, who found that Plaintiff could do medium-level 5 work, and on the opinion of consultative neurologist Dr. Woodward, who 6 examined Plaintiff and concluded that her neurological status did not 7 significantly limit her physical abilities. 8 opined that Plaintiff s gait was normal and that her extremities 9 seemed to be in the normal range with respect to muscular power and (AR He did so, in part, based on the opinions of the state agency (AR 17.) Dr. Woodward 10 coordination, concluding that it is likely that depression and 11 anxiety are contributing to much of [her] symptomatology and that she 12 was not significantly limited with respect to her physical activities 13 as a result of her neurologic status. 14 (AR 283-84.) Because the ALJ considered the limitations arising from 15 Plaintiff s fibromyalgia at step four, any failure on his part to find 16 that fibromyalgia was a severe impairment at step two was harmless 17 error. 18 (holding that ALJ s error in finding an impairment non-severe at step 19 two was harmless when ALJ considered limitations resulting from 20 impairment at step four) (citing Stout v. Comm r, Soc. Sec. Admin., 21 454 F.3d 1050, 1054-55 (9th Cir. 2006)); see also Cotton v. Astrue, 22 2010 WL 1258262, at *2 (9th Cir. Apr. 2, 2010) (finding that any error 23 by the ALJ in failing to include fibromyalgia as a severe impairment 24 was harmless where the ALJ concluded that the claimant should be 25 limited to light work due to the possibility that she might have 26 fibromyalgia). 27 reversal or remand. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) For these reasons, this claim does not warrant 28 5 1 2. The Treating Doctor s Opinion 2 In her second claim of error, Plaintiff contends that the ALJ 3 erred by failing to provide legitimate reasons for rejecting an April 4 18, 2007 opinion of Dr. Mariclem Lao, Plaintiff s primary treating 5 physician. 6 claim does not warrant remand. (Joint Stip. at 8-10.) For the following reasons, this In general, a treating doctor s opinion is entitled to deference. 7 8 See Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). This rule does 9 not apply to a treating doctor s opinion regarding the ultimate issue 10 of disability, however. 11 1195 (9th Cir. 2004) (noting that treating physician s opinion is not 12 binding on an ALJ with respect to the . . . ultimate determination of 13 disability. ); 20 C.F.R. § 404.1527(e)(3); see also SSR 96-5p (stating 14 that opinion that claimant is disabled, even when offered by a 15 treating source, can never be entitled to controlling weight or given 16 special significance ). 17 Batson v. Comm r of Soc. Sec., 359 F.3d 1190, In his decision, the ALJ noted Dr. Lao s opinion, but gave it 18 little weight because she apparently relied quite heavily on the 19 subjective report of symptoms and limitations provided by Plaintiff, 20 which the ALJ had found to be unreliable. 21 ALJ gave minimal weight to Dr. Lao s opinion that Plaintiff s 22 inability to tolerate sustained activities and poor concentration 23 would prevent her from engaging in meaningful employment because Dr. 24 Lao was not a mental health specialist and her opinion was not based 25 on clinical evidence, but on Plaintiff s subjective complaints. 26 19.) 27 consultative neurologist and the state agency reviewing psychiatrists. 28 (AR 19.) (AR 18.) Additionally, the (AR Instead, the ALJ gave greater weight to the opinions of the The ALJ also rejected Dr. Lao s opinion on the ground that 6 1 it was conclusory and supported by very little explanation of the 2 evidence relied on in forming that opinion. 3 (AR 18.) These are all legitimate reasons for discounting a treating 4 physician s opinion. See Tommasetti v. Astrue, 533 F.3d 1035, 1041 5 (9th Cir. 2008) ( An ALJ may reject a treating physician s opinion if 6 it is based to a large extent on a claimant s self-reports that have 7 been properly discounted as incredible. ) (quotation omitted); Smolen, 8 80 F.3d at 1285 ("[T]he opinions of a specialist are given more weight 9 than the opinions of a nonspecialist."); Batson, 359 F.3d at 1195 10 (holding treating doctor s opinion that claimant is disabled is not 11 binding on the Agency; further, an opinion that is conclusory, brief, 12 and unsupported by the record as a whole, or by objective medical 13 findings is entitled to minimal evidentiary weight. ). 14 Further, they are supported by substantial evidence in the 15 record. As to Dr. Lao s opinion that Plaintiff was physically 16 incapable of working, the opinion is conclusory and based in large 17 measure on Plaintiff s claims relating to her symptoms. 18 231-35, 281.) 19 Plaintiff s claimed ailments and the ALJ found that Plaintiff was not 20 credible, a finding she does not challenge here. 21 reasons for rejecting these findings is supported by the record.3 (AR 226, 227, There is very little objective evidence to support Thus, the ALJ s 22 23 24 25 26 27 28 3 The Court acknowledges that there are unique evidentiary difficulties associated with the diagnosis and treatment of fibromyalgia, meaning that objective evidence is relatively less helpful in determining a claimant s limitations. See Rogers v. Comm r, Soc. Sec. Admin., 486 F.3d 234, 245 (6th Cir. 2007); see also Green-Younger v. Barnhart, 335 F.3d 99, 108 (2d Cir. 2003) (reversing where ALJ effectively required objective evidence for a disease [i.e., fibromyalgia] that eludes such measurement. ); Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996) (noting that fibromyalgia symptoms are entirely subjective ). The ALJ did not improperly 7 1 As to Plaintiff s mental capacity, examining clinical 2 psychologist Dr. Kim Goldman and the state agency reviewing 3 psychiatrists all concluded that Plaintiff would have no more than 4 moderate difficulties in concentration, persistence, and pace. 5 183, 192, 195.) 6 their opinions are entitled to more weight that Dr. Lao s.4 Because these individuals are experts in that field, IV. CONCLUSION 7 8 9 (AR For the foregoing reasons, the Agency s decision is affirmed and the case is dismissed with prejudice. 10 IT IS SO ORDERED. 11 DATED: May 10, 2010. 12 13 14 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 S:\PJW\Cases-Soc Sec\Baldwin\Memo_Opinion.wpd 20 21 22 23 24 25 26 27 28 require objective evidence of Plaintiff s limitations here, however. Rather, he noted that Dr. Lao s opinion was largely based on Plaintiff s own account, and found, in turn, that her account was not credible for various reasons. 4 It is not clear why the ALJ concluded that Dr. Lao s opinion regarding a neurological impairment is given less weight than the Board certified neurologist, Dr. Woodward. (AR 18.) Dr. Lao did not appear to offer an opinion regarding a neurological impairment in her April 18, 2007 letter. Nevertheless, in light of the ALJ s other reasons for rejecting Dr. Lao s opinion, any error committed in this regard was inconsequential to the ultimate nondisability decision, and, therefore, harmless. Stout, 454 F.3d at 1055. 8
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