Patrick Berryman v. Michael J Astrue, No. 5:2009cv01180 - Document 15 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian, The decision of the Commissioner of Social Security is AFFIRMED. (SEE OPINION FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PATRICK BERRYMAN, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 09-1180 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. SUMMARY 20 On July 2, 2009, plaintiff Patrick Berryman ( plaintiff ) filed a Complaint 21 seeking review of the Commissioner of Social Security s denial of plaintiff s 22 application for benefits. The parties have consented to proceed before a United 23 States Magistrate Judge. 24 This matter is before the Court on the parties cross motions for summary 25 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; July 6, 2009 Case Management Order ¶ 5. 28 /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On November 10, 2006, plaintiff protectively filed an application for 7 Disability Insurance Benefits. (Administrative Record ( AR ) 86-88, 109). 8 Plaintiff asserted that he became disabled on August 4, 2006, due to attention 9 deficit disorder. (AR 113). The ALJ examined the medical record and heard 10 testimony from plaintiff, who was represented by counsel, on January 21, 2009. 11 (AR 16-46). A vocational expert and a third party witness also testified. (AR 2912 45). 13 On March 2, 2009, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 8-15). Specifically, the ALJ found: 15 (1) plaintiff suffered from the severe impairments of depressive disorder not 16 otherwise specified and attention deficit disorder/learning dysfunction by history 17 (AR 10); (2) plaintiff s impairments, considered singly or in combination, did not 18 meet or medically equal one of the listed impairments (AR 11); (3) plaintiff 19 retained the residual functional capacity to perform a full range of work at all 20 exertional levels with certain limitations (AR 12);2 (4) plaintiff could perform his 21 past relevant work as a welder and machinist (AR 14); and (5) the testimony of the 22 23 24 25 26 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 The ALJ determined that plaintiff was moderately limited in the ability to interact 27 appropriately with the general public; moderately limited in the ability to accept instructions and 28 respond appropriately to criticism from supervisors; and moderately limited in the ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. (AR 12). 2 1 third party witness was not entirely credible. (AR 14). The Appeals Council 2 denied plaintiff s application for review. (AR 1-3). 3 III. APPLICABLE LEGAL STANDARDS 4 A. 5 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 6 engage in any substantial gainful activity by reason of a medically determinable 7 physical or mental impairment which can be expected to result in death or which 8 has lasted or can be expected to last for a continuous period of at least twelve 9 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 10 § 423(d)(1)(A)). The impairment must render the claimant incapable of 11 performing the work he previously performed and incapable of performing any 12 other substantial gainful employment that exists in the national economy. Tackett 13 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 14 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 15 sequential evaluation process: 16 (1) 17 18 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 19 his ability to work? If not, the claimant is not disabled. If so, 20 proceed to step three. 21 (3) Does the claimant s impairment, or combination of 22 impairments, meet or equal an impairment listed in 20 C.F.R. 23 Part 404, Subpart P, Appendix 1? If so, the claimant is 24 disabled. If not, proceed to step four. 25 (4) Does the claimant possess the residual functional capacity to 26 perform his past relevant work? If so, the claimant is not 27 disabled. If not, proceed to step five. 28 /// 3 1 (5) Does the claimant s residual functional capacity, when 2 considered with the claimant s age, education, and work 3 experience, allow him to adjust to other work that exists in 4 significant numbers in the national economy? If so, the 5 claimant is not disabled. If not, the claimant is disabled. 6 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 7 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 8 B. 9 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 10 benefits only if it is not supported by substantial evidence or if it is based on legal 11 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 12 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 13 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 14 mind might accept as adequate to support a conclusion. Richardson v. Perales, 15 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 16 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 17 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 18 To determine whether substantial evidence supports a finding, a court must 19 consider the record as a whole, weighing both evidence that supports and 20 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 21 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 22 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 23 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 24 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 25 /// 26 /// 27 /// 28 /// 4 1 IV. DISCUSSION 2 A. 3 4 The ALJ Properly Evaluated the Medical Opinion Evidence 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 5 opinions depending on the nature of the services provided. Courts distinguish 6 among the opinions of three types of physicians: those who treat the claimant 7 ( treating physicians ) and two categories of nontreating physicians, namely 8 those who examine but do not treat the claimant ( examining physicians ) and 9 those who neither examine nor treat the claimant ( nonexamining physicians ). 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir.), as amended (1996) (footnote 11 reference omitted). A treating physician s opinion is entitled to more weight than 12 an examining physician s opinion, and an examining physician s opinion is 13 entitled to more weight than a nonexamining physician s opinion. See id. In 14 general, the opinion of a treating physician is entitled to greater weight than that of 15 a non-treating physician because a treating physician is employed to cure and has 16 a greater opportunity to know and observe the patient as an individual. Morgan 17 v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 18 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 19 A treating physician s opinion is not, however, necessarily conclusive as to 20 either a physical condition or the ultimate issue of disability. Magallanes v. 21 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 22 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 23 contradicted by another doctor, it may be rejected only for clear and convincing 24 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 25 quotations omitted). An ALJ can reject the opinion of a treating physician in favor 26 of a conflicting opinion of another examining physician if the ALJ makes findings 27 setting forth specific, legitimate reasons for doing so that are based on substantial 28 evidence in the record. Id. (citation and internal quotations omitted). The ALJ 5 1 must do more than offer his conclusions. Embrey v. Bowen, 849 F.2d 418, 2 421-22 (9th Cir. 1988). He must set forth his own interpretations and explain 3 why they, rather than the [physician s], are correct. Id.; see Thomas v. Barnhart, 4 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed 5 and thorough summary of facts and conflicting clinical evidence, stating his 6 interpretation thereof, and making findings) (citations and quotations omitted). 7 Broad and vague reasons for rejecting a treating physician s opinion do not 8 suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 9 When they are properly supported, the opinions of physicians other than 10 treating physicians, such as examining physicians and nonexamining medical 11 experts, may constitute substantial evidence upon which an ALJ may rely. See, 12 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 13 examiner s opinion on its own constituted substantial evidence, because it rested 14 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 15 medical expert opinions may serve as substantial evidence when they are 16 supported by other evidence in the record and are consistent with it ). 17 18 2. Analysis Plaintiff contends that the ALJ erred by failing to consider properly the 19 opinion of a treating physician, Dr. KyiKyi Win. (Plaintiff s Motion at 3-5). 20 Plaintiff s argument lacks merit. 21 Dr. Win opined that plaintiff had greater mental and physical limitations 22 than did any other physician. In a form entitled Medical Opinion Re: Ability To 23 Do Work-Related Activities (Mental), Dr. Win stated, for example, that plaintiff 24 was [u]nable to meet competitive standards for certain mental abilities, such as 25 remembering work-like procedures and asking simple questions or requesting 26 assistance. (AR 265). Dr. Win believed plaintiff had a [l]imited but satisfactory 27 capacity to perform two other mental abilities, and a [s]eriously limited, but not 28 precluded capacity to perform the eight other mental abilities listed, including 6 1 understanding, remembering, and carrying out very short and simple instructions, 2 and completing a normal workday and workweek without interruptions from his 3 psychological symptoms. (AR 265). On a form concerning plaintiff s physical 4 limitations, Dr. Win opined, for example, that plaintiff could walk for only about 5 four hours and sit for only about two hours in an eight-hour day; needed to walk 6 every fifteen minutes for a total of ten minutes; needed the opportunity to shift at 7 will from sitting or standing/walking; could perform postural activities only 8 occasionally; and needed to avoid concentrated exposure to most environmental 9 conditions. (AR 267-69). Dr. Win s opinions were contradicted by other 10 examining and nonexamining physicians. See, e.g., AR 230-35 (examining 11 psychologist concluded [t]here is no credible evidence of impairment in his 12 ability to understand, remember, and carry out job instructions, maintain attention, 13 concentration, persistence and pace, or adapt to day-to-day work activities ); AR 14 256 (nonexamining physician concluded plaintiff is physically nonsevere ). 15 The ALJ provided several reasons for rejecting Dr. Win s opinion. First, he 16 explained that there are no corresponding treatment notes in the record. (AR 17 14). Dr. Win s opinions of plaintiff s limitations are recounted in check-the-box 18 forms that offer very little supporting detail. (See AR 265, 267-69). The scant 19 other records from Dr. Win, which cover only four appointments, do not support 20 the extreme limitations Dr. Win assessed on these forms. A record dated April 19, 21 2006, contains information from a history and physical and does not suggest that 22 plaintiff had any serious mental or physical limitations. (AR 211). On a treatment 23 note dated May 1, 2006, Dr. Win stated that plaintiff was a very poor historian 24 who depended on his wife for information, and Dr. Win suggested he see a 25 psychiatrist. (AR 212). Although the interview was frustrating for Dr. Win 26 because Dr. Win was not prepared by [plaintiff s] wife about his mental status, 27 Dr. Win did not appear to do a psychiatric examination that could have justified 28 the mental limitations with which Dr. Win assessed plaintiff. (AR 212). On May 7 1 8, 2006, plaintiff performed a stress test at Dr. Win s office (AR 213-20) that was 2 described as negative by a nonexamining physician. (AR 256). Finally, on 3 October 24, 2006, Dr. Win examined plaintiff following a hospital admission for 4 cellulitis and lymphadenitis, and did not note any physical or mental limitations. 5 (AR 221-22). Thus, the ALJ accurately concluded there were no corresponding 6 treatment notes in the record to support Dr. Win s assessment of plaintiff s 7 functional limitations. (AR 14). This reason alone suffices to reject Dr. Win s 8 opinion. See Tonapetyan, 242 F.3d at 1149 (an ALJ need not accept a treating 9 physician s opinions that are conclusory and brief, or unsupported by clinical 10 findings or physician s own treatment notes). The Court therefore need not 11 address the other reasons provided by the ALJ for rejecting Dr. Win s opinion. A 12 remand or reversal is not warranted on this basis. 13 14 15 B. The ALJ Properly Considered Lay Witness Evidence 1. Pertinent Law Lay testimony as to a claimant s symptoms is competent evidence that an 16 ALJ must take into account, unless she expressly determines to disregard such 17 testimony and gives reasons germane to each witness for doing so. Stout, 454 18 F.3d at 1056 (citations omitted); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 19 2001); see also Robbins, 466 F.3d at 885 (ALJ required to account for all lay 20 witness testimony in discussion of findings) (citation omitted); Regennitter v. 21 Commissioner of Social Security Administration, 166 F.3d 1294, 1298 (9th Cir. 22 1999) (testimony by lay witness who has observed claimant is important source of 23 information about claimant s impairments); Nguyen v. Chater, 100 F.3d 1462, 24 1467 (9th Cir. 1996) (lay witness testimony as to claimant s symptoms or how 25 impairment affects ability to work is competent evidence and therefore cannot be 26 disregarded without comment) (citations omitted); Sprague, 812 F.2d at 1232 27 (ALJ must consider observations of non-medical sources, e.g., lay witnesses, as to 28 how impairment affects claimant s ability to work). The standards discussed in 8 1 these authorities appear equally applicable to written statements. Cf. Schneider v. 2 Commissioner of Social Security Administration, 223 F.3d 968, 974-75 (9th Cir. 3 2000) (ALJ erred in failing to consider letters submitted by claimant s friends and 4 ex-employers in evaluating severity of claimant s functional limitations). 5 In cases in which the ALJ s error lies in a failure to properly discuss 6 competent lay testimony favorable to the claimant, a reviewing court cannot 7 consider the error harmless unless it can confidently conclude that no reasonable 8 ALJ, when fully crediting the testimony, could have reached a different disability 9 determination. Robbins, 466 F.3d at 885 (quoting Stout, 454 F.3d at 1055-56). 10 11 2. Analysis Plaintiff argues that the ALJ failed properly to consider the testimony of his 12 wife, Mrs. Sally Berryman. (Plaintiff s Motion at 5-7). The Court disagrees. 13 Mrs. Berryman completed a Function Report - Adult - Third Party dated 14 December 6, 2006 (AR 130-37) and testified at the hearing before the ALJ. (AR 15 29-40). In general terms, she stated that plaintiff has memory difficulties, gets 16 flustered easily, and makes mistakes. (See AR 30-32, 135-36). The ALJ 17 discounted her testimony because she is an interested party and her testimony 18 regarding his limitations is contrary [to] his activities. (AR 14). The ALJ may 19 not discount her testimony merely because, as plaintiff s wife, she is an interested 20 party. See Regennitter, 166 F.3d at 1298. However, the ALJ properly relied on 21 the conflict between Mrs. Berryman s testimony and plaintiff s daily activities to 22 discredit her opinion. Mrs. Berryman stated that plaintiff s daily activities include 23 taking their children to school and the park, running errands, preparing meals, 24 performing yard work, housecleaning, and doing laundry. (AR 130-33). She also 25 stated he could walk several miles before needing to rest. (AR 135). The ALJ 26 properly discounted Mrs. Berryman s testimony that plaintiff suffered from 27 disabling limitations in light of her description of plaintiff s daily activities. See, 28 e.g., Brummer v. Astrue, 2010 WL 883864, at *2-3 (C.D. Cal. Mar. 9, 2010) (ALJ 9 1 did not err in discounting lay witness testimony where witness s description of 2 claimant s daily activities was inconsistent with disability). Moreover, Mrs. 3 Berryman s description of plaintiff s activities was nearly identical to plaintiff s 4 own description. (Compare AR 130-37 with AR 138-45). The ALJ discounted 5 plaintiff s credibility a finding that plaintiff does not challenge in part because 6 plaintiff s activities are contrary to his alleged limitations. (AR 14). Because 7 the ALJ properly rejected plaintiff s similar testimony, it follows that the ALJ 8 also gave germane reasons for rejecting Mrs. Berryman s statements. See 9 Valentine v. Commissioner, Social Security Administration, 574 F.3d 685, 694 10 (9th Cir. 2009). Accordingly, a remand or reversal is not warranted on this basis. 11 12 13 C. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert Plaintiff contends that the ALJ erroneously omitted from his hypothetical 14 question posed to the vocational expert the mental limitations and environmental 15 restrictions opined by Dr. Win. (Plaintiff's Motion at 8). The Court disagrees. 16 Hypothetical questions posed to the vocational expert must set out all the 17 limitations and restrictions of the particular claimant . . . . Embrey, 849 F.2d at 18 422 (emphasis in original; citation omitted). An ALJ s hypothetical question need 19 not include limitations not supported by substantial evidence in the record. 20 Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (citation omitted). 21 As discussed above, the ALJ s rejection of Dr. Win s opinions was legally 22 proper. The ALJ was not required to include in his hypothetical limitations that 23 were not part of his findings. The ALJ s hypothetical properly included all of the 24 limitations that the ALJ found credible and supported by substantial evidence in 25 the record. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). (Compare 26 AR 40 (citing Exhibit 5F [AR 238-40]) with AR 12). Accordingly, a remand or 27 reversal is not warranted on this basis. 28 /// 10 1 D. 2 3 The ALJ Properly Determined that Plaintiff Could Perform His Past Relevant Work Finally, plaintiff contends that the ALJ erred in determining that plaintiff is 4 capable of performing his past relevant work as a welder and machinist. 5 (Plaintiff s Motion at 9-11). The Court disagrees. 6 At step four, plaintiff has the burden of showing that he could not perform 7 his past relevant work as actually performed or as generally performed. Pinto v. 8 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). However, the ALJ still has a 9 duty to make the requisite factual findings to support his conclusion. Id. at 844. 10 The ALJ discharges this duty by comparing the claimant s residual functional 11 capacity to the physical and mental demands of the claimant s past relevant work. 12 Id. at 844-45; 20 C.F.R. § 404.1520(f). To determine the general demands of the 13 claimant s past relevant work, the ALJ may refer to the Dictionary of Occupational 14 Titles ( DOT ). Id. at 845-46 (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th 15 Cir. 1995)). Although the ALJ may rely on a vocational expert to determine the 16 actual demands of the claimant s past relevant work, it should be noted that if an 17 ALJ determines that an individual can return to his past relevant work, no expert 18 testimony is necessary. See id. at 844; Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 19 1996). 20 Here, the ALJ made the requisite factual findings. The ALJ first determined 21 that plaintiff has the residual functional capacity to perform all levels of exertional 22 work with some nonexertional restrictions. (AR 12). The ALJ then properly 23 relied on the vocational expert, who used the DOT to determine the demands of 24 plaintiff s past work as a machinist and welder. (AR 14-15, 42-45). The 25 vocational expert testified that a person with the residual functional capacity 26 assessed by the ALJ for plaintiff could return to plaintiff s past relevant work. 27 (AR 40-45). 28 /// 11 1 Plaintiff argues that the demands of his past relevant work far exceed [his] 2 residual functional capacity, either as assessed by Dr. Win or by the ALJ. 3 (Plaintiff s Motion at 10-11). As discussed above, the ALJ s hypothetical to the 4 vocational expert included all of the limitations that the ALJ found credible and 5 supported by substantial evidence, and the ALJ properly rejected Dr. Win s 6 opinions. Thus, the Court rejects plaintiff s contention that the demands of his 7 past relevant work conflict with the limitations assessed by Dr. Win. In addition, 8 plaintiff s conclusory argument that the demands of the machinist and welder jobs 9 exceed the residual functional capacity assessed by the ALJ lacks merit. The 10 ALJ s decision at step four contains the requisite findings and is supported by 11 substantial evidence. Accordingly, a remand or reversal on this basis is not 12 warranted. 13 V. CONCLUSION 14 For the foregoing reasons, the decision of the Commissioner of Social 15 Security is affirmed. 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 DATED: August 16, 2010 18 19 20 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 12
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