Carolyn Arellano v. Michael J Astrue, No. 5:2009cv01186 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For these reasons, the Agencys decision is reversed and the case is remanded for further proceedings consistent with this memorandum opinion and order. IT IS SO ORDERED. (ca)
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Carolyn Arellano v. Michael J Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 CAROLYN ARELLANO, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 09-1186-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying her 20 application for Supplemental Security Income ( SSI ). 21 claims that the Administrative Law Judge ( ALJ ) erred when he: 22 1) rejected the treating psychologist s opinion; 2) rejected the 23 examining psychiatrist s opinion; 3) rejected the consulting 24 psychologist s opinion; 4) failed to consider Plaintiff s obesity; 25 5) rejected the treating chiropractor s opinion; and 6) discounted 26 Plaintiff s credibility. 27 concludes that the ALJ erred and the case is remanded for further 28 proceedings consistent with this decision. Plaintiff For the following reasons, the Court Dockets.Justia.com 1 II. SUMMARY OF PROCEEDINGS 2 Plaintiff applied for SSI on January 23, 2006, alleging that she 3 had been unable to work since April 25, 2005, because of kidney 4 cancer, gall stones, and depression. 5 119-20, 279.) 6 reconsideration. 7 granted a hearing before an ALJ. 8 at the hearing with counsel on December 18, 2007, but did not testify. 9 (AR 48-63.) (Administrative Record ( AR ) 7, The Agency denied the application initially and on (AR 67-71, 75-79.) Plaintiff then requested and was (AR 80, 88-91.) Plaintiff appeared On February 15, 2008, the ALJ issued an unfavorable 10 decision, finding that Plaintiff was not disabled. (AR 7-16.) 11 Plaintiff appealed to the Appeals Council, which denied review. 12 1-3.) (AR She then commenced this action. 13 III. DISCUSSION 14 1. The ALJ s Rejection of the Treating Psychologist s Opinion 15 In her first claim of error, Plaintiff contends that the ALJ 16 erred when he rejected the opinion of her treating psychologist, 17 Charles R. Shipley. 18 the Court disagrees.1 19 (Joint Stip. at 3-4.) For the following reasons, By rule, the [Agency] favors the opinion of a treating physician 20 over non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th 21 Cir. 2007). 22 favor of a conflicting, non-treating physician s opinion, the ALJ must 23 set forth specific and legitimate reasons, supported by substantial 24 evidence in the record, for doing so. 25 81 F.3d 821, 830 (9th Cir. 1995). In order to reject a treating physician s opinion in Id. at 632; Lester v. Chater, 26 27 28 1 Plaintiff refers to Dr. Shipley as an M.D. (Joint Stip. at 3.) The record shows, however, that he is a psychologist, not a psychiatrist. (AR 243, 244.) 2 1 Dr. Shipley first saw Plaintiff on May 17, 2006, and conducted 2 hour-long therapy sessions with her every other week over the next 18 3 months. 4 two of those therapy sessions. 5 records from the other therapy sessions were not in the file at the 6 time of the administrative hearing. 7 ALJ concluded that Dr. Shipley was not a treating psychologist in 8 the usual meaning of that term. 9 fact that the two treatment records he had reviewed from Dr. Shipley (AR 22-32, 243-46, 249.) The ALJ reviewed records from only (AR 14-15.) (It appears that the (AR 14-15.)) (AR 15.) As a result, the Based on this fact, and the 10 did not support Dr. Shipley s opinion, the ALJ rejected it. 11 15.) 12 (AR 14- This finding is not supported by the record. In lieu of Dr. Shipley s opinion, the ALJ relied on the opinion 13 of Dr. Malancharuvil, a non-examining, consulting psychologist who had 14 reviewed the medical records and who testified at the administrative 15 hearing. 16 psychological problems were minor and did not seriously impact her 17 ability to work. 18 operating under the same misconception as the ALJ; Dr. Malancharuvil, 19 too, believed that Plaintiff had not been treated by Dr. Shipley. 20 58.) 21 on it. 22 (AR 14.) Dr. Malancharuvil determined that Plaintiff s (AR 55-59.) Unfortunately, Dr. Malancharuvil was (AR Thus, his opinion was faulty and the ALJ should not have relied Having determined that the ALJ erred, the Court must next decide 23 whether the error was harmless. Generally speaking, an error is 24 harmless if it is inconsequential to the ultimate nondisability 25 determination. 26 (9th Cir. 2006) (noting with approval the circuit s line of cases 27 holding ALJ s error is harmless if it is inconsequential to the 28 ultimate nondisability determination ). See Stout v. Comm r of Soc. Sec., 454 F.3d 1050, 1055 3 The Agency argues, in 1 essence, that the error was harmless because the additional records 2 from Dr. Shipley do not support his opinion that Plaintiff was 3 severely impaired. 4 Shipley s opinion is inconsistent with the medical records from the 5 other mental health specialists. 6 Smith, an examining psychiatrist, found that Plaintiff was only mildly 7 impaired. 8 (Joint Stip. at 4-7.) It also contends that Dr. It points out, for example, that Dr. (Joint Stip. at 6.) The Court finds the issue relatively close. Having reviewed Dr. 9 Shipley s notes from the 33 therapy sessions, it does not appear to 10 the Court that they support his ultimate conclusion that Plaintiff s 11 psychiatric impairments precluded her from working. 12 ALJ would have seen these records and interpreted them the way the 13 Court has, it is likely that he would have discounted Dr. Shipley s 14 opinion. 15 arrived at a totally different conclusion regarding Dr. Shipley and 16 this case had he seen the amount of therapy Plaintiff received during 17 the relevant time period. 18 Assuming that the It is also possible, however, that the ALJ would have The same questions exist with regard to Dr. Malancharuvil s 19 opinion. It is difficult to know whether he would have reached the 20 same conclusion had he known that Plaintiff had undergone bi-weekly 21 therapy sessions for 18 months during the relevant period. 22 here, the Court is uncertain as to the impact of this evidence, it 23 cannot conclude that the ALJ s error was inconsequential to the 24 ultimate nondisability determination. 25 that reason, remand is required. Where, as Stout, 454 F.3d at 1055. For 26 2. 27 In her second claim of error, Plaintiff contends that the ALJ did 28 The Examining Psychiatrist s Opinion not properly consider the opinion of examining psychiatrist Linda 4 1 Smith. 2 mildly impaired in various aspects of her mental functioning. 3 255.) 4 specifically discuss several of the limitations that Dr. Smith found 5 and to consider how the assessed limitations impacted Plaintiff s 6 ability to perform basic work activities. 7 There is no merit to this argument. 8 9 (Joint Stip. at 7-8.) Dr. Smith concluded that Plaintiff was (AR According to Plaintiff, the ALJ erred by failing to (Joint Stip. at 7,9.) An ALJ must provide specific and legitimate reasons for rejecting an examining physician s opinion. Lester, 81 F.3d at 830; 10 Andrews v. Shalala, 53 F.3d 1035, 1041-42 (9th Cir. 1995). 11 medical reports are inconclusive, questions of credibility and 12 resolution of conflicts in the testimony are functions solely of the 13 [ALJ]. 14 1999) (internal quotation marks omitted). 15 Where Morgan v. Comm r of Soc. Sec., 169 F.3d 595, 601 (9th Cir. The ALJ did not err here. In the first place, he did not reject 16 Dr. Smith s opinion. Rather, he summarized her report and relied on 17 it, in part. 18 required to provide reasons for rejecting it. 19 172 F.3d 1111, 1113 (9th Cir. 1999) (holding that ALJ need not provide 20 clear and convincing reasons where no conflict exists between 21 treating doctor s opinion and ALJ s decision). 22 ALJ implicitly disagreed with Dr. Smith s conclusions, he did so in 23 Plaintiff s favor. 24 only mildly impaired in her ability to function. 25 his residual functional capacity determination, the ALJ adopted Dr. 26 Malanchuravil s opinion, which was more lenient towards Plaintiff, 27 and limited her to habituated moderately complex tasks consisting 28 of 4-5 steps. (AR 13-15.) As to the part he relied on, he was not See Meanel v. Apfel, To the extent that the For example, Dr. Smith found that Plaintiff was (AR 10, 57.) (AR 255.) Yet, in Finally, though the ALJ did not 5 1 specifically identify each of the areas of functioning in which Dr. 2 Smith assessed limitation, this was not error. 3 required to discuss each and every aspect of Dr. Smith s report. 4 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per 5 curiam); see also Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th 6 Cir. 1990) (finding the ALJ s discussion of equivalence sufficient 7 despite the ALJ s failure to state what evidence supported the 8 conclusion that appellant s impairments do not meet or exceed the 9 Listing of Impairments ). The ALJ was not See Here, the ALJ s summary of Dr. Smith s 10 opinion included her view that Plaintiff s mental functioning was 11 mildly impaired and that her GAF score was 62.2 12 summary of Dr. Smith s conclusions, given that the ALJ did not 13 question them. 14 or reversal. 15 3. This was an adequate For these reasons, this claim does not warrant remand The ALJ s Failure to Accept Dr. Shipley s Opinion as a Consultative Examining Psychologist s Opinion 16 17 In an apparent attempt to hedge her bets, Plaintiff argues that 18 the ALJ erred when he failed to address Dr. Shipley s opinion in his 19 role as an examining psychologist, anticipating, it seems, that the 20 Court might not conclude that Dr. Shipley was a treating psychologist. 21 As set forth above, the Court agreed with Plaintiff that Dr. Shipley 22 23 2 24 25 26 27 28 A GAF score is a rough estimate of an individual s psychological, social, and occupational functioning used to reflect the individual s need for treatment. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). A GAF score of 62 indicates [s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . . but generally functioning pretty well. . . . Am. Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000). 6 1 was a treating psychologist and that the ALJ erred when he rejected 2 Dr. Shipley s opinion. As such, this issue is moot. 3 4. The ALJ s Failure to Address Plaintiff s Obesity 4 In her fourth claim of error, Plaintiff contends that the ALJ 5 erred when he failed to consider Plaintiff s obesity in determining 6 whether she was impaired. (Joint Stip. at 11-13.) 7 reasons, the Court disagrees. For the following 8 An ALJ is required to consider the effects of a claimant s 9 obesity on her ability to work, both in isolation and in combination 10 with any other impairments. 11 1181-82 (9th Cir. 2003) (citing 20 C.F.R. §§ 404.1545(e), 416.945(e)). 12 Where, however, a claimant who is represented by counsel fails to 13 specify which Listing she believes she meets or equals, fails to set 14 forth any evidence which would support the diagnosis and findings of a 15 Listed impairment, and fails to point to any evidence of functional 16 limitations related to her obesity, the ALJ s failure to specifically 17 consider obesity does not constitute reversible error. 18 Barnhart, 400 F.3d 676, 682-84 (9th Cir. 2005). 19 See Celaya v. Halter, 332 F.3d 1177, See Burch v. Here, Plaintiff, who was represented by counsel after her claim 20 was initially denied, failed to raise in issue the fact that her 21 obesity impacted her ability to work. 22 application, in the questionnaire she submitted in support of her 23 application (AR 108-10), in her many interviews with Agency employees 24 who were seeking information about her disability claim (AR 105-07, 25 119-44), in her request for reconsideration after the Agency initially 26 denied her claim (AR 72), in her subsequent request for a hearing 27 before an ALJ (AR 80), or at the administrative hearing (AR 48-63). 28 The record appears to supply good reason for Plaintiff s failure: 7 She did not raise it in her 1 there was no evidence that Plaintiff s obesity had any impact on her 2 ability to work or that she had ever claimed that it did. 3 none of the doctors ever opined that Plaintiff s obesity prevented her 4 from working. 5 addressed the impact of Plaintiff s weight on her ability to work 6 concluded that, despite Plaintiff s moderate obesity, she could 7 perform medium exertional work. 8 consistent with the medical record, which showed that, though 9 Plaintiff s weight swelled to 210 pounds in November 2006 (AR 272), (AR 178, 272-74.) Further, In fact, the only doctor who (AR 274, 275.) This finding was 10 more than a year before the administrative hearing and 15 months 11 before the ALJ issued his decision, it was regularly recorded 12 significantly less than 200 pounds, e.g., 168 (AR 155), 170 (AR 190), 13 160 (AR 245), and 150 (AR 257)(driver s license). 14 disclose how much Plaintiff weighed when she appeared before the ALJ 15 in December 2007. 16 conclude that the ALJ erred by failing to raise Plaintiff s obesity on 17 his own where Plaintiff and her lawyer never raised the issue and none 18 of the doctors believed it impacted her ability to work. 19 400 F.3d at 682-84. 20 remand or reversal. The record does not All this being said, the Court is hard-pressed to See Burch, For these reasons, this claim does not warrant 21 5. The Treating Chiropractor s Opinion 22 In her fifth claim of error, Plaintiff contends that the ALJ 23 failed to properly consider an opinion from chiropractor James 24 Cheeley, who had treated Plaintiff for injuries she sustained in a car 25 accident in 2006. 26 merit. 27 28 (Joint Stip. at 15-16.) This claim is without Under social security law, a chiropractor is not an acceptable medical source, and, therefore, is not entitled to the same deference 8 1 that doctors are. 20 C.F.R. § 404.1513(a). Nevertheless, the 2 regulations direct the Agency to consider all of the medical evidence 3 it receives, whether from an acceptable source or not. 4 § 404.1527(d); see also 20 C.F.R. § 404.1513(d)(1) (stating that we 5 may also use evidence from other sources, such as chiropractors, to 6 assess the severity of a claimant s impairments and how they affect 7 her ability to work). 8 a chiropractor s opinion in order to discount it. 9 Shalala, 12 F.3d 915, 919 (9th Cir. 1993); Kus v. Astrue, 276 Fed. 20 C.F.R. An ALJ must provide reasons that are germane to See Dodrill v. 10 Appx. 555, 556-57 (9th Cir. Apr. 25, 2008) (citing Lewis v. Apfel, 236 11 F.3d 503, 511 (9th Cir. 2001)). 12 After Plaintiff was in a car accident in 2006, she underwent 13 relatively conservative treatment from chiropractor James Cheeley for 14 four months. 15 Plaintiff. 16 completed a medical form in which he opined that Plaintiff would be 17 precluded from lifting and carrying more than 20 pounds occasionally 18 and ten pounds frequently; walking for longer than three hours and 19 sitting for longer than four hours in an eight-hour workday; and would 20 need to walk around for five minutes at least every thirty minutes. 21 (AR 325-26.) 22 from work at least two days a month and, while working, would need to 23 lie down at unpredictable intervals at least once a week. 24 27.) (AR 311-16.) (AR 315.) In February 2007, Dr. Cheeley discharged Two months later, in April 2007, Dr. Cheeley Dr. Cheeley also opined that Plaintiff would be absent (AR 326- 25 The ALJ acknowledged Dr. Cheeley s opinion but rejected it. 26 pointed out that Dr. Cheeley s opinion was entitled to little weight 27 because he was a chiropractor and because the limitations he placed on 28 Plaintiff were not supported by the weight of the evidence in the 9 He 1 record. (AR 15.) This justification is germane to Dr. Cheeley and 2 his opinion and is supported by the record. 3 and the medical expert both concluded that Plaintiff was not nearly as 4 restricted as Dr. Cheeley had found. 5 claim does not warrant remand or reversal. (AR The examining physician 54, 275.) As such, this 6 6. The Credibility Determination 7 In her final claim of error, Plaintiff contends that the ALJ 8 erred in discounting her allegations of pain and limitations. 9 Stip. at 17-19.) 10 11 (Joint For the reasons set forth below, the Court finds that this issue warrants remand. ALJs are tasked with judging the credibility of witnesses. In 12 making these credibility determinations, ALJs employ ordinary 13 credibility evaluation techniques. 14 1284 (9th Cir. 1996). 15 evidence of an impairment which could reasonably be expected to 16 produce the symptoms alleged and there is no evidence of malingering, 17 the ALJ can only reject the claimant s testimony for specific, clear, 18 and convincing reasons. 19 supported by substantial evidence in the record. 20 278 F.3d 947, 959 (9th Cir. 2002). Smolen v. Chater, 80 F.3d 1273, Where a claimant has produced objective medical Id. at 1283-84. These reasons must be Thomas v. Barnhart, 21 Although Plaintiff did not testify at the administrative 22 hearing, she submitted a questionnaire in which she described how her 23 ailments impacted her day-to-day life. 24 alleged therein that pain in her stomach and back severely limited her 25 ability to do most anything, and that, when she was able to accomplish 26 a task, the pain caused her to stop, lie down, and rest. 27 28 10 (AR 108-10.) Plaintiff (AR 108-10.) 1 Though the parties agree that the ALJ discounted Plaintiff s 2 testimony, they do not agree as to how and why. 3 Plaintiff believes that the ALJ did it summarily, as follows: 4 After considering the evidence of record, I find that the 5 claimant s medically determinable impairments could 6 reasonably be expected to produce the alleged symptoms, but 7 that the claimant s statements concerning the intensity, 8 persistence and limiting effects of these symptoms are not 9 entirely credible. 10 11 (AR 11.) The Agency contends that the ALJ went further, and set forth his 12 reasons in detail in pages 5-8 of his decision (pages 11-14 of the 13 administrative record). 14 include the fact that Plaintiff was not taking strong pain medication, 15 did not suffer from cancer, and was able to participate in a wide 16 range of activities, as well as the fact that the objective medical 17 evidence did not support her claims of incapacitating pain. 18 Stip. at 19-20.) (Joint Stip. at 19-21.) These reasons (Joint 19 The Court has read and reread the referenced pages of the ALJ s 20 decision and does not agree with the Agency that the ALJ was setting 21 out his reasons for discounting Plaintiff s credibility. 22 says so. 23 the medical evidence and explaining why he was accepting some of the 24 opinions contained therein and rejecting others. 25 justification he provided for rejecting Plaintiff s testimony is 26 contained in the quoted sentence above, which clearly is not enough. 27 See Lester, 81 F.3d at 834 ( General findings by the ALJ are 28 insufficient; rather the ALJ must identify what testimony is not He never And it appears to the Court that he was merely summarizing 11 As such, the only 1 credible and what evidence undermines the claimant s complaints. ). 2 For this reason, remand on this issue is required. 3 4 IV. CONCLUSION For these reasons, the Agency s decision is reversed and the case 5 is remanded for further proceedings consistent with this memorandum 6 opinion and order. 7 IT IS SO ORDERED. 8 DATED: Jul 26, 2010. 9 10 11 12 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\ARELLANO\Memorandum Opinion and Order.wpd 12
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