Nievez Felix v. Michael J Astrue, No. 5:2009cv01370 - Document 27 (C.D. Cal. 2011)

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. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Nievez Felix v. Michael J Astrue Doc. 27 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 NIEVEZ FELIX, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-01370-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 Dockets.Justia.com 1 2 considered the lay witness statement; 2. Whether 3 4 3. Whether 4. considered the State Agency the ALJ properly considered the treating Whether the ALJ properly considered Plaintiff s residual functional capacity; and 5. Whether the ALJ posed a complete hypothetical question to 9 10 properly psychiatrist s opinion; 7 8 ALJ findings; 5 6 the the vocational expert. (JS at 2-3.) 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes that the decision of the Commissioner must be affirmed. 15 16 I 17 THE ALJ PROPERLY CONSIDERED THE LAY WITNESS STATEMENT 18 OF PLAINTIFF S DAUGHTER 19 In Plaintiff s first issue, she contends that the ALJ failed to 20 properly address the 21 law witness testimony of Celena Felix, Plaintiff s daughter. 22 In his decision (AR 24-30), the ALJ addressed a Functional Report 23 Adult Third Party prepared in February 2004 by Plaintiff s daughter. 24 (AR 28, 144-152.) 25 consistent with those of the claimant in that it emphasized the 26 claimant s reduction in capacity since the onset of her medical 27 problems but it also indicated that she was able to she was able to 28 [sic] function in The ALJ noted that this statement was generally an adequate and independent manner in terms of her 2 1 basic activities of daily life and social functioning. (AR 28, 144- 2 152.) 3 Plaintiff s complaint seems to be that the ALJ did not address 4 another Function Report Adult Third Party by Mr. Felix prepared later 5 in the year, in September 2004. (AR 185-193.) 6 The Commissioner argues that there is no essential difference 7 between the two statements by Plaintiff s daughter, and that the 8 second statement is essentially cumulative of the first. 9 does not dispute the similarity of the two documents, but instead 10 relies upon a seemingly technical argument that although the second 11 document was cumulative of the first, the ALJ had a duty to discuss 12 it. 13 indeed, the Court can find none. Clearly, an ALJ must discuss 14 relevant evidence, but he did that. He discussed and indeed accepted 15 the first Report by Plaintiff s daughter. 16 under any obligation to discuss evidence which is merely cumulative or 17 does not add anything relevant. Since Plaintiff does not contend that 18 the second report does not meet these criteria, the Court fails to 19 understand why it was error for the ALJ to fail to discuss the second 20 Report. 21 an assessment of Plaintiff s functional abilities which exceeded that 22 provided by Plaintiff herself in her pre-hearing statements and 23 testimony at the hearing. 24 pre-hearing reports, Plaintiff indicated that she had problems with 25 household chores, that she had been much more active in the past, that 26 she could not walk more than a block at time, stand more than half an 27 hour, or sit more than thirty to sixty minutes, but she also indicated 28 that she was still able to do her basic household chores as needed, Plaintiff This contention is provided without any legal support, and The ALJ is not, however, Further, the Court notes that Plaintiff s daughter provided For example, the ALJ noted that in certain 3 1 drive to shop and run errands as needed, go to church, and visit with 2 friends. (AR 28, citing exhibits.) 3 daughter, more restrictive or limited functional abilities are not 4 described. 5 clear that Plaintiff would be in the best position to describe her own 6 functional abilities. 7 from 8 challenged by Plaintiff in this lawsuit. 9 10 Even if this had been the case, however, it would seem Plaintiff s For In the statement by Plaintiff s the Finally, it is noted that the ALJ detracted credibility foregoing (AR 28), reasons, the a finding Court finds which no is not merit in Plaintiff s first issue. 11 12 II 13 THE ALJ DID NOT FAIL TO PROPERLY CONSIDER THE STATE AGENCY 14 FINDINGS AS TO PLAINTIFF S MENTAL RESIDUAL FUNCTIONAL CAPACITY 15 In her second issue, Plaintiff focuses on conclusions by State 16 Agency psychiatrist Dr. Rivera-Miya that Plaintiff is moderately 17 limited in her ability to maintain attention and concentration for 18 extended periods, and similarly limited in her ability to interact 19 appropriately with the general public. (AR 319-320.) 20 This issue does 21 Plaintiff 22 Carfagni, and Dr. Loomis in a Psychiatric Review Technique Form dated 23 November 4, 2004 that Plaintiff has no severe mental impairment. (AR 24 323.) 25 Plaintiff did not have severe depression because it did not cause more 26 than minimal limitations in her ability to perform basic mental work 27 activities. (AR 14.) 28 the prior decision, which was incorporated by reference, that he ignores not the merit substantial conclusions of both discussion. Dr. First, Rivera-Miya, Dr. Of equal importance is the fact that the ALJ noted that The ALJ also relied upon conclusions reached in 4 1 placed reliance on the findings of the consultative psychiatric 2 examiner ( CE ), Dr. Abejuela, who on September 24, 2004 completed a 3 complete psychiatric evaluation of Plaintiff. (AR 27, 296-302.) 4 the first decision, the ALJ specifically discounted the State Agency 5 psychiatrist s conclusion that Plaintiff was moderately limited in the 6 two areas identified above. (Id.) In 7 Plaintiff provides no reasons why the ALJ should have accepted 8 the conclusions of a non-examining State Agency psychiatrist as to 9 these moderate limitations as against that of an examining 10 psychiatrist. 11 evidence because, as noted, the same State Agency psychiatrist found 12 no severe mental impairment. 13 discharged 14 evidence. 15 16 It is unclear whether there was even a conflict in the his responsibility Even if there were, however, the ALJ to resolve any conflicts in the See Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). For the foregoing reasons, the Court finds no error as to Plaintiff s second issue. 17 18 III 19 THE ALJ PROPERLY REJECTED THE TREATING PSYCHIATRIST S OPINION 20 In Plaintiff s third issue, she asserts that the ALJ failed to 21 properly assess a Work Capacity Evaluation completed on March 25, 2005 22 by Plaintiff s treating psychiatrist. (AR 464-465.) 23 In his 2006 decision, which, as previously noted, was 24 incorporated in the 2009 decision, the ALJ fully discussed and 25 rejected 26 particular, that it was rejected due to its simplistic nature, the 27 inconsistency of the findings, and the psychiatrist s notation that 28 Plaintiff only had certain extreme limitations when in the presence the evaluations contained 5 in this form, finding, in 1 of pain, while the record did not reflect any period of 12 or more 2 months when Plaintiff had such serious pain. (AR 29.) 3 Plaintiff complains that the ALJ failed to explain why he 4 considered the psychiatrist s conclusions to be inconsistent. 5 would, however, seem to be obvious on the face of the form, in that 6 only one area (the ability to perform activities within a schedule, 7 maintain 8 tolerances) was assessed with extreme functional limitations, while in 9 every other area of mental functioning, Plaintiff s limitations were regular attendance and be punctual within This customary 10 assessed to be slight. 11 because of its simplistic nature is an implicit reference to the fact 12 that such check-off forms are disfavored, especially when they are 13 unsupported by objective findings. See Crane v. Shalala, 76 F.3d 251, 14 253 (9th Cir. 1996), citing Murray v. Heckler, 722 F.2d 499, 501 (9th 15 Cir. 1983). 16 17 For the foregoing Further, the ALJ s rejection of this form reasons, the Court finds no merit in Plaintiff s third issue. 18 19 IV 20 THE ALJ PROPERLY CONSIDERED PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 21 In her fourth issue, Plaintiff asserts that the ALJ failed to 22 correctly assess her residual functional capacity ( RFC ), because he 23 did not account for the limitations set forth by the State Agency 24 Physician, Dr. Rivera-Miya (see Issue No. 2), or the limitations 25 assessed by the treating psychiatrist in his Work Capacity Evaluation 26 (see Issue No. 3). 27 The Court has already addressed Plaintiff s concerns regarding 28 both of these assessments, in its discussion of Issues Nos. 2 and 3. 6 1 Consequently, Plaintiff s fourth issue must be rejected as without 2 merit, because it relies upon a finding of error as to Issue 2 or 3 Issue 3. 4 5 V 6 THE ALJ DID NOT ERR IN HIS HYPOTHETICAL QUESTION 7 TO THE VOCATIONAL EXPERT 8 At the hearing held on December 17, 2008 (AR 853-866), the ALJ 9 posed a hypothetical question to the vocational expert ( VE ) which 10 posited that the individual can stand and walk two hours out of an 11 eight-hour day; can sit six hours; can lift 20 pounds occasionally, 10 12 pounds frequently; can occasionally stoop and bend; can climb stairs 13 but 14 unprotected heights where any balancing is required, and should work 15 in an air conditioned environment. (AR 864.) 16 indicated that this individual could do two of the past jobs performed 17 by Plaintiff, that of fax administrator (customer service), and 18 general clerk. (AR 864-865.)1 19 should not climb ladders, ropes or scaffolds nor work at In response, the VE Plaintiff contends that the ALJ committed error in several 20 regards. 21 exertional 22 feeling and pushing assessed by her treating physician, Dr. Gothard, 23 in a September 23, 2008. (AR 823-825.) 24 First, by failing to include in the hypothetical the nonlimitations concerning reaching, handling, fingering, The ALJ rejected Dr. Gothard s limitations in his decision, 25 26 27 28 1 In the JS, the Commissioner erroneously calculates that the VE testified as to three jobs (fax administrator, customer service, and general clerk), while in fact, the VE s testimony identified fax administrator as the customer service representative position. (AR 865.) 7 1 concluding that, 2 There is nothing in Dr. Gothard s notes that suggest 3 the doctor was concerned about the [Plaintiff s] allegedly 4 debilitating 5 medication and no referral to mental health treatment or a 6 pain clinic. 7 assessments since they are inconsistent with the objective 8 findings and his own treatment records. 9 symptoms, no prescriptions for potent I must therefore discount Dr. Gothard s (AR 16.) 10 11 Plaintiff makes a non-frivolous challenge to the ALJ s rejection 12 of Dr. Gothard s conclusions, arguing that basing such a rejection on 13 an 14 records is conclusory and fails to provide the specific and legitimate 15 reasons, supported by substantial evidence, required by applicable 16 case law. (See JS at 19, citing Connett v. Barnhart, 340 F.3d 871, 874 17 (9th Cir. 2003).) asserted inconsistency with objective findings and treatment 18 19 While the ALJ s written decision is not a model of precision in 20 this regard, it does 21 assessment as inconsistent with objective findings and treatment 22 records, without identifying them. 23 additional 24 medication, or referral to mental health treatment, or a pain clinic. 25 The Court has noted that in these treatment records (see AR at 366- 26 369), Plaintiff did make substantial pain complaints; however, Dr. 27 Gothard s diagnosis only included diabetes, depression, and obesity, 28 with severe hypertension. (AR 368.) All in all, the Court cannot find factors, go such beyond as a merely lack 8 rejecting Dr. Gothard s That is, the ALJ does note of prescriptions for pain 1 insufficient the ALJ s reasons for rejecting Dr. Gothard s found 2 limitations as to certain exertional functions. 3 With regard to the absence of certain limitations related to 4 Plaintiff s mental functioning, the Court has already addressed these 5 issues, and found, for example, that the treating psychiatrist s Work 6 Capacity Evaluation of March 25, 2005 was not entitled to be accepted 7 as credible, for the reasons already discussed. 8 Finally, concerning the jobs identified by the VE, these were 9 identified as being within Plaintiff s current functional capacity 10 based upon how she actually performed these jobs, not as they are 11 generally performed. This distinction does not create a variance with 12 the Dictionary of Occupational Titles ( DOT ). 13 assert (other than her challenge to the omissions in the hypothetical 14 question based upon certain limitations which the ALJ rejected), that 15 she 16 consistent with the RFC assessed by the ALJ. 17 18 19 20 21 did not actually perform the jobs Plaintiff does not identified in a manner For the foregoing reasons, the Court finds no error with regard to Issue No. 5. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 22 23 DATED: February 24, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 9

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