Tammy Lee Phillippi v. Michael J Astrue, No. 5:2009cv01742 - Document 26 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Court concludes that the ALJ did not err when he concluded that Plaintiff was not entitled to DIB. The Agency's decision, therefore, is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (ca)
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Tammy Lee Phillippi v. Michael J Astrue Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TAMMY LEE PHILLIPPI, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 09-1742-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 19 INTRODUCTION Before the Court is an appeal by Plaintiff Tammy Lee Phillippi of 20 a decision by the Social Security Administration (hereinafter the 21 “Agency”), denying her application for Disability Insurance benefits 22 (“DIB”). 23 erred when he concluded that she did not meet the Listing requirements 24 for her depressive disorder, rejected the opinion of various doctors, 25 and found that she was not credible. 26 Agency’s decision is affirmed and the case is dismissed with 27 prejudice. Plaintiff claims that the Administrative Law Judge (“ALJ”) For the following reasons the 28 Dockets.Justia.com 1 II. 2 SUMMARY OF FACTS AND PROCEEDINGS 3 In July 2006, Plaintiff applied for DIB, alleging that she had 4 been disabled since October 2005, due to chronic fatigue syndrome and 5 depression. 6 reconsideration. 7 administrative hearing before an ALJ. 8 appeared with counsel at the hearing and testified. 9 Record (“AR”) at 27-55.) The Agency denied the application initially and on Plaintiff then requested and was granted an On September 19, 2008, she (Administrative On January 20, 2009, the ALJ issued a 10 decision, denying her claim for benefits. 11 followed. 12 This appeal III. 13 (AR 14-21.) ANALYSIS 14 A. The ALJ’s Findings Regarding the Medical Evidence 15 In her first claim of error, Plaintiff contends that the ALJ 16 erred when he concluded that Plaintiff’s depression did not meet the 17 requirements of Listing 12.04, Affective Disorders. 18 Summary Judgment Motion (hereinafter “Motion”) at 6-11.) 19 Plaintiff’s view, the ALJ improperly ignored the opinions of the 20 doctors to do so. 21 concludes that the ALJ did not err when he found that Plaintiff did 22 not meet the requirements of Listing 12.04. 23 24 (Plaintiff’s In For the reasons explained below, the Court Listing 12.04, dealing with affective disorders, reads as follows: 25 Characterized by a disturbance of mood, accompanied by a full or 26 partial manic or depressive syndrome. 27 emotion that colors the whole psychic life; it generally involves 28 either depression or elation. 2 Mood refers to a prolonged 1 The required level of severity for these disorders is met when 2 the requirements in both A and B are satisfied, or when the 3 requirements in C are satisfied. 4 A. Medically documented persistence, either continuous or 5 intermittent, of one of the following: 6 1. Depressive syndrome characterized by at least four 7 of the following: 8 a. 9 Anhedonia or pervasive loss of interest in almost all activities; or 10 b. 11 Appetite disturbance with change in weight; or 12 c. Sleep disturbance; or 13 d. Psychomotor agitation or retardation; or 14 e. Decreased energy; or 15 f. Feelings of guilt or worthlessness; or 16 g. Difficulty concentrating or thinking; or 17 h. Thoughts of suicide; or 18 i. Hallucinations, delusions or paranoid 19 20 thinking; or 2. Manic syndrome characterized by at least three of 21 the following: 22 a. Hyperactivity; or 23 b. Pressure of speech; or 24 c. Flight of ideas; or 25 d. Inflated self-esteem; or 26 e. Decreased need for sleep; or 27 f. Easy distractibility; or 28 3 1 g. Involvement in activities that have a high 2 probability of painful consequences which are 3 not recognized; or 4 h. 5 Hallucinations, delusions or paranoid thinking; 6 Or 7 3. Bipolar syndrome with a history of episodic 8 periods manifested by the full symptomatic picture 9 of both manic and depressive syndromes (and 10 currently characterized by either or both 11 syndromes); 12 And 13 B. 14 Resulting in at least two of the following: 1. 15 or 16 2. 17 Marked difficulties in maintaining social functioning; or 18 3. 19 Marked difficulties in maintaining concentration, persistence, or pace; or 20 4. 21 Repeated episodes of decompensation, each of extended duration; 22 23 Marked restriction of activities of daily living; Or C. Medically documented history of a chronic affective disorder 24 of at least 2 years' duration that has caused more than a 25 minimal limitation of ability to do basic work activities, 26 with symptoms or signs currently attenuated by medication or 27 psychosocial support, and one of the following: 28 4 1 1. 2 Repeated episodes of decompensation, each of extended duration; or 3 2. A residual disease process that has resulted in 4 such marginal adjustment that even a minimal 5 increase in mental demands or change in the 6 environment would be predicted to cause the 7 individual to decompensate; or 8 3. 9 Current history of 1 or more years' inability to function outside a highly supportive living 10 arrangement, with an indication of continued need 11 for such an arrangement. 12 13 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. In her brief, Plaintiff goes through various criteria for § 12.04 14 and explains why she believes that she meets them.1 15 As explained below, the Court does not find Plaintiff’s arguments 16 persuasive.2 17 18 (Motion at 6-12.) Plaintiff’s attempt to establish that she fits within the requirements of Listing 12.04 is wanting. She points out, for 19 20 21 22 23 24 25 26 27 28 1 Plaintiff was represented by counsel when she filed this action over a year ago. Thereafter, Plaintiff’s counsel moved to withdraw from the case, signaling to the Court at the hearing, it seems, that he was unable to find any issues on which he could argue in good faith that the ALJ had erred. Thereafter, Plaintiff filed a brief on her own behalf. 2 The Agency did not address Plaintiff’s claim that she meets the Listing requirements. It has, instead, addressed the ALJ’s decision to discount some of the doctors’ findings which would have supported Plaintiff’s argument that she met the Listing. As a result, the Court is compelled to address Plaintiff’s arguments without the benefit of the Agency’s position. In the future, the Court would be grateful to the Agency if it would address the plaintiffs’ arguments in its briefs. 5 1 example, that she suffers from anhedonia and a lack of interest in 2 activities (§12.04(A)(1)(a)) and cites as proof statements that she 3 and her husband made during the course of these proceedings. 4 Stip. at 7.) 5 Court will address infra, and, thus, her subjective claims are not 6 enough to establish that she meets the requirements of the Listing. 7 As to her husband’s input--a letter he submitted after the ALJ denied 8 her claim (AR 22)--the Court cannot fault the ALJ for not having 9 considered it. 10 But the ALJ discounted her credibility, an issue the Plaintiff complains that she suffers from sleep apnea and points 11 out that this is another factor to be considered. 12 §12.04(A)(1)(c). 13 that her sleep apnea is controlled with a CPAP machine. 14 (Joint See But, as the ALJ pointed out, Plaintiff testified (AR 19.) Plaintiff’s real issue with the ALJ’s decision is that he failed 15 to accept the opinions of the doctors who found her most limited, in 16 particular, consulting doctor Inderpal Randhawa. 17 Plaintiff notes that Dr. Randhawa concluded that Plaintiff was “not 18 able to perform any sort of exertional or non-exertional activity in 19 any meaningful status.” 20 she argues, he would have concluded that she was disabled. 21 Court does not find error, here. 22 (AR 169.) (Motion at 10-11.) Had the ALJ accepted this finding, Again, the The ALJ discounted Dr. Randhawa’s opinion because it amounted to 23 an opinion of disability, which he concluded was not binding on him. 24 (AR 19.) 25 primarily on Plaintiff’s statements to him, which the ALJ did not find 26 believable. 27 opinion was not supported by the results of his examination of 28 Plaintiff and was inconsistent with Plaintiff’s claimed daily He also noted that Dr. Randhawa’s opinion was based (AR 19.) He pointed out further that Dr. Randhawa’s 6 1 activities. (AR 19.) These are all legitimate reasons under the law 2 to discount a doctor’s opinion. 3 1148 (9th Cir. 2001) (noting doctor’s opinion that claimant is 4 disabled is not binding on ALJ); Bray v. Comm’r of Soc. Sec., 554 F.3d 5 1219, 1228 (9th Cir. 2009) (upholding ALJ’s rejection of doctor’s 6 opinion based on claimant’s statements where ALJ concluded that 7 claimant was not credible); Bayliss v. Barnhart, 427 F.3d 1211, 1216 8 (9th Cir. 2005) (holding discrepancy between doctor’s treatment notes 9 and doctor’s opinion is clear and convincing reason to reject doctor’s Tonapetyan v. Halter, 242 F.3d 1144, 10 opinion). And, further, they are supported by the record. (AR 165- 11 69.) 12 perform any activities, he concluded in the same sentence that 13 Plaintiff had no functional limitations. 14 she could not perform any activities was not based on anything he 15 uncovered in his examination of Plaintiff. 16 Plaintiff’s report to him that she spent three days out of each week 17 in bed. 18 Randhawa’s opinion that Plaintiff could not perform any activities 19 because it was based on her self-serving statements which the ALJ 20 rejected and it was not supported by the doctor’s own findings. Though Dr. Randhawa did conclude that Plaintiff could not (AR 165-66.) (AR 169.) His opinion that Rather, it was based on As such, the ALJ properly rejected Dr. 21 B. The Credibility Findings 22 Plaintiff contends that the ALJ erred when he found that she was 23 not credible. 24 jurist to completely discount Plaintiff’s testimony . . . .” 25 at 13.) 26 She argues that, “[i]t is not plausible for a neutral (Motion Again, the Court disagrees. Credibility determinations are the province of the ALJ. See Fair 27 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). 28 reject a claimant’s credibility, he need only provide specific, clear, 7 In order for an ALJ to 1 and convincing reasons for doing so. 2 1273, 1284 (9th Cir. 1996). 3 take into account, among other things, ordinary credibility evaluation 4 techniques. 5 6 7 1. 2. 3. 4. 5. 6. 7. Plaintiff’s medications proved effective in controlling her symptoms and had not caused any side effects. 8. Plaintiff had not suffered any weight loss due to her depression and anhedonia. 9. 24 25 Plaintiff did not exhibit muscle atrophy or loss of strength, despite her claims of disabling pain and weakness. 22 23 Plaintiff had not needed any special accommodations to relieve her pain and other symptoms. 20 21 Plaintiff had not required any hospitalization or emergency care for periods when her condition was exacerbated. 18 19 Plaintiff’s course of treatment had been fairly conservative considering the extent of her claimed ailments. 16 17 An MRI brain scan was normal, despite Plaintiff’s claims of chronic headaches. 14 15 The objective medical evidence did not support her claimed limitations. 12 13 Id. testimony, including: 10 11 In making this determination, the ALJ may The ALJ cited numerous reasons for rejecting Plaintiff’s 8 9 See Smolen v. Chater, 80 F.3d Plaintiff had not experienced any sleep loss and her apnea had been controlled with a CPAP machine. 10. Plaintiff had not experienced any cognitive decline despite 26 her depression and, in fact, had tested above average in 27 mental acuity tests. 28 8 1 11. 2 3 claims of debilitation. 12. 4 5 6 Plaintiff’s daily activities were inconsistent with her None of Plaintiff’s physicians had opined that she was disabled. (AR 18-19.) For the most part, these are legitimate reasons for discounting a 7 claimant’s claim of debilitating symptoms. See, e.g., Parra v. 8 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of 9 ‘conservative treatment’ is sufficient to discount a claimant's 10 testimony....”); Smolen, 80 F.3d at 1284 (holding ALJ can consider 11 effectiveness of medication in controlling symptoms in evaluating 12 claimant’s pain testimony); Maounis v. Heckler, 738 F.2d 1032, 1034 13 (9th Cir. 1984) (“The ALJ can disregard a claimant's self-serving 14 statements if they are unsupported by objective findings.”). 15 the most part, they are supported by the record. 16 side effects from medication), 49 (sleeps through the night), 169 (no 17 physical limitations found by examining doctor), 178 (only slightly 18 limited in mental function), 207-378 (no finding by any of her doctors 19 that she is disabled).) 20 was not credible is affirmed.3 And, for (AR 14-15, 46 (no As such, the ALJ’s decision that Plaintiff 21 C. 22 Finally, Plaintiff takes exception to the vocational expert’s 23 The Vocational Expert’s Finding finding that Plaintiff could work even though she might miss work 24 3 25 26 27 28 The Court is unsure as to the basis for the ALJ’s finding that Plaintiff’s claim that she suffers from chronic headaches was undermined by the fact that an MRI performed on her brain did not disclose any abnormalities. The ALJ did not explain and the Court is not aware of any evidence that suggests that an absence of abnormalities in an MRI proves that a patient is not suffering from headaches. 9 1 sometimes and, on the days she’s there, might have to lay down for an 2 hour each day during her lunch break. 3 “It is not plausible for a neutral jurist to . . . believe there are 4 jobs in this nation, during these times, that will tolerate missing 2 5 days per month, and provide for facilities for one to lay down to rest 6 during lunch.” 7 (Motion at 13.) (Motion at 3.) She contends, There is no merit to this claim. The vocational expert testified that, under the Dictionary of 8 Occupational Titles (“DOT”), jobs existed in the national economy 9 where Plaintiff could work even if she had to lay down during lunch 10 and even if she had to miss work up to two times a month. (AR 52-54.) 11 The ALJ is entitled to rely on the vocational expert’s testimony to 12 that effect. 13 Cir. 1995) (holding that vocational expert testimony “may properly be 14 used to show that the particular jobs . . . may be ones that a 15 particular claimant can perform.”) 16 erred is really a visceral one; she cannot believe that a vocational 17 expert could reach this conclusion and, further, that in an economy as 18 fragile as the one we are now facing an employer would hire her with 19 her special needs. 20 test is not whether Plaintiff would be the best candidate for a job, 21 but, rather, whether she meets the qualifications for the job as set 22 forth in the DOT. 23 that effect is controlling. 24 denied. See, e.g., Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Plaintiff’s argument that the ALJ Though the Court empathizes with Plaintiff, the She does. And the vocational expert’s testimony to For this reason, Plaintiff’s claim is 25 IV. 26 CONCLUSION 27 28 For the reasons set forth above, the Court concludes that the ALJ did not err when he concluded that Plaintiff was not entitled to DIB. 10 1 The Agency’s decision, therefore, is affirmed and the case is 2 dismissed with prejudice. 3 IT IS SO ORDERED. 4 DATED: November 19, 2010. 5 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\PHILLIPPI\Memorandum Opinion and Order.wpd 11
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