Terri Runkle v. Michael J. Astrue, No. 5:2009cv01983 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND AND by Magistrate Judge Patrick J. Walsh. For these reasons, the Court concludes that the Agency's findings are supported by substantial evidence and are free from material legal error. As such, the decision is affirmed. IT IS SO ORDERED. **PLEASE REVIEW DOCUMENT FOR FULL AND COMPLETE DETAILS** (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 TERRI RUNKLE, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 09-1983 PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal of a decision by 19 Defendant Social Security Administration ( the Agency ), granting her 20 application for Disability Insurance benefits ( DIB ) as of October 1, 21 2008. 22 erred when he: 1) determined that Plaintiff could perform her past 23 relevant work prior to October 1, 2008; 2) rejected the opinion of her 24 treating physician; and 3) determined Plaintiff s residual functional 25 capacity for the period prior to October 1, 2008. 26 explained below, the Court affirms the Agency s decision. 27 28 Plaintiff claims that the Administrative Law Judge ( ALJ ) For the reasons 1 II. BACKGROUND 2 Plaintiff applied for DIB in 2004, alleging that she had been 3 unable to work since November 2003, due to chronic fatigue syndrome 4 and high blood pressure. 5 Following a hearing, the ALJ issued a decision denying benefits on 6 July 27, 2006. 7 Plaintiff s request for review (AR 4-6), Plaintiff appealed to this 8 court. 9 proceedings. (Administrative Record ( AR ) 51-54, 70-71.) (AR 14-20.) After the Appeals Council denied The Court reversed and remanded the ALJ s decision for further Following another hearing, the ALJ issued a decision 10 finding Plaintiff disabled as of October 1, 2008. 11 Plaintiff then commenced this action. 12 13 III. A. (AR 347-55.) ANALYSIS The ALJ Properly Determined Plaintiff Could Perform Her Past 14 Relevant Work Prior to October 1, 2008 15 In her first claim of error, Plaintiff argues that the ALJ 16 failed to make specific findings of fact in determining that she could 17 perform her past relevant work prior to October 1, 2008. 18 3-5, 7-8.) 19 of Social Security Ruling ( SSR ) 82-62. 20 the Court disagrees. 21 (Joint Stip. In Plaintiff s view, this ran counter to the requirements For the following reasons, The issue at step four of the sequential evaluation process is 22 whether the claimant can perform her past relevant work. This step 23 involves two considerations. 24 doing, both physically and mentally? 25 mental abilities are required to perform the past relevant work, 26 either as the claimant performed it or as it is generally performed in 27 the workplace? 28 2001); 20 C.F.R. ยง 404.1520(f). First, what is the claimant capable of And, second, what physical and See Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2 1 The determination of what a claimant can do physically and 2 mentally--the claimant s residual functional capacity -is based on the 3 medical and other evidence in the record. 4 The ALJ can rely on several sources to determine what is required to 5 perform the claimant s prior work, including the claimant s own 6 explanation as to how she performed it, a vocational expert s 7 testimony as to how the work was performed by the claimant or how it 8 is generally performed in the economy, and the Dictionary of 9 Occupational Titles ( DOT ), which contains a description of the 10 physical and mental demands of jobs. Pinto, 249 F.3d at 844-45. Id. at 845-46. 11 In this case, the ALJ first determined that, prior to October 1, 12 2008, Plaintiff had the residual functional capacity to perform light 13 work with certain postural, environmental, and other limitations. 14 349.) 15 2006 administrative hearing) that a hypothetical person of Plaintiff s 16 age, education, work experience, and residual functional capacity 17 could perform Plaintiff s prior occupation of unit secretary at a 18 hospital prior to October 1, 2008. 19 expert also provided an exhibit specifying that DOT No. 245.362-014 20 described Plaintiff s job as a unit secretary. 21 The vocational expert at the 2009 administrative hearing agreed that 22 this DOT section (245.362-014) applied to Plaintiff s past work. 23 511, 651-53.) 24 (AR The ALJ then relied on vocational expert testimony (from the (AR 323-24.) The vocational (AR 116; see AR 323.) Plaintiff contends that this was not enough. (AR In her view, the 25 ALJ should have analyzed each physical and mental skill necessary to 26 perform the job of unit secretary and then compared those skills with 27 Plaintiff s mental and physical abilities as set forth in the ALJ s 28 residual functional capacity findings. 3 The Court rejects this 1 argument. The vocational expert was not required to testify about 2 each and every physical and mental skill needed to perform the job and 3 match it with each of Plaintiff s physical and mental capabilities. 4 Pinto, 249 F.3d at 845 ( We have never required explicit findings at 5 step four regarding a claimant s past relevant work both as generally 6 performed and as actually performed. 7 to find that a claimant can or cannot continue his or her past 8 relevant work as defined by the regulations above. ). 9 hypothetical question to the vocational expert at Plaintiff s first The vocational expert merely has In the 10 hearing, the ALJ set out Plaintiff s limitations, which the vocational 11 expert presumably took into account along with the demands of the job 12 of unit secretary in opining that Plaintiff could perform her past 13 work as she actually performed it or as it is generally performed in 14 the economy. 15 B. 16 Plaintiff contends that the ALJ erred when he rejected the (AR 323-24.) For this reason, this claim is rejected. The ALJ Properly Rejected The Treating Physician s Opinion 17 opinion of Plaintiff s treating physician, Dr. Omar Bashir. 18 Stip. 8-11, 16.) 19 (Joint There is no merit to this contention. 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); see also Morgan v. Comm r, 169 F.3d 595, 600 (9th Cir. 22 1999) (explaining that a treating physician s opinion is given 23 deference because he is employed to cure and has a greater 24 opportunity to know and observe the patient as an individual 25 (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987))). 26 this reason, a treating physician s opinion regarding a claimant s 27 medical condition that is well-supported and not inconsistent with 28 other substantial evidence in the record will be given controlling 4 For 1 weight. 2 Cir. 1988). 3 physician that is contradicted by another physician for specific and 4 legitimate reasons supported by substantial evidence in the record. 5 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (quoting Murray v. 6 Heckler, 722 F.2d 499, 502 (9th Cir. 1983)). 7 Orn, 495 F.3d at 631; Embrey v. Bowen, 849 F.2d 418, 421 (9th An ALJ may, however, reject the opinion of a treating In August 2004, Dr. Bashir began treating Plaintiff. (AR 155.) 8 In a Chronic Fatigue Syndrome Residual Functional Capacity 9 Questionnaire he filled out on May 25, 2006, Dr. Bashir opined, among 10 other things, that Plaintiff s fatigue would frequently interfere with 11 her attention and concentration. 12 Plaintiff could not tolerate any work stress; could sit or stand for 13 more than ten minutes at a time; could occasionally lift weights of 14 ten pounds or less and never lift any heavier weights; could perform 15 postural activities only rarely; and had significant limitations in 16 performing repetitive reaching, handling, and fingering. 17 In Dr. Bashir s view, Plaintiff had been unable to work in any 18 capacity since 2003, due to her chronic fatigue. 19 Bashir also completed a Work Capacity Evaluation (Mental) form on 20 November 3, 2008, in which he opined that Plaintiff had multiple 21 mental/emotional limitations. 22 (AR 263.) He also believed that (AR 262-65.) (AR 262-63.) Dr. (AR 515-16.) But Dr. Bashir s opinion was contradicted by other medical 23 evidence. For example, with regard to Plaintiff s physical capacity, 24 an examining doctor determined that Plaintiff was not nearly as 25 limited as Dr. Bashir found. 26 testified that Plaintiff could perform medium work, could sit for 27 eight hours per day and stand or walk for six hours per day, with no 28 other restrictions. (AR 125-29.) (AR 289-90.) 5 Further, a medical expert As to Plaintiff s mental/ 1 emotional capacity, even though a therapist diagnosed her with 2 depression, there does not appear to be any evidence supporting the 3 significant and pervasive limitations alleged by Dr. Bashir. 4 525-31.) 5 evidence, it was incumbent on the ALJ to resolve the conflict. 6 Lester, 81 F.3d at 830. 7 (See AR Thus, where, as here, there was a conflict in the medical See The ALJ did so by discounting Dr. Bashir s opinion because it: 8 1) was internally inconsistent, 2) was contradicted by Plaintiff s 9 statements that she had no problem handling stress, 3) seemed to be 10 based on an uncritical acceptance of Plaintiff s subjective 11 complaints, 4) did not account for the fact that Plaintiff worked for 12 a significant number of years despite having the condition, and 13 5) was not supported by the doctor s treatment notes. 14 (citing AR 105).) 15 rejecting a treating doctor s report. 16 F.3d 1035, 1041 (9th Cir. 2008) ( An ALJ may reject a treating 17 physician s opinion if it is based to a large extent on a claimant s 18 self-reports that have been properly discounted as incredible. 19 (internal quotation marks omitted)); Connett v. Barnhart, 340 F.3d 20 871, 875 (9th Cir. 2003) (holding that an ALJ may reject the opinion 21 of a treating physician whose own treatment notes provide no basis 22 for the functional restrictions he opined should be imposed on [the 23 claimant] ); Matney v. Sullivan, 981 F.2d 1016, 1020 (9th Cir. 1992) 24 (holding that inconsistencies and ambiguities noted by the ALJ 25 represent specific and legitimate reasons for rejecting a physician s 26 opinion); Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir. 1989) 27 (upholding ALJ s rejection of treating physician s opinion that (AR 19, 351 These are specific and legitimate reasons for 28 6 See Tommasetti v. Astrue, 533 1 contradicted the claimant s own testimony). And these reasons are 2 supported by substantial evidence in the record.1 Plaintiff also challenges the ALJ s rejection of Dr. Bashir s 3 4 opinion of her mental limitations. (Joint Stip. 10-11.) The ALJ 5 rejected this opinion because: 6 specialized training or expertise in the mental health field, and 7 2) his opinions on mental health issues are even more dependent upon 8 [Plaintiff s] self-reports, which the ALJ did not find credible. 9 353.) 1) Dr. Bashir does not appear to have (AR These, too, are legitimate reasons for discounting a doctor s 10 opinion, see Kennelly v. Astrue, 313 Fed. Appx. 977, 978 (9th Cir. 11 2009) (holding that an ALJ provided a specific and legitimate 12 reason for crediting the nonexamining psychiatrists over an examining 13 internal medicine practitioner by noting that the practitioner was 14 not a mental health specialist ); Tommasetti, 533 F.3d at 1041 ( An 15 ALJ may reject a treating physician s opinion if it is based to a 16 large extent on a claimant s self-reports that have been properly 17 discounted as incredible. (internal quotation marks omitted)); and 18 are supported by the evidence. 19 20 Further, even assuming that they were not legitimate reasons to question Dr. Bashir s findings, any error would be harmless because it 21 22 23 24 25 26 27 28 1 The ALJ also rejected Dr. Bashir s opinion because it was not supported by objective medical evidence. Generally speaking, this is not a legitimate reason for rejecting a doctor s opinion regarding chronic fatigue syndrome. Putz v. Astrue, 371 Fed. Appx. 801, 802 (9th Cir. 2010) ( [A claimant] need not present objective medical evidence to demonstrate the severity of her fatigue. (citing Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996)). But, because the ALJ s other five reasons for discounting Dr. Bashir s opinion are valid, any error here was harmless. See Stout v. Comm r, 454 F.3d 1050, 1054 (9th Cir. 2006) (noting ALJ s error is harmless if it was inconsequential to his ultimate disability determination). 7 1 did not affect the ultimate disability decision in this case. Stout, 2 454 F.3d at 1054 (noting ALJ s error is harmless if it was 3 inconsequential to the ultimate disability determination). 4 Bashir s opinion that Plaintiff s mental impairments precluded her 5 from working was from November 2008. 6 for mental health treatment was in January 2009. 7 her the benefit of any doubt, the ALJ determined that Plaintiff s 8 mental impairments precluded her from working beginning in October 9 2008. Dr. The first time Plaintiff went (AR 522-31.) Giving Nothing in Dr. Bashir s November 2008 report establishes that 10 Plaintiff s mental impairments precluded her from working prior to 11 November 2008. 12 would not have changed his ultimate determination that Plaintiff was 13 disabled as of October 2008. 14 in rejecting the opinion would have been harmless. 15 1054. 16 C. Thus, even if the ALJ had accepted this opinion, it Therefore, any error on the ALJ s part Stout, 454 F.3d at The ALJ Properly Assessed Plaintiff s Residual Functional 17 Capacity for the Period Prior to October 1, 2008 18 Finally, Plaintiff argues that the ALJ erred by omitting a 19 limitation for work requiring safety operations or the responsibility 20 for the safety of others or work requiring hypervigilance from the 21 residual functional capacity for the period before October 1, 2008. 22 (Joint Stip. 14-16.) 23 in his Chronic Fatigue Syndrome Questionnaire from May 2006 and his 24 Work Capacity Evaluation (Mental) form from November 2008, both of 25 which are discussed above, support this limitation. 26 15.) 27 Bashir s opinions. 28 limitations in the residual functional capacity analysis. Plaintiff points out that Dr. Bashir s opinions (Joint Stip. 14- As discussed above, however, the ALJ properly rejected Dr. Thus, he was not required to consider Dr. Bashir s 8 1 Further, there is no evidence that Dr. Bashir s November 2008 opinion 2 applies retroactively to the period before October 1, 2008. 3 Accordingly, the ALJ did not err by failing to include a limitation 4 for safety and hypervigilance from Plaintiff s pre-October 2008 5 residual functional capacity assessment. 6 IV. CONCLUSION 7 For these reasons, the Court concludes that the Agency s findings 8 are supported by substantial evidence and are free from material legal 9 error. As such, the decision is affirmed. 10 IT IS SO ORDERED. 11 DATED: September 27, 2011. 12 13 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\RUNKLE, T 1983\Memo_Opinion.wpd 9

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