Debra Munoz v. Michael J Astrue, No. 5:2009cv02226 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Plaintiff Debra Munoz filed a Complaint on December 11, 2009. Pursuant to 28 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge Rosenberg on Janua ry 4 and 19, 2010. (Dkt. Nos. 8, 9.) On August 19, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 DEBRA MUNOZ, Plaintiff, 12 v. 13 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 09-2226 AGR MEMORANDUM OPINION AND ORDER Plaintiff Debra Munoz filed a Complaint on December 11, 2009. Pursuant to 28 17 18 U.S.C. § 636(c), the parties filed Consents to proceed before Magistrate Judge 19 Rosenberg on January 4 and 19, 2010. (Dkt. Nos. 8, 9.) On August 19, 2010, the 20 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The Court 21 has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 22 23 Commissioner. 24 /// 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND On May 14, 2007, Munoz filed applications for disability insurance benefits and 3 4 supplemental security income. Administrative Record ( AR ) 9. She alleged a disability 5 onset date of February 14, 1999. Id. The applications were denied initially and upon 6 reconsideration. Id. Munoz requested a hearing before an Administrative Law Judge 7 ( ALJ ). AR 68. On June 16, 2009, an ALJ conducted a hearing at which Munoz and a 8 vocational expert testified. AR 20-49. On July 30, 2009, the ALJ issued a decision 9 denying benefits. AR 6-19. On October 8, 2009, the Appeals Council denied the 10 request for review. AR 1-3. This action followed. 11 II. 12 STANDARD OF REVIEW Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 13 14 to deny benefits. The decision will be disturbed only if it is not supported by substantial 15 evidence, or if it is based upon the application of improper legal standards. Moncada v. 16 Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th 17 Cir. 1992). In this context, substantial evidence means more than a mere scintilla but less 18 19 than a preponderance it is such relevant evidence that a reasonable mind might 20 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 21 determining whether substantial evidence exists to support the Commissioner s 22 decision, the Court examines the administrative record as a whole, considering adverse 23 as well as supporting evidence. Drouin, 966 F.2d at 1257. Where the evidence is 24 susceptible to more than one rational interpretation, the Court must defer to the decision 25 of the Commissioner. Moncada, 60 F.3d at 523. 26 /// 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled and is eligible for benefits, "only if his physical or 5 mental impairment or impairments are of such severity that he is not only unable to do 6 his previous work but cannot, considering his age, education, and work experience, 7 engage in any other kind of substantial gainful work which exists in the national 8 economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 9 (2003). 10 B. The ALJ s Findings 11 The ALJ found that Munoz meets the insured status requirements through 12 December 31, 2003. AR 11. Munoz has the following medically determinable severe 13 impairments: fibromyalgia; asthma; and a mood disorder. Id. She has the residual 14 functional capacity ( RFC ) to perform less than a full range of light work. AR 13. 15 Specifically, [Munoz] can occasionally lift and/or carry 20 pounds and frequently 10 16 pounds; she can stand and/or walk six hours out of an eight-hour work day and sit for six 17 hours; she can occasionally stoop, bend, balance, crawl, kneel and crouch; she is limited 18 to occasional above shoulder reaching bilaterally; she should avoid concentrated 19 exposure to pulmonary irritants; and she is limited to non-public simple, repetitive tasks. 20 Id. 21 The ALJ found that Munoz is not able to perform any past relevant work, but there 22 are jobs that exist in significant numbers in the national economy that she can perform, 23 such as bench assembler, inspector, hand packager, and small products assembler II. 24 AR 17-18. 25 C. Development of the Record 26 Munoz contends that the ALJ rejected the opinion of her treating psychiatrist, Dr. 27 Dresbach, based on the lack of treatment records. Munoz contends that the ALJ erred 28 by not obtaining all of Dr. Dresbach s treatment records. 3 It is the claimant s duty to prove she is disabled. Mayes v. Massanari, 276 F.3d 1 2 453, 459 (9th Cir. 2001); see 42 U.S.C. § 423(d)(5)(A) (claimant must furnish medical 3 and other evidence of his disability); 20 C.F.R. § 404.1512(c) ( You must provide 4 medical evidence showing that you have impairment(s) and how severe it is during the 5 time you say you are disabled. ). The ALJ . . . has an independent duty to fully and fairly develop the record and to 6 7 assure that the claimant s interests are considered. Tonapetyan v. Halter, 242 F.3d 8 1144, 1150 (9th Cir. 2001) (citations and quotation marks omitted). The duty is 9 heightened when the claimant is unrepresented or is mentally ill and thus unable to 10 protect her own interests. Id. An ALJ s duty to develop the record further is triggered 11 only when there is ambiguous evidence or when the record is inadequate to allow for 12 proper evaluation of the evidence. Mayes, 276 F.3d at 459-60. This principle does not, 13 however, allow a claimant to shift her own burden of proving disability to the ALJ. Id. at 14 459. The California Disability Determination Services requested records from Dr. 15 16 Dresbach. AR 167, 176, 230-31. Dr. Dresbach produced a Mental Disorder 17 Questionnaire Form dated January 4, 2008, and treatment notes for January 3, 2008 18 and July 17, 2007. AR 232-38. At the hearing on June 16, 2009, Munoz s attorney 19 submitted a one-page letter from Dr. Dresbach, dated April 7, 2008. AR 22, 246. 20 Munoz s attorney did not indicate Dr. Dresbach had any additional documents and did 1 21 not request a continuance so additional documents could be obtained. There is no indication Dr. Dresbach withheld treatment records in response to the 22 23 records request. Munoz s counsel obtained a subsequent letter from Dr. Dresbach, and 24 there is no basis to infer Dr. Dresbach again failed to provide treatment records if they 25 existed. Munoz now assumes there must be additional treatment records because Dr. 26 Dresbach states Munoz is monthly med management. AR 246. This is an insufficient 27 1 28 At the end of the hearing, the ALJ asked whether there was anything else counsel wished to add. Counsel responded in the negative. AR 48. 4 1 basis for an inference that additional treatment records exist, particularly records that 2 would aid in the analysis. 3 The ALJ did not find the record ambiguous or inadequate to determine disability. 4 See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (no duty to recontact 5 physician whose report was not ambiguous). Nor did any physician render an opinion 6 that the record was ambiguous or inadequate. See Tonapetyan, 242 F.3d at 1150 (duty 7 to develop record existed when ALJ relied on physician who expressed that more 8 medical evidence was needed to state a diagnostic opinion). Munoz argues that 9 examining physician Dr. Abejuela concluded that Munoz was capable of occupational 10 and social functioning based on a mental status examination and clinical history [i]n the 11 absence of psychiatric records. AR 196. However, at the time of Dr. Abejuela s 12 examination, Munoz had seen Dr. Dresbach only once on July 17, 2007. AR 196, 236. 13 Dr. Abejuela did not opine that additional medical evidence was necessary for his 14 opinion. Moreover, state agency physician Dr. Skopec concluded Dr. Dresbach s 15 January 4, 2008 report did not preclude Munoz from non-public simple, repetitive tasks. 16 AR 240. The ALJ did not err. 17 D. Treating Physician 18 Munoz contends the ALJ erred by rejecting Dr. Dresbach s January and April 2008 19 opinions that Munoz was unlikely to be able to work. The ALJ stated that the 20 psychiatric limitations of non public, simple, repetitive tasks are appropriate and 21 generously consider the claimant s complaints of depression and her past use of alcohol 22 abuse. AR 17. 23 The opinion of a treating physician is given more weight than the opinion of non- 24 treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When, as here, a 25 treating physician s opinion is contradicted by another doctor, the ALJ may not reject 26 this opinion without providing specific and legitimate reasons supported by substantial 27 evidence in the record. This can be done by setting out a detailed and thorough 28 summary of the facts and conflicting clinical evidence, stating his interpretation thereof, 5 1 and making findings. Id. at 632 (citations and quotations omitted). When the ALJ 2 declines to give a treating physician's opinion controlling weight, the ALJ considers 3 several factors, including the following: (1) length of the treatment relationship and 2 3 4 frequency of examination; (2) nature and extent of the treatment relationship; (3) the 5 amount of relevant evidence supporting the opinion and the quality of the explanation 6 provided; (4) consistency with record as a whole; and (5) the specialty of the physician 7 providing the opinion. See id. at 631; 20 C.F.R. § 404.1527(d)(1)-(6). A treating physician s opinion as to the ultimate determination of disability is not 8 9 binding on an ALJ. McLeod v. Astrue, 634 F.3d 516, 520 (9th Cir. 2011). The existence 10 of disability is an administrative determination of how an impairment, in relation to 11 education, age, technological, economic, and social factors, affects ability to engage in 12 gainful activity and is reserved to the Commissioner. Id. The ALJ rejected Dr. Dresbach s opinion as to disability because it is mostly a 13 14 restatement of the claimant s subjective complaints, and the opinion is inconsistent with 15 Dr. Dresbach s treatment records, Global Assessment of Functioning ( GAF ) score of 16 70, and conservative treatment. In addition, Dr. Dresbach s opinion was inconsistent 17 with other medical evidence in the record. AR 16-17. An ALJ may discount a treating physician s opinion to the extent it is premised on 18 19 a claimant s subjective complaints. Tonapetyan, 242 F.3d at 1149 (ALJ properly 20 rejected physician s opinion premised on subjective complaints); Andrews v. Shalala, 53 21 F.3d 1035, 1043 (9th Cir. 1995) (ALJ may properly consider extent to which physician s 22 2 23 24 25 26 27 28 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(d)(2)(i). 3 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii). 6 1 opinion is premised on subjective complaints). A comparison of the January 4, 2008 2 report and the contemporaneous treatment records provides substantial evidence for the 3 ALJ s finding. AR 232-37. As discussed below, the ALJ properly discounted Munoz s 4 credibility. An ALJ may properly reject a treating physician s opinion that is not supported by 5 6 clinical findings. Bray v. Comm r of SSA, 554 F.3d 1219, 1228 (9th Cir. 2009); Batson v. 7 Comm r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 2004). The ALJ noted that Dr. 8 Dresbach initially assessed a GAF of 70, which indicates that the person experiences 4 9 mild symptoms and generally is functioning pretty well. AR 16 & n.3, 238; see also 10 Diagnostic & Statistical Manual of Mental Disorders 34 (4th ed. text rev. 2000). The ALJ 11 also noted that Dr. Dresbach s treatment records indicated depression was mild and 12 there was no mania. AR 16, 237. Dr. Dresbach s treatment was conservative. The ALJ also noted Dr. Dresbach s opinions were inconsistent with other medical 13 14 evidence of record. AR 17. Dr. Dresbach s statement in April 2008 that Munoz had 15 been hospitalized twice in the past two years for psychosis was not supported by the 5 16 record. AR 16-17. In February 2008, Munoz told Dr. Raja that she had a history of 17 bipolar disorder but with medication she was doing okay. AR 16, 241-42. Dr. Abejuela 18 conducted a mental status examination and found that Munoz had mild depression and 19 mild anxiety, her reasoning and comprehension remained intact, her cognitive 20 functioning was within normal, and her memory and ability to do simple math was intact. 21 AR 196. The ALJ offered specific and legitimate reasons supported by substantial 22 evidence in the record for rejecting Dr. Dresbach s opinions. The ALJ did not err. 23 /// 24 4 25 26 27 28 In January 2008, Dr. Dresbach assessed a GAF of 65, which is in the same range. AR 237. 5 Charter Oaks is a recovery center that specializes in treatment for addiction and alcoholism. AR 12 & n.4. The ALJ noted that Munoz denied current use of alcohol or drugs. AR 17. The hospitalization apparently took place in 2006, before Dr. Dresbach started treating Munoz in 2007. AR 195, 232. 7 1 E. Credibility 2 Munoz argues that the ALJ improperly discounted her subjective testimony. 3 To determine whether a claimant s testimony regarding subjective pain or 4 symptoms is credible, an ALJ must engage in a two-step analysis. Lingenfelter v. 5 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). 6 First, the ALJ must determine whether the claimant has presented objective 7 medical evidence of an underlying impairment which could reasonably be expected to 8 produce the pain or other symptoms alleged. Id. (quoting Bunnell v. Sullivan, 947 F.2d 9 341, 344 (9th Cir. 1991) (en banc)). The claimant, however, need not show that her 10 impairment could reasonably be expected to cause the severity of the symptom she has 11 alleged; she need only show that it could reasonably have caused some degree of the 12 symptom. Thus, the ALJ may not reject subjective symptom testimony . . . simply 13 because there is no showing that the impairment can reasonably produce the degree of 14 symptom alleged. Id. (citations omitted); Bunnell, 947 F.2d at 343. The ALJ found that 15 Munoz s medically determinable impairments could reasonably be expected to cause the 16 alleged symptoms. AR 15. 17 Second, if the claimant meets this first test, and there is no evidence of 18 malingering, the ALJ can reject the claimant s testimony about the severity of her 19 symptoms only by offering specific, clear and convincing reasons for doing so. 20 Lingenfelter, 504 F.3d at 1036 (citations omitted). In making a credibility determination, 21 the ALJ must specifically identify what testimony is credible and what testimony 22 undermines the claimant s complaints. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 23 2006) (citation omitted). [T]o discredit a claimant s testimony when a medical 24 impairment has been established, the ALJ must provide specific, cogent reasons for the 25 disbelief. Orn, 495 F.3d at 635 (citations and quotation marks omitted). The ALJ must 26 cite the reasons why the claimant s testimony is unpersuasive. Id. (citation and 27 quotation marks omitted). The ALJ may consider factors including: the nature, location, 28 onset, duration, frequency, radiation, and intensity of any pain; precipitating and 8 1 aggravating factors (e.g., movement, activity, environmental conditions); type, dosage, 2 effectiveness, and adverse side effects of any pain medication; treatment, other than 3 medication, for relief of pain; functional restrictions; the claimant s daily activities; and 4 ordinary techniques of credibility evaluation. Bunnell, 947 F.2d at 346 (citing Social 6 5 Security Ruling 88-13, quotation marks omitted). The ALJ may consider: (a) 6 inconsistencies or discrepancies in a claimant s statements; (b) inconsistencies between 7 a claimant s statements and activities; (c) exaggerated complaints; and (d) an 8 unexplained failure to seek treatment. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 9 Cir. 2002). The ALJ made no finding of malingering. The ALJ determined that Munoz s 10 11 subjective complaints about the intensity, persistence and limiting effects of her alleged 12 symptoms are not credible to the extent they are inconsistent with the RFC 13 assessment. AR 15. In support of his credibility determination, the ALJ relied on: (1) 14 inconsistencies between Munoz s statements and activities; (2) inconsistencies with the 15 treatment records; and (3) conservative treatment. The ALJ s first reason is supported by substantial evidence. The ALJ cited 16 17 inconsistencies between Munoz s statements and activities: Initially, [Munoz] alleged 18 she could not do anything, but on further questioning she admitted she drove, spent time 19 with her friends, did charity work, went to the movies, watched television, cared for a 20 medium sized dog (including poop pick up), and cleaned the litter box for her cat. She 21 said she lived alone in her house and did a little cooking, did not do major cleaning and 22 said her house was a bit of a mess. AR 14, 42-44. The ALJ also noted that Munoz 23 goes to Alcohol Anonymous one to three times per week and a women s luncheon once 24 per week, and ran up significant gambling losses in 2006. AR 14. The ALJ found that 25 6 26 27 28 Social Security rulings do not have the force of law. Nevertheless, they constitute Social Security Administration interpretations of the statute it administers and of its own regulations, and are given deference unless they are plainly erroneous or inconsistent with the Act or regulations. Han v. Bowen, 882 F.2d 1453, 1457 (9th Cir. 1989). 9 1 these activities were inconsistent with Munoz s statements that she slept up to twelve 2 hours per day. AR 14, 195. 3 Munoz argues that the fact that she could perform these daily activities was 4 insufficient to show that she could work for an eight-hour day. For purposes of 5 assessing Munoz s credibility, however, an ALJ may properly rely on inconsistent 6 statements and inconsistencies between a claimant s statements and her daily activities. 7 Thomas, 278 F.3d at 958-59. 8 Although not sufficient alone, inconsistency with the objective medical record is a 9 factor that may be considered in assessing credibility. Burch v. Barnhart, 400 F.3d 676, 10 681 (9th Cir. 2005). This reason is supported by substantial evidence. The ALJ noted 11 Dr. Dresbach reported that there was no evidence of mania and depression was mild. 12 AR 16, 237. Dr. Dresbach also gave Munoz a GAF of 70, indicating that Munoz has 13 some mild symptoms, but is functioning pretty well. AR 16-17. The ALJ cited Dr. 14 Abejuela s mental status examination findings. AR 17, 191-98, 209-19. Regarding 15 Munoz s physical impairments, the ALJ cited the opinions of Dr. Lin and Dr. Raja, whose 16 conclusions are consistent with the RFC. AR 17, 200-08, 241-42. Dr. Lin noted pain on 17 extreme range of motion only, good motor strength, good muscle tone, normal 18 neurological examinations and normal gait. AR 16, 200-08. Dr. Raja noted Munoz s 19 hand grip is 40 pounds bilaterally, strength is 5/5 in all extremities, and she is able to get 20 on the examination table without assistance. AR 16, 242. 21 [E]vidence of conservative treatment is sufficient to discount a claimant s 22 testimony regarding severity of an impairment. Parra v. Astrue, 481 F.3d 742, 751 (9th 23 Cir. 2007) (citation omitted). The ALJ noted that Munoz was treated conservatively with 24 medication and medication review. AR 16-17, 236-38, 242, 246. 25 The ALJ s credibility finding is supported by substantial evidence. If the ALJ s 26 credibility finding is supported by substantial evidence in the record, we may not engage 27 in second-guessing. Thomas, 278 F.3d at 959 (citing Morgan, 169 F.3d 595, 600 (9th 28 Cir. 1999)). Accordingly, the ALJ did not err. 10 1 IV. 2 ORDER 3 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 4 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order 5 and the Judgment herein on all parties or their counsel. 6 7 8 DATED: May 4, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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