Irma Rivera et al v. Michael J. Astrue, No. 5:2010cv00149 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Court concludes that the Agency's decision denying benefits is supported by substantial evidence and is not based on legal error. The decision is, therefore, affirmed and the action is dismissed with prejudice.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 IRMA RIVERA O/B/O J.R., Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 10-149-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION Plaintiff Irma Rivera, on behalf of her minor son, J.R., appeals 19 a decision by Defendant Social Security Administration ( the Agency ), 20 denying her application for Supplemental Security Income ( SSI ). 21 claims that the Administrative Law Judge ( ALJ ) erred when he: 22 (1) failed to comply with an Appeals Council remand order requiring 23 him to obtain a psychological evaluation; (2) determined that J.R. was 24 not credible; and (3) failed to consider the side effects of J.R. s 25 medication in determining whether he was disabled. 26 3.) 27 action is dismissed with prejudice. 28 She (Joint Stip. at For the reasons explained below, the appeal is denied and the 1 II. 2 SUMMARY OF PROCEEDINGS In October 2006, Plaintiff applied for SSI on behalf of J.R., her 3 then-11-year-old son, alleging that he had been disabled since May 4 2001, due to depression and schizophrenia. 5 ( AR ) 177-79, 203-30.) The Agency denied the application initially 6 and on reconsideration. (AR 65-66, 85-93.) 7 and was granted a hearing before an ALJ. 8 Plaintiff and J.R. appeared without counsel at the hearing. 9 55.) (Administrative Record Plaintiff then requested On November 18, 2008, (AR 44- On January 29, 2009, the ALJ issued a decision denying benefits. 10 (AR 73-84.) Plaintiff appealed to the Appeals Council, which remanded 11 the case to the ALJ for further proceedings. 12 remand, the ALJ held another hearing (AR 27-43), and, on October 20, 13 2009, issued a second decision, again denying Plaintiff s claim for 14 benefits. 15 which denied review. 16 action. (AR 12-26.) 17 18 19 20 After Plaintiff appealed to the Appeals Council, (AR 1-3.) III. A. (AR 126-27.) She then commenced the instant ANALYSIS The ALJ s Failure to Adhere to the Appeal s Council s Remand Order Plaintiff complains that the ALJ failed to follow the Appeals 21 Council s remand order because he did not obtain a qualifying 22 psychological evaluation, as ordered. 23 claim is rejected. 24 For the following reasons, this Following the ALJ s initial decision denying benefits, Plaintiff 25 appealed to the Appeals Council. The Appeals Council concluded that 26 the ALJ had erred and remanded the case back to the ALJ to, among 27 other things: 28 2 1 Obtain additional evidence concerning all of the claimant s 2 mental impairments in order to complete the administrative 3 record in accordance with the regulatory standards regarding 4 consultative examinations and existing medical evidence (20 5 CFR 416.912 913). 6 psychological consultative examination with psychological 7 testing and a statement regarding the claimant s impairments 8 and any resulting functional limitations. 9 mental impairments in accordance with the six domains of The additional evidence will include a Evaluate the 10 functioning used for school-age children (age 6 to 11 attainment of age 12), and for adolescents (age 12 to 12 attainment of age 18) (20 CFR 416.926a). 13 14 (AR 127.) In response, the ALJ ordered a consultative examination by 15 psychologist Douglas W. Larson. (AR 302-07.) 16 reviewing the records and examining J.R., Dr. Larson administered 17 three, age-appropriate diagnostic tests on J.R. 18 Larson determined that J.R. was moderately impaired in five of six 19 areas of functioning. 20 was 13 years old at the time, Dr. Larson characterized J.R. s 21 limitations in terms of ability to perform in the workplace, i.e., to 22 interact appropriately with supervisors, comply with job rules, 23 respond to change in a workplace setting, and maintain persistence in 24 a workplace setting. 25 recognized this error and discounted Dr. Larson s findings, in part, 26 for that reason. (AR 306.) (AR 306.) In addition to (AR 304-06.) Dr. Inexplicably, however, though J.R. The ALJ and the medical expert (AR 19, 34-36.) 27 Plaintiff argues that the ALJ s rejection of Dr. Larson s 28 evaluation because it was couched in terms of ability to function in 3 1 the workplace was tantamount to not having a psychological evaluation 2 at all, contrary to the remand order of the Appeals Council. 3 Stip. at 4-5.) 4 because ALJs are required to follow the remand orders of the Appeals 5 Council, citing Ruiz v. Apfel, 24 F.Supp.2d 1045, 1050 (C.D. Cal. 6 1998) and various regulations. 7 (Joint She argues that this error requires automatic reversal The Agency argues that the ALJ did follow the Appeals Council 8 remand order and that, even if he didn t, his decision should be 9 affirmed because this Court is not authorized to consider whether ALJs 10 follow the dictates of Appeals Council remand orders. 11 For the following reasons, the Court sides with the Agency. 12 The Court has a limited role in reviewing Agency decisions. 13 is tasked with determining whether the final decision of the Agency is 14 supported by substantial evidence and is not based on legal error. 15 See 42 U.S.C. ยง 405(g); Tyler v. Astrue, 305 Fed. Appx. 331, 332 (9th 16 Cir. 2008); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). 17 In Tyler, an unpublished 2008 decision, the Ninth Circuit explained in 18 a case closely on point: 19 The district court properly declined to evaluate whether the 20 ALJ's second decision satisfied the demands of the Appeals 21 Council's remand . . . . 22 jurisdiction to review the final decisions of administrative 23 agencies. 24 ALJ's second decision, it made that decision final, and 25 declined to find that the ALJ had not complied with its 26 remand instructions. 27 [F]ederal courts only have When the Appeals Council denied review of the Id. at 332. 28 4 It 1 Thus, whether the ALJ followed the Appeals Council s remand or 2 not is not properly before this Court. 3 here is rejected. 4 As such, Plaintiff s claim Further, even assuming that this issue was properly before the 5 Court and, assuming further that the Court agreed with Plaintiff that 6 the ALJ was bound to follow the Appeals Council s remand order, it 7 would conclude based on this record that the ALJ substantially 8 complied with that order. 9 performed a battery of tests on J.R. He referred J.R. to a psychologist who (AR 302-07.) These tests were 10 aimed at identifying and analyzing J.R. s problems. 11 did. 12 of six areas of functioning. 13 J.R. s limitations in terms of work capabilities, that fact alone does 14 not diminish his evaluation. 15 In fact, they Dr. Larson concluded that J.R. was moderately impaired in five (AR 306.) Though Dr. Larson described Finally, the Court s conclusion that the ALJ followed the remand 16 order is circumstantially bolstered by the fact that, when Plaintiff 17 appealed the ALJ s second decision, the Appeals Council denied review. 18 Certainly, an inference can be drawn that the Appeals Council did not 19 believe that the ALJ failed to follow its remand order since it denied 20 review. 21 should be reversed because he failed to follow the Appeals Council s 22 remand order is denied.1 For these reasons, Plaintiff s claim that the ALJ s decision 23 24 25 26 27 28 1 The ALJ was not required by the remand order to simply adopt Dr. Larson s opinion. The ALJ set forth reasons why he discounted Dr. Larson s opinion, which Plaintiff does not really challenge here. 5 1 B. The ALJ s Credibility Determination 2 Plaintiff contends that the ALJ erred when he concluded that J.R. 3 was not credible. (Joint Stip. at 10-13.) 4 For the following reasons, the Court disagrees. 5 ALJs are tasked with judging the credibility of witnesses. 6 Where, as here, a claimant has produced objective medical evidence of 7 an impairment which could reasonably be expected to produce the 8 symptoms alleged, the ALJ may not discredit the claimant s testimony 9 as to subjective symptoms merely because they are unsupported by 10 objective evidence. 11 1998); Fair v. Bowen, 885 F.2d 597, 601-03 (9th Cir. 1983). 12 is no evidence of malingering, the ALJ may only reject the claimant s 13 testimony for specific, clear, and convincing reasons. 14 Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). 15 supported by substantial evidence in the record. 16 278 F.3d 947, 959 (9th Cir. 2002). 17 credibility, an ALJ is free to consider many factors, including 18 ordinary techniques of credibility evaluation[,]. . . prior 19 inconsistent statements[,]. . . and the claimant s daily activities. 20 Smolen, 80 F.3d at 1284. 21 the ALJ must identify what testimony is not credible and what evidence 22 undermines the claimant s complaints. 23 Lester v. Chater, 81 F.3d 821, 834 (9th Cir. If there Smolen v. These reasons must be Thomas v. Barnhart, In evaluating a claimant s General findings are insufficient; rather Lester, 81 F.3d at 834. Over the course of two administrative hearings, J.R. testified 24 about his ability to function at school and at home. (AR 46-51, 37, 25 40.) 26 school and in life outside school, though, at times, he had problems, 27 including having (bathroom) accidents four or five times a year 28 outside of school. The gist of his testimony was that he was doing fairly well in (AR 40.) The ALJ determined that J.R. s testimony 6 1 was not completely credible. (AR 17.) Plaintiff argues that this 2 finding was contained in only two sentences of the ALJ s decision and 3 was based on the vaguest of reasons, like the fact that J.R. s 4 symptoms improved significantly once he started taking his psycho- 5 tropic medications and undergoing therapy. 6 The Court disagrees. 7 testimony is contained in a fairly lengthy paragraph at page 17 of the 8 administrative record and sets forth numerous reasons why J.R. s 9 testimony that he was limited in certain ways was not believable. (Joint Stip. at 11-12.) The ALJ s justification for discounting J.R. s 10 These reasons included: according to J.R. s mother and his doctors, 11 J.R. s condition had vastly improved with drugs and therapy; J.R. was 12 attending school and doing well there, earning 3s and 4s on a 4-point 13 scale in his course work; and J.R. was participating in normal 14 activities when not in class. 15 clear, and convincing and are supported by the record. 16 are valid reasons for discounting a claimant s credibility. 17 Smolen, 80 F.3d at 1284. 18 be upheld. (AR 17.) These reasons are specific, Further, they See As such, the ALJ s credibility finding will 19 C. Medication Side Effects 20 At the first administrative hearing, J.R. testified that one of 21 the medications that he was taking, Abilify, made him sleepy and 22 interfered with his ability to concentrate in school. 23 The ALJ failed to mention this in his decision. 24 this was error and requires that the Court remand the case to the 25 Agency to allow the ALJ to consider the side effects. 26 17.) 27 this issue is not required. (AR 50-51.) Plaintiff argues that (Joint Stip. at For the following reasons, the Court concludes that remand on 28 7 1 Though the Court would agree that the ALJ should have mentioned 2 J.R. s testimony that his medication made him sleepy and interfered 3 with his ability to concentrate in school, see Social Security Ruling 4 96-7p, the Court does not agree that remand is necessary here. 5 begin with, the ALJ found that J.R. was not credible, a finding this 6 Court has upheld. 7 be not credible and the sole basis for his claim that he suffers from 8 medication side effects is a passing mention in his testimony, the ALJ 9 is not required to accept that testimony. To Certainly, where, as here, the claimant is found to See, e.g., Thomas, 278 F.3d 10 at 960 (affirming ALJ's rejection of claimant's alleged side effects 11 because claimant was not credible and the only evidence of side 12 effects were her statements that they existed); and Osenbrock v. 13 Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (holding ALJ did not err in 14 excluding alleged side effects from hypothetical question where the 15 record contained only passing mentions of the side effects of 16 [claimant's] medication . . . but there was no evidence of side 17 effects severe enough to interfere with [claimant's] ability to 18 work ). 19 from side effects was contradicted by his numerous statements to his 20 doctors to the contrary. 21 the course of his treatment, J.R. reported to his doctors 16 times 22 that he was not experiencing any side effects from his medication. 23 Finally, as J.R. explained, he was doing well in school, earning 3s 24 and 4s in his classes, and was doing well outside school, too. 25 evidence further suggests that any side effects, real or imagined, 26 were not so critical as to have any impact on the ALJ s disability Further, J.R. s claim at the hearing that he was suffering As the Agency pointed out in the brief, over 27 28 8 This 1 determination. Thus, remand on this issue is not warranted because 2 any error by the ALJ was harmless.2 IV. 3 4 CONCLUSION For the reasons set forth above, the Court concludes that the 5 Agency s decision denying benefits is supported by substantial 6 evidence and is not based on legal error. 7 affirmed and the action is dismissed with prejudice. 8 IT IS SO ORDERED. 9 The decision is, therefore, Dated: July 8, 2011 10 11 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 S:\PJW\Cases-Soc Sec\RIVERA, I 149\Memorandum and Order.wpd 24 25 26 27 28 2 Plaintiff s citation to WebMD and her argument that Abilify can cause numerous side effects, including drowsiness, is not on point. (Joint Stip. at 17.) The issue is not what side effects the medicine could cause, but what side effects it did cause. A fair reading of this record establishes that it did not cause any side effects in J.R. 9
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