Gary Latsha v. Michael J. Astrue, No. 5:2010cv00668 - Document 15 (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 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 GARY LATSHA, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 10-668-PJW MEMORANDUM OPINION AND ORDER 16 17 I. INTRODUCTION 18 Before the Court is Plaintiff s appeal from a decision by 19 Defendant Social Security Administration ( the Agency ), denying his 20 application for Disability Insurance benefits ( DIB ). 21 claims that the Administrative Law Judge ( ALJ ) erred in failing to 22 properly consider two doctors opinions. 23 below, the Court concludes that the ALJ did not err and, therefore, 24 affirms the Agency s decision. Plaintiff For the reasons explained II. SUMMARY OF PROCEEDINGS 25 On February 27, 2006, Plaintiff filed for DIB benefits, alleging 26 27 an onset date of November 1, 2000. 28 112.) (Administrative Record ( AR ) 108- The Agency denied the application initially and on reconsidera- 1 tion. (AR 51, 55, 61-64, 67-71.) 2 granted a hearing before an ALJ. 3 Plaintiff appeared with counsel and testified at the hearing. 4 48.) 5 Plaintiff was not disabled. 6 Appeals Council, which denied review. 7 instant action. 10 (AR 73-75.) On November 21, 2007, (AR 19- On January 11, 2008, the ALJ issued a decision finding that 8 9 Plaintiff then requested and was (AR 5-16.) Plaintiff appealed to the (AR 1-4.) He then filed the III. DISCUSSION 1. The Examining Psychologist s Opinion In his first claim of error, Plaintiff contends that the ALJ did 11 not properly consider the opinion of examining psychologist Mark 12 Pierce. 13 finds that there is no merit to this claim. 14 (Joint Stip. at 3-4.) For the following reasons, the Court ALJs are tasked with resolving conflicts in the medical evidence. 15 Morgan v. Comm r of Soc. Sec., 169 F.3d 595, 601 (9th Cir. 1999) 16 (internal quotation marks omitted); Matney v. Sullivan, 981 F.2d 1016, 17 1019 (9th Cir. 1992). 18 legitimate reasons that are based on substantial evidence in the 19 record for rejecting an examining doctor s opinion where, as here, it 20 is contradicted by another doctor s opinion. 21 Soc. Sec., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester v. 22 Chater, 81 F.3d 821, 830 (9th Cir. 1996)). In doing so, an ALJ must provide specific and Carmickle v. Comm r of 23 Psychologist Mark Pierce examined Plaintiff on August 22, 2005, 24 and administered several intelligence tests in an effort to evaluate 25 Plaintiff s capabilities. 26 had mild depression but estimated Plaintiff s intellectual functioning 27 to be average and found no evidence of confusion. 28 According to Dr. Pierce: (AR 232-236.) 2 He concluded that Plaintiff (AR 234-36.) 1 [Plaintiff s] cognitive abilities appear to be fairly well 2 retained as he performs in consistently adequate-to-strong 3 fashion with administered testing. 4 performance, [Plaintiff] retains the mental capacity to 5 complete medium to higher-demand vocational skills and to 6 adapt to minimal changes in the work environment. 7 capacities are consistently adequate to this level of 8 vocational functioning. 9 significant difficulty working effectively with others, per 10 his adequate cooperation and performance with this examiner, 11 while there is milder depression underlying. 12 remember and comply with simple one and two part 13 instructions. 14 work schedule for a full workweek. 15 16 [¶] [¶] By today s Reasoning Plaintiff would have no He can He could concentrate adequately for a regular (AR 236.) In light of this report and the other medical evidence, the ALJ 17 determined that Plaintiff had the capacity to perform his prior job as 18 an auto service manager. 19 erred in reaching this determination. 20 concluded that Plaintiff could adapt to only minimal changes in the 21 workplace and argues that the job of service manager entails more than 22 minimal changes due to the constant hiring and firing of personnel and 23 the necessity of dealing with customers. 24 Plaintiff does not cite any authority to support this proposition. 25 And the Court has not found any, either. 26 record, though minimal, seems to contradict Plaintiff s claims, here. 27 28 (AR 16.) Plaintiff claims that the ALJ He points out that Dr. Pierce (Joint Stip. at 4.) Further, the evidence in the Throughout the application process, Plaintiff submitted reports to the Agency, detailing, among other things, his prior employment as 3 1 a service manager. 2 job of service manager involved the constant hiring and firing of 3 employees or that Plaintiff experienced difficulties with customers. 4 (AR 121, 154-55, 206.) 5 he got along well with bosses and coworkers when he was working. 6 233.) 7 from a 1992 accident and complications, including seizure disorder, 8 that followed. 9 manager for eight years after the accident with no apparent problems. 10 Nothing in those submissions suggested that the In fact, Plaintiff reported to Dr. Pierce that (AR This is important because Plaintiff s alleged impairment stems (AR 232-33.) Yet, Plaintiff worked as a service (AR 206, 233.) 11 Further, Plaintiff briefly testified about his experience as a 12 service manager and nothing in his testimony suggests that the job 13 required more than minimal changes in the work environment. 14 27.) 15 any special adaptation requirements. 16 Thus, the Court is hard pressed to find that the ALJ erred when he 17 determined that Plaintiff could perform his old job as a service 18 manager despite his limitations. 19 (AR 25- Nor does the Dictionary of Occupational Titles ( DOT ) include (See DOT No. 185.167-058.) Finally, even assuming that these additional coping abilities 20 were part of the job, it would not be dispositive. 21 concluded, Plaintiff would have no significant difficulty working 22 effectively with others . . . . 23 that the ALJ did not err when he found that Plaintiff could perform 24 his prior job as a service manager even though he was only capable of 25 adjusting to minimal changes in the work environment. 26 (AR 236.) As Dr. Pierce Thus, the Court concludes Plaintiff argues that the ALJ also erred when he concluded that 27 Plaintiff could perform his job as a service manager because it is 28 skilled work, requiring a reasoning level of four, and Dr. Pierce 4 1 concluded that Plaintiff was limited to one- and two-step 2 instructions, i.e., unskilled work. 3 Court disagrees. 4 remember and comply with simple one and two part instructions, he 5 did not conclude that Plaintiff was restricted to reasoning beyond 6 this level. 7 mental capacity to complete medium to higher-demand vocational 8 skills and that his [r]easoning capacities are consistently adequate 9 to this level of vocational functioning. (Joint Stip. at 3-4.) Again, the Though Dr. Pierce found that Plaintiff could (AR 236.) In fact, he believed that Plaintiff had the (AR 236.) He also found 10 that Plaintiff s cognitive abilities appear to be fairly well 11 retained as he performs consistently adequate-to-strong on the 12 intelligence testing Dr. Pierce administered. 13 suggests, as the ALJ concluded, that Plaintiff could perform at a 14 reasoning level much higher than two. 15 (AR 236.) This Plaintiff argues that Dr. Pierce s finding that Plaintiff could 16 complete medium to higher demand vocational skills related to 17 Plaintiff s Specific Vocational Preparation ( SVP ) level and not his 18 reasoning level. 19 no authority in support of this view, and the Court has found none. 20 Further, the record does not seem to support Plaintiff s 21 interpretation. 22 reason at a level sufficient to perform medium to higher demand 23 vocational skills. 24 evidence in the record, including the opinion of reviewing doctor 25 Sarah Maze, who concluded that Plaintiff s fund of knowledge was fair 26 and that his concentration and attention were not impaired. 27 241.) (Joint Stip. at 3.) Again, however, Plaintiff cites Dr. Pierce opined that Plaintiff had the ability to (AR 236.) This view is supported by other (AR 238- It is also consistent with the opinion of reviewing doctor H.M. 28 5 1 Skopec, who found that Plaintiff s mental impairment was not severe. 2 (AR 300-10.) 3 At best, Plaintiff has touched upon an inconsistency in Dr. 4 Pierce s opinion. Assuming this to be the case, it was for the ALJ to 5 address this inconsistency. 6 of an unreasonable resolution of the conflict, the ALJ s decision must 7 be affirmed. 8 2005) (holding ALJ s decision must be affirmed where evidence is 9 susceptible to more than one rational interpretation). Morgan, 169 F.3d at 601. In the absence See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th Cir. In light of 10 all of the evidence in this record, it was not unreasonable for the 11 ALJ to interpret Dr. Pierce s opinion in the way that he did. 12 that reason, this claim does not warrant remand or reversal. For 13 2. 14 In his second claim of error, Plaintiff contends that the ALJ 15 improperly rejected the opinion of one of the non-examining, reviewing 16 doctors, L. Mallare. 17 reasons, the Court disagrees. 18 The Non-Examining Doctor s Opinion (Joint Stip. at 7-8.) For the following An ALJ may reject the opinion of a non-examining doctor based on 19 specific evidence in the medical record. 20 1240, 1244-45 (9th Cir. 1998) ( The Commissioner may reject the 21 opinion of a non-examining physician by reference to specific evidence 22 in the medical record. ). 23 Sousa v. Callahan, 143 F.3d Dr. Mallare reviewed the medical record in September 2005 and 24 completed two forms in which he set out his opinion. (AR 245-256, 25 257-262.) 26 activities of daily living, mild difficulties in maintaining social 27 functioning, and mild difficulties in maintaining concentration and 28 persistence. He believed that Plaintiff would have mild restrictions in (AR 257-258.) The ALJ accepted this portion of Dr. 6 1 Mallare s opinion because it was consistent with Dr. Pierce s view. 2 (AR 13.) 3 moderate limitations in his ability to understand, remember, and carry 4 out detailed instructions. 5 of Dr. Mallare s opinion because it was inconsistent with Dr. Pierce s 6 findings. 7 so. 8 9 10 Dr. Mallare also opined, however, that Plaintiff would have (AR 13.) The ALJ rejected this portion Plaintiff contends that the ALJ erred in doing (Joint Stip. at 7-8.) There is no merit to this argument. Dr. Pierce s opinion is specific evidence in the medical record supporting the ALJ s decision to reject Dr. Mallare s opinion. Sousa, 143 F.3d at 1244-45. 11 12 (AR 257.) See As such, the ALJ did not err here. IV. CONCLUSION For the reasons set forth above, the Court concludes that the 13 Agency s findings are supported by substantial evidence and are free 14 from material legal error. 15 IT IS SO ORDERED. 16 DATED: August 9, 2011. 17 18 As such, the decision is affirmed. ________________________________ PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\LATSHA, G 668\memo opinion.wpd 7
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