Debra Phillips v.Michael J. Astrue, No. 5:2010cv01204 - Document 19 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons set forth below, the final decision of the Commissioner is affirmed. (See document for details.) (rla)
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Debra Phillips v.Michael J. Astrue Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 DEBRA PHILLIPS, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-1204-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Debra 19 Commissioner s 20 Security Disability Insurance ( SSDI ) benefits. For the reasons set 21 forth below, the final decision of the Commissioner is affirmed. final Phillips decision seeks denying judicial her review application of for the Social 22 23 I. Background 24 Plaintiff was born on January 8, 1954 and was 55 years old at the 25 time of the administrative hearing. (AR 15, 118.) She has completed one 26 year of college and has work experience as a school secretary. (AR 133, 27 135.) Plaintiff filed her application for SSDI benefits on November 13, 28 2007, alleging disability as of January 30, 2001 due to carpal tunnel Dockets.Justia.com 1 syndrome, essential hypertension, back pain, discogenic and degenerative 2 disorders 3 (Administrative Record ( AR ) 118, 124.) 4 of the back, arthritis, migraines and depression. The current application was denied initially on May 19, 2008 and 5 upon reconsideration on July 18, 2008. (AR 59-62, 69-73). An 6 administrative hearing was held on August 3, 2009 before Administrative 7 Law Judge ( ALJ ) Michael D. Radensky. Plaintiff, who was represented by 8 an attorney, testified, as did a vocational expert. (AR 20-43.) 9 On October 13, 2009, ALJ Radensky denied Plaintiff s application 10 for benefits. (AR 10-17.) The ALJ found that Plaintiff had not engaged 11 in substantial gainful activity during the period from April 18, 20071 12 though the date last insured of December 31, 2007.2 (AR 12.) The ALJ 13 found that Plaintiff had the following severe impairments: back pain, 14 15 1 16 17 18 19 20 21 22 23 24 Plaintiff had previously filed an application for benefits, which was denied in an unfavorable decision on April 17, 2007. (AR 44-56.) Plaintiff did not appeal that decision. The principles of res judicata apply to administrative decisions. An earlier final determination of nondisability creates a presumption of continuing nondisability with respect to any subsequent unadjudicated period of alleged disability. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996); see also Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. Secretary of Health and Human Services, 700 F.2d 566, 568-69 (9th Cir. 1983); Social Security Acquiescence Ruling 97-4(9). This presumption may be overcome by a showing of changed circumstances. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). To show changed circumstances, the evidence must establish that the claimant suffers from an impairment that indicates a greater disability since the prior decision denying benefits. Chavez, 844 F.2d at 693. The ALJ found that Plaintiff had not overcome this presumption as to her current application. 25 2 26 27 28 Plaintiff s date last insured was December 31, 2007. In order to qualify for disability insurance benefits, Plaintiff was required to establish that she was disabled on or before the date her insured status expired. 20 C.F.R. §404.131(b)(1); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984); Flaten v. Secretary of Health & Human Serv., 44 F.3d 1453, 1463 (9th Cir. 1995). 2 1 status post bilateral carpal tunnel releases, and obesity. (Id.) 2 However, the ALJ determined that Plaintiff s impairments did not meet or 3 were not medically equal to, one of the listed impairments in 20 C.F.R., 4 Part 404, Subpart P, Appendix 1. (AR 13.) 5 The ALJ adopted the previous ALJ decision in finding that, between 6 April 18, 2007 and December 31, 2007, Plaintiff retained the residual 7 functional capacity ( RFC ) to lift 20 pounds occasionally and 10 8 pounds frequently, stand and/or walk six hours in an eight-hour workday, 9 and sit six hours in an eight hour workday. The claimant must avoid work 10 at unprotected heights or work on dangerous machinery. She can 11 occasionally stoop, kneel, crouch, and crawl. She can never climb or 12 balance. She is precluded from power gripping. She is limited to a 13 maximum of two hours of keyboarding per day, 15 minutes at a time. (AR 14 13.) The ALJ determined that Plaintiff was unable to perform any past 15 relevant work. (AR 15.) However, the ALJ concluded, based upon the 16 testimony of the VE, that Plaintiff was capable of performing various 17 other jobs that exist in significant numbers in the national economy. 18 (AR 16.) Therefore, the ALJ concluded that Plaintiff was not disabled 19 within the meaning of the Social Security Act. 20 C.F.R. § 416.920(f). 20 (Id.) 21 On July 28, 2010, the Appeals Council denied review (AR 1-4), and 22 Plaintiff timely commenced this action for judicial review. On March 22, 23 2011, the parties filed a Joint Stipulation ( Joint Stip. ) of disputed 24 facts and issues, in which Plaintiff claims that (1) the ALJ failed to 25 properly consider lay witness testimony and (2) the ALJ failed to 26 properly consider a treating physician s opinion. (Joint Stip. 3.) 27 Plaintiff asks the Court to order an award of benefits, or in the 28 alternative, remand for further proceedings. (Joint Stip. 18.) The 3 1 Commissioner requests that the ALJ s decision be affirmed. (Id.) 2 3 II. 4 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 5 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 6 decision must be upheld unless the ALJ s findings are based on legal 7 error or are not supported by substantial evidence in the record as a 8 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 9 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 10 such evidence as a reasonable person might accept as adequate to support 11 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 12 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 13 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 14 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 15 evidence supports a finding, the reviewing court must review the 16 administrative record as a whole, weighing both the evidence that 17 supports 18 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 19 the 20 conclusion, the reviewing court may not substitute its judgment for 21 that of the ALJ. Robbins, 466 F.3d at 882. and evidence the can evidence support that detracts either from affirming the Commissioner s or reversing the ALJ s 22 23 24 25 III. Discussion A. The ALJ Did Not Err In Failing to Discuss the Lay Witness Report Provided by Plaintiff s Sister 26 Plaintiff contends that the ALJ failed to properly consider the 27 written statements submitted by Plaintiff s sister, Sharon Davis. (Joint 28 Stip. 3.) On March 18, 2008, Ms. Davis completed a Function Report 4 1 Adult Third Party form describing Plaintiff s daily activities and 2 other functions. (AR 156-163.) Plaintiff argues that the ALJ erred by 3 failing to discuss this report and by failing to provide germane reasons 4 for doing so. The Commissioner argues that any error was harmless. The 5 Court agrees. 6 The testimony of lay witnesses regarding their own observations of 7 the claimant s impairments constitutes competent evidence that must be 8 taken into account and evaluated by the Commissioner in the disability 9 evaluation. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009); 10 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). Such 11 testimony cannot be discounted unless the ALJ gives reasons that are 12 germane to that witness. Carmickle v. Commissioner, Social Sec. Admin., 13 533 F.3d 1155, 1164 (9th Cir. 2008); Stout v. Commissioner, 454 F.3d 14 1050, 1053 (9th Cir. 2006) (citing Dodrill v. Shalala, 12 F.3d 915, 919 15 (9th Cir. 1993)); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 16 2005); Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). [W]here the 17 ALJ s 18 testimony favorable to the claimant, a reviewing court cannot consider 19 the error harmless unless it can confidently conclude that no reasonable 20 ALJ, when fully crediting the testimony, could have reached a different 21 disability determination. Stout, 454 F.3d at 1056. error lies in a failure to properly discuss competent lay 22 The ALJ s failure to address Ms. Davis s written statement was 23 harmless error under Stout. Ms. Davis s statements about Plaintiff s 24 symptoms were substantially similar to Plaintiff s own statements. For 25 example, Ms. Davis noted that Plaintiff had trouble sleeping, needed 26 assistance in bathing and dressing, and needed to be reminded to 27 complete various tasks. (AR 157-158.) Plaintiff similarly reported that 28 she had difficulty sleeping, had trouble dressing herself and had 5 1 difficulty in following directions. (AR 145-50.) Ms. Davis reported that 2 Plaintiff had 3 and wrists, which affected her ability to lift, walk, climb stairs and 4 use 5 impairment negatively affected her ability to lift, walk, climb stairs, 6 and 7 administrative hearing was largely the same as her sister s written 8 statements. (AR 21-38.) 9 her use The stiffness and joint pain, as well as pain in her hands hands. her ALJ (TR 161.) hands. fully (TR Similarly, 150-151.) addressed Plaintiff Plaintiff s Plaintiff s reported testimony subjective that at testimony her the and 10 discounted it as not fully credible, a finding which Plaintiff does not 11 challenge here. (AR 14-15.) Thus, because Ms. Davis s report mirrored 12 Plaintiff s subjective testimony, this evidence did not add substantial 13 weight to Plaintiff s claim. Under these circumstances, the failure to 14 address this evidence was inconsequential to the ultimate determination 15 of non-disability. Stout, 454 F.3d at 1055. See, e.g., Genovez v. 16 Astrue, 2011 WL 92995, at *2 (C.D.Cal. 2011) (the failure to address lay 17 witness testimony was harmless because the testimony was substantially 18 similar to the statements made by the claimant); Lonian v. Astrue, 2010 19 WL 4916605, at *4 (C.D. Cal. 2010) (the ALJ did not err by failing to 20 discuss a letter submitted by two lay witnesses where the statements 21 were similar to the claimant s own testimony). 22 In addition, unlike lay testimony, there is no controlling 23 precedent requiring an ALJ to explicitly address written statements, 24 such as the Function Report Adult Third Party form in this case. 25 Indeed, it is clear that an ALJ is not required to discuss all evidence 26 in the record in detail. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th 27 Cir. 2003). 28 // Accordingly, Plaintiff s claim is without merit. 6 1 B. 2 The ALJ Properly Considered the Opinion of Plaintiff s Treating Physician 3 Plaintiff contends that the ALJ erred by rejecting a Multiple 4 Impairment Questionnaire dated May 11, 2007, which was completed by 5 Plaintiff s treating physician, Dr. John R. Sharpe, M.D. (Joint Stip. 6 9.) The report provides various observations regarding Plaintiff s 7 impairments and symptoms as well as her ability to complete work-related 8 tasks. (AR 201-208.) In discussing Dr. Sharpe s report, the ALJ stated 9 as follows: 10 The 11 questionnaire signed on May 11, 2007 by Dr. John Sharpe, M.D., 12 a family practitioner. Dr. Sharpe stated in that questionnaire 13 that his responses were based on an examination done on 14 October 3, 2006 and that he had not seen the claimant since 15 that time. This is the only medical evidence submitted in 16 connection with the current claim which is dated between April 17 18, 18 examination 19 decision. 20 undersigned 2007 and has December that reviewed 31, predated the 2007 the but multiple it impairment relates Administrative Law to an Judge (AR 13.) 21 It was proper for the ALJ not to accord significant weight to Dr. 22 Sharpe s report because he had not treated Plaintiff since October 3, 23 2006, more than seven months prior to the date of the report and prior 24 to the relevant time period of April 18, 2007 through December 31, 2007. 25 Moreover, because Dr. Sharpe had not examined Plaintiff since October 3, 26 2006, a time covered by the previous unfavorable ALJ decision, the ALJ 27 properly determined that Dr. Sharpe s report was not relevant to 28 determining disability within the relevant period of April 18, 2007 7 1 through December 31, 2007. 2 Plaintiff contends that, if the ALJ was unsure whether this was a 3 valid and current opinion as of May 11, 2007, the date of the report, 4 the ALJ had a duty to re-contact Dr. Sharpe. (Joint Stip. 13.) A 5 disability applicant bears the burden of proving disability and must 6 provide medical evidence demonstrating the existence and severity of an 7 alleged impairment. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 8 2001); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 416.912©. Nonetheless, an 9 ALJ has a duty to develop the record fully and fairly and to ensure 10 that the claimant s interests are considered, even when the claimant is 11 represented by counsel. Mayes, 276 F.3d at 459. An ALJ s duty to 12 augment an existing record is triggered only when there is ambiguous 13 evidence or when the record is inadequate to allow for proper evaluation 14 of the evidence. Id. (citing Tonapetyen v. Halter, 242 F.3d 1144, 1150 15 (9th Cir. 2001)). 16 Contrary to Plaintiff s contention, the ALJ had no duty to re- 17 contact Dr. Sharpe because there were no ambiguous or inadequate medical 18 records which would trigger the ALJ s duty to further develop the 19 record. Rather, Dr. Sharpe s form unequivocally stated that he had not 20 examined Plaintiff since October 3, 2006 (TR 201), a date outside of the 21 relevant 22 relevant to the period of disability, either Plaintiff herself or her 23 attorney could have procured these records, rather than expecting the 24 ALJ to do so. See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)( It is 25 not unreasonable to require the claimant, who is in a better position to 26 provide information about his own medical condition, to do so. ); Duenas 27 v. Shalala, 34 F.3d 719, 722 (9th Cir. 1994). 28 // disability period. If medical 8 records existed that were 1 Moreover, Dr. Sharpe s assessments of Plaintiff s impairments and 2 ability to complete work-related tasks was contradicted by the opinions 3 of the examining consultative physicians. The ALJ properly relied upon 4 the opinions of the examining consultative physicians, Drs. Keith J. 5 Wahl, M.D., S. Khan, M.D., and F. Kalmar, M.D., each of whom opined 6 that the evidence submitted with the current application did not 7 document any additional impairment or worsening of impairments since the 8 claimant s date last insured of December 31, 2007. (AR 14, 264-266, 9 267-278, 279-280.) The opinion of an examining physician can constitute 10 substantial evidence when the opinion is consistent with independent 11 clinical findings or other evidence in the record. See Thomas v. 12 Barnhart, 278 F.3d 948, 957 (9th Cir. 2002). 13 14 In sum, the ALJ accorded proper weight to Dr. Sharpe s opinion, and therefore Plaintiff is not entitled to relief on this issue. 15 16 IV. Conclusion 17 For the reasons stated above, the decision of the Social Security 18 Commissioner is AFFIRMED. 19 20 DATED: March 31, 2011 21 22 23 ______________________________ Marc L. Goldman United States Magistrate Judge 24 25 26 27 28 9
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