Loretta Olivas v. Michael J. Astrue, No. 5:2010cv01481 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LORETTA OLIVAS, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 10-01481 RZ MEMORANDUM OPINION AND ORDER 17 Plaintiff Loretta Olivas makes three arguments in support of her Complaint 18 that the Social Security Commissioner wrongly denied her claim for disability benefits. 19 She argues first that the Administrative Law Judge ( ALJ ) failed to evaluate adequately 20 whether the effects of her combined impairments were medically equivalent to a listed 21 impairment. She then argues that the ALJ wrongly rejected the opinion of a treating 22 physician. Finally, she contends that the ALJ failed to support his determination that she 23 could perform her past relevant work. The Court disagrees, as explained below. 24 Plaintiff first argues that her combined impairments are equivalent to Listing 25 1.04, for disorders of the spine. See 20 C.F.R., Part 404, Subpart P, Appendix 1, § 1.04. 26 This argument fails because Plaintiff has advanced no plausible theory for equaling this 27 listing. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). For example, Plaintiff has 28 pointed to no evidence that she has motor loss (atrophy with associated muscle weakness 1 or muscle weakness) accompanied by sensory or reflex loss, one of the requirements of 2 Listing 1.04. (See AR 143, 146-47 (reports of treating physician Dr. Akmakjian that 3 Plaintiff has [n]o gross muscle weakness ); AR 192-93 (report of examining physician 4 noting that Plaintiff has good overall motor functioning ); AR 217 (report of treating 5 physician Dr. Sofia that Plaintiff has [n]o motor or sensory loss . . . [in] the lower 6 extremities ).) Accordingly, to the extent the ALJ erred by failing to explain with 7 sufficient particularity his conclusion that Plaintiff s combined impairments did not equal 8 a listed impairment, the error was harmless. See Stout v. Commissioner, 454 F.3d 1050, 9 1055 (9th Cir. 2006). 10 Plaintiff next argues that the ALJ erred in discounting the opinion of her 11 treating physician, Dr. Akmakjian. Although a treating physician s opinion can sometimes 12 be entitled to controlling weight, an ALJ is not required to accept it. Instead, he may 13 discredit a treating physician s opinion by providing specific and legitimate reasons for 14 doing so. Batson v. Commissioner, 359 F.3d 1190, 1194-95 (9th Cir. 2004). The ALJ did 15 so in this case. As an initial matter, Plaintiff does not point to any functional limitations 16 in Dr. Akmakjian s opinion that the ALJ failed to incorporate into his assessment of 17 Plaintiff s residual functional capacity. Instead, Plaintiff quarrels that the ALJ rejected 18 Dr. Akmakjian s alleged opinion that Plaintiff has not been able to work. (See AR 146.) 19 The ALJ was entitled to disregard this opinion because a treating physician s opinion is 20 not binding on an ALJ with respect to . . . the ultimate determination of disability. Batson, 21 359 F.3d at 1195 (citation omitted). Moreover, it is not clear whether Dr. Akmakjian 22 independently determined that Plaintiff was unable to work or whether he was relaying 23 Plaintiff s own report. (See AR 146.) The ALJ s determination that [t]his opinion 24 appears based solely on [Plaintiff s] subjective complaints is rational and must be upheld. 25 See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Thus, the ALJ s unchallenged 26 adverse credibility determination renders this observation a valid reason to discredit 27 Dr. Akmakjian s opinion. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 28 In addition, the ALJ noted that Dr. Akmakjian s opinion was not consistent with [his] -2- 1 minimal findings on physical examination. (AR 14.) The ALJ s interpretation that 2 Dr. Akmakjian s objective findings are inconsistent with an opinion that Plaintiff is 3 disabled is rational. (See AR 143-49 (reports of Dr. Akmakjian noting repeatedly that 4 Plaintiff has done well with the lower back surgery and proposing epidural injections and 5 imaging studies, if necessary); 150-52 (report of Dr. Akmakjian s colleague concluding 6 that Plaintiff probably just pulled her back. She was doing so well after her surgery 7 . . . . ).) This, too, constitutes a specific and legitimate reasoning for discounting 8 Dr. Akmakjian s opinion. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995). 9 Finally, Plaintiff challenges the ALJ s determination that she could perform 10 her past relevant work as a housekeeper. At step four of the sequential analysis, the 11 claimant has the burden to prove that [she] cannot perform [her] prior relevant work either 12 as actually performed or as generally performed in the national economy. Carmickle v. 13 Commissioner, 533 F.3d 1155, 1166 (9th Cir. 2008) (citation omitted). The ALJ must 14 support his determination by making specific findings as to (1) the claimant s residual 15 functional capacity ; (2) the physical and mental demands of the past relevant work ; and 16 (3) the relation of the residual functional capacity to the past work. Pinto v. Massanari, 17 249 F.3d 840, 844 (9th Cir. 2001). The ALJ met this obligation in this case. He first 18 determined that Plaintiff possessed the residual functional capacity to perform a limited 19 range of medium work but the full range of light work. (AR 12.) He then noted that the 20 occupation of housekeeper is considered light work as generally performed. (AR 14 21 (citing AR 125)); see DICTIONARY OF OCCUPATIONAL TITLES § 321.137-010 (categorizing 22 occupation of housekeeper as light work). Then, comparing Plaintiff s abilities to the 23 requirements of the housekeeper position, the ALJ concluded Plaintiff is able to perform 24 [her past relevant work] as generally performed. (AR 14.) The ALJ was not required to 25 incorporate into Plaintiff s residual functional capacity limitations that he found not 26 /// 27 /// 28 /// -3- 1 credible or not supported by the evidence. See Batson, 359 F.3d at 1197. Accordingly, the 2 ALJ did not err by concluding that Plaintiff could perform her past relevant work. In accordance with the foregoing, the decision of the Commissioner is 3 4 5 affirmed. IT IS SO ORDERED. 6 7 DATED: October 25, 2011 8 9 10 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4-
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