Cynthia Bell v. Michael J. Astrue, No. 5:2010cv01485 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm: (see attached) For the foregoing reasons, the judgement of the Commissioner is affirmed. (jm)

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1 O 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 CYNTHIA BELL, Plaintiff, 11 v. 12 13 MICHAEL J. ASTRUE, Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 10-1485 FFM MEMORANDUM DECISION AND ORDER Plaintiff brings this action seeking to overturn the decision of the Commissioner 16 17 of the Social Security Administration denying her application for Supplemental 18 Security Income benefits. On October 20, 2010 and November 2, 2010, plaintiff and 19 defendant, respectively, consented to the jurisdiction of the undersigned United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(c). Pursuant to the Case Management 21 Order entered on October 13, 2010, on June 9, 2011, the parties filed a Joint 22 Stipulation detailing each party s arguments and authorities. The Court has reviewed 23 the administrative record (the AR ), filed by defendant on April 7, 2011, and the Joint 24 Stipulation. For the reasons stated below, the decision of the Commissioner is 25 affirmed. 26 /// 27 /// 28 /// 1 PROCEDURAL HISTORY 2 On March 25, 2008, plaintiff filed an application for Supplemental Security 3 Income benefits. Plaintiff s application was denied initially and upon reconsideration. 4 Plaintiff filed a request for a hearing before an administrative law judge ( ALJ ). ALJ 5 Sharilyn Hopson held a hearing on March 2, 2010. (AR 19-55.) Plaintiff appeared 6 with counsel and testified at the hearing. 7 On May 28, 2010, the ALJ issued a decision denying benefits. (AR 6-18.) 8 Plaintiff sought review of the decision before the Social Security Administration 9 Appeals Council. On August 31, 2010, the Appeals Council denied plaintiff s request 10 for review. (AR 1-3.) Plaintiff filed her complaint herein on October 7, 2010. 11 12 CONTENTIONS 13 Plaintiff raises three issues in this action: 14 15 1. Whether the ALJ erred properly considered the treating psychiatrist s opinion; 16 2. Whether the ALJ provided a complete and proper assessment of plaintiff s residual functional capacity; and 17 18 19 3. Whether the ALJ posed a complete hypothetical question to the vocational expert. 20 21 22 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to 23 determine whether the Commissioner s findings are supported by substantial evidence 24 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 25 841, 846 (9th Cir. 1991). Substantial evidence means more than a mere scintilla but 26 less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 27 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 28 573, 575-76 (9th Cir. 1988). Substantial evidence is such relevant evidence as a 2 1 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 2 U.S. at 401. This Court must review the record as a whole and consider adverse as 3 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 4 Where evidence is susceptible to more than one rational interpretation, the 5 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 6 (9th Cir. 1984). However, even if substantial evidence exists in the record to support 7 the Commissioner s decision, the decision must be reversed if the proper legal standard 8 was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 9 2003); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 DISCUSSION 12 Plaintiff contends that the ALJ improperly rejected the findings of treating 13 psychiatrist, Dr. Krishna Murphy, contained in a Mental Disorder Questionnaire Form. 14 In evaluating physicians opinions, the case law and regulations distinguish 15 among three types of physicians: (1) those who treat the claimant (treating 16 physicians); (2) those who examine but do not treat the claimant (examining 17 physicians); and (3) those who neither treat nor examine the claimant (non-examining 18 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other 19 grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. §§ 20 404.1502, 404.1527(d). As a general rule, more weight should be given to the opinion 21 of a treating source than to the opinions of physicians who do not treat the claimant. 22 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. § 23 404.1527(d)(2). 24 The Ninth Circuit has held that an ALJ may reject a treating physician s 25 uncontradicted opinion only with clear and convincing reasons supported by 26 substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 27 1998) (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)) (internal 28 quotation marks omitted). If the treating physician s opinion is controverted, the ALJ 3 1 must still provide specific and legitimate reasons, supported by substantial evidence 2 in the record, in order to reject the treating physician s opinion. Lester, 81 F.3d at 830; 3 Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001). The ALJ could meet 4 this burden by setting out a detailed and thorough summary of the facts and conflicting 5 clinical evidence, stating his interpretation thereof, and making findings. Magallanes 6 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks omitted). 7 Here, the consultative examining psychiatrist, Dr. Ernest A. Bagner III, and the 8 State agency non-examining physicians contradicted Dr. Murphy s conclusions. 9 Therefore, the ALJ was required to provide specific and legitimate reasons for 10 11 rejecting Dr. Murphy s opinion. The ALJ noted that no objective evidence supported Dr. Murphy s conclusions 12 in the Mental Disorder Questionnaire Form that he completed May 15, 2008. 13 Moreover, Dr. Murphy s own treatment record, as well as plaintiff s treatment record 14 as a whole, did not support the limitations set forth in the form. This lack of support in 15 the treatment notes, objective evidence, and medical record as a whole is a specific and 16 legitimate reason supported by substantial evidence for rejecting Dr. Murphy s 17 opinion. 18 Although plaintiff contends that the ALJ should have contacted Dr. Murphy to 19 further develop the record, the Court finds that remand is not required. The ALJ has an 20 independent duty to fully and fairly develop the record and to assure that the 21 claimant s interests are considered, even when the claimant is represented. 22 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Crane v. Shalala, 76 F.3d 23 251, 255 (9th Cir. 1996) (citing Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). 24 However, [a]n ALJ s duty to develop the record further is triggered only when there 25 is ambiguous evidence or when the record is inadequate to allow for proper evaluation 26 of the evidence. Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citing 27 Tonapetyan, 242 F.3d at 1150). 28 4 1 Here, there was no ambiguity in the record, Dr. Murphy s treatment notes, the 2 record as a whole, and the objective evidence simply did not support Dr. Murphy s 3 opinion regarding plaintiff s limitations. 4 Moreover, even if the ALJ had had a duty to develop the record, [t]he ALJ may 5 discharge [such duty] in several ways, including: subpoenaing the claimant s 6 physicians, submitting questions to the claimant s physicians, continuing the hearing, 7 or keeping the record open after the hearing to allow supplementation of the record. 8 Tonapetyan, 242 F.3d at 1150; see also Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 9 1996). Here, the ALJ left the record open to allow plaintiff an opportunity to provide 10 11 additional medical records. (AR 22.) The remaining contentions are all dependent on the adoption of Dr. Murphy s 12 limitations. Because the Court finds no error in the ALJ s rejection of those 13 limitations, remand also is not required with respect to Issue s Two and Three. 14 15 CONCLUSION 16 For the foregoing reasons, the judgement of the Commissioner is affirmed. 17 IT IS SO ORDERED. 18 19 DATED: June 29, 2011 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 20 21 22 23 24 25 26 27 28 5

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