Julie Ann Hypes v. Michael J. Astrue, No. 5:2011cv00859 - Document 15 (C.D. Cal. 2012)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 JULIE ANN HYPES, Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 11-00859 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of her application for disability 22 and disability insurance benefits. 23 Magistrate Judge finds that judgement should be granted in favor of 24 Defendant, affirming the Commissioner s decision. 25 26 I. Plaintiff seeks For the reasons stated below, the BACKGROUND Plaintiff Julie Ann Hypes was born on February 16, 1961, and was 27 49-years old at the time of her administrative hearing. 28 [Administrative Record ( AR ) 10, 109.] She has a high school 1 1 education and past work experience as a massage therapist. [AR 124.] 2 Plaintiff alleges disability due to fibromyalgia, pain all over 3 and in her feet, chronic fatigue, and depression. 4 II. [AR 124.] PROCEEDINGS IN THIS COURT 5 The complaint in this matter was lodged on June 2, 2011, and 6 filed on June 8, 2011. On December 6, 2011, Defendant filed the answer 7 and certified administrative record. On February 7, 2012, the parties 8 filed their Joint Stipulation ( JS ), identifying matters not in 9 dispute, issues in dispute, the positions of the parties, and the 10 relief sought by each party. 11 submission without oral argument. 12 III. 13 This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS On October 31, 2008, Plaintiff filed an application for a period 14 of disability and disability insurance benefits alleging disability 15 beginning September 15, 2008. 16 denied initially and upon reconsideration, Plaintiff requested an 17 administrative hearing, which was held on June 22, 2010, before 18 Administrative Law Judge ( ALJ ) Mason D. Harrell, Jr. 19 Plaintiff appeared with counsel, and testimony was taken from 20 Plaintiff, vocational expert Ms. Porter, and a lay witness. [Id.] 21 ALJ denied benefits in an administrative decision dated August 2, 22 2010. 23 2011, the ALJ s decision became the Commissioner s final decision. 24 [AR 1-3.] 25 26 [AR 10-19.] [AR 109.] After the application was [AR 23-55.] The When the Appeals Council denied review on April 4, This action followed. IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny benefits. 28 ALJ s) findings and decision should be upheld if they are free of 2 The Commissioner s (or 1 legal error and supported by substantial evidence. 2 court determines that a finding is based on legal error or is not 3 supported by substantial evidence in the record, the court may reject 4 the finding and set aside the decision to deny benefits. 5 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 6 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 7 F.3d 1157, 1162 (9th Cir. 8 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 9 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 10 11 However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). Substantial evidence is more than a scintilla, but less than a 12 preponderance. Reddick, 157 F.3d at 720. 13 which a reasonable person might accept as adequate to support a 14 conclusion. 15 a finding, a court must review the administrative record as a whole, 16 weighing both the evidence that supports and the evidence that 17 detracts from the Commissioner s conclusion. 18 can reasonably support either affirming or reversing, the reviewing 19 court may not substitute its judgment for that of the Commissioner. 20 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports V. 21 Id. If the evidence DISCUSSION 22 A. THE FIVE-STEP EVALUATION 23 To be eligible for disability benefits a claimant must 24 demonstrate a medically determinable impairment which prevents the 25 claimant from engaging in substantial gainful activity and which is 26 expected to result in death or to last for a continuous period of at 27 least twelve months. 28 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 3 1 Disability claims are evaluated using a five-step test: 2 Step one: Is the claimant engaging in substantial 3 gainful activity? 4 disabled. 5 If so, the claimant is found not If not, proceed to step two. Step two: Does the claimant have a severe impairment? 6 If so, proceed to step three. 7 If not, then a finding of not disabled is appropriate. 8 Step three: Does the claimant s impairment or 9 combination of impairments meet or equal an impairment 10 listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? 11 so, the claimant is automatically determined disabled. 12 not, proceed to step four. 13 If If Step four: Is the claimant capable of performing his 14 past work? 15 proceed to step five. 16 If so, the claimant is not disabled. If not, Step five: Does the claimant have the residual 17 functional capacity to perform any other work? 18 claimant is not disabled. If so, the If not, the claimant is disabled. 19 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 20 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 21 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 22 C.F.R. § 404.1520, § 416.920. 23 not disabled at any step, there is no need to complete further 24 steps. 25 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 26 subject to the presumption that Social Security hearings are non- 27 adversarial, and to the Commissioner s affirmative duty to assist 28 claimants in fully developing the record even if they are represented 4 1 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 2 1288. 3 made, and the burden shifts to the Commissioner (at step five) to 4 prove that, considering residual functional capacity ( RFC )1, age, 5 education, and work experience, a claimant can perform other work 6 which is available in significant numbers. 7 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. If this burden is met, a prima facie case of disability is Tackett, 180 F.3d at 1098, 8 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 9 Here, the ALJ found Plaintiff meets the insured status of the 10 Social Security Act through December 31, 2012; that she has not 11 engaged in substantial gainful activity since September 15, 2008, the 12 alleged onset date (step one); that she has the severe impairments, 13 of fibromyalgia, obesity, and depression (step two); and that she does 14 not have an impairment or combination of impairments that meets or 15 equals a listing (step three). [AR 12.] 16 Plaintiff retains the RFC to: The ALJ further found that 17 [P]erform light work as defined in 20 CFR 404.1567(b) except 18 the claimant s mental impairments preclude intense 19 interaction with coworkers, supervisors, or the public. 20 would miss work up to two times a month. She 21 [AR 13.] The ALJ concluded that Plaintiff is unable to perform her 22 past work as a massage therapist (step four); but that, nonetheless, 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 considering Plaintiff s age, education, work experience, RFC and work 2 skills acquired from past relevant work, could perform other work 3 existing in significant numbers in the national economy (step five). 4 [AR 18.] 5 defined by the Social Security Act. [AR 19.] Accordingly, Plaintiff was found not to be disabled as 6 C. 7 The JS identifies as two disputed issues whether the ALJ applied 8 proper standards in rejecting the mental and physical RFC assessments 9 completed by Plaintiff's treating physician, Kenneth Russ, M.D. 10 ISSUES IN DISPUTE As a general matter, the ALJ is to give controlling weight to the 11 opinion of a treating physician that is "well-supported by medically 12 acceptable clinical and laboratory diagnostic techniques and is not 13 inconsistent with the other substantial evidence in [the] case record. 14 . . ." 15 that opinion is not "well-supported" or is "inconsistent with other 16 substantial evidence in the record." 17 (9th Cir. 2007). 18 physician's opinion, the ALJ may consider factors such as: the quality 19 of explanation the physician provides for his opinion, the consistency 20 of the opinion with the record as a whole and the amount of relevant 21 evidence that supports the physician's opinion, the length of the 22 treating relationship, the nature of the relationship, and the 23 physician's specialty. 20 C.F.R. § 404.1527(d)(3)-(6). 24 CRF § 404.1527(d)(2). The ALJ need not do so, however, if Orn v. Astrue, 495 F.3d 625, 631 In assessing what weight to give a treating Where the treating physician's opinion is contradicted by the 25 opinions of other medical sources in the record, the ALJ may reject 26 that opinion for "specific and legitimate reasons" which are 27 "supported by substantial evidence." Rollins v. Massanari, 261 F.3d 28 853, 856 (9th Cir. 2001)(citation omitted). 6 The ALJ can meet this 1 burden by "setting out a detailed and thorough summary of the facts 2 and conflicting clinical evidence, stating [his] interpretation 3 thereof, and making findings." 4 1041 (9th Cir. 2008)(citation omitted). 5 6 7 Tommasetti v. Astrue, 533 F.3d 1035, The ALJ met these standards in assessing both of Dr. Russ's RFC assessments. First, the ALJ properly declined to give weight to Dr. Russ's 8 mental RFC assessment form because his conclusions were contradicted 9 by the other medical evidence and by Plaintiff's own statements, 10 because his medical records included few objective findings, and 11 because the form he filled out supported an inference that he was not 12 earnestly assessing her abilities. Specifically, in February 2009 a 13 consultative psychiatric examiner opined that Plaintiff had only a 14 mild depressive disorder and that she could perform all work 15 activities without mental limitation. [AR 202-06.] The state agency 16 reviewing psychiatrist similarly concluded that, based upon a review 17 of the record, Plaintiff does not have a severe mental impairment. [AR 18 211-26.] The ALJ pointed out that these doctors' opinions were overall 19 consistent with the objective medical evidence and concluded that, 20 even giving Plaintiff the benefit of the doubt and deeming her 21 depression to be severe, she is precluded, at most, from intense 22 interactions with co-workers, supervisors or the public, and that she 23 may have to miss work up to two times per month. [AR 13.] 24 There is nothing improper in this analysis. When, as here, the 25 consulting physician's opinion is based upon his independent clinical 26 tests and findings, and when the consultative examiner's opinion is 27 overall consistent with the record, it may constitute substantial 28 evidence to reject the opinion of a treating physician. 7 See Andrews 1 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 2 properly noted that the consultative psychiatrist's opinion was 3 largely consistent with the findings of the other medical evidence of 4 record, the opinions of the state agency physicians. 5 properly weighed the relative merit of the medical evidence and 6 Plaintiff s testimony. This is proper. 7 Here, the ALJ The ALJ then Furthermore, the ALJ noted that Dr. Russ's reports were based 8 largely on Plaintiff's subjective complaints and not on clearly 9 articulated objective findings. [AR 15.] An ALJ is free to reject a 10 treating physician's opinion if it is based "to a large extent" on a 11 Plaintiff's self-reporting, particularly when that Plaintiff's 12 credibility, as here, has been discounted.2 13 533 F.3d at 1041 (citation omitted). 14 challenge the ALJ's adverse credibility determination, or his decision 15 to reject the lay statements of her mother and daughter. 16 See Tomasetti v. Astrue, Notably, Plaintiff does not Additionally, the ALJ rejected Dr. Russ's mental RFC assessment 17 on its face, because on the form the doctor first marked that 18 Plaintiff had many moderate symptoms, but then scribbled them out and 19 marked the boxes indicating Plaintiff had either no or mild 20 limitations. [AR 17, 228-29.] It is the province of the ALJ to assess 21 the credibility of the information contained in the medical record, 22 and it was logical for the ALJ to conclude that Dr. Russ did not base 23 his RFC evaluation upon a careful and accurate review of his treatment 24 records. In making findings, an ALJ may draw inferences, such as 25 26 27 28 2 Indeed, notwithstanding the fact that Dr. Russ treated plaintiff for approximately ten years, fewer than thirty pages of medical records including his RFC assessments were provided in support of Plaintiff s application for benefits. [See AR 188-201, 22733, 246-54.] 8 1 these, that logically flow from the evidence. 2 694 F.2d 639, 642 (9th Cir. 1982). 3 Sample v. Schweiker, Second, the ALJ properly declined to give weight to Dr. Russ's 4 physical RFC assessment form because these conclusions, too, were 5 contradicted by the other medical evidence and by Plaintiff's own 6 statements, and because his medical records included few objective 7 findings and did not support the "extreme and overly exaggerated" 8 limitations he opined. 9 that plaintiff should avoid all exposure to extreme cold and heat, 10 humidity, wetness, noise, fumes, odors, dusts, gas, and hazardous 11 conditions, whereas his treatment notes and, indeed, Plaintiff's own 12 testimony did not support such "extreme" limitations. [AR 17, 13 188-201, 246-54.] 14 opinion regarding a plaintiff's limitations when those conclusions are 15 not supported by the physician's own treatment notes or his 16 recommendations to the plaintiff. See Connett v. Barnhart, 340 F.3d 17 871, 875 (9th Cir. 2003). Specifically, for example, Dr. Russ opined The ALJ may properly reject a treating physician's 18 Furthermore, the findings of a consultative internist, based upon 19 his own independent examination of Plaintiff, were essentially normal, 20 and the doctor concluded that Plaintiff had no physical-impairment 21 related limitations. [AR 202-10.] 22 conclusions of the state agency reviewing physician. [See AR 211-26.] 23 Indeed, the physical examination of Plaintiff's other treating 24 physician revealed no abnormalities, in marked contrast to the extreme 25 limitations found by Dr. Russ. [See AR 235-45.] 26 This is consistent with the Finally, as the ALJ pointed out at several points in the hearing 27 decision, Plaintiff testified she was compelled to see another 28 treating physician because Dr. Russ refused to prescribe any pain 9 1 medication stronger than Vicodin. [AR 14.]This supports the inference 2 that Plaintiff was prescription shopping and hence less than credible 3 in terms of her complaints. See Sample v. Schweiker, 694 F.2d at 642. 4 Accordingly, because the decision to reject Dr. Russ s findings 5 is supported by substantial evidence and is free from material legal 6 error, remand is not warranted. 7 VI. ORDERS 8 Accordingly, IT IS ORDERED that: 9 1. The decision of the Commissioner is AFFIRMED. 10 2. This action is DISMISSED WITH PREJUDICE. 11 3. The clerk of the Court shall serve this Decision and Order and 12 Judgment herein on all parties or counsel. 13 14 15 16 DATED: April 17, 2012 ________________________________ CARLA M. WOEHRLE United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28 10
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