Shani Gutierrez v. Michael J. Astrue, No. 5:2011cv01650 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SHANI GUTIERREZ, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 11-1650-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on October 25, 2011, seeking review 21 of the Commissioner s denial of benefits. The parties filed a consent 22 to proceed before a United States Magistrate Judge on November 8, 23 2011. 24 25 Plaintiff filed a motion for summary judgment on March 23, 2012.1 26 Defendant filed a cross-motion for summary judgment on April 19, 2012. 27 28 1 Plaintiff s motion violates paragraph VI of this Court s Order, filed October 27, 2011. Counsel for Plaintiff shall heed the Court s orders in the future. 1 The Court has taken both motions under submission without oral 2 argument. See L.R. 7-15; Order, filed October 27, 2011. 3 4 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 5 6 Plaintiff alleges disability since August 9, 2007, based on 7 alleged chronic [hepatitis] C, [cirrhosis] of the liver, severe 8 fatigue, complications breathing, bones ache, muscle cramps[,] 9 [d]epression and anxiety (Administrative Record ( A.R. ) 114-121, 10 135).2 11 heard testimony from Plaintiff and a vocational expert (A.R. 21-42). An administrative law judge ( ALJ ) examined the record and 12 13 The ALJ found that Plaintiff has severe cirrhosis of the liver 14 secondary to hepatitis C, but retains the residual functional capacity 15 to perform a full range of medium work, limited only by not working 16 with heavy machinery (A.R. 13-14). 17 with these limitations Plaintiff could perform her past relevant work 18 as a nurse assistant, quality control inspector, assembler of small 19 products, and general clerk as actually and generally performed 20 (A.R. 16-17 (adopting vocational expert testimony at A.R. 36-40)). 21 Consequently, the ALJ found Plaintiff not disabled. 22 Council denied review (A.R. 1-3). 23 /// 24 /// 25 /// 26 /// The ALJ found, inter alia, that Id. 27 2 28 Plaintiff filed later applications for benefits alleging the same onset dates (A.R. 122-28). 2 The Appeals 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); see also Widmark v. 12 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 13 14 This Court may not affirm [the Administration s] decision simply 15 by isolating a specific quantum of supporting evidence, but must also 16 consider evidence that detracts from [the Administration s] 17 conclusion. 18 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 19 F.3d 1028 (9th Cir. 2007) (same). 20 findings supported by substantial evidence, even though there may 21 exist other evidence supporting Plaintiff s claim. 22 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 23 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the Court cannot disturb See Torske v. 24 25 DISCUSSION 26 27 28 After consideration of the record as a whole, Defendant s motion is granted and Plaintiff s motion is denied. 3 The Administration s 1 findings are supported by substantial evidence and are free from 2 material3 legal error. 3 unavailing. Plaintiff s contrary contentions are 4 5 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work. 6 7 Substantial evidence supports the ALJ s finding that Plaintiff is 8 not disabled. 9 essentially unimpaired, and Plaintiff s treating physician offered no 10 Consultative examiners found Plaintiff to be opinion regarding Plaintiff s functional capacity. 11 12 A. Summary of the Medical Record 13 14 Dr. Rakesh Chopra began treating Plaintiff in January 2007 for 15 hepatitis, which was discovered during a routine physical examination 16 (A.R. 277-78). 17 primarily of laboratory reports from blood tests and letters (A.R. 18 219-78). 19 findings suggestive of chronic hepatitis C, grade 2-3, with some 20 fibrosis (A.R. 187-88; see also A.R. 230-31 (ultrasound of same date 21 showing no evidence of intrapelvic abnormality)). Dr. Chopra s available treatment records consist A liver core biopsy performed on March 6, 2007, showed 22 23 Blood tests also showed evidence of liver disease. Plaintiff s 24 HCV RNA, Qualitative measures were well above the reference range. 25 See A.R. 222, 240, 250 (tests showing virus levels of 724,000, 26 27 28 3 The harmless error rule applies to the review of administrative decisions regarding disability. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 4 1 240,000, and 162,000, over the course of Plaintiff s treatment).4 2 Hepatic function blood panels from January and August 2007, and from 3 April and May 2008, showed that Plaintiff s AST and ALT levels 4 were elevated above the reference ranges, whereas a test from January 5 2008 showed AST and ALT levels within the reference ranges (A.R. 236, 6 238, 241, 245, 251).5 7 showed elevated AST levels only (A.R. 242-44). 8 blood panel from February 18, 2009, showed that Plaintiff s albumin 9 was slightly below the reference range, but otherwise her results were Other tests from August and September 2007 A hepatic function 10 within the reference ranges, including her AST and ALT levels (A.R. 11 220). 12 function blood panel showed that Plaintiff s albumin was slightly 13 below the reference range, but her AST and ALT levels once again were When Plaintiff was tested again on March 31, 2009, her hepatic 14 4 15 The HCV RNA, Qualitative test is reported as positive or detected if any hepatitis viral RNA is found. The test: 16 17 18 19 20 21 detects and measures the number of viral RNA particles in the blood. Viral load tests are often used before and during treatment to help determine response to treatment by comparing the amount of virus before and during treatment (usually at several points in the first three months of treatment). Successful treatment causes a decrease of 99% or more (2 logs) in viral load soon after starting treatment (as early as 4-12 weeks) and usually leads to viral load being not detected even after treatment is completed. 22 23 24 25 26 27 28 See American Association for Clinical Chemistry, Hepatitis C (available online at http://labtestsonline.org/understanding/ analytes/hepatitis-c/tab/test (last visited May 22, 2012)). 5 AST (aspartate aminotransferase) and ALT (alanine transaminase) are enzymes found in high amounts in the liver. Diseases that affect liver cells increase the levels of AST and ALT. See AST (available online at http://www.nlm.nih.gov/ medlineplus/ency/article/003472.htm (last visited May 21, 2012)), and ALT (available online at http://www.nlm.nih.gov/medlineplus/ ency/article/003473.htm (last visited May 21, 2012)). 5 1 above the reference ranges (A.R. 227). 2 3 An October 5, 2007 letter from Dr. Chopra states that Plaintiff 4 has chronic hepatitis C with complaints of excess fatigue, weakness, 5 lack of energy, and generalized muscle aches and pains, likely due to 6 hepatitis C (A.R. 271). 7 Plaintiff then had been treated for six months for her hepatitis and, 8 while her viral load had come down from 75,000 to 25,000 suggesting a 9 partial response, Dr. Chopra opined that Plaintiff obviously is not 10 A March 10, 2008 letter states that a responder (A.R. 269). 11 12 13 The last letter from Dr. Chopra is dated May 1, 2009, and provides: 14 15 This letter is to inform the condition of our patient Shani 16 Gutierrez. 17 undergone treatment for her condition twice already. 18 undergoing treatment, Ms. Gutierrez was non-responsive to 19 both treatments tried. 20 treatment, patient experiences severe side effects such as 21 anemia, hair lost [sic], depression, pain, and insomnia. 22 you have any further questions or concerns, please feel free 23 to contact my office. Ms. Gutierrez has stage 3 liver disease and has While Due to the heavy dosage of the If 24 25 (A.R. 219). Dr. Chopra did not indicate what other options may be 26 available for treating Plaintiff s liver disease, and did not offer an 27 opinion concerning any restrictions on Plaintiff s ability to work. 28 /// 6 Dr. Bryan To performed an independent internal medicine 1 2 evaluation of Plaintiff dated February 4, 2009 (A.R. 193-97). 3 Plaintiff reported current liver treatment with Infergen and RibaPak,6 4 with side effects of fatigue, nausea, and muscle and bone pain (A.R. 5 193). 6 AST (SGOT) level above the reference range but otherwise normal 7 blood references (A.R. 198). 8 complaints of pain on range of motion (A.R. 195-96). 9 that Plaintiff would be capable of pushing, pulling, lifting, and Dr. To ordered a hepatic function blood test that showed an Physical examination revealed only Dr. To opined 10 carrying 50 pounds occasionally, 25 pounds frequently, standing and 11 walking six hours in an eight-hour workday, sitting without 12 limitation, frequently walking on uneven terrain, climbing ladders, or 13 working with heights, and frequently bending, kneeling, stooping, 14 crawling, and crouching, but could perform no work with heavy and 15 moving machinery (A.R. 196-97). 16 17 State agency physician Dr. F. Kalmar completed a Physical 18 Residual Functional Capacity Assessment form for Plaintiff dated 19 February 27, 2009 (A.R. 199-203). 20 March 2007 liver biopsy findings, blood test results including the 21 current hepatic function blood test, and Dr. To s evaluation (A.R. 22 204-05). Dr. Kalmar reviewed Plaintiff s Dr. Kalmar opined that Plaintiff would have the residual 23 6 24 25 26 27 28 Infergen is the brand name for an interferon alfacon-1 injection which helps to prevent the hepatitis C virus from growing. See Interferon Alfacon-1 Injection (available online at http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a601150.html (last visited May 21, 2012)). Ribavirin is a drug used with an interferon medication to help stop the virus that causes hepatitis C from spreading inside the body. See Ribavirin (available online at http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a605018.html (last visited May 21, 2012)). 7 1 functional capacity to perform medium work with no limitations (A.R. 2 199-203). 3 residual functional capacity assessment for Plaintiff on June 4, 2009 4 (A.R. 281-82). A second State agency physician affirmed the medium 5 6 Dr. John S. Woodard performed a complete psychiatric evaluation 7 of Plaintiff dated February 3, 2009 (A.R. 190-92). Plaintiff reported 8 suffering from depression and anxiety and periodic insomnia, but had 9 never had any psychiatric treatment (A.R. 190). Dr. Woodard diagnosed 10 Plaintiff with depressive disorder, not otherwise specified, and 11 opined that Plaintiff s prognosis was fair for improvement with 12 appropriate treatment (A.R. 192). 13 would have only slight impairment in: (1) interacting with 14 supervisors and coworkers and with the public; (2) maintaining 15 concentration and attention; (3) withstanding normal stresses and 16 pressures in the workplace; (4) performing detailed, complex tasks; 17 and (5) completing a normal workweek without interruption (A.R. 192). Dr. Woodard opined that Plaintiff 18 19 State agency physician Dr. S. Khan completed a Psychiatric Review 20 Technique form for Plaintiff dated March 2, 2009 (A.R. 206-16). Dr. 21 Khan opined that Plaintiff would have only mild difficulties in 22 maintaining social functioning and in maintaining concentration, 23 persistence, or pace (A.R. 214). 24 psychiatric symptoms do not significantly decrease/impact Plaintiff s 25 ability to function (A.R. 216-18). 26 /// 27 /// 28 /// Dr. Khan believed that Plaintiff s 8 1 B. Analysis 2 3 The ALJ found that Plaintiff would be capable of performing 4 medium work based on Dr. To s and Dr. Woodard s consultative 5 evaluations and the State agency physicians concurrence (A.R. 14-16). 6 The consultative examiners findings constitute substantial evidence 7 supporting the ALJ s decision. 8 1144, 1149 (9th Cir. 2001) (consulting examiner s opinion is 9 substantial evidence that can support an ALJ s finding of See Tonapetyan v. Halter, 242 F.3d 10 nondisability); see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 11 2007) (examining physician s independent clinical findings are 12 substantial evidence). 13 physicians provide additional support for the ALJ s decision. 14 Tonapetyan v. Halter, 242 F.3d at 1149 (non-examining physician s 15 opinion may constitute substantial evidence when opinion is consistent 16 with independent evidence of record); Lester v. Chater, 81 F.3d 821, 17 831 (9th Cir. 1995) (same). The opinions of the non-examining State agency See 18 19 Having found that Plaintiff retains the residual functional 20 capacity to perform medium work limited only by not working with heavy 21 machinery, the ALJ relied on the testimony of a vocational expert to 22 conclude that a person with Plaintiff s residual functional capacity 23 can perform her past relevant work as actually and generally performed 24 (A.R. 16-17). 25 substantial evidence supporting the ALJ s decision that Plaintiff is 26 not disabled. 27 F.3d 1219, 1228 (9th Cir. 2009) (vocational expert opinion evidence is 28 reliable to support a finding that a claimant can work if hypothetical The vocational expert s testimony constitutes See Bray v. Commissioner of Social Security Admin., 554 9 1 set[s] out all the limitations and restrictions of a particular 2 claimant ) (citation omitted); see also Hubble v. Astrue, 2012 WL 3 258406, at *2 (9th Cir. Jan. 30, 2012) (finding no error in ALJ s 4 conclusion that claimant was capable of performing her past relevant 5 work as generally performed in the national economy, based on a 6 hypothetical presenting claimant s residual functional capacity).7 7 8 II. 9 The ALJ Did Not Commit Any Material Error in Finding that Plaintiff Can Perform Her Past Relevant Work. 10 11 Plaintiff alleges that the ALJ s decision finding that Plaintiff 12 could perform her past relevant work did not sufficiently discuss the 13 physical and mental demands of the work. 14 2-5 (citing Social Security Ruling 82-62). 15 a claimant from doing past relevant work; if a claimant can still do 16 her past relevant work, she will be found not disabled. 17 § 404.1520(e). 18 part: See Plaintiff s Motion, pp. An impairment must prevent See 20 C.F.R. Social Security Ruling 82-62 provides, in relevant 19 20 The claimant is the primary source for vocational 21 documentation, and statements by the claimant regarding past 22 work are generally sufficient for determining the skill 23 level, exertional demands and nonexertional demands of such 24 work. 25 relevant work] requires a careful appraisal of (1) the Determination of the claimant s ability to do [past 26 27 28 7 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b). 10 1 individual s statements as to which past work requirements 2 can no longer be met and the reason(s) for his or her 3 inability to meet those requirements; (2) medical evidence 4 establishing how the impairment limits ability to meet the 5 physical and mental requirements of the work; and (3) in 6 some cases, supplementary or corroborative information from 7 other sources such as employers, the Dictionary of 8 Occupational Titles, etc., on the requirements of the work 9 as generally performed in the economy. 10 11 The decision as to whether the claimant retains the 12 functional capacity to perform past work which has current 13 relevance has far-reaching implications and must be 14 developed and explained fully in the disability decision. 15 Since this is an important and, in some instances, a 16 controlling issue, every effort must be made to secure 17 evidence that resolves the issue as clearly and explicitly 18 as circumstances permit. 19 20 See Social Security Ruling 82-62.8 21 22 A claimant bears the burden of proving that a physical or mental 23 impairment prevents [her] from engaging in any of [her] previous 24 occupations. 25 1987); see Bowen v. Yuckert, 482 U.S. 137, 146-50 (1987). Sanchez v. Secretary, 812 F.2d 509, 511 (9th Cir. Plaintiff 26 27 28 8 Social Security rulings are binding on the Administration. Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 11 1 failed to carry this burden in the present case. The ALJ properly 2 found Plaintiff capable of performing her past relevant work, based on 3 the medical evidence in conjunction with Plaintiff s reported work 4 history, her Social Security earnings record, and the vocational 5 expert s testimony. 6 testimony and concluding, In comparing the claimant s residual 7 functional capacity with the physical and mental demands of this work, 8 the undersigned finds that the claimant is able to perform it as 9 actually and generally performed. ). See A.R. 17 (citing record including hearing While the ALJ could have 10 explained this portion of the decision more fully, the record was 11 sufficiently developed on the issue of Plaintiff s past relevant work 12 to support the ALJ s conclusions. 13 14 In response to questioning from a vocational expert, Plaintiff 15 testified that in her past relevant work as a quality control 16 inspector she lifted five pounds on average (A.R. 36-37). 17 relevant work as an assembler of small parts, she reportedly just put 18 little parts together (A.R. 37). 19 reportedly did filing, data entry, and answered phones (A.R. 37). 20 Plaintiff said those jobs were mostly sitting and did not involve 21 lifting much weight (A.R. 37-38).9 In her past In her clerical jobs, Plaintiff 22 23 24 25 26 27 28 9 In her Disability Report - Adult form, Plaintiff reported that her job as a nurse assistant required her to walk and stand seven hours in an eight-hour day, sit one hour, and kneel seven hours (A.R. 136). The heaviest weight Plaintiff lifted reportedly was 50 pounds (A.R. 136-37). In a Work History Report form, Plaintiff reported that her job as a nurse assistant required walking and standing six hours in an eight-hour day, sitting two hours, kneeling one hour, reaching two hours, and writing one hour (A.R. 159). In that form, the heaviest weight (continued...) 12 1 The vocational expert testified that Plaintiff s past relevant 2 work as a nurse s assistant was a medium occupation generally and as 3 performed (A.R. 38). 4 control inspector and as an assembler of small parts were light 5 occupations generally and as performed (A.R. 38). 6 relevant work as a general office clerk was a light occupation, but 7 was sedentary as performed (A.R. 38-39). 8 testified that a person with the residual functional capacity the ALJ 9 found to exist could perform all of Plaintiff s past relevant work Plaintiff s past relevant work as a quality Plaintiff s past The vocational expert 10 (A.R. 39-40). If the person were limited to light work, she could 11 still perform the inspector, assembler, and clerical jobs (A.R. 40). 12 The vocational expert testified that the testimony given was 13 consistent with the Dictionary of Occupational Titles (A.R. 40). 14 15 The ALJ was entitled to rely on this record to find Plaintiff not 16 disabled at step four of the disability analysis. See Social Security 17 Ruling 82-62 (the claimant is the primary source for vocational 18 documentation, and a claimant s statements are generally sufficient 19 for determining the demands of past relevant work); Matthews v. 20 Shalala, 10 F.3d 678, 681 (9th Cir. 1983) (claimant s description of 21 past work is considered highly probative); Santiago v. Secretary of 22 Health and Human Services, 944 F.2d 1, 5 (1st Cir. 1991) ( the ALJ is 23 9 24 25 26 27 28 (...continued) she reported lifting was 25 pounds; Plaintiff used a machine or assistance from other employees to lift objects weighing more than 25 pounds (A.R. 159). Plaintiff reported that her job as a small parts assembler required that she walk one hour in an eight-hour day, sit seven hours, stoop one hour, and kneel one hour (A.R. 160). The heaviest weight Plaintiff lifted in that job was less than 10 pounds (A.R. 160). Plaintiff reportedly could not remember any of her other past work (A.R. 161-65). 13 1 entitled to rely upon claimant s own description of the duties 2 involved in her former job ). 3 4 Assuming, arguendo, the ALJ s step four findings lacked the 5 specificity contemplated by Social Security Ruling 82-62, the error 6 was harmless because the record was adequately developed and supports 7 the ALJ s findings. 8 (9th Cir. 2007) (where ALJ made insufficient findings regarding the 9 demands of a claimant s past relevant work, the court held that at a Compare Smith v. Astrue, 252 Fed. App x 820, 823 10 minimum, the ALJ should have referred to the Dictionary of 11 Occupational Titles or questioned the claimant at the hearing to 12 determine the demands of the past relevant work); see also Butler v. 13 Astrue, 2011 WL 5878367, at *8 (E.D. Wa. Nov. 23, 2011) (finding 14 similar error harmless where substantial evidence supported the ALJ s 15 decision at step four); Jakobs v. Astrue, 2010 WL 3636236, at *8 (C.D. 16 Cal. Sept. 15, 2010) (same, where ALJ expressly relied on vocational 17 expert testimony that was consistent with the Dictionary of 18 Occupational Titles). 19 the evidence summarized above, the ALJ s decision doubtlessly would 20 have remained the same. 21 Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (error is harmless if it 22 does not negate from the validity of the ALJ s ultimate conclusion ). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Even had the ALJ discussed more specifically See Batson v. Commissioner of Social Security 14 1 2 III. The ALJ Adequately Considered Dr. Chopra s Opinion and Fully and Fairly Developed the Record. 3 4 Plaintiff contends that the ALJ failed properly to consider Dr. 5 Chopra s opinion concerning Plaintiff s condition. Plaintiff alleges 6 that while the ALJ mentioned Dr. Chopra s diagnosis and observations 7 regarding Plaintiff s response to treatment included in Dr. Chopra s 8 May 1, 2009 letter, the ALJ failed to indicate whether he accepted or 9 rejected Dr. Chopra s opinion. See Plaintiff s Motion, pp. 5-6. 10 11 As discussed above, Dr. Chopra offered no opinion concerning 12 Plaintiff s functional capacity. See 20 C.F.R. § 416.927(a)(2) 13 ( Medical opinions are statements from physicians and psychologists or 14 other acceptable medical sources that reflect judgments about the 15 nature and severity of your impairment(s), including your symptoms, 16 diagnosis and prognosis, what you can still do despite impairment(s), 17 and your physical or mental restrictions. ). 18 acknowledged Dr. Chopra s letter in summarizing the medical record and 19 in finding that Plaintiff has severe cirrhosis of the liver secondary 20 to hepatitis C. 21 from Dr. Chopra for the ALJ to consider. 22 2010 WL 5088774, at *5 (C.D. Cal. Dec. 7, 2010) (rejecting argument 23 that ALJ did not consider the opinion of a treating physician, where 24 the record contained no opinion that claimant s condition caused any 25 particular limitations); Hogle v. Astrue, 2010 WL 3894621, at *7 (C.D. 26 Cal. Sept. 30, 2010) (rejecting argument that ALJ failed to consider 27 opinion evidence where physician s treatment notes provided no opinion 28 concerning the claimant s impairments or limitations, and ALJ s See A.R. 13-14, 16. 15 The ALJ properly There simply was nothing further See, e.g., Guerra v. Astrue, 1 finding of severe impairment demonstrated that ALJ considered 2 physician s notes). 3 4 Plaintiff also contends that the ALJ erred by not holding the 5 record open and not contacting Dr. Chopra to clarify any confusion, 6 or ambiguities or uncertainties over Plaintiff s limitations or 7 viable treatment options. 8 extent Plaintiff suggests that the ALJ did not adequately develop the 9 record to obtain some kind of evaluation from Dr. Chopra, Plaintiff See Plaintiff s Motion, pp. 6-8. To the 10 has failed to demonstrate any material error. An ALJ s duty to 11 develop the record further is triggered only when there is ambiguous 12 evidence or when the record is inadequate to allow proper evaluation 13 of the evidence. 14 2001). 15 trigger any further duty on the part of the ALJ. 16 evidence suggests that any expansion of the record would have altered 17 the administrative decision. 18 opinion concerning Plaintiff s functional capacity believed that 19 Plaintiff retained the capacity to work. 20 Dr. Chopra may have harbored a different, unstated opinion is 21 insufficient to demonstrate material error. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. Here, the record was not ambiguous or inadequate so as to Moreover, no All of the physicians who offered an Plaintiff s speculation that 22 23 24 IV. The ALJ Did Not Commit Material Error By Deeming Plaintiff s Testimony Less Than Fully Credible. 25 26 Plaintiff argues that the ALJ did not properly assess Plaintiff s 27 testimony regarding her alleged limitations. 28 pp. 9-13. See Plaintiff s Motion, An ALJ s assessment of a claimant s credibility is entitled 16 1 to great weight. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th 2 Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 3 discounting of a claimant s testimony regarding subjective symptoms 4 must be supported by specific, cogent findings. 5 81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 622 F.3d 6 1228, 1234 (9th Cir. 2010) (reaffirming same); Varney v. Secretary of 7 Health and Human Serv., 846 F.2d 581, 584 (9th Cir. 1988) (generally 8 discussing specificity requirement); but see Smolen v. Chater, 80 F.3d 9 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ must offer The See Lester v. Chater, 10 specific, clear and convincing reasons to reject a claimant s 11 testimony where there is no evidence of malingering).10 12 Plaintiff s argument, the ALJ stated sufficient reasons for deeming 13 Plaintiff s testimony less than fully credible. Contrary to 14 15 Plaintiff testified that she contracted hepatitis by blood 16 transfusion in 1976 (A.R. 25; see also A.R. 234-35 (2006 blood test 17 showing reactive hepatitis C antibody)). 18 August 9, 2007, to begin eight months of chemotherapy treatment for 19 her liver (A.R. 24). 20 due to two eight-month rounds of such treatment (A.R. 26). Plaintiff stopped working on Plaintiff claims she suffers from severe fatigue 21 22 23 24 25 26 27 28 10 In the absence of evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Molina v. Astrue, 674 F.3d 1104 (9th Cir. 2012); Taylor v. Commissioner of Social Security Admin., 659 F.3d 1228, 1234 (9th Cir. 2011); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Carmickle v. Commissioner, 533 F.3d 1155, 1160 (9th Cir. 2008); Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007); Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). In the present case, the ALJ s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 17 1 Plaintiff s last round of treatment ended in February 2009 (A.R. 26 2 (inaccurately stating treatment ended in February 2010)). 3 said treatment was discontinued because her blood cell count was too 4 low, she was non-responsive, and it was becoming fatal for her (A.R. 5 27). Plaintiff 6 7 Plaintiff testified that she lives with her sister, who is 8 retired and who supposedly does all the shopping and household chores 9 because Plaintiff assertedly is too tired (A.R. 25, 27-28, 32). 10 Plaintiff has a driver s license, but reportedly does not drive (A.R. 11 31). 12 fatigue and pain in her liver (A.R. 27).11 Plaintiff testified that she has to lie down daily due to 13 14 When asked about her alleged problems with depression, Plaintiff 15 replied, If I don t get a liver transplant, I m going to die. Am I 16 supposed to be happy about that? (A.R. 28). 17 not yet on the transplant list because she does not have Medical and Plaintiff said she is 18 11 19 20 21 22 23 24 25 26 27 28 In a Disability Report - Adult form, Plaintiff reported that she is unable to sit, stand or walk for long periods of time, is unable to lift or carry anything, cannot concentrate or remember things, and is always weak (A.R. 135). In a Function Report - Adult form dated October 27, 2008, Plaintiff reported that she can handle her own personal care and spends her days dressing herself, taking her medications, eating her meals, and resting (A.R. 142-43). Plaintiff reported that it is difficult to do anything due to the side effects of her medication which assertedly include severe vomiting and diarrhea (A.R. 143, 146). Plaintiff s sister supposedly prepares the meals, does all house and yard work, and all the shopping (A.R. 144-45). Plaintiff s only reported activity is watching television (A.R. 146). Plaintiff reportedly could not walk far and used a cane for ambulation, although the cane was not prescribed (A.R. 147-48). Plaintiff s sister reported similar information in a Function Report - Adult - Third Party form dated October 27, 2008. See A.R. 150-57. 18 1 you have to go through this process first (A.R. 28). As of the time 2 of the hearing, it had been over a year since Plaintiff had even seen 3 a doctor (A.R. 28). Plaintiff testified: 4 5 There was nothing more [the doctor] can do to me, for me. 6 He said all I can do is go to the county for my, to try to 7 get on the list for, I need a liver transplant. 8 already gone through both treatments, and there was just 9 there s nothing more they can do medically, other than a 10 liver transplant. 11 you re on the list that it might even happen. 12 I ve And you know, that doesn t mean because does, though. I hope it 13 14 (A.R. 28-29). 15 16 At the hearing, the ALJ observed that there were no medical 17 records indicating Plaintiff has liver failure or is in need of a 18 liver transplant, and that Plaintiff s doctor diagnosed stage three 19 disease, which connotes cirrhosis but not liver failure (A.R. 29-31). 20 Apparently then retreating from her previous claim of a present need 21 for a liver transplant, Plaintiff seemed to indicate she had been told 22 she would need a liver transplant down the road (A.R. 31). 23 a Disability Report - Appeal form, Plaintiff reported that her only 24 treatment option was a liver transplant (A.R. 171). 25 another Disability Report - Appeal form, Plaintiff reported that as of 26 May 1, 2009, Plaintiff s liver disease was only at stage three (A.R. 27 181). 28 /// 19 Yet, in Yet again, in 1 At one point during the hearing, Plaintiff claimed that she had 2 not seen a doctor because she assertedly does not have insurance (A.R. 3 33). 4 go to an emergency room and be treated without regard to her ability 5 to pay (A.R. 33-35). 6 (A.R. 33). The ALJ observed that if Plaintiff has a treatment need, she can Plaintiff had not been to any emergency room 7 8 9 The ALJ summarized Plaintiff s testimony and statements and found that Plaintiff s medically determinable impairments could reasonably 10 cause Plaintiff s alleged symptoms (A.R. 15). The ALJ found 11 Plaintiff s testimony concerning her limitations less than fully 12 credible, however. The ALJ explained: 13 14 The claimant . . . asserts disability primarily because of 15 her liver disease. 16 2009, where her physician stated that she had stage 3 liver 17 disease after being non-responsive to two courses of 18 treatment. 19 treatment because her blood count was too low. 20 her liver damage is so severe that she must get a liver 21 transplant. 22 cirrhosis, a step before liver cancer, which normally 23 requires a transplant. 24 indicating liver failure or the need for a transplant. 25 has not had any treatment in over a year. 26 the need for a liver transplant, her medical condition never 27 caused her to seek emergency room treatment during that 28 period. Her last treatment note is from May 1, The claimant testified she discontinued She asserted However, stage 3 disease is consistent with There are no medical records She Despite asserting She testified she essentially relies on her sister 20 1 for activities of daily living. 2 limitations. 3 found she was capable of working. 4 depression, but she has not had any mental health treatment 5 and a consultative psychiatric examiner concluded she had at 6 most slight mental work restrictions secondary to her 7 physical complaints. 8 9 However, she overstates her A consultative internal medicine examiner The claimant reported * * * While the claimant asserts side effects from liver 10 treatment, she also overstates her limitations in stating 11 she needs a liver transplant despite no documented need for 12 it and reporting she relies on her sister for virtually 13 everything. 14 not explain the absence of any treatment since May 1, 2009. 15 Further, the claimant s alleged severity of psychiatric 16 complaints never led her to seek mental health treatment. 17 Thus, the claimant s and her sister s statements are not 18 adequately supported by the objective medical evidence. She reported a low blood count, but that does 19 20 (A.R. 15-16). 21 22 Thus, in rejecting Plaintiff s credibility the ALJ essentially 23 relied on: (1) the discrepancy between Plaintiff s testimony 24 concerning her alleged need for a transplant and the medical record, 25 which does not mention any need for a transplant; (2) Plaintiff s lack 26 of medical treatment since May 1, 2009, and lack of any psychiatric 27 treatment despite Plaintiff s complaints of depression; and (3) the 28 apparent inconsistency between Plaintiff s reported limitations and 21 1 the evaluations of the consultative examiners concerning Plaintiff s 2 ability to function. 3 4 As the ALJ correctly pointed out, the medical evidence does not 5 support Plaintiff s testimony that her liver disease is so severe that 6 she must get a liver transplant or she will die. 7 claimant s credibility cannot be rejected on the sole ground that it 8 is not fully corroborated by objective medical evidence, the medical 9 evidence is still a relevant factor. . . . Although a Rollins v. Massanari, 261 10 F.3d 853, 857 (9th Cir. 2001); see also Brawner v. Secretary of Health 11 and Human Services, 839 F.2d 432, 433 (9th Cir. 1987) 12 (misrepresentations made by claimant in the course of pursuing 13 disability benefits justifies rejection of claimant s credibility). 14 At a minimum, Plaintiff exaggerated during some of her testimony (A.R. 15 28, 31). 16 was not credible. 17 1148 (9th Cir. 2001) (claimant s tendency to exaggerate is an adequate 18 reason for rejecting claimant s testimony); Bickell v. Astrue, 343 19 Fed. App x 275, 277-78 (9th Cir. 2009) (same). Such exaggeration supports the ALJ s finding that Plaintiff See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 20 21 Plaintiff s lack of treatment for her psychiatric complaints and 22 failure to seek any treatment of any kind from May 1, 2009 through the 23 hearing date of September 21, 2010, also supports the ALJ s finding 24 that Plaintiff was not credible. 25 medical treatment may discredit a claimant s allegations of disabling 26 symptoms. 27 2004); accord Bunnell v. Sullivan, 947 F.2d 341, 346 (9th Cir. 1991) 28 (failure to seek medical treatment can justify an adverse credibility An unexplained failure to seek See Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 22 1 determination); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989) 2 (same). 3 since May 1, 2009, because she assertedly had no medical insurance, 4 the ALJ was not required to accept Plaintiff s explanation for failing 5 to seek treatment, given: (1) the availability of free or low-cost 6 medical care; and (2) Plaintiff s failure to explain why she had not 7 sought psychiatric care at a time when she was being treated for her 8 liver condition. 9 2007) (failure to obtain treatment did not support adverse credibility While Plaintiff claimed she had not sought liver treatment Compare Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 10 finding where the claimant explained the failure as having resulted 11 from a lack of insurance, and the ALJ did not suggest that this 12 explanation was not believable ) with Flaten v. Secretary of Health & 13 Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995) (upholding an 14 adverse credibility determination where the claimant alleged an 15 inability to pay but had received other medical care during the 16 operative time). 17 claims, one reasonably would expect Plaintiff to have sought 18 psychiatric care at some point, to have sought treatment in hospital 19 emergency rooms, or otherwise to have taken steps to be placed on a 20 liver transplant waiting list. If Plaintiff s conditions were as severe as she 21 22 Finally, the discrepancy between Plaintiff s asserted limitations 23 and the findings of the consultative examiners also supports the ALJ s 24 adverse credibility determination. 25 F.3d 913, 915 (9th Cir. 1998) ( The ALJ s explanation that [the 26 claimant] was not credible was supported by the clear and convincing 27 reason that [the claimant s] testimony contradicts most of the medical 28 evaluations ). See Maier v. Commissioner, 154 Plaintiff essentially reported that she could not 23 1 perform any daily activities beyond personal care. On physical 2 examination, Dr. To reported that Plaintiff showed no signs of 3 abdominal tenderness and had normal muscle tone and mass (A.R. 195- 4 96). 5 194; see also A.R. 139 (listing medications)). 6 reported that she cannot concentrate or remember things (A.R. 135), on 7 examination Dr. Woodard reported that Plaintiff s intellection 8 function is grossly intact but that she may have functional attention 9 deficit and motivational deficit associated with depression and Plaintiff was taking no medications for her alleged pain (A.R. While Plaintiff 10 anxiety (A.R. 191-92). Even with these symptoms, Dr. Woodard opined 11 that Plaintiff has only slight mental impairments (A.R. 192). 12 Plaintiff s testimony contradicted all or virtually all of the medical 13 evaluations regarding her capacity. 14 15 Because the ALJ s credibility findings were sufficiently specific 16 to allow this Court to conclude that the ALJ rejected Plaintiff s 17 testimony on permissible grounds, Moisa v. Barnhart, 367 F.3d 882, 885 18 (9th Cir. 2004), the Court defers to the ALJ s credibility findings. 19 See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th Cir. 2007) (court 20 will defer to ALJ s credibility determination when the proper process 21 is used and proper reasons for the decision are provided); accord 22 Flaten v. Secretary of Health & Human Services, 44 F.3d at 1464. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 24 1 CONCLUSION 2 3 For all of the foregoing reasons, Plaintiff s motion for summary 4 judgment is denied and Defendant s motion for summary judgment is 5 granted.12 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: May 25, 2012. 10 11 _____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 The Court has considered and rejected each of Plaintiff s arguments. Neither Plaintiff s arguments nor the circumstances of this case show any substantial likelihood of prejudice resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 634 F.3d 516, 522-23 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 25

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