Deborah A Olguin v. Michael J Astrue, No. 5:2011cv01802 - Document 19 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Oswald Parada: Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this actionwith prejudice. (am)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 DEBORAH A. OLGUIN, ) Case No. EDCV 11-1802-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION AND ) ORDER MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) 17 The Court1 now rules as follows with respect to the disputed issues listed in 18 the Joint Stipulation ( JS ).2 19 / / / 20 / / / 21 / / / 22 23 24 25 1 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the United States Magistrate Judge in the current action. (See ECF Nos. 6, 11.) 2 As the Court stated in its Case Management Order, the decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint 27 Stipulation filed by the parties. In accordance with Rule 12(c) of the Federal Rules 28 of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). (ECF No. 4 at 3.) 26 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by Plaintiff as 4 the grounds for reversal and/or remand are as follows: 5 (1) the findings of Plaintiff s treating physician; and 6 7 Whether the Administrative Law Judge ( ALJ ) properly considered (2) Whether the Vocational Expert ( VE ) provided an adequate basis for her opinion regarding alternative work. 8 9 (JS at 8.) 10 II. 11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 13 to determine whether the Commissioner s findings are supported by substantial 14 evidence and whether the proper legal standards were applied. DeLorme v. 15 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 16 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 17 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 18 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 19 evidence is such relevant evidence as a reasonable mind might accept as adequate 20 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 21 Court must review the record as a whole and consider adverse as well as 22 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 23 Where evidence is susceptible of more than one rational interpretation, the 24 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 25 (9th Cir. 1984). 26 / / / 27 / / / 28 / / / 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has severe physical impairments, including 5 hypertension, history of hypothyroidism, liver cirrhosis with esophageal varices 6 and history of esophageal bleeding, irregular heartbeat, history of diabetes, and 7 history of anemia. (AR at 17.) The ALJ further found that Plaintiff had the 8 residual functional capacity ( RFC ) to perform light work, limited by the 9 following accommodations: lift and carry ten pounds frequently and twenty pounds 10 occasionally; stand and walk up to four hours in an eight-hour day but no more 11 than fifteen minutes at a time; sit unrestricted with normal breaks; occasionally 12 climb, balance, stoop, kneel, crouch, and crawl; work absence once or twice a 13 month; and no detailed or complex tasks. (Id. at 18.) Relying on the testimony of 14 the VE, the ALJ determined that Plaintiff was unable to perform her past relevant 15 work as a property manager, but could perform alternative work as a case aide. 16 (Id. at 20-21.) 17 B. The ALJ Properly Rejected the Opinion of the Treating Liver 18 Specialist. 19 Plaintiff contends that the ALJ erred in giving no weight to the functional 20 capacity assessment of Plaintiff s treating liver specialist, Mohamed El-Kabany, 21 M.D. (JS at 8-10.) 22 On March 15, 2011, after seeing Plaintiff just two times (AR at 75), Dr. El- 23 Kabany signed a boilerplate form reading as follows: 24 Mr./Ms. Olguin, Deborah, DOB: 12/31/ 3, has been under m care since 5 y 25 __/__/__. He/She has liver failu 26 cirrhosis with ascites, enceph alopathy and/or coagulopathy. His/Her 27 prognosis is poor without liver tran 28 terminal condition, he/she cannot work 40 hours/week, lift objects (>10 re manifested by decompensated 3 splantation. Based on his/her 1 lbs), perform job duties requiring intellectual skills, operate machinery 2 or drive an automobile. 3 (Id. at 472.) 4 In his decision, the ALJ offered the following discussion of the opinion 5 evidence: 6 As for the opinion evidence, the undersigned gives great weight to the 7 State agency m edical consultants opinion. It is consistent with Dr. 8 Siciarz s functional assessment of light work. Treatment records show 9 office visits and prescribed m edication for physical ailm ents without 10 adequate objective medical evidence to support an inability to sustain a 11 40-hour workweek on a regular and continuing basis or perform even 12 sedentary work, as Dr. El-Kabany m entioned. For that reason, the 13 undersigned gives little weight to Dr . El-Kabany s overly restrictive 14 assessment. Additionally, the cl aimant acknowledged she m anages 15 personal needs independently, performs household chores, drives, and 16 goes shopping. 17 (Id. at 19.) 18 It is well established in the Ninth Circuit that a treating physician s opinion 19 is entitled to special weight, because a treating physician is employed to cure and 20 has a greater opportunity to know and observe the patient as an individual. 21 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). In addition, more 22 weight is generally given to the opinion of a specialist about medical issues related 23 to his or her area of specialty than to the opinion of a source who is not a specialist. 24 See 20 C.F.R. § 404.1527(d)(5). The treating physician s opinion is not, 25 however, necessarily conclusive as to either a physical condition or the ultimate 26 issue of disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The 27 weight given a treating physician s opinion depends on whether it is supported by 28 sufficient medical data and is consistent with other evidence in the record. 20 4 1 C.F.R. §§ 404.1527(d), 416.927(d). Where the treating physician s opinion is 2 uncontroverted by another doctor, it may be rejected only for clear and 3 convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. 4 Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating physician s opinion 5 is controverted, as will be assumed to be the case here, it may be rejected only if 6 the ALJ makes findings setting forth specific and legitimate reasons that are based 7 on the substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th 8 Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 9 Cir. 1987). The ALJ can meet this burden by setting out a detailed and thorough 10 summary of the facts and conflicting clinical evidence, stating his interpretation 11 thereof, and making findings. Thomas, 278 F.3d at 957 (citation and quotation 12 omitted). 13 First, Dr. El-Kabany s opinion is not supported by the remainder of the 14 medical record. While Dr. El-Kabany s generic form indicates that Plaintiff 15 suffers from a terminal condition that necessitates a liver transplant, there is no 16 support for this in the record. On November 19, 2009, a gastroenterology 17 treatment note indicated that Plaintiff was clinically doing well. (AR at 355.) In 18 addition, a August 26, 2010, gastroenterology note reported that Plaintiff was 19 suffering no symptoms from her cirrhosis. (Id. at 333.) Most telling of the status 20 of Plaintiff s liver disease is the repeated reports of Plaintiff s Model for End-Stage 21 Liver Disease ( MELD ) score of 13. (Id. at 347, 355, 470.) The MELD scale 22 ranges from 6 (less ill) to 40 (gravely ill), and, generally, liver patients are not 23 activated for transplant until the MELD score reaches 15. See United Network for 24 Organ Sharing Policy For Allocation of Donated Liver Organs, Policy 3.6, 25 http://optn.transplant.hrsa.gov/organDatasource/OrganSpecificPolicies.asp? 26 display=Liver (follow pdf hyperlink for policy 3.6, Organ Distribution: Allocation 27 of Livers); www.unos.org/docs/MELD_PELD.pdf). In addition, Plaintiff was 28 assessed a Child-Pugh rating of A, the least severe rating possible under the Child5 1 Pugh scale for assessing liver disease and not sufficient for listing of the patient for 2 liver transplantation. See Harrison s Manual of Medicine 17/e, Table 163-3: 3 Child-Pugh Classification of Cirrhosis, http://harrisons.unboundmedicine.com/ 4 harrisons/ub/index/Harrisons-Manual-of-Medicine/ (follow Tables hyperlink; 5 then follow Cirrhosis, Child-Pugh Classification of hyperlink). Ultimately, there 6 is no evidence in the record to support Dr. El-Kabany s severely restricted physical 7 assessment of Plaintiff. In fact, all of the evidence is to the contrary. 8 In addition, the ALJ correctly pointed out that Plaintiff s admitted activities 9 of daily living far surpass the limitations noted by Dr. El-Kabany. According to 10 the Exertion Questionnaire authored by Plaintiff, since being diagnosed with liver 11 disease, she has remained capable of household shopping about three times a week, 12 laundry, driving 10 to 15 hours a week, and other household duties. (AR at 32, 40, 13 238-40.) She is capable of lifting a vacuum and a gallon of milk, and requires only 14 a 30-minute rest period during the day. (Id. at 89, 239, 240.) These activities are 15 not supportive of the level of restriction assessed by Dr. El-Kabany. 16 Accordingly, the Court finds that the ALJ rejected the generic assessment by 17 Dr. El-Kabany on the basis of specific and legitimate reasons supported by 18 substantial evidence in the record. Thus, there was no error. 19 C. The VE s Testimony Was Properly Supported. 20 Plaintiff argues that the VE did not provide an adequate basis for her 21 testimony regarding alternative work because she had not personally observed the 22 job of case aide before offering her opinion that Plaintiff was capable of 23 performing such work. In addition, Plaintiff argues that the VE erroneously 24 concluded that Plaintiff had transferrable skills from her past employment because 25 the specified skills were merely aptitudes. Plaintiff also complains that the VE 26 erred in concluding Plaintiff could perform the job of case aide because it was not 27 in the same industry as her past work of property manager. Finally, Plaintiff 28 6 1 complains that the VE s reduction in the numbers of the case aide jobs to 2 compensate for Plaintiff s limitations were unfounded. (JS at 14-18.) 3 The VE testified that in light of Plaintiff s RFC and past job experience, she 4 would be capable of performing work as a case aide. (AR at 99-100.) The VE 5 further explained that her opinion was mostly consistent with the Dictionary of 6 Occupational Titles ( DOT ), but gave very detailed explanations for how it varied 7 and how she came to the conclusion that Plaintiff could perform such work. (Id. at 8 101-04.) Plaintiff s counsel pressed the VE on the fact that the DOT specification 9 for the case aide job requires a higher level of functioning than that of Plaintiff, 10 asking the VE if she had seen this case aide job in and of itself performed at less 11 than what the DOT specifies it being demanded. (Id. at 102.) The VE responded 12 as follows: It, it runs a variety, and no, I ve not seen -- I ve not gone to an 13 14 office and sat there and visualized it, that s not part of a requirement of 15 a vocational expert. But I do keep up on all of the latest and greatest 16 documents, and periodicals, and publications that come out in my field. 17 (Id.) 18 The VE further testified that Plaintiff had the following skills that would 19 transfer from her past work as a property manager to alternate work as a case aide: Oh, very low level; very basic decision-m 20 aking skills, 21 communication skills, the ability to workeffectively with the public and 22 professionals, ability to work within an office, using office equipment. 23 I hope I mentioned decision-m aking skills, organizational planning skills 24 -- 25 (Id. at 100.) 26 After an ALJ determines that a claimant cannot perform past relevant work 27 at step four, the ALJ must determine if the claimant can perform work in the 28 national economy at step five. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). 7 1 A VE s recognized expertise provides the requisite foundation for her testimony. 2 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). An ALJ may take 3 administrative notice of any information the VE provides, including testimony 4 addressing the number of available jobs. Johnson v. Shalala, 60 F.3d 1428, 1435 5 (9th Cir. 1995). 6 An ALJ may not rely on a VE s testimony regarding the requirements of a 7 particular job, however, without first inquiring whether the testimony conflicts 8 with the DOT, and if so, the reasons for the conflict. Massachi v. Astrue, 486 F.3d 9 1149, 1152 53 (9th Cir. 2007) (citing Social Security Ruling 00 4p). In order for 10 an ALJ to accept VE testimony that contradicts the DOT, the record must contain 11 persuasive evidence to support the deviation. Pinto v. Massanari, 249 F.3d 840, 12 846 (9th Cir. 2001) (quoting Johnson, 60 F.3d at 1435). Evidence sufficient to 13 permit such a deviation may be either specific findings of fact regarding the 14 claimant s residual functionality, or inferences drawn from the context of the 15 expert s testimony. Light v. Soc. Sec. Admin., 119 F.3d 789, 793 (9th Cir.), as 16 amended (1997). 17 Here, Plaintiff did not object to the qualifications of the VE and has not cited 18 any authority requiring that the VE personally observe every job to which the VE 19 refers. To be sure, the VE exhibited an extensive understanding of the job of case 20 aide and thoroughly explained its requirements. In addition, the VE detailed her 21 opinion as to how Plaintiff could perform the job of case aide despite the variations 22 with the DOT. Furthermore, the VE explained the erosion of available positions 23 that would be available to Plaintiff in light of her RFC. The VE established more 24 than sufficient qualifications to form the basis of her opinion regarding the case 25 aide position, despite never having personally observed the job being performed. 26 Moreover, the VE properly found that Plaintiff had transferable skills that 27 would assist her in performing the job of case aide. While an aptitude is an 28 inclination, a natural ability, talent, or capacity for learning, see Webster s New 8 1 World Dictionary 68 (3d ed. 1988), a skill is a learned power for doing something 2 competently. 3 Soc. Sec. Law & Practice § 43:72 (1999). In contrast to basic 3 human traits such as perception and motor skills, the abilities identified by the VE 4 constitute vocational assets learned at Plaintiff s past job and, thus, were properly 5 classified as transferable skills. Compare Paulson v. Bowen, 836 F.2d 1249, 12516 52 (9th Cir. 1988) (holding that [t]he qualities of perception and motor 7 coordination are abilities and aptitudes and not skills); see also Anglin v. 8 Massanari,18 Fed. App x 551, 553 (9th Cir. 2001) (finding that knowledge of 9 office procedures (i.e., responding to telephone inquiries and knowledge of 10 different filing and distribution methods), calculating, posting, and verifying 11 financial data, and recording and retrieving data amounted to transferable skills, 12 not aptitudes). 13 Next, Plaintiff is misguided in arguing that the job of case aide was not in 14 the same industry as her past work of property manager. In identifying the job of 15 appointment clerk, the VE testified that the DOT code for appointment clerk 16 differs sufficiently [from property manager] to indicate it s in a different 17 industry. (AR at 98.) The VE clarified that the job of appointment clerk would 18 be clerical versus professional technical management. (Id.) She further 19 explained that, in her opinion, Plaintiff s skills would transfer well to the job of 20 appointment clerk, [b]ut if somebody really wanted to hold my feet to the fire I 21 would have to say it s a different industry. (Id.) To the contrary, when the VE 22 identified the job of case aide, she explained that it s a closer match than 23 appointment clerk, actually, because it s still in the 100 first three digits of the 24 [DOT]. (Id. at 99.) The VE never testified that the jobs of case aide and property 25 manager, being so close to one another in the DOT listing, were in different 26 industries, and Plaintiff had not presented any evidence to support such a finding. 27 Finally, Plaintiff s claim fails to the extent she argues that the VE provided 28 no foundation for the erosion on numbers of case aide jobs that would be available 9 1 to Plaintiff on the basis of her physical limitations. Plaintiff fails to recognize that 2 the VE s expertise alone provided the basis for such testimony. Bayliss, 427 F.3d 3 at 1218 (VE s recognized expertise provides the necessary foundation for his or 4 her testimony ); Johnson, 60 F.3d at 1435 (ALJ may take administrative notice of 5 VE testimony addressing the number of available jobs). 6 Because the VE provided sufficient testimony and maintained the 7 appropriate expertise to support her testimony, the Court finds that the ALJ 8 properly relied on the expert testimony regarding alternative work. Thus, there 9 was no error. 10 IV. 11 ORDER 12 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be 13 entered affirming the decision of the Commissioner, and dismissing this action 14 with prejudice. 15 16 Dated: October 1, 2012 17 HONORABLE OSWALD PARADA United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 10
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
