Michelle Ward v. Michael J. Astrue, No. 5:2011cv01905 - Document 17 (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 MICHELLE WARD, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. ED CV 11-1905-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on December 2, 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 January 3, 2012. 23 24 Plaintiff filed a motion for summary judgment on May 9, 2012. 25 Defendant filed a cross-motion for summary judgment on June 8, 2012. 26 The Court has taken both motions under submission without oral 27 argument. 28 /// See L.R. 7-15; Order, filed December 5, 2011. 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 Plaintiff alleged that psychiatric problems have disabled her 4 since May 2, 2006 (Administrative Record ( A.R. ) 43-58, 126-36). 5 administrative law judge ( ALJ ) examined the record and heard 6 An testimony from Plaintiff (A.R. 27-275). 7 8 The ALJ found Plaintiff has a severe delusional disorder, but 9 retains the residual functional capacity to perform a full range of 10 work at all exertional levels but with the following nonexertional 11 limitations: unskilled entry-level work in a low-stress nonpublic 12 setting (A.R. 29-30). 13 testimony regarding the severity of her psychological problems (A.R. 14 31-32). The ALJ found not credible Plaintiff s The Appeals Council denied review (A.R. 1-3). 15 16 STANDARD OF REVIEW 17 18 Under 42 U.S.C. section 405(g), this Court reviews the 19 Administration s decision to determine if: (1) the Administration s 20 findings are supported by substantial evidence; and (2) the 21 Administration used correct legal standards. 22 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 23 499 F.3d 1071, 1074 (9th Cir. 2007). 24 relevant evidence as a reasonable mind might accept as adequate to 25 support a conclusion. 26 (1971) (citation and quotations omitted); see also Widmark v. 27 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 28 /// See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 2 1 This Court may not affirm [the Administration s] decision simply 2 by isolating a specific quantum of supporting evidence, but must also 3 consider evidence that detracts from [the Administration s] 4 conclusion. 5 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 6 F.3d 1028 (9th Cir. 2007) (same). 7 findings supported by substantial evidence, even though there may 8 exist other evidence supporting Plaintiff s claim. 9 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 10 933 (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. 11 12 DISCUSSION 13 14 After consideration of the record as a whole, Defendant s motion 15 is granted and Plaintiff s motion is denied. The Administration s 16 findings are supported by substantial evidence and are free from 17 material1 legal error. 18 unavailing.2 19 /// 20 /// 21 /// 22 /// Plaintiff s contrary contentions are 23 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 2 The Court has considered all of Plaintiff s arguments and has found those arguments unpersuasive. The Court discusses Plaintiff s principal arguments herein. 3 1 I. 2 The ALJ Did Not Materially Err in Evaluating Plaintiff s Credibility. 3 4 Plaintiff argues that the ALJ improperly discounted Plaintiff s 5 credibility. An ALJ s assessment of a claimant s credibility is 6 entitled to great weight. 7 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 8 The discounting of a claimant s testimony regarding subjective 9 symptoms must be supported by specific, cogent findings. Anderson v. Sullivan, 914 F.2d 1121, 1124 See Lester 10 v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); see also Berry v. Astrue, 11 622 F.3d 1228, 1234 (9th Cir. 2010) (reaffirming same); but see Smolen 12 v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) (indicating that ALJ 13 must offer specific, clear and convincing reasons to reject a 14 claimant s testimony where there is no evidence of malingering).3 15 Contrary to Plaintiff s arguments, the ALJ stated sufficient reasons 16 for deeming Plaintiff s testimony less than fully credible. 17 /// 18 19 20 21 22 23 24 25 26 27 28 3 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, 659 F.3d 1228, 1234 (9th Cir. 2011); Brown v. Astrue, 405 Fed. App x 230 (9th Cir. 2010); Valentine v. Commissioner, 574 F.3d 685, 693 (9th Cir. 2009); Carmickle v. Commissioner, 533 F.3d at 1160; Lingenfelter v. Astrue, 504 F.3d at 1036; Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting cases). Plaintiff invokes the clear and convincing standard, but Defendant argues that there is evidence of malingering, citing Dr. McDaniel s concern that the results of Plaintiff s psychodiagnostic testing may be invalid due to an attempt to fake bad or due to psychotic thinking (A.R. 216). For the reasons discussed infra, the ALJ s findings suffice under either the specific, cogent standard or the clear and convincing standard, so the distinction between the two standards (if any) is academic. 4 1 The ALJ properly discerned dramatic inconsistencies between 2 Plaintiff s testimony regarding her supposed inability to function and 3 reports regarding how Plaintiff actually has functioned (A.R. 30-31). 4 At the June 21, 2010 hearing before the ALJ, Plaintiff testified she 5 had been essentially functionless for at least three years: never 6 going grocery shopping; never working around the house; and not 7 really doing any cooking or housekeeping (A.R. 51, 55-56). 8 claimed she supposedly cannot work with people (because she is afraid 9 of people), and cannot work apart from people (because I can t be Plaintiff 10 alone. . . . My husband or my kids are usually always with me ) (A.R. 11 50). 12 that Plaintiff ran errands, made dinner, did dishes and vacuumed (A.R. 13 157, 159). 14 did not need anyone to accompany her when she went on errands (A.R. 15 160-61). 16 reported to a consultative examiner in November of 2008 that [s]he 17 drives herself and that I am alone most of the time (A.R. 230). 18 Inconsistencies between a claimant s claimed symptoms and her actual 19 activities can support the rejection of a claimant s credibility. 20 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) 21 (inconsistency between the claimant s testimony and the claimant s 22 conduct supported the rejection of the claimant s credibility); see 23 also Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 24 (inconsistencies between claimant s testimony and actions cited as a 25 clear and convincing reason for rejecting the claimant s testimony). By contrast, Plaintiff s husband reported in September of 2008 He also reported that Plaintiff shopped for groceries and Despite telling the ALJ I can t be alone, Plaintiff 26 27 28 At a minimum, the ALJ properly concluded that Plaintiff was exaggerating her symptoms. Such exaggeration supports the ALJ s 5 See 1 finding that Plaintiff was not credible. See, e.g., Tonapetyan v. 2 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (claimant s tendency to 3 exaggerate is an adequate reason for rejecting claimant s testimony); 4 Bickell v. Astrue, 343 Fed. App x 275, 277-78 (9th Cir. 2009) (same). 5 6 The ALJ also cited the lack of objective medical evidence, 7 including a relative lack of treatment, as a reason to discount the 8 credibility of Plaintiff s testimony. 9 credibility cannot be rejected on the sole ground that it is not Although a claimant s 10 fully corroborated by objective medical evidence, the medical evidence 11 is still a relevant factor. . . . 12 853, 857 (9th Cir. 2001); see Bunnell v. Sullivan, 947 F.2d 341, 346 13 (9th Cir. 1991) (failure to seek medical treatment can justify an 14 adverse credibility determination); Fair v. Bowen, 885 F.2d 597, 603- 15 04 (9th Cir. 1989) (same).4 Rollins v. Massanari, 261 F.3d 16 17 Thus, the ALJ stated sufficient reasons to allow this Court to 18 conclude that the ALJ discounted Plaintiff s credibility on 19 permissible grounds. See Moisa v. Barnhart, 367 F.3d 882, 885 (9th 20 21 4 22 23 24 25 26 27 28 The Ninth Circuit sometimes has criticized the Administration s reliance on a claimant s failure to seek treatment for a mental disorder. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1465 (9th Cir. 1996). In the present case, the ALJ relied on other factors as well, such as a relative lack of treatment even after Plaintiff sought treatment and, as previously discussed, dramatic inconsistencies between Plaintiff s testimony and Plaintiff s reported activities. Accordingly, this Court discerns no material error in the ALJ s credibility analysis. Cf. Ludwig v. Astrue, 2012 WL 1959245, at *6 (9th Cir. June 1, 2012) (ALJ s consideration of erroneous factor deemed harmless where claimant s testimony was dramatically inconsistent with claimant s previous statements). 6 1 Cir. 2004). The Court therefore defers to the ALJ s credibility 2 determination. 3 Cir. 2007) (court will defer to ALJ s credibility determination when 4 the proper process is used and proper reasons for the decision are 5 provided); accord Flaten v. Secretary of Health & Human Services, 44 6 F.3d 1453, 1464 (9th Cir. 1995). See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th 7 8 II. 9 The ALJ Did Not Materially Err in Evaluating the Medical Evidence. 10 11 Substantial medical evidence supports the conclusion Plaintiff 12 can work. Dr. Bagner, an examining psychiatrist, opined in 13 November 2, 2008, that Plaintiff retains a residual functional 14 capacity consistent with that which the ALJ found to exist (A.R. 229- 15 32). 16 ALJ s decision.5 17 (consulting examiner s opinion is substantial evidence that can 18 support an ALJ s finding of nondisability); see also Orn v. Astrue, 19 495 F.3d 625, 632 (9th Cir. 2007) (examining physician s independent 20 clinical findings are substantial evidence). This opinion constitutes substantial evidence supporting the See Tonapetyan v. Halter, 242 F.3d at 1149 21 22 Non-examining psychiatrists Dr. Amado and Dr. Gregg opined in 23 November of 2008 and April of 2009, respectively, that Plaintiff s 24 alleged psychiatric problems are not disabling (A.R. 233-51, 258-59). 25 These opinions provide additional support for the ALJ s decision. 26 27 28 5 Dr. Bagner s opinion predated the ALJ s decision by almost two years, but post-dated Plaintiff s claimed disability onset by more than two years. 7 See 1 Tonapetyan v. Halter, 242 F.3d at 1149 (non-examining physician s 2 opinion may constitute substantial evidence when opinion is consistent 3 with independent evidence of record); Lester v. Chater, 81 F.3d at 831 4 (same). 5 6 Plaintiff argues that the ALJ erred in discounting evidence from 7 Plaintiff s treating physicians. An ALJ may not reject a contradicted 8 opinion by a claimant s treating physician without setting forth 9 specific, legitimate reasons for doing so. Winans v. Bowen, 853 10 F.2d 643, 647 (9th Cir. 1987); Orn v. Astrue, 495 F.3d at 631-33. In 11 the present case, however, none of Plaintiff s treating physicians 12 appear to have offered any specific opinion regarding Plaintiff s 13 capacity to perform work. 14 any need for the ALJ to set forth specific, legitimate reasons with 15 respect to evidence from Plaintiff s treating physicians. 16 ex rel. Hollon v. Commissioner, 447 F.3d 477, 491 (6th Cir. 2006) 17 (court rejected claimant s suggestion that the ALJ failed to give 18 proper deference to the opinions of claimant s treating physicians 19 where the claimant failed to specify the particular opinion(s) that 20 the ALJ purportedly disregarded or discounted). Hence, there does not appear to have been Cf. Hollon 21 22 In any event, to the extent one might interpret evidence from 23 Plaintiff s treating physicians as implying an inability to work, the 24 ALJ stated specific, legitimate reasons for reaching a contrary 25 conclusion. 26 treatment and an absence of supporting treatment records (A.R. 32). 27 Such reasons can suffice to reject treating physicians opinions. 28 Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 1992) ( The ALJ For example, the ALJ noted a relative lack of regular 8 See 1 need not accept an opinion of a physician even a treating physician 2 if it is conclusionary and brief and is unsupported by clinical 3 findings ); Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) 4 (ALJ can meet requirement to set forth specific, legitimate reasons 5 by setting out a detailed and thorough summary of the facts and 6 conflicting clinical evidence, stating his interpretation thereof and 7 making findings ) (citations and quotations omitted); see also Bayliss 8 v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction 9 between treating physician s assessment and clinical notes justifies 10 rejection of assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 11 (9th Cir. 2004) ( an ALJ may discredit treating physicians opinions 12 that are conclusory, brief, and unsupported by the record as a whole 13 . . . or by objective medical findings ); Connett v. Barnhart, 340 14 F.3d 871, 875 (9th Cir. 2003) (treating physician s opinion properly 15 rejected where treating physician s treatment notes provide no basis 16 for the functional restrictions he opined should be imposed on [the 17 claimant] ).6 18 19 It might be argued that the ALJ should have recontacted 20 Plaintiff s treating physicians to seek additional documentation or 21 greater clarity concerning these physicians opinions. 22 this purpose would be inappropriate, however, because Plaintiff has 23 failed to carry her burden of showing a substantial likelihood of 24 prejudice resulting from the ALJ s failure to re-contact the treating 25 physicians. Remand for See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 26 6 27 28 Reliance on Plaintiff s subjective complaints could not justify an implied finding of disability, given the ALJ s proper discounting of those subjective complaints. See Tonapetyan v. Halter, 242 F.3d at 1149; Fair v. Bowen, 885 F.2d at 605. 9 1 2011) (claimant bears the burden of showing a substantial likelihood 2 of prejudice from the Administration s errors). 3 this case show no substantial likelihood of prejudice. The circumstances of See id. 4 5 To the extent the record contains conflicting evidence, it was 6 the prerogative of the ALJ to resolve the conflicts. See Lewis v. 7 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). 8 evidence is susceptible to more than one rational interpretation, 9 the Court must uphold the administrative decision. Where, as here, the See Andrews v. 10 Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108 12 F.3d 978, 980 (9th Cir. 1997). 13 14 15 CONCLUSION 16 17 For all of the foregoing reasons, Plaintiff s motion for summary 18 judgment is denied and Defendant s motion for summary judgment is 19 granted. 20 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 23 DATED: June 13, 2012. 24 25 26 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 27 28 10
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