Diana L. Dauenhauer v. Michael J. Astrue, No. 5:2012cv00375 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court finds that the ALJ articulated sufficient reasons to depreciate Plaintiff's credibility, and thus, rejects Plaintiff's contention of error in her second issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 DIANA L. DAUENHAUER, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-00375-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) erred in 1 rejecting the opinions of treating rehabilitation specialist 2 Goodlow and examining psychologist Berg; and 3 2. 4 Whether substantial evidence supports the ALJ s finding that Plaintiff s subjective testimony is not credible. (JS at 7.) 5 6 This Memorandum Opinion will constitute the Court s findings of 7 fact and conclusions of law. After reviewing the matter, the Court 8 concludes that the decision of the Commissioner must be affirmed. 9 10 I 11 THE ALJ CORRECTLY ASSESSED THE OPINIONS OF DRS. GOODLOW AND BERG 12 In her first issue, Plaintiff contends that the ALJ erred in 13 assessing the opinions of Dr. Goodlow, a rehabilitation specialist, 14 and Dr. Berg, an examining psychologist ( CE ). 15 address these in turn. The Court will 16 The ALJ determined that Plaintiff has the following severe 17 impairments: kidney stones with chronic abdominal pain; a somatoform 18 disorder; 19 personality 20 borderline traits. (AR 22.) depressive disorder disorder with not otherwise schizoid, specified avoident, ( NOS ); histrionic, and 21 Based on evaluation of the entire record, the ALJ determined that 22 Plaintiff s residual functional capacity ( RFC ) allows her to perform 23 less than a full range of medium work, but allows Plaintiff to lift 24 and/or carry 50 pounds occasionally and 25 pounds frequently; push and 25 pull within the same weight limits; stand and/or walk for six hours 26 out of an eight-hour workday with regular breaks; sit for six hours 27 out of an eight-hour workday with regular breaks; and frequently climb 28 2 1 stairs, stoop, kneel, and crouch.1 2 The ALJ noted that Plaintiff has a history of kidney stones with 3 abdominal pain, diverticulosis, and irritable bowel syndrome. (AR 26.) 4 Examining physicians Drs. Kestenbaum and Atchison found no clear cause 5 for Plaintiff s pain in her gastrointestinal system. (AR 277-280.) 6 Plaintiff continually complained of abdominal pain, and was prescribed 7 medication and exercise. 8 unremarkable colon. (AR 736-737.) In August 2009, medical imaging showed an 9 After not seeing a physician between June and October 2008, 10 Plaintiff saw Dr. Goodlow on October 8, 2008. (AR 402-403.) Plaintiff 11 exhibited some tenderness during the examination, but otherwise there 12 were overall normal results. (Id.) 13 Plaintiff should receive medication and a back brace and return for a 14 followup in four weeks. (Id.) 15 Dr. Goodlow prescribed that Plaintiff received imaging of her kidney, ureter, and bladder in 16 November 2008 which yielded unremarkable results. (AT 434-435.) 17 still complained of abdominal pain through August 2009 but again, the 18 examination findings and the treatment that was prescribed did not 19 change. (AR 406.) 20 She In November 2009, at her own request, a physician cleared 21 Plaintiff to return to work at full capacity. She had no complaints 22 of pain at that time. (AR 664, 711.) 23 seen by Dr. Anderson as to her complaints of pain, but the examination 24 was overall normal. (AR 737-738.) In January 2010, Plaintiff was 25 In May 2010, a urologist, Dr. Prusa, examined Plaintiff in 26 connection with her kidney stone issue and reported an overall normal 27 1 28 The non-exertional discussed infra. portion 3 of Plaintiff s RFC will be 1 examination. 2 but admitted she never actually saw any. (AR 726.) 3 shown one to two millimeter renal stones but they were in a non- 4 obstructing position which could not cause pain. 5 ALJ determined that Plaintiff s symptoms and her complaints were 6 adequately addressed by conservative treatment. 7 Plaintiff told Dr. Prusa that she passes kidney stones, A recent test had Based on this, the On May 30, 2009, Dr. Idos performed an internal medicine CE. (AR 8 632-639.) Plaintiff complained that she had abdominal pain, reported 9 that she took medication, acupuncture and physical therapy, and that 10 she had some medication side effects of constipation. (Id.) 11 examination, however, Plaintiff did not appear to be in any acute 12 distress and had only slight tenderness to palpitation in the abdomen. 13 She had normal range of motion in her back and in her upper and lower 14 extremities. 15 full motor strength, intact sensation, normal reflexes and normal 16 gait. (AR 634-635.) 17 opinion that Plaintiff could lift or carry 50 pounds occasionally and 18 25 pounds frequently; and other than some limitation in pushing and 19 pulling, bending, stooping, crouching and climbing, could perform the 20 functions required in a full time workday. (AR 637.) 21 On Neurologically, she retained good muscle control and Based on these findings, Dr. Idos rendered the Similarly, two State Agency reviewing physicians opined that 22 Plaintiff 23 limitations. (AR 651-655, 656-657, 659-660.) 24 could perform medium work with occasional postural Based on this evidence, the ALJ rejected the conclusion of Dr. 25 Goodlow that Plaintiff was disabled. 26 Decision, Dr. Goodlow submitted a Multiple Impairment Questionnaire 27 dated March 9, 2011, which opined that Plaintiff was effectively 28 disabled based on an ability to sit, stand and walk for only one hour, 4 After the ALJ rendered his 1 occasionally lift and carry ten pounds, and would miss more than three 2 days of work a month due to her impairments over a twelve-month or 3 more period. (AR 777-785.) 4 was reviewed by the Appeals Council, which found no reason to overturn 5 the ALJ s Decision. (AR 1-6.) The ALJ did not review this form, but it 6 The ALJ found Dr. Goodlow s opinion to be unsupported by and 7 inconsistent with the overall clinical medical evidence in the record. 8 (AR 28.) 9 evaluating all medical evidence in the record. It is fundamental that the ALJ must perform the function of As summarized above, 10 there is ample medical evidence in the record to rebut Dr. Goodlow s 11 conclusion that Plaintiff is disabled. 12 questionnaire, even if it had been considered by the ALJ (and it was 13 considered 14 inconsistent conclusions. In that questionnaire Dr. Goodlow indicated 15 that Plaintiff had back spasms, loss of lumbar curvature, and back 16 pain, and that she was limited in her manipulative activities. (AR 17 778-779, 782.) 18 extensive file which indicate any complaints as to back pain or 19 limitations due to this issue, or problems with her hands in terms of 20 an ability to perform manipulative activities. (See AR 635, Report of 21 Dr. Idos showing No muscle spasm in the back, straight leg raising 22 test is negative, and normal range of motion in the back.) 23 treatment records indicate no evidence of such reported problems by 24 Dr. 25 indicated in the questionnaire that he based his diagnosis on a colon 26 barium enema. (AR 779.) 27 unremarkable results. (AR 700.) 28 by Goodlow. the Appeals Council), Moreover, the March 2011 contains several internally Yet, there are no medical records in Plaintiff s very Further, as the Commissioner notes, Dr. The Goodlow The actual results of that test revealed It was not incumbent upon the ALJ to simply accept the opinion of 5 1 Dr. Goodlow. Rather, he was obliged to examine all the evidence in 2 the record, a substantial amount of which was contradictory to Dr. 3 Goodlow s conclusions, as the Court has noted. 4 rejection of Dr. Goodlow s opinion is supported by the medical 5 evidence. All in all, the ALJ s 6 Plaintiff also contends that the ALJ improperly rejected the 7 opinion of Dr. Berg as to Plaintiff s mental residual functional 8 capacity ( MRFC ). 9 The ALJ limited Plaintiff to non-public, simple, repetitive tasks 10 and limited 11 supervisors. 12 require hypervigilance. (AR 23.) 13 her to non-intense interaction with co-workers and She was precluded from fast-paced work and tasks that The foregoing MRFC is supported by substantial evidence in the 14 record, which the Court will briefly summarize. First, Plaintiff 15 received no apparent psychiatric care from November 2007 to January 16 2010. 17 upon this lack of treatment, especially in the mental health context, 18 the Court disagrees that this conclusion is mandated in this case. 19 Plaintiff very actively sought treatment from Kaiser Permanente for 20 all sorts of other ailments during the relevant period of time, and, 21 as the ALJ noted, Plaintiff realized that she was depressed because of 22 her physical limitations. (AR 24.) 23 Plaintiff actively sought treatment for her physical conditions, but 24 not for any mental depression or other condition. 25 disability statement of Dr. Berg, who examined Plaintiff on May 20, 26 2010 27 Questionnaire form on May 27, 2010 (AR 29, 717-724), it was the ALJ s 28 conclusion that Dr. Berg s examination findings were largely benign, While Plaintiff s counsel asserts that the Court cannot rely and completed a It is untenable to assert that Considering the Psychiatric/Psychological 6 Impairment 1 and he noted that Plaintiff reported to Dr. Berg that she could do 2 daily 3 dishwasher 4 Plaintiff is unable to work a full time job, rating her limitations as 5 marked in her ability to get along with coworkers and moderately 6 limited in most other areas. 7 Plaintiff would miss more than three workdays per month. (Id.) 8 ALJ indicated that Dr. Berg s limitations were inconsistent with his 9 own findings and not supported by other medical source opinions activities and including quilting. preparing Dr. Berg breakfast, indicated unloading the opinion that his It was Dr. Berg s conclusion that The 10 discussed in the Decision. The ALJ gave greatest weight to the 11 opinion of the medical expert ( ME ), Dr. Glassmire, who is board 12 certified in forensic psychology. 13 opinion of the consultative psychiatric examiner ( CE ), Dr. Andia. 14 (Id.) Some weight was given to the 15 With regard to the mental health evidence in the record, a mental 16 status exam performed at Kaiser Permanente in October 2007 indicated 17 that despite Plaintiff s complaints of anxiety, depression, fatigue, 18 and poor concentration, she was treated with medication and had, upon 19 examination, appropriate mood, normal speech, vocabulary, cooperative 20 behavior, was alert and oriented, could abstract and generalize at the 21 average level, had intact memory both recent and remote, and no 22 homicidal or suicidal ideation. 23 The aforementioned psychiatric CE with Dr. Andia was also relied 24 upon by the ALJ, who noted that Dr. Andia took a mental health history 25 from Plaintiff, reported on mental status examination that she had a 26 mildly 27 unremarkable findings. (AR 27, 626-628.) 28 Andia that she could do normal activities of taking care of herself. depressed and anxious mood, 7 but otherwise there were Plaintiff reported to Dr. 1 (Id.) She could drive a car, had various hobbies, could handle 2 finances, was able to go out alone, had reasonably good relationships 3 with 4 attention, completing household tasks, or making decisions. (Id.) 5 Based on all this, Dr. Andia rendered the opinion that Plaintiff was 6 able to understand, remember and carry out simple and detailed 7 instructions; relate and interact with coworkers and the public; could 8 maintain concentration and attention; and was able to perform day-to- 9 day work activities and accept instructions from a supervisor. (AR friends and family, and had no difficulty with focusing 10 629.) 11 Dr. Andia based on treatment records and Plaintiff s own testimony. 12 (AR 13 conclusions, because they were inconsistent with his overall benign 14 examination findings. (AR 29.) 15 to the opinion of the testifying ME who had reviewed the file. 16 Glassmire testified that Plaintiff had only mild limitations in her 17 activities of daily living and in concentration, persistence or pace; 18 moderate difficulties in social functioning; and no episodes of 19 decompensation. (AR 41.) 20 Drs. Berg and Andia in reaching his conclusions. 21 The ALJ actually assessed greater mental limitations than did 30.) Essentially, the ALJ rejected Further, the Dr. Berg s diagnostic ALJ gave greatest weight Dr. Dr. Glassmire relied on the examinations of The resolution of any conflicts in the evidence was a matter for 22 the ALJ s determination, and here, the Court concludes that 23 substantial evidence supports the ALJ s conclusions which rejected Dr. 24 Berg s disability findings. 25 26 II 27 THE ALJ PROPERLY DETERMINED PLAINTIFF S CREDIBILITY 28 The ALJ partially depreciated Plaintiff s credibility as to her 8 1 subjective symptoms, and explained the reasons in the Decision. (AR 2 23-25.) Plaintiff contends that the ALJ s reasoning is inadequate and 3 legally insufficient. The question for the Court is whether the ALJ s 4 specific credibility findings are entitled to deference. 5 Bowen, 885 F.2d 597, 603 (9th Cir. 1989); Social Security Ruling 6 ( SSR ) 96-7p. 7 in his Decision. 8 not fully support her complaints. 9 contradiction between subjective pain complaints and objective medical 10 evidence is not permissible as the sole basis for depreciating 11 credibility, but it is one factor which can be considered. 12 has already summarized the medical evidence, and will not do so again. 13 Suffice it to say that there is a rational basis to find a disconnect 14 or at least contradiction between Plaintiff s severe disabling pain 15 complaints and the objective medical evidence in the record. Further, 16 as the Court has already noted, in November 2009, at her own request, 17 Plaintiff was cleared to return to work at full capacity. See Fair v. Here, the ALJ cited at least five credibility factors First, he concluded that the objective evidence did It is of course the case that a The Court 18 The ALJ also properly relied upon the fact that Plaintiff took 19 prescribed medication and utilized other conservative measures to 20 treat what she claimed were very severe physical and emotional 21 symptoms. 22 disabling pain symptoms. 23 Use of conservative treatment can undermine a claim of Further, the ALJ determined that Plaintiff s complaints that she 24 had restrictive side effects from medication were not fully credible. 25 Here, there is not evidence of objective documentation in the record 26 of such complaints, and the lack of objective evidence is a factor 27 upon which an ALJ can rely. 28 The ALJ also relied upon Plaintiff s level of daily activities to 9 1 2 rebut her claims of disabling pain. (AR 24-25.) Finally, the ALJ properly relied upon certain inconsistencies in 3 Plaintiff s testimony. For example, at one point she asserted that 4 she stopped working in August 2008 due to advice of her doctor, but 5 this is contradicted by the fact that there are no records of any 6 statement by Plaintiff s doctors between June and October 2008 that 7 she could not work due to abdominal pain. 8 The Court finds that the ALJ articulated sufficient reasons to 9 depreciate Plaintiff s credibility, and thus, rejects Plaintiff s 10 11 12 13 contention of error in her second issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 14 15 16 DATED: January 7, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 10
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