Vanessa G. Owens v. Michael J. Astrue, No. 5:2012cv00455 - Document 25 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER By Magistrate Judge Jean P Rosenbluth: Affirming the Commissioner's Final Decision Denying Plaintiff's Application for Social Security Supplemental Security Income Benefits. (mt)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 VANESSA G. OWENS, Plaintiff, 11 vs. 12 13 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) Case No. EDCV 12-0455-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING THE COMMISSIONER ) ) ) ) ) ) ) 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying her application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed January 23, 2013, which the 24 Court has taken under submission without oral argument. For the 25 reasons stated below, the Commissioner s decision is affirmed and 26 this action is dismissed. 27 28 1 1 II. BACKGROUND 2 Plaintiff was born on June 8, 1961. 3 ( AR ) 112.) (Administrative Record She has a 12th-grade education. (AR 131.) From 4 1971 to 1986 Plaintiff worked as a trapeze artist and stunt 5 performer, and from 1987 to 1995 she worked as a cashier. 6 133.) (AR She stopped working full time in 1995, when she gave birth 7 to a special-needs child. 8 as a home attendant. (AR 26-27.) (AR 27, 33.) She last worked in 1999, Plaintiff previously filed 9 two unsuccessful applications for SSI, the most recent of which 10 was denied on August 10, 2005. (AR 38.) On June 2, 2009, 11 Plaintiff filed the instant application for SSI, alleging a 12 disability onset date of August 11, 2005. (AR 112-17.) 13 Plaintiff claimed to be disabled because of degenerative disc 14 disease, fibromyalgia, hypertension, progressive cervical 15 spondylosis, bilateral knee pain, severe anxiety, migraine 16 headaches, and panic attacks. (AR 125.) 17 initially denied on November 18, 2009. Her SSI application was (AR 53-57.) Plaintiff 18 then requested reconsideration (AR 60), and on April 29, 2010, 19 her application was denied again (AR 61-65). 20 After Plaintiff s application was denied a second time, she 21 requested a hearing before an Administrative Law Judge ( ALJ ). 22 (AR 67.) A hearing was held on May 31, 2011, at which Plaintiff, 23 who was represented by counsel, testified on her own behalf. 24 23-34.) A vocational expert ( VE ) also testified. (AR (AR 45-50.) 25 On June 23, 2011, the ALJ issued a written decision determining 26 that Plaintiff was not disabled. (AR 9-22.) On July 14, 2011, 27 Plaintiff requested review of the ALJ s decision. (AR 7-8.) On 28 February 21, 2012, the Appeals Council denied Plaintiff s request 2 1 for review. (AR 1-6.) This action followed. 2 III. STANDARD OF REVIEW 3 Pursuant to 42 U.S.C. § 405(g), a district court may review 4 the Commissioner s decision to deny benefits. The ALJ s findings 5 and decision should be upheld if they are free of legal error and 6 supported by substantial evidence based on the record as a whole. 7 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 8 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 9 742, 746 (9th Cir. 2007). Substantial evidence means such 10 evidence as a reasonable person might accept as adequate to 11 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 12 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 13 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 14 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 15 882 (9th Cir. 2006)). To determine whether substantial evidence 16 supports a finding, the reviewing court must review the 17 administrative record as a whole, weighing both the evidence that 18 supports and the evidence that detracts from the Commissioner s 19 conclusion. 20 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 21 or reversing, the reviewing court may not substitute its 22 judgment for that of the Commissioner. Id. at 720-21. 23 IV. THE EVALUATION OF DISABILITY 24 People are disabled for purposes of receiving Social 25 Security benefits if they are unable to engage in any substantial 26 gainful activity owing to a physical or mental impairment that is 27 expected to result in death or which has lasted, or is expected 28 to last, for a continuous period of at least 12 months. 3 42 1 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 2 (9th Cir. 1992). 3 A. 4 The ALJ follows a five-step sequential evaluation process in The Five-Step Evaluation Process 5 assessing whether a claimant is disabled. 20 C.F.R. 6 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 7 1995) (as amended Apr. 9, 1996). In the first step, the 8 Commissioner must determine whether the claimant is currently 9 engaged in substantial gainful activity; if so, the claimant is 10 not disabled and the claim must be denied. § 416.920(a)(4)(i). 11 If the claimant is not engaged in substantial gainful activity, 12 the second step requires the Commissioner to determine whether 13 the claimant has a severe impairment or combination of 14 impairments significantly limiting her ability to do basic work 15 activities; if not, the claimant is not disabled and the claim 16 must be denied. § 416.920(a)(4)(ii). If the claimant has a 17 severe impairment or combination of impairments, the third step 18 requires the Commissioner to determine whether the impairment or 19 combination of impairments meets or equals an impairment in the 20 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 21 404, Subpart P, Appendix 1; if so, disability is conclusively 22 presumed and benefits are awarded. § 416.920(a)(4)(iii). If the 23 claimant s impairment or combination of impairments does not meet 24 or equal an impairment in the Listing, the fourth step requires 25 the Commissioner to determine whether the claimant has sufficient 26 27 28 4 1 residual functional capacity ( RFC )1 to perform her past work; 2 if so, the claimant is not disabled and the claim must be denied. 3 § 416.920(a)(4)(iv). The claimant has the burden of proving that 4 she is unable to perform past relevant work. 5 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 6 disability is established. Id. If that happens or if the 7 claimant has no past relevant work, the Commissioner then bears 8 the burden of establishing that the claimant is not disabled 9 because she can perform other substantial gainful work available 10 in the national economy. § 416.920(a)(4)(v). That determination 11 comprises the fifth and final step in the sequential analysis. 12 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 13 B. 14 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 15 any substantial gainful activity since June 2, 2009, the date of 16 her SSI application. (AR 14.) At step two, the ALJ concluded 17 that Plaintiff had the severe impairments of lumbosacral strain, 18 mild arthritis of the right knee, and bilateral carpal tunnel 19 syndrome. (Id.) At step three, the ALJ determined that 20 Plaintiff s impairments did not meet or equal any of the 21 impairments in the Listing. (AR 14-15.) At step four, the ALJ 22 found that Plaintiff was able to perform a full range of medium 23 work.2 (AR 15.) Based on the VE s testimony, the ALJ concluded 24 25 26 27 28 1 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 2 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. § 416.967(c). The regulations further specify 5 1 that Plaintiff could perform her past relevant work of in-home 2 support provider. (AR 17.) 3 Plaintiff was not disabled. Accordingly, the ALJ determined that (Id.) 4 V. DISCUSSION 5 Plaintiff alleges that the ALJ erred in finding that 6 Plaintiff s migraine headaches were not a severe impairment and 7 in evaluating the opinions of her treating physician. 8 at 3.) 9 A. 10 11 (J. Stip. Neither of these contentions warrants reversal.3 The ALJ Did Not Err in Considering the Opinions of Plaintiff s Treating Physician Plaintiff contends that the ALJ did not properly evaluate 12 the opinions of her treating physician, Dr. V. Duane Sisson. 13 Stip. at 10-16.) (J. Reversal is not warranted on this basis because 14 the ALJ gave specific and legitimate reasons for rejecting Dr. 15 Sisson s opinions, and those reasons were consistent with 16 substantial evidence in the record. 17 18 1. Applicable law Three types of physicians may offer opinions in social 19 security cases: (1) those who treat[ed] the claimant (treating 20 physicians); (2) those who examine[d] but d[id] not treat the 21 claimant (examining physicians); and (3) those who neither 22 examine[d] nor treat[ed] the claimant (non-examining 23 physicians). Lester, 81 F.3d at 830. A treating physician s 24 25 that [i]f someone can do medium work, we determine that he or she 26 27 28 can also do sedentary and light work, as defined in § 416.967(a)(b). Id. 3 The Court has reversed the order in which it addresses Plaintiff s claims from that followed by the parties to avoid repetition and for other reasons. 6 1 opinion is generally entitled to more weight than the opinion of 2 a doctor who examined but did not treat the claimant, and an 3 examining physician s opinion is generally entitled to more 4 weight than that of a nonexamining physician. 5 Id. The opinions of treating physicians are generally afforded 6 more weight than the opinions of nontreating physicians because 7 treating physicians are employed to cure and have a greater 8 opportunity to know and observe the claimant. 9 80 F.3d 1273, 1285 (9th Cir. 1996). Smolen v. Chater, The weight given a treating 10 physician s opinion depends on whether it was supported by 11 sufficient medical data and was consistent with other evidence in 12 the record. See 20 C.F.R. § 416.927(c)(2). If a treating 13 physician s opinion was well supported by medically acceptable 14 clinical and laboratory diagnostic techniques and not 15 inconsistent with the other substantial evidence in the record, 16 it should be given controlling weight and rejected only for 17 clear and convincing reasons. 18 § 416.927(c)(2). See Lester, 81 F.3d at 830; When a treating physician s opinion conflicts 19 with other medical evidence or was not supported by clinical or 20 laboratory findings, the ALJ must provide only specific and 21 legitimate reasons for discounting that doctor s opinion. 22 v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). Orn Indeed, the ALJ 23 may discredit treating-doctor opinions that are conclusory, 24 brief, and unsupported by the record as a whole or by objective 25 medical findings. See Batson v. Comm r of Soc. Sec. Admin., 359 26 F.3d 1190, 1195 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 27 947, 957 (9th Cir. 2002). Other factors relevant to the 28 evaluation of a treating physician s opinion include the 7 1 [l]ength of the treatment relationship and the frequency of 2 examination as well as the [n]ature and extent of the treatment 3 relationship between the patient and the physician. 4 § 416.927(c)(2)(i)-(ii). 5 6 2. Relevant facts Dr. Sisson was Plaintiff s treating physician from at least 7 January 2009 to May 2011. (AR 275-94, 308 33.) The treatment 8 notes in the record indicated that she saw him approximately once 9 a month during that time. Dr. Sisson s notes documented (Id.) 10 Plaintiff s subjective complaints of back and knee pain, migraine 11 headaches, stress from caring for her special-needs children, and 12 requests for refills of her medication. (See id.) He noted that 13 she potentially had fibromyalgia, chronic pain syndrome, 14 depression, and migraine headaches, but his notes did not 15 reference any test results or other medical evaluations. 16 id.) (See He also indicated that he prescribed medications including 17 Tylenol, Diphenhydramine (Benadryl), Tramadol, Soma, Maxalt, 18 Diazepam (Valium), Lotrel, Amitriptyline, Propranolol, and 19 Sulindac for Plaintiff s symptoms and that she visited him to 20 request refills of those medications. 21 30.) In February and March 2011, Dr. Sisson referred Plaintiff 22 to physical therapy. 23 (See id.; see also AR 129- (AR 304-06.) In December 2006, Plaintiff was referred by Dr. Sisson to a 24 neurologist, Dr. Richard Tindall, because of her migraine 25 headaches. (AR 205.) After examining Plaintiff, Dr. Tindall 26 found that her neurologic examination is normal as is blood 27 pressure. (Id.) He noted that in between headaches 28 [Plaintiff] does very well, and she had had no episode of loss 8 1 of consciousness, paralysis or loss [of] vision or sensation. 2 (Id.) He also noted that her medication, Maxalt, very much 3 helps the headaches. (Id.) He ultimately recommended that 4 Plaintiff remain on Maxalt and begin treatment for her sleep 5 disorder, finding that once the sleep disorder is corrected the 6 headaches should begin to be reduced in severity and frequency. 7 (AR 206.) 8 In December 2007, Dr. Sisson signed an Authorization to 9 Release Medical Information form in connection with Plaintiff s 10 application for California Work Opportunity and Responsibility to 11 Kids ( CalWORKs ) welfare benefits. (AR 211.) On the form, 12 boxes were checked indicating that Plaintiff had a chronic 13 medically verifiable condition that prevented her from 14 performing certain tasks, but a box asking if Plaintiff was 15 actively seeking treatment was checked no. (Id.) Boxes were 16 also checked indicating that Plaintiff was not able to work and 17 that her condition prevented her from providing care for the 18 child(ren) in the home and required someone to be in the home 19 to care for [Plaintiff]. (Id.) From 2004 to 2006, Dr. Sisson 20 also signed yearly Medical Report forms in connection with 21 Plaintiff s CalWORKs applications, stating that Plaintiff was 22 permanently incapacitated from work because of chronic lower 23 back pain and knee pain, migraine headaches 2-3x / wk., and 24 severe anxiety with panic disorder and chronic depression 25 aggravated by the stress of caring for a son with autism and 26 another with ADHD; he noted that she needed someone to give 27 personal care [and] help with autistic child. (AR 215-17.) 28 Plaintiff s previous treating physician, Dr. Susan Lim, filled 9 1 out nearly identical forms in 2001, 2002, and 2003. 2 (AR 218-20.) In December 2007 Plaintiff apparently submitted to CalWORKs 3 a Physical Capacities questionnaire on which boxes were 4 checked4 indicating that Plaintiff could sit, stand, and walk 05 2 hours at a time and 2-4 hours total in an eight-hour 6 workday. On the form it was also written that Plaintiff cannot 7 sit, stand or lie down for more than 15 minutes without 8 experiencing severe pain ; her incapacitation includes chronic 9 severe L.B.P.,5 radiculopathy [and] bilateral knee pain ; C-T 10 scan of the back revealed diffuse disk [sic] bulge protrusion 11 pressing on the roof of the bilat. spine nerve ; [patient] has 12 reacurring [sic] carpal tunnel syndrom [sic] (bilat.) with 13 numbness and severe arthritis pain ; in 2004, [patient s] x-rays 14 revealed progressively severe diffused [sic] involving the L2 to 15 5, early cervical degenerative disk [sic] disease C3-C6, lumbar 16 spondylosis w/degeneration retrolisthesis L5-5, with early 17 osteoarthritis to back [and] knees ; and very sensitive upper 18 sinus allergies, treated presently with benerdyl [sic] daily. 19 (AR 212-14.) Boxes were checked on the form indicating that 20 Plaintiff could never and occasionally lift 10 pounds; she 21 could never climb, stoop, kneel, crouch, or reach below her 22 knees, from waist to knees, from waist to chest, or from chest to 23 shoulders; and she could occasionally balance, crawl, and reach 24 above her shoulders. (AR 213.) The form also included the 25 26 4 As discussed infra, the Court purposely uses the passive 27 voice throughout this paragraph. 28 5 L.B.P. presumably refers to lower back pain. 10 1 comments that all physical movements are personal sacrafice 2 [sic] in order to care for her special need children [and] are 3 limited ; some of Plaintiff s medication requires immediately 4 sitting or lying down to relax the body ; and Plaintiff s ability 5 to work was limited by severe anxiety w/ frequent migranes 6 [sic], must wear back [and] knee supports at all times[,] not 7 being able to concentrate with panic attacks and early menopause 8 symptoms, must be available for special need children. 9 (Id.) With respect to Plaintiff s mental capabilities, a December 10 2007 Mental Capacities form contained the following comments: 11 Pt. has been overwhelmed by the responsibility of caring 12 for her 2 young children as a single parent without any 13 family help. 14 handicapped) with autism, ADHD, cerebral palsy, severe 15 visual acuity following several eye surgeries. 16 . . . 17 Vanessa s 18 severe 19 depression. 20 progressive disorders and now experiencing menopause + 21 high blood pressure, Vanessa actually needs someone to 22 give personal in-home care for her 4 hrs. per day, not 23 just help care to [sic] the handicapp [sic] child. 24 . . . 25 Due 26 Professional opinion is that she remains disable [sic] 27 from any type of gainful employment and as requested 28 presently participating in further evaluation including to Her eldest 12 yr old diagnosed (severely overwhelming anxiety and With Vanessa s responsibilities panic the disorder patient s disabling 11 resulted with severe medical sever in [sic] chronic condition, + My 1 MRI s, pain management, and psychological support in 2 order to care for her family. 3 . . . 4 Vanessa s condition is chronic and permanent for more 5 than 10 yrs. now and should qualify for some type of in- 6 home help and or disability supplement. 7 (AR 214.) The two forms were not signed by Dr. Sisson or any 8 other doctor, though they each did bear a stamp with the name, 9 address, and phone number of Baseline Medical Clinic, where Dr. 10 Sisson apparently practiced. (See AR 285.) The handwriting on 11 the forms does not match the handwriting on the CalWORKs forms 12 Dr. Sisson signed or in Dr. Sisson s treatment notes. 13 AR 212-14 with AR 215-17, 275-84, 288-90.) (Compare Rather, the 14 handwriting on the two forms appears similar to the handwriting 15 on documents Plaintiff submitted in connection with her SSI 16 application, including one document apparently written by 17 Plaintiff stating that she has a chronic lumbar disease 18 progressively severe and diffuse, involving the L2 to 5 level 19 plus bilateral knee pain with daily swelling ; early 20 degenerative cervical degeneration disk [sic] disease C3-C6, 21 lumbar spondylosis with degeneration retrobisthenis [sic] L5-S1, 22 and early osteoarthritis of the knees ; and lumbar C-T scan of 23 her back revealed diffuse disk [sic] bulge with central disk 24 [sic] protrusion which is pressing the bilateral L5 nerve root, 25 but no spinal stenosis was revealed. (AR 168, 178.) The 26 administrative record does not contain copies of the x-rays and 27 CT scan referenced in the CalWORKs documents apparently filled 28 out by Plaintiff and Plaintiff s SSI application. 12 As explained 1 below, however, it does include more recent x-rays. 2 In September 2009, Plaintiff was examined by consulting 3 orthopedist Dr. Bunsri Sophon. (AR 245-49.) Dr. Sophon found 4 that Plaintiff s posture and gait were normal; her cervical spine 5 had normal curvature with no deformity or asymmetry, 6 swelling, palpable mass, inflamation, or tenderness and no 7 evidence of muscle atrophy or spasm, with full range of motion. 8 (AR 246.) Further, her thoracic and lumbar spine showed no 9 evidence of tenderness or muscle spasm, with 60/90 degree 10 flexion, 20/30 degree extension, and 20/25 degree lateral bending 11 bilaterally; her straight-leg-raising test was normal; her upper 12 and lower extremities were all normal, with no decreased range of 13 motion and no deformity, swelling, palpable mass, inflamation, or 14 tenderness; her neurological examination and motor strength were 15 normal; and x-rays of her spine showed normal alignment as well 16 as narrowing of the L5-S1 disc space but no evidence of 17 spondylolisthesis. (AR 245-48.) Dr. Sophon diagnosed Plaintiff 18 with lumbosacral strain and concluded that she was capable of 19 lifting and carrying 50 pounds occasionally, 25 pounds 20 frequently, and is restricted to sitting, standing and walking 21 6 hours out of an 8-hour workday. 22 (AR 248.) In November 2009, consulting psychiatrist Dr. Linda Smith 23 performed a complete psychiatric evaluation of Plaintiff. 24 254-60.) (AR Dr. Smith found that Plaintiff was not very genuine 25 and truthful, and there was evidence of exaggeration, 26 manipulation and attempting to sidestep questions ; she concluded 27 that Plaintiff likely suffered from a mood disorder not 28 otherwise specified but was not impaired in her ability to work. 13 1 (Id.) Dr. Smith noted that Plaintiff sounds like she believes 2 her claim is that she should receive social security for herself 3 because it is stressful raising a disabled child and she needs 4 assistance raising him from social security. 5 (AR 254.) Also in November 2009, consulting psychiatrist Dr. H. 6 Hurwitz evaluated Plaintiff and found that she had an affective 7 disorder, anxiety-related disorder, and disturbance of mood but 8 was only mildly restricted in her activities of daily living and 9 moderately limited in maintaining social functioning. 10 69.) He did not find any other limitations. (AR 261- (See id.) He noted 11 in evaluating Plaintiff s mental RFC that she was moderately 12 limited in her ability to work with others, interact with the 13 general public, accept instructions and respond to criticism, and 14 set realistic goals or make plans independently of others; he 15 found that she was not significantly limited in any other 16 category. (AR 272-74.) He concluded that Plaintiff s cognition 17 is adequate to perform complex work tasks ; she has adequate 18 pace and persistence to sustain complex work tasks ; she can 19 relate in a reasonable fashion with coworkers and supervisors, 20 but not with the public ; and she can adapt to a variety of work 21 settings. 22 (AR 274.) In her written opinion, the ALJ analyzed the medical 23 evidence from Dr. Tindall, Dr. Sophon, Dr. Sisson, Dr. Smith, and 24 Dr. Hurwitz. (AR 16-17.) With respect to the CalWORKs documents 25 and the evidence from Dr. Sisson, the ALJ noted: 26 The certifications of exemption from the CalWorks and 27 Welfare 28 evidence for the Social Security disability program. to Work Programs do 14 not constitute medical 1 These forms indicate that the claimant is exempt from 2 work requirements because she must care for her special 3 needs children. 4 claimant s complaints of pain, there is no objective 5 medical 6 document 7 impairments. 8 . . . 9 Treatment or Although reference is made to the radiological the existence records from evidence or the or severity findings of claimant s her which physical primary care 10 physician, V. Duane Sisson, MD, covering the period from 11 December 16, 2009 through May 12, 2011 indicated that the 12 claimant 13 fibromyalgia, back pain, headaches, and chronic pain 14 syndrome. 15 radiological testing was performed. 16 treated with analgesic medications. was seen There for is 17 (AR 16 (citations omitted).) various no complaints evidence that including objective The claimant was The ALJ also found that Plaintiff s 18 subjective symptom testimony was not fully credible and further 19 gave little weight to a third-party function report submitted by 20 Plaintiff s neighbor, findings Plaintiff does not challenge. (AR 21 17.) 22 23 3. Analysis Because Dr. Sisson s opinions conflicted with the opinions 24 of Dr. Tindall, Dr. Sophon, Dr. Smith, and Dr. Hurwitz as well as 25 other evidence in the record, his opinions were not entitled to 26 controlling weight and the ALJ needed only to provide specific 27 and legitimate reasons for discounting them. 28 632. The ALJ did so. Orn, 495 F.3d at With respect to Dr. Sisson s treatment 15 1 notes, he did not opine in those notes that Plaintiff was unable 2 to work. Rather, he documented Plaintiff s complaints, primarily 3 of pain, stress, and headaches, and noted the medications 4 prescribed for those complaints. (See AR 275-94, 308 33.) As 5 the ALJ noted, Dr. Sisson s treatment notes primarily reflected 6 Plaintiff s subjective complaints; there was no documentation in 7 the notes of objective testing or other medical evidence 8 supporting Plaintiff s disability claims. (AR 16.) To the 9 extent the ALJ rejected Dr. Sisson s opinions that Plaintiff s 10 ability to work was more restricted than the ALJ found, she gave 11 specific and legitimate reasons for doing so, and reversal is 12 therefore not warranted on that basis. 13 The ALJ was entitled to reject Dr. Sisson s opinions to the 14 extent they were based on Plaintiff s discredited subjective 15 complaints. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 16 Cir. 2001) ( Because the present record supports the ALJ in 17 discounting [claimant s] credibility . . . he was free to 18 disregard [treating physician s] opinion, which was premised on 19 her subjective complaints. ). The ALJ properly found that 20 Plaintiff was not credible, as she appeared to be seeking 21 disability benefits because she was overwhelmed by caring for two 22 special-needs children, not because she was herself disabled. 23 (AR 16-17.) As the ALJ noted, the psychiatric evaluator, Dr. 24 Smith, found that Plaintiff did not appear to be genuine or 25 truthful, attempted to manipulate the results of the examination, 26 and exaggerated her symptoms. (AR 16, 254-60.) The record 27 demonstrates that Plaintiff has repeatedly stated that she 28 stopped working because of the birth of her disabled son in 1995 16 1 and that she needed disability benefits because she needed help 2 raising two special-needs children. 3 160, 163, 166, 179, 254, 306.) (See AR 26-27, 29, 109, 122, Plaintiff does not challenge the 4 ALJ s findings as to her credibility. (See generally J. Stip.) 5 Also, as the ALJ noted, the test results from Dr. Tindall and the 6 examination results from Dr. Sophon, Dr. Smith, and Dr. Hurwitz 7 all indicated that Plaintiff was not significantly limited in her 8 ability to work. (AR 16-17.) Based on that evidence, the ALJ 9 properly discounted Plaintiff s subjective testimony, and by 10 extension, Dr. Sisson s opinions to the extent they were based on 11 Plaintiff s subjective complaints and not on objective medical 12 findings. See Tonapetyan, 242 F.3d at 1149; Batson, 359 F.3d at 13 1195 ( The ALJ need not accept the opinion of any physician, 14 including a treating physician, if that opinion is brief, 15 conclusory, and inadequately supported by clinical findings. );6 16 Bruton v. Massanari, 268 F.3d 824, 826 (9th Cir. 2001) (holding 17 that ALJ properly considered fact that claimant stopped working 18 for reasons unrelated to medical disability). The fact that 19 Plaintiff s ailments were effectively treated with analgesic 20 medications was also a proper reason for the ALJ to reject Dr. 21 Sisson s opinion. See, e.g., Rollins v. Massanari, 261 F.3d 853, 22 856 (9th Cir. 2001) (ALJ may reject opinion of treating physician 23 who prescribed conservative treatment yet opined that claimant 24 25 26 27 28 6 For example, Dr. Sisson s opinion that Plaintiff likely had fibromyalgia (AR 276-84) was not supported by the necessary findings. See SSR 12-2P, 2012 WL 3104869, at *2-3 (listing diagnostic criteria for fibromyalgia, including that claimant must suffer widespread pain for at least three months and pain on digital palpation should be present in at least 11 of 18 specific sites on the body). 17 1 was disabled); cf. Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th 2 Cir. 2008) (ALJ may infer that claimant s response to 3 conservative treatment undermines [claimant s] reports regarding 4 the disabling nature of his pain ).7 5 The ALJ also properly rejected the CalWORKs documents. 6 Plaintiff contends that Dr. Sisson filled out the Physical 7 Capacities and Mental Capacities forms (AR 212-14) stating that 8 she was unable to work (see J. Stip. at 10-11), but it is not at 9 all clear that Dr. Sisson had anything to do with them. The 10 handwriting on the forms does not match Dr. Sisson s handwriting 11 on his treatment notes or on the other CalWORKs forms, which Dr. 12 Sisson signed. 13 90.) (Compare AR 212-14 with AR 215-17, 275-84, 288- The handwriting in fact appears similar to Plaintiff s 14 handwriting on documents she submitted in connection with her SSI 15 application. (See AR 168, 178.) There are other indications 16 that the forms were not filled out by Dr. Sisson. For example, 17 the forms contained emotional and subjective statements unlikely 18 to have come from an impartial doctor, such as that Plaintiff s 19 physical movements are personal sacrafice [sic] in order to 20 care for her special need children and caring for her children 21 is an overwhelming responsibilit[y]. (AR 213-14.) The forms 22 also contained misspellings of common medical terms, such as 23 syndrom and disk, that a doctor would have been unlikely to 24 consistently misspell. (AR 212-14.) Indeed, a document 25 26 27 28 7 To the extent Dr. Sisson s notes indicate that Plaintiff suffered from additional impairments that the ALJ did not find to be severe, such as anxiety, depression, and fibromyalgia, Plaintiff does not appear to contest the ALJ s findings with respect to those impairments. (See generally J. Stip.) 18 1 Plaintiff submitted with her SSI application contained identical 2 misspellings. (AR 168, 178.) It also contained nearly identical 3 statements regarding alleged chronic lumbar disease, cervical 4 degeneration disk disease C3-C6, lumbar spondylosis with 5 degeneration retrobisthenis [sic] L5-S1, and references to x6 rays and CT scans that are not mentioned elsewhere in the record. 7 (See id.) In sum, because it appears that someone other than Dr. 8 Sisson likely Plaintiff filled out the CalWORKs Physical 9 Capacities and Mental Capacities forms, and only an address 10 stamp, not Dr. Sisson s signature, appears on them, nothing shows 11 that the doctor approved of their contents or was involved in any 12 way in filling them out, and the ALJ thus did not err in not 13 according them the deference given to treating-physician 14 opinions. (See AR 16); see Mercer v. Astrue, 319 F. App x 625, 15 626 (9th Cir. 2009) (ALJ properly rejected unsigned cursory 16 disability letter allegedly from treating physician that 17 conflicted with other medical evidence of record, including 18 physician s own treatment notes); Moreno v. Astrue, No. 19 08cv1022 WQH PCL, 2009 WL 2151855, at *16 & n.3 (S.D. Cal. July 20 17, 2009) (holding that ALJ properly rejected psychiatric review 21 form allegedly completed by treating physician when form was 22 unsigned and multiple handwritings on form did not match 23 doctor s handwriting). 24 In any event, to the extent Dr. Sisson did fill out and sign 25 CalWORKs forms indicating that Plaintiff could not work (see AR 26 211, 215-17), the ALJ gave specific and legitimate reasons for 27 rejecting them. As the ALJ correctly noted, determinations of 28 disability for purposes of obtaining state welfare benefits are 19 1 not determinative of disability for Social Security purposes, and 2 although Dr. Sisson s medical findings may have been entitled to 3 deference, his opinion that Plaintiff was unable to work was not. 4 (AR 16); see 20 C.F.R. § 416.945(e); SSR 96-5p, 1996 WL 374183, 5 at *5 (Commissioner must make ultimate disability determination; 6 opinions from medical sources about whether a claimant is 7 disabled or unable to work can never be entitled to 8 controlling weight or given special significance ); McLeod v. 9 Astrue, 640 F.3d 881, 885 (9th Cir. 2011) (noting that a 10 treating physician ordinarily does not consult a vocational 11 expert or have the expertise of one ; treating physician s 12 evaluation of claimant s ability to work thus not entitled to 13 deference because [t]he law reserves the disability 14 determination to the Commissioner ); see also 20 C.F.R. § 416.904 15 (disability determinations by other agencies not binding on 16 Social Security Administration). 17 As the ALJ correctly noted, Dr. Sisson s opinions regarding 18 Plaintiff s functional capacity, as stated in the CalWORKs forms, 19 were unsupported by objective medical evidence and were in fact 20 contradicted by substantial evidence in the record. In 21 particular, as the ALJ noted, Dr. Sisson s statement that 22 Plaintiff was unable to care for herself or her children without 23 help was directly contradicted by Plaintiff s own statements that 24 she spent the majority of her time caring for her children and 25 doing extensive activities with them, without assistance. (See 26 AR 16, 41, 111, 144, 163, 170, 176-77, 179, 215-20, 256-57.) 27 Those activities included helping her children get ready for 28 school, cooking meals for them, driving at least one child to and 20 1 from school, helping her children with homework, doing household 2 chores, taking her children to doctor s appointments, going to 3 church, and playing games and doing other recreational activities 4 with her children. (See AR 163, 176-77, 256-57.) The ALJ 5 properly rejected Dr. Sisson s opinions on that basis. See 6 Rollins, 261 F.3d at 856 (ALJ s finding that doctor s 7 restrictions appear to be inconsistent with the level of 8 activity that [plaintiff] engaged in by maintaining a household 9 and raising two young children, with no significant assistance 10 from her ex husband, was specific and legitimate reason for 11 discounting opinion); Montalvo v. Astrue, 237 F. App x 259, 12 261 62 (9th Cir. 2007) (holding that ALJ properly discredited 13 treating physicians conclusions regarding severity of conditions 14 based in part on claimant s daily living activities of bathing 15 and dressing herself, seeing her children off to school, helping 16 with household chores, meeting with family, and going to the 17 mall). 18 Plaintiff also asserts that to the extent the ALJ found that 19 Dr. Sisson s opinions were not supported by sufficient objective 20 evidence, she had the duty to recontact him. (J. Stip. at 15.) 21 The claimant bears the burden of proving that she is disabled. 22 Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). An ALJ is 23 required to recontact a doctor only if the doctor s report is 24 ambiguous or insufficient for the ALJ to make a disability 25 determination. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th 26 Cir. 2005); see also 20 C.F.R. § 416.912(e). The ALJ found the 27 evidence adequate to make a determination regarding Plaintiff s 28 disability, and, as noted above, her opinion was supported by 21 1 substantial evidence in the record. Plaintiff mostly seems to 2 contend that the ALJ had a duty to recontact Dr. Sisson to obtain 3 the results of the 2004 x-rays or CT scans referenced in the 4 CalWORKs documents. (See J. Stip. at 15; AR 212-14.) As an 5 initial matter, these radiological studies are referenced only in 6 the documents Plaintiff appears to have filled out, not any of 7 Dr. Sisson s notes. In any event, the ALJ had no duty to do so 8 because those documents were from December 2007 and the record 9 contained more recent x-ray and examination results, from 10 September 2009. (See AR 245-48.) 11 duty to recontact Dr. Sisson. 12 Thus, the ALJ did not have a See Bayliss, 427 F.3d at 1217. Because the ALJ gave specific and legitimate reasons in 13 support of her evaluation of the medical evidence and those 14 reasons were supported by substantial evidence in the record, 15 reversal is not warranted on this basis. 16 B. The ALJ Did Not Err in Determining that Plaintiff s 17 Migraine Headaches Were Not a Severe Impairment 18 Plaintiff also contends that the ALJ erred in determining 19 that Plaintiff s migraine headaches were not a severe impairment. 20 (J. Stip. at 3-5.) Reversal is not warranted on this basis 21 because substantial evidence in the record supports the ALJ s 22 finding that Plaintiff s migraine headaches were not severe. 23 At step two of the sequential evaluation process, a 24 plaintiff has the burden to present evidence of medical signs, 25 symptoms, and laboratory findings that establish a medically 26 determinable physical or mental impairment that is severe and can 27 be expected to result in death or last for a continuous period of 28 at least 12 months. Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 22 1 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D));8 2 see 20 C.F.R. §§ 416.920, 416.909. Substantial evidence supports 3 an ALJ s determination that a claimant is not disabled at step 4 two when there are no medical signs or laboratory findings to 5 substantiate the existence of a medically determinable physical 6 or mental impairment. 7 96-4p). Ukolov, 420 F.3d at 1004-05 (citing SSR An impairment may never be found on the basis of the 8 claimant s subjective symptoms alone. 9 Id. at 1005. Step two is a de minimis screening device [used] to dispose 10 of groundless claims. Smolen, 80 F.3d at 1290. Applying the 11 applicable standard of review to the requirements of step two, a 12 court must determine whether an ALJ had substantial evidence to 13 find that the medical evidence clearly established that the 14 claimant did not have a medically severe impairment or 15 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 16 (9th Cir. 2005); see also Yuckert v. Bowen, 841 F.2d 303, 306 17 (9th Cir. 1988) ( Despite the deference usually accorded to the 18 Secretary s application of regulations, numerous appellate courts 19 have imposed a narrow construction upon the severity regulation 20 applied here. ). An impairment or combination of impairments is 21 not severe if the evidence established only a slight 22 abnormality that had no more than a minimal effect on an 23 individual s ability to work. Webb, 433 F.3d at 686 (citation 24 omitted). 25 Although evidence in the record shows that Plaintiff likely 26 27 28 8 A medical sign is an anatomical, physiological, or psychological abnormality that can be shown by medically acceptable clinical diagnostic techniques. Ukolov, 420 F.3d at 1005. 23 1 suffered from migraine headaches, the existence of migraine 2 headaches alone does not constitute a severe impairment if they 3 do not prevent a plaintiff from working. See 20 C.F.R. 4 § 416.920(c) (severe impairment is one that significantly limits 5 [claimant s] physical or mental ability to do basic work 6 activities ). Substantial evidence supports the ALJ s finding 7 that Plaintiff s migraine headaches were not severe. In December 8 2006, Plaintiff was evaluated by Dr. Tindall, who found that her 9 neurologic results were normal and her headaches were effectively 10 treated with medication. (AR 205.) There is no evidence in the 11 record that Plaintiff underwent any further neurological 12 examinations. Based on the aforementioned evidence, the ALJ 13 reasonably concluded that Plaintiff s migraine headaches did not 14 affect her ability to work because they were controllable with 15 medication. (AR 14); see 20 C.F.R. § 416.929(c)(4)(iv) (ALJ may 16 consider effectiveness of medication in evaluating severity and 17 limiting effects of impairment); Warre v. Comm r of Soc. Sec. 18 Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that 19 can be controlled effectively with medication are not disabling 20 for the purpose of determining eligibility for SSI benefits. ). 21 The only other evidence in the record documenting the 22 severity of Plaintiff s migraine headaches is her own testimony 23 and Dr. Sisson s treatment notes. Plaintiff stated that her 24 daily activities included extensive activities with her children, 25 such as cooking for them, getting them ready for school, helping 26 them with their homework, and playing with them. 27 176-77, 256-57.) (See AR 163, Plaintiff s ability to perform extensive daily 28 activities belies her claim that her headaches were severe. 24 See 1 Bray v. Comm r of Soc. Sec. Admin., 554 F.3d 1219, 1227 (9th Cir. 2 2009); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) 3 (finding that claimant s ability to take care of her personal 4 needs, prepare easy meals, do light housework and shop for some 5 groceries . . . may be seen as inconsistent with the presence of 6 a condition which would preclude all work activity ) (citing Fair 7 v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989)). Thus, the ALJ 8 properly discounted Plaintiff s subjective testimony. Dr. 9 Sisson s notes primarily document Plaintiff s subjective 10 complaints of headaches and her requests for refills of her 11 medications; the fact that Plaintiff consistently requested 12 refills of her medications and did not pursue other treatment 13 supports the ALJ s finding (and Dr. Tindall s (see AR 205)) that 14 Plaintiff s headaches were controlled with medication. (See AR 15 14, 276-77, 279, 282-83, 288, 308, 310, 312, 318-19, 328, 331.) 16 Plaintiff conceded at the hearing that Maxalt allows the 17 headache to die down a little bit. (AR 31.) She also admitted 18 in her application that she sometimes forgot to take her migraine 19 medication, which could account for any continuing headaches. 20 (AR 161.) In sum, substantial evidence in the record supported 21 the ALJ s conclusion that Plaintiff s migraine headaches did not 22 have more than a minimal effect on her ability to work. 23 In any event, even if the ALJ erred by finding Plaintiff s 24 migraine headaches nonsevere, that error was harmless because she 25 considered Plaintiff s headaches when determining her RFC at step 26 four. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 27 (failure to address particular impairment at step two harmless if 28 ALJ fully evaluates claimant s medical condition in later steps 25 1 of sequential evaluation process); see also Stout v. Comm r, Soc. 2 Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) (ALJ s error 3 harmless when inconsequential to the ultimate nondisability 4 determination ). Specifically, the ALJ properly accounted for 5 any work-related impairments resulting from Plaintiff s migraines 6 by noting at step four that Plaintiff s headaches were 7 associated with a sleep disorder and menopausal syndromes and 8 were controllable with medication, and thus they did not 9 significantly affect her ability to work. (AR 16.) 10 Plaintiff is not entitled to remand on this ground. 11 VI. CONCLUSION 12 Consistent with the foregoing, and pursuant to sentence four 13 of 42 U.S.C. § 405(g),9 IT IS ORDERED that judgment be entered 14 AFFIRMING the decision of the Commissioner and dismissing this 15 action with prejudice. IT IS FURTHER ORDERED that the Clerk 16 serve copies of this Order and the Judgment on counsel for both 17 parties. 18 19 DATED: February 27, 2013 20 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 21 22 23 24 25 26 27 28 9 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 26
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