Deborah L Bundy v. Michael J Astrue, No. 5:2012cv01052 - Document 15 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. For the reasons set forth above, the Agency's decision is affirmed and the case is dismissed with prejudice. (see document for complete details) (ca)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DEBORAH L. BUNDY, Plaintiff, 11 12 13 14 15 v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 12-1052-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Plaintiff appeals a decision by Defendant Social Security 19 Administration ( the Agency ), denying her claims for Disability 20 Insurance Benefits ( DIB ) and Supplemental Security Income ( SSI ). 21 She claims that the Administrative Law Judge ( ALJ ) erred when he: 22 1) rejected her treating doctor s opinion that she could not work; 23 2) failed to properly develop the record; and 3) assessed Plaintiff s 24 residual functional capacity. 25 Court concludes that the ALJ did not err. 26 27 28 II. For the reasons discussed below, the SUMMARY OF PROCEEDINGS In February 2009, Plaintiff applied for DIB and SSI, alleging that she was disabled due to bipolar disorder and the side effects of 1 her bipolar medication, primarily sleepiness and an inability to 2 concentrate. 3 143, 164-65.) 4 reconsideration. 5 an ALJ. 6 at the hearing. 7 January 2011. 8 which denied review. (Administrative Record ( AR ) 49-50, 80-81, 119-29, 135, Her applications were denied initially and on She then requested and was granted a hearing before On December 14, 2010, she appeared with counsel and testified (AR 37-64.) (AR 12-22.) 11 Plaintiff appealed to the Appeals Council, (AR 1-3, 5, 8.) 9 10 The ALJ denied the applications in III. A. This action followed. ANALYSIS The ALJ s Rejection of the Treating Psychiatrist s Opinion Plaintiff s treating psychiatrist, Marianne Soor-Melka, diagnosed 12 Plaintiff with bipolar disorder and treated her with Abilify, 13 Wellbutrin, and Depakote. 14 controlled Plaintiff s bipolar disorder, according to Dr. Soor-Melka, 15 Plaintiff was still unable to work. 16 this opinion because it was an opinion of disability, which is 17 reserved to the Agency, and because it was inconsistent with the 18 medical evidence and Dr. Soor-Melka s statements that claimant was 19 stable on her medications. 20 error. 21 (AR 395.) (AR 20.) Though this medication (AR 395.) The ALJ discounted Plaintiff contends that this was For the following reasons, the Court disagrees. It is well-established that, [b]y rule, the Social Security 22 Administration favors the opinion of a treating physician over non- 23 treating physicians. 24 2007); see also Aukland v. Massanari, 257 F.3d 1033, 1037 (9th Cir. 25 2001); and Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 26 treating physician s opinion as to the nature and severity of an 27 impairment must be given controlling weight if the opinion is well 28 supported and not inconsistent with other substantial evidence. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2 A SSR 1 96-2p; Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001). This 2 rule does not apply, however, to a treating doctor s opinion regarding 3 the ultimate issue of disability. 4 F.3d 1190, 1195 (9th Cir. 2004) (noting treating physician s opinion 5 is not binding on an ALJ with respect to the . . . ultimate 6 determination of disability. ); 20 C.F.R. ยง 404.1527(e)(3); see also 7 SSR 96-5p (explaining opinion that claimant is disabled, even when 8 offered by a treating source, can never be entitled to controlling 9 weight or given special significance ). Batson v. Comm r of Soc. Sec., 359 10 The ALJ was not bound to accept Dr. Soor-Melka s opinion that 11 Plaintiff could not work because it was not a medical opinion but was, 12 instead, an opinion of disability. 13 accept the opinion because it was not supported by Dr. Soor-Melka s 14 records or her statements. 15 bipolar disorder was completely controlled by her medications. 16 Soor-Melka said so in her opinion and Plaintiff testified that this 17 was the case at the administrative hearing. 18 Plaintiff s disability claim was not really premised on her bipolar 19 disorder but on the alleged fatigue caused by her bipolar medications. 20 Plaintiff claimed that she regularly went to bed at 8:00 or 9:00 at 21 night and slept until 11:00 a.m. or noon the following day. 22 According to Plaintiff s friend, she was only able to function three 23 to four hours a day. 24 support these claims of fatigue. 25 notes, she asked Plaintiff on almost every single visit if she was 26 experiencing side effects from her medications and Plaintiff reported 27 almost every single time that she wasn t. 28 94.) The ALJ was also not required to There was no question that Plaintiff s (AR 179.) (AR 49-50, 395.) Dr. Thus, (AR 50.) But the evidence simply did not According to Dr. Soor-Melka s chart (AR 294-319, 353-77, 386- Plaintiff never reported that she was sleeping as much as 16 3 1 hours a night, every night. 2 Dr. Soor-Melka s opinion because there was no support for it in the 3 doctor s records and because it was inconsistent with the doctor s 4 opinion that Plaintiff was stable on her meds. 5 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (rejecting treating 6 physician s opinion because it was conclusory and brief and 7 unsupported by clinical findings ); Magallanes v. Bowen, 881 F.2d 747, 8 751-54 (9th Cir. 1989) (upholding ALJ s rejection of treating doctor s 9 opinion that was contradicted by evidence in the record). 10 B. Thus, the ALJ did not err in rejecting See Tonapetyan v. Development of the Record At the close of the administrative hearing, the ALJ told 11 12 Plaintiff and her counsel that he needed additional records from Dr. 13 Soor-Melka to support Plaintiff s claim that she was sleeping for 18 14 hours a day. 15 30 days to allow Plaintiff and her counsel to submit the records. 16 61-62.) 17 contends that the ALJ erred by not obtaining additional records from 18 Dr. Soor-Melka on his own and seeks remand and an order requiring the 19 ALJ to do so. 20 (AR 61.) The ALJ agreed to leave the record open for Plaintiff did not submit any additional records. (AR Plaintiff Plaintiff cites the ALJ s duty to fully and fairly develop the 21 record in support of her argument that the ALJ erred. (Joint Stip. at 22 11.) 23 leaving the record open to allow the claimant to submit additional 24 records. 25 fulfilled that duty here. 26 30 days to allow Plaintiff and her counsel to submit additional 27 records, he told counsel that if he could not submit the records on 28 time all he had to do was ask and the ALJ would grant him additional But, as the Agency points out, that duty can be fulfilled by Tonapetyan, 242 F.3d at 1150. The Court finds that the ALJ Not only did he leave the record open for 4 1 time. (AR 62.) Plaintiff and her counsel never submitted additional 2 records and never asked for additional time. 3 any records to the Court in the 30+ months since the hearing ended. 4 This is quite telling. 5 are no records from Dr. Soor-Melka contradicting the numerous records 6 that have already been submitted from Dr. Soor-Melka establishing that 7 Plaintiff s medications do not cause the severe side effects that she 8 now claims. 9 failing to pursue these non-existent records and that, even if he did, Nor have they presented The inference the Court draws is that there As such, the Court concludes that the ALJ did not err by 10 any error was harmless.1 11 C. 12 The Residual Functional Capacity Finding As a corollary to her previous arguments, Plaintiff contends that 13 the ALJ failed to properly assess her residual functional capacity. 14 Because the Court has concluded that the ALJ did not err in rejecting 15 Dr. Soor-Melka s conclusion that Plaintiff could not work and in 16 failing to supplement the record, this argument, too, is rejected. 17 The ALJ was not required to include in the residual functional 18 capacity findings the limitations suggested by Dr. Soor-Melka and by 19 Plaintiff because the record did not support them. 20 21 22 23 24 1 25 26 27 28 Plaintiff s counsel complains that it is unclear why additional records from Dr. Soor-Melka were not submitted as requested by the ALJ. (Joint Stip. at 12.) The Court believes that it was incumbent on counsel to walk down the hall and ask her colleague, Mr. Fox, who represented Plaintiff in the administrative hearing, why these records were not produced and, if, as the Court suspects, it was because there were none, to not raise this issue on appeal. 5 1 2 3 IV. CONCLUSION For the reasons set forth above, the Agency s decision is affirmed and the case is dismissed with prejudice. 4 IT IS SO ORDERED. 5 DATED: July 9, 2013. 6 7 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Social Security\BUNDY, 1052\Memorandum Opinion and Order.wpd 6
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