Wayne M Mathewson v. Michael J Astrue, No. 5:2012cv01091 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (See document for further details) (mr)

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Wayne M Mathewson v. Michael J Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WAYNE M. MATTHEWSON, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the ) Social Security Administration, ) ) Defendant. ) ) NO. EDCV 12-01091 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Wayne M. Matthewson ( Plaintiff ) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the Commissioner or the Agency ) denying 24 his application for Social Security Disability Insurance benefits 25 ( DIB ) and Supplemental Security Income benefits ( SSI ).1 The parties 26 27 1 The Court notes that Carolyn W. Colvin became the Acting 28 Commissioner of the Social Security Administration on February 14, 2013. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Dockets.Justia.com 1 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 2 undersigned United States Magistrate Judge. 3 below, the decision of the Agency is AFFIRMED. For the reasons stated 4 5 II. 6 PROCEDURAL HISTORY 7 8 Plaintiff applied for Disability Insurance Benefits on December 1, 9 2009 (Administrative Record ( AR ) 95, 120-23, 134) and Supplemental 10 Social Security Income on December 8, 2009. (AR 96, 124-27). 11 alleged a disability onset date of January 1, 2008. (AR 120, 124). The 12 Agency 13 reconsideration. (AR 95-98). A hearing before Administrative Law Judge 14 Charles E. Stevenson (the ALJ ) was held on February 2, 2011. 15 94). 16 Plaintiff was not entitled to disability benefits. denied Plaintiff s applications initially Plaintiff and upon (AR 72- The ALJ issued his decision on March 11, 2011 finding that (AR 23-32). 17 18 On August 23, 2011 and October 6, 2011, Plaintiff submitted new 19 evidence to the 20 including a Mental Work Restriction Questionnaire dated July 18, 2011 21 ( Questionnaire ) 22 Disorders 23 completed by psychiatrist Dr. Maged Estafan. 24 declined review on May 11, 2011. (AR 1-6). Plaintiff filed the instant 25 action on July 10, 2012. dated Appeals (AR Council 576-77) August 15, for and 2011 an consideration Evaluation ( Evaluation ) (AR Form (AR 530-625), for Mental 578-82), both The Appeals Council 26 27 Procedure, the Court orders that the caption be amended to substitute Carolyn W. Colvin for Michael J. Astrue as the defendant in this action. 28 2 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff is a former construction worker with a high school 5 education. (AR 76). He was forty-years old at the time of his hearing 6 before the ALJ. 7 (AR 86-87). 8 Immunodeficiency Virus (HIV) positive, as well as a seizure disorder, 9 bipolar disorder, depression, and obsessive-compulsive disorder with a (AR 75). He has lived with his mother his entire life. Plaintiff alleges that he suffers from being Human 10 disability onset date of January 1, 2008. 11 claims that his impairments preclude him from working and persist 12 despite taking medications. 13 record 14 methamphetamine and alcohol. demonstrates that (AR 169-71). (AR 171, 184, 238-39). Plaintiff abuses or Plaintiff Evidence in the has abused both (AR 230). 15 16 A. Plaintiff s Medical History 17 18 A variety of medical professionals have examined Plaintiff between 19 his alleged disability onset date and when he filed for benefits. 20 The Court summarizes Plaintiff s medical history below. 21 22 Plaintiff s own treating physician, Dr. Ryan Zane, as recently as 23 December 20, 2009, found that Plaintiff is capable of light work. (AR 24 366). Dr. Zane indicated Plaintiff could stand and walk for two to four 25 hours in a work day and that Plaintiff s ability to sit was unlimited. 26 (Id.). Dr. Zane also indicated Plaintiff s HIV is controlled through 27 28 3 1 medication. (Id.). Dr. Zane s notes, which detail medical refills and 2 lab results, support these findings. (AR 268-360, 390-467, 494-529). 3 4 Dr. Adly Azab,2 Plaintiff s treating psychiatrist since August 5 2008, described Plaintiff s sleep and symptomology as good as recently 6 as March 2, 2010. (AR 30, 241). 7 8 After the ALJ s adverse ruling, Dr. Maged Estafan completed a 9 Mental Work Restriction Questionnaire and found Plaintiff moderately 10 limited in several mental work activities, such as understand[ing] and 11 remember[ing] short and simple instructions, mak[ing] simple work- 12 related decisions, and work[ing] in coordination with or in close 13 proximity to other people without being distracted by them. 14 77). Dr. Estafan also noted Plaintiff s continued battle with addiction 15 to methamphetamine. (AR 576- (AR 569). 16 17 Non-examining state agency doctors Dr. Albert Lizarraras3 and Dr. 18 N. Haroun evaluated the medical record. 19 opined that Plaintiff was doing relatively well with [his] current 20 medication regimen and that no opportunistic diseases have been 21 documented, noting that Plaintiff does not appear chronically ill nor 22 fatigued. 23 unfettered activities of daily living, such as making simple meals and (AR 387-88). (AR 368-88). Dr. Lizarraras Both doctors referenced Plaintiff s virtually 24 25 2 27 3 The ALJ opinion erroneously spells Dr. Azab s first name as 26 Adiy. (AR 29). The correct spelling is Adly. 28 The ALJ decision erroneously spells Dr. Lizarraras s name as Lizzararas. (AR 29). The correct spelling is Lizarraras. 4 1 using public transportation, in support of their findings that Plaintiff 2 retained the ability to work. 3 non-examining state agency doctor who reviewed Plaintiff s medical 4 records, also reported that Plaintiff retained the functional ability 5 to work. (AR 379, 387). Dr. A. Ahmed, another (AR 468). 6 7 B. Medical Expert Opinion 8 9 A medical expert testified at the hearing. (AR 84-85). Dr. Arnold 10 Ostrow, Pulmonologist and Internist, testified that the medical record 11 indicates Plaintiff was properly diagnosed in regard to the alleged 12 mental impairments. 13 and HIV are well-controlled. 14 Plaintiff s CDC counts were normal. 15 Plaintiff retained the ability to perform light work, with the ability 16 to sit for six of eight hours in a workday; the ability to stand and 17 walk for two of eight hours in a workday; and the occasional ability to 18 bend, crawl, crouch, and kneel. 19 that he would also put in a restriction on Plaintiff regarding the use 20 of dangerous equipment. (Id.). Dr. Ostrow also said Plaintiff s seizures (Id.). The doctor further noted that (AR 85). (Id.). Dr. Ostrow opined that Dr. Ostrow further testified (Id.). 21 22 C. Lay Witness Testimony 23 24 Terri Lynn Matthewson, Plaintiff s mother, testified that Plaintiff 25 sometimes does household chores, such as taking out the trash and 26 27 28 5 1 picking up his room. (AR 88).4 Otherwise, she testified that Plaintiff 2 spends his days sleeping or "on the couch." (AR 87). 3 4 D. Plaintiff s Testimony 5 6 Plaintiff testified that he washes dishes and vacuums. (AR 83). 7 He testified that if he were asked to do a job of a simple, repetitive 8 task without reading or writing and without having to work with the 9 public, he does not see why not he could not do such job. (AR 83). 10 11 IV. 12 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 13 14 To qualify for disability benefits, a claimant must demonstrate a 15 medically determinable physical or mental impairment that prevents him 16 from engaging in substantial gainful activity and that is expected to 17 result in death or to last for a continuous period of at least twelve 18 months. 19 42 U.S.C. § 423(d)(1)(A)); see also 20 C.F.R. § 416.910 ( Substantial 20 gainful activity means work that - (a) involves doing significant and Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 21 4 22 23 24 25 26 27 During a July 12, 2010 "Team Meeting" with Plaintiff's mental health providers, Plaintiff's mother stated that he spends his time watching porn and running up high bills from the cable company. (AR 510). She also said that on one occasion Plaintiff took her deceased husband s car and drove 3,000 miles to giv[e] [his] friends rides. (Id.). During the meeting, Plaintiff admitted that he has a twenty-year history of substance dependence on methamphetamine. (AR 510). Plaintiff has also indicated that he has no problem with personal care. (AR 150-51). He can prepare his own meals, such as cereal. (AR 152). He reports spending his days watching T.V. and sleeping. (AR 150). 28 6 1 productive physical or mental duties; and (b) is done (or intended) for 2 pay or profit. ). 3 performing the work he previously performed and incapable of performing 4 any other substantial gainful employment that exists in the national 5 economy. 6 42 U.S.C. § 423(d)(2)(A)). The impairment must render the claimant incapable of Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 7 8 9 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 10 11 (1) Is the claimant presently engaged in substantial gainful 12 activity? 13 If not, proceed to step two. 14 (2) Is the If so, the claimant is found not disabled. claimant s impairment 15 claimant is found not disabled. 16 severe? If not, the three. 17 (3) Does the claimant s If so, proceed to step impairment meet or equal the 18 requirements of any impairment listed at 20 C.F.R. Part 19 404, Subpart P, Appendix 1? 20 found disabled. 21 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 22 If so, the claimant is found not disabled. 23 proceed to step five. 24 (5) Is the claimant able to do any other work? 25 claimant is found disabled. 26 found not disabled. 27 28 7 If not, If not, the If so, the claimant is 1 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 2 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 3 4 The claimant has the burden of proof at steps one through four, and 5 the Commissioner has the burden of proof at step five. 6 F.3d at 953-54. 7 establishing an inability to perform the past work, the Commissioner 8 must show that the claimant can perform some other work that exists in 9 significant numbers in the national economy, taking into account the 10 claimant s residual functional capacity ( RFC ), age, education and work 11 experience. 12 Commissioner may do so by the testimony of a vocational expert or by 13 reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 14 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 15 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 16 claimant 17 limitations, the Grids are inapplicable and the ALJ must take the 18 testimony of a vocational expert. 19 (9th Cir. 2000). has Bustamante, 262 If, at step four, the claimant meets her burden of Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). both exertional (strength-related) and The When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 20 21 Where there is evidence of a mental impairment that allegedly 22 prevents the claimant from working, the Agency has supplemented the 23 five-step sequential evaluation process with additional regulations.5 24 Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 25 5 These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. 26 The mental RFC assessment used at steps four and five of the evaluation 27 process, on the other hand, require a more detailed assessment. Social Security Ruling 96-8P, 1996 WL 374184 at * 4. 28 8 1 1998)(citing 20 C.F.R. § 416.920a)(per curiam). First, 2 determines the presence or absence of medical findings relevant to the 3 claimant s ability to work. 4 establishing such findings, the ALJ rates the degree of functional loss 5 resulting from the impairment by considering four areas of function: (a) 6 activities of daily living; (b) social functioning; (c) concentration, 7 persistence, or pace; and (d) episodes of decompensation. 8 416.920a(c)(2)-(4). 9 must determine whether the claimant has a severe mental impairment. 20 C.F.R. § 416.920a(b)(1). the ALJ Second, after 20 C.F.R. § Third, after rating the degree of loss, the ALJ 20 10 C.F.R. § 416.920a(d). Fourth, when a mental impairment is found to be 11 severe, the ALJ must determine if it meets or equals a listing in 20 12 C.F.R. Part 404, Subpart P, Appendix 1. 13 Finally, if a listing is not met, the ALJ must then assess the 14 claimant s RFC, and the ALJ s decision must incorporate the pertinent 15 findings and conclusions regarding the claimant s mental impairment, 16 including a specific finding as to the degree of limitation in each of 17 the functional areas described in [§ 416.920a(c)(3)]. 18 416.920a(d)(3), (e)(2). 20 C.F.R. § 416.920a(d)(2). 20 C.F.R. § 19 20 V. 21 THE ALJ S DECISION 22 23 On February 2, 2011, Plaintiff testified at a hearing held before 24 ALJ Charles E. Stevenson. 25 a lay witness. (AR 86-90). 26 expert also testified. (AR 74-83). Plaintiff s mother testified as An impartial vocational expert and medical (AR 90-93). 27 28 9 1 The ALJ employed the five-step sequential evaluation process and 2 concluded that Plaintiff retained the RFC to perform a wide range of 3 light work. 4 had not engaged in substantial gainful activity since his alleged 5 disability onset date of January 1, 2008. 6 ALJ found that Plaintiff had severe impairments of being HIV positive, 7 as well as a seizure disorder, bipolar disorder, depression, and 8 obsessive-compulsive 9 thoroughly considered those impairments and determined that Plaintiff 10 does not have an impairment or a combination of impairments that meets 11 or medically equals a listing as set forth in 20 C.F.R. Part 404, 12 Subpart P, Appendix 1. (AR 25-32). At step one, the ALJ found that Plaintiff disorder. (Id.). (AR 25). At step At step two, the three, the ALJ (Id.). 13 14 At the fourth step, the ALJ found that Plaintiff only has mild 15 restriction in activities of daily living, as the record indicates he 16 can attend to his own needs. 17 Plaintiff 18 functioning; mild difficulties regarding concentration, persistence, or 19 pace; and no episodes of decompensation of extended duration. experiences mild (AR 26). to moderate The ALJ found also that difficulties in social (Id.). 20 21 The ALJ found Plaintiff retains the RFC to perform a wide range of 22 light work, as defined in 20 C.F.R. § 404.1567(b) and 416.967(b), 23 inclusive of: the ability to lift and carry no more than ten pounds 24 frequently, and twenty pounds occasionally; the ability to sit for six 25 of eight hours, cumulatively, in a workday; the ability to stand and 26 walk for two of eight hours, cumulatively, in a workday; the occasional 27 ability to bend, stoop, crouch, and crawl; no ability to climb ladders; 28 10 1 and no ability to work at unprotected heights or around hazardous 2 equipment. (AR 26-27). 3 4 The ALJ accorded great weight to the state agency physicians 5 opinions because they are largely consistent with the medical expert s 6 opinions and the opinions of Plaintiff s own treating physician. 7 27-30). 8 mental impairments are sufficiently treated with the non-invasive 9 treating modalities of medication optimization and infrequent follow-up 10 (AR The ALJ fully credited Dr. Azab s findings that Plaintiff s appointments. (AR 30). 11 12 The ALJ also considered Plaintiff s mother s testimony and Third 13 Party Function Report detailing Plaintiff s abilities to perform a 14 variety of tasks such as chores, cleaning, and more. 15 ALJ notes that Plaintiff s mother indicated Plaintiff searches for work 16 but to date has not found a job. 17 inability to find a job does not equate to a finding of disability. 18 (Id.). 19 examining, or reviewing physician has opined Plaintiff is totally 20 disabled, nor has any opined that Plaintiff cannot perform work at a 21 light level with the ascertained restrictions. (AR 28). (AR 27-28). The The ALJ then noted that an The ALJ further observed in his opinion that no treating, (AR 30). 22 23 At step four of the analysis, the ALJ considered Plaintiff s past 24 job as a construction worker, which is very heavy work according to 25 the vocational expert who testified at the hearing. 26 The ALJ determined Plaintiff is unable to perform his past relevant 27 work. (AR 30-31). 28 11 (AR 30-31, 91). 1 At step five, the ALJ considered whether Plaintiff could perform 2 any other work. (AR 31). Considering Plaintiff s age, education, work 3 experience and RFC, the ALJ found that there are jobs that exist in 4 significant numbers in the national and local economy that Plaintiff can 5 perform. 6 thirty-seven years old at the onset of the alleged disability, which 7 makes him a younger individual age 18-49. 8 416.963. 9 communicate 20 C.F.R. §§ 404.1569, 416.969. (AR 31). in (AR 31). Plaintiff was 20 C.F.R. §§ 404.1563, Plaintiff has a high school education and can English. 20 C.F.R. §§ 404.1564, 416.964. 10 Transferability of job skills is not an issue in this case, because 11 Plaintiff s past relevant work as a construction worker is characterized 12 as unskilled. 13 all of the above, jobs exist in significant numbers at this level of 14 light work, even after taking into account Plaintiff s additional 15 limitations. 16 all exertional levels below his own, which includes the sedentary 17 world of work. 18 entitled to disability benefits. 20 C.F.R. §§ 404.1568, 416.968. (AR 31, 91). (Id.). (AR 91). Considering Plaintiff s RFC also allows him to work at The ALJ concluded that Plaintiff was not (AR 32). 19 20 VI. 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. § 405(g), a district court may review the 24 Commissioner s decision to deny benefits. 25 Commissioner s decision when the ALJ s findings are based on legal error 26 or are not supported by substantial evidence in the record as a whole. 27 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 28 12 The court may set aside the 1 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). Substantial evidence is 2 more than a scintilla, but less than a preponderance. 3 F.3d at 720. 4 accept as adequate to support a conclusion. 5 substantial evidence supports a finding, the court must consider the 6 record as a whole, weighing both evidence that supports and evidence 7 that detracts from the [Commissioner s] conclusion. Aukland, 257 F.3d 8 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). Reddick, 157 It is relevant evidence which a reasonable person might Id. To determine whether 9 10 The ALJ's decision denying benefits will be disturbed only if that 11 decision is not supported by substantial evidence or it is based upon 12 legal error. 13 2005)(citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)). 14 reviewing the Commissioner's decision, the court may not substitute its 15 judgment for that of the Commissioner. 16 543 (9th Cir. 1996). 17 Commissioner applied the proper legal standards and whether substantial 18 evidence exists in the record to support the Commissioner's findings. 19 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. In Macri v. Chater, 93 F.3d 540, Instead, the court must determine whether the 20 21 VII. 22 DISCUSSION 23 24 Plaintiff contends that the ALJ committed error for two reasons. 25 First, Plaintiff alleges that the ALJ improperly rejected the treating 26 physicians opinions. 27 Plaintiff alleges that where the ALJ finds the presence of severe (Mem. in Supp. of Pl. s Comp. at 3-9). 28 13 Second, 1 mental impairments and the medical evidence demonstrates the presence 2 of severe mental impairments, the ALJ errs in failing to find [severe] 3 mental limitations as a result of the severe mental impairments. 4 at 9). 5 reasons discussed below, the ALJ s decision should be AFFIRMED. The Court finds that Plaintiff s claims lack merit. (Id. For the 6 7 A. The ALJ Properly Considered The Treating Physicians Opinions 8 9 Plaintiff contends that the ALJ did not give sufficient weight to 10 the treating opinions. (Mem. In Supp. Of Pl. s Comp. at 3-9). However, 11 the treating physicians opinions support Plaintiff s RFC and the ALJ 12 properly considered them. 13 14 Dr. Ryan Zane, Plaintiff s treating doctor, found Plaintiff to be 15 capable of two to four hours of standing and walking in a work day and 16 for Plaintiff s ability to sit to be unlimited. 17 findings alone would support a finding of an RFC to perform light 18 work. 19 ALJ reduced Plaintiff s ability to stand and walk to two hours and 20 augmented 21 restrictions. 22 than Dr. Zane s conclusions. (Id.). the (AR 366). Dr. Zane s The ALJ found Plaintiff to be capable of even less; the RFC to include (AR 26-27). postural limits and environmental The ALJ s finding is in fact more lenient 23 24 Furthermore, the ALJ points out that no physician has opined 25 Plaintiff is disabled. 26 psychiatrist, indicated that Plaintiff s sleep and symptomology are 27 good. (AR 30, 241). (AR 30). For example, Dr. Azab, a treating Such findings support the ALJ s decision and 28 14 1 undermine Plaintiff s argument that the ALJ did not adequately give 2 weight to treating opinions. 3 4 Plaintiff further argues that the vocational expert s testimony was 5 that Plaintiff s limitations would preclude all work activity. (Mem. 6 In Supp. Of Pl. s Comp. at 5). 7 cites was in response to a more restrictive hypothetical combining 8 Plaintiff s RFC with Plaintiff s fatigue as subjectively alleged. 9 93). However, the testimony that Plaintiff (AR In response to the hypothetical finding the Plaintiff to be able 10 to perform light work, the VE found numerous positions locally and 11 nationally. (AR 92). The testimony supports the ALJ's decision. 12 13 B. Dr. Estafan s Opinion Is Against The Weight Of The Record 14 15 In arguing that the ALJ did not adequately take the treating 16 physicians opinions into account, Plaintiff frequently cites medical 17 records by Dr. Maged Estafan. (Mem. In Supp. Of Pl. s Comp. at 3, 5-6). 18 However, Dr. Estafan s opinions merit little consideration because they 19 are against the weight of the record. 20 21 Dr. Estafan s opinions merit less weight because medical reports 22 solicited and produced after an 23 persuasive than those presented to the ALJ for consideration. 24 93 F.3d at 544; see also Clem v. Sullivan, 894 F.2d 328, 332-33 (9th 25 Cir. 1990) (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) 26 (quoting Allen v. Sec y of Health & Human Servs., 726 F.2d 1470, 1473 27 (9th Cir. 1984) (rejecting evidence first submitted to the district 28 15 adverse ALJ decision are less Macri, 1 court because claimant sought out a new expert witness who might better 2 support his position ))). Plaintiff submitted the medical records from 3 Dr. Estafan after the ALJ issued a decision adverse to Plaintiff. 4 20, 577, 582). (AR Therefore, the new evidence is accorded less weight. 5 6 Even if Dr. Estafan's treating records had been available at the 7 time of the ALJ's decision, they would not be accorded significant 8 weight because of the extremely limited duration of the treating 9 relationship between Dr. Estafan and Plaintiff. A doctor s medical 10 opinions about a patient are considered less reliable where the doctor 11 has had limited interactions with the patient. 12 Soc. Sec., 613 F.3d 1217, 1223 (9th Cir. 2010) (upholding the ALJ s 13 rejection of the opinion of a treating physician who had administered 14 two psychiatric examinations because the doctor had not had any 15 previous interaction with the claimant and was in poor position to 16 assess the claimant s statements ). Dr. Estafan was Plaintiff s doctor 17 for a very brief period (AR 567-569, three visits) before preparing his 18 responses to both the Questionnaire (AR 576-78) and the Evaluation (AR 19 579-82). 20 his decision, the ALJ would still have given more weight to other 21 treating physicians opinions because they had spent more time with 22 Plaintiff, such as Dr. Azab and Dr. Myong-Won Kim.6 See Turner v. Comm r of If Dr. Estafan s records had been submitted to the ALJ before 23 24 6 Defendant correctly points out that the ALJ opinion refers to Dr. Kim s observations but erroneously accredits them to Dr. Azab, and 26 that therefore, in crediting Dr. Azab, the ALJ in fact also credits Dr. Kim (AR 29-30). (Mem. In Supp. Of Def. s. Answer 8-9, n.6). The Court 27 notes that upon review of the record, the ALJ erroneously attributes Dr. Kim s medical reports to Dr. Azab. 28 16 25 1 Dr. Estafan s opinions merit less weight also because of the lack 2 of evidence supporting them. 3 do not support his conclusion. 4 opinions [do] not mesh with his or her objective data or history 5 provides legitimate reason for rejecting such opinions. 6 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 7 Sullivan, 894 F.2d 1059, 1064 (9th Cir. 1990) (finding that the Appeals 8 Council did not err in rejecting the opinion of a doctor who saw 9 claimant months after the ALJ s adverse decision where the opinion was 10 not consistent with medical evidence); Tonapetyan v. Halter, 242 F.3d 11 1144, 1149 (9th Cir. 2001) (affirming rejection of treating physician s 12 opinion where it was unsupported by rational or treatment notes, and 13 offered no objective medical findings to support the existence of 14 [claimant s] alleged conditions ; Turner, 613 F.3d at 1223 (affirming 15 the ALJ s rejection of a treating physician s opinion where the doctor 16 assumed from the outset, without offering his own diagnosis, that 17 [claimant] suffered from post-traumatic stress disorder and made no 18 attempt to cite objective findings to substantiate his assessment). 19 Dr. 20 motivation, and struggling to overcome his drug habit (AR 567-69) do 21 necessarily support the final conclusion in the doctor s Questionnaire 22 and Evaluation that Plaintiff has mood swings or manic episodes, both 23 of which the doctor identified as Plaintiff s impairments. 24 579). Thus, even if Dr. Estafan s opinions had been before the ALJ, the 25 doctor s conclusions would not have changed the ALJ s decision. Estafan s notes about Notably, the doctor s own treatment notes Finding that a treating physician s Plaintiff s 26 27 28 17 Tommasetti v. See also Bates v. sleeping a lot, lacking (AR 576, 1 Dr. Estafan s treating notes not only fail in serving as adequate 2 evidence for the doctor s conclusions but actually support the ALJ s 3 finding that Plaintiff s problems are self-perpetuating rather than 4 linked to a mental impairment. Dr. Estafan noted Plaintiff had no zest 5 to look for a job and that Plaintiff battled with his addiction to 6 methamphetamine. 7 that Plaintiff was simply unable to find work as opposed to disabled, 8 and that Plaintiff s addiction to methamphetamine was likely the reason 9 Plaintiff was unable to show up for jobs in the past. (AR 568-69). These notes support the ALJ s finding (AR 28). See 10 Macri, 93 F.3d at 544 ( [T]he ALJ is entitled to draw inferences 11 logically flowing from the evidence ) (citations omitted). 12 Estafan s treating notes support the ALJ s findings and therefore would 13 not change the outcome, even if the ALJ considered them now. 14 not required. Dr. Remand is 15 16 C. The ALJ Properly Assessed Plaintiff s Mental Impairments 17 18 Plaintiff contends that the ALJ committed reversible error by 19 finding a severe mental impairment at step two but not finding more 20 severe mental limitations as part of the RFC. 21 Comp. at 9-13). 22 court held that finding that a claimant has a severe mental impairment 23 at step two of the sequential analysis did not necessarily compel the 24 inclusion of severe mental limitations in the residual functional 25 capacity determination. 26 2860751, at**1 (9th Cir. July 12, 2012). 27 significance to the step two determination, when in fact the step two (Mem. In Supp. Of Pl. s However, in Maher v. Comm r of Soc. Sec. Admin., the Maher v. Comm r of Soc. Sec. Admin., 28 18 2012 WL Plaintiff imparts too much 1 determination is "merely a threshold determination" and not dispositive 2 of the remaining steps of the evaluation. 3 1071, 1076 (9th Cir. 2007). Hoopai v. Astrue, 499 F.3d 4 5 Furthermore, the ALJ did perform the mental limitation analysis and 6 indicates in his decision that the RFC determination reflects the degree 7 of limitation supported by the evidence. 8 Plaintiff only has mild restriction in activities of daily living, 9 experiences mild to moderate difficulties in social functions, and 10 only mild difficulties in concentration, persistence, and pace. 11 (Id.). 12 actions, and the like, when he elects to act responsibly." 13 ALJ also found that Plaintiff has not experienced extended episodes of 14 decompensation. 15 agency 16 limitations), support these findings. 17 legitimate reasons to reject the more restrictive mental limitations 18 described by Dr. Estefan, as discussed in Section B, above. 19 is required. 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ (AR 26). The ALJ found that The ALJ further noted that Plaintiff can "make plans, perform doctors' (Id.). (Id.). The Substantial evidence, in the form of the state evaluations (AR 28 19 376-380, finding no functional The ALJ provided specific and No remand 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),7 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: July 10, 2013. 11 /S/ ______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR LEXIS. 16 17 18 19 20 21 22 23 24 25 7 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment 27 affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 28 20 26

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