Mary Garcia v. Michael J Astrue, No. 5:2012cv01166 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: REQUEST to Proceed In Forma Pauperis, Declaration in Support 1 . The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR DETAILS) (rh)

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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 MARY GARCIA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-01166-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 Period of Disability, Disability Insurance Benefits, and Supplemental 21 Security Income. 22 consented that the case may be handled by the Magistrate Judge. 23 action arises under 42 U.S.C. §405(g), which authorizes the Court to 24 enter judgment upon the pleadings and transcript of the record before 25 the Commissioner. 26 ( JS ), and the Commissioner has filed the certified Administrative 27 Record ( AR ). 28 Pursuant to 28 U.S.C. §636©, the parties have The The parties have filed the Joint Stipulation Plaintiff raises the following issues: 1 1. Whether the Administrative Law Judge ( ALJ ) properly 2 considered both the physical and mental opinions of the 3 state agency physicians (JS at 3); 4 2. Whether the ALJ properly determined if activities of daily 5 living 6 competitive substantial gainful activity (JS at 11); 7 3. 8 9 12 the ability to perform full-time Whether the ALJ provided a complete and proper assessment of Plaintiff s residual functional capacity (RFC) (JS at 16); 4. 10 11 establish Whether the ALJ posed a complete hypothetical question to the vocational expert (JS at 18); and 2. Whether the ALJ properly considered Plaintiff s testimony and made proper credibility findings (JS at 21.) 13 14 This Memorandum Opinion will constitute the Court s findings of 15 fact and conclusions of law. After reviewing the matter, the Court 16 concludes that the decision of the Commissioner must be affirmed. 17 18 I 19 THE ALJ PROPERLY CONSIDERED THE PHYSICAL AND MENTAL OPINIONS OF THE 20 STATE AGENCY PHYSICIANS 21 Plaintiff s first claim is that the ALJ did not properly consider 22 the physical and mental opinions of the state agency physicians. (See 23 JS at 3-7.) 24 In discussing the state agency physicians opinions, the ALJ 25 disagreed with Dr. Khan, who found that Plaintiff demonstrated hand 26 limitations. (See AR 228). He also disagreed with Dr. Khan s finding 27 that Plaintiff should be limited to one-two step repetitive tasks with 28 adequate pace and persistence. (See AR 244). 2 The ALJ found that the 1 hand limitations were not warranted because Plaintiff did not always 2 have psoriatic flare-ups in her hands, and when she did, they did not 3 last for twelve months duration. (AR 16.) He rejected the limitation 4 to repetitive tasks because he found that Plaintiff had a Bachelor of 5 Arts 6 concentration deficits. degree, and the record did not demonstrate significant (Id.) 7 Plaintiff correctly states that these opinions constitute expert 8 opinion evidence of non-examining sources that the ALJ is required to 9 give some weight to, unless he rejects them. then argues that because the (See ALJ s JS at 6). 10 Plaintiff determination of 11 Plaintiff s RFC did not include these specific limitations, the ALJ 12 erred in considering the evidence. 13 Plaintiff concedes, however, that the ALJ is not bound by any 14 findings made by state agency medical or psychological consultants 15 (see JS at 5, citing 20 C.F.R. § 404.1527(e)(2)(I)). 16 there 17 sufficient even if he rejects an expert s opinion so long as he cites 18 specific and legitimate reasons supported by substantial evidence. 19 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 20 the ALJ need not accept the opinion of any physician if the opinion is 21 brief, conclusory, or inadequately supported by clinical findings. 22 Id. Therefore, the ultimate question is whether substantial evidence1 23 supported the ALJ s findings. are conflicting medical opinions, the ALJ s In fact, when decision is Furthermore, 24 First, with respect to the ALJ s finding that Plaintiff was not 25 limited to one-two step repetitive tasks, the Court finds that the 26 27 28 1 Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 3 1 record adequately supports this conclusion. It was reasonable for the 2 ALJ to conclude that a claimant with a bachelors degree does not have 3 such a debilitating concentration deficit to render her unable to 4 perform work. 5 (ALJ entitled to draw inferences logically flowing from evidence). 6 More importantly, the ALJ noted that Dr. Linda Smith, a consultative 7 psychiatrist, opined that Plaintiff had no trouble concentrating. (AR 8 14; see AR 206 ( She did not have any trouble concentrating today. )). 9 In fact, See Macri v. Chater, 93 F.3d 540, 544 (9th Cir. 1996) Dr. Smith found that Plaintiff s thought processes, 10 intellectual functioning, memory and ability to make abstractions were 11 all intact. 12 greater weight to Dr. Smith s findings than state agency physician Dr. 13 Khan s since the Ninth Circuit has long established 14 weight is accorded to the opinion of an examining physician than a 15 non-examining physician. 16 (9th Cir. 1997) (quoting Andrews, 53 F.3d at 1040-41). 17 Plaintiff s characterization that the ALJ rejected the state agency 18 physician s opinion is not entirely accurate. 19 ALJ agreed with the essence of Dr. Khan s psychiatric opinion by 20 finding 21 interaction. 22 ALJ improperly considered the opinion of the state agency physician 23 regarding her psychological limitations is unavailing.2 24 that (AR 206-07). Plaintiff It was appropriate for the ALJ to give that greater Jamerson v. Chater, 112 F.3d 1064, 1066 was (AR 12, 244). capable of Furthermore, On the contrary, the only occasional public Therefore, Plaintiff s argument that the Second, as to the ALJ s finding that Plaintiff s hand limitations 25 26 27 28 2 To the extent that Plaintiff s claim rests on the ALJ not specifying exactly how much weight he gave the state agency opinions (see JS at 4), this is also unavailing. The ALJ need not recite magic words so long as he offers specific and legitimate explanations. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 4 1 were not warranted, this too is supported by substantial evidence. 2 The ALJ rejected this opinion because Plaintiff did not always have 3 psoriatic flare-ups in her hands, and they did not last for twelve 4 months 5 inconsistent flare-ups that did not last longer than twelve months in 6 time. 7 good control in January 2008. 8 November 2008 and February 2009, her symptoms showed improvement. (AR 9 14, citing AR 488-89). time.3 (AR 16). Plaintiff s treatment records show For example, as the ALJ noted, Plaintiff s psoriasis was under (AR 14, citing AR 359-60). In Again, in October 2009, Plaintiff s treating 10 doctor found that her psoriasis was stable. (AR 14, citing 489). In 11 January 2010, she reported that her psoriasis was improving. 12 citing 485). 13 arthritis was fairly controlled. 14 from the ALJ s opinion that he sufficiently considered the record and 15 rejected Dr. Khan s opinion about Plaintiff s hand limitations based 16 on substantial evidence. (AR 14, In July 2010, her doctor found that the psoriatic (AR 475). Therefore, it is clear 17 18 II 19 THE ALJ PROPERLY CONSIDERED PLAINTIFF S DAILY ACTIVITIES IN 20 DETERMINING WHETHER SHE WAS DISABLED 21 Plaintiff s second claim is that the ALJ improperly considered 22 her daily activities in evaluating whether she could perform full-time 23 competitive substantial gainful activity. (JS at 11). 24 As an initial matter, the Court finds that a fair reading of the 25 ALJ s decision indicates that Plaintiff unfairly characterizes the 26 3 27 28 For purposes of disability insurance benefits, disability is defined as a medically determinable physical or mental impairment that can be expected to last or has lasted for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). 5 1 ALJ s actions. 2 analyzing whether her symptoms were disabling and limited her capacity 3 to work. 4 Plaintiff s 5 incapacitating or debilitating medical condition. 6 The ALJ discussed Plaintiff s daily activities in (See AR 15). reported The ALJ found inconsistencies between daily activities and the presence of an (Id.) Plaintiff s argument fails because there is no question that 7 analysis of 8 416.929(c)(3)(I) (expressly listing [y]our daily activities as a 9 factor relevant to symptoms such as pain). In addition, on this point 10 the Court agrees with the Commissioner that Ninth Circuit cases have 11 long 12 determining whether a claimant is credible in their testimony. 13 Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989) (daily activities can 14 discredit excess pain allegation if claimant is able to spend a 15 substantial part of the day performing activities transferable to a 16 work setting); Thomas, 278 F.3d at 958-59 (chores such as cooking, 17 laundry, washing dishes, and shopping suggested claimant was not as 18 limited and as in pain as she testified); Stubbs-Danielson v. Astrue, 19 539 F.3d 1169, 1175 (9th Cir. 2008) (affirming ALJ s finding that 20 daily activities suggested claimant could be capable of performing 21 basic 22 sustained basis). 23 Plaintiff could drive and shop, do household chores, cook, run 24 errands, and pay bills. 25 Such daily activities allow the ALJ to reasonably conclude that 26 Plaintiff s psoriatic arthritis and anxiety disorder are not as allowed demands daily ALJ s of activities to is explicitly competitive, allowed. consider remunerative, See daily 20 C.F.R. activities unskilled work § in See on Here, the ALJ found that the record indicated that (AR 15, citing AR 32, 159, 206-08, 408). 27 28 6 1 debilitating as she claims.4 2 3 III 4 THE ALJ PROPERLY ASSESSED PLAINTIFF S RFC 5 Plaintiff s third claim is that the ALJ improperly assessed her 6 RFC because he rejected the state agency physician and psychiatrist s 7 opinions. 8 of Plaintiff s first claim and is foreclosed by the Court s analysis 9 of that claim. 10 (JS at 16). This contention is essentially a reiteration Accordingly, the Court finds that the ALJ properly assessed Plaintiff s RFC. 11 12 IV 13 THE ALJ PROPERLY POSED A COMPLETE HYPOTHETICAL 14 TO THE VOCATIONAL EXPERT 15 Plaintiff s fourth claim is that the ALJ posed an incomplete 16 hypothetical to the vocational expert at the administrative hearing 17 because he did not account for Dr. Khan s finding that Plaintiff was 18 limited to one-two step repetitive tasks. (JS at 19; see AR 46-47). 19 Although Plaintiff correctly states that a hypothetical must 20 consider all of a claimant s limitations or else be deemed of no 21 evidentiary value (id.), the Ninth Circuit has found that an ALJ does 22 not err when he omits limitations in hypothetical questions to the 23 24 25 26 27 28 4 The Court notes that the ALJ also discussed the fact that Plaintiff told her treating doctor in June 2010 that she wanted to conceive and have a child, heightening demands on her physical and mental activity. (AR 15, citing AR 450, 452). Although not an ordinary daily activity, conceiving and having a child presents at least some difficulty functioning, and the fact that Plaintiff wanted to do so can be used by the ALJ to discredit testimony of a totally debilitating impairment. See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). 7 1 vocational expert that claimant claimed but failed to prove. Rollins 2 v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ did not err 3 because his omissions were supported by substantial evidence); see 4 also Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (same). 5 As such, Plaintiff s fourth claim is unavailing because it appears to 6 be a reiteration of her first. 7 ALJ posed a complete hypothetical to the vocational expert. Accordingly, the Court finds that the 8 9 V 10 THE ALJ MADE PROPER CREDIBILITY FINDINGS 11 Plaintiff s fifth argument takes issue with the ALJ s finding 12 Plaintiff s testimony at the hearing not entirely credible. (See AR 13 13). 14 which specific statements he accepted or rejected. 15 Second, Plaintiff contends that the ALJ erred because he rejected 16 Plaintiff s testimony without providing clear and convincing evidence. 17 (JS at 24). First, Plaintiff argues that the ALJ erred by not indicating (JS at 21). 18 Plaintiff s first contention is unavailing because the ALJ s 19 findings are not invalid simply because he failed to quote from 20 Plaintiff s testimony. 21 making his findings. 22 before the Court is whether the ALJ s credibility finding was specific 23 and supported by the record. 24 F.3d at 958-59. After all, he did cite to her testimony in (See AR 11). Therefore, the main question See Fair, 885 F.2d at 603; Thomas, 278 25 Subjective complaints of pain or other symptomology in excess of 26 what an impairment would normally be expected to produce are subject 27 to the credibility assessment of an ALJ. Rollins, 261 F.3d at 856-57. 28 In order to find that a claimant s subjective complaints are not 8 1 credible, an ALJ must specifically make findings that support this 2 conclusion, Bunnell, 947 F.2d 341, 345 (9th Cir. 1991) and provide 3 clear and convincing reasons. 4 difficulty with the ALJ s decision, however, lies in the fact that the 5 ALJ did not separate his credibility findings from his assessment of 6 the medical opinion. 7 particular analyses articulated within the ALJ s decision support his 8 credibility finding. 9 incorporates analysis from other steps of the ALJ s evaluation, as 10 long as the ALJ s reasons are clearly and identifiably articulated 11 elsewhere in the decision, the ALJ s credibility finding satisfies the 12 standard from Bunnell and Rollins. 13 Rollins, 261 F.3d at 857. The Nevertheless, the Court can decipher which Because an ALJ s credibility assessment usually First, as the ALJ explained, the objective medical evidence does 14 not 15 limitations. 16 standing alone, is insufficient to reject subjective complaints, it 17 is, nevertheless, one of the considerations. 18 345. 19 claim, the ALJ noted that treatment notes from Plaintiff s doctors 20 showed that the psoriasis was either under control or stable and 21 improving. 22 contradict Plaintiff s testimony at the hearing about her physical 23 limitations. 24 comport with Plaintiff s (AR 13-16). testimony regarding her pain and Although the lack of objective evidence, Bunnell, 947 F.2d at Here, as the Court discussed in addressing Plaintiff s first (AR 14; see AR 359, 356, 488-89, 486, 475). These notes (AR 38-41). Second, the ALJ also noted that Plaintiff was non-compliant with 25 her medication for psoriatic arthritis. (AR 15). Ninth Circuit case 26 law approves the use of treatment history to evaluate a claimant s 27 credibility. 28 2007) (allowing ALJ to discredit claimant if he failed to seek See, e.g., Orn v. Astrue, 495 F.3d 625, 638 (9th Cir. 9 1 treatment but complained about pain or failed to follow prescribed 2 treatment). 3 various parts of her body but failed to take any medication; in July 4 2010 she failed to take her medication for two months. 5 477, 485). 6 Plaintiff s record of mental health visits, there was no indication 7 anywhere 8 Therefore, based on Plaintiff s treatment history, the ALJ had reason 9 to discredit her testimony. 10 Here, in January 2010 Plaintiff complained of pain in (AR 14, see AR Also of significance is the ALJ s finding that despite that she was precluded from work activity. (AR 15). Next, the ALJ found that Plaintiff had obtained a dual major 11 Bachelor of Arts 12 employment besides briefly in 1995-1996. 13 history is a legitimate factor in determining whether a claimant is 14 credible. 15 appropriately discredited Plaintiff based on her work history. See degree Thomas, but 278 made F.3d no at serious to gain (AR 15, see AR 126). Work 959. attempts Therefore, the ALJ 16 Finally, the ALJ took note of Plaintiff s daily activities and 17 concluded that they were inconsistent with her testimony at the 18 hearing regarding the pain and limitations she experienced. 19 15). 20 Plaintiff s second claim, daily activities are a permissible factor in 21 considering a claimant s credibility. 22 603. 23 driving, laundry, and others and her intention of conceiving and 24 having a child, the ALJ could infer that these activities were 25 inconsistent with her claimed limitations and pain. 26 As the Court discussed with greater detail in (AR 13, analyzing See, e.g., Fair, 885 F.2d at Given Plaintiff s daily activities, like household chores, For the foregoing reasons, the Court cannot second-guess the 27 ALJ s credibility assessment, since 28 evidence in the record, and is supported by specific and legitimate 10 it is based on substantial 1 2 3 4 reasons. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 5 6 7 DATED: June 3, 2013 /s/ VICTOR B. KENTON 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 11

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