Colleen Flora Archuleta v. Michael J Astrue, No. 5:2012cv01197 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 COLLEEN ARCHULETA, Plaintiff, 13 v. 14 CAROLYN W. COLVIN, 15 Acting Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-1197-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On August 4, 2012, Colleen Archuleta ( Plaintiff or Claimant ) filed a complaint seeking 20 review of the decision by the Commissioner of Social Security ( Commissioner ) denying 21 Plaintiff s application for Social Security Disability Insurance benefits. The Commissioner filed 22 an Answer on November 8, 2012. On March 18, 2013, the parties filed a Joint Stipulation 23 ( JS ). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 25 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 26 concludes that the Commissioner s decision must be affirmed and this case dismissed with 27 prejudice. 28 1 BACKGROUND 2 Plaintiff is a 29 year old female who applied for Social Security Disability Insurance 3 benefits on January 26, 2009. (AR 9.) The ALJ determined that Plaintiff has not engaged in 4 substantial gainful activity since January 17, 2008, the alleged onset date of her disability. (AR 5 11.) Plaintiff s claim was denied initially on April 6, 2009, and on reconsideration on July 2, 6 7 2009. (AR 9.) Plaintiff filed a timely request for hearing, which was held before Administrative 8 Law Judge ( ALJ ) William K. Mueller on August 26, 2010, in San Bernardino, California. (AR 9 9.) Claimant appeared and testified at the hearing and was represented by counsel. (AR 9.) 10 Vocational expert ( VE ) Corinne J. Porter also appeared and testified at the hearing. (AR 9.) The ALJ issued an unfavorable decision on November 5, 2010. (AR 9-17.) The Appeals 11 12 Council denied review on June 8, 2012. (AR 1-4.) 13 DISPUTED ISSUES 14 As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as 15 grounds for reversal and remand: 1. 16 Whether the ALJ properly considered Plaintiff s February 2009 statement and November 2010 testimony.1 17 2. 18 Whether the ALJ properly considered the November 2010 lay testimony of Plaintiff s father. 19 3. 20 Whether the ALJ properly considered the March 2009 opinions of psychiatric consultative examiner Romualdo Rodriguez, M.D. 21 STANDARD OF REVIEW 22 Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 23 24 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 25 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 26 27 1 28 The Commissioner notes that Plaintiff repeatedly refers to November 2010 testimony . The hearing in which the referenced testimony took place was held on August 26, 2010. (AR 21-61.) 2 1 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 2 based on the proper legal standards). 3 Substantial evidence means more than a mere scintilla, but less than a 4 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 5 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 7 401 (internal quotation marks and citation omitted). 8 This Court must review the record as a whole and consider adverse as well as 9 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 10 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 11 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 12 However, a reviewing court must consider the entire record as a whole and may not affirm 13 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 14 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 15 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 16 17 The Social Security Act defines disability as the inability to engage in any substantial 18 gainful activity by reason of any medically determinable physical or mental impairment which 19 can be expected to result in death or . . . can be expected to last for a continuous period of not 20 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 21 established a five-step sequential process to determine whether a claimant is disabled. 20 22 C.F.R. §§ 404.1520, 416.920. 23 The first step is to determine whether the claimant is presently engaging in substantial 24 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 25 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 26 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 27 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 28 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 3 1 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 2 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 3 at 746. If the impairment meets or equals one of the listed impairments, the claimant is 4 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 5 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 6 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 7 Before making the step four determination, the ALJ first must determine the claimant s 8 residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual functional capacity 9 ( RFC ) is the most [one] can still do despite [his or her] limitations and represents an 10 assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 11 The RFC must consider all of the claimant s impairments, including those that are not severe. 12 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 13 If the claimant cannot perform his or her past relevant work or has no past relevant work, 14 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 15 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 16 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 17 consistent with the general rule that at all times the burden is on the claimant to establish his or 18 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 19 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 20 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 21 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 22 demonstrating that other work exists in significant numbers in the national economy that the 23 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 24 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 25 entitled to benefits. Id. 26 27 28 4 THE ALJ DECISION 1 2 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 3 not engaged in substantial gainful activity since January 17, 2008, the alleged onset date. (AR 4 11.) 5 At step two, the ALJ determined that Plaintiff has the the severe impairment of affective 6 disorder. (AR 11.) 7 At step three, the ALJ determined that Plaintiff does not have an impairment or 8 combination of impairments that meets or medically equals one of the listed impairments. (AR 9 11-13.) 10 The ALJ then found that Plaintiff has the RFC to perform light work, as defined in 20 11 CFR § 404.1567(b) with the following limitation: Claimant is able to perform simple, repetitive, 12 routine tasks. (AR 13-15.) In determining this RFC, the ALJ made an adverse credibility 13 determination. (AR 14.) 14 At step four, the ALJ found that Plaintiff is unable to perform her past relevant work as an 15 in-home care provider and a waitress. (AR 15-16.) However, the ALJ found that there are jobs 16 that exist in significant numbers in the national economy that Claimant can perform, including 17 garment sorter, cleaner and mail clerk. (AR 16-17.) 18 Consequently, the ALJ found Claimant not disabled within the meaning of the Social 19 Security Act at any time from the alleged onset date through the date of the ALJ s decision. 20 (AR 17.) 21 22 DISCUSSION The ALJ decision must be affirmed. The ALJ properly considered the testimony of the 23 psychiatric consulting examiner, of the Plaintiff and of the lay witness testimony of her father. 24 The ALJ s RFC is supported by substantial evidence. The ALJ s non-disability 25 determination is supported by substantial evidence and free of legal error. 26 27 28 5 1 I. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 THE ALJ PROPERLY CONSIDERED THE OPINION OF CONSULTING PSYCHIATRIST EXAMINER DR. ROMUALDO RODRIGUEZ Plaintiff contends that the ALJ failed to include in his RFC and in his hypothetical to the VE non-severe impairments found by consulting psychiatric examiner Dr. Romualdo Rodriguez. The Court disagrees. A. Relevant Federal Law In evaluating medical opinions, the case law and regulations distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In general, an ALJ must accord special weight to a treating physician s opinion because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If a treating source s opinion on the issues of the nature and severity of a claimant s impairments is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence in the case record, the ALJ must give it controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Where a treating doctor s opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the treating physician s opinion is contradicted by another doctor, such as an examining physician, the ALJ may reject the treating physician s opinion by providing specific, legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating physician's opinion is contradicted by an examining professional s opinion, the Commissioner may resolve the conflict by relying on the examining physician s opinion if the examining physician s opinion is supported by different, independent clinical findings. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 28 6 1 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 2 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician s 3 opinion is contradicted by another physician s opinion, an ALJ must provide specific and 4 legitimate reasons to reject it. Id. However, [t]he opinion of a non-examining physician cannot 5 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 6 examining physician or a treating physician ; such an opinion may serve as substantial 7 evidence only when it is consistent with and supported by other independent evidence in the 8 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 9 10 B. Analysis Consulting psychiatric examiner Dr. Romualdo Rodriguez diagnosed Plaintiff with bipolar 11 disorder in remission, under very good control with medication. (AR 14, 255, 256.) He also 12 found Claimant s ADHD could improve further with proper treatment and medication. (AR 14, 13 256.) Dr. Rodriguez found Plaintiff was able to carry out both simple one or two step job 14 instructions, and also detailed and complex instructions. (AR 15, 256.) 15 Plaintiff contends that the ALJ did not include in his RFC and in his hypothetical to the 16 VE certain non-severe impairments found by Dr. Rodriguez. What Plaintiff cites, however, are 17 limitations found by Dr. Rodriguez. Specifically, Dr. Rodriguez found Plaintiff was slightly 18 limited in the ability to maintain concentration and attention persistence and pace, and 19 minimally limited in other areas of functioning. (AR 15, 257.) The ALJ properly accounted for 20 the slight limitation in concentration, persistence and pace in his light work RFC with his 21 limitation to simple, repetitive, routine tasks. (AR 13.) See Stubbs-Danielson v. Astrue, 539 22 F.3d 1169, 1174 (9th Cir. 2008) (ALJ properly accounted for pace and mental limitations with 23 restriction to simple tasks). 24 The ALJ, moreover, included this limitation in his hypothetical to the VE. (AR 57.) The 25 ALJ properly limited the hypothetical to limitations supported by the record. Osenbrock v. Apfel, 26 240 F.3d 1157, 1163 (9th Cir. 2001). The VE found that Plaintiff would be unable to perform 27 her past relevant work (AR 15, 56) but could perform light, unskilled work limited to simple, 28 routine, repetitive tasks and gave examples of jobs available in the national economy Plaintiff 7 1 could perform. (AR 16, 56-57.) Because the hypothetical that the ALJ posed to the VE 2 contained all of the limitations the ALJ found credible and supported by substantial evidence, 3 the ALJ s reliance on the VE testimony was proper. See Bayliss, 427 F.3d at 1217. 4 The Court also observes that the opinions of State agency physicians Dr. Amado and Dr. 5 Khan are consistent with the opinion of Dr. Rodriguez. (AR 15.) The ALJ gave great weight 6 to the opinion of Dr. Rodriguez, and considerable or significant weight to the opinions of Dr. 7 Amado and Dr. Khan, because the opinions of all three physicians consider Claimant s 8 subjective complaints and are consistent with the objective findings, opinion evidence and the 9 record as a whole. (AR 15.) 10 The ALJ properly considered the opinion of Dr. Rodriguez. The ALJ s RFC properly 11 included all of Plaintiff s limitations that are supported by substantial evidence. The ALJ s 12 hypothetical to the VE did so as well. 13 II. THE ALJ PROPERLY DISCOUNTED PLAINTIFF S CREDIBILITY 14 Plaintiff contends that the ALJ improperly discounted her credibility. The Court 15 disagrees. 16 A. Relevant Federal Law 17 The test for deciding whether to accept a claimant s subjective symptom testimony turns 18 on whether the claimant produces medical evidence of an impairment that reasonably could be 19 expected to produce the pain or other symptoms alleged. Bunnell v. Sullivan, 947 F.2d 341, 20 346 (9th Cir. 1991); see also Reddick, 157 F.3d at 722; Smolen v. Chater, 80 F.3d at 1281-82 21 esp. n.2. The Commissioner may not discredit a claimant s testimony on the severity of 22 symptoms merely because they are unsupported by objective medical evidence. Reddick, 157 23 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the claimant s pain testimony not 24 credible, the ALJ must specifically make findings which support this conclusion. Bunnell, 947 25 F.2d at 345. The ALJ must set forth findings sufficiently specific to permit the court to conclude 26 that the ALJ did not arbitrarily discredit claimant s testimony. Thomas, 278 F.3d at 958; see 27 also Rollins v. Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345-46. 28 Unless there is evidence of malingering, the ALJ can reject the claimant s testimony about the 8 1 severity of a claimant s symptoms only by offering specific, clear and convincing reasons for 2 doing so. Smolen, 80 F.3d at 1283-84; see also Reddick, 157 F.3d at 722. The ALJ must 3 identify what testimony is not credible and what evidence discredits the testimony. Reddick, 4 157 F.3d at 722; Smolen, 80 F.3d at 1284. 5 B. Analysis 6 In determining Plaintiff s RFC, the ALJ concluded that Plaintiff s medically determinable 7 impairments reasonably could be expected to cause her alleged symptoms. (AR 14.) The ALJ, 8 however, found that Plaintiff s statements regarding the intensity, persistence and limiting 9 effects of these symptoms are not credible to the extent inconsistent with the ALJ s RFC. (AR 10 14.) Because the ALJ did not make a finding of malingering, he was required to provide clear 11 and convincing reasons supported by substantial evidence to discount Plaintiff s credibility. The 12 ALJ did so. 13 First, the ALJ found that the medical evidence indicated that Plaintiff s impairments are 14 not as severe as alleged. (AR 14.) An ALJ is entitled to consider whether there is a lack of 15 medical evidence to corroborate a claimant s subjective symptom testimony so long as it is not 16 the only reason for discounting the claimant s testimony. Burch v. Barnhart, 400 F.3d 676, 68017 81 (9th Cir. 2005). As already observed, several physicians who examined Plaintiff or reviewed 18 her records found only mild or slight or minimal limitations and that any symptoms were 19 substantially mitigated when she was compliant with her medications and prescribed treatment 20 regimen. (AR 12-15.) Treatment notes indicate that Claimant repeatedly denied suicidal, 21 homicidal, audio, and visual hallucinations and that Claimant was doing well and was stable. 22 (AR 14.) There is no medical evidence supporting limitations greater than those contained in 23 the ALJ s RFC. 24 The ALJ indicates that treatment has been routine and conservative in nature, consisting 25 primarily of continuing medication refills that have been effective in controlling Claimant s 26 symptoms. (AR 14.) Dr. Amado found that Plaintiff s condition was responsive to treatment 27 efforts with substantial mitigating compact on severity. (AR 15.) Impairments controlled 28 effectively with conservative medical treatment are not disabling. Tommasetti v. Astrue, 533 9 1 F.3d 1035, 1040 (9th Cir. 2008); Warre v. Comm r of Soc. Sec. Adm., 439 F.3d 1001, 1006 (9th 2 Cir. 2006). Conservative treatment is a valid factor in assessing credibility. Tommasetti, 533 3 F.3d at 1039-40. 4 The ALJ gave additional reasons for discounting Plaintiff s credibility. Plaintiff on 5 occasion has been non-compliant with her medications. (AR 14.) A claimant s failure to follow 6 a prescribed course of treatment can be a valid reason for discounting credibility. Fair v. 7 Bowen, 885 F.2d 597, 603 (9th Cir. 1989). Plaintiff was a poor historian and gave conflicting 8 information throughout an assessment. (AR 14, 279.) An ALJ may consider inconsistencies in 9 testimony or between testimony and conduct in evaluating credibility. Orn, 495 F.3d at 636. 10 Also, Plaintiff s alleged limitations were inconsistent with her daily activities which were only 11 mildly limited. (AR 12, 15.) Inconsistent daily activities are a legitimate factor in assessing 12 credibility. Bunnell, 947 F.2d at 345-346. 13 Although Plaintiff disputes these findings, it is the ALJ s responsibility to resolve 14 ambiguities in the record. Andrews, 53 F.3d at 1039. Where as here the ALJ s interpretation of 15 the medical evidence is reasonable, it should not be second-guessed. Rollins, 261 F.3d at 857. 16 The ALJ properly discounted Plaintiff s credibility for clear and convincing reasons 17 supported by substantial evidence. 18 III. THE ALJ PROPERLY CONSIDERED THE LAY WITNESS TESTIMONY 19 Plaintiff asserts that the ALJ failed to consider the lay witness testimony of Plaintiff s 20 father, Rich Archuleta. (AR 46-49.) Lay witness testimony regarding a claimant s symptoms is 21 competent evidence that an ALJ must take into account, unless the ALJ expressly 22 determines to disregard such testimony and gives germane reasons to each witness for doing 23 so. Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 24 Plaintiff is correct that the ALJ did not mention Mr. Archuleta s testimony, but the failure 25 to do so was harmless error. Mr. Archuleta gave essentially the same testimony as Claimant. 26 The Ninth Circuit recently held that, where an ALJ gives valid reasons for rejecting a claimant s 27 testimony and those reasons apply equally well to lay witness testimony, failing to discuss the 28 10 1 lay witness testimony is harmless error. Molina v. Astrue, 674 F.3d 1104, 1114-17 (9th Cir. 2 2012). So it is here. *** 3 4 The ALJ properly considered the testimony of Dr. Rodriguez and properly discounted the 5 testimony of Claimant and her father. The ALJ s RFC is supported by substantial evidence. 6 The ALJ s non-disability determination is supported by substantial evidence and free of legal 7 error. 8 ORDER 9 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 10 Commissioner of Social Security and dismissing this case with prejudice. 11 12 DATED: March 27, 2013 13 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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