Cheryl Anne Rossiter v. Carolyn W. Colvin, No. 5:2012cv01919 - Document 21 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHERYL ANNE ROSSITER, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, COMMISSIONER ) OF SOCIAL SECURITY, ) ) Defendant. ) ) __________________________________) NO. ED CV 12-1919-E MEMORANDUM OPINION 17 18 19 20 PROCEEDINGS Plaintiff filed a Complaint on November 8, 2012, seeking review 21 of the Commissioner s denial of benefits. The parties filed a 22 Statement of Consent to Proceed Before a United States Magistrate 23 Judge, etc. on December 6, 2012. 24 25 Plaintiff filed a motion for summary judgment on April 16, 2013. 26 Defendant filed a motion for summary judgment on June 14, 2013. The 27 Court has taken both motions under submission without oral argument. 28 See Order, filed November 13, 2012. 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 Plaintiff, a former bartender, asserted disability based on 4 alleged physical and mental problems (Administrative Record ( A.R. ) 5 1001-03, 1012, 1020). 6 the medical record and heard testimony from Plaintiff and from a 7 vocational expert (A.R. 1-1242). 8 following severe impairments: osteoarthritis in the back, bipolar 9 disorder, panic disorder, and history of polysubstance abuse in An Administrative Law Judge ( ALJ ) examined The ALJ found Plaintiff has the 10 sustained remission (A.R. 1236). The ALJ also found, however, that 11 Plaintiff retains the residual functional capacity to perform a 12 limited range of light work (A.R. 1237). 13 testimony of the vocational expert, the ALJ determined that a person 14 having this capacity could perform jobs that exist in significant 15 numbers in the national economy (A.R. 1227-28, 1241-42). 16 Council denied review (A.R. 960-62). In reliance on the The Appeals 17 18 STANDARD OF REVIEW 19 20 Under 42 U.S.C. section 405(g), this Court reviews the 21 Administration s decision to determine if: (1) the Administration s 22 findings are supported by substantial evidence; and (2) the 23 Administration used correct legal standards. 24 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 25 499 F.3d 1071, 1074 (9th Cir. 2007). 26 relevant evidence as a reasonable mind might accept as adequate to 27 support a conclusion. 28 (1971) (citation and quotations omitted); see also Widmark v. See Carmickle v. Substantial evidence is such Richardson v. Perales, 402 U.S. 389, 401 2 1 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). 2 3 This Court may not affirm [the Administration s] decision 4 simply by isolating a specific quantum of supporting evidence, but 5 must also consider evidence that detracts from [the Administration s] 6 conclusion. 7 (citation and quotations omitted); see Lingenfelter v. Astrue, 504 8 F.3d 1028 (9th Cir. 2007) (same). 9 findings supported by substantial evidence, even though there may Ray v. Bowen, 813 F.2d 914, 915 (9th Cir. 1987) However, the Court cannot disturb 10 exist other evidence supporting Plaintiff s claim. See Torske v. 11 Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, 417 U.S. 12 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). 13 14 DISCUSSION 15 16 After consideration of the record as a whole, Defendant s motion 17 is granted and Plaintiff s motion is denied. The Administration s 18 findings are supported by substantial evidence and are free from 19 material1 legal error. 20 /// 21 /// 22 /// 23 /// 24 /// 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1991); see also Batson v. Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). 3 1 2 I. Substantial Evidence Supports the Conclusion Plaintiff Could Work. 3 4 Substantial medical and non-medical evidence supports the ALJ s 5 determination that Plaintiff could work through the date of the ALJ s 6 latest decision. 7 not require a contrary determination. Conflicts in the evidence argued by Plaintiff do 8 9 Initially, the Court observes that, in connection with a prior 10 application, the Administration found Plaintiff able to work through 11 May 21, 2008 (A.R. 365-75, 966-76) ( the prior administrative 12 decision ). 13 inter alia, the contrary opinions of Dr. Steve Eklund, Plaintiff s 14 treating psychiatrist (id.). 15 995-E, this Court upheld the prior administrative decision. 16 case, the Court held, inter alia, that the ALJ properly had rejected 17 the opinions of Dr. Eklund.2 In the prior administrative decision, the ALJ rejected, In Rossiter v. Astrue, No. ED CV 08In that 18 19 In connection with Plaintiff s current application, Dr. Warren 20 David Yu, a board certified orthopedic surgeon, examined Plaintiff 21 and rendered a March 15, 2009 consultative report (A.R. 1148-51). 22 Dr. Yu opined Plaintiff can perform light work (A.R. 1151). 23 consultative examiner s opinion can furnish substantial evidence 24 supporting an administrative finding of non-disability. 25 Tonapetyan v. Halter, 242 F.3d at 1149; see also Orn v. Astrue, 495 A See 26 2 27 28 In the present case, the ALJ found that Plaintiff had rebutted the presumption of continuing nondisability by alleging that her musculoskeletal and mental symptoms have worsened (A.R. 1239). 4 1 F.3d 625, 632 (9th Cir. 2007) (consultative opinion based on 2 independent clinical findings can be substantial evidence upon which 3 the ALJ may rely). 4 5 In addition to the mental status evidence already in the medical 6 record, a state agency physician rendered 2009 mental residual 7 functional capacity assessments consistent with the capacity the ALJ 8 found to exist (A.R. 1130-43). 9 examining expert does not contradict all other evidence in the 10 record, the Administration properly may rely upon such opinion. 11 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Curry v. 12 Sullivan, 925 F.2d at 1130 n.2. Where, as here, the opinion of a non- See 13 14 Some statements made by Plaintiff herself also supported the 15 administrative determination. Plaintiff testified she was working 16 part-time in a diner (A.R. 1211). 17 really work more than 5 hours in a shift . . . [because] it gets to 18 be too much because I m on my feet the whole time (A.R. 1216). 19 Plaintiff later appeared to concede, however, that she might be able 20 to work full-time at a job having a perfect balance between being on 21 my feet and being sitting down (A.R. 1225). 22 capacity found by the ALJ and the jobs identified by the vocational 23 expert contemplate a sit/stand option (A.R. 1227-28, 1237, 1242). 24 Plaintiff also testified she had not received any complaints from 25 customers or co-workers in the diner, that she crochets, and that she 26 reads 300 to 500 page books (A.R. 1221). 27 regarding her functional abilities, and a claimant s history of 28 working despite impairments, may constitute substantial evidence that Plaintiff claimed she can t 5 The residual functional A claimant s concession 1 the claimant s impairments, are not disabling. See Ray v. Bowen, 813 2 F.2d at 917; Fox v. Heckler, 776 F.2d 738, 745 (7th Cir. 1985); Baker 3 v. Gardner, 388 F.2d 493, 494 (5th Cir. 1968). 4 5 As argued by Plaintiff, the record contains some conflicting 6 evidence. It was the prerogative of the ALJ, however, to resolve the 7 conflicts in the evidence. 8 (9th Cir. 2001). 9 one rational interpretation, the Court must uphold the See Lewis v. Apfel, 236 F.3d 503, 509 Whenever the evidence is susceptible to more than 10 administrative decision. Andrews v. Shalala, 53 F.3d at 1039-40; 11 accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); 12 Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). 13 14 The vocational expert testified that a person having the 15 limitations identified by the ALJ could perform jobs existing in 16 significant numbers in the national economy (A.R. 1227-28, 1237- 17 1242). 18 significant numbers of jobs Plaintiff can perform. 19 Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); see also Barker v. 20 Secretary of Health and Human Serv., 882 F.2d 1474, 1478-80 (9th Cir. 21 1989); Martinez v. Heckler, 807 F.2d 771, 775 (9th Cir. 1986); see 22 generally 42 U.S.C. § 423(d)(2)(A). This testimony furnishes substantial evidence there exist See Burkhart v. 23 24 II. Plaintiff s Other Arguments Are Unavailing. 25 26 Plaintiff argues that the ALJ erred in rejecting the opinions of 27 Plaintiff s treating physicians, Drs. Bikramjit Ahluwalia and Steve 28 Eklund. No material error occurred. 6 1 Where, as here, a treating physician s opinion is contradicted, 2 the ALJ may reject the opinion by setting forth specific, legitimate 3 reasons for doing so. 4 1987); Orn v. Astrue, 495 F.3d at 631-33 (discussing same). 5 must do more than offer his conclusions. 6 interpretations and explain why they, rather than the [physician s], 7 are correct. 8 Broad and vague reasons for rejecting the treating physician s 9 opinion do not suffice. 10 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. The ALJ He must set forth his own Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). 11 12 Plaintiff first argues that the ALJ failed specifically to 13 address Dr. Ahluwalia s February 18, 2009 report. 14 was harmless. 15 specifically suggesting a limitation on Plaintiff s functional 16 capacity is an X in the Yes box under the question Do upper 17 extremity limitations affect ability to lift/carry w/free hand? 18 (A.R. 1145). 19 carpal tunnel syndrome (id.). 20 address Dr. Ahluwalia s February 18, 2009 opinion regarding upper 21 extremity limitations was harmless if only because Dr. Ahluwalia 22 conceded later in the same year that Plaintiff had no such 23 limitations (A.R. 1157) (reflecting an X in the No box below the 24 question Do upper extremity limitations affect ability to lift/carry 25 w/free hand? ). 26 /// 27 28 Any such failure The only part of the February 18, 2009 report A handwritten notation next to the box references The alleged failure of the ALJ to Plaintiff also complains that the ALJ preferred Dr. Yu s opinion to the opinions in Dr. Ahluwalia s September 20, 2009 report. 7 In 1 addition to indicating Plaintiff has no upper extremity limitation 2 affecting the ability to lift or carry, Dr. Ahluwalia s September 20, 3 2009 report contains the conclusion do not think patient is able to 4 perform any work (A.R. 1158). 5 conclusion seemingly contrary to Plaintiff s own testimony) (A.R. 6 1240). 7 2009 physical examination was unremarkable except for faint 8 erythematous areas on the legs, and Dr. Ahluwalia s objective 9 findings are more consistent with Dr. Yu s objective findings, which The ALJ rejected this conclusion (a The ALJ stated, inter alia, that Dr. Ahluwalia s October 26, 10 support a residual functional capacity for light work (A.R. 1240; 11 see A.R. 1201 (record of Dr. Ahluwalia s October 26, 2009 examination 12 of Plaintiff in which Dr. Ahluwalia found no tender joints and 13 found full range of motion in all joints)). 14 reasoning suffices to justify the rejection of Dr. Ahluwalia s 15 opinions. 16 conclusory assessment when unsupported by adequate clinical findings. 17 See, e.g., Matney v. Sullivan, 981 F.2d 1016, 1019-20 (9th Cir. 18 1992); Burkhart v. Bowen, 856 F.2d at 1139-40; Young v. Heckler, 803 19 F.2d 963, 967-68 (9th Cir. 1986); see also Bayliss v. Barnhart, 427 20 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating 21 physician s assessment and clinical notes justifies rejection of 22 assessment); Batson v. Commissioner, 359 F.3d at 1195 ( an ALJ may 23 discredit treating physicians opinions that are conclusory, brief, 24 and unsupported by the record as a whole . . . or by objective 25 medical findings ); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 26 2003) (treating physician s opinion properly rejected where treating 27 physician s treatment notes provide no basis for the functional 28 restrictions he opined should be imposed on [the claimant] ); Morgan The ALJ s stated An ALJ properly may reject a treating physician s 8 1 v. Commissioner, 169 F.3d 595, 600 (9th Cir. 1999) (treating 2 physician s opinion is not necessarily conclusive as to either the 3 physical condition or the ultimate issue of disability ); Crane v. 4 Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (noting that an ALJ 5 permissibly could reject three evaluations because they were check- 6 off reports that did not contain any explanation of the bases of 7 their conclusions ).3 8 9 As in Rossiter v. Astrue, No. ED CV 08-995-E, Plaintiff also 10 complains of the ALJ s rejection of Dr. Eklund s opinions. No 11 material error occurred. 12 Plaintiff s mental problems markedly limited her work-related 13 functionality in numerous respects (A.R. 1161-62). 14 observes that this opinion predated the prior administrative decision 15 finding Plaintiff not disabled, a decision subsequently upheld by 16 this Court. On April 29, 2008, Dr. Eklund opined that The Court 17 18 Dr. Eklund s later reports say little or nothing specific 19 regarding Plaintiff s ability to work (A.R. 1125-29, 1147, 1152-55). 20 In any event, the ALJ stated sufficient reasons for rejecting any 21 suggestion by Dr. Eklund that mental problems prevent Plaintiff from 22 working. 23 diner with no customer or employer complaints. 24 notwithstanding her asserted memory and concentration problems (A.R. 25 1240). The ALJ emphasized that Plaintiff works part-time at a She also reads The ALJ characterized Plaintiff s mental health symptoms as 26 27 28 3 The Court need not and does not determine whether Dr. Yu s opinions, by themselves, would have justified the rejection of Dr. Ahluwalia s opinions. 9 1 stable with little change in her psychiatric regimen (A.R. 1240). 2 It is true that some of Plaintiff s medications have changed over 3 time. 4 conclude that Plaintiff s reported mental health symptoms reflected 5 in the treating records, as well as Plaintiff s actual activities, 6 exhibit an ability to work notwithstanding her alleged mental 7 problems. 8 Plaintiff experiences mood swings. 9 however, Plaintiff has experienced these mood swings since she was 15 However, it is also true that the ALJ rationally could Plaintiff repeatedly stresses Dr. Eklund s findings that As Dr. Eklund acknowledged, 10 years old (A.R. 1125). Plaintiff nevertheless has worked, and has 11 been found to be able to work, many years into Plaintiff s adulthood. 12 13 CONCLUSION 14 15 For all of the reasons discussed herein, Plaintiff s motion for 16 summary judgment is denied and Defendant s motion for summary 17 judgment is granted. 18 19 LET JUDGMENT BE ENTERED ACCORDINGLY. 20 21 DATED: June 27, 2013. 22 23 24 _____________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 25 26 27 28 10

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