Ms Eneida Perez Argueta v. Michael Astrue, No. 8:2011cv01498 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
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Ms Eneida Perez Argueta v. Michael Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ENEIDA PEREZ ARGUETA, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN,1 ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ___________________________________) NO. SACV 11-1498-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on October 7, 2011, seeking review of 19 the denial by the Social Security Commissioner ( Commissioner ) of 20 plaintiff s application for a period of disability and disability 21 insurance benefits ( DIB ). On February 2, 2012, the parties consented, 22 pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United 23 States Magistrate Judge. The parties filed a Joint Stipulation on 24 August 29, 2012, in which: plaintiff seeks an order reversing the 25 Commissioner s decision and awarding benefits or, alternatively, 26 27 1 28 Carolyn W. Colvin became the Acting Commissioner of the Social Security Administration on February 14, 2013, and is substituted in place of former Commissioner Michael J. Astrue as the defendant in this action. (See Fed. R. Civ. P. 25(d).) Dockets.Justia.com 1 remanding for further administrative proceedings; and the Commissioner 2 requests that his decision be affirmed or, alternatively, remanded for 3 further administrative proceedings. 4 5 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 6 7 On May 7, 2008, plaintiff protectively filed an application for a 8 period of disability and DIB alleging an inability to work since July 1, 9 2007, because she cannot move hands due to pain, [and] cannot walk for 10 long periods of time. (Administrative Record ( A.R. ) 26, 212.) 11 12 After the Commissioner denied plaintiff s claim initially and upon 13 reconsideration (A.R. 112-16, 119-23), plaintiff requested a hearing 14 (A.R. 40-41). 15 an attorney, appeared and testified at a hearing before Administrative 16 Law Judge Charles E. Stevenson (the ALJ ). 17 expert Alan Boroskin ( VE ) also testified. 18 the ALJ denied plaintiff s claim noting that a hearing decision dated 19 June 26, 2007 found that [plaintiff] retained the residual functional 20 capacity to perform a broad range of light work and was not disabled, 21 and plaintiff has not presented any new or material evidence warranting 22 a change in her residual functional capacity. (A.R. 26.) 23 the presumption of continuing non-disability applies and the June 26, 24 2007 25 date. decision On December 22, 2009, plaintiff, who was represented by is res judicata as to (A.R. 49-66.) (Id.) the Vocational On March 5, 2010, period As a result, through that (A.R. 20-22, 26-37.) 26 27 28 The Appeals Council subsequently denied plaintiff s request for review of the ALJ s decision. (A.R. 15.) 2 That decision is now at issue 1 in this action. 2 3 SUMMARY OF ADMINISTRATIVE DECISION 4 5 The ALJ found that plaintiff met the insured status requirements of 6 the Social Security Act through June 30, 2011, and that she had not 7 engaged in substantial gainful activity from her alleged onset date of 8 July 1, 2007, through the date of the decision. 9 further determined that plaintiff has the (A.R. 28, 33.) severe The ALJ impairments of: 10 cervicalgia, bilateral shoulder impingement, bilateral forearm and 11 wrist 12 bilateral chondromalacia patellae, possible autoimmune disorder, and a 13 mood disorder. 14 concluded that none of these impairments meet or medically equal the 15 criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, 16 Appendix 1, the Listing of Impairments. tendonitis, possible left Guyon s, chronic lumbar (A.R. 28-29; internal citation omitted.) strain, The ALJ (A.R. 29.) 17 18 After reviewing the record, the ALJ determined that plaintiff has 19 the residual functional capacity ( RFC ) to perform light work as 20 defined in 20 C.F.R. § 404.1567(b) with the following limitations: 21 22 [plaintiff] can lift and carry 20 pounds occasionally and 10 23 pounds frequently[,] stand and/or walk 6 hours in an 8-hour 24 workday with frequent to occasional overhead reaching, no 25 kneeling, crouching, climbing, running or jumping, no constant 26 very fine manipulations and no restriction on handling or 27 the 28 fingering. usual type of fingering 3 as opposed to very fine 1 (A.R. 30.) 2 3 The ALJ found that plaintiff was capable of performing her past 4 relevant work ( PRW ) as a hand packager as [she] performed it and 5 cleaner/polisher as generally performed. 6 the ALJ concluded that plaintiff has not been under a disability, as 7 defined in the Social Security Act, from July 1, 2007, through the date 8 of his decision. (A.R. 32-33.) Accordingly, (A.R. 33.) 9 STANDARD OF REVIEW 10 11 12 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 13 decision to determine whether it is free from legal error and supported 14 by substantial evidence. 15 2007). Substantial evidence is such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion. 17 omitted). 18 necessarily a preponderance. 19 (9th Cir. 2003). 20 substantial evidence, only those reasonably drawn from the record will 21 suffice. 22 2006)(citation omitted). Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. Id. (citation The evidence must be more than a mere scintilla but not Connett v. Barnhart, 340 F.3d 871, 873 While inferences from the record can constitute Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 23 24 Although this Court cannot substitute its discretion for that of 25 the Commissioner, the Court nonetheless must review the record as a 26 whole, weighing both the evidence that supports and the evidence that 27 detracts from the [Commissioner s] conclusion. 28 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 4 Desrosiers v. Sec y of 1 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The ALJ is 2 responsible for determining credibility, resolving conflicts in medical 3 testimony, and for resolving ambiguities. 4 1035, 1039 (9th Cir. 1995). Andrews v. Shalala, 53 F.3d 5 The Court will uphold the Commissioner s decision when the evidence 6 7 is susceptible to more than one rational interpretation. Burch v. 8 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 9 review only the reasons stated by the ALJ in his decision and may not However, the Court may 10 affirm the ALJ on a ground upon which he did not rely. Orn, 495 F.3d 11 at 630; see also Connett, 340 F.3d at 874. 12 the Commissioner s decision if it is based on harmless error, which 13 exists only when it is clear from the record that an ALJ s error was 14 inconsequential to the ultimate nondisability determination. Robbins 15 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 16 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 17 at 679. The Court will not reverse 18 DISCUSSION 19 20 Plaintiff alleges the following six issues: 21 (1) whether the ALJ 22 properly determined that plaintiff s impairments had not changed since 23 the 24 considered the opinion of treating physician Gilbert Varela, M.D.; (3) 25 whether the ALJ properly considered plaintiff s subjective complaints; 26 (4) whether the ALJ properly determined plaintiff s RFC; (5) whether the 27 ALJ properly determined that plaintiff could perform her PRW; and (6) 28 whether prior June the 27, ALJ 2007 decision; constructively 5 (2) whether reopened the ALJ plaintiff s properly previous 1 application. (Joint Stipulation ( Joint Stip. ) at 2-3.) 2 3 I. The Previous Decision By ALJ Zirlin Created A Presumption Of Nondisability, Which Plaintiff Failed To Rebut. 4 5 6 Plaintiff contends that the ALJ erred in relying on the opinions of 7 treating physicians Richard I. Woods, M.D. and Max H. Matos, M.D. in 8 finding that she failed to prove changed circumstances to rebut the 9 presumption of continuing non-disability. (Joint Stip. at 9-16.) 10 11 Although applied less rigidly to administrative than to judicial 12 proceedings, principles 13 administrative decisions. 14 Cir. 1995); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Lyle v. 15 Sec y of Health and Hum. Servs., 700 F.2d 566, 568 (9th Cir. 1983). A 16 final a 17 presumption that the claimant retains the ability to work after the date 18 of the prior administrative decision. 19 Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000); Lyle, 700 F.2d at 568. 20 This presumption of continuing non-disability may be overcome by a 21 showing of changed circumstances. See Lester, 81 F.3d at 827; Chavez, 22 844 F.2d at 693. determination that of res judicata nevertheless apply to See Lester v. Chater, 81 F.3d 821, 827 (9th a claimant is not disabled creates See Schneider v. Comm r of Soc. 23 24 If a claimant does not meet her burden to adduce proof of change 25 in her medical condition or other changed circumstances, such as a new 26 medically-determinable impairment, an increase in the severity of an 27 existing impairment, or a change in her age category, the Commissioner 28 is not obliged to make a de novo determination of non-disability, even 6 1 when the burden of establishing disability otherwise would fall to the 2 Commissioner. See Booz v. Sec y of Health and Hum. Servs., 734 F.2d 3 1378, (9th Cir. 1984)(holding that 4 disability remained with the and 5 Commissioner at step five, as it normally does, because the unappealed 6 denial of the claimant s earlier application created a presumption of 7 non-disability that must be overcome by the claimant s showing of 8 changed circumstances, and where the ALJ permissibly concluded the 9 claimant had produced no reliable medical evidence that he was disabled, 10 the claimant had not met that burden); Lyle, 700 F.2d at 568-69 (holding 11 that when the second administrative law judge properly determined the 12 claimant had presented no evidence of changed circumstances to overcome 13 the presumption that his ability to do light work persisted, the 14 absence of proof of change was enough to meet the Secretary s burden 15 to show the claimant could perform alternative work; the Secretary was 16 not required again [to] meet his burden de novo ). 1379-80 claimant the did burden not to shift prove to the 17 18 Plaintiff had a previous hearing before Administrative Law Judge 19 Peggy M. Zirlin ( ALJ Zirlin ) on the same claims of disability as those 20 addressed in the ALJ s decision now before this Court for review. 21 A.R. 71-87.) 22 partially favorable decision, finding plaintiff disabled from April 26, 23 2004, to February 23, 2006, and not disabled from February 24, 2006, 24 through the date of her decision due to medical improvement in her 25 mental impairment.2 (A.R. 83-86.) Relying on a November 13, 2006 Agreed (See In her June 26, 2007 decision, ALJ Zirlin issued a 26 2 27 28 ALJ Zirlin noted in her decision that plaintiff had admitted to the psychiatric consultative examiner on February 24, 2006 that her medications help her mood. (A.R. 78.) Accordingly, plaintiff had medical improvement in her mental impairment and, by February 24, 2006, 7 1 Medical Examination ( AME ) report by Richard I. Woods, M.D. (a former 2 worker s 3 beginning on February 24, 2006, plaintiff had the RFC to perform light 4 work 5 crouching, 6 manipulations and no restriction on handling or the usual type of 7 fingering as opposed to very fine fingering. 8 Zirlin then determined that plaintiff was capable of performing her PRW 9 as a hand packager and cleaner/polisher. compensation with treating physician), frequent-to-occasional climbing, running or overhead jumping, ALJ Zirlin reaching, no constant found no that kneeling, very fine (A.R. 74-75, 84.) (A.R. 86.) ALJ Plaintiff did not 10 seek judicial review of the 2007 decision. Accordingly, ALJ Zirlin s 11 decision became the final decision of the Commissioner and created a 12 rebuttable presumption of continuing non-disability. 13 14 As an initial matter, plaintiff does not present any evidence of 15 changed circumstances, but rather offers reasons as to why the ALJ 16 should not have relied on the opinions of Dr. Woods and Dr. Max H. Matos 17 in finding that plaintiff s disability and impairments were unchanged 18 after ALJ Zirlin s 2007 decision. 19 unchanged circumstances since the June 2007 decision is supported by 20 substantial evidence. 21 cites Dr. Woods follow-up reports of March 13, 2007, and April 15, 22 2008, which reported no change in [plaintiff s] condition. (A.R. 308- 23 312, 402.) Indeed, in his April 2008 report, Dr. Woods noted that, based 24 on [plaintiff s] statement history, the physical examination, the 25 radiographic evidence, review of medical records, and [his] professional (A.R. 26.) Further, the ALJ s determination of In support of his contention, the ALJ 26 27 28 she regained the ability to understand, remember and carry out simple instructions, respond appropriately to supervisors, co-workers and the public, deal with changes in a routine work setting and use her judgment, on a regular and continuing basis. (Id.) 8 1 experience as a board certified orthopedic surgeon, [a]s to 2 [plaintiff s] impairment and factors of disability, I would refer the 3 parties to my November 13, 2006, orthopedic Agreed Medical Examination 4 report, as well as my supplemental report of March 13, 2007 . . . . 5 (A.R. 402.) 6 7 Additionally, on July 17, 2007, based on his physical evaluation of 8 plaintiff, another former worker s compensation treating physician, Dr. 9 Matos, reported that there had been no change in [plaintiff s] 10 condition since the November 13, 2006 Agreed Medical Examiner (AME) 11 report by Dr. Woods, and he did not anticipate significant change in the 12 pattern 13 omitted.) 14 his treatment notes through that time do not reflect any significant 15 change in plaintiff s status since Dr. Woods 2006 report. 16 300, 410, 420.) 17 underlying ALJ Zirlin s 2007 decision was supported by substantial 18 evidence. of her symptoms. (See A.R. 31, 286; internal citation Dr. Matos continued to treat plaintiff through April 2008; (A.R. 31, Thus, the ALJ s decision to accept the factual findings 19 20 To the extent plaintiff argues that the ALJ erroneously relied on 21 Dr. Woods and Matos opinions, because they were rendered in the 22 context of workers compensation proceedings, her claim is unavailing. 23 (Joint Stip. at 13-14.) 24 opinion simply because it was initially elicited in a state workers 25 compensation proceeding, or because it is couched in the terminology 26 used in such proceedings. 27 1105 (C.D. Cal. 2002)(citing Coria v. Heckler, 750 F.2d 245, 247 (3d 28 Cir. 1984)(holding that by failing to consider medical reports submitted An ALJ may not disregard a physician s medical Booth v. Barnhart, 181 F. Supp. 2d 1099, 9 1 in state workers compensation proceedings the ALJ failed to weigh all 2 the evidence of record). 3 4 In sum, the ALJ s application of res judicata was supported by 5 substantial evidence and free of legal error as plaintiff failed to 6 establish changed circumstances sufficient to overcome the presumption 7 of continuing nondisability. 8 9 II. The ALJ Gave 10 Rejecting 11 A Specific The Opinion Of And Legitimate Treating Reason For Physician Gilbert Varela, M.D. 12 13 It is the responsibility of the ALJ to analyze evidence and resolve 14 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 15 (9th Cir. 1989). 16 assessing a social security claim, [g]enerally, a treating physician s 17 opinion carries more weight than an examining physician s, and an 18 examining physician s opinion carries more weight than a reviewing 19 physician s. 20 2001); 20 C.F.R. § 404.1527(c). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 21 22 The opinions of treating physicians are entitled to the greatest 23 weight, because the treating physician is hired to cure and has a better 24 opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When 25 a treating physician s opinion is not contradicted by another physician, 26 it may be rejected only based upon clear and convincing reasons. 27 Lester, 81 F.3d at 830. When contradicted by another doctor, a treating 28 physician s opinion may only be rejected if the ALJ provides specific 10 1 and legitimate reasons supported by substantial evidence in the record. 2 Id. 3 contradicted, 4 specified factors, including the length of the treatment relationship 5 and the frequency of examination ; the nature and extent of the 6 treatment relationship ; and the consistency of the treating physician s 7 opinion with the record as a whole. It is well established that when a treating physician s opinion is the ALJ must assess its persuasiveness in view of Orn, 495 F.3d at 631. 8 9 Gilbert Valera, M.D. treated plaintiff from September 2008, through 10 November 2009. On September 3, 2008, Dr. Valera diagnosed plaintiff 11 with cervical, lumbosacral, left shoulder, right wrist, and bilateral 12 knee sprain and strain, as well as insomnia secondary to pain syndrome. 13 (A.R. 31, 535.) 14 repeated lifting greater than ten pounds; (2) no single lifting greater 15 than ten pounds; (3) no lifting above waist, shoulder, and head level; 16 (4) no bending, stooping, crouching, squatting, twisting, pushing, 17 pulling, climbing, or crawling; (5) no prolonged walking or standing; 18 (6) no fingering, handling, or grasping; (7) no bending head downward; 19 (8) no working greater than four hours per day; and (9) a ten minute 20 break every two hours. (A.R. 535-36.) 21 opined that plaintiff: should not pivot, climb, bend, stoop, kneel, 22 squat, jump, or run; should not stand or walk for a prolonged time; and 23 should avoid inclined surfaces. Dr. Valera restricted plaintiff to: (1) no carrying or On June 29, 2009, Dr. Valera (A.R. 524.) 24 25 In completing an October 20, 2009 Multiple Impairment 26 Questionnaire, Dr. Valera noted that he had been treating plaintiff 27 every four weeks since September 9, 2008. 28 opined that plaintiff: (A.R. 539.) Dr. Valera can sit for one hour in an eight-hour day and 11 1 stand/walk less than an hour in an eight-hour workday; can occasionally 2 lift up to ten pounds and carry up to twenty pounds; has marked 3 limitations in grasping, turning, and twisting objects, as well as using 4 her 5 reaching; experiences pain, fatigue, or other symptoms that would 6 constantly interfere with her attention and concentration; and is likely 7 to be absent from work more than three times a month due to her 8 impairments or treatment. 9 other limitations would affect plaintiff s ability to work at a regular fingers/hands for fine manipulations (A.R. 541-45.) and using her arms for Dr. Valera also opined that 10 job on a sustained basis, including her: psychological limitations; 11 need to avoid fumes, temperature extremes, and dust; and preclusion from 12 pushing, pulling, kneeling, bending, and stooping. 13 that plaintiff could not sustain a full-time competitive job. 14 544.) (Id.) He opined (A.R. 15 16 The ALJ gave Dr. Valera s opinion little weight, 17 because: 18 complaints; 19 objective findings; and (3) his opinion was inconsistent with other 20 medical evidence of record, including the opinions of Dr. Woods, Dr. 21 Matos, and Dr. Gonzalez. (1) Dr. Valera relied entirely on plaintiff s subjective (2) his opinion was conclusory and not supported by (A.R. 32.) 22 23 The ALJ s first ground is not a legitimate reason. An ALJ is free 24 to reject a treating physician s opinion if it is based on a plaintiff s 25 self-reporting, which as discussed below, the ALJ properly found to be 26 not credible. 27 that physician s opinion may be disregarded if it is based on subjective 28 complaints that have already been discredited). Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989)(holding 12 However, contrary to 1 the ALJ s contention, as discussed below, Dr. Varela s opinion was not 2 based solely on [plaintiff s] subjective complaints. (A.R. 32.) 3 4 The ALJ s second reason for rejecting Dr. Varela s opinion is also 5 not legitimate. The ALJ rejected Dr. Valera s findings, because his 6 opinion was conclusory as he did no examinations, laboratory tests, 7 radiologic studies, or any other objective processes to support the 8 drastic limitations he imposed. 9 treating physician s opinion if it is conclusory, brief, and unsupported (A.R. 32.) An ALJ may discredit a 10 by the record as a whole or by objective medical findings. 11 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 12 However, Dr. Varela s September 3, 2008 report indicates a review of 13 plaintiff s past medical record, including: 14 history; 15 plaintiff s disability status. 16 Varela s 2009 progress notes reflects that his findings were based not 17 only on plaintiff s subjective complaints but also on objective findings 18 and diagnoses. physical examination; and Batson v. x-rays; family and social diagnoses (A.R. 525-37.) and assessment of Further, each of Dr. (A.R. 549, 551-54.) 19 20 Although the ALJ s first two reasons for rejecting Dr. Varela s 21 opinion were improper, the ALJ s third reason was specific, legitimate, 22 and supported by substantial evidence. 23 opinion, because there was nothing in the record to explain the great 24 difference in [plaintiff s] abilities as described by Drs. Matos and 25 Woods, and indeed, even Dr. Gonzalez, and those reported by Dr. Varela. 26 (A.R. 32.) As discussed above, the ALJ properly gave substantial weight 27 to the opinions of treating physicians Matos and Woods. 28 Further, on June 14, 2008, consultative orthopedist Dr. Carlos Gonzalez, 13 The ALJ rejected Dr. Varela s (A.R. 31.) 1 M.D. reported that plaintiff s physical evaluation was entirely within 2 normal limits and she had no restrictions in any functional area. 3 3 (A.R. 31, 4 assessed plaintiff with a light RFC. 5 v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)(holding that opinions of 6 nontreating or nonexamining doctors may serve as substantial evidence 7 when consistent with independent clinical findings or other evidence in 8 the record); see also Andrews, 53 F.3d at 1041 (noting that reports of 9 the nonexamining advisor need not be discounted and may serve as 10 substantial evidence when they are supported by other evidence in the 11 record and are consistent with it ). 12 and state agency physicians were also inconsistent with the extreme 13 limitations reported by Dr. Varela. 497-501.) Three state agency medical consultants also (A.R. 32; 502-22); see Tonapetyan Thus, the opinions of Dr. Gonzalez 14 15 The ALJ appropriately considered all the medical evidence and 16 ultimately gave greatest weight to the findings of Drs. Woods and Matos. 17 It is up to the ALJ to resolve conflicts and ambiguities in the medical 18 evidence. Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 2008); 19 Andrews, 53 F.3d at 1039-40. 20 was supported by at least one specific and legitimate reason, and is 21 based upon substantial evidence, the ALJ s conclusion as to the weight 22 to be afforded to the opinion is legally sufficient. 23 /// 24 /// 25 /// Because the ALJ s rejection of Dr. Varela 26 27 28 3 The ALJ gave little weight to Dr. Gonzalez s opinion, because it was contradicted by the reliable treatment history . . . . (A.R. 31.) 14 1 III. The ALJ Set Forth Clear And Convincing Reasons For 2 Finding Plaintiff s Testimony Regarding Her Subjective 3 Symptoms And Pain To Be Not Credible. 4 5 Once a disability claimant produces objective medical evidence of 6 an underlying impairment that is reasonably likely to be the source of 7 claimant s subjective symptom(s), all subjective testimony as to the 8 severity of the symptoms must be considered. 9 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 10 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain 11 and other symptoms are evaluated). 12 malingering based on affirmative evidence thereof, he or she may only 13 find an applicant not credible by making specific findings as to 14 credibility 15 each. 16 weighing 17 reputation for 18 claimant s testimony 19 conduct; (3) the claimant s daily activities; (4) the claimant s work 20 record; and (5) testimony from physicians and third parties concerning 21 the nature, severity, and effect of the symptoms of which the claimant 22 complains. 23 2002); see also 20 C.F.R. § 404.1529(c). and stating [U]nless an ALJ makes a finding of clear and Robbins, 466 F.3d at 883. a claimant s or (2) between convincing reasons for The factors to be considered in credibility truthfulness; Moisa v. Barnhart, 367 include: (1) inconsistencies the claimant s the claimant s either in the testimony and her See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 24 25 During the December 22, 2009 hearing, plaintiff testified that her 26 [p]ain in both knees, the hands, the shoulders, the neck, [and] the low 27 back would interfere with her ability to work. 28 stated she has troubling lifting and getting dressed. 15 (A.R. 54.) Plaintiff (Id.) As a 1 result of pain in both her hands, particularly her right hand, she needs 2 help buttoning her pants and/or shirt. 3 that she could walk about three blocks, stand and sit for about one- 4 half-hour, but she is uncomfortable the whole time. 5 Plaintiff also testified that cleaning, doing dishes, cooking, taking a 6 bath, brushing her teeth, carrying, pushing, pulling, or holding a pen 7 makes her pain worse. 8 goes grocery shopping, but she is always accompanied. (A.R. 56-57.) (A.R. 54-55.) She testified (A.R. 56.) She goes to the laundromat and (A.R. 59.) 9 10 Here, the ALJ found that [a]fter careful consideration of the 11 evidence . . . [plaintiff] s medically determinable impairments could 12 reasonably be expected to cause the alleged symptoms. 13 Because the ALJ cited no evidence of malingering, the ALJ was required 14 to provide clear and convincing reasons for rejecting plaintiff s 15 subjective allegations of pain and functional limitations. (A.R. 31.) 16 17 Contrary to plaintiff s contention, the ALJ s reasons for rejecting 18 plaintiff s testimony are clear and convincing. First, the ALJ noted 19 that plaintiff s medical records showed no significant change in 20 [plaintiff] s condition since [ALJ Zirlin s] June 26, 2007 decision, 21 despite [plaintiff] s testimony that all of her symptoms have worsened. 22 (A.R. 31.) 23 that he did not anticipate a significant change in the pattern of 24 [plaintiff s] symptoms, because there had been no change in plaintiff s 25 condition since November 2006, when Dr. Woods issued his AME report upon 26 which ALJ Zirlin relied in finding plaintiff capable of performing light 27 work with limitations. 28 plaintiff s condition had remained unchanged since his examination of Indeed, as discussed above, Dr. Matos specifically noted (A.R. 286.) 16 In fact, Dr. Woods also opined that 1 her in November 2006. (A.R. 402.) Indisputably, the ALJ may use 2 ordinary techniques in addressing credibility, Light v. Soc. Sec. 3 Admin., 119 F.3d 789, 792 (9th Cir. 1997), and may make inferences 4 logically flowing from the evidence, Macri v. Chater, 93 F.3d 540, 544 5 (9th Cir. 1996). 6 evidence to support plaintiff s allegations of worsening symptoms. See, 7 e.g., Burch, 400 F.3d at 681 (noting that [a]lthough lack of medical 8 evidence cannot form the sole basis for discounting pain testimony, it 9 is a factor that the ALJ can consider in his credibility analysis ). Further, the ALJ may consider the lack of objective 10 11 Next, although plaintiff s daily activities (e.g., cooking, 12 cleaning, washing dishes, and laundry) were not extensive, they went 13 beyond what would be expected of an individual who, like plaintiff, 14 claimed to be in so much pain as to have trouble holding a pen or 15 buttoning her shirt or pants. 16 an ALJ may disbelieve a claimant if there are inconsistencies between 17 the claimant s testimony about his daily activities and his testimony 18 about the nature, effect, or severity of his symptoms); Fair, 885 F.2d 19 at 603 (noting that if, despite his claims of pain, a claimant is able 20 to perform household chores and other activities that involve many of 21 the same physical tasks as a particular type of job, it would not be 22 farfetched for an ALJ to conclude that the claimant s pain does not 23 prevent the claimant from working ). See Light, 119 F.3d at 793 (stating that 24 25 Accordingly, because the ALJ provided clear and convincing reasons 26 for finding plaintiff s testimony to be not credible, no reversible 27 error was committed. 28 17 1 IV. The ALJ Did Not Err In Assessing Plaintiff s RFC. 2 3 Plaintiff contends that the ALJ erred by failing to take into 4 account in the RFC determination the mental limitations assessed by 5 psychiatrist Ernest Bagner III. (Joint Stip. at 39-43.) 6 7 Dr. Bagner examined plaintiff at the Agency s request on June 13, 8 2008. (A.R. 493-96.) He diagnosed her with depressive disorder, not 9 otherwise specified, and assigned a Global Assessment of Functioning 10 ( GAF ) score of 73.4 11 was not receiving any psychiatric treatment, but if she did, she would 12 be significantly better in less than six months. 13 Bagner concluded that plaintiff would have no limitations interacting 14 with supervisors, 15 completing simple tasks and maintaining concentration and attention; 16 mild limitations completing complex tasks and completing a normal work 17 week without interruption; and mild to moderate limitations handling 18 normal stresses at work. (A.R. 495.) peers, or He noted that at the time, plaintiff the public; zero (A.R. 495-96.) to mild Dr. limitations (A.R. 496.) 19 20 On June 27, 2008, state agency reviewing psychiatrist P.M. Balson, 21 M.D. reviewed the medical record and completed a Psychiatric Review 22 Technique Form. (A.R. 502-15.) Based on the fact that there was no 23 24 25 26 27 28 4 The GAF scale [c]onsider[s] psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical Manual of Mental Disorders, DSM IV TR, 34 (rev. 4th ed. 2000). A GAF score of 71 80 indicates that [i]f symptoms are present, they are transient and expectable reactions to psycho-social stressors (e.g., difficulty concentrating after family argument); no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). Id. 18 1 psych [history] source and Dr. Bagner s findings of depressive d/o, 2 and that plaintiff can sustain simple, repetitive tasks and perform full 3 activities of daily living, Dr. Balson adopted ALJ Zirlin s 2007 RFC 4 determination. (A.R. 502-15.) 5 Contrary 6 to plaintiff s contention, the ALJ did not commit 7 reversible error by failing to consider plaintiff s depression and 8 anxiety. 9 severe impairment of mood disorder but still determined that plaintiff 10 Rather, the ALJ specifically found that plaintiff suffered a had the RFC to do light work. (A.R. 29-30.) 11 Further, the ALJ specifically recognized Dr. Bagner s finding of 12 13 mild to moderate limitations handling normal stresses at work. (A.R. 14 32.) 15 opinion, as his opinion includes no significant functional limitations 16 imposed by plaintiff s depression. 17 Dr. Bagner assessed plaintiff with a GAF score of 73, indicating mild, 18 if any, limitations in vocational or social functioning. 19 495; internal citation omitted); Batson, 359 F.3d at 1193 (when evidence 20 supports more than one rational interpretation, courts defer to the 21 Commissioner s decision). 22 error. Indeed, the ALJ s RFC assessment largely reflects Dr. Bagner s (A.R. 512.) As noted by the ALJ, (A.R. 32, Accordingly, the ALJ committed no reversible 23 24 25 V. The ALJ Properly Determined That Plaintiff Could Perform Her Past Relevant Work. 26 27 28 At step four, a plaintiff has the burden of showing that she could no longer perform her PRW. Pinto v. Massanari, 249 F.3d 840, 844 (9th 19 1 Cir. 2001). Nonetheless, the ALJ has the duty to make the requisite 2 factual findings to support his conclusion. 3 ALJ to examine plaintiff s residual functional capacity and the 4 physical and mental demands of [plaintiff s] past relevant work. 5 at 844 45 (citations omitted). Id. This duty requires an Id. 6 7 At the hearing, the ALJ asked the VE if, based on plaintiff s RFC, 8 she could perform any past work, to which the VE responded [i]t would 9 allow for her past work as a cleaner/polisher and video packager. (A.R. 10 63.) The ALJ disregarded the video packager job as it was too old at 11 this point, and noted that the cleaner/polisher job was still relevant 12 as it was well within 15 years. 13 found that plaintiff could perform her PRW as a hand packager (DOT 14 920.587-018) 15 cleaner/polisher (DOT 709.687-010) as performed in the national economy. 16 A.R. 32-33.) as she performed (Id.) it, In his decision, the ALJ still as well as her PRW as a 17 18 Pursuant to Social Security Ruling ( SSR ) 82 62, work that was 19 performed 15 years or more prior to the time of adjudication of the 20 claim (or 15 years or more prior to the date the title II disability 21 insured status requirement was last met, if earlier) typically will not 22 be considered [u]nless continuity of skills, knowledge, and processes 23 can be established between such work and the individual s more recent 24 occupations. 25 plaintiff s PRW as a video packager because it was too old, yet the 26 ALJ did not make any findings in his decision that the job was held more 27 than 15 years prior to the administrative hearing on plaintiff s claims 28 or articulate that there was a continuity of skills, knowledge, and As noted above, at the hearing the ALJ disregarded 20 1 processes between her jobs. 2 hand packager, there is insufficient information to permit the court 3 to gauge whether the finding is well supported. 4 654 F.2d 631, 634 35 (9th Cir. 1981)(noting that an ALJ must make full 5 and 6 conclusion so that a reviewing court may determine the basis for the 7 decision and whether substantial evidence supports the Commissioner s 8 decision). detailed findings of Thus, with respect to plaintiff s PRW as a fact which are See Lewin v. Schweiker, essential to the ALJ s 9 10 In any event, assuming that the ALJ erred, any error is harmless as 11 the ALJ also found that plaintiff could also perform her PRW as a 12 cleaner/polisher as it is performed in the national economy. (A.R. 33); 13 Tommasetti, 533 F.3d at 1038 (noting that the court will not reverse an 14 ALJ s decision for harmless error, which exists when it is clear from 15 the record that the ALJ s error was inconsequential to the ultimate 16 nondisability determination )(quotation marks and citations omitted). 17 Plaintiff asserts that this finding was error as there was absolutely 18 no evidence in the record that she performed PRW as a cleaner/polisher 19 and that the ALJ erroneously relied on the previous VE s testimony. 20 (Joint Stip. at 50.) 21 22 However, the ALJ found that the circumstances had not materially 23 changed since the date of the prior decision, thus the ALJ was required 24 to adopt the earlier administrative finding as to the plaintiff s work 25 experience absent new and material evidence relating to that finding. 26 See Ellison v. Astrue, 2008 WL 4425764, at *3 (C.D. Cal. 2008)(finding 27 that plaintiff did not rebut the presumption of continuing nondisability 28 where plaintiff presented no facts 21 of changed circumstances and, 1 instead, simply attacked the ALJ s finding that plaintiff could perform 2 the jobs of sales clerk and account clerk); see also Acquiescence Ruling 3 97-4(9), 1997 WL 742758, at *3 (Dec. 3, 1997). 4 identified any new and material evidence supporting her argument despite 5 knowing that the VE based his opinion, in part, on the fact that 6 plaintiff s PRW consisted of a cleaner/polisher. 7 was bound by the earlier determination on the issue of plaintiff s past 8 relevant work. 5 Plaintiff has not Accordingly, the ALJ 9 10 VI. The ALJ Did Not De Facto Reopen Plaintiff s Earlier Application. 11 12 13 Plaintiff contends that the ALJ de facto reopened her earlier 14 application when he relied upon Dr. Woods 2006 and 2007 reports in 15 denying her claims. 16 found that an ALJ who reconsiders a prior application on its merits may 17 constructively or de facto reopen the application. 18 236 F.3d 503, 510 (9th Cir. 2001). 19 Circuit ruling that addresses whether an ALJ can de facto reopen a prior 20 application by merely considering evidence from the time period relevant 21 to that application. 22 the consideration of such evidence, on its own, is insufficient to cause 23 a de facto reopening of a decision. 24 325 (8th Cir. 1996); Frustaglia v. Sec y of Health and Hum. Servs., 829 (Joint Stip. at 55-56.) The Ninth Circuit has Lewis v. Apfel, The Court has not found any Ninth Several other circuits, however, have held that See King v. Chater, 90 F.3d 323, 25 26 27 28 5 The Court notes that while the ALJ adopted the earlier finding that hand packager and cleaner/polisher were past relevant work, he made an independent determination as to whether plaintiff could perform those positions in view of her residual functional capacity. (A.R. 31-32.) 22 1 F.2d 192, 193 (1st Cir. 1987); McGowen v. Harris, 666 F.2d 60, 67 68 2 (4th Cir. 1981). 3 4 Here, the ALJ s considered Dr. Woods 2006 and 2007 reports to 5 determine plaintiff s disability during the relevant time period alleged 6 in her second application for disability. 7 above, in Dr. Woods April 2008 report, which was the only report he 8 issued 9 specifically notes that his findings as to plaintiff s impairments and 10 disability factors had not changed since his November 2006 examining of 11 plaintiff and, thus, refers the parties to both his November 2006 and 12 supplemental March 2007 reports. 13 specifically adopts Dr. Woods 2006 assessment of plaintiff s ability to 14 work for the relevant time period. 15 Accordingly, the ALJ was required to look at Dr. Woods 2006 and 2007 16 reports, because both Dr. Woods and Dr. Matos specifically reference 17 them in their functional assessment of plaintiff for the relevant time 18 period. The ALJ reviewed the medical evidence prior to June 27, 2007, as 19 cumulative medical history and not for the purpose of considering 20 plaintiff s earlier application on the merits. 21 not de facto or constructively reopen plaintiff s first application. during the relevant time period (A.R. 31.) in (A.R. 402.) the As discussed instant case, he Further, Dr. Matos, also (A.R. 286, 300, 410, 420.) Therefore, the ALJ did 22 CONCLUSION 23 24 25 For all of the foregoing reasons, the Court finds that neither 26 reversal of the Commissioner s decision 27 Accordingly, IT IS ORDERED that the Commissioner s decision denying 28 benefits is AFFIRMED, and that Judgment shall be entered affirming the 23 nor remand is warranted. 1 decision of the Commissioner. 2 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve 4 copies of this Memorandum Opinion and Order and the Judgment on counsel 5 for Plaintiff and for Defendant. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 1, 2013 10 11 12 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 24
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