(SS) Ochoa v. Commissioner of Social Security, No. 1:2009cv00018 - Document 16 (E.D. Cal. 2010)

Court Description: DECISION AND ORDER DENYING Plaintiff's 1 Social Security Complaint; ORDER DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Rafael Barragan Ochoa signed by Magistrate Judge Sandra M. Snyder on 2/25/2010. CASE CLOSED. (Sant Agata, S)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RAFAEL BARRAGAN OCHOA, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:09-cv-00018-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF RAFAEL BARRAGAN OCHOA 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) denying 19 Plaintiff s application of January 23, 2006, made pursuant to 20 Titles II and XVI of the Social Security Act, for a period of 21 disability and disability insurance benefits (DIB), and for 22 supplemental security income (SSI), in which he alleged that he 23 had been disabled since July 13, 2005, due to lower back injury, 24 left leg pain, memory problems, epilepsy causing an inability to 25 stand or sit for long periods, difficulty walking, and pain upon 26 too much movement. (A.R. 13, 105-11, 124.) The parties have 27 consented to the jurisdiction of the United States Magistrate 28 1 1 Judge pursuant to 28 U.S.C. § 636(c)(1), manifesting their 2 consent in writings signed by the parties authorized 3 representatives and filed on behalf of Plaintiff on January 7, 4 2009, and on behalf of Defendant on January 21, 2009. Thus, the 5 matter is assigned to the Magistrate Judge to conduct all further 6 proceedings in this case, including entry of final judgment. 7 The decision under review is that of Social Security 8 Administration (SSA) Administrative Law Judge (ALJ) Christopher 9 Larsen, dated September 3, 2008 (A.R. 13-20), rendered after a 10 hearing held on April 21, 2008, at which Plaintiff appeared and 11 testified with the aid of a Spanish interpreter and with 12 representation by an attorney. Vocational expert (VE) Mr. Shapiro 13 also testified. (A.R. 13, 46.) 14 After receiving additional evidence and making it part of 15 the record, the Appeals Council denied Plaintiff s request for 16 review of the ALJ s decision on December 10, 2008 (A.R. 1-4), and 17 thereafter Plaintiff filed the complaint in this Court on January 18 5, 2009. Briefing commenced with the filing of Plaintiff s 19 opening brief on August 10, 2009, and was completed with the 20 filing of Defendant s brief on September 12, 2009. The matter has 21 been submitted without oral argument to the Magistrate Judge. 22 I. Jurisdiction 23 This Court has subject matter jurisdiction pursuant to 42 24 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant 25 suffering an adverse final determination of the Commissioner of 26 Social Security with respect to disability or SSI benefits after 27 a hearing may obtain judicial review by initiating a civil action 28 in the district court within sixty days of the mailing of the 2 1 notice of decision. Plaintiff timely filed her complaint on 2 January 5, 2009, less than sixty days after the mailing of the 3 notice of decision on or about December 10, 2008. 4 5 II. Standard and Scope of Review 6 Congress has provided a limited scope of judicial review of 7 the Commissioner's decision to deny benefits under the Act. In 8 reviewing findings of fact with respect to such determinations, 9 the Court must determine whether the decision of the Commissioner 10 is supported by substantial evidence. 42 U.S.C. § 405(g). 11 Substantial evidence means "more than a mere scintilla," 12 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 13 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 14 (9th Cir. 1975). It is "such relevant evidence as a reasonable 15 mind might accept as adequate to support a conclusion." 16 Richardson, 402 U.S. at 401. The Court must consider the record 17 as a whole, weighing both the evidence that supports and the 18 evidence that detracts from the Commissioner's conclusion; it may 19 not simply isolate a portion of evidence that supports the 20 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 21 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 22 It is immaterial that the evidence would support a finding 23 contrary to that reached by the Commissioner; the determination 24 of the Commissioner as to a factual matter will stand if 25 supported by substantial evidence because it is the 26 Commissioner s job, and not the Court s, to resolve conflicts in 27 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 28 Cir. 1975). 3 1 In weighing the evidence and making findings, the 2 Commissioner must apply the proper legal standards. Burkhart v. 3 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 4 review the whole record and uphold the Commissioner's 5 determination that the claimant is not disabled if the 6 Commissioner applied the proper legal standards, and if the 7 Commissioner's findings are supported by substantial evidence. 8 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 9 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 10 the Court concludes that the ALJ did not use the proper legal 11 standard, the matter will be remanded to permit application of 12 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 13 Cir. 1987). 14 15 16 III. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 17 that she is unable to engage in substantial gainful activity due 18 to a medically determinable physical or mental impairment which 19 has lasted or can be expected to last for a continuous period of 20 not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). 21 A claimant must demonstrate a physical or mental impairment of 22 such severity that the claimant is not only unable to do the 23 claimant s previous work, but cannot, considering age, education, 24 and work experience, engage in any other kind of substantial 25 gainful work which exists in the national economy. 42 U.S.C. 26 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 27 Cir. 1989). The burden of establishing a disability is initially 28 on the claimant, who must prove that the claimant is unable to 4 1 return to his or her former type of work; the burden then shifts 2 to the Commissioner to identify other jobs that the claimant is 3 capable of performing considering the claimant's residual 4 functional capacity, as well as her age, education and last 5 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 6 1273, 1275 (9th Cir. 1990). 7 The regulations provide that the ALJ must make specific 8 sequential determinations in the process of evaluating a 9 disability: 1) whether the applicant engaged in substantial 10 gainful activity since the alleged date of the onset of the 11 impairment, 20 C.F.R. § 404.1520;1 2) whether solely on the basis 12 of the medical evidence the claimed impairment is severe, that 13 is, of a magnitude sufficient to limit significantly the 14 individual s physical or mental ability to do basic work 15 activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the 16 basis of medical evidence the impairment equals or exceeds in 17 severity certain impairments described in Appendix I of the 18 regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant 19 has sufficient residual functional capacity, defined as what an 20 individual can still do despite limitations, to perform the 21 applicant s past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 22 5) whether on the basis of the applicant s age, education, work 23 experience, and residual functional capacity, the applicant can 24 perform any other gainful and substantial work within the 25 economy, 20 C.F.R. § 404.1520(f). 26 With respect to SSI, the five-step evaluation process is 27 28 1 All references are to the 2008 version of the Code of Federal Regulations unless otherwise noted. 5 1 essentially the same. See 20 C.F.R. § 416.920. 2 3 B. The ALJ s Findings The ALJ found that Plaintiff had severe impairments of 4 lumbar degenerative disc disease and seizure disorder secondary 5 to cysticercosis, but Plaintiff had no impairment or combination 6 of impairments that met or medically equaled a listed impairment. 7 (A.R. 15-16.) Plaintiff retained the residual functional capacity 8 (RFC) to lift and carry twenty pounds occasionally and ten pounds 9 frequently; sit or stand and walk a total of six hours out of an 10 eight-hour day; never climb ladders, ropes, or scaffolds; 11 occasionally crouch, crawl, and climb ramps or stairs; frequently 12 balance and kneel; and avoid even moderate exposure to hazards. 13 (A.R. 16.) Plaintiff could not perform his past relevant work, 14 but as a thirty-five-year-old or younger person at the alleged 15 date of onset who was illiterate but able to communicate in 16 English, and who had the aforementioned RFC, Plaintiff could 17 perform jobs that existed in significant numbers in the national 18 economy, including housekeeping cleaner, DOT 323.687-014, with 19 53,600 positions in California and about 406,500 nationally; raw 20 shellfish preparer, DOT 311.674-014, with about 4,500 positions 21 in California and about 41,400 nationally; and agricultural 22 produce sorter, DOT 529.687-186, with about 1,300 positions in 23 California and about 3,600 nationally. (A.R. 19.) Accordingly, 24 Plaintiff was not disabled at any time from July 13, 2005 to the 25 date of decision, namely, September 3, 2008. (A.R. 19-20.) 26 27 C. Plaintiff s Contentions Plaintiff argues that the ALJ ignored Plaintiff s mental 28 impairments and the opinion of Ricardo Carrillo, Ph.D.; further, 6 1 the ALJ failed to state legally sufficient reasons for rejecting 2 Dr. Carrillo s opinion. The ALJ failed to consider the record as 3 a whole, and the record lacked substantial evidence to support 4 the ALJ s conclusions concerning Plaintiff s mental impairments. 5 IV. The Medical Record2 6 From 2004 through 2008, Plaintiff visited the Darin M. 7 Camarena Health Centers, Inc., and saw multiple physicians. (A.R. 8 309-75.) In September 2004, he reported that his last seizure was 9 about three months before. (A.R. 374.) His seizures were stable 10 in March 2005. (A.R. 372.) 11 On July 1, 2005, about ten days before the alleged date of 12 onset, Plaintiff visited Andres Zimmermann, M.D., to follow up on 13 his seizure disorder. (A.R. 203-04, 367-68.) Plaintiff reported 14 that since about ten months before when he had started taking 15 Dilantin daily, he had not had a seizure, although sometimes he 16 17 18 19 20 21 22 23 24 25 26 27 28 2 The medical evidence pertinent to Plaintiff s impairment involving back pain is not summarized because Plaintiff s contentions relate to his cysticercosis, epilepsy, and mental impairments. The Court notes that Plaintiff reported a one-month history of back pain from a work injury caused by lifting heavy objects on July 13 and 14, 2005. Pain, limited flexion, extremely restricted lateral bending and extension, and negative straight leg raise bilaterally were noted. Medications were prescribed. (A.R. 199-200.) On July 22, 2005, Henry H. Kang, M.D., Ph.D., certified in physical medicine and rehabilitation, diagnosed low back pain with discogenic disease, sacroiliitis, and muscle spasm, and prescribed medication, moist hot pack, and ambulation exercises. (A.R. 182.) Additional objective signs developed with respect to Plaintiff s lumbar spine pain and radiculitis from the autumn of 2005 through 2007. (A.R. 209-20, 224-30.) A state agency physician rendered an opinion in April 2006. (A.R. 231-38.) Plaintiff was released to work in June 2006 and thereafter was considered disabled in October 2006 due to his lumbar spine injury. Additional treatment occurred in 2007 with temporary total disability through June 17, 2007. (A.R. 242-79.) In 2007, a CT scan of the lumbar spine and lumbar diskogram performed at UCSF Medical Center revealed a left dorsolateral full thickness tear at L4-5 entering a lateral disc protrusion with moderate left neural foraminal narrowing at L4-5 but no right neural foraminal narrowing and no significant canal stenosis. At L5-S1, there was a posterior midline tear filling a central disc protrusion with no canal stenosis but moderate right neural foraminal narrowing and mild left neural foraminal narrowing. (A.R. 433-35.) An agreed medical examiner rendered a report in July 2008. (A.R. 447-54.) 7 1 was easily distracted with his family. The doctor had to 2 recommend to the Department of Motor Vehicles that Plaintiff not 3 drive. 4 A CT scan of Plaintiff s head with and without contrast 5 performed on July 12, 2005, revealed no evidence of intracranial 6 hemorrhage, mass effect, or infarct. There were multiple, small 7 calcifications in the internal capsule, particularly on the 8 right, and in the cerebral cortex bilaterally, suggesting 9 cysticercosis. (A.R. 201, 222, 363.) Cysticercosis serology was 10 positive on July 27, 2005. (A.R. 198, 360.) 11 On July 27, 2005, Plaintiff reported to Dr. Zimmermann that 12 he had not had any recurrent seizures; Dr. Zimmermann continued 13 Dilantin and informed Plaintiff that his symptoms did not warrant 14 any disability at that time; he would refer Plaintiff to a 15 neurologist. (A.R. 198, 358.) Plaintiff s cysticercosis would be 16 treated with Albendazole. (A.R. 359.) On August 19, 2005, 17 Plaintiff reported that he had been doing all right, had not had 18 any seizure, was prodromal but never lost consciousness, and was 19 taking Albendazole in addition to Dilantin. However, it was also 20 noted that he had complained of two episodes recently. (A.R. 21 195-96.) 22 On October 25, 2005, Plaintiff reported that he had been 23 doing all right but been experiencing absence seizures about once 24 a month. Plaintiff reported difficulty learning and exhibited 25 deficits in calculation and immediate recall. Dr. Zimmermann 26 diagnosed neurocysticercosis and stable seizure disorder; he 27 noted that they would fill out forms for INS to try to waive him 28 from the exams since probably he is not going to be able to pass 8 1 it due to his physical condition. (A.R. 194, 354.) 2 Between October 2005 and March 2008, Plaintiff was treated 3 by neurologist Mythili Sundaresan, M.D. (A.R. 376-92.) In October 4 2005, Plaintiff complained of seizures with loss of consciousness 5 at least twice a month, but it was also related that at some time 6 he had been free of seizures for four years. (A.R. 391.) In 7 November 2005, Plaintiff reported that his last seizure had been 8 two weeks before; his Dilantin dose was increased and he was 9 referred to mental health. (A.R. 390.) 10 In December 2005, Plaintiff reported to Dr. Sundaresan that 11 his last seizure was about a year before. (A.R. 386.) Dr. 12 Sundaresan had increased his Dilantin dose. His Zoloft dose was 13 increased for panic attacks. Plaintiff s anxiety and seizure 14 disorder were noted as stable. (A.R. 350.) An EEG performed on 15 December 2, 2005, was normal. (A.R. 389.) In February 2006, 16 Plaintiff reported that his anxiety was still present, but 17 otherwise he had no complaints. (A.R. 346.) In March 2006, Dr. 18 Zimmermann assessed absence seizures and memory impairment as 19 shown on the Folstein Mini-Mental Status Exam. (A.R. 339.) In 20 September 2006, Plaintiff reported that he had had no seizures in 21 the last couple of months, thought he should obtain disability, 22 and reported occasional depression because of seizures. Zoloft 23 was restarted, and neuropsychiatric evaluation was planned. 24 However, Plaintiff declined because he was going to see another 25 doctor. (A.R. 333.) 26 In late 2006 and early 2007, Plaintiff was treated by S. S. 27 Samrao, M.D., for recurrent seizures, occurring once or twice a 28 week, unrelated to activity, and accompanied by upset stomach and 9 1 blacking out. Dr. Samrao assessed depression with anxiety 2 neurosis, and rule out pseudoseizures; obesity; and latent 3 diabetes, with treatment by Paxil for depression and Lorazepam 4 for anxiety. Other anti-seizure medication was not needed. (A.R. 5 294.) Plaintiff was treated with Toradol and Reglan, which 6 improved his symptoms of headache and nausea. (A.R. 302-03.) The 7 medication helped a little and was adjusted. (A.R. 292.) Then 8 Effexor XR and Zyprexa were prescribed and increased. (A.R. 2909 91.) In December 2006, Dr. Samrao assessed Plaintiff with 10 depression, chronic headaches due to depression, seizures, and 11 history of neurocystic sarcosis; medications were Effexor, which 12 was increased, and Zyprexa. (A.R. 289.) In January 2007, after 13 reviewing Plaintiff s CAT scan that revealed multiple lesions of 14 cranial cysticercosis but otherwise no tumors, Dr. Samrao 15 assessed cranial cysticercosis--benign, seizures since age 17, 16 stress, and depression. He explained to Plaintiff that he did not 17 find any reason for him to give him a waiver, and that perhaps he 18 should go to mental health, where he would be referred; he noted, 19 Again, counseling done that his cranial condition is benign. 20 (A.R. 288.) 21 In February 2007, Plaintiff returned to the clinic and was 22 told by Dr. Denkabe that he needed to be seen by a neurologist 23 before Plaintiff could be evaluated for disability. (A.R. 331.) 24 Plaintiff reported to Dr. Sundaresan that his last seizure was in 25 December 2006. Dr. Sundaresan noted that Plaintiff s five-hour 26 glucose tolerance test showed a tendency towards hypoglycemia, 27 which could worsen seizures, so Plaintiff was prescribed a diet 28 of small, frequent meals that were high in protein and low in 10 1 carbohydrates. (A.R. 379.) 2 Plaintiff visited Madera County Mental Health from February 3 through November 2007. (A.R. 393-427.) Linda Negrete, 4 M.S.W./A.C.S.W., assessed a depressive disorder not otherwise 5 specified with a global assessment of functioning (GAF) of fifty 6 in February. (A.R. 427.) Plaintiff reported having been depressed 7 for two years because of inability to work because of seizures. 8 He reported that he had gotten off the epilepsy medication for 9 some days and that is when he had the seizures; further, his wife 10 had told him that when he did not take his medication as we was 11 supposed to, he had acted out and gone out of control, and his 12 children had observed it. (A.R. 424.) He had appropriate affect, 13 depressed mood, was well-groomed and calm, had intact thought 14 process, impaired immediate memory, normal speech, intact 15 judgment and insight, and was fully oriented. He had no 16 impairment in living arrangements, moderate impairment in social 17 relationships, and severe impairment in health and daily 18 activities. (A.R. 425.) 19 In March 2007, Plaintiff reported to Ana Mendoza, M.D., a 20 psychiatrist, that he had been irritable because of loss of 21 memory, which prevented him from learning what to do at work. Dr. 22 Mendoza assessed depressive disorder with a GAF of fifty. Zyprexa 23 was stopped because of excessive sedation. Plaintiff s seizure 24 disorder was controlled with Phenitoin. His affect was 25 constricted, mood anxious and depressed, thought process was 26 blocking, concentration was decreased, memory was impaired, 27 speech normal, and judgment and insight were fair. He knew how to 28 read and had average intellectual functioning. (A.R. 416-20.) In 11 1 April, he explained that his depression depended on whether there 2 was hope in his SSI case. (A.R. 412.) In May 2007, he reported 3 feeling less depressed with symptoms of irritability and fatigue, 4 and improved mood and patience with less arguments with this wife 5 and children, due to taking Prozac for a week. His memory 6 continued to be poor. (A.R. 409.) In June 2007, Plaintiff 7 reported that his seizure disorder was controlled with Dilantin; 8 for the last year or more, four to five times a month he would 9 feel as if a seizure were coming, but he and his daughter 10 confirmed that he had had no actual seizure. (A.R. 404.) His 11 affect was broad and his mood calmer, and the medication 12 prescribed by the psychiatrist had helped him feel less depressed 13 and anxious. (A.R. 403.) 14 In July 2007, Dr. Denkabe checked Plaintiff s seizure 15 disorder and characterized Plaintiff s past seizures as absence 16 seizures. The record is unclear, but Plaintiff reported, or Dr. 17 Denkabe opined, that Plaintiff s cysticercosis did not affect his 18 ability to perform daily activities. (A.R. 325.) 19 In August 2007, Plaintiff reported that the Prozac was not 20 helping with the depression, but the Norco relieved his pain, and 21 Dilantin had reduced the number and intensity of seizures. (A.R. 22 402.) He reported having no seizures lately but experiencing the 23 aura; he had impaired memory. (A.R. 400.) In September, 24 psychiatry services were discontinued after some baseline 25 progress with some improvement in affect as social factors 26 improved; Plaintiff was referred to a neurologist because it was 27 determined that his depression was due to his medical condition. 28 His judgment and insight were fair to good, memory unchanged, 12 1 affect broad, and mood and sleep pattern better. (A.R. 395, 3972 98.) He was discharged in October 2007 after individual therapy 3 and medication, with moderate improvement in his depression and 4 anxiety, and fair prognosis. The diagnosis of Ana E. Mendoza, 5 M.D., was dementia due to GMC-neurocysticerosis; no diagnosis on 6 Axis II; epilepsy; and a GAF of 50. If Plaintiff needed 7 medications, he was to obtain in from his primary care physician. 8 (A.R. 394.) 9 On August 10, 2007, Dr. Ricardo Antonio Carrillo, Ph.D., 10 performed a neuropsychological evaluation upon referral in 11 connection with Plaintiff s application for citizenship, and 12 specifically, his attempt to file a N-648" or Medical 13 Certification for Disability Exceptions, which had been cited as 14 incomplete. (A.R. 280-86.) Dr. Zimmermann, who had originally 15 filled out the form, had moved from the Madera area. Dr. Carrillo 16 reviewed records of cerebral tomography and other medical 17 records, and he performed a mental status exam and brief 18 neuropsychological evaluation that could not be completed but 19 that reflected that Plaintiff met the criteria for severe 20 impairment in all areas of functioning. (A.R. 281.) 21 Plaintiff suffered from a seizure disorder caused by 22 nuerocysticercosis (cerebral tapeworm infection) and thus 23 sought a medical disability waiver in his immigration application 24 because he was not able to process minimal cognitive and 25 emotional stimuli as a result of diffuse damage to the cerebral 26 cortex. (A.R. 280.) Plaintiff reported debilitating grand mal 27 seizures, severe bouts of depression and clinical depression, 28 anhedonia, disorientation, severe memory impairment lasting many 13 1 hours in a day s time, severe anxiety, suicidal thoughts, and 2 inability to drive. 3 Dr. Carrillo s examination of Plaintiff reflected no 4 physical abnormalities. Plaintiff had coherent and fluid speech, 5 lucid thinking with no indication of a thought disorder, flat, 6 numb, depressed, and anxious mood and affect, a general emotional 7 state described as desperate, severely impaired judgment, and 8 severe thoughts of suicide without plans. Plaintiff was slow to 9 respond, and his memory was severely impaired. He became 10 disoriented to time and situation and perseverated at times, 11 repeating things he had earlier disclosed without knowledge of 12 repeating them. He could not remember the day, time, year, simple 13 digits forward or backward, or beyond two digits; immediate 14 recall was severely impaired; he lacked the capacity for abstract 15 thinking; and he was unable to recognize simple shapes or 16 replicate figures. The test results indicated severe impairment 17 in the entire cortex. 18 The left hemisphere was responsible for language, analysis, 19 and abstract thinking in the language realm; he could not 20 abstract, thus any language-oriented task, such as studying for a 21 citizenship exam, would not be possible. He was not able to read, 22 comprehend, or recall what he was expected to answer; he would 23 have a tendency to become confused and disoriented. (A.R. 282.) 24 The right hemisphere was responsible for spatial relations, 25 emotionality, synthesis, orientation, equilibrium, and physical 26 memory. Plaintiff was significantly impaired in this area, so he 27 could not make sense of figures or puzzles, drive, or work with 28 his hands. He could no longer perform tasks that were second 14 1 nature to him, such as field work or driving. Ability to 2 recognize signs and directions, put together objects with his 3 hands, and abstract ability to recognize and make sense of his 4 emotions were significantly impaired. He knew he was disabled, 5 but he still wanted to attain his citizenship for the sake of his 6 family. (A.R. 282.) 7 Dr. Carrillo s diagnosis was dementia due to epilepsy and 8 nuerocysticercosis, dysthymic disorder, late onset, suicidal 9 ideation, with diagnosis on Axis II deferred. (A.R. 282.) He 10 opined on Axis IV that Plaintiff was disabled physically, 11 mentally, and psychologically secondary to the dementia; he was 12 unable to work, drive, or manage his personal affairs and was 13 dependent upon his family; and the GAF was 25, reflecting severe 14 impairment with suicidal ideation. (A.R. 282.) The recommendation 15 was that he not drive and be given a disability exception for his 16 citizenship application. (A.R. 283.) He was unable to learn or to 17 demonstrate the ability to speak, read, or write English. (A.R. 18 284-86.) 19 In October 2007, Plaintiff reported that he was not sure but 20 thought he had about five seizures per month, although he had not 21 had any full seizures. (A.R. 322-24.) He did not work and 22 helped minimally around the house. Examination revealed no 23 abnormal findings. (A.R. 323.) The assessment was seizure 24 disorder, history of cysticercosis, and chronic low back pain 25 secondary to disk herniation per patient. (A.R. 323.) 26 In November 2007, he reported to Dr. Sundaresan that he had 27 at least four to five seizures a month; his last seizure was six 28 days before. (A.R. 385.) 15 1 A CT scan of the brain with and without contrast performed 2 on December 6, 2007, showed multiple calcifications present 3 bilaterally most likely due to cysticercosis; no focal masses or 4 edema; no fluid collections; and no enhancing lesions. (A.R. 5 384.) 6 In February 2008, Plaintiff s grand-mal seizures were 7 described as stable. (A.R. 321.) Plaintiff was prescribed a 8 special diet to address his tendency to hypoglycemia, which Dr. 9 Sundaresan noted could worsen his seizures. He believed Plaintiff 10 had four to five seizures in a month. (A.R. 379.) 11 In March 2008, Plaintiff reported more frequent seizures and 12 increasing memory loss. (A.R. 318.) Dr. Sundaresan noted on March 13 10, 2008, that although Plaintiff had been prescribed a diet high 14 in protein, low in carbohydrates, and made up of small, frequent 15 meals, he was still non-compliant. (A.R. 377.) The last seizure 16 had been three days before. (A.R. 377.) 17 On March 13, 2008, Dr. Arthur Paredes, M.D., of the Darin M. 18 Camarena Health Center, opined that Plaintiff could sit, stand, 19 or walk zero hours; never lift or carry even less than five 20 pounds; could use his hands for simple grasping but no pushing or 21 pulling of arm controls or fine manipulation; and could not bend, 22 squat, crawl, climb, kneel, or stoop, or be exposed to extremes 23 of hot or cold, wetness, humidity, noise, vibration, fumes, 24 odors, gases, dust, or hazards. (A.R. 308.) Plaintiff had 25 seizures and was totally incapacitated from any work. (A.R. 308.) 26 On June 25, 2008, Dr. Arthur Paredes opined that Plaintiff 27 had a disability that affected his ability to learn and/or 28 demonstrate knowledge, to learn or demonstrate an ability to read 16 1 and write English, and or learn or demonstrate knowledge of 2 United States history and civics. The disability was a parasitic 3 growth in the brain causing mental impairment and seizures, 4 Echinocoosis infection, and generalized non-convulsive epilepsy, 5 causing trouble remembering phrases and commands worsened by a 6 seizure problem. (A.R. 444-46.) 7 V. Plaintiff s Testimony 8 Plaintiff could not recall his telephone number but could 9 recognize his address. (A.R. 28.) He no longer had a license, but 10 he usually drove his car once a week. (A.R. 29.) He had four or 11 five seizures per month; he had been taking the medication, so he 12 did not get the real strong ones so much. After a seizure, he 13 felt tired and depressed and had to rest. (A.R. 40-42.) 14 Plaintiff s memory problems were worsening; the only thing 15 the doctors did was to medicate so the seizures would not be as 16 strong. (A.R. 42.) He could concentrate for four or five minutes. 17 (A.R. 44.) He could read and write some in Spanish, although 18 sometimes he got words confused; he could not read or write 19 English but understood enough words to count to a hundred and 20 make purchases. (A.R. 30-31.) Plaintiff remembered some of his 21 work history, but he had difficulty remembering other parts. 22 (A.R. 31-35.) He could not remember things that happened more 23 than three months previously. (A.R. 33.) He could not work 24 because of lower back pain due to damaged discs, pain in the feet 25 and the head, seizures, memory problems, and depression. (A.R. 26 35.) He could sit ten to fifteen minutes, stand ten to twenty 27 minutes, walk ten to fifteen minutes, and lift a gallon of milk, 28 but he did not think he could lift ten pounds. A TENS unit and 17 1 oral medication numbed the pain but did not take it away 2 completely, and at UCSF he was told he needed surgery for his 3 back. (A.R. 36-39.) 4 VI. Plaintiff s Wife s Testimony 5 Cortensia Barragan, Plaintiff s wife, testified that 6 Plaintiff had four seizures per month, which lasted a few seconds 7 or a minute, and required rest for the remainder of the day. 8 (A.R. 45-46.) 9 10 VII. Vocational Expert s Testimony Mr. Shapiro, a vocational expert (VE), testified that 11 Plaintiff could not perform his past relevant work, which was 12 medium work; however, assuming that Plaintiff could lift and 13 carry twenty pounds occasionally and ten pounds frequently, sit, 14 stand, and walk a total of six hours in an eight-hour day, never 15 climb ladders, ropes, or scaffolds, occasionally crouch, crawl, 16 and climb ramps or stairs, frequently balance and kneel, and 17 avoid even moderate exposure to hazards, he could perform the 18 jobs of housekeeping cleaner, light and unskilled, DOT 323.68719 014, with 53,600 jobs in California and about 406,500 nationally; 20 raw shellfish preparer, light and unskilled, DOT 311.674-014, 21 with about 4,500 positions in California and about 41,400 22 positions nationally; and agricultural produce sorter, light and 23 unskilled, DOT 529.687-186, with about 1,300 positions in 24 California and 3,600 nationally. Inability to remember anything 25 more than three months past did not change his answer. (A.R. 4726 48.) However, limitations from seizures and restrictions in 27 concentration as described by Plaintiff in his testimony 28 precluded employment. (A.R. 49-50.) 18 1 VIII. Reports of Plaintiff and Third Parties 2 Plaintiff reported on February 8, 2006, to the SSA that 3 sometimes when he got seizures, he was a little groggy 4 afterwards; however, when he was seizure free, he did well with 5 his memory and concentration, could think, and did not need 6 constant reminders. His memory problems did not affect his 7 activities of daily living. (A.R. 141.) 8 Plaintiff s wife, son, and daughter reported in letters in 9 2007 and 2008 that Plaintiff had told his wife that the attacks 10 came four to five times a month and that he felt really bad; he 11 would lose consciousness and orientation. (A.R. 169.) Plaintiff s 12 son reported that Plaintiff had attacks about four to five times 13 a month; he lost his memory more every day and needed his family; 14 his epileptic attacks did not allow him to get a job. (A.R. 171.) 15 His daughter confirmed that he got the attacks four to five 16 times, and she stated that Plaintiff said bad words without 17 knowing what he said unconsciously; pills did not preclude the 18 attacks, which did not have bad convulsions but caused loss of 19 consciousness for seconds. His illness caused his depression. 20 (A.R. 173.) 21 IX. Rejection of Dr. Carrillo s Opinion 22 Plaintiff argues that the ALJ ignored Plaintiff s mental 23 impairments and the opinion of Ricardo Carrillo, Ph.D.; further, 24 the ALJ failed to state legally sufficient reasons for rejecting 25 Dr. Carrillo s opinion. The ALJ failed to consider the record as 26 a whole, and the record lacked substantial evidence to support 27 the ALJ s conclusions concerning Plaintiff s mental impairments. 28 A. Legal Standards 19 1 The standards for evaluating expert opinions have recently 2 been summarized: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 23 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 24 With respect to proceedings under Title XVI, the Court notes 25 that an identical regulation has been promulgated. See, 20 C.F.R. 26 § 416.927. 27 28 B. Analysis Here, the ALJ s treatment of Dr. Carrillo s opinion must be 20 1 considered in context. In the decision, the ALJ initially set 2 forth a summary of the medical evidence. (A.R. 15-18.) The ALJ 3 noted Plaintiff s subjective complaints of memory problems and 4 limited concentration due to seizure disorder secondary to 5 cysticercosis. (A.R. 17, 15.) The ALJ cited numerous clear and 6 convincing reasons, supported by substantial evidence, for his 7 conclusion that despite Plaintiff s having impairments that could 8 reasonably have been expected to produce his symptoms, 9 Plaintiff s statements about the intensity, persistence, and 10 limiting effects of his symptoms were not credible to the extent 11 they were inconsistent with the ALJ s RFC assessment. (A.R. 17.) 12 The ALJ s reasons included inconsistencies in Plaintiff s 13 testimony concerning his ability to remember, his admission that 14 he drove weekly despite doctors admonitions not to drive, his 15 sitting for a one-hour hearing while claiming that he could sit 16 for only ten to fifteen minutes at a time, his concentrating and 17 participating throughout the hearing while claiming that he could 18 concentrate for only a few minutes, the inconsistencies between 19 Plaintiff s and Plaintiff s wife s reports concerning Plaintiff s 20 seizures, Plaintiff s inconsistent statements concerning his 21 seizures, Plaintiff s admissions that his seizures did not affect 22 his activities of daily-living and that his concentration and 23 memory were good when he was seizure-free; the mild or normal 24 findings on examination and the opinions of various practitioners 25 that contradicted Plaintiff s claims, including Dr. Zimmermann s 26 statement that Plaintiff s symptoms did not warrant any 27 disability at the time, Dr. Nugent s mild findings, Dr. Samrao s 28 notation that Plaintiff s cranial cysticercosis was benign and 21 1 his failure to find a basis for a waiver, the note that 2 Plaintiff s seizures and cystecercosis did not affect Plaintiff s 3 day-to-day activities, and Dr. Sundaresan s note that Plaintiff s 4 seizures were due in part to Plaintiff s noncompliance with diet. 5 (A.R. 18.) The ALJ noted how historically Plaintiff had been able 6 to work despite his seizure disorder from 1988 to the alleged 7 onset date. (A.R. 18.) The ALJ also noted that Plaintiff visited 8 physicians for waivers in connection with the citizenship exam, 9 and he expressly concluded that the record suggested that 10 Plaintiff was seeing physicians primarily in order to generate 11 evidence for his SSI application and appeal rather than in a 12 genuine attempt to obtain relief from his symptoms. (A.R. 18.) 13 Plaintiff does not challenge these findings. The Court notes 14 them because they reflect the ALJ s evaluation of Plaintiff s 15 credibility, which was pertinent to the reliability of the 16 medical evidence that in turn rested on Plaintiff s reports. 17 The ALJ noted Dr. Carrillo s assessment that Plaintiff was 18 not able to process minimal cognitive and emotional stimuli as a 19 result of diffuse damage to the cerebral cortex, and his note 20 that Plaintiff could not remember the date, time, year, or simple 21 digits forward or backward; engage in abstract thought; make 22 sense of figures or puzzles; or drive or work with his hands. 23 (A.R. 17.) However, the ALJ noted Plaintiff s inconsistent 24 statements that his impairments did not affect his activities of 25 daily living and that he did well with concentration and memory 26 when he was seizure-free. The ALJ referred to the medical 27 evidence in general, noting the absence of hospitalizations for 28 Plaintiff s seizures and his failure to visit a neurologist as 22 1 directed. (A.R. 18.) In this course of reasoning, the ALJ relied 2 on the evidence that was inconsistent with the severely 3 debilitating symptoms that Plaintiff reported or represented to 4 Dr. Carrillo. 5 This reasoning was legitimate, specific, and even clear and 6 convincing. It is established that important factors in 7 evaluating expert opinions include the amount of relevant 8 evidence that supports the opinion, the quality of the 9 explanation provided, the consistency of the medical opinion with 10 the record as a whole, the specialty of the physician providing 11 the opinion, and [o]ther factors such as the degree of 12 understanding a physician has of the Administration's disability 13 programs and their evidentiary requirements and the degree of 14 his or her familiarity with other information in the case record. 15 20 C.F.R. § 416.927(d); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 16 2007). 17 The ALJ also noted that Dr. Carrillo s opinion was not 18 written for the purpose of evaluating Plaintiff s ability to 19 work; rather, it was for the specific purpose of obtaining a 20 waiver of a citizenship exam that involved English language 21 skills and knowledge of American civics and history. (A.R. 18.) 22 It is evident from the purpose of the examination that it 23 centered on a citizenship exam process that involved a specific 24 set of advanced literacy and learning skills; thus, the doctor s 25 opinion regarding a citizenship exam waiver does not necessarily 26 preclude an ability to work, which involves a much broader, more 27 inclusive set of basic work activities. When Dr. Carrillo 28 referred to Plaintiff s inability to work, it is not clear what 23 1 set of activities was involved. The ALJ s reasoning was specific, 2 legitimate, and even clear and convincing. 3 Further, the ALJ noted that Dr. Carrillo s opinion did not 4 indicate how Plaintiff had been able to work steadily from 1988 5 to his alleged onset date. (A.R. 18.) The opinion was 6 insufficient with respect to addressing the pertinent facts and 7 providing an adequate explanation of the conclusions. The ALJ s 8 reasoning was supported by the record and was specific, 9 legitimate, clear, and convincing. 10 Finally, the ALJ gave great weight to the opinions of the 11 state agency physicians that Plaintiff could perform light work 12 with some additional limitations because their limitations were 13 consistent with the treatment history. (A.R. 18.) The ALJ by 14 implication found that Dr. Carrillo s limitations were 15 inconsistent with the treatment history. Further, the ALJ 16 expressly reviewed the inconsistent findings or opinions of 17 treating physicians Zimmermann, Nugent, Samrao, Sundaresan, 18 Dankabe, and even PA-C Evangelina Nunez. (A.R. 18.) The ALJ thus 19 concluded that Dr. Carrillo s limitations were inconsistent with 20 the overall medical record. 21 Contrary to Plaintiff s assertion, the ALJ did not ignore 22 Dr. Carrillo s opinion; rather, he noted Dr. Carrillo s 23 examination and assessment (A.R. 16, 17), detailed the 24 inconsistencies that brought Dr. Carrillo s opinion into question 25 (A.R. 17-18), and stated additional reasons for not giving weight 26 to Dr. Carrillo s opinion (A.R. 18). Although the ALJ did not 27 affirmatively express the precise lack of weight assigned to Dr. 28 Carrillo s opinion, it was clear that the ALJ discounted Dr. 24 1 Carrillo s opinion and instead placed great weight on other, 2 specified opinions found to be consistent with the overall 3 record. The ALJ thus stated multiple reasons, supported by 4 substantial evidence in the record, that were specific and 5 legitimate and, in the circumstances of the present case, clear 6 and convincing in force, for declining to give weight to the 7 opinion of Dr. Carrillo. 8 The ALJ s conclusion was supported by substantial evidence. 9 It was Plaintiff s burden to provide evidence of disability at 10 step four and determination of RFC. The ALJ rejected the evidence 11 that would have supported a finding of disability based on 12 Plaintiff s functioning due to cysticercosis/seizure disorder. 13 The ALJ s conclusion was proper. 14 X. Disposition 15 Based on the foregoing, the Court concludes that the ALJ s 16 decision was supported by substantial evidence in the record as a 17 whole and was based on the application of correct legal 18 standards. 19 Accordingly, the Court AFFIRMS the administrative decision 20 of the Defendant Commissioner of Social Security and DENIES 21 Plaintiff s Social Security complaint. 22 The Clerk of the Court IS DIRECTED to enter judgment for 23 Defendant Michael J. Astrue, Commissioner of Social Security, 24 and against Plaintiff Rafael Barragan Ochoa. 25 IT IS SO ORDERED. 26 27 Dated: February 25, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 28 25

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