Travis J. Harper v. Michael J. Astrue, No. 2:2010cv06760 - Document 20 (C.D. Cal. 2011)
Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge David T Bristow: IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (am)
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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 TRAVIS J. HARPER, ) Case No. CV 10-6760-DTB ) Plaintiff, ) ) ORDER AFFIRMING DECISION OF vs. ) COMMISSIONER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) 16 17 Plaintiff filed a Complaint ( Complaint ) on September 15, 2010, seeking 18 review of the Commissioner s denial of his application for Supplemental Security 19 Income. In accordance with the Magistrate Judge s Case Management Order, the 20 parties filed a Joint Stipulation ( Jt. Stip. ) on July 22, 2011. Thus, this matter now 21 is ready for decision.1 22 /// 23 /// 24 25 1 As the parties were advised in the Case Management Order, the decision in this case is being made on the basis of the pleadings, the Administrative Record 27 ( AR ), and the Joint Stipulation filed by the parties. In accordance with Rule 12(c) 28 of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 26 1 DISPUTED ISSUES 1 1. 2 3 capacity ( RFC ) assessment was supported by substantial evidence. (Jt. Stip. 3-10.) 2. 4 5 Whether the Administrative Law Judge s ( ALJ ) residual functional Whether the ALJ s credibility determination was supported by substantial evidence. (Jt. Stip. 10-16.) 6 DISCUSSION 7 8 I. The ALJ properly assessed plaintiff s RFC. 9 Plaintiff claims that the ALJ s determination of his RFC is not supported by 10 substantial evidence because the ALJ failed to account properly for the medical 11 opinion of his treating physician, Dr. Arthur Amador. (Jt. Stip. 4-5.) Plaintiff began 12 receiving mental health treatment under the supervision of Dr. Amador in May 2008, 13 at which time plaintiff received a diagnosis of Schizophrenia, Paranoid type, and 14 Polysubstance Dependence in full sustained remission. (AR 233.) In June 2009, 15 Dr. Amador completed a Narrative Report in which he that stated, among other 16 things, that plaintiff did not have the ability to maintain a sustained level of 17 concentration, sustain repetitive tasks for an extended period, adapt to new or 18 stressful situations, or interact appropriately with others. (AR 226.) Dr. Amador also 19 opined that plaintiff s prognosis was guarded and that he could not complete a 40 20 hour workweek without decompensating. (Id.) 21 Despite Dr. Amador s opinion, the ALJ determined that plaintiff had an RFC 22 for a full range of work at all exertional levels but with some mild limitations of 23 concentration, persistence, and pace, which might prevent him from performing the 24 more skilled levels of work activity. (AR 21.) The ALJ also determined that 25 plaintiff should have no problems performing the simple routine tasks required for 26 the performance of unskilled work. (Id.) 27 The crux of plaintiff s claim in Disputed Issue One is that the ALJ s RFC 28 determination involved a rejection of Dr. Amador s opinion without specific and 2 1 legitimate reasons. (Jt. Stip. 5.) Alternatively, plaintiff claims that the ALJ should 2 have recontacted Dr. Amador to clarify the basis for his opinion or obtained the 3 testimony of a vocational expert. (Jt. Stip. 5-6.) 4 In evaluating medical opinions, the Ninth Circuit distinguishes among three 5 types of physicians: (1) Treating physicians (who examine and treat), (2) examining 6 physicians (who examine but do not treat), and (3) non-examining physicians (who 7 neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as 8 amended). In general, more weight should be given to the opinion of a treating 9 physician than to a non-treating physician, and more weight to the opinion of an 10 examining physician than to a non-examining physician. Id. Although a treating 11 physician s opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 12 599, 602 (9th Cir. 1989), [t]he treating physician s opinion is not, however, 13 necessarily conclusive as to either a physical condition or the ultimate issue of 14 disability. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight 15 given to a treating physician s opinion depends on whether it is supported by 16 sufficient medical data and is consistent with other evidence in the record. See 20 17 C.F.R. §§ 404.1527 (d)(2) and 416.927(d)(2). When a treating or examining 18 physician s opinion is not contradicted by another physician, it may only be rejected 19 for clear and convincing reasons. Lester, 81 F.3d at 830. Where, as in this case, 20 the treating physician s opinion is contradicted, it may not be rejected without 21 specific and legitimate reasons supported by substantial evidence in the record. Id. 22 at 830-31; see also Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1164 23 (9th Cir. 2008). 24 The ALJ provided specific and legitimate reasons supported by substantial 25 evidence in the record for rejecting Dr. Amador s opinion. First, the ALJ questioned 26 Dr. Amador s diagnosis of paranoid schizophrenia, noting that it was apparently 27 established on the first day that the claimant sought treatment ; that it did not appear 28 to be based upon objective evidence and/or a longitudinal record of 3 1 treatment/observations ; and that such diagnoses are typically made at a younger age 2 (plaintiff was 49 years old at the time of the diagnosis).2 (AR 18, 41.) On the other 3 hand, the ALJ noted that an examining psychologist found, after a complete mental 4 status examination, that plaintiff suffered only from a substance-induced mood 5 disorder and polysubstance dependence by history. (AR 18, 205-12.) Because the 6 examining psychologist s opinion was based on independent clinical findings, it 7 constituted substantial evidence in the record contradicting the opinion of [Dr. 8 Amador]. See Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (independent 9 clinical findings from an examining physician may include diagnoses that differ 10 from those offered by another physician and that are supported by substantial 11 evidence ). 12 Second, the ALJ correctly found that Dr. Amador s opinion was provided on 13 form check boxes and not based on a credible mental status examination. (AR 14 23.) The Commissioner may properly reject a treating medical opinion that is 15 presented in a checklist and brief and conclusionary in form with little in the way of 16 clinical findings to support the conclusion. See Batson v. Commissioner of Social 17 Sec. Admin., 359 F.3d 1190, 1195 n. 3 (9th Cir. 2004). Third, the ALJ noted that Dr. 18 Amador failed to account for plaintiff s inconsistent statements regarding the 19 commencement date of his auditory hallucinations. (AR 23.) The medical record 20 shows that at various times, plaintiff alleged that he began hearing voices at age 10 21 or 11 (AR 229), during his late teens (AR 237), and upon his release from prison in 22 23 24 25 26 27 28 2 Moreover, the ALJ found that plaintiff did not undergo any type of testing to arrive at a diagnosis of paranoid schizophrenia, with no urine/blood levels or laboratory tests to check for differential diagnoses including a possible chemical imbalance or current drug use; no thyroid function/glucose tolerance tests and/or an electroencephalogram to rule out thyroid abnormalities, reactive hypoglycemia, and/or an organic cause for plaintiff s alleged symptoms/abnormalities; and no psychological testing to establish the existence of any perceptual thought disturbances and/or to rule out malingering. (AR 19.) 4 1 2003, when he was 44 years old (AR 30, 241). See Morgan v. Commissioner of 2 Social Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (ALJ may determine that 3 internal inconsistencies in treating physician s reports and inconsistencies with other 4 medical opinions are material for purposes of evaluating medical evidence). Fourth, 5 given that any of these alleged commencement dates called into question plaintiff s 6 failure to seek mental health treatment until May 2008, the ALJ inferred that Dr. 7 Amador was acting as an advocate for the claimant with regard to trying to help him 8 obtain supplemental security income benefits. (AR 23.) Such an inference was not 9 improper under the circumstances. See Nguyen v. Chater, 100 F.3d 1462, 1464 (9th 10 Cir. 1996) (the purpose for which a medical report was obtained generally does not 11 provide a legitimate reason for rejecting the report, but it may be relevant where the 12 opinion itself provides grounds for suspicion as to its legitimacy, such as lack of 13 objective medical basis or inconsistency with treatment notes) (citing Saelee v. 14 Chater, 94 F.3d 520, 523 (9th Cir. 1996) (per curiam).) 15 Thus, the ALJ properly rejected Dr. Amador s opinion. 16 Nor do plaintiff s alternative arguments, challenging the ALJ s failure to 17 recontact Dr. Amador or call a vocational expert, warrant a different result. First, an 18 ALJ is required to recontact a doctor or otherwise undertake to develop the record 19 more fully only if the doctor s report is ambiguous or insufficient for the ALJ to make 20 a disability determination. 21 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Neither of these circumstances 22 applied here. Second, the testimony of a vocational expert is required when a non- 23 exertional imitation is sufficiently severe so as to significantly limit the range of 24 work permitted by the claimant s exertional limitation. Hoopai v. Astrue, 499 F.3d 25 1071, 1076 (9th Cir. 2007) (quoting Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th 26 Cir. 1988).) Here, the record established, based on the opinion of the examining 27 psychologist, that plaintiff only had mild psychological limitations which would not 28 preclude him from performing simple, routine tasks. (AR 21, 210-11.) Such 20 C.F.R. §§ 404.1512(e), 416.912(e); Bayliss v. 5 1 limitations were not sufficiently severe so as to require the testimony of a vocational 2 expert. See Hoopai, 499 F.3d at 1077 (holding that vocational expert testimony was 3 not required where claimant had only mild and moderate psychological 4 limitations). 5 6 7 8 II. The ALJ properly evaluated plaintiff s credibility. Plaintiff claims in Disputed Issue Two that the ALJ s adverse credibility determination was not supported by substantial evidence. (Jt. Stip. 10-13.) 9 Where the claimant has produced objective medical evidence of an impairment 10 or impairments which could reasonably be expected to produce some degree of pain 11 and/or other symptoms, and the record is devoid of any affirmative evidence of 12 malingering, the ALJ may reject the claimant s testimony regarding the severity of 13 the claimant s pain and/or other symptoms only if the ALJ makes specific findings 14 stating clear and convincing reasons for doing so. See Smolen v. Chater, 80 F.3d 15 1273, 1281-82 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993); 16 Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also 17 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). The ALJ must 18 identify what testimony is not credible and what evidence undermines the claimant s 19 complaints. Lester, 81 F.3d at 834; see also Dodrill, 12 F.3d at 918. Further, a 20 credibility finding must be sufficiently specific to permit the court to conclude that 21 the ALJ did not arbitrarily discredit [the] claimant s testimony. Thomas v. Barnhart, 22 278 F.3d 947, 958 (9th Cir. 2002). Factors that may be considered include: (1) The 23 claimant s reputation for truthfulness; (2) inconsistencies in testimony or between 24 testimony and conduct; (3) the claimant s daily activities; (4) an unexplained, or 25 inadequately explained, failure to seek treatment or follow a prescribed course of 26 treatment; and (5) testimony from physicians concerning the nature, severity, and 27 effect of the symptoms of which the claimant complains. Fair v. Bowen, 885 F.2d 28 597, 603 (9th Cir. 1989); see also Thomas, 278 F.3d at 958-59. 6 1 During the administrative hearing, plaintiff testified that he lacked the 2 concentration necessary to work; that he hears voices every day; that the voices began 3 3 to 5 years before the hearing; that he spends his days watching television and caring 4 for his dog; that he performs household chores such as washing dishes, vacuuming, 5 and mopping the floor; that he has trouble getting out of bed 3 days per week; that he 6 is forgetful; and that he could not work because his mind will travel. (AR 29-34.) 7 The ALJ provided clear and convincing reasons for rejecting plaintiff s 8 testimony. First, the ALJ noted that plaintiff has no restriction in his daily activities, 9 which included various household chores and the feeding and dressing of his father, 10 who has Alzheimer s disease. (AR 19, 125, 230, 240.) Such evidence of plaintiff s 11 daily activities, which are transferable to a work setting, constitutes a clear and 12 convincing reason to discount his subjective symptom testimony. See Morgan, 169 13 F.3d at 600 (claimant s ability to fix meals, do laundry, work in yard, and 14 occasionally care for friend s child served as evidence of ability to work). Second, 15 the ALJ noted, as detailed above, plaintiff s inconsistent statements with respect to 16 the commencement date of his auditory hallucinations. (AR 23, 30, 229, 237, 241.) 17 It is well settled that an ALJ may consider such inconsistencies to find a claimant s 18 testimony not credible. See Fair, 885 F.2d at 604 n. 5; Thomas, 278 F.3d at 958-59. 19 Third, the ALJ found that there was no explanation for [plaintiff s] failure to seek 20 mental health treatment at any time prior to the date he filed his application for 21 supplemental security income benefits. (AR 23.) While there may be any number 22 of good reasons for not seeking prompt medical treatment, a claimant s failure to 23 assert one, or a finding by the ALJ that the profferred reason is not believable, can 24 cast doubt on the sincerity of the claimant s . . . testimony. Fair, 885 F.2d at 603. 25 Here, plaintiff failed to assert any reason for his failure to seek treatment for his 26 mental health problems, which purportedly have bothered him for several years, nor 27 is any evident from the record. 28 /// 7 1 Thus, the ALJ properly evaluated plaintiff s credibility. 2 ORDER 3 4 5 6 7 IT IS THEREFORE ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. DATED: November 4, 2011 8 9 10 DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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