Francisco Peralta Zamora v. Carolyn W. Colvin, No. 2:2013cv08955 - Document 19 (C.D. Cal. 2014)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this Court affirms the decision of the Administrative Law Judge. (See Order for complete details) (afe)
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Francisco Peralta Zamora v. Carolyn W. Colvin Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 No. CV 13-8955-AS ) ) ) Plaintiff, ) MEMORANDUM AND OPINION v. ) ) CAROLYN W. COLVIN, ) Acting Commissioner of the Social Security Administration, ) ) ) Defendant. ) ) FRANCISCO PERALTA ZAMORA, 17 18 PROCEEDINGS 19 20 On December 4, 2013, Plaintiff Francisco Peralta Zamora filed a 21 Complaint seeking review of the denial of his application for a 22 period of disability, disability insurance benefits, and supplemental 23 security income. 24 after service of the Complaint, the parties consented to proceed 25 before a United States Magistrate Judge. 26 Defendant 27 Administrative then (Docket Entry No. 3.) filed Record an Answer (“A.R.”) on to May In January 2014, shortly (Docket Entry Nos. 9, 10.) the 2, Complaint 2014. and (Docket the Entry 1 28 Dockets.Justia.com 1 Nos. 2 Stipulation 3 Plaintiff’s claim. 4 matter under submission without oral argument, and it is now before 5 the Court for decision. 12, 13.) On setting July 24, forth 2014, their the parties respective (Docket Entry No. 17.) filed positions a Joint regarding The Court has taken the See C.D. Cal. L.R. 7-15. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 Plaintiff 9 filed applications for a period of disability, 10 disability insurance benefits, and supplemental security income on 11 September 23, 2009, alleging disability commencing on March 24, 2009. 12 (A.R. 285–93.) 13 of a stroke. 14 from diplopia, commonly referred to as double vision. 15 Joint Stip. 4.) Plaintiff alleges physical impairments as the result (Joint Stip. 3.) His main complaint is that he suffers (See A.R. 21; 16 After 17 the Commissioner initially denied Plaintiff’s claims, 18 Plaintiff requested a de novo hearing before an Administrative Law 19 Judge (“ALJ”). 20 on the matter. 21 2011, 22 (A.R. 28–37.) 23 held on June 29, 2011. 24 expert (“VE”), Freeman Leeth, testified. 25 hearing, the ALJ ordered Plaintiff to see a psychologist to determine 26 the 27 (A.R. 57–60.) the extent The ALJ, Edward P. Schneeberger, held four hearings (A.R. 28–110.) ALJ of offered At the first hearing, on February 10, Plaintiff to obtain counsel. Plaintiff obtained counsel and the second hearing was the (A.R. 38–60.) damage to Plaintiff and a vocational (Id.) Plaintiff’s At the end of the cognitive functioning. On January 25, 2012, the ALJ held the third hearing on 2 28 resources 1 this 2 neurologist Dr. James Haines. 3 recommendation, the ALJ ordered Plaintiff to see an ophthalmologist 4 to undergo a diplopia filed red lens test. 5 hearing was held on August 24, 2012. 6 ophthalmologist 7 hearing. matter, where Plaintiff Dr. once again testified (A.R. 92–110.) Patrick along with Based on Dr. Haines’ (A.R. 108.) The final Plaintiff, VE Irma Bebe, and McCafferty testified at the final (A.R. 61–91.) 8 On September 27, 2012, the ALJ issued an unfavorable decision. 9 10 (A.R. 10–27.) 11 a result of a stroke, including headaches, significant right facial 12 weakness, and some right-sided sensory deficits. 13 ALJ 14 impairment. 15 corrective 16 Plaintiff’s alleged level of vision is inconsistent with the degree 17 of pathology. 18 adverse credibility finding with regard to Plaintiff’s allegations of 19 the 20 symptoms. found The ALJ found that Plaintiff has severe impairments as that Plaintiff’s (Id.) lenses intensity, alleged (A.R. 19.) diplopia is a But the non-severe The ALJ found that Plaintiff has been prescribed and (Id.) prisms to improve his double vision, and In reaching these conclusions, the ALJ made an persistence, and limiting effects of his physical (A.R. 20–22.) 21 22 The ALJ determined that Plaintiff retained the residual 23 functional capacity (“RFC”) to perform a full range of work at all 24 exertional levels, but with the non-exertional limitations that he 25 cannot 26 (A.R. 22.) 27 determined that Plaintiff was able to perform his past relevant work work around unprotected heights moving machinery. Relying on the testimony of VE Leeth and VE Bebe, the ALJ 3 28 or 1 as 2 performed. 3 disabled under section 216(i) and 223(d) of the Social Security Act. 4 (A.R. 22.) an assembler, (Id.) DOT No. 827.684-010, as actually and generally Accordingly, the ALJ found that Plaintiff was not 5 6 PLAINTIFF’S CONTENTION 7 8 9 Plaintiff contends that the ALJ failed to provide specific and legitimate reasons for rejecting his testimony. (Joint Stip. 4.) 10 11 STANDARD OF REVIEW 12 13 This court reviews the Administration’s decision to determine 14 if: (1) the Administration’s findings are supported by substantial 15 evidence; and (2) the Administration used proper legal standards. 16 Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 17 evidence is more than a scintilla, but less than a preponderance.” 18 Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 19 whether 20 consider [] 21 supports and 22 conclusion.” 23 As a result, “[i]f evidence can reasonably support either affirming 24 or reversing the ALJ’s conclusion, [a] court may not substitute its 25 judgment for that of the ALJ.” 26 359 F.3d 1190, 1196 (9th Cir. 2004). substantial the evidence record evidence as a that supports finding, whole, weighing detracts from “a both the To determine court must evidence that [Commissioner’s] Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Batson v. Comm’r of Soc. Sec. Admin., 27 4 28 a “Substantial 1 APPLICABLE LAW 2 3 “The Social Security Act defines disability as the ‘inability to 4 engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to 6 result in death or which has lasted or can be expected to last for a 7 continuous period of not less than 12 months.’” 8 433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. § 423(d)(1)(A)). 9 The ALJ follows a five-step, sequential analysis to determine whether 10 a claimant has established disability. Webb v. Barnhart, 20 C.F.R. § 404.1520. 11 12 At step one, the ALJ determines whether the claimant is engaged 13 in substantial gainful employment activity. 14 “Substantial 15 [i]nvolves 16 duties[] and . . . [i]s done (or intended) for pay or profit.” 17 §§ 404.1510, 404.1572. 18 not engaged in substantial gainful activity, the ALJ proceeds to step 19 two which requires the ALJ to determine whether the claimant has a 20 medically impairments that 21 significantly limits her ability to do basic work activities. See 22 id. § The 23 “ability to do basic work activities” is defined as “the abilities 24 and aptitudes necessary to do most jobs.” 25 Webb, 433 F.3d at 686. 26 “a slight abnormality (or combination of slight abnormalities) that gainful doing severe activity” significant is and as productive “work that physical . or . . mental Id. If the ALJ determines that the claimant is impairment 404.1520(a)(4)(ii); see or combination also Webb, 433 of F.3d at 686. 20 C.F.R. § 404.1521(b); An impairment is not severe if it is merely 27 5 28 defined Id. § 404.1520(a)(4)(i). 1 has no more than a minimal effect on the ability to do basic work 2 activities.” Webb, 433 F.3d at 686. 3 4 If the ALJ concludes that a claimant lacks a medically severe 5 impairment, 6 20 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th 7 Cir. 2005) (holding that the ALJ need not consider subsequent steps 8 if there is a finding of “disabled” or “not disabled” at any step). the ALJ must find the claimant not disabled. Id.; 9 10 However, if the ALJ finds that a claimant’s impairment is 11 severe, then step three requires the ALJ to evaluate whether the 12 claimant’s 13 entitling her to a disability finding. 14 the impairment does not satisfy the statutory requirements entitling 15 the claimant to a disability finding, the ALJ must determine the 16 claimant’s RFC, that is, the ability to do physical and mental work 17 activities on a sustained basis despite limitations from all her 18 impairments. impairment satisfies certain statutory requirements Webb, 433 F.3d at 686. If 20 C.F.R. § 416.920(e). 19 20 Once the RFC is determined, the ALJ proceeds to step four to 21 assess whether the claimant is able to do any work that she has done 22 in the past, defined as work performed in the last fifteen years 23 prior to the disability onset date. 24 claimant is not able to do the type of work that she has done in the 25 past or does not have any past relevant work, the ALJ proceeds to 26 step five to determine whether—taking into account the claimant’s 27 age, education, work experience, and RFC—there is any other work that 6 28 If the ALJ finds that the 1 the claimant can do and if so, whether there are a significant number 2 of such jobs in the national economy. 3 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(iii)–(v). 4 claimant has the burden of proof at steps one through four, and the 5 Commissioner has the burden of proof at step five. 6 at 1098. Tackett v. Apfel, 180 F.3d The Tackett, 180 F.3d 7 8 DISCUSSION 9 After consideration of the record as a whole, the Court finds 10 11 that the Commissioner's findings are supported 12 by substantial evidence and are free from material 1 legal error. 13 14 A. The ALJ Did Not Err in Evaluating Plaintiff’s Credibility 15 16 Plaintiff challenges the ALJ’s credibility assessment of the 17 severity of his symptoms, emphasizing 18 Plaintiff’s significant vision problems. 19 while the ALJ properly identified the two-step credibility process, 20 Plaintiff argues that the ALJ “never articulated a single reason” for 21 finding Plaintiff not credible. 22 ALJ properly articulated reasons for finding Plaintiff not credible. (Id.) that the evidence (Joint Stip. 5.) proved Moreover, But the Court finds that the 23 24 25 26 1 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (stating that an ALJ’s decision will not be reversed for errors that are harmless). 27 7 28 1 1. Legal Standard 2 3 An ALJ’s assessment of symptom severity and claimant credibility 4 is entitled to “great weight.” 5 1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th 6 Cir. 1985). 7 of disabling pain, or else disability benefits would be available for 8 the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” 9 Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012). See Anderson v. Sullivan, 914 F.2d “[T]he ALJ is not required to believe every allegation 10 11 In evaluating a claimant’s subjective symptom testimony, the ALJ 12 engages in a two-step analysis. 13 1028, 14 whether the claimant has presented objective medical evidence of an 15 underlying medical impairment which could reasonably be expected to 16 produce the pain or other symptoms alleged.” 17 quotations and citation omitted). If such objective medical evidence 18 exists, the the 19 because there 20 produce the degree of symptom alleged.” Smolen, 80 F.3d at 1282 21 (emphasis in finding 22 subjective complaints 23 cogent” findings that support the conclusion. 24 F.3d 821, 834 (9th Cir. 1995) (quoting Rashad v. Sullivan, 903 F.2d 25 1229, 26 malingering, 27 testimony must be “clear and convincing.” 1035–36 1231 (9th ALJ is Cir. may not no (9th the 2007). reject showing original). not Cir. ALJ’s Lingenfelter v. Astrue, 504 F.3d “First, that Instead, 1990)). the for 8 28 in ALJ must determine Id. at 1036 (internal testimony impairment Absent reasons ALJ claimant’s the credible, the must can “simply reasonably the claimant’s make “specific, Lester v. Chater, 81 affirmative rejecting the evidence of claimaint’s Lester, 81 F.3d at 834. 1 2. Affirmative Evidence of Malingering 2 3 Defendant argues that the Court should affirm the ALJ’s decision 4 because there is affirmative evidence of malingering in this case. 5 (Joint 6 “considerable 7 psychologist, Dr. Ahmad Riahinejad. 8 evaluated Plaintiff’s mental impairment as a result of the stroke and 9 included in his diagnosis that Plaintiff was malingering with respect Stip. 7.) As weight” Defendant on the diagnosis 10 to alleged mental impairment. 11 Riahinejad, 12 diagnostic testing in August 2011. Plaintiff did points out, from the the (A.R. 21–22.) put forth his placed consultative Dr. Riahinejad (A.R. 21, 464–77.) not ALJ According to Dr. best effort during (Id.) 13 14 Where there is affirmative evidence of malingering, the ALJ is 15 not required to provide “clear and convincing” reasons to reject 16 Plaintiff’s 17 Thus, as Defendants argue, because the ALJ sufficiently explained and 18 placed 19 Plaintiff 20 credibility 21 A.R. 21–22.) 22 of Plaintiff was for mental impairment, his diagnosis of malingering 23 is indicative of Plaintiff’s overall credibility with respect to his 24 overall 25 2014 WL 6065898, at *8 (C.D. Cal. Nov. 13, 2014) (“[T]he ALJ was 26 entitled to reject Plaintiff’s testimony without providing clear and 27 convincing reasons because she specifically found that ‘the record subjective “considerable was statements. weight” malingering, findings need on The Court agrees. symptoms. See Dr. this not Medel go Lester, F.3d Riahinejad’s Court’s any 81 review further. at opinion of the (Joint 834. that ALJ’s Stip. 7; While Dr. Riahinejad’s examination v. 9 28 See Colvin, No. EDCV 13-2052-JPR, 1 includes statements by a doctor suggesting [Plaintiff] was engaged in 2 possible malingering or misrepresentation.”). 3 4 3. Objective Medical Evidence 5 6 Nevertheless, even if Dr. Riahinejad’s malingering diagnosis is 7 insufficient on its own, the diagnosis along with the ALJ’s reliance 8 on 9 convincing” reasons for the ALJ’s adverse credibility finding. additional objective medical evidence suffice as “clear and 10 In 11 addition to Dr. Riahinejad’s examination, the ALJ also 12 credited the opinions of nondisability from the other consultative 13 examiners and medical experts. 14 511–13.) 15 which the ALJ stated “put to rest any concerns about lifting and 16 carrying.” (A.R. 17 results the 18 indicated that Plaintiff’s alleged level of vision was not consistent 19 with the degree of pathology and that his vision was closer to 20/20. 20 (A.R. 21 hearing that Plaintiff’s alleged double vision can be offset by head 22 positioning and improved with the use of prisms. 23 Dr. McCafferty also testified that patching one eye for periods of 24 time would help correct the problem during work. (A.R. 19–22, 73–78, 101–07, 464–77, Dr. Haines testified to Plaintiff’s exertional limitations, of 511–13.) 21, 105.) With ophthalmological Moreover, Dr. respect to examination McCafferty the ordered testified diplopia, by at the the the ALJ last (A.R. 21, 73–78.) (Id.) 25 26 The Court also notes that the ALJ’s credibility findings did not 27 entirely reject Plaintiff’s subjective symptoms, particularly with 10 28 1 respect to his vision problems. 2 limitations 3 unprotected heights or moving machinery. 4 Court finds that the ALJ rationally interpreted the evidence and 5 articulated 6 severity of Plaintiff’s subjective symptoms including his alleged 7 displopia. 8 Cir. 9 medical experts can serve “as substantial evidence supporting the 10 ALJ’s findings with respect to [the claimant’s] physical impairment 11 and exertional limitations”); Morgan v. Comm’r of Soc. Sec. Admin., 12 169 F.3d 595, 600–01 (9th Cir. 1999) (holding that a medical expert’s 13 testimony 14 specific 15 consistent with other evidence in the record); Matthews v. Shalala, 16 10 F.3d 678, 680 (9th Cir. 1993) (holding that the ALJ properly 17 discounted the claimant’s allegations where no doctor “expressed the 18 opinion that [the claimant] was totally disabled” or “implied that 19 [the claimant] was precluded from all work activity”). supported “clear See 2001) by and the that constitutes rationale record—Plaintiff convincing” Tonapetyan (holding The RFC incorporates non-exertional v. the cannot (A.R. 22.) reasons for around Overall, the discounting Halter, 242 F.3d 1144, opinions of examining substantial evidence where narrative justifying his and work 1149 the (9th doctors he provides opinion that and a is 20 CONCLUSION 21 22 “If the ALJ’s credibility finding is supported by substantial 23 24 evidence second guessing.” 25 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Here, the 26 ALJ not only provided specific affirmative evidence of malingering, 27 but he in also the record, provided we may specific, not clear 11 28 engage and in convincing reasons for 1 discounting Plaintiff’s statements regarding his subjective symptoms. 2 Therefore, 3 disability was properly based upon substantial evidence. the ALJ’s decision that Plaintiff failed to establish 4 5 ORDER 6 7 8 For all of the foregoing reasons, this Court affirms decision of the Administrative Law Judge. 9 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 13 14 Dated: December 11, 2014. _/s/__________________________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 12 28 the
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