Alessa Buitron v. Carolyn W. Colvin, No. 2:2014cv03581 - Document 22 (C.D. Cal. 2015)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (mt)

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Alessa Buitron v. Carolyn W. Colvin Doc. 22 1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 ALESSA BUITRON, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) Case No. LA CV 14-3581 JCG MEMORANDUM OPINION AND ORDER Alessa Buitron (“Plaintiff”) challenges the Social Security Commissioner’s 19 decision denying her application for disability benefits. Four issues are presented for 20 decision here: 21 1. 22 23 Whether the Administrative Law Judge (“ALJ”) properly assessed Plaintiff’s treating and examining physicians’ opinions (see Joint Stip. at 4-11, 15-16); 2. Whether the ALJ properly evaluated Plaintiff’s impairments at step two, 24 properly assessed Plaintiff’s residual functional capacity (“RFC”), and properly relied 25 on the vocational expert (“VE”)’s testimony (see id. at 4, 16-26, 29-30); 26 3. Whether the ALJ properly rejected Plaintiff’s credibility (see id. at 4, 30- 27 28 1 Dockets.Justia.com 1 36, 38-39); and 2 4. 3 4 5 6 7 8 9 10 11 Whether the ALJ properly evaluated third-party testimony (see id. at 4, 39-44). The Court addresses Plaintiff’s contentions below, and finds that reversal is not warranted. A. The ALJ Properly Assessed the Treating and Evaluating Physicians’ Opinions Preliminarily, Plaintiff contends that the ALJ improperly assessed the opinions of treating physicians Dr. Deborah Thurber and Dr. Ronald Milestone, and the opinion of examining physician Dr. Jordan Witt. (See id. at 4-11, 15-16.) As a general rule, if the ALJ wishes to disregard the opinion of a treating or 12 examining physician, “he or she must make findings setting forth specific, legitimate 13 reasons for doing so that are based on substantial evidence in the record.” Murray v. 14 Heckler, 722 F.2d 499, 502 (9th Cir. 1983); Carmickle v. Comm’r, Soc. Sec. Admin., 15 533 F.3d 1155, 1164 (9th Cir. 2008). 16 17 18 1. Dr. Thurber Here, the ALJ properly rejected Dr. Thurber’s opinion that Plaintiff would miss work about three times a month, for three reasons. 19 First, “there [was] no explanation of the evidence relied upon in forming this 20 opinion.” (Administrative Record (“AR”) at 503, 541); see Britton v. Colvin, 2015 21 WL 3461472, at *1 (9th Cir. 2015) (“[A]n [ALJ] may disregard [a] medical opinion 22 that is brief, conclusory, and inadequately supported by clinical findings.”). 23 Significantly, the mental impairment questionnaire completed by Dr. Thurber 24 (1) warned that the “usefulness” of the doctor’s opinion depended on the extent to 25 which she “relate[ed] particular medical findings to any limitation in capacity”; and 26 27 28 2 1 (2) provided several blank spaces to provide this information. (See AR at 503-07.) 2 However, Dr. Thurber provided no such medical or clinical findings. (See id.) 3 Second, Dr. Thurber’s opinion was inconsistent with her assessment that 4 Plaintiff suffered from, at most, only moderate limitations. (Id. at 506, 508, 541); see 5 Zettelmier v. Astrue, 387 F. App’x 729, 731-32 (9th Cir. 2010) (internal inconsistency 6 within doctor’s opinion provided proper basis to discredit it); Chavez v. Astrue, 2010 7 WL 5173190, at *6 (E.D. Wash. Dec. 13, 2010) (ALJ properly rejected treatment 8 provider’s opinion that was contradicted by that same provider’s assessment of only 9 mild to moderate limitations). 10 Third, Dr. Thurber’s opinion was inconsistent with the record as a whole. (AR 11 at 541.) For example, the ALJ discounted Plaintiff’s daily restrictions, in part, due to 12 her ability to successfully attend community college classes and engage in part-time 13 work assembling silverware. (See id. at 66, 538, 540, 561, 571, 675, 681, 811); see 14 Carrigan v. Colvin, 2014 WL 1757208, *18 (E.D. Cal. Apr. 30, 2014) (claimant’s 15 ability to perform college coursework undercut treating physician’s findings and was a 16 valid basis for rejecting physician’s opinion); Jones v. Colvin, 2014 WL 4722327, at 17 *8 (D. Ariz. Sept. 23, 2014) (ALJ may properly reject a medical opinion that is 18 inconsistent with claimant’s demonstrated abilities, such as the ability to work part- 19 time). 20 21 2. Dr. Milestone Next, the ALJ properly evaluated Dr. Milestone’s opinion, in concluding that it 22 was consistent with Plaintiff’s RFC to perform a full range of work at all exertional 23 levels, but with the nonexertional limitation of “simple routine tasks” and “occasional 24 contact with public and coworkers.” (AR at 539, 541); see Harris v. Comm’r of Soc. 25 Sec. Admin., 2015 WL 1286165, at *1 (9th Cir. 2015) (ALJ’s interpretation of treating 26 physician’s opinion comported with ALJ’s ultimate determination that claimant could 27 28 3 1 perform less than a full range of work). Significantly, Dr. Milestone opined that 2 Plaintiff (1) had only moderate limitations in her ability to maintain concentration, 3 persistence, and pace; (2) had a “good” ability to complete a normal workday or 4 workweek without interruptions from psychological symptoms; (3) would miss work 5 only “about once a month” or “less than once a month”; (4) was not rated below “fair” 6 on the doctor’s mental impairment questionnaire in her ability to do various work- 7 related tasks; and (5) was rated only “mildly limited” or “not significantly limited” on 8 the doctor’s medical source statement. (AR at 469-73.) 9 3. Dr. Witt 10 Finally, the ALJ properly rejected Dr. Witt’s opinion, for four reasons. 11 First, Dr. Witt’s opinion made conclusions that Plaintiff was more severely 12 limited than his own testing indicated. (Id. at 540, 865-66); see Zettelmier, 387 F. 13 App’x at 731-32; Chavez, 2010 WL 5173190, at *6. Namely Dr. Witt’s functional 14 testing showed that Plaintiff had (1) a full scale IQ of 76; and (2) only mild to 15 moderate depression and anxiety. (AR at 865-66.) 16 Second, Dr. Witt’s opinion was inconsistent with earlier and current testing 17 showing that Plaintiff was functioning in the low to borderline range. (Id. at 540); see 18 Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004) (“[I]t was 19 permissible for the ALJ to give [the treating physician’s opinion] minimal evidentiary 20 weight, in light of the objective medical evidence and the opinions and observations of 21 other doctors.”). In particular, similar testing by consultative examiner Dr. Lance 22 Portnoff revealed a similar IQ score, but only mild to moderate limitations. (AR at 23 384, 538-40.) 24 Third, Plaintiff complied with her treatment only sporadically. (AR at 540); see 25 Owen v. Astrue, 551 F.3d 792, 799-800 & n.3 (8th Cir. 2008) (ALJ properly 26 considered claimant’s “noncompliance for purposes of determining the weight to give 27 28 4 1 [doctor’s] medical opinions”); Bartless v. Colvin, 2015 WL 2412457, at *7 (D. Or. 2 May 21, 2015) (failure to follow physician’s prescribed course of treatment may be a 3 specific, legitimate reason for rejecting physician’s opinion). Notably, Plaintiff 4 (1) told her therapist that she did not have time to go to therapy sessions, (2) did not 5 regularly refill her medications, and (3) was “intermittent[ly] compliant with treatment 6 recommendations.” (See AR at 164, 665-66, 675, 681, 811.) 7 Fourth, and finally, the ALJ properly discounted Dr. Witt’s opinion based on 8 Plaintiff’s ability to attend college. (Id. at 540, 571, 675, 681); see Carrigan, 2014 WL 9 1757208, at *18. 10 Thus, the ALJ properly assessed Plaintiff’s treating and evaluating physicians’ 11 opinions. 12 B. The ALJ Properly Assessed Plaintiff’s RFC and Relied on the VE’s 13 Testimony, and Any Error in Evaluating Plaintiff’s Impairments Was 14 Harmless 15 Next, Plaintiff contends that the ALJ erred when he: (1) evaluated Plaintiff’s 16 impairments at step two of his analysis; (2) assessed her RFC; and (3) relied on the 17 VE’s testimony. (See Joint Stip. at 4, 16-26, 29-30.) 1. 18 Impairments at Step Two Was Harmless Error 19 20 21 22 The ALJ’s Supposed Failure to Find Additional Severe First, Plaintiff challenges the ALJ’s step two impairment evaluation. (See id. at 4, 16-20.) By way of background, at step two, the ALJ found that Plaintiff has two severe 23 impairments: “borderline intellectual functioning” and “depression.” (AR at 537.) 24 Now, Plaintiff contends that the ALJ “ignore[d]” several diagnoses, e.g., anxiety 25 disorder, dysthymia, specific learning disorder, pervasive developmental disorder, 26 Asperger’s disorder, and ADHD. (Joint Stip. at 20.) 27 28 5 1 Generally, step two serves as a “‘de minimis screening device to dispose of 2 groundless claims.’” Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001) 3 (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). To that end, it directs 4 an immediate finding of “not disabled” when the “medical evidence establishes only a 5 slight abnormality [that] would have no more than a minimal effect on an individual’s 6 ability to work even if the individual’s age, education, or work experience were 7 specifically considered” at subsequent steps. SSR 85-28, 1985 WL 56856, at *3 8 (1985). 9 Here, preliminarily, Plaintiff’s diagnoses alone are insufficient to establish 10 severe impairments. See Febach v. Colvin, 580 F. App’x 530, 531 (9th Cir. 2014) 11 (“Although [claimant] was diagnosed with depression, that diagnosis alone is 12 insufficient for finding a ‘severe’ impairment, as required by the social security 13 regulations.”); 20 C.F.R. § 404.1520(a)(4)(ii). 14 Moreover, any error in the ALJ’s failure to find additional severe impairments 15 was harmless. First, step two was already resolved in Plaintiff’s favor, i.e., the ALJ 16 found other impairments to be severe and properly continued the sequential decision 17 making process until reaching a decision at step five. See Burch v. Barnhart, 400 F.3d 18 676, 682 (9th Cir. 2005) (concluding that any error ALJ committed at step two was 19 harmless where step was resolved in claimant’s favor). Second, the ALJ considered 20 “all [Plaintiff’s] symptoms” in fashioning his RFC at step four. (AR at 539); see 21 Hurter v. Astrue, 465 F. App’x 648, 652 (9th Cir. 2012) (error harmless because, 22 although ALJ did not explicitly consider certain impairments, he stated that he had 23 considered all symptoms in formulating RFC); Crawford v. Colvin, 2014 WL 24 2216115, at *4 (W.D. Wash. May 29, 2014) (“The failure to list an impairment as 25 severe at step two is harmless where limitations are considered at step four.”). 26 Thus, the ALJ’s supposed step two error does not warrant reversal. 27 28 6 1 2. The ALJ Properly Assessed Plaintiff’s RFC 2 Next, Plaintiff contends that the RFC failed to account for five pieces of 3 evidence: (1) medical consultant Dr. R. Paxton’s opinion that Plaintiff is moderately 4 limited in “the ability to complete a normal workday and workweek without 5 interruptions from psychologically based symptoms and to perform at a consistent pace 6 without an unreasonable number and length of rest periods”; (2) Dr. Portnoff’s opinion 7 that Plaintiff is moderately limited in her ability to “communicate, understand, initiate 8 and use language at an age-appropriate level”; (3) Dr. Portnoff’s opinion that Plaintiff 9 is moderately limited in her ability to “cooperate, behave and participate in a group”; 10 (4) Dr. Portnoff’s opinion that Plaintiff is moderately limited in the ability to “engage 11 in a sustained or focus[ed] activity for a period of time due to ADHD”; and (5) the 12 ALJ’s “paragraph B” finding that Plaintiff had moderate difficulties in social 13 functioning. (See Joint Stip. at 22-24; AR at 387, 391, 538.) 14 As a rule, when formulating a claimant’s RFC, an ALJ must consider all the 15 relevant evidence in the record, including medical records, lay evidence, and the 16 effects of symptoms, including pain reasonably attributable to medically determinable 17 impairments. See Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 18 However, the ALJ “need not discuss all evidence presented.” Vincent ex rel. Vincent 19 v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). Rather, the ALJ 20 must explain only why “significant probative evidence has been rejected.” Id. at 1395 21 (citation omitted). 22 Here, first, Dr. Paxton opined that Plaintiff was “not significantly limited” in 23 almost every area and was “able to work,” but found that – due to Plaintiff’s few 24 moderate limitations – she is restricted in her ability to understand and remember 25 simple tasks and instructions. (AR at 390-92.) In fashioning the RFC, the ALJ did not 26 “totally ignore[]” Dr. Paxton’s opinion (see Joint Stip. at 23), but rather adopted Dr. 27 28 7 1 Paxton’s determination. (Compare id. at 392 with id. at 539); see e.g., Atkinson v. 2 Astrue, 389 F. App’x 804, 808 (10th Cir. 2010) (upholding RFC where ALJ did not 3 name all moderate limitations found by doctor but accepted doctor’s ultimate opinion 4 that claimant could perform non-complex work); Harris, 2015 WL 1286165 at *1. Second, Dr. Portnoff’s “opinion” was a list of Plaintiff’s restrictions, and these 5 6 were translated into an RFC determination by Dr. Paxton and then the ALJ. (AR at 7 387, 392, 405.) Plaintiff fails to explain how the limitations in Dr. Portnoff’s list were 8 not encompassed by the RFC’s restriction of Plaintiff to “simple, routine tasks” and 9 “occasional contact with public and coworkers.” (Id. at 539); McLeod v. Astrue, 640 10 F.3d 881, 887 (9th Cir. 2011) (as amended) (“Where harmfulness of the error is not 11 apparent from the circumstances, the party seeking reversal must explain how the error 12 caused harm.”). Third, Plaintiff conflates the ALJ’s “paragraph B” finding that Plaintiff had 13 14 moderate difficulties in social functioning with the ALJ’s RFC inquiry. 1 (See Joint 15 Stip. at 24-26.) In fact, it is an ALJ’s duty to translate his paragraph B findings, 16 including pace and mental limitations, into concrete restrictions. See Stubbs-Danielson 17 v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). Here, the ALJ did just that. 18 Specifically, the ALJ properly interpreted the paragraph B ratings of “mild” to 19 “moderate” to mean that Plaintiff is limited to “simple, routine tasks” and “occasional 20 contact with public and coworkers.”2 (AR at 539.) Quite simply, Plaintiff’s mere 21 1 22 23 24 25 26 27 28 Paragraph B criteria are used to rate the severity of mental impairments at steps two and three of the sequential evaluation process, while the RFC is assessed between steps three and four. See 20 C.F.R. Pt. 404, Subpt. P, App. 1; 20 C.F.R. § 404.1520(a)(4); SSR 96-8p, 1996 WL 374184, at *4. As the ALJ noted, paragraph B ratings “are not a residual functional capacity assessment” but are merely “broad categories” that provide an initial rating. (AR at 538.) An individual’s RFC, on the other hand, is “the most [she] can still do despite [her] limitations.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1) (emphasis added). 2 Plaintiff appears to agree that the ALJ’s RFC restriction “arguably encompasses” the paragraph B finding that Plaintiff has moderate difficulties in social functioning. (See Joint Stip. at 24.) 8 1 disagreement with the ALJ’s interpretation of the evidence does not amount to 2 reversible error. (See Joint Stip. at 24); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 3 2007) (“[I]f evidence is susceptible of more than one rational interpretation, the 4 decision of the ALJ must be upheld.”) (citation omitted). 5 Thus, the Court finds that the ALJ properly assessed Plaintiff’s RFC. 3. 6 The ALJ Properly Relied on the VE’s Testimony 7 Finally, Plaintiff contends that because the ALJ issued an incomplete and 8 improper RFC finding, the validity of the hypotheticals posed to the VE are necessarily 9 invalidated. (See Joint Stip. at 26.) 10 However, because the RFC findings were not improper, the ALJ’s hypotheticals 11 contained all limitations found credible and supported by the record. See Richardson 12 v. Comm’r of Soc. Sec., 588 F. App’x 531, 533 (9th Cir. 2014). 13 14 Thus, reversal is not warranted by the ALJ’s impairment evaluation, RFC assessment, or reliance on the VE’s testimony. 15 C. 16 Plaintiff next contends that the ALJ improperly assessed her credibility. (See 17 18 The ALJ Properly Assessed Plaintiff’s Credibility Joint Stip. at 4, 30-36, 38-39.) As a rule, an ALJ can reject a claimant’s subjective complaints by “expressing 19 clear and convincing reasons for doing so.” Benton ex rel. Benton v. Barnhart, 331 20 F.3d 1030, 1040 (9th Cir. 2003). “General findings are insufficient; rather, the ALJ 21 must identify what testimony is not credible and what evidence undermines a 22 claimant’s complaints.” Lester, 81 F.3d at 834 (citations omitted). 23 24 25 26 Here, the ALJ provided at least four valid reasons for rejecting Plaintiff’s credibility. First, the ALJ properly determined that Plaintiff’s daily activities, e.g., using public transportation and going to the beach and mall with her friends, are inconsistent 27 28 9 1 with her allegation of complete disability. (AR at 63-64, 66-69, 158, 167-68, 178-79, 2 540, 567-68); see Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (in discounting 3 claimant credibility, ALJ may properly rely on daily activities inconsistent with claim 4 of disabling pain, including claimant’s ability to shop and take public transportation); 5 Bulzomi v. Colvin, 2014 WL 4656242, at *5-6 (E.D. Wash. Sept. 17, 2014) (evidence 6 of claimant’s daily activities, including shopping and going to the beach and other 7 places wither her friends, supported credibility determination). 8 9 Second, the ALJ properly relied on Plaintiff’s ability to go to college. (AR at 540, 571, 675, 681 (Plaintiff reported “doing well in college”)); see Lindquist v. 10 Colvin, 588 F. App’x 544, 546 (9th Cir. 2014) (ALJ properly discounted claimant’s 11 testimony in part based on his enrollment in community college); see also Lenhart v. 12 Astrue, 252 F. App’x 787, 789 (9th Cir. 2007) (ALJ properly discounted claimant’s 13 testimony in part because he was a college student). 14 Third, the ALJ properly relied on Plaintiff’s ability to work part-time 15 assembling silverware. (AR at 65-66, 540, 561, 563-64, 666); 20 C.F.R. 16 §§ 404.1529(a) & (c)(3); 416.929(a) & (c)(3) (in evaluating symptoms, the 17 Commissioner will consider a claimant’s efforts to work and prior work record). 18 Fourth, the ALJ properly relied on Plaintiff’s noncompliance with her treatment 19 recommendations. (AR at 164, 540, 665-66, 675, 681, 811); see Bunnell v. Sullivan, 20 947 F.2d 341, 346 (9th Cir. 1991) (noncompliance with a prescribed course of 21 treatment is a relevant consideration in assessing a plaintiff’s credibility). 22 Thus, the ALJ properly discounted Plaintiff’s credibility. 23 D. 24 25 26 The ALJ Improperly Assessed Third-Party Testimony, But the Error Was Harmless Finally, Plaintiff contends that the ALJ improperly evaluated the oral and written third-party testimony of her mother and aunt. (Joint Stip. at 4, 39-44.) 27 28 10 1 As a general matter, the ALJ may discount the testimony of lay witnesses only if 2 she provides specific “reasons that are germane to each witness.” Dodrill v. Shalala, 3 12 F.3d 915, 919 (9th Cir. 1993); accord Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 4 2001) (“Lay testimony as to a claimant’s symptoms is competent evidence that an ALJ 5 must take into account, unless he or she expressly determines to disregard such 6 testimony and gives reasons germane to each witness for doing so.”). 7 Here, the ALJ appears to have improperly assigned “little weight” to Plaintiff’s 8 mother and aunt on the ground that Plaintiff’s physicians and mental health 9 professionals “are more objective and less likely to be influenced by sympathy for 10 [Plaintiff] and other emotional factors.” (AR at 541); see Regennitter v. Comm’r of 11 Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (ALJ improperly rejected lay 12 witness testimony of claimant’s mother on basis of presumed bias); Smolen, 80 F.3d at 13 1289 (“The fact that a lay witness is a family member cannot be a ground for rejecting 14 his or her testimony.”). 15 Nonetheless, any such error is harmless because the testimony and written 16 statements of Plaintiff’s mother (AR at 74-83, 152-60) and aunt (id. at 164-71, 572-81) 17 echo Plaintiff’s properly rejected subjective complaints (id. at 59-74, 175-82, 560-72); 18 see Molina v. Astrue, 674 F.3d 1104, 1122 (9th Cir. 2012) (“Because the ALJ had 19 validly rejected all the limitations described by the lay witnesses in discussing [the 20 claimant’s] testimony, we are confident that the ALJ’s failure to give specific witness- 21 by-witness reasons for rejecting the lay testimony did not alter the ultimate 22 nondisability determination.”); Valentine v. Comm’r of Soc. Sec. Admin., 574 F.3d 685, 23 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and 24 convincing reasons for rejecting [claimant’s] own subjective complaints, and because 25 [layperson’s] testimony was similar to such complaints, it follows that the ALJ also 26 gave germane reasons for rejecting her testimony.”). 27 28 11 1 Thus, the ALJ’s assessment of third-party testimony does not warrant reversal. 2 Based on the foregoing, IT IS ORDERED THAT judgment shall be entered 3 AFFIRMING the decision of the Commissioner denying benefits. 4 5 6 7 8 DATED: June 18, 2015 ________________________________________ Hon. Jay C. Gandhi United States Magistrate Judge *** 9 10 11 12 This Report and Recommendation is not intended for publication. Nor is it intended to be included or submitted to any online service such as Westlaw or Lexis. *** 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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