Herbert Foerstel v. Andrew Saul, No. 2:2020cv04280 - Document 21 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Herbert Foerstel v. Andrew Saul Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 HERBERT F., ) ) Plaintiff, ) ) v. ) ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ____________________________________) NO. CV 20-4280-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on May 12, 2020, seeking review of 21 the Commissioner’s denial of benefits. On June 16, 2020, the parties 22 consented to proceed before a United States Magistrate Judge. 23 Plaintiff filed a motion for summary judgment on October 8, 2020. 24 Defendant filed a motion for summary judgment on November 20, 2020. 25 The Court has taken the motions under submission without oral 26 argument. 27 /// 28 /// See L.R. 7-15; “Order,” filed May 13, 2020. Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff filed an application for Supplemental Security Income 4 on September 10, 2016, asserting disability since January 1, 2004, 5 based on alleged mental problems (Administrative Record (“A.R.”) 44, 6 154). 7 heard testimony from Plaintiff and a vocational expert (A.R. 15-43). 8 The ALJ found Plaintiff has severe “bipoloar disorder, generalized 9 anxiety disorder and autism spectrum disorder” An Administrative Law Judge (“ALJ”) reviewed the record and (A.R. 17). However, 10 the ALJ also found that Plaintiff retains the residual functional 11 capacity to work at all exertional levels, limited to simple, routine 12 tasks not requiring interaction with the public and not requiring more 13 than occasional interaction with co-workers and supervisors (A.R. 18- 14 23). 15 determined that a person having this capacity could perform jobs 16 existing in significant numbers in the national economy (A.R. 24-25, 17 41-42). Relying on the testimony of the vocational expert, the ALJ The Appeals Council denied review (A.R. 1-3). 18 19 STANDARD OF REVIEW 20 21 Under 42 U.S.C. section 405(g), this Court reviews the 22 Administration’s decision to determine if: (1) the Administration’s 23 findings are supported by substantial evidence; and (2) the 24 Administration used correct legal standards. 25 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 26 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 27 682 F.3d 1157, 1161 (9th Cir. 2012). 28 relevant evidence as a reasonable mind might accept as adequate to 2 See Carmickle v. Substantial evidence is “such 1 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 2 (1971) (citation and quotations omitted); see also Widmark v. 3 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). 4 5 If the evidence can support either outcome, the court may 6 not substitute its judgment for that of the ALJ. 7 Commissioner’s decision cannot be affirmed simply by 8 isolating a specific quantum of supporting evidence. 9 Rather, a court must consider the record as a whole, But the 10 weighing both evidence that supports and evidence that 11 detracts from the [administrative] conclusion. 12 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 14 quotations omitted). 15 16 DISCUSSION 17 18 After consideration of the record as a whole, Defendant’s motion 19 is granted and Plaintiff’s motion is denied. The Administration’s 20 findings are supported by substantial evidence and are free from 21 material1 legal error. 22 /// 23 /// 24 /// Plaintiff’s contrary arguments are unavailing. 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 3 1 I. Substantial Evidence Supports the Conclusion Plaintiff Can Work 2 3 Substantial medical evidence supports the Administration’s 4 conclusion Plaintiff is not disabled from all employment. Dr. Michael 5 Cohen, a consultative psychologist, examined Plaintiff and opined that 6 Plaintiff can work (A.R. 303-07). 7 substantial evidence to support the Administration’s non-disability 8 determination. 9 2007) (opinion of examining physician based on independent clinical 10 findings can provide substantial evidence to support administrative 11 conclusion of non-disability). Dr. Cohen’s opinion constitutes See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 12 13 Substantial non-medical evidence also supports the 14 Administration’s determination. For example, the record contains 15 evidence of extensive activities by Plaintiff, including caring for 16 his five year old daughter and surfing the internet seven to eight 17 hours each day (A.R. 37-38, 196). 18 Plaintiff earned a liberal arts associates degree in 2013 (A.R. 35). 19 An ability to succeed in school may betray an ability to work. 20 Chavez v. Department of Health and Human Services, 103 F.3d 849, 853 21 (9th Cir. 1996); Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 22 1993); Sorensen v. Weinberger, 514 F.2d 1112, 1118 (9th Cir. 1975). The evidence also reflects that See 23 24 The vocational expert testified that a person with the residual 25 functional capacity the ALJ found to exist could perform certain jobs 26 existing in significant numbers in the national economy (A.R. 41-42). 27 The ALJ properly relied on this testimony in denying disability 28 benefits. See Barker v. Secretary of Health and Human Services, 882 4 1 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 2 774-75 (9th Cir. 1986). 3 4 To the extent any of the evidence is in conflict, it was the 5 prerogative of the ALJ to resolve such conflicts. See Lewis v. 6 Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also Treichler v. 7 Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to 8 the ALJ” “to resolve conflicts and ambiguities in the record”). 9 evidence “is susceptible to more than one rational interpretation,” When 10 the Court must uphold the administrative decision. See Andrews v. 11 Shalala, 53 F.3d at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 12 954 (9th Cir. 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 13 1997). 14 evidence in the present case notwithstanding any conflicts in the 15 evidence. The Court will uphold the ALJ’s rational interpretation of the 16 17 18 II. The ALJ did Not Materially Err in Discounting the Treating Physician’s Opinions. 19 20 A treating physician’s conclusions “must be given substantial 21 weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988); see 22 Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the ALJ must 23 give sufficient weight to the subjective aspects of a doctor’s 24 opinion. . . . 25 treating physician”) (citation omitted); see also Orn v. Astrue, 495 26 F.3d 625, 631-33 (9th Cir. 2007) (discussing deference owed to 27 treating physician opinions). 28 physician’s opinions are contradicted, “if the ALJ wishes to disregard This is especially true when the opinion is that of a Where, as here, the treating 5 1 the opinion[s] of the treating physician he . . . must make findings 2 setting forth specific, legitimate reasons for doing so that are based 3 on substantial evidence in the record.” 4 643, 647 (9th Cir. 1987) (citation, quotations and brackets omitted); 5 see Rodriguez v. Bowen, 876 F.2d at 762 (“The ALJ may disregard the 6 treating physician’s opinion, but only by setting forth specific, 7 legitimate reasons for doing so, and this decision must itself be 8 based on substantial evidence”) (citation and quotations omitted). 9 Contrary to Plaintiff’s argument, the ALJ stated sufficient reasons Winans v. Bowen, 853 F.2d 10 for discounting the opinions of Plaintiff’s treating psychiatrist, Dr. 11 Syam Kunam. 12 13 The ALJ stated that Dr. Kunam’s opinions were inconsistent with 14 Dr. Kunam’s own treatment notes (A.R. 23). Substantial evidence 15 supports the ALJ’s reasoning (A.R. 327-35). 16 Dr. Kunam’s opinions were inconsistent with and unsupported by 17 examination findings in the record (A.R. 23). 18 supports this reasoning (A.R. 303-07, 327-32). 19 reject a treating physician’s opinion where, as here, the opinion is 20 not adequately supported by treatment notes or objective clinical 21 findings. 22 2008) (ALJ may reject a treating physician’s opinion that is 23 inconsistent with other medical evidence, including the physician’s 24 treatment notes); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th 25 Cir. 2004) (ALJ properly may reject a treating physician’s opinion 26 that is “unsupported by the record as a whole . . . or by objective 27 medical findings”); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 28 2003) (treating physician’s opinion properly rejected where The ALJ also stated that Substantial also An ALJ may properly See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 6 1 physician’s treatment notes “provide no basis for the functional 2 restrictions he opined should be imposed on [the claimant]”); see also 3 20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in weighing 4 treating source opinion include the supportability of the opinion by 5 medical signs and laboratory findings as well as the opinion's 6 consistency with the record as a whole). 7 8 9 As the ALJ also observed, Dr. Kunam’s extreme opinions regarding Plaintiff’s alleged incapacity are rendered suspect by the course of 10 treatment reported by Plaintiff and reflected in the record (A.R. 23). 11 For example, Plaintiff testified that he had been taking the same 12 medication for 10 years (A.R. 37). 13 if Plaintiff were severely impaired as represented by Dr. Kunam, 14 Plaintiff’s treatment would not have been so unvarying (see A.R. 23). The ALJ evidently reasoned that, 15 16 The ALJ also stated that the issue of a claimant’s disability is 17 “reserved for the Commissioner” (A.R. 23). 18 reservation does not provide a specific or legitimate reason to reject 19 a treating physician’s opinion that a claimant is disabled. 20 though the issue of disability is “reserved to the Commissioner,” the 21 ALJ still must set forth specific, legitimate reasons for rejecting a 22 treating physician’s opinion that a claimant is disabled. 23 Rodriguez v. Bowen, 876 F.2d at 762 n.7 (“We do not draw a distinction 24 between a medical opinion as to a physical condition and a medical 25 opinion on the ultimate issue of disability.”); see also Social 26 /// 27 /// 28 /// 7 Acknowledgment of this Even See 1 Security Ruling 96-5p2 (“adjudicators must always carefully consider 2 medical source opinions about any issue, including opinions about 3 issues that are reserved to the Commissioner”). 4 above, the ALJ did set forth other specific, legitimate reasons for 5 rejecting Dr. Kunam’s opinions. 6 regarding the issue of disability being reserved for the Commissioner 7 is properly viewed as surplusage or harmless error. However, as discussed Therefore, the ALJ’s statement 8 9 III. The ALJ did Not Materially Err in Discounting Plaintiff’s 10 Subjective Complaints. 11 12 An ALJ’s assessment of a claimant’s credibility is entitled to 13 “great weight.” Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 14 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 15 here, an ALJ finds that the claimant’s medically determinable 16 impairments reasonably could be expected to cause some degree of the 17 alleged symptoms of which the claimant subjectively complains, any 18 discounting of the claimant’s complaints must be supported by 19 specific, cogent findings. 20 (9th Cir. 2010); Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995); 21 but see Smolen v. Chater, 80 F.3d 1273, 1282-84 (9th Cir. 1996) 22 (indicating that ALJ must offer “specific, clear and convincing” 23 reasons to reject a claimant’s testimony where there is no evidence of 24 /// 25 /// Where, as See Berry v. Astrue, 622 F.3d 1228, 1234 26 27 28 2 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). 8 1 “malingering”).3 2 specific to allow a reviewing court to conclude the ALJ rejected the 3 claimant’s testimony on permissible grounds and did not arbitrarily 4 discredit the claimant’s testimony.” 5 882, 885 (9th Cir. 2004) (internal citations and quotations omitted); 6 see also Social Security Ruling (“SSR”) 96-7p (explaining how to 7 assess a claimant’s credibility), superseded, SSR 16-3p (eff. Mar. 28, 8 2016).4 9 deeming Plaintiff’s subjective complaints less than fully credible. An ALJ’s credibility finding “must be sufficiently See Moisa v. Barnhart, 367 F.3d As discussed below, the ALJ stated sufficient reasons for 10 11 The ALJ determined that the objective medical evidence was 12 inconsistent with Plaintiff’s claimed inability to function. An ALJ 13 permissibly may rely in part on a lack of supporting objective medical 14 evidence in discounting a claimant’s allegations of disabling 15 symptomatology. See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 16 17 18 19 20 21 22 23 24 25 26 27 28 3 In the absence of an ALJ’s reliance on evidence of “malingering,” most recent Ninth Circuit cases have applied the “clear and convincing” standard. See, e.g., Leon v. Berryhill, 880 F.3d 1041, 1046 (9th Cir. 2017); Brown-Hunter v. Colvin, 806 F.3d 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014); Treichler v. Commissioner, 775 F.3d 1090, 1102 (9th Cir. 2014); Ghanim v. Colvin, 763 F.3d 1154, 1163 n.9 (9th Cir. 2014); Garrison v. Colvin, 759 F.3d 995, 101415 & n.18 (9th Cir. 2014); see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ’s findings are sufficient under either standard, so the distinction between the two standards (if any) is academic. 4 The appropriate analysis under the superseding SSR is substantially the same as the analysis under the superseded SSR. See R.P. v. Colvin, 2016 WL 7042259, at *9 n.7 (E.D. Cal. Dec. 5, 2016) (stating that SSR 16-3p “implemented a change in diction rather than substance”) (citations omitted); see also Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (suggesting that SSR 16-3p “makes clear what our precedent already required”). 9 1 2005) (“Although lack of medical evidence cannot form the sole basis 2 for discounting pain testimony, it is a factor the ALJ can consider in 3 his [or her] credibility analysis.”); Rollins v. Massanari, 261 F.3d 4 853, 857 (9th Cir. 2001) (same); see also Carmickle v. Commissioner, 5 533 F.3d at 1161 (“Contradiction with the medical record is a 6 sufficient basis for rejecting the claimant’s subjective testimony”); 7 SSR 16–3p (“[O]bjective medical evidence is a useful indicator to help 8 make reasonable conclusions about the intensity and persistence of 9 symptoms, including the effects those symptoms may have on the ability 10 to perform work-related activities . . .”). 11 12 The ALJ deemed some of Plaintiff’s activities to be inconsistent 13 with Plaintiff’s claimed incapacity (A.R. 18-19, 22). The record 14 reflects activities by Plaintiff inconsistent with his claimed 15 incapacity (taking care of a five year old, earning a college degree, 16 etc.), as well as contradictions between various of Plaintiff’s 17 statements (e.g. his testimony that he never goes out alone versus his 18 admissions that he does) (A.R. 37-40, 196, 198, 304). 19 between claimed incapacity and actual activities properly can impugn a 20 claimant’s credibility. 21 (“the ALJ may consider inconsistencies in the claimant’s testimony or 22 between the testimony and the claimant’s conduct”); Valentine v. 23 Commissioner, 574 F.3d 685, 693 (9th Cir. 2009) (claimant’s admitted 24 activities did not suggest that claimant could work, but did suggest 25 that claimant was exaggerating the severity of claimant’s 26 limitations); Lingenfelter v. Astrue, 504 F.3d 1028, 1040 (9th Cir. 27 2007) (activities inconsistent with alleged symptoms relevant to 28 credibility determination); Thomas v. Barnhart, 278 F.3d 947, 958-59 Inconsistencies See, e.g., Molina v. Astrue, 674 F.3d at 1112 10 1 (9th Cir. 2002) (inconsistency between claimant’s testimony and 2 claimant’s actions supported rejection of claimant’s credibility); 3 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (activities 4 including taking care of children’s needs inconsistent with claimant’s 5 testimony); Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) 6 (inconsistency between claimant’s testimony and claimant’s actions 7 cited as a clear and convincing reason for rejecting claimant’s 8 testimony); Morgan v. Commissioner, 169 F.3d 595, 600 (9th Cir. 1999) 9 (inconsistency between claimant’s testimony and claimant’s activities 10 including sometimes carrying for the child for a friend). 11 12 The ALJ also doubted the accuracy of Plaintiff’s subjective 13 complaints based on the nature of Plaintiff’s treatment (A.R. 22). As 14 previously discussed, Plaintiff’s treatment appears to have been 15 conservative and largely unvarying. 16 time, Plaintiff sought no treatment at all, including no treatment for 17 his autism diagnosis. 18 treatment for allegedly disabling impairments properly may cast doubt 19 on a claimant’s credibility. 20 1113 (9th Cir. 2012); Burch v. Barnhart, 400 F.3d at 681; Batson v. 21 Commissioner, 359 F.3d 1190, 1196 (9th Cir. 2004); Fair v. Bowen, 885 22 F.2d 597, 603 (9th Cir. 1989). 23 conservative nature of a claimant’s treatment properly may factor into 24 the evaluation of the claimant’s subjective complaints. 25 Tommasetti v. Astrue, 533 F.3d at 1039-40; Parra v. Astrue, 481 F.3d 26 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); 27 Osenbrock v. Apfel, 240 F.3d 1157, 1166 (9th Cir. 2001). 28 /// Additionally, for months at a A claimant’s failure to pursue more aggressive See Molina v. Astrue, 674 F.3d 1104, In the same vein, the relatively 11 See 1 The ALJ also commented on Plaintiff’s poor work history (A.R. 2 22). 3 (given the early alleged onset date), an ALJ may consider a claimant’s 4 work record when weighing the claimant’s subjective complaints. 5 See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (in evaluating the 6 intensity and persistence of a claimant’s symptoms, the fact finder 7 “will consider all of the evidence presented, including information 8 about [the claimant’s] prior work record”); Thomas v. Barnhart, 278 9 F.3d 947, 959 (9th Cir. 2002) (claimant’s limited work history can 10 Although Plaintiff argues that such consideration lacks probity affect credibility of claims regarding inability to work). 11 12 It may be that not all of the ALJ’s stated reasons for 13 discounting Plaintiff’s subjective symptomatology are legally valid. 14 However, notwithstanding the invalidity of one or more of an ALJ’s 15 stated reasons, a court may uphold an ALJ’s credibility determination 16 where sufficient valid reasons have been stated. 17 Commissioner, 533 F.3d at 1162-63. 18 stated sufficient valid reasons to allow this Court to conclude that 19 the ALJ discounted Plaintiff’s credibility on permissible grounds. 20 See Moisa v. Barnhart, 367 F.3d at 885. 21 the ALJ’s credibility determination. 22 App’x 823, 825 (9th Cir. 2007) (court will defer to Administration’s 23 credibility determination when the proper process is used and proper 24 reasons for the decision are provided); accord Flaten v. Secretary of 25 /// 26 /// 27 /// 28 /// See Carmickle v. In the present case, the ALJ 12 The Court therefore defers to See Lasich v. Astrue, 252 Fed. 1 Health & Human Services, 44 F.3d 1453, 1464 (9th Cir. 1995).5 2 3 CONCLUSION 4 5 For all of the foregoing reasons,6 Plaintiff’s motion for summary 6 judgment is denied and Defendant’s motion for summary judgment is 7 granted. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 DATED: December 14, 2020. 11 12 13 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court should not and does not determine the credibility of Plaintiff’s testimony concerning his subjective symptomatology. Absent legal error, it is for the Administration, and not this Court, to do so. See Magallanes v. Bowen, 881 F.2d 747, 750, 755–56 (9th Cir. 1989). 6 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d at 88788 (discussing the standards applicable to evaluating prejudice). 13
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