Melissa Hendrix v. Michael J Astrue, No. 5:2008cv00277 - Document 14 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton: The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (dhl)
Download PDF
<![CDATA[
1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 MELISSA HENDRIX, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-00277-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered the opinion of the treating physician; 2. 3 4 3. 9 10 ALJ properly considered the Listing level Whether the ALJ properly considered lay witness testimony; and 4. 7 8 the severity or equivalence of Plaintiff s impairment; 5 6 Whether Whether the ALJ properly considered the mental and physical demands of Plaintiff s past relevant work. This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 11 12 I 13 THE ALJ PROPERLY CONSIDERED THE TREATING PHYSICIAN S OPINION 14 Plaintiff asserts that the ALJ s decision improperly depreciates 15 the opinion concerning disability-related issues of her treating 16 physician, Dr. Sivananda. (JS at 3.) 17 The ALJ cited Dr. Sivananda s opinion, set forth in a check-off 18 form dated March 5, 2004.1 19 Sivananda opined that Plaintiff could lift or carry less than ten 20 pounds, sit maximally only four hours in an eight-hour workday; and 21 would be expected to be absent from work more than three times a 22 month. (AR 16, 231-232.) In that form, as the ALJ noted, Dr. 23 In discounting Dr. Sivananda s opinion, the ALJ cited applicable 24 regulations and cases which provide the procedural standards for 25 evaluation of the opinions of treating physicians. (AR 16.) He then 26 27 28 1 The date set forth on the form, March 5, 2006 (AR 231-232), is clearly erroneous, as the hearing before the ALJ occurred on May 4, 2004. (AR 233.) 2 1 set forth eight enumerated reasons for rejecting Dr. Sivananda s 2 opinion. (AR 16-17.) 3 ALJ s consideration of Dr. Sivananda s opinion was not limited to his 4 concern that the check-off form was not supported by citations to 5 medical signs and laboratory results. (See JS at 3.) 6 of the eight reasons cited by the ALJ. 7 the 8 Sivananda s opinion, Plaintiff s citation to the case of Embrey v. 9 Bowen, 849 F.2d 418, 421-422 (9th Cir. 1988), would be well taken. But 10 here, the ALJ went to great pains to detail his specific reasoning for 11 rejecting Dr. Sivananda s opinion. ALJ had Contrary to Plaintiff s argument in the JS, the limited himself to This is but one It is perhaps the case that if this basis for discounting Dr. 12 13 A. Applicable Law. 14 The Ninth Circuit has repeatedly reaffirmed the principle that 15 greatest weight is ordinarily given to the opinions of treating 16 physicians versus those physicians who do not treat: 17 We afford greater weight to a treating physician s 18 opinion because he is employed to cure and has a greater 19 opportunity 20 individual. Magallanes v. Bowen, 881 F.2d 747, 751 21 Cir. 1989), quoting Sprague v. Bowen, 812 F.2d 1226, 1230 22 (9th Cir. 1987). to know and observe the patient as an (9th 23 24 Even so, the treating physician s opinion is not necessarily 25 conclusive as to either a physical condition or the ultimate issue of 26 disability. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n. 27 7 (9th Cir. 1989) 28 opinion whether or not that opinion is contradicted, Id., citing The ALJ may disregard the treating physician s 3 1 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). 2 ALJ chooses to do so, the ALJ must make findings setting forth 3 specific, for 4 substantial evidence in the record. Id., citing Winans v. Bowen, 5 853 F.2d 643, 647 (9th Cir. 1987), quoting Sprague, 812 F.2d at 1230; 6 see also Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). legitimate reasons doing so that However, if the are based on 7 This clearly articulated rule, set forth by the Circuit in its 8 opinions in Magallanes and Cotton, has been often cited in later 9 decisions. (See, Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 10 1995): The ALJ may reject the opinion only if she provides clear and 11 convincing reasons that are supported by the record as a whole. ; 12 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996): Even if the 13 treating doctor s opinion is contradicted by another doctor, the 14 Commissioner may not reject this opinion without providing specific 15 and legitimate reasons supported by substantial evidence in the 16 record for so doing. (Citation omitted). 17 18 19 Also instructive is the Ninth Circuit s discussion of this issue in Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995): 20 Where the opinion of the claimant s treating physician 21 is contradicted, and the opinion of a nontreating source is 22 based on independent clinical findings that differ from 23 those 24 nontreating source may itself be substantial evidence; it is 25 then solely the province of the ALJ to resolve the conflict. 26 Magallanes, 881 F.2d at 751. 27 nontreating 28 treating physician but is not based on independent clinical of the treating source s physician, the opinion of the Where, on the other hand, a opinion 4 contradicts that of the 1 findings, or rests on clinical findings also considered by 2 the 3 physician may be rejected only in the ALJ gives specific, 4 legitimate 5 substantial evidence in the record. Id. at 751, 755. 6 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) 7 (applying test where ALJ relied on contradictory opinion of 8 nonexamining medical advisor). 9 treating physician, reasons for the doing opinion so of that the are treating based on See (53 F.3d at 1041) 10 11 B. 12 The ALJ first noted as a basis for his depreciation of Dr. 13 Sivananda s opinion that it was not well-supported, and that it was in 14 fact devoid of citations to medical scientific and laboratory results. 15 (AR 16.) 16 The AlJ s Rejection of Dr. Sivananda s Opinion. As a legal matter, this reasoning is supported. The ALJ s reasoning is right on the mark. 17 disfavored, 18 findings. 19 citing Murray v. Heckler, 722 F.2d 499, 501 (9th Cir. 1983). 20 Magallanes v. Bowen, 881 F.2d 749, 751 (9th Cir. 1989). 21 The especially when they are Check-off forms are unsupported by objective See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996), records of Desert Valley Medical Group, at See also which Dr. 22 Sivananda practices, do not provide evidentiary support for Dr. 23 Sivananda s later residual functional capacity ( RFC ) evaluation. 24 (See AR at 218-230, esp. AR 222.) 25 The ALJ next gave weight to his concern that Dr. Sivananda had 26 not seen Plaintiff on a sufficient enough frequency to form his 27 opinion. (AR 17.) Indeed, the length of the treatment relationship is 28 an appropriate factor to consider in evaluation of the treating 5 1 physician s opinion. (See 20 C.F.R. §404.1527(d)(2)(I) (2008). 2 The ALJ s notation that Dr. Sivananda is not a specialist in 3 rheumatology is a relevant concern in the credibility analysis. (See 4 20 C.F.R. §404.1527(d)(5) (2008).) 5 The ALJ next cited the inconsistency of the progress notes of 6 Desert Valley Medical Group and of Dr. Sivananda. (AR 17.) 7 analysis contained therein cannot be said to be factually inadequate, 8 and certainly, it is based on substantial evidence. 9 The ALJ voiced concern with the inconsistency The between Dr. 10 Sivananda s evaluation and Plaintiff s course of treatment. 11 ALJ noted, Plaintiff has only been prescribed mild medications for an 12 allegedly disabling rheumatoid arthritis condition. (AR 17.) 13 reason must be considered in conjunction with the ALJ s seventh 14 reason, which indicates that Dr. Sivananda did not notate the fact 15 that Plaintiff had been refusing to take medications prescribed by her 16 attending rheumatologist. (AR 17, 141.)) 17 refusal 18 treatment can be expected to restore a person s ability to work, is a 19 ground for finding that a claimant is not disabled. (See 20 C.F.R. 20 §404.1530(b) (2008).) 21 to follow Finally, the a prescribed ALJ found course that Dr. As the (This Regulations provide that of treatment, Sivananda s when opinion that is 22 inconsistent with the weight of the record. (AR 17.) This statement 23 cannot be considered in isolation, because the ALJ had specifically 24 noted the applicability of Chavez v. Bowen, 844 F.2d 691 (9th Cir. 25 1988), by which the findings in a prior ALJ decision are entitled to 26 res judicata in subsequent proceedings. (AR 11.) 27 In sum, the Court determines that the ALJ properly evaluated 28 conflicting evidence and resolved any conflicts contained therein. 6 1 See Morgan v. Commissioner, 169 F.3d 595, 601 (9th Cir. 1999). 2 3 II 4 THE ALJ PROPERLY CONSIDERED THE LISTING LEVEL SEVERITY 5 OR EQUIVALENCE OF PLAINTIFF S IMPAIRMENTS 6 At Step Three of the sequential evaluation process, the ALJ found 7 that Plaintiff s 8 considered alone or in combination, do not meet or medically equal any 9 Listing in medically Appendix 1, determinable subpart P, impairments, Regulations No. 4. whether (AR 14.) 10 Plaintiff contends that this is an insufficient finding in that it is 11 devoid of any analysis. 12 primarily cites the case of Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 13 1990). (JS at 10-11.) 14 the Marcia case had offered evidence to show medical equality or 15 equivalence to meet a Listing. (See 900 F.2d 172 at 175.) 16 case, Plaintiff has done no such thing. 17 evidence or argument whatsoever to support her contention that she 18 meets any Listing. 19 In support of this contention, Plaintiff What Plaintiff omits is that the claimant in In this Indeed, Plaintiff offers no Plaintiff s argument essentially turns the Step Three analysis on 20 its head. Fundamentally, Plaintiff has the burden at Step Three, not 21 the Commissioner. 22 (1987). See Bowen v. Yuckert, 487 U.S. 137, 146, fn. 5 See also Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001). 23 Moreover, the ALJ in this case did sufficiently discuss evidence 24 underlying his evaluation of Plaintiff s severe impairments. (See AR 25 13-14, 16, 18-19.) 26 the evaluation of evidence was incorrect. 27 28 Again, Plaintiff makes no serious argument that For the above stated reasons, Plaintiff s second claim has no merit. 7 1 III 2 THE ALJ PROPERLY CONSIDERED LAY WITNESS TESTIMONY 3 Plaintiff asserts that the ALJ failed to consider the third party 4 opinion of her sister, Ms. Meyers. (JS at 15, et seq.) 5 Meyers did complete a Daily Activities Questionnaire on November 11, 6 2002. (AR 89-94.) 7 Indeed, Ms. It is clearly the ALJ s obligation to consider relevant evidence. 8 Witnesses who provide such evidence must be competent to do so. 9 Dodrill v. Shalala, 12 F.3d 915, 918-919 (9th Cir. 1993). See The Court 10 notes the Commissioner s contention that there is no indication that 11 Ms. Meyers was competent to opine as to many of the daily activities 12 of Plaintiff upon which she rendered an opinion. 13 Court notes that in response to a question regarding Plaintiff s 14 normal sleeping hours, Ms. Meyers indicated that on a good day she 15 usually sleeps eight hours, but that on a bad day, she is up all 16 hours of the night in extreme pain. (AR 89.) 17 not live with Plaintiff, her competence to opine as to Plaintiff s 18 sleeping habits must, necessarily, be based on hearsay. For example, the Since Ms. Meyers does 19 Moreover, the medical evidence in the record as to the subjects 20 upon which Ms. Meyers rendered an opinion is contrary to that opinion. 21 See Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001). 22 Court notes that Ms. Meyers opinion testimony essentially mirrors 23 Plaintiff s own testimony at the hearing regarding her own symptoms. 24 (See AR at 233-259.) 25 statement. 26 credibility assessment as to herself made by the ALJ in his decision. 27 (See AR at 18.) 28 Finally, the Thus, nothing new was added in Ms. Meyers The Court notes that Plaintiff has not challenged the For the foregoing reasons, Plaintiff s third issue has no merit. 8 1 IV 2 THE ALJ PROPERLY CONSIDERED THE MENTAL AND PHYSICAL 3 DEMANDS OF PLAINTIFF S PAST RELEVANT WORK ( PRW ) 4 At Step Four of the sequential evaluation process, the ALJ 5 identified Plaintiff s PRW based on testimony at the hearing from a 6 vocational expert ( VE ). 7 assistant 8 hypothetical questions posed to the VE were based upon the ALJ s 9 determination of Plaintiff s RFC. (See AR at 20, Finding 6.) Based on 10 this foundation, the VE opined that Plaintiff could do her PRW as 11 actually performed and as it is generally performed in the national 12 economy. 13 comply with applicable law. 14 analysis 15 occupations identified by the VE, and later adopted by the ALJ, as 16 available to Plaintiff satisfied the requirements of the Step Four 17 analysis. and nurse s Plaintiff s PRW was classified as medical aide. (AR 19, 257-258.) Further, the The Court fails to see how the ALJ s analysis fails to was in fact Contrary to Plaintiff s contention, the supported by specific findings, and the 18 For the foregoing reasons, Plaintiff s fourth issue has no merit. 19 The decision of the ALJ will be affirmed. 20 21 The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 22 23 24 DATED: December 9, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
