Cheryl Hogle v. Michael J. Astrue, No. 5:2009cv00129 - Document 20 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle (ec)
Download PDF
<![CDATA[
Cheryl Hogle v. Michael J. Astrue Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHERYL HOGLE, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 09-00129-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on February 2, 2009, seeking review of 19 the denial by the Social Security Commissioner (“Commissioner”) of 20 plaintiff’s application for supplemental security income (“SSI”). 21 March 10, 2009, the parties consented to proceed before the undersigned 22 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 23 parties 24 plaintiff seeks an order reversing the Commissioner’s decision and 25 awarding benefits or, in the alternative, remanding the matter for 26 further 27 affirming the Commissioner’s decision. The Court has taken the parties’ 28 Joint Stipulation under submission without oral argument. filed a Joint administrative Stipulation proceedings; on October and 7, defendant 2009, seeks in an On The which: order Dockets.Justia.com SUMMARY OF ADMINISTRATIVE PROCEEDINGS 1 2 3 On June 11, 2002, plaintiff filed a prior application for SSI, 4 alleging an inability to work since March 26, 2002, due to depression, 5 anxiety, high blood pressure, and diabetes. 6 (“A.R.”) 11, 69-71, 84.) Plaintiff has past relevant work experience as 7 a fast food restaurant cook, retail store stocker, and grocery store 8 clerk. (Administrative Record (A.R. 97.) 9 10 The Commissioner denied the application initially 11 reconsideration. 12 testified at a hearing before an administrative law judge. 13 42.) 14 plaintiff’s 15 subsequently denied plaintiff’s request for review. and On (A.R. 45-48, 50-54.) January 27, 2004, application. the (A.R. upon On November 20, 2003, plaintiff administrative 11-19.) The law (A.R. 23- judge Appeals denied Council (A.R. 4-6.) 16 17 On April 30, 2004, plaintiff protectively filed the current 18 application 19 inability to work since December 31, 1996, due to anxiety, depression, 20 high blood pressure, and diabetes. (A.R. 292.) 21 the second application initially and upon reconsideration. 22 42, 247-51.) 23 hearing by an administrative law judge. 24 plaintiff failed to appear at a hearing before Administrative Law Judge 25 Lowell Fortune (“ALJ Fortune”). 26 present at the hearing, during which Sandra Fioretti, a vocational 27 expert, and Michael Kania, a medical expert, testified. (A.R. 391-409.) 28 On May 19, 2006, ALJ Fortune denied plaintiff’s application on the for SSI. (A.R. 213, 273-76.) Plaintiff alleged an The Commissioner denied (A.R. 238- On February 2, 2005, plaintiff filed a request for a (A.R. 252.) (A.R. 391.) 2 On March 26, 2006, Plaintiff’s attorney was 1 merits, noting that res judicata did not apply because there was a 2 change in plaintiff’s age category since the previous application (the 3 “2006 Decision”). 4 Appeals Council denied plaintiff’s request for review of the ALJ 5 Fortune’s decision, plaintiff initiated proceedings in this District 6 Court to appeal the 2006 Decision. 7 Commissioner on the bases that ALJ Fortune: 8 opinion of plaintiff’s therapist; did not properly evaluate plaintiff’s 9 credibility; and failed to consider the side effects of plaintiff’s 10 medications. (A.R. 436-44.) This Court remanded the matter for further 11 proceedings consistent with its decision. (A.R. 213-19.) On September 8, 2006, after the (A.R. 432.) This Court reversed the improperly disregarded the (A.R. 445-46.) 12 13 On August 5, 2008, plaintiff, who was represented by counsel, 14 testified at a hearing before Administrative Law Judge Joseph D. 15 Schloss. (A.R. 512-28.) Abbe May, a vocational expert, and Dr. William 16 Soltz, a medical expert, also testified. 17 Administrative Law Judge Jay E. Levine (the “ALJ”) denied plaintiff’s 18 application upon remand. 19 Decision by reference and stated that it remained the decision of record 20 as supplemented by his decision. 21 subsequently denied plaintiff’s request for review. 22 (“Joint Stip.”) at 2.) (A.R. 412-19.) (Id.) On September 16, 2008, The ALJ incorporated the 2006 (A.R. 413.) The Appeals Council (Joint Stipulation 23 24 SUMMARY OF ADMINISTRATIVE DECISION 25 26 The ALJ found that plaintiff had not engaged in substantial gainful 27 activity since April 15, 2004, the protected application filing date. 28 (A.R. 414.) The ALJ determined 3 that plaintiff had the severe 1 impairments of: noninsulin dependent diabetes mellitus; controlled 2 hypertension; anxiety disorder, not otherwise specified; and depressive 3 disorder, not otherwise specified. 4 or equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, 5 Appendix 1. (Id.) The impairments did not meet (A.R. 415.) 6 7 8 The ALJ determined that plaintiff had the residual functional capacity (“RFC”) to: 9 10 perform light work as defined in 20 [C.F.R.] 416.967(b) except 11 stand-walk frequently, i.e., six out of eight-hours with 12 customary 13 climbing, stooping, kneeling, crouching, and crawling, no 14 exposure 15 unprotected heights or dangerous moving machinery, frequent 16 handling and fingering, no rapid conveyor belt type or other 17 fast paced work, routine repetitive tasks, entry level work, 18 and work involving things rather than people. breaks, to stand temperature or walk extremes frequently, or hazards occasional such as 19 20 (A.R. 416-17.) 21 of her past relevant work. 22 education, work experience, and RFC, as well as relying on testimony 23 from the vocational expert, the ALJ found that jobs existed in the 24 national economy that plaintiff can perform, including laundry sorter, 25 labeler-packer, and mail clerk-sorter. The ALJ found that plaintiff was unable to perform any (A.R. 418.) Considering plaintiff’s age, (A.R. 418-19.) 26 27 28 Accordingly, the ALJ concluded that plaintiff was not disabled, as defined in the Social Security Act, since April 15, 2004. 4 (A.R. 419.) STANDARD OF REVIEW 1 2 3 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 4 decision to determine whether it is free from legal error and supported 5 by substantial evidence in the record as a whole. 6 F.3d 625, 630 (9th Cir. 2007). 7 evidence as a reasonable mind might accept as adequate to support a 8 conclusion.’” 9 a mere scintilla but not necessarily a preponderance.” Orn v. Astrue, 495 Substantial evidence is “‘such relevant Id. (citation omitted). The “evidence must be more than Connett v. 10 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the 11 record can constitute substantial evidence, only those “‘reasonably 12 drawn from the record’” will suffice. 13 1063, 1066 (9th Cir. 2006)(citation omitted). Widmark v. Barnhart, 454 F.3d 14 15 Although this Court cannot substitute its discretion for that of 16 the Commissioner, the Court nonetheless must review the record as a 17 whole, “weighing both the evidence that supports and the evidence that 18 detracts from the [Commissioner’s] conclusion.” 19 Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 20 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 21 responsible for determining credibility, resolving conflicts in medical 22 testimony, and for resolving ambiguities.” 23 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 24 25 The Court will uphold the Commissioner’s decision when the evidence 26 is susceptible to more than one rational interpretation. 27 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 28 review only the reasons stated by the ALJ in his decision “and may not 5 Burch v. However, the Court may 1 affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d 2 at 630; see also Connett, 340 F.3d at 874. 3 the Commissioner’s decision if it is based on harmless error, which 4 exists only when it is “clear from the record that an ALJ’s error was 5 ‘inconsequential to the ultimate nondisability determination.’” Robbins 6 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 7 Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 8 at 679. The Court will not reverse 9 DISCUSSION 10 11 Plaintiff alleges the following four issues: 12 (1) whether the ALJ 13 properly considered the type, dosage, and side effects of plaintiff’s 14 medications; 15 obesity; 16 physician’s 17 plaintiff’s testimony concerning her treatment for depression. 18 Stip. at 2-3.) (2) (3) whether whether opinion; the the and ALJ ALJ (4) properly properly whether considered considered the ALJ plaintiff’s the properly treating considered (Joint 19 20 21 I. There Is No Reversible Error With Respect To The ALJ’s Consideration Of The Side Effects Of Plaintiff’s Medications. 22 23 Plaintiff contends that the ALJ failed to consider the type, 24 dosage, and side effects of plaintiff’s medications. 25 plaintiff 26 unspecified 27 complained of decreased energy and insomnia; and the ALJ misrepresented 28 her medical record. argues that: medications her caused prescribed her to (Joint Stip. at 3-4.) 6 Zoloft sustain Specifically, made weight her sleepy; gain; she 1 Pursuant to Social Security Ruling (“SSR”) 96-7p, an ALJ must 2 consider the “type, dosage, effectiveness, and side effects of any 3 medication the individual takes or has taken to alleviate pain or other 4 symptoms.” 5 effects that have a “‘significant impact on an individual’s ability to 6 work.’” 7 (citation omitted). However, an ALJ need only consider those medication side Erickson v. Shalala, 9 F.3d 813, 817-18 (9th Cir. 1993) 8 9 The claimant “bears the burden of proving that a medication’s side 10 effects are disabling.” 11 (C.D. Cal. 2009); see also 12 Cir. 2002)(rejecting claim that administrative law judge improperly 13 excluded the side effects of medication, because there was no objective 14 evidence that the claimant’s medications caused the side effects she 15 alleged and her testimony in this respect properly was found to be not 16 credible); Miller 17 (rejecting challenge 18 claimant’s medications did not preclude him from working, when claimant 19 did not produce any “clinical evidence showing that narcotics use 20 impaired his ability to work,” and thus, he did not meet his burden of 21 proving that his claimed impairment was disabling). 22 obligated to consider a claimant’s allegations of side effects when the 23 claimant has “provided no evidence to support this claim other than a 24 statement in his daily activities questionnaire.” 25 227 Fed. Appx. 656, 2007 WL 1120146, at *1 (9th Cir. 2007). 26 because “‘a claimant’s self-serving statements may be disregarded to the 27 extent they are unsupported by objective findings.’” Id. (quoting Nyman 28 v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985)). v. Short v. Astrue, 648 F. Supp. 2d 1185, 1191 Thomas v. Barnhart, 278 F.3d 947, 960 (9th Heckler, to 770 F.2d administrative 7 845, law 849 (9th judge’s Cir. finding 1985) that The ALJ is not Hopkins v. Astrue, This is so Even “passing mentions 1 of the side effects” in some medical records would be insufficient in 2 the absence of evidence of side effects “severe enough to interfere with 3 [a claimant’s] ability to work.” 4 1164 (9th Cir. 2001). Osenbrock v. Apfel, 240 F.3d 1157, 5 6 On May 25, 2004, plaintiff stated in her Disability Report that her 7 prescription medicine, Zoloft, made her sleepy.1 8 six 9 Disability Report – Appeal that she experienced no side effects from any 10 of her medications, including Zoloft. (A.R. 312.) The medical evidence 11 is consistent with that representation, as several medical reports 12 repeatedly note that plaintiff had no complaints of side effects from 13 her medications, which included Zoloft. 14 dated April 23, 2005, 385 - illegible report date, 467 - report dated 15 April 7, 2006.) 16 taking Zoloft.2 17 drowsiness sufficient to functionally limit plaintiff’s ability to work 18 for some period of time that ended prior to November 22, 2004, the 19 record indicates that plaintiff did not experience any such side effect 20 for the requisite 12 month durational requirement.3 21 1382c(a)(3)(A). months later, on November 22, 2004, (A.R. 296.) However, plaintiff stated in her (See, e.g., A.R. 383 - report It appears that, as of June 2007, plaintiff stopped Even if –- and this is far from clear -- Zoloft caused See 42 U.S.C. § Accordingly, notwithstanding the Court’s prior remand 22 23 24 25 26 1 Plaintiff also reported that her other medications caused no side effects. (A.R. 296.) 2 In June 2007, plaintiff complained to her treating physician that she did “not feel that Zoloft works.” (A.R. 463.) The prescriptions listed in the physician’s notes from that date onward do not include Zoloft. (A.R. 457, 460-63.) 27 28 3 The period of disability commenced no earlier than April 15, 2004. (A.R. 414.) 8 1 order, the ALJ did not err with respect to his consideration of any side 2 effect plaintiff experienced based on Zoloft.4 3 4 With respect to plaintiff’s contention that “weight gain” is a side 5 effect of her medication that the ALJ should have addressed, plaintiff 6 testified, in August 2008, that she weighed 196 pounds and had gained 7 “[a]bout 40 pounds” in the prior couple of years due to her medication. 8 (A.R. 521-22.) 9 plaintiff’s weight has been consistent throughout the relevant period, Plaintiff’s medical records reveal, however, that 10 and plaintiff has weighed approximately 200 pounds since 2002. 11 e.g., A.R. 130, 367, 381, 460-66, 522.) 12 testimony, the evidence clearly demonstrates that weight gain was not a 13 side effect of her medications. 14 challenge the ALJ’s finding that her testimony concerning serious 15 medication side effects was not credible. (See, Thus, contrary to plaintiff’s Significantly, plaintiff does not (A.R. 416.) 16 17 Plaintiff’s contentions that the ALJ misrepresented the medical 18 record 19 plaintiff’s increased dosage for certain medications and her complaints 20 of “decreased energy” and “insomnia” are all red herrings. (Joint Stip. 21 at 4.) 22 medication dosages to control her diabetes. 23 increases in dosages of medication can indicate that an impairment has 24 worsened 25 limitations, symptoms, or side effects from the increased dosages and and failed to consider other relevant evidence, such as As plaintiff acknowledged, her treating physician increased her or is out of control, (A.R. 457, 521.) plaintiff fails to Although identify any 26 27 28 4 The ALJ did address the June 2007 medical note of plaintiff’s treating physician and correctly observed that plaintiff’s complaint about Zoloft was that it was ineffective, not that it was causing her adverse side effects. (A.R. 416.) 9 1 fails to establish that any such limitations, symptoms, or side effects 2 are severe enough to interfere with her ability to work. 3 plaintiff did not take medications from June 2007, through February 4 2008. 5 and re-adjust plaintiff’s dosages can be reasonably attributed to 6 plaintiff’s nearly year long lack of treatment. (A.R. 462.) Further, Thus, the fact that the physician had to increase 7 8 Plaintiff’s June 2007 complaint to her physician of decreased 9 energy and insomnia appears to relate to plaintiff’s general health and 10 claimed impairments, rather than to side effects of her medications. 11 (See A.R. 463.) There is no evidence whatsoever that any of plaintiff’s 12 medications caused her to experience decreased energy or insomnia. 13 did not so testify at any of her hearings, and as noted above, she 14 indicated “none” when asked to identify medication side effects in her 15 disability reports. 16 acknowledged plaintiff’s June 2007 complaint of decreased energy and 17 insomnia and further observed that plaintiff’s physician prescribed 18 Trazadone to aid her sleep in June 2007, and June 2008. 19 citing A.R. 457 and 463.) (A.R. 23-42, 296, 312, 519-24.) She Moreover, the ALJ (A.R. 414, 20 21 Finally, the ALJ did not misrepresent the medical record when he 22 wrote that, in July 2007, plaintiff’s treating physician prescribed for 23 her both Cymbalta and Trazadone, “but there is only a prescription for 24 Trazadone noted by July 2008.” 25 in proper context, including with his record citations to A.R. 457 and 26 463, it is clear that the ALJ was referring to the fact that the list of 27 medications set forth in the physician’s June 2008 note did not include 28 Cymbalta. (A.R. 414.) Reading the ALJ’s sentence The ALJ did not misstate the record. 10 1 There is no basis for finding that the ALJ committed error in 2 connection with the consideration of the side effects of plaintiff’s 3 medication. 4 5 II. The ALJ Properly Considered Plaintiff’s Obesity. 6 7 Obesity is no longer, nor was it at the time of the ALJ’s decision, 8 a listed impairment. See Revised Medical Criteria for Determination of 9 a Disability, Endocrine System and Related Criteria, 64 F.R. 46122 10 (effective October 25, 1999)(delisting 9.09, “Obesity,” from Appendix 1, 11 Subpart P of Part 404, the listing of impairments). Although obesity is 12 not a listed impairment, as a general rule, an ALJ must determine the 13 effect of a claimant’s obesity upon her other impairments and ability to 14 work. 15 SSR 02-01p (requiring an ALJ to consider the effects of obesity at 16 several points in the five-step sequential evaluation). 17 “evaluate each case based on the information in the case record,” as 18 obesity may or may not increase the severity or functional limitations 19 of other impairments. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003); see also An ALJ must SSR 02-01p. 20 21 As discussed above, since 2002, when plaintiff, who is five foot 22 six inches, filed her first application 23 approximately 200 pounds. 24 failed to consider the impact of plaintiff’s obesity at the “various 25 stages of the disability determination process.” 26 Plaintiff specifically contends that the ALJ failed to consider the 27 impact of her obesity in making the step two and three determinations. 28 (Id.) (A.R. 130.) Plaintiff is wrong. 11 for SSI, she weighed Plaintiff argues that the ALJ (Joint Stip. at 9.) 1 In the proceedings before the Commissioner, neither plaintiff nor 2 her attorney claimed that plaintiff’s obesity constituted a disabling 3 impairment. 4 result of four asserted impairments -- diabetes, hypertension, anxiety 5 disorder, and a depressive disorder -- and the ALJ found, at step two, 6 that plaintiff has those four impairments, and they are severe. 7 A.R. 84, 292, 391-409, 414, 512-28.) 8 that 9 functioning, or impairs her ability to work, whether alone or in her Rather, plaintiff repeatedly claimed to be disabled as a obesity exacerbates her (See Plaintiff presented no evidence other impairments, limits her 10 combination with her four impairments. 11 plaintiff 12 recommending that she lose weight prior to the alleged disability period 13 (A.R. 134), but nothing that discussed any limitations her obesity 14 imposed 15 plaintiff’s obesity exacerbated her impairments or resulted in any 16 functional 17 represented claimant -- to claim to be disabled based on obesity, 18 whether as an impairment or a source of functional limitations, the 19 ALJ’s failure to address plaintiff’s obesity at step two was not error. 20 See Burch, 400 F.3d at 682 (finding no reversible error, notwithstanding 21 the ALJ’s failure to consider obesity at step two, because, as in this 22 case, there was no evidence that plaintiff’s obesity exacerbated other 23 impairments and plaintiff was represented by counsel). provided upon her. concerning Given limitation, as the well her lack as The only medical evidence obesity of the any was treatment medical failure of evidence plaintiff notes that -- a 24 25 The ALJ also did not err in failing to address plaintiff’s obesity 26 at step three. “An ALJ is not required to discuss the combined effects 27 of a claimant's impairments or compare them to any listing in an 28 equivalency determination, unless the claimant presents evidence in an 12 1 effort to establish equivalence.” 2 Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001)(rejecting claimant’s 3 argument that the ALJ failed to adequately explain his finding that his 4 impairments did not equal a listing, in part, because claimant failed to 5 proffer 6 Plaintiff 7 limitations due to her obesity nor identified evidence showing that her 8 impairments met or equaled any listing. 9 (stating that the ALJ did not commit reversible error by failing to 10 consider plaintiff’s obesity at step three when there was no evidence of 11 functional limitations due to plaintiff’s obesity). 12 did not even specify which listing she purportedly met or equaled, much 13 less proffer a theory of how she equaled a listing based on the 14 combination of her impairments and obesity. 15 the district court’s assertion that plaintiff “‘bears the burden of 16 proving that . . . she has an impairment listed in Appendix 1 of the 17 Commissioner’s regulations’”); see also Swenson v. Sullivan, 876 F.2d 18 683, 687 (9th Cir. 1987)(holding that a claimant carries the initial 19 burden of proving a disability). a theory has as to neither how Burch, 400 F.3d at 683; see also the pointed impairments to any equaled evidence of a any listing). functional See Burch, 400 F.3d at 682 Indeed, plaintiff See id. at 683 (affirming 20 21 Further, the ALJ’s decision reflects that he considered plaintiff’s 22 obesity in his RFC determination. In his decision, the ALJ expressly 23 incorporated the 2006 Decision and stated that it remained the decision 24 of record as supplemented by his 2008 Decision. 25 2006 Decision, ALJ Fortune considered the Internal Medical Evaluation 26 written by Dr. Rocely Ella-Tamayo, who examined plaintiff in May 2004. 27 (A.R. 217, 365-69.) 28 plaintiff’s weight, diabetes, and high blood pressure, Dr. Ella-Tamayo (A.R. 413.) In the Taking into consideration, among other things, 13 1 opined that plaintiff had no significant functional limitations. (A.R. 2 367-69.) 3 should be restricted to light work with only occasional stooping and 4 crawling. 5 RFC assessment, limiting plaintiff to occasional climbing, kneeling, and 6 crouching and no rapid conveyor belt type or other fast paced work. 7 (A.R. 416-17.) Based on the ALJ’s inclusion of limitations beyond those 8 found 9 considered plaintiff’s obesity in his RFC determination.5 by Despite this finding, ALJ Fortune determined that plaintiff (A.R. 216.) the ALJ Levine imposed further restrictions in his examining physician, the Court finds that the ALJ 10 11 The ALJ did not commit reversible error, because in view of the 12 evidence presented, he was not required to give further consideration to 13 plaintiff’s obesity.6 14 15 16 17 18 19 20 21 5 To the extent that the ALJ did not explicitly refer to plaintiff’s obesity in his RFC determination, the Court finds that omission, if error at all, to be harmless. The ALJ’s analysis expressly incorporated Dr. Ella-Tamayo’s medical opinion that plaintiff had no significant functional limitations, which was reached after the examining physician considered plaintiff’s diabetes, high blood pressure, and obesity. Moreover, plaintiff has not proffered any evidence that her obesity has limited her ability to function and/or work, or has exacerbated any other medical ailment from which she suffers. See Burch, 400 F.3d at 683-84 (finding the ALJ’s failure to consider obesity was not reversible error, where there was no evidence that claimant’s obesity limited her functioning, and the only evidence related to obesity was doctor’s observation of weight gain, notation of obesity, and recommendation that claimant participate in weight loss program). 22 23 24 6 The present case is distinguishable from the Ninth Circuit’s decision in Celaya, supra. In that case, the Ninth Circuit held that, despite the claimant’s failure to raise obesity as a disabling factor, the ALJ erred in determining the effect of the claimant’s obesity upon her other impairments and ability to work, because: 25 26 27 28 [f]irst, it was raised implicitly in [claimant]’s report of symptoms. Second, it was clear from the record that [claimant]’s obesity was at least close to the listing criterion, and was a condition that could exacerbate her reported illnesses. Third, in light of [claimant’s] pro se status, the ALJ’s observation of [claimant] and the 14 1 III. The ALJ Properly Considered The Treating Physician’s Notes. 2 3 It is the responsibility of the ALJ to resolve conflicts in medical 4 testimony and analyze evidence. 5 (9th Cir. 1989). 6 assessing a social security claim, “[g]enerally, a treating physician’s 7 opinion carries more weight than an examining physician’s, and an 8 examining physician’s opinion carries more weight than a reviewing 9 physician’s.” 20 Magallanes v. Bowen, 881 F.2d 747, 750 In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 10 2001); C.F.R. § 416.927(d)(1)-(2). 11 physicians are entitled to the greatest weight because the treating 12 physician is hired to cure and has a better opportunity to observe the 13 claimant. 14 opinion is not contradicted by another physician, it may be rejected 15 only for “clear and convincing” reasons. Lester v. Chater, 81 F.3d 821, 16 830 (9th Cir. 1995) (as amended). Where contradicted by another doctor, 17 the ALJ may not reject the opinion of a treating physician without 18 providing “specific and legitimate” reasons supported by substantial 19 evidence in the record. Magallanes, 881 F.2d at 751. The opinions of treating Where a treating physician’s Id. 20 21 22 23 24 25 26 27 28 information on the record should have alerted him to the need to develop the record in respect to her obesity. Celaya, 332 F.3d at 1182. The Court further noted that “[t]he ALJ’s exclusion of obesity from his analysis [wa]s error in that he was addressing an illiterate, unrepresented claimant who very likely never knew that she could assert obesity as a partial basis for her disability.” Id.(emphasis in original). Unlike the claimant in Celaya, plaintiff is not “extremely obese” and was represented by counsel in her proceedings before the Commissioner, as well as here. This case is more akin to the situation considered by the Ninth Circuit in Burch, supra, in which no reversible error was found. Moreover, and critically, the medical record suggests that the only factor that has exacerbated plaintiff’s condition is not her weight –- which has remained at approximately 200 pounds since 2002 –- but rather, her failure, at times, to take her prescribed medication. See discussion infra. 15 1 Dr. Sean R. Thomas, a general practitioner, has been plaintiff’s 2 treating physician since 2006. 3 indicates that Dr. Thomas saw plaintiff five times between April 2006, 4 and June 2007 (A.R. 463-67), and began treating her again in February 5 2008 (A.R. 462). 6 treated for diabetes, hypertension, and depression. 7 457, 462.) 8 office took and noted plaintiff’s weight, blood pressure, and blood 9 sugar level. 10 (See, e.g., A.R. 467.) The record Dr. Thomas’ notes reflect that plaintiff was being (See, e.g., A.R. At each of plaintiff’s examinations, someone at Dr. Thomas’ (See, e.g., id.) Dr. Thomas did not render any opinions about plaintiff’s limitations, physical or mental. 11 12 Plaintiff contends that the ALJ failed to properly consider Dr. 13 Thomas’ opinion regarding her hypertension. 14 Plaintiff further argues that the ALJ misleadingly represents that 15 plaintiff’s hypertension is controlled. (Joint Stip. at 9-10, 12.) (Id. at 13.) 16 17 Plaintiff’s argument is flawed. The ALJ did not consider Dr. 18 Thomas’ opinion regarding plaintiff’s hypertension, because there was no 19 opinion to consider. 20 opinions. See 20 C.F.R. 416.927(a)(2) (“Medical opinions are statements 21 from physicians . . . that reflect judgments about the nature and 22 severity of your impairment(s), . . . what you can still do despite 23 impairment(s), and your physical or mental restrictions.”). 24 treatment notes do not provide any indication of Dr. Thomas’ opinions 25 regarding plaintiff’s impairments or limitations. 26 plaintiff’s hypertension in particular, the notes simply contain a 27 nurse’s notation of plaintiff’s blood pressure reading at each visit. Treatment notes, in general, are not medical 28 16 Here, the With regard to The ALJ’s determination that plaintiff’s hypertension is severe 1 2 clearly demonstrates that the ALJ considered Dr. Thomas’ notes. 3 414.) The ALJ’s finding that plaintiff’s hypertension is controlled was 4 based 5 inaccurate. 6 (“the ALJ must develop the record and interpret the medical evidence”). 7 Plaintiff is correct that from February 2008, through May 2008, she had 8 several high blood pressure readings. 9 however, conveniently omits some pertinent facts: on his analysis of the evidence and is not (A.R. misleading or See Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (A.R. 457, 460-62.) Plaintiff, (1) her hypertension 10 was well-controlled when she was on her medications prior to June 2007 11 (see, e.g., A.R. 367, 380-81); (2) she did not take any blood pressure 12 medication from June 2007, through February 2008 (A.R. 462); and (3) 13 plaintiff’s last blood pressure reading in June 2008, after four months 14 of medication, was 122/82 (A.R. 456). The ALJ reasonably concluded that 15 plaintiff’s hypertension is controlled with medication. 16 F.3d at 679 (“Where evidence is susceptible to more than one rational 17 interpretation, it is the ALJ’s conclusion that must be upheld.”). See Burch, 400 18 19 20 Accordingly, the ALJ properly considered the treating physician’s notes. 21 22 23 IV. It Was Not Reversible Error For The ALJ To Characterize Plaintiff’s Treatment For Depression As Erratic. 24 25 Plaintiff alleges that the ALJ failed to provide clear and 26 convincing reasons for rejecting her testimony regarding her lack of 27 treatment for depression. 28 plaintiff contends that the ALJ “unfairly interpreted [her] testimony in (Joint Stip. at 16-18.) 17 Specifically, 1 terms most unfavorable to her and then rejected it based upon his own 2 speculative and unsupported inferences and assumptions.” 3 Although somewhat awkwardly framed as a credibility issue, it appears 4 that plaintiff’s actual argument is that the ALJ improperly relied on 5 his alleged mischaracterization of her testimony about the treatment she 6 has received for her depression as the basis for concluding that her 7 mental impairments do not render her unable to work. 8 liberally construed, the Court does not find reversible error. (Id. at 17.) Even as so 9 10 Once a disability claimant produces objective evidence of an 11 underlying impairment that is reasonably likely to be the source of her 12 subjective symptom(s), all subjective testimony as to the severity of 13 the symptoms must be considered. 14 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 15 1991)(en banc); see also 20 C.F.R. § 416.929(a) (explaining how pain and 16 other symptoms are evaluated). 17 malingering based on affirmative evidence thereof, he or she may only 18 find an applicant not credible by making specific findings as to 19 credibility 20 Robbins, 466 F.3d at 883. 21 claimant’s credibility include: 22 truthfulness; (2) inconsistencies either in the claimant’s testimony or 23 between the claimant’s testimony and her conduct; (3) the claimant’s 24 daily activities; (4) the claimant’s work record; and (5) testimony from 25 physicians and third parties concerning the nature, severity, and effect 26 of the symptoms of which the claimant complains. 27 at 958-59; see also 20 C.F.R. § 416.929(c). and stating clear Moisa v. Barnhart, 367 F.3d 882, 885 “[U]nless an ALJ makes a finding of and convincing reasons for each." The factors to be considered in weighing a (1) the claimant’s reputation for 28 18 See Thomas, 278 F.3d In her application papers, plaintiff stated that she has panic 1 2 attacks around people and poor concentration and memory. (A.R. 292, 3 313.) 4 anxiety attacks in public and has poor concentration, but she has not 5 had any breakdowns and is not suicidal. 6 through the date of the decision7, the medical records indicate that 7 plaintiff saw a psychiatrist or mental health specialist fewer than ten 8 times, all in 2004. 9 a general practitioner, but no mental health specialist. (A.R. 456-67.) 10 Plaintiff testified that she did not see a mental health specialist and 11 could not “get any help for [her] depression,” because there are no 12 services available where she lives. 13 also indicate that plaintiff did not take any medications from June 14 2007, through February 2008, because she did not have insurance. 15 462.) At the August 5, 2008 hearing, plaintiff testified that she has (A.R. 354-64.) (A.R. 522-23.) From 2004, From 2006, to 2008, plaintiff saw (A.R. 520.) The medical records (A.R. 16 17 In reaching his determination that plaintiff had the severe mental 18 impairments of anxiety disorder, not otherwise specified, and depressive 19 disorder, not otherwise specified, the ALJ noted that plaintiff’s 20 “erratic treatment,” as well as her lack of episodes of decompensation 21 when not on psychotropic medication, might lead to the reasonable 22 conclusion 23 impairment. 24 concluded that plaintiff did suffer from the severe mental impairments 25 of depression and anxiety based on the testimony of the medical expert that plaintiff (A.R. 414-15.) did not suffer from a severe mental Despite his doubts, the ALJ ultimately 26 27 28 7 Although plaintiff alleged an inability to work since December 31, 1996 (A.R. 292), the decision focuses on a period from April 15, 2004, the protective filing date, through the date of the decision. (A.R. 419.) 19 1 and plaintiff’s “somatic complaints.” (A.R. 415) The ALJ included the 2 limitations set forth by the medical expert in his RFC determination, 3 including precluding plaintiff from working at unprotected heights, 4 around dangerous moving machinery, and on fast-paced work. 5 17, 518.) 6 level work and “work involving things rather than people.” (A.R. 416- The ALJ also limited plaintiff to routine, repetitive, entry (A.R. 417.) 7 8 9 Plaintiff’s argument hinges on the ALJ’s characterization of her medical treatment for her depression as “erratic.” (A.R. 415.) The 10 term “erratic” is accurate in that plaintiff did not have consistent 11 treatment for her depression but, read in the light most favorable to 12 plaintiff, also could be interpreted to imply that plaintiff purposely 13 failed to seek treatment when, in fact, she explained that there are no 14 mental health specialists in her area. 15 were to assume that the ALJ intended such an implication, however, any 16 such implication did not affect the ultimate disability determination, 17 because the ALJ did not rely on a lack of and/or “erratic” treatment as 18 a basis for discounting plaintiff’s subjective symptoms.8 19 reason the ALJ did not fully credit plaintiff’s subjective complaints 20 was the lack of consequences and problems that arose during plaintiff’s 21 period of non-treatment. 22 plaintiff underwent no treatment and failed to take any psychotropic 23 medication, she experienced no episodes of decompensation or side (A.R. 520.) Even if the Court Instead, the The ALJ specifically noted that, in the year 24 25 26 27 8 While lack of treatment can be a factor in credibility determinations, when a plaintiff provides a good explanation for the inconsistent treatment, the ALJ cannot reject the symptom testimony on that basis. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Even assuming that the ALJ improperly cited plaintiff’s lack of treatment as a clear and convincing reason for rejecting her testimony, such error is harmless for the reasons cited above. See Burch, 400 F.3d at 679. 28 20 1 effects. (A.R. 415-17.) Indeed, plaintiff testified that she never had 2 any “breakdowns” as a result of her depression. 3 absence 4 treatment and while she received no treatment, rather than the lack of 5 treatment 6 subjective symptoms. 7 ALJ’s reasons for rejecting plaintiff’s testimony, including the fact 8 that plaintiff had no episodes of decompensation); Collins v. Astrue, 9 2009 WL 1202891, at *5 (C.D. Cal. Apr. 27, 2009) (finding the ALJ 10 properly discounted plaintiff’s credibility regarding the severity of 11 her 12 decompensation). of problems, itself, mental is both a while valid plaintiff reason for was (A.R. 522.) under discounting The psychiatric plaintiff’s See, e.g., Burch, 400 F.3d at 681 (affirming the impairments in part because she had no episodes of 13 14 Further, the ALJ provided other clear and convincing reasons to 15 discount plaintiff’s statements “concerning the intensity, persistence 16 and limiting effects of [her] symptoms . . . to the extent they are 17 inconsistent with” the RFC assessment. 18 stated that plaintiff did not testify to any serious limitation to her 19 daily activities imposed by her depression and anxiety, except that she 20 was nervous in public. 21 Act does not require that [plaintiff] be utterly incapacitated to be 22 eligible for benefits,” Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 23 1989), if the level of the activity is inconsistent with the alleged 24 limitations, such activities can have a bearing on a plaintiff’s 25 credibility. 26 ALJ noted that plaintiff performed housework and took care of her two 27 granddaughters on a daily basis while her daughter attended school and (A.R. 417, 522.) (A.R. 417.) First, the ALJ While “[t]he Social Security Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). 28 21 The 1 worked.9 2 Cir. 3 credibility, which included plaintiff’s ability to occasionally provide 4 child care services). 5 that plaintiff “had any decompensation related to what amounts to the 6 daily stress of being a child care provider.” (A.R. 416-17.) 1999)(affirming the See Morgan v. Comm’r, 169 F.3d 595, 600 (9th ALJ’s reasons for rejecting plaintiff’s The ALJ further noted that there was no evidence (A.R. 416.) 7 8 9 Second, the ALJ found that the medical record did not support plaintiff’s subjective complaints. (A.R. 417-18.) The ALJ stated that 10 the medical records do not provide any consistent evidence of psychotic 11 symptoms. 12 physician did not indicate any marked functional limitations and never 13 referred plaintiff for more aggressive treatment by a specialist. (A.R. 14 415.) 15 expert who reviewed plaintiff’s entire medical record and course of 16 treatment, in concluding that, while plaintiff suffered from some sort 17 of depressive and anxiety disorder, there were no signs of psychosis.10 18 (A.R. 417-18, 516.) (A.R. 417.) The ALJ noted that plaintiff’s treating The ALJ also relied on the testimony of Dr. Soltz, a medical 19 20 21 22 9 In plaintiff’s July 16, 2004 Mental Residual Functional Capacity Assessment, it was noted that plaintiff was living with her daughter and helping her with her newborn. (A.R. 334.) Additionally, at the August 5, 2008 hearing, plaintiff testified that she babysits her grandchildren when her daughter is at work and in school. (A.R. 522.) 23 24 25 26 27 28 10 Although not given as a reason for discounting plaintiff’s testimony, and therefore not relied upon here, the Court also notes that plaintiff’s testimony regarding her weight gain was inconsistent with her medical records. Thomas, 278 F.3d at 958-59 (stating that an ALJ may consider a claimant’s testimony and actual conduct in a credibility analysis). As discussed supra, plaintiff testified that she gained forty pounds in the last couple of years as a side effect of her medications. (A.R. 521-22.). Plaintiff’s medical records show that this statement is false. Plaintiff has weighed approximately 200 pounds since 2002. (See A.R. 130.) 22 1 Each of the above reasons is clear and convincing and, thus, the 2 ALJ properly rejected plaintiff’s testimony concerning her subjective 3 symptoms. 4 characterization of her treatment for depression as “erratic” does not 5 serve as any basis for finding reversible error. Accordingly, plaintiff’s complaint regarding the ALJ’s 6 7 CONCLUSION 8 9 For the foregoing reasons, the Court finds that the Commissioner’s 10 decision is supported by substantial evidence and is free from material 11 legal error. Neither reversal of the Commissioner’s decision nor remand 12 is warranted. 13 14 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 15 the decision of the Commissioner of the Social Security Administration. 16 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 17 this Memorandum Opinion and Order and the Judgment on counsel for 18 plaintiff and for defendant. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 DATED: September 30, 2010 22 23 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 23
]]>
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.
