Alejandrina Pena v. Michael J Astrue, No. 5:2009cv00772 - Document 16 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian, The decision of the Commissioner of Social Security is affirmed. (SEE OPINION FOR FURTHER DETAILS) (lmh)
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Alejandrina Pena v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALEJANDRINA PENA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 09-772 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. SUMMARY 20 On April 27, 2009, plaintiff Alejandrina Pena (“plaintiff”) filed a 21 Complaint seeking review of the Commissioner of Social Security’s denial of 22 plaintiff’s application for benefits. The parties have consented to proceed before a 23 United States Magistrate Judge. 24 This matter is before the Court on the parties’ cross motions for summary 25 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The 26 Court has taken both motions under submission without oral argument. See Fed. 27 R. Civ. P. 78; L.R. 7-15; May 1, 2009 Case Management Order ¶ 5. 28 /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On December 8, 2005, and February 1, 2006, plaintiff filed applications for 7 Disability Insurance Benefits and Supplemental Security Income benefits. 8 (Administrative Record (“AR”) 12, 94-104). Plaintiff asserted that she became 9 disabled on July 1, 2005, due to inflamed spinal disks. (AR 129). The ALJ 10 examined the medical record and heard testimony from plaintiff, who was 11 represented by counsel, on January 23, 2008. (AR 19-36). 12 On May 27, 2008, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 12-18). Specifically, the ALJ found that the 14 objective medical evidence failed to establish the existence of a medically 15 determinable impairment that could reasonably be expected to produce the 16 claimant’s symptoms. (AR 14). 17 The Appeals Council denied plaintiff’s application for review. (AR 1-3). 18 III. APPLICABLE LEGAL STANDARDS 19 A. 20 To qualify for disability benefits, a claimant must show that she is unable to Sequential Evaluation Process 21 engage in any substantial gainful activity by reason of a medically determinable 22 physical or mental impairment which can be expected to result in death or which 23 has lasted or can be expected to last for a continuous period of at least twelve 24 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 25 26 1 The harmless error rule applies to the review of administrative decisions regarding 27 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 28 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 1 § 423(d)(1)(A)). The impairment must render the claimant incapable of 2 performing the work she previously performed and incapable of performing any 3 other substantial gainful employment that exists in the national economy. Tackett 4 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 5 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 6 sequential evaluation process: 7 (1) 8 9 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant’s alleged impairment sufficiently severe to limit 10 her ability to work? If not, the claimant is not disabled. If so, 11 proceed to step three. 12 (3) Does the claimant’s impairment, or combination of 13 impairments, meet or equal an impairment listed in 20 C.F.R. 14 Part 404, Subpart P, Appendix 1? If so, the claimant is 15 disabled. If not, proceed to step four. 16 (4) Does the claimant possess the residual functional capacity to 17 perform her past relevant work? If so, the claimant is not 18 disabled. If not, proceed to step five. 19 (5) Does the claimant’s residual functional capacity, when 20 considered with the claimant’s age, education, and work 21 experience, allow her to adjust to other work that exists in 22 significant numbers in the national economy? If so, the 23 claimant is not disabled. If not, the claimant is disabled. 24 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 25 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 26 B. 27 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 28 benefits only if it is not supported by substantial evidence or if it is based on legal 3 1 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 3 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable 4 mind might accept as adequate to support a conclusion.” Richardson v. Perales, 5 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 6 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 7 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 8 To determine whether substantial evidence supports a finding, a court must 9 “‘consider the record as a whole, weighing both evidence that supports and 10 evidence that detracts from the [Commissioner’s] conclusion.’” Aukland v. 11 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 12 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 13 or reversing the ALJ’s conclusion, a court may not substitute its judgment for that 14 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 15 IV. DISCUSSION 16 A. 17 Plaintiff argues that the ALJ committed reversible error in finding that Step Two Determination 18 plaintiff does not have a severe impairment. (Plaintiff’s Motion at 7-9). The 19 Court disagrees. 20 21 1. Pertinent Law At step two of the sequential evaluation process, an impairment or a 22 combination of impairments may be found not medically severe only if evidence 23 clearly establishes slight abnormality that has no more than a minimal effect on an 24 individual’s ability to work. Webb v. Barnhart, 433 F. 3d 683, 687 (9th Cir. 25 2005). To determine whether or not an impairment is severe, the ALJ must 26 determine whether a claimant’s impairment or combination of impairments 27 significantly limits her physical or mental ability to do “basic work activities.” 28 See id.; see also 20 C.F.R. §§ 404.1521(a), 416.921(a). Basic work activities are 4 1 the “abilities and aptitudes necessary to do most jobs,” such as (1) physical 2 functions like walking, standing, sitting, lifting, pushing, pulling, reaching, 3 carrying, and handling; (2) the capacity for seeing, hearing, speaking, 4 understanding, carrying out, and remembering simple instructions; (3) the use of 5 judgment; and (4) the ability to respond appropriately to supervision, co-workers, 6 and usual work situations. 20 C.F.R. §§ 404.1521(b), 416.921(b). 7 The ALJ must properly evaluate the medical evidence in making a step two 8 determination. See Social Security Ruling (“SSR”) 85-282 (ALJ’s finding that a 9 claimant lacks a severe impairment must be “clearly established by medical 10 evidence”). In Social Security cases, courts employ a hierarchy of deference to 11 medical opinions depending on the nature of the services provided. Courts 12 distinguish among the opinions of three types of physicians: those who treat the 13 claimant (“treating physicians”) and two categories of “nontreating physicians,” 14 namely those who examine but do not treat the claimant (“examining physicians”) 15 and those who neither examine nor treat the claimant (“nonexamining 16 physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir.), as amended (1996) 17 (footnote reference omitted). A treating physician’s opinion is entitled to more 18 weight than an examining physician’s opinion, and an examining physician’s 19 opinion is entitled to more weight than a nonexamining physician’s opinion. See 20 id. In general, the opinion of a treating physician is entitled to greater weight than 21 that of a non-treating physician because a treating physician “is employed to cure 22 and has a greater opportunity to know and observe the patient as an individual.” 23 Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 24 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 25 26 2 Social Security rulings are binding on the Administration. See Terry v. Sullivan, 903 27 F.2d 1273, 1275 n.1 (9th Cir. 1990). Such rulings reflect the official interpretation of the Social 28 Security Administration and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Massachi v. Astrue, 486 F.3d 1149, 1152 n.6 (9th Cir. 2007) (citing SSR 00-4p). 5 1 A treating physician’s opinion is not, however, necessarily conclusive as to 2 either a physical condition or the ultimate issue of disability. Magallanes v. 3 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 4 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician’s opinion is not 5 contradicted by another doctor, it may be rejected only for clear and convincing 6 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 7 quotations omitted). An ALJ can reject the opinion of a treating physician in favor 8 of a conflicting opinion of another examining physician if the ALJ makes findings 9 setting forth specific, legitimate reasons for doing so that are based on substantial 10 evidence in the record. Id. (citation and internal quotations omitted). “The ALJ 11 must do more than offer his conclusions.” Embrey v. Bowen, 849 F.2d 418, 12 421-22 (9th Cir. 1988). “He must set forth his own interpretations and explain 13 why they, rather than the [physician’s], are correct.” Id.; see Thomas v. Barnhart, 14 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed 15 and thorough summary of facts and conflicting clinical evidence, stating his 16 interpretation thereof, and making findings) (citations and quotations omitted). 17 “Broad and vague” reasons for rejecting a treating physician’s opinion do not 18 suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir.1989). 19 When they are properly supported, the opinions of physicians other than 20 treating physicians, such as examining physicians and nonexamining medical 21 experts, may constitute substantial evidence upon which an ALJ may rely. See, 22 e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative 23 examiner’s opinion on its own constituted substantial evidence, because it rested 24 on independent examination of claimant); Morgan, 169 F.3d at 600 (testifying 25 medical expert opinions may serve as substantial evidence when “they are 26 supported by other evidence in the record and are consistent with it”). 27 /// 28 /// 6 1 2 2. Analysis In this case, the ALJ rejected the opinion of plaintiff’s treating physician, 3 Dr. Khalid Ahmed. (AR 16-17). Dr. Ahmed began treating plaintiff in October 4 2004 for an injury sustained at work in March 2004. (AR 209-17). He initially 5 diagnosed plaintiff with “lumbar strain disk lesion lumbar spine with radiculitis” 6 and “possible bilateral spondylolysis at L5-S1 with possible 0 to 1 degree 7 spondylolisthesis.” (AR 216). Electrodiagnostic testing in October 2004 was 8 normal. (AR 188-91). An MRI in December 2004 showed a 1-2 mm posterior 9 disk protrusion with disk dessication at the L1-L2 disk level, a 2 mm posterior 10 disk protrusion with disk dessication and moderate hypertrophic facet changes at 11 the L3-L4 disk level, a 2 to 3 mm posterior disk protrusion with disk dessication 12 and moderate hypertrophic facet changes at the L4-L5 disk level, and a 2 to 3 mm 13 central disk protrusion with disk dessication at the L5-S1 disk level. (AR 200-02). 14 Results of a CT scan were similar. (See AR 197-99). Dr. Ahmed continued to see 15 plaintiff, and on June 24, 2005, he opined that she had reached permanent and 16 stationary status. (AR 161-70). He described plaintiff’s condition as follows: 17 Lumbar spine, the discomfort is best described as 18 constant, slight, intermittent, moderate to severe level 19 with 30 minutes to 35 minutes of standing, 30 minutes to 20 35 minutes of walking, 30 minutes [to] 35 minutes of 21 sitting, and any attempted bending, stooping, and lifting. 22 Objectively restricted the lumbar mobility by 30% with 23 tenderness, tightness, spasms, with a positive straight leg 24 raising on the left with MRI evidence [of] disk herniation 25 at the L5-S1 and disk protrusion at the L4-L5 and L3-L4. 26 (AR 168). On February 21, 2006, Dr. Ahmed examined plaintiff and reported 27 multiple findings, including a restricted range of spinal motion and positive 28 straight leg raising tests. (AR 203-06). 7 1 Dr. Thomas Dorsey, an orthopedist, performed a consultative examination 2 of plaintiff three days after Dr. Ahmed’s February 2006 examination. (AR 2223 25). Dr. Dorsey reported generally normal findings, including negative straight 4 leg raising tests. (AR 223-25). In contrast to Dr. Ahmed, Dr. Dorsey opined that 5 plaintiff “has no impairment-related physical limitations,” and wrote under 6 “Diagnosis” that plaintiff had “[m]ultiple somatic complaints, without evidence of 7 significant orthopaedic pathology.”3 (AR 225). 8 At the hearing, non-examining medical expert Dr. William Debolt generally 9 concurred with Dr. Dorsey’s findings. Dr. Debolt testified that the MRI results 10 “do[] not support Dr. Ahmed,” and, in light of the normal electrodiagnostic 11 testing, concluded that “the consultative examiner and the other doctor are more 12 correct in their findings than Dr. Ahmed.” (AR 29-30). 13 Because Dr. Ahmed’s opinion was contradicted by other physicians, to 14 reject it the ALJ was required to provide specific, legitimate reasons supported by 15 substantial evidence. The ALJ did so. He noted “the inconsistency of Dr. 16 Ahmed’s February 2006 abnormal findings and conclusions with the essentially 17 normal February 2006 orthopedic findings of Dr. Dorsey,” and, relying on Dr. 18 Debolt’s testimony and Dr. Dorsey’s report, concluded that “Dr. Ahmed’s 19 assessments lack any objective medical basis.” (AR 16-17). Although the ALJ 20 may have overstated the case in opining that “Dr. Ahmed’s assessments lack any 21 objective medical basis,” “[t]he contrary opinions of [the examining and 22 nonexamining physicians] serve as . . . specific and legitimate reasons for rejecting 23 the opinion[ ] of [plaintiff’s treating physician].” See Tonapetyan, 242 F.3d at 24 1149. 25 Thus, substantial evidence supports the ALJ’s finding that plaintiff does not 26 have a severe impairment. A remand or reversal is not warranted on this basis. 27 /// 28 3 Dr. Dorsey reviewed plaintiff’s MRI report. (AR 222). 8 1 B. 2 The Court rejects plaintiff’s contention that the ALJ erred by failing to Side Effects of Medication 3 consider the side effects of plaintiff’s medication. (Plaintiff’s Motion at 3-4). A 4 claimant bears the burden of demonstrating that her use of medications caused a 5 disabling impairment. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985) 6 (claimant failed to meet burden of proving medication impaired his ability to work 7 because he produced no clinical evidence). The only evidence plaintiff points to 8 in support of her contention are cursory references in a disability report form that 9 she experiences nausea from two of her medications, and a physician’s 10 recommendation that she continue taking her prescription medications. (Plaintiff’s 11 Motion at 3-4 (citing AR 157, 204)). Plaintiff offers no objective evidence that 12 her medications affected her in the way she claims, let alone that they interfered 13 with her ability to work. See Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 14 2001) (“There were passing mentions of the side effects of [plaintiff’s] medication 15 in some of the medical records, but there was no evidence of side effects severe 16 enough to interfere with [his] ability to work.”). The ALJ did not err.4 17 C. 18 Plaintiff asserts that the ALJ erred by failing to develop the record Duty to Develop the Record 19 concerning plaintiff’s alleged depression. (Plaintiff’s Motion at 4-6). The Court 20 disagrees. 21 22 1. Pertinent Law Although plaintiff bears the burden of proving disability, the ALJ has an 23 affirmative duty to assist the claimant in developing the record “when there is 24 ambiguous evidence or when the record is inadequate to allow for proper 25 26 27 28 4 Plaintiff appears to suggest that the ALJ erred by failing to consider all possible side effects related to plaintiff’s medication. (Plaintiff's Motion at 3-4). Plaintiff’s argument has no merit. The ALJ was not required to address undocumented medication side effects. See Miller, 770 F.2d at 849 (ALJ properly rejected allegations of impairment from medication side effects where plaintiff produced no clinical evidence that narcotics use impaired his ability to work); Osenbrock, 240 F.3d at 1164. 9 1 evaluation of the evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2 2001) (citation omitted); Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 3 2001); see also Webb, 433 F.3d at 687 (ALJ has special duty fully and fairly to 4 develop record and to assure that claimant's interests are considered). Where it is 5 necessary to enable the ALJ to resolve an issue of disability, the duty to develop 6 the record may require consulting a medical expert or ordering a consultative 7 examination. See 20 C.F.R. §§ 404.1519a, 416.919a; see, e.g., Armstrong v. 8 Commissioner of Social Security Administration, 160 F.3d 587, 590 (9th Cir. 9 1998) (where there were diagnoses of mental disorders prior to the date of 10 disability found by the ALJ, and evidence of those disorders even prior to the 11 diagnoses, the ALJ was required to call a medical expert to assist in determining 12 when the plaintiff's impairments became disabling). 13 The ALJ is not obliged to undertake the independent exploration of every 14 conceivable condition or impairment a claimant might assert. Therefore, an ALJ 15 does not fail in his duty to develop the record by not seeking evidence or ordering 16 further examination or consultation regarding a physical or mental impairment if 17 no medical evidence indicates that such an impairment exists. See Breen v. 18 Callahan, 1998 WL 272998, at *3 (N.D. Cal. May 22, 1998) (noting that, in the 19 Ninth Circuit, the ALJ’s obligation to develop the record is triggered by “the 20 presence of some objective evidence in the record suggesting the existence of a 21 condition which could have a material impact on the disability decision”) (citing 22 Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of 23 Health and Human Services, 939 F.2d 680, 682 (9th Cir. 1991)). 24 25 2. Analysis Here, the record lacks objective evidence of a mental impairment sufficient 26 to trigger the ALJ’s duty to inquire further. Although plaintiff once wrote that she 27 “get[s] depressed” (AR 158) and there is evidence that she has been prescribed 28 Xanax (AR 204), the record contains no objective assessment of plaintiff’s mental 10 1 health, much less any diagnosis of a mental impairment. Plaintiff carries the initial 2 burden of proving disability. Burch, 400 F.3d at 679. Under these circumstances, 3 the ALJ had no duty to develop the record by diagnosing plaintiff’s alleged mental 4 impairment. See Mayes, 276 F.3d at 459-60 (ALJ “had no duty to develop the 5 record by diagnosing [claimant’s] herniated discs” where claimant “did not 6 provide the ALJ with any medical evidence indicating that she had herniated discs 7 until after the ALJ hearing”); Thornton v. Astrue, 2010 WL 1904661, at *6 (E.D. 8 Wash. May 12, 2010) (plaintiff’s “unsupported testimony” insufficient to trigger 9 ALJ’s duty to develop record regarding alleged mental impairment where 10 “acceptable medical sources made no mental health diagnoses” and medical record 11 did not reveal “depression symptoms or complaints”). The ALJ did not err. 12 D. 13 The Court rejects plaintiff’s argument that the ALJ erred by failing to Consideration of Mental Impairment 14 evaluate the functional limitations stemming from plaintiff’s alleged mental 15 impairment. (Plaintiff’s Motion at 6-7). Plaintiff is correct that, for a claimant 16 with a mental impairment, an ALJ must follow a “special technique” and rate and 17 document the claimant’s degree of limitation in four functional areas. See 20 18 C.F.R. §§ 404.1520a, 416.920a. But this procedure is only required for claimants 19 with “a medically determinable mental impairment.” Id. §§ 404.1520a(b), 20 416.920a(b). In this case, the ALJ properly found that plaintiff did not have a 21 mental impairment, as discussed above. The ALJ therefore did not err by failing 22 to follow the “special technique” for assessing mental impairments. 23 E. 24 Finally, the Court rejects plaintiff’s contention that the ALJ erred by failing Lack of Vocational Expert Testimony 25 to obtain vocational expert testimony at step five. (Plaintiff’s Motion at 10). As 26 discussed above, the ALJ properly concluded his analysis at step two by 27 determining that plaintiff does not have a severe impairment. The ALJ therefore 28 was not required to conduct a step five inquiry. 11 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is affirmed. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 DATED: September 2, 2010 6 7 8 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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