Reyes Juarez v. Michael J. Astrue, No. 5:2010cv01079 - Document 20 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Reyes Juarez (Juarez) filed this action on July 27, 2010. (Dkt. No. 3.) Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on August 9 and 10, 2010. (Dkt. Nos. 7, 9.) On May 31, 2011, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. (Dkt. No. 19.) The court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 REYES M. JUAREZ, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-1079 AGR MEMORANDUM OPINION AND ORDER Reyes Juarez ( Juarez ) filed this action on July 27, 2010. (Dkt. No. 3.) 18 19 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 20 magistrate judge on August 9 and 10, 2010. (Dkt. Nos. 7, 9.) On May 31, 2011, 21 the parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. 22 (Dkt. No. 19.) The court has taken the matter under submission without oral 23 argument. Having reviewed the entire file, the court affirms the decision of the 24 25 Commissioner. 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On January 16, 2001, Juarez filed an application for supplemental security 4 income benefits, alleging an onset date of February 16, 1998.1 Administrative 5 Record ( AR ) 100-02. The application was denied initially and upon 6 reconsideration. AR 68, 74. On August 20, 2001, Juarez requested a hearing 7 before an Administrative Law Judge ( ALJ ). AR 78. On July 24, 2002, an ALJ 8 conducted a hearing at which Juarez, a vocational expert, a medical expert and 9 Juarez s wife testified. AR 26-60. On August 22, 2002, the ALJ issued a 10 decision denying benefits. AR 16-23. On November 19, 2003, the Appeals 11 Council denied the request for review.2 AR 4-6. 12 Juarez filed a complaint in this court on January 26, 2004, requesting 13 review of the Commissioner s decision. Case No. EDCV 04-51 JWJ. On 14 September 16, 2004, the parties stipulated to an Order remanding the action to 15 the Commissioner for further administrative proceedings. AR 340-43. The 16 parties agreed that on remand, the Commissioner would reexamine Juarez s 17 residual functional capacity ( RFC ) and consider the lay witness testimony of his 18 wife. AR 341. On September 16, 2004, the court entered a Judgment of 19 Remand. AR 344-46. 20 On November 29, 2004, the Appeals Council vacated the ALJ s August 22, 21 2002 decision and remanded the case for further proceedings consistent with the 22 court s Judgment of Remand. AR 350-51. The Appeals Council indicated 23 24 25 26 27 28 1 Juarez previously filed an application for supplemental security income on August 29, 2000 that was denied on September 19, 2000. AR 64, 97-99. 2 On September 5, 2002, Juarez again filed an application for supplemental security income, alleging an onset date of February 16, 1998. AR 414. The application was denied initially and upon reconsideration. AR 370, 376. On May 5, 2003, Juarez requested a hearing before an ALJ. AR 382. An ALJ conducted a hearing on March 3, 2004, at which Juarez testified. AR 729-47. On March 22, 2004, the ALJ issued a decision denying benefits. AR 333-39. There is no indication in the record that the case was appealed. 2 1 Juarez had filed an additional application for supplemental security income on 2 May 7, 2004. AR 351. The Appeals Council therefore consolidated the May 7, 3 2004 application for benefits with the January 16, 2001 application, and ordered 4 the ALJ to issue a new decision on the consolidated claims. Id. An ALJ conducted a remand hearing on July 1, 2005, at which Juarez 5 6 testified. AR 748-766. A supplemental hearing was held on November 17, 2005 7 at which a vocational expert testified. AR 767-76. On March 31, 2006, the ALJ 8 issued a decision denying benefits. AR 317-26. 9 On June 26, 2006, Juarez filed a complaint in this court, requesting review 10 of the Commissioner s decision. Case No. EDCV 06-612 CW. On July 6, 2009, 11 the court remanded the case for further proceedings. AR 800-14. 12 On November 16, 2009, a hearing was held before an ALJ at which Juarez, 13 a vocational expert and a medical expert testified. AR 1080-95. The ALJ issued 14 a decision denying benefits on May 12, 2010. AR 780-99. This action followed. 15 II. 16 STANDARD OF REVIEW 17 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 18 decision to deny benefits. The decision will be disturbed only if it is not 19 supported by substantial evidence, or if it is based upon the application of 20 improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); 21 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 22 Substantial evidence means more than a mere scintilla but less than a 23 preponderance it is such relevant evidence that a reasonable mind might 24 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 25 determining whether substantial evidence exists to support the Commissioner s 26 decision, the court examines the administrative record as a whole, considering 27 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 28 /// 3 1 evidence is susceptible to more than one rational interpretation, the court must 2 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 3 III. 4 DISCUSSION 5 A. Disability 6 A person qualifies as disabled, and thereby eligible for such benefits, only 7 if his physical or mental impairment or impairments are of such severity that he is 8 not only unable to do his previous work but cannot, considering his age, 9 education, and work experience, engage in any other kind of substantial gainful 10 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 11 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). 12 B. 13 The ALJ found that Juarez had the severe impairments of degenerative The ALJ s Findings 14 disc disease of the lumbar spine and depression. AR 786. Juarez did not meet 15 or equal a listed impairment. Id. Juarez had the RFC to perform light work 16 except that he is limited to occasional bending, stooping and crouching, and 17 precluded from crawling and using vibrating equipment.3 AR 787. The ALJ 18 found that Juarez cannot perform any past relevant work. However, there were a 19 significant number of jobs in the national economy that Juarez could perform 20 such as hand packager, garment sorter and electronic worker. AR 798-99. 21 C. Compliance with Court s Remand Order 22 Juarez asserts that the ALJ failed to comply with the court s remand order. 23 The ALJ must comply with a district court s remand order. See Sullivan v. 24 Hudson, 490 U.S. 877, 886, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1989) 25 ( Deviation from the [district] court s remand order in the subsequent 26 administrative proceedings is itself legal error. ); Holliday v. Astrue, 2010 U.S. 27 28 3 Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 416.967(b). 4 1 Dist. LEXIS 29808, *8-*9 (C.D. Cal. 2010). A failure to comply with the court s 2 remand order is subject to harmless error analysis. Blanquet v. Astrue, 2011 3 U.S. Dist. LEXIS 6879, *12 (C.D. Cal. Jan. 24, 2011); see also McLeod v. Astrue, 4 640 F.3d 881, 887-88 (9th Cir. 2011) (harmless error rule). 5 The court ordered that, on remand, the ALJ should make every 6 reasonable effort to obtain records from Dr. Havert and the San Bernardino 7 County Department of Behavioral Health [ SBCDBH ] in order to clarify the 8 relationship between Dr. Havert and [Juarez]. AR 813. The court explained that 9 to give proper weight to Dr. Havert s opinion, the ALJ needed to know if Dr. 10 Havert was a treating psychologist, and whether Dr. Havert ever examined 11 plaintiff. AR 812. 12 On remand, the ALJ sent a letter to Juarez s counsel seeking non- 13 duplicative medical records. AR 819-20, 837. The state agency submitted 14 additional medical records. AR 854-955. Juarez s counsel submitted additional 15 medical records from the SBCDBH. AR 957-1079. None of these records 16 mention Dr. Havert or explain the relationship between Dr. Havert and Juarez. 17 Juarez argues that there is no indication the ALJ ever attempted to contact 18 Dr. Havert directly. Dr. Havert s report dated February 23, 2004 does not contain 19 any contact information. AR 645-46. The SBCDBH treatment records are in the 20 certified administrative record. Dr. Havert s name appears only on the initial 21 intake assessment dated June 3, 2003. AR 637-39. The subsequent treatment 22 records from June 4, 2003 through February 18, 2004 (the last date prior to Dr. 23 Havert s report) do not contain treatment records for Dr. Havert. AR 632-36. 24 The SBCDBH treatment records later submitted by Juarez also do not contain 25 additional records from Dr. Havert. If Dr. Havert was a treating psychologist after 26 June 3, 2003, it is clear SBCDBH does not have Dr. Havert s treatment records. 27 Given that there is no other contact information for Dr. Havert in the record, it is 28 not clear what the ALJ should have done other than request counsel to obtain the 5 1 relevant records, which he did by letters. If Dr. Havert continued to be a treating 2 psychologist, the person most likely to have contact information would be Juarez 3 himself.4 4 Even assuming the ALJ erred, the question becomes whether any error 5 was harmless. An opinion of a treating physician is given more weight than the 6 opinion of a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 7 2007). When a treating physician s opinion is contradicted by another doctor, 8 the ALJ may not reject this opinion without providing specific and legitimate 9 reasons supported by substantial evidence in the record. This can be done by 10 setting out a detailed and thorough summary of the facts and conflicting clinical 11 evidence, stating his interpretation thereof, and making findings. Orn, 495 F.3d 12 at 632 (citations omitted and internal quotations omitted). When there is 13 conflicting medical evidence, the Secretary must determine credibility and 14 resolve the conflict. Thomas v. Barnhart, 278 F.3d 947,956-57 (9th Cir. 2002) 15 (citation and quotation marks omitted). 16 The ALJ rejected Dr. Havert s opinion because the opinion: (1) did not 17 explain the basis for its conclusion; (2) was inconsistent with the opinion of an 18 examining physician; and (3) was not supported by the mental health treatment 19 records. AR 797. 20 An ALJ need not accept the opinion of any physician, including a treating 21 physician, if that opinion is brief, conclusory, and inadequately supported by 22 clinical findings. Thomas, 278 F.3d at 957. An ALJ may discount a check-the- 23 box report that does not explain the basis of its conclusions. See Batson v. 24 25 26 27 28 4 Juarez and his counsel had ample opportunity to submit Dr. Havert s contact information or his medical records, to the extent they exist. A letter to Juarez s counsel explained that if he needed help in presenting more evidence, he should contact the social security administration office. If a physician, expert or other witness is not cooperating with production of documents important to your client s case, you may ask the ALJ to issue a subpoena that requires a person to submit documents or testify at your hearing. AR 819. 6 1 Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly 2 rejected treating physician's conclusory check-list report). The ALJ found that Dr. 3 Havert s opinion was a check list statement with no narrative or rational to 4 support the degree of limitations stated. AR 645-46, 797. 5 The ALJ also relied on the opinion of a psychiatric consultative examiner, 6 Dr. Smith. AR 789, 796-97. An examining physician's opinion constitutes 7 substantial evidence when it is based on independent clinical findings. Orn, 495 8 F.3d at 632. Dr. Smith s opinion constituted substantial evidence since it was 9 based on independent clinical findings she made during three separate 10 psychiatric evaluations of Juarez in June 2001, November 2002, and August 11 2005. AR 260-65, 520-25, 647-58, 796-98. At no point did Dr. Smith consider 12 Juarez to be more than moderately impaired. Id. In Dr. Smith s most recent 13 evaluation (August 2005), Juarez was no more than slightly impaired and not very 14 credible or medication compliant. AR 647-58. Dr. Smith opined Juarez was 15 slightly impaired in his abilities to understand, remember, or complete detailed, 16 complex commands and to interact appropriately with supervisors, co-workers, or 17 the public. AR 654, 656-58. Juarez was not impaired with respect to his abilities 18 to understand, remember, or complete short, simple commands, make judgments 19 on simple work-related decisions, such as complying with job rules of safety and 20 attendance, respond to change in the normal workplace or maintain persistence 21 and pace in a normal workplace setting. Id. 22 The ALJ also rejected Dr. Havert s opinion because it was not supported by 23 the mental health treatment records in the record. AR 795-98. In particular, the 24 ALJ found that the most recent treatment notes were essentially the same as 25 previous years, finding Juarez to be oriented, not delusional or suicidal, and 26 cooperative. AR 795, 957-977, 978-1002, 1003-27, 1028-52. These records 27 were consistent with Dr. Smith s opinion. See AR 260-65, 520-25, 647-58. 28 7 Accordingly, even assuming the ALJ erred in not contacting Dr. Havert, any 1 2 error was harmless. 3 D. The ALJ s Residual Functional Capacity Determination 4 Juarez argues that, in assessing his RFC, the ALJ failed to take into 5 account Dr. Havert s opinion. 6 The RFC determination measures the claimant s capacity to engage in 7 basic work activities. Bowen v. New York, 476 U.S. 467, 471, 106 S. Ct. 2022, 8 90 L. Ed. 2d 462 (1986). The RFC is a determination of the most [an individual] 9 can still do despite [his or her] limitations. 20 C.F.R. § 404.1545(a). It is an 10 administrative finding, not a medical opinion. 20 C.F.R. § 404.1527(e)(2). The 11 RFC takes into account both exertional limitations and non-exertional limitations. 12 When there is conflicting medical evidence, the Secretary must determine 13 credibility and resolve the conflict. Thomas, 278 F.3d 947, 956-57 (citation 14 omitted). 15 As discussed above, the ALJ properly rejected Dr. Havert s opinion. Thus, 16 the ALJ was not required to include Dr. Havert s marked and extreme limitations 17 in assessing Juarez s RFC. 18 E. The Hypothetical Question Posed to the Vocational Expert 19 Juarez argues the ALJ failed to include Dr. Havert s marked and extreme 20 limitations in his hypothetical question posed to the vocational expert. JS 16-17. 21 However, an ALJ is not required to include limitations that are not in his findings. 22 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Osenbrock v. Apfel, 240 23 F.3d 1157, 1165 (9th Cir. 2001). Given that the ALJ properly rejected Dr. 24 Havert s opinion, it was not error to exclude Dr. Havert s limitations from the 25 hypothetical. 26 /// 27 /// 28 /// 8 1 IV. 2 ORDER 3 4 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 5 6 DATED: August 26, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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