Tammie White v. Michael J Astrue, No. 5:2011cv00156 - Document 18 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. (ib)
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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TAMMIE WHITE, 12 13 14 15 16 Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) CASE NO. ED CV 11-00156 RZ MEMORANDUM OPINION AND ORDER 17 The Court finds none of Plaintiff s three arguments sufficient to overturn the 18 Commissioner s determination that Plaintiff is not entitled to receive disability benefits. 19 Plaintiff argues first that the Administrative Law Judge did not properly 20 consider the medical opinions of Dr. H.N. Hurwitz. Using a form containing categories 21 and boxes, Dr. Hurwitz made markings in between two categories in several instances. [AR 22 485-86] In each instance, however, the markings still indicated that Plaintiff was less than 23 moderately limited, and those limitations all were captured in the residual functional 24 capacity that the Administrative Law Judge fashioned, and in particular the requirement 25 that Plaintiff be confined to simple, repetitive work in a non-public setting. Plaintiff also 26 asserts that the Dr. Hurwitz used a limitation from a previous RFC, restricting Plaintiff s 27 use of small tools; Plaintiff has misread the record here, for that reference was only part of 28 a staffer s summary, on which Dr. Hurwitz noted that a Chavez showing of changed 1 circumstances had been made. [AR 489] The various inconsistencies that Plaintiff posits 2 all derive from this mis-reading. 3 Plaintiff next argues that the Administrative Law Judge wrongly failed to 4 adopt the opinion of treating psychiatrist Romeo Villar. On a form evaluation, Dr. Villar 5 indicated that Plaintiff had an extreme limitation in the ability to perform activities within 6 a schedule, maintain regular attendance, and be punctual, and marked limitations in two 7 other areas. The opinion of a treating physician is given deference, and if the opinion is 8 uncontroverted, the administrative law judge must provide clear and convincing evidence 9 before rejecting it. Edlund v. Massanari, 253 F.3d 1152, 1157 (9th Cir. 2001); Aukland 10 v. Massanari, 257 F.3d 1036 (9th Cir. July 23, 2001). If there are contrary opinions, then 11 the Administrative Law Judge need only give specific and legitimate reasons for rejecting 12 the treating physician s opinion. Here, the Administrative Law Judge found that the 13 limitations suggested by Dr. Villar were not consistent with Dr. Villar s own treatment 14 notes, or with other medical evidence. This is an appropriate basis for rejecting a treating 15 physician s opinion. Morgan v. Apfel, 169 F.3d 595, 602-03 (9th Cir. 1999); Bayliss v. 16 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The Administrative Law Judge also noted 17 that Dr. Villar had prescribed conservative treatment, and this too was a valid basis for not 18 fully crediting the opinion that Plaintiff was so limited. Johnson v. Shalala, 60 F.3d 1428, 19 1433 (9th Cir. 1995). Accordingly, the Administrative Law Judge did not err in declining 20 to accept the full limitations suggested by Dr. Villar. 21 Plaintiff s third argument is that the Administrative Law Judge did not 22 properly address the statements and testimony of Plaintiff s husband William Mutz. It is 23 true that the reasons the Administrative Law Judge gave for saying that Mr. Mutz was only 24 partially credible are not very persuasive; the fact that Mr. Mutz described his own 25 disability one way and his wife described it a different way, and that he said his wife had 26 never used or owned a walker but she in fact did use a walker at a consultative examination 27 [AR 242] hardly show that Mr. Mutz is not to be believed when he spoke of his wife s 28 abilities. More importantly, however, the Administrative Law Judge did fairly summarize -2- 1 Mr. Mutz s assessment of his wife s activities. [AR 242-43] Thus, any discrediting had 2 no significant impact on the decision. Since the decision otherwise was backed by 3 substantial evidence, the statement that the Administrative Law Judge found Mr. Mutz only 4 partially credible was of no moment. In accordance with the foregoing, the decision of the Commissioner is 5 6 affirmed. 7 8 DATED: January 10, 2012 9 10 11 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-
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