Seline Gutierres v. Michael J Astrue, No. 5:2012cv00274 - Document 15 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The Court finds no merit in Plaintiff's fourth and final issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. [SEE ORDER FOR FURTHER DETAILS] 1 (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 SELINE GUTIERRES, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 12-00274-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 Plaintiff s treating physicians opinions; 2. Whether the ALJ properly determined if activities of daily 3 living 4 competitive substantial gainful activity; 5 3. establish the ability to perform full-time Whether there is a DOT inconsistency in the ALJ s holding 6 that Plaintiff can perform the jobs of information clerk, 7 credit checker, and electronic bench technician; and 8 4. 9 10 Whether the ALJ properly considered the lay witness testimony. (JS at 3.) 11 12 This Memorandum Opinion will constitute the Court s findings of 13 fact and conclusions of law. After reviewing the matter, the Court 14 concludes that the decision of the Commissioner must be affirmed. 15 16 INTRODUCTION 17 A. 18 Plaintiff previously filed an application for SSI benefits on 19 August 11, 2005, which resulted in a determination of non-disability 20 by an ALJ in a Decision dated February 15, 2008. (See AR, Exhibit 21 [ Ex. ] B1A.) 22 continuing non-disability. (See SSR 97-4(9), Chavez v. Bowen, 844 F.2d 23 691 (9th Cir. 1988).) 24 Procedural History. That Decision creates a rebuttable presumption of Plaintiff s current application for SSI benefits was filed on May 25 26, 2009. (AR 9; 102.) After administrative denials, hearings were 26 held before an ALJ on December 10, 2010 and April 8, 2011. An 27 unfavorable decision was issued on April 27, 2011. (AR 5-24.) The 28 Appeals Council denied review (AR 1-4) and Plaintiff commenced this 2 1 litigation. 2 3 I 4 THE ALJ PROPERLY CONSIDERED THE MEDICAL EVIDENCE 5 IN DETERMINING PLAINTIFF S RESIDUAL FUNCTIONAL CAPACITY 6 In the Decision, the ALJ found that Plaintiff has severe 7 impairments of lupus; failed back syndrome, status post-laminectomy; 8 obesity; and major depressive disorder. (AR 10.) 9 Plaintiff contends that the ALJ failed to properly consider the 10 opinions of her treating physicians with regard to her mental state. 11 She quotes extensively from the ALJ s Decision. (See JS at 3-5.) 12 contention is that the ALJ failed to follow applicable law which 13 requires that the opinion of treating physicians may not be rejected 14 without providing specific and legitimate reasons. (See JS at 6, 15 citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).) Her 16 Plaintiff also attempts to raise the issue of an assertedly 17 inadequate discussion by the ALJ in a prior Decision of non-disability 18 filed on February 15, 2008. (See JS at 7-9.) 19 Because of this prior non-disability determination, a continuing 20 presumption of non-disability attaches and it is Plaintiff s burden 21 now to prove changed circumstances indicating that she has a greater 22 disability in order to overcome that presumption. (See Chavez, supra, 23 844 F.2d at 693.) 24 showing of change circumstances material to the determination of 25 disability, and thus, he concluded that the presumption of continuing 26 non-disability has not been rebutted. (AR 13.) Here, the ALJ found that there has not been a 27 Apart from that legal issue, the record supports the ALJ s 28 determination of Plaintiff s mental residual functional capacity 3 1 ( RFC ). Although Plaintiff extensively cites to progress notes from 2 the Riverside County Department of Mental Health, these are not 3 opinions of a physician(s). 4 ALJ did evaluate them. 5 most of her appointments, and there was evidence of significant 6 malingering 7 consultative 8 Plaintiff extensively cites to GAF scores, such scores are only 9 snapshots of a person s functioning at a particular moment in time, 10 and thus do not constitute medical opinions which are sufficient to 11 document a continuing impairment for purposes of the Social Security 12 Act. 13 Astrue, 288 Fed. Appx. 357, 359 (9th Cir. 2008). and They are simply progress notes, and the He noted that Plaintiff had failed to attend magnification examination of ( CE ). symptoms (See, at infra.) a psychological Further, while See 65 Fed. Reg. 5746, 5765 (August 21, 2000); McFarland v. 14 As noted, the ALJ significantly relied upon a psychological CE 15 conducted by Dr. Reznick on January 13, 2011 (AR 357-368), in addition 16 to a psychiatric CE by Dr. Abejuela from August 20, 2009 (AR 303-309). 17 (See discussion at AR 17.) 18 examination, debunks Plaintiff s self-reporting of hallucinations and 19 hearing 20 deliberately unfavorable impression management, apparently for self- 21 serving reasons. (AR 364.) 22 allegations as to hallucinations were simply not credible. (AR 358.) 23 She did not exhibit any signs or symptoms of psychosis or paranoia. 24 (AR 358.) voices, noting Dr. Reznick s report, based upon his that Plaintiff appeared to engage in Dr. Reznick found that Plaintiff s 25 Finally, Plaintiff s complaint that the ALJ in the previous 2008 26 Decision failed to adequately address her physician s opinions is 27 irrelevant to the 2011 Decision which is at issue in this case, other 28 than that the prior decision is res judicata under Chavez. 4 1 None of the progress notes cited by Plaintiff provide any opinion 2 as to Plaintiff s mental RFC. Thus, the Court rejects Plaintiff s 3 contention that the ALJ failed to adequately consider these progress 4 notes, and finds no other evidence in the record to undermine the 5 ALJ s determination of Plaintiff s mental RFC. 6 7 II 8 THE ALJ PROPERLY RELIED UPON PLAINTIFF S 9 ACTIVITIES OF DAILY LIVING IN THE DISABILITY DETERMINATION 10 In Plaintiff s second issue, she contends the ALJ improperly 11 relied upon the nature and extent of her activities of daily living 12 ( ADL ) in determining whether she is disabled, and in particular, 13 contests the assessment of her credibility pertaining to subjective 14 complaints. (See Discussion in Decision at AR 13.) 15 While Plaintiff cites cases which generally hold that a claimant 16 need not be completely incapacitated or vegetative to be disabled, 17 that standard does not comport with the actual ADLs in which Plaintiff 18 participates, as noted by the ALJ.1 19 Here, the ALJ relied upon numerous credibility factors which are 20 sanctioned by regulation and case law. (See SSR 96-7p, 20 C.F.R. § 21 416.929(c)(3).) 22 are established by substantial evidence in the record. 23 ALJ relief upon evidence that Plaintiff malingered and magnified her 24 symptoms. (See Decision at AR 17-18, see Benton v. Barnhart, 331 F.3d 25 1030, 1040 (9th Cir. 2003).) 26 section, the independent psychological CE, Dr. Reznick, extensively In this case, there are several such factors which For one, the As the Court noted in the previous 27 1 28 Plaintiff does not contest that she in fact is capable of and participates in these ADLs. 5 1 commented upon the sub-optimal effort and malingering which Plaintiff 2 exhibited during her examination; the fact that her allegations of 3 hallucination lacked credibility; and that she demonstrated no signs 4 or symptoms of psychosis or paranoia. 5 medical evidence in the record does not support Plaintiff s subjective 6 symptom reporting. 7 who each reached the conclusion that Plaintiff was capable of working 8 with specific limitations. (AR 296, 308-309, 329, 364-368.) 9 may consider a lack of objective medical evidence as one factor in the In addition, the objective There were four independent examining physicians 10 credibility determination. 11 An ALJ See Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 12 As the Commissioner also points out, Plaintiff alleged extremely 13 serious mental disturbance, but failed to seek and follow through with 14 treatment. 15 facility in January 2009, but did not return for treatment again until 16 July of that year. (AR 16, 269-273.) Progress notes indicate that she 17 failed to keep any of her appointments. (AR 16, 270-272.) 18 pattern was repeated later in 2009 (AR 17, 383), and in 2010 she only 19 sought treatment on a few occasions. (AR 17, 370-379.) 20 were relevant in the credibility analysis. For example, she reported to the Riverside mental health This These factors 21 In sum, the Court finds that substantial evidence supports the 22 ALJ s credibility determination with regard to Plaintiff s subjective 23 complaints. 24 25 III 26 THERE IS NO DOT INCONSISTENCY BETWEEN THE ALJ S 27 DETERMINATION OF AVAILABLE WORK AND PLAINTIFF S RFC 28 In Plaintiff s third issue, she contends that the ALJ erred in 6 1 determining work that she can perform (see AR at 19-20) constitutes 2 reversible error because the three jobs identified by the vocational 3 expert 4 Plaintiff s RFC. 5 ( VE ), and adopted by the ALJ, are inconsistent with Plaintiff addresses the first job, identified in the Dictionary 6 of Occupational Titles ( DOT ) as Information Clerk. Plaintiff 7 asserts that this job requires that she do more than the simple, 8 repetitive tasks which the ALJ determined are within her RFC. (See AR 9 at 12.) Specifically, she argues that the job of Information Clerk 10 requires Reasoning Level Three skills, which are identified as part of 11 the General Educational Development ( GED ) of the job. (See DICOT 12 Appendix CC, section III.) 13 Level Three skills, which require that she be able to apply common 14 sense understanding to carry out instructions furnished in written, 15 oral, or diagramatic form. 16 concrete variables in or from standardized situations, exceed her 17 RFC. 18 that a limitation to simple, repetitive tasks is more consistent with 19 jobs that require either Reasoning Level One or Reasoning Level Two. 20 (See JS at 23.) 21 22 Thus, Plaintiff asserts that Reasoning Deal with problems involving several Plaintiff cites District Court opinions which she contends hold With regard to the second job, identified as Credit Checker, Plaintiff makes the same argument. 23 With regard to the third job, identified as Electronic Bench 24 Technician, Plaintiff asserts that this job requires that she be 25 exposed to toxic chemicals occasionally (JS at 26), which exceeds 26 her RFC, which prohibits concentrated exposure to fumes, odors, dust, 27 gases and poor ventilation. (AR 12.) 28 Plaintiff s argument that the ALJ erred in identifying these 7 1 three jobs as within her RFC because of an unexplained deviation 2 between the requirements of these jobs and Plaintiff s functional 3 abilities relies upon case law developed in the Ninth Circuit. 4 cites Pinto v. Massanari, 249 F.3d 840, 847 (9th Cir. 2001), for this 5 proposition, along with other cases. She 6 While Plaintiff correctly cites the legal standard concerning 7 deviation, her argument fails for factual reasons. In particular with 8 regard to the unskilled jobs of Information Clerk and Credit Checker 9 (see DOT §§ 237.367-046), these occupations are classified as 10 requiring Specific Vocational Preparation ( SVP ) of Two. 11 occupations are denominated as unskilled, defined in the Code of 12 Federal Regulations ( C.F.R. ) as work that needs little or no 13 judgment to do simple duties that can be learned on the job in a short 14 period of time. 15 argues, and the Court agrees, that these requirements are consistent 16 with simple, repetitive tasks. 17 occupations were unskilled work. (AR 62-63.) 18 however, focuses on the Reasoning Level which is classified under DOT 19 under the GED categories noted above. Plaintiff focuses on one of the 20 three GED categories (the three categories are reasoning, mathematics, 21 and language), which is the category of reasoning. 22 circumscribe particular mental or skill requirements of a particular 23 job but rather, describes the general educational background which 24 might make an individual capable of performing a job. 25 does not constitute a job description or a job requirement, nor does 26 it reflect particular mental demands of jobs listed in the DOT. 27 Instead, it is simply a general description of the educational level 28 which is expected of someone who is performing a particular job. See 20 C.F.R. § 416.968(a). Such The Commissioner The VE explained that each of these 8 Plaintiff s argument, The GED does not Thus, the GED In 1 this case, Plaintiff completed high school. (AR 28, 71-72.) The 2 Commissioner is permitted by regulation to utilize a claimant s 3 numerical grade level to determine educational abilities. 4 C.F.R. § 416.964(b). 5 indicate an ability in reasoning, arithmetic and language skills to 6 perform 7 416.964(b)(4). See 20 Here, Plaintiff s educational background would semi-skilled through skilled work. See 20 C.F.R. § 8 Thus, the Court cannot be limited simply to reasoning level in 9 determining whether Plaintiff has the functional ability to perform 10 the identified jobs. 11 identified jobs and the DOT requirements in this case. Indeed, as the 12 Commissioner notes, several District Court cases have concluded that 13 where an individual is limited to simple, repetitive tasks, this is 14 consistent with an ability to perform unskilled work. 15 Astrue, 2009 WL 817506, *2 (E.D. Cal., 2009). 16 Thus, there is no inconsistency between the See Angulo v. In sum, Plaintiff s RFC is not correlated to the DOT s reasoning 17 level descriptions. 18 one 19 addressing 20 development for performing a particular job. 21 measuring the a RFC and reasoning levels are different concepts, claimant s appropriate medical or limitations required level and of the other educational Brief mention may be made of the remaining job, identified as 22 Bench Technician (see DOT § 726-687-010). While Plaintiff contends 23 that this occupation would require exposure to toxic chemicals 24 occasionally, Plaintiff s RFC indicates she must avoid exposure to 25 concentrated fumes, etc. 26 inconsistency here, and thus, the Court cannot conclude that the ALJ 27 erred in that Plaintiff is capable of performing this occupation in 28 addition to the other two. It is not apparent that there is a DOT 9 1 IV 2 THE ALJ DID NOT IMPROPERLY DISCOUNT 3 LAY WITNESS TESTIMONY AND EVIDENCE 4 Plaintiff cites the hearing testimony of her friend, Diana 5 Tourney-Geisen (AR 55-61) and the Third Party Function Report - Adult 6 of Plaintiff s mother, Jeannette Sarris, and contends that the ALJ 7 improperly discounted them. She summarizes the evidence and testimony 8 of these two lay witnesses in the JS. 9 the ALJ failed to give reasons germane to each of these witnesses 10 whose testimony he rejected. (See JS at 40, citing Smolen v. Chater, 11 80 F.3d 1273, 1288-89 (9th Cir. 1996).) 12 Her legal contention is that The Court finds no merit in this argument, because the ALJ did 13 give germane reasons. 14 reasons were not consistent with the treatment record. (AR 14-15.) 15 Inconsistency with medical evidence is a valid reason to discount lay 16 witness testimony. 17 Cir. 2005). The ALJ similarly gave little weight to Plaintiff s own 18 testimony, finding 19 inconsistencies, as the Court has previously summarized. 20 21 22 23 24 For the He indicated that the statements of these See Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th symptom foregoing magnification, reasons, the Court malingering, finds no merit 27 in Plaintiff s fourth and final issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 25 26 and DATED: November 15, 2012 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 28 10
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