Jennifer M Garcia v. Michael J Astrue, No. 5:2012cv00954 - Document 18 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JENNIFER M. GARCIA, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 12-954 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On June 21, 2012, plaintiff Jennifer M. Garcia ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; June 25, 2012, Case Management Order ¶ 5. /// 1 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 August 15, 2005, plaintiff filed an application for Supplemental Security 7 Income benefits. (Administrative Record ( AR ) 12, 445). Plaintiff asserted that 8 she became disabled on May 1, 1999, due to severe post traumatic stress disorder 9 ( PTSD ), anxiety disorder, behavioral disorder, sleeping disorder and depression. 10 (AR 12, 73). The ALJ examined the medical record and held a hearing on July 17, 11 2007 at which plaintiff s attorney, but not plaintiff, appeared. (AR 12). On 12 August 24, 2007, the ALJ determined that plaintiff was not disabled through the 13 date of the decision. (AR 428-34). 14 On September 25, 2009, the Appeals Council granted review, vacated the 15 ALJ s August 24, 2007 decision, and remanded the matter for further 16 administrative proceedings. (AR 435-38). The ALJ again examined the medical 17 record and heard testimony from plaintiff (who was represented by counsel) and a 18 vocational expert on December 21, 2010. (AR 455-70). 19 On March 16, 2011, the ALJ again determined that plaintiff was not 20 disabled through the date of the decision. (AR 12-20). Specifically, the ALJ 21 found: (1) plaintiff suffered from the following severe impairments: depression 22 and new obesity with fluctuating weight (AR 15); (2) plaintiff s impairments, 23 considered singly or in combination, did not meet or medically equal a listed 24 impairment (AR 16); (3) plaintiff retained the residual functional capacity to 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia, Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006)). 2 1 perform less than a full range of light work (20 C.F.R. § 416.967(b)) 2 (AR 17); 2 (4) plaintiff was unable to perform her past relevant work (AR 19); (5) there are 3 jobs that exist in significant numbers in the national economy that plaintiff could 4 perform, specifically assembler (plastics) and cleaner (AR 19-20); and 5 (6) plaintiff s allegations regarding her limitations were not credible to the extent 6 they were inconsistent with the ALJ s residual functional capacity assessment (AR 7 18-19). 8 The Appeals Council denied plaintiff s second application for review. (AR 9 5). 10 III. APPLICABLE LEGAL STANDARDS 11 A. 12 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 13 unable to engage in any substantial gainful activity by reason of any medically 14 determinable physical or mental impairment which can be expected to result in 15 death or which has lasted or can be expected to last for a continuous period of not 16 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 17 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 18 impairment must render the claimant incapable of performing the work claimant 19 previously performed and incapable of performing any other substantial gainful 20 employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 21 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 22 /// 23 24 25 26 27 28 2 Specifically, the ALJ determined that plaintiff: (i) could lift and carry 20 pounds occasionally and 10 pounds frequently; (ii) could sit, stand, and/or walk for six hours each in an eight-hour workday; (iii) could only do simple repetitive tasks; (iv) needed to work in a lowstress environment with no more than occasional decision making or changes in the routine work setting; (v) could work around other employees but only with occasional conversations and interpersonal interactions; and (vi) could not have direct contact with the general public. (AR 17). 3 1 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 2 sequential evaluation process: 3 (1) 4 5 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 6 the claimant s ability to work? If not, the claimant is not 7 disabled. If so, proceed to step three. 8 (3) 9 Does the claimant s impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. 10 Part 404, Subpart P, Appendix 1? If so, the claimant is 11 disabled. If not, proceed to step four. 12 (4) Does the claimant possess the residual functional capacity to 13 perform claimant s past relevant work? If so, the claimant is 14 not disabled. If not, proceed to step five. 15 (5) Does the claimant s residual functional capacity, when 16 considered with the claimant s age, education, and work 17 experience, allow the claimant to adjust to other work that 18 exists in significant numbers in the national economy? If so, 19 the claimant is not disabled. If not, the claimant is disabled. 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 22 1110 (same). 23 The claimant has the burden of proof at steps one through four, and the 24 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 25 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 26 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 27 proving disability). 28 /// 4 1 B. 2 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 3 benefits only if it is not supported by substantial evidence or if it is based on legal 4 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 5 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 6 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion. Richardson v. Perales, 8 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 9 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 10 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 11 To determine whether substantial evidence supports a finding, a court must 12 consider the record as a whole, weighing both evidence that supports and 13 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 15 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 16 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 17 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 18 IV. DISCUSSION 19 A. 20 21 The ALJ Properly Evaluated the Medical Opinion Evidence 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical 22 opinions depending on the nature of the services provided. Courts distinguish 23 among the opinions of three types of physicians: those who treat the claimant 24 ( treating physicians ) and two categories of nontreating physicians, namely 25 those who examine but do not treat the claimant ( examining physicians ) and 26 those who neither examine nor treat the claimant ( nonexamining physicians ). 27 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 28 treating physician s opinion is entitled to more weight than an examining 5 1 physician s opinion, and an examining physician s opinion is entitled to more 2 weight than a nonexamining physician s opinion.3 See id. In general, the opinion 3 of a treating physician is entitled to greater weight than that of a non-treating 4 physician because the treating physician is employed to cure and has a greater 5 opportunity to know and observe the patient as an individual. Morgan v. 6 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 7 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 8 The treating physician s opinion is not, however, necessarily conclusive as 9 to either a physical condition or the ultimate issue of disability. Magallanes v. 10 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 11 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 12 contradicted by another doctor, it may be rejected only for clear and convincing 13 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 14 quotations omitted). The ALJ can reject the opinion of a treating physician in 15 favor of another conflicting medical opinion, if the ALJ makes findings setting 16 forth specific, legitimate reasons for doing so that are based on substantial 17 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 18 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 19 detailed and thorough summary of facts and conflicting clinical evidence, stating 20 his interpretation thereof, and making findings) (citations and quotations omitted); 21 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 22 reject a treating physician opinion court may draw specific and legitimate 23 inferences from ALJ s opinion). The ALJ must do more than offer his 24 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 25 26 27 28 3 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 6 1 set forth his own interpretations and explain why they, rather than the 2 [physician s], are correct. Id. Broad and vague reasons for rejecting the 3 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 4 602 (9th Cir. 1989). 5 6 2. Pertinent Facts On December 2, 2010, Dr. Marianne Soor-Melka, one of plaintiff s treating 7 psychiatrists at the San Bernardino County Department of Behavioral Health 8 ( DBH ), completed a Work Capacity Evaluation (Mental) form in which she 9 checked boxes indicating that plaintiff: (1) had slight limitations in her abilities to 10 ask simple questions or request assistance, maintain socially appropriate behavior 11 and adhere to basic standards of neatness and cleanliness, and be aware of normal 12 hazards and take appropriate precautions; (2) had moderate limitations in her 13 abilities to remember locations and work-like procedures, understand and 14 remember very short and simple instructions, carry out very short and simple 15 instructions, make simple work-related decisions, and interact appropriately with 16 the general public; (3) marked limitations in her abilities to maintain attention and 17 concentration for extended periods, perform activities within a schedule, maintain 18 regular attendance, and be punctual within customary tolerances, sustain an 19 ordinary routine without special supervision, work in coordination with or in 20 proximity to others without being distracted by them, accept instructions and 21 respond appropriately to criticism from supervisors, get along with co-workers or 22 peers without distracting them or exhibiting behavioral extremes, respond 23 appropriately to changes in the work setting, and set realistic goals or make plans 24 independently of others; and (4) would be absent from work three or more days 25 per month due to her impairments or related treatment (collectively Dr. Soor26 Melka s Opinions). (AR 380-81). 27 /// 28 /// 7 1 2 3. Analysis Plaintiff contends that a remand or reversal is warranted because the ALJ 3 failed properly to consider Dr. Soor-Melka s Opinions. (Plaintiff s Motion at 54 11). The Court disagrees. 5 First, the December 2, 2010 form Dr. Soor-Melka submitted contained only 6 check-the-box opinions. (AR 380-81). As the ALJ noted, Dr. Soor-Melka 7 provided no diagnosis for plaintiff s mental condition much less any explanation 8 of the findings which brought the treating psychiatrist to conclude that plaintiff 9 had the noted significant mental limitations. (AR 18, 380-81). Nor did Dr. Soor10 Melka provide any clinical findings (i.e., results of objective psychological testing 11 or mental status examinations) either her own or from another doctor to 12 support her opinions. (AR 18, 380-81). The ALJ properly rejected Dr. Soor13 Melka s Opinions on this basis alone. See Crane v. Shalala, 76 F.3d 251, 253 (9th 14 Cir. 1996) ( ALJ [] permissibly rejected [psychological evaluation forms] because 15 they were check-off reports that did not contain any explanation of the bases of 16 their conclusions. ); see also De Guzman v. Astrue, 343 Fed. Appx. 201, 209 (9th 17 Cir. 2009)4 (ALJ is free to reject check-off reports that d[o] not contain any 18 explanation of the bases of their conclusions. ) (citing id.); Murray v. Heckler, 19 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized 20 medical opinions over check-off reports). 21 Second, the ALJ also properly rejected Dr. Soor-Melka s Opinions because 22 they were not supported by the physician s own notes or the record as a whole. 23 See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ( The ALJ need not 24 accept the opinion of any physician, including a treating physician, if that opinion 25 is brief, conclusory, and inadequately supported by clinical findings. ) (citation 26 27 4 Courts may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. 28 See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 8 1 and internal quotation marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 2 (9th Cir. 2003) (treating physician s opinion properly rejected where treating 3 physician s treatment notes provide no basis for the functional restrictions he 4 opined should be imposed on [the claimant] ). For example, as the ALJ noted, Dr. 5 Soor-Melka s treatment notes (almost all of which are entitled Medication Visit ) 6 contain little, if any, mention of the significant mental limitations identified in Dr. 7 Soor-Melka s Opinions. In fact, as the ALJ noted, almost half of Dr. Soor8 Melka s treatment notes for plaintiff simply indicate that plaintiff failed to show 9 up for her scheduled appointments. (AR 286, 288-89, 333-34, 337, 341, 343, 34710 48, 350-51). The remainder essentially record plaintiff s subjective complaints 11 about her mental symptoms and note that Dr. Soor-Melka treated plaintiff s 12 symptoms with various prescription medications. (AR 332, 335-36, 338-40, 342, 13 344-46, 349, 352-53). None reflect that Dr. Soor-Melka conducted objective 14 testing of any kind. In fact, at the hearing plaintiff agreed that her appointments 15 with Dr. Soor-Melka were mostly [for] medication management. (AR 456). 16 Records from Dr. Inderpal Dhillon (also a DBH treating psychiatrist) do not, 17 as plaintiff suggests (Plaintiff s Motion at 8), provide any support for Dr. Soor18 Melka s Opinions. A majority of Dr. Dhillon s progress notes for plaintiff (which, 19 likewise, are entitled Medication Visit ) note only that plaintiff had missed her 20 scheduled appointments. (AR 202-04, 208, 215-17, 219-22, 224-26, 248-50, 25221 53, 256, 258-59, 263-66, 268-70, 275-77, 279-82, 285, 287, 289-91, 293, 326, 22 355-57, 359, 361-63, 365, 367-68, 371, 383-85, 387, 389, 390-92, 394, 396-98, 23 400, 402-05, 407-08, 410-12, 415-17). The remaining records simply document 24 plaintiff s subjective complaints about her mental symptoms and the medication 25 Dr. Dhillon prescribed. (AR 200-01, 205-07, 209-14, 216, 223, 247, 251, 254-55, 26 257, 261-62, 267, 274, 278, 284, 292, 294-97, 322-25, 353-54, 358, 360, 364, 366, 27 369-70, 372, 386, 388, 393, 395, 399, 401, 406, 409, 413, 418). Likewise, the 28 Medication Visit notes do not indicate that Dr. Dhillon conducted any objective 9 1 psychological testing of plaintiff. Moreover, as the ALJ noted, Dr. Dhillon s 2 records reflect that plaintiff chronically failed to comply with her prescribed 3 medication plan i.e. Dr. Dhillon described plaintiff s medication compliance as 4 poor (AR 254, 353, 369), sporadic (AR 255), and erratic (AR 284, 354, 366, 5 370)).5 Although plaintiff essentially argues that the foregoing evidence is 6 sufficient objective medical signs and laboratory findings of a longitudinal 7 nature to support Dr. Soor-Melka s Opinions (Plaintiff s Motion at 8-9), the 8 Court will not second guess the ALJ s reasonable determination that it is not. See 9 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (not district court s role to 10 second-guess ALJ s reasonable interpretation of the evidence) (citation omitted). 11 Third, the ALJ properly rejected Dr. Soor-Melka s Opinions in favor of the 12 conflicting opinions of the state-agency examining psychiatrist, Dr. Inderjit 13 Seehari (who determined that plaintiff was capable of doing simple repetitive 14 tasks ) (AR 330), and the state-agency reviewing physician, Dr. H.M. Skopec 15 (who opined that plaintiff would be able to perform non-public, simple repetitive 16 tasks) (AR 320). The opinion of Dr. Seehari was supported by the psychiatrist s 17 independent examination of plaintiff (AR 327-31), and thus, without more, 18 constituted substantial evidence upon which the ALJ could properly rely to reject 19 the treating physician s opinions. See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 20 1149 (9th Cir. 2001) (consultative examiner s opinion on its own constituted 21 substantial evidence, because it rested on independent examination of claimant); 22 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). Dr. Skopec s opinion 23 also constituted substantial evidence supporting the ALJ s decision since it was 24 25 26 27 28 5 Plaintiff complains that the ALJ misstated the type of medications she was prescribed. (Plaintiff s Motion at 9). To the extent the ALJ erred in this respect, the Court finds any such error to be harmless. Here, what the ALJ found significant was plaintiff s non-compliance, irrespective of the type of medication prescribed. See Molina, 674 F.3d at 1115 (ALJ s misstatement of facts considered harmless if the error was inconsequential to the ultimate nondisability determination ) (citations and internal quotation marks omitted). 10 1 supported by the other medical evidence in the record as well as Dr. Seehari s 2 opinion and underlying independent examination. See Tonapetyan, 242 F.3d at 3 1149 (holding that opinions of nontreating or nonexamining doctors may serve as 4 substantial evidence when consistent with independent clinical findings or other 5 evidence in the record); Andrews, 53 F.3d at 1041 ( reports of the nonexamining 6 advisor need not be discounted and may serve as substantial evidence when they 7 are supported by other evidence in the record and are consistent with it ). 8 Finally, contrary to plaintiff s contention, the ALJ did not fail in his duty to 9 develop the record because he did not recontact Dr. Soor-Melka to obtain 10 clarification and/or additional evidence. (Plaintiff s Motion at 9-10). Although 11 plaintiff bears the burden of proving disability, the ALJ has an affirmative duty to 12 assist a claimant in developing the record when there is ambiguous evidence or 13 when the record is inadequate to allow for proper evaluation of the evidence. 14 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation omitted); 15 Bustamante, 262 F.3d at 954; see also Webb v. Barnhart, 433 F.3d 683, 687 (9th 16 Cir. 2005) (ALJ has special duty fully and fairly to develop record and to assure 17 that claimant s interests are considered). Here, Dr. Soor-Melka s December 2 18 report contained nothing more than check-box opinions without any explanation 19 of the bases for the opinions. The ALJ had no obligation to recontact Dr. Soor20 Melka before rejecting the report. See De Guzman, 343 Fed. Appx. at 209 (ALJ 21 has no obligation to recontact physician to determine the basis for opinions 22 expressed in check-off reports that d[o] not contain any explanation of the bases 23 of their conclusions. ) (citation and internal quotation marks omitted). Even so, 24 the ALJ did not find that the record as a whole was ambiguous or inadequate to 25 permit a determination of plaintiff s disability. To the contrary, the ALJ properly 26 relied on the opinions of Drs. Seehari and Skopec which, as noted above, 27 constituted substantial evidence that Plaintiff was not disabled. Therefore, even 28 assuming Dr. Soor-Melka s Opinion was itself inadequate to allow the ALJ to 11 1 determine the basis therefor, the ALJ did not err in failing to seek clarification. 2 See Bayliss, 427 F.3d at 1217 (no duty to recontact where other evidence in record 3 is adequate for ALJ to reach a disability determination). 4 Accordingly, a remand or reversal on this basis is not warranted. 5 B. 6 7 The ALJ Properly Evaluated Plaintiff s Residual Functional Capacity Plaintiff contends that the ALJ failed properly to assess his residual 8 functional capacity, in essence, because the ALJ failed to account for the 9 significant mental limitations expressed in Dr. Soor-Melka s Opinions. 10 (Plaintiff s Motion at 11-13). As noted above, however, the ALJ properly rejected 11 such opinions for clear and convincing reasons. Moreover, as also indicated 12 above, the ALJ s assessment that plaintiff retained the mental residual functional 13 capacity to do work that involved simple repetitive tasks with no direct contact 14 with the general public (AR 17) is supported by substantial evidence (i.e., the 15 opinions of Dr. Seehari and Dr. Skopec that plaintiff could do work involving 16 simple repetitive tasks ) (AR 320, 330). 17 Accordingly, a remand or reversal on this basis is not warranted. 18 V. CONCLUSION 19 For the foregoing reasons, the decision of the Commissioner of Social 20 Security is affirmed. 21 LET JUDGMENT BE ENTERED ACCORDINGLY. 22 DATED: October 29, 2012 23 24 25 26 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 27 28 12

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