Thomas Resendez v. Carolyn W. Colvin, No. 5:2016cv02663 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (see document for details). (dro)
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Thomas Resendez v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 THOMAS RESENDEZ, 12 Plaintiff, 13 14 15 v. Case No. ED CV 16-02663-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 Thomas Resendez (“Plaintiff”) appeals the Commissioner’s final 19 20 decision denying his applications for Social Security Disability Insurance 21 Benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons 22 discussed below, the Commissioner’s decision is affirmed and this matter is 23 dismissed with prejudice. 24 /// 25 /// 26 27 28 1 On January 23, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as defendant under Federal Rule of Civil Procedure 25(d). Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff filed applications for DIB and SSI alleging disability beginning 4 on October 30, 2010. See Administrative Record (“AR”) 100, 228-36. After his 5 applications were denied at both the initial and reconsideration levels, he 6 requested and received a hearing before an administrative law judge (“ALJ”), 7 who issued an unfavorable decision in April 2013 finding Plaintiff not 8 disabled. See AR 97-109. After the decision became final, Plaintiff re-applied 9 for DIB and SSI alleging disability beginning on October 30, 2010. See AR 10 228-34. His re-applications were denied both initially and upon reconsideration 11 in 2014. See AR 114-31,134-55. Plaintiff requested another hearing, which 12 took place on June 17, 2015. See AR 77-96. A new ALJ heard testimony from 13 a vocational expert (“VE”), a psychological expert (“PE”), and Plaintiff, who 14 was represented by counsel. See AR 77. 15 On August 4, 2015, the ALJ denied Plaintiff’s re-applications. See AR 16 20-35. She found that there was a change in circumstance because Plaintiff 17 alleged increased severity of his impairments since the previous ALJ’s 18 determination. See AR 23. The ALJ thus found that there was no presumption 19 of continuing non-disability under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 20 1988). See AR 23-24. 21 The ALJ found that Plaintiff had the severe impairments of depression 22 and an anxiety disorder. See AR 26. However, she found that Plaintiff’s 23 impairments did not meet or medically equal the severity of a listed 24 impairment. See id. The ALJ noted that Plaintiff had mild restrictions in 25 activities of daily living and social functioning, moderate restrictions in 26 maintaining concentration, persistence, or pace, and no episodes of 27 decompensation. See AR 26-27. The ALJ found that Plaintiff retained the 28 residual functional capacity (“RFC”) to perform a full range of work at all 2 1 exertional levels but with the following nonexertional limitations: 2 [Plaintiff] is precluded from working around dangerous fast- 3 moving machinery or driving automotive equipment on the job; he 4 can perform moderately complex tasks, with [a Specific Vocational 5 Preparation] of 3 to 4, in a habituated work setting and involving 6 no hypervigilance; he should not be in charge of the safety of 7 others; he can have occasional contact with supervisors and co- 8 workers and brief, superficial contact with the public; he cannot 9 have intense interpersonal action such as taking complaints or 10 encounters similar to those experienced by law enforcement or 11 emergency personnel; he requires an object-oriented environment; 12 and he should not supervise others or be subjected to intrusive 13 supervision. 14 AR 27. The ALJ found that Plaintiff could perform his past relevant work as a 15 stores laborer and thus was not disabled. See AR 30. The Appeals Council denied review of the ALJ’s decision, which 16 17 became the final decision of the Commissioner. See AR 1-9. Plaintiff then 18 sought review in this Court. See Dkt. 1. 19 II. 20 DISCUSSION 21 Plaintiff argues that the ALJ improperly discounted the opinion of 22 Plaintiff’s treating psychiatrist and improperly discounted Plaintiff’s symptom 23 testimony. See Joint Stipulation (“JS”) at 2. 24 A. Discounting the Treating Psychiatrist’s Opinion 25 1. Applicable Law 26 Three types of physicians may offer opinions in Social Security cases: 27 those who treated the plaintiff, those who examined but did not treat the 28 plaintiff, and those who did neither. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 3 1 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996). 2 A treating physician’s opinion is generally entitled to more weight than that of 3 an examining physician, which is generally entitled to more weight than that of 4 a nonexamining physician. Lester, 81 F.3d at 830. When a treating physician’s 5 opinion is uncontroverted by another doctor, it may be rejected only for “clear 6 and convincing reasons.” See Carmickle v. Comm’r, Soc. Sec. Admin., 533 7 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). Where such 8 an opinion is contradicted, the ALJ must provide only “specific and legitimate 9 reasons” for discounting it. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 10 2014) (citation omitted). Moreover, “[t]he ALJ need not accept the opinion of 11 any physician, including a treating physician, if that opinion is brief, 12 conclusory, and inadequately supported by clinical findings.” Thomas v. 13 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 14 F.3d 1144, 1149 (9th Cir. 2001). The weight accorded to a physician’s opinion 15 depends on whether it is consistent with the record and accompanied by 16 adequate explanation, the nature and extent of the treatment relationship, and 17 the doctor’s specialty, among other things. See 20 C.F.R. §§ 404.1527(c)(2)-(6), 18 416.927(c)(2)-(6). 19 2. Relevant Facts 20 Dr. Hassan Mahfoozi began treating Plaintiff for depression and anxiety 21 as early as September 15, 2011. See AR 313, 327. Records from nearly every 22 visit note that Plaintiff is depressed and anxious, complies with the prescribed 23 medications for depression and anxiety, and is “[t]olerating medication well 24 without side effects or allergy.” See, e.g., AR 313-16, 318-22, 324, 326, 329-31, 25 335, 337. The only exception was on January 23, 2014, when Dr. Mahfoozi 26 checked boxes next to both “compliant” and “non-compliant” with treatment 27 plan without further explanation. AR 354. 28 Dr. Mahfoozi completed two medical source statements regarding 4 1 Plaintiff’s ability to do work-related activities. The topics included Plaintiff’s 2 ability to carry out instructions, maintain concentration, interact appropriately 3 with coworkers and the public, set realistic goals, and maintain social 4 functioning. See AR 356-59. He checked boxes for the most severe 5 limitations—where Plaintiff’s disorders preclude performance for more than 6 15% of each activity of an eight-hour workday—for 15 of the 20 categories, 7 and checked boxes for the second-most severe limitations—indicating that 8 Plaintiff’s disorders precluded performance for 10% of an eight-hour 9 workday—for the remaining 5 categories. See id. Without using the 10 checkboxes provided regarding the amount of time that Plaintiff would be 11 absent from work, Dr. Mahfoozi wrote that “[h]e is unable to work.” AR 359. 12 He noted Plaintiff’s depression and anxiety, the lack of side effects from 13 medication, and Plaintiff’s ability to sit for 45 minutes at a time and stand for 14 30 minutes at a time. See AR 373-76. 15 The ALJ gave “little weight” to Dr. Mahfoozi’s assessment of Plaintiff’s 16 limitations because his treatment records reflected conservative treatment 17 consisting primarily of medication management, which Plaintiff tolerated 18 without side effects. AR 29. The ALJ gave no weight to Dr. Mahfoozi’s 19 conclusion that Plaintiff was unable to work due to his mental impairments 20 because it was an opinion on an issue reserved to the Commissioner. See id. 21 The ALJ gave little weight to Dr. Mahfoozi’s global assessment of functioning 22 (“GAF”) score of 49 due to the conservative nature of Plaintiff’s treatment and 23 because GAF scores are subjectively assessed, reveal only snapshots of 24 impaired behavior, and do not address function-by-function capacity or 25 limitations. See id. 26 The ALJ also considered the opinions of two non-examining state- 27 agency psychological consultants. She gave “little weight” to one non- 28 examining physician’s opinion that Plaintiff’s mental impairment was non5 1 severe because that physician did not have the opportunity to consider the 2 most recent treatment records. See AR 29. The ALJ assigned “some weight” to 3 a second non-examining physician’s opinion that adopted the RFC from the 4 ALJ’s prior decision, noting that this second non-examining physician did not 5 have Dr. Mahfoozi’s more recent treatment records that supported additional 6 limitations. See id. 7 3. 8 As an initial matter, Dr. Mahfoozi’s broad conclusion that Plaintiff was 9 Analysis precluded from all work is an opinion on an issue that is reserved for the 10 Commissioner. See 20 C.F.R. §§ 404.1527 (d)(1)-(2), 416.927(d)(1)-(2); SSR 11 96-5p, 1996 WL 374183, at *2 (July 2, 1996). As such, this portion of Dr. 12 Mahfoozi’s opinion was not binding on the ALJ. See Ukolov v. Barnhart, 420 13 F.3d 1002, 1004 (9th Cir. 2005) (“Although a treating physician’s opinion is 14 generally afforded the greatest weight in disability cases, it is not binding on an 15 ALJ with respect to the existence of an impairment or the ultimate 16 determination of disability.” (citation omitted)). 17 As noted above, the ALJ discounted Dr. Mahfoozi’s GAF score of 49 18 because GAF scores are subjectively assessed, provide only snapshots of a 19 claimant’s behavior, and do not address functional capacity or limitations.2 20 These are specific and legitimate reasons for discounting GAF scores. See 21 Chavez v. Astrue, 699 F. Supp. 2d 1125, 1135 (C.D. Cal. 2009) (finding that 22 the unreliability of GAF scores is a specific and legitimate reason to reject the 23 24 25 26 27 28 2 Clinicians use a GAF score to indicate an individual’s overall level of functioning. A GAF score of 41-50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 598 n.1 (9th Cir. 1999). 6 1 2 scores). The ALJ documented a conflict between Dr. Mahfoozi’s conservative 3 treatment records and the severe functional limitations listed in his medical 4 source statement. As the ALJ noted, Plaintiff visited Dr. Mahfoozi for only 5 medication management. See AR 29. During those examinations, Dr. 6 Mahfoozi did not generally record objective findings that suggested significant 7 impairments in concentration, thought process and content, dangerousness, or 8 motor difficulties. See, e.g., AR 316, 327, 347. Moreover, he repeatedly noted 9 that Plaintiff was compliant with medication and could tolerate his medication 10 without any side effects. See, e.g., AR 313-16, 318-22, 324, 326, 329-31, 335, 11 337. Yet his medical source statement noted maximum limitations for the vast 12 majority of work-related activities. See AR 369-70. Dr. Mahfoozi’s mild 13 clinical findings fail to support his opinion that Plaintiff was so disabled that he 14 would be fully incapable of working and severely limited in all work 15 categories. Such a conflict constitutes a specific and legitimate reason for 16 rejecting his opinion. See Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 17 685, 692-93 (9th Cir. 2009) (finding contradiction between treating physician’s 18 opinion and his treatment notes constitutes specific and legitimate reason for 19 rejecting treating physician’s opinion); Connett v. Barnhart, 340 F.3d 871, 875 20 (9th Cir. 2003) (finding ALJ properly rejected treating physician’s opinion 21 where treatment notes “provide[d] no basis for the functional restrictions he 22 opined should be imposed on [plaintiff]”); see also Garrison, 759 F.3d at 1012. 23 Although Plaintiff argues that “it is unclear from the record what other 24 types of treatment would be appropriate for a psychiatrist to prescribe” beyond 25 medication management, JS at 4, Dr. Mahfoozi’s own forms suggest referrals 26 for lab work to test hormone levels or psychotherapy. See, e.g., AR 318-19, 27 327. Yet only once in over 24 sessions did Dr. Mahfoozi suggest individual 28 psychotherapy for Plaintiff. See AR 351. Moreover, nothing in the record 7 1 shows that Plaintiff attended any such psychotherapy, suggesting that he, too, 2 found his disorders non-debilitating when treated with medication. Plaintiff 3 argues that the ALJ fully rejected Dr. Mahfoozi’s findings despite the fact that 4 she found that Dr. Mahfoozi’s progress notes detail significant mental health 5 limitations. See JS at 4. Such an argument is meritless. The ALJ credited Dr. 6 Mahfoozi’s clinical findings and incorporated many of them into Plaintiff’s 7 RFC. See AR 27. The ALJ discredited only his more extreme opinions about 8 Plaintiff’s functional limitations. And while Plaintiff claims that the ALJ 9 “failed to provide any other reason to dismiss Dr. Mahfoozi’s opinion,” JS at 10 5, the ALJ specified that she discredited aspects of Dr. Mahfoozi’s opinions 11 because (1) he opined on issues reserved for the Commissioner, (2) GAF scores 12 are subjectively assessed and are of limited evidentiary value, and (3) his 13 conservative treatment records were inconsistent with his opinions of 14 debilitating mental health limitations. See AR 29. 15 The ALJ’s reasons for giving the treating psychiatrist’s opinion little 16 weight were specific and legitimate. Moreover, Dr. Mahfoozi’s check-box 17 opinions about Plaintiff’s functional limitations were “brief, conclusory, and 18 inadequately supported by clinical findings”; as such, the ALJ had the 19 discretion to give them little weight. See Thomas, 278 F.3d at 957 (finding that 20 ALJ need not accept treating physician’s opinion that is “inadequately 21 supported by clinical findings”). Remand is not warranted on this ground. 22 B. 23 24 Discounting Plaintiff’s Testimony Plaintiff argues that the ALJ improperly discredited his testimony as to his symptoms and functional limitations. See JS at 10. 25 1. Applicable Law 26 In order to determine whether a plaintiff’s testimony about subjective 27 symptoms is credible, an ALJ must engage in a specific two-step analysis. See 28 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Lingenfelter v. 8 1 Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007)). First, the ALJ must determine 2 whether the plaintiff has presented objective medical evidence of an underlying 3 impairment that could reasonably be expected to produce the alleged pain or 4 other symptoms. See Lingenfelter, 504 F.3d at 1036. If the plaintiff meets the first step and there is no affirmative evidence of 5 6 malingering, the ALJ must provide specific, clear and convincing reasons for 7 discrediting the plaintiff’s complaints. See Robbins v. Soc. Sec. Admin, 466 8 F.3d 880, 883 (9th Cir. 2006). “General findings are insufficient; rather, the 9 ALJ must identify what testimony is not credible and what evidence 10 undermines the [plaintiff’s] complaints.” Brown–Hunter v. Colvin, 806 F.3d 11 487, 493 (9th Cir. 2015) (as amended) (citation omitted). The ALJ may 12 consider, among other factors, a plaintiff’s reputation for truthfulness, 13 inconsistencies either in his testimony or between his testimony and his 14 conduct, unexplained or inadequately explained failures to seek treatment or to 15 follow a prescribed course of treatment, his work record, and his daily 16 activities. See Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (as 17 amended); Smolen v. Chater, 80 F.3d at 1283-84, 1284 n.8. If the ALJ’s 18 credibility finding is supported by substantial evidence in the record, the 19 reviewing court “may not engage in second[ ]guessing.” Thomas, 278 F.3d at 20 959. 21 2. Relevant Facts 22 Plaintiff testified that he was unable to work due to anxiety, 23 forgetfulness, and difficulty concentrating, following instructions, and 24 completing tasks. See, e.g., AR 83-84, 86-88, 92. He also asserted that while 25 his medications helped with his symptoms, they made him drowsy. See AR 84- 26 86. Plaintiff testified that he no longer drove much and that his daughter, who 27 lived nearby, usually drove him wherever he had to go. See AR 86. His 28 disability reports and function reports were generally consistent with his 9 1 testimony. See, e.g., AR 254-67 (Plaintiff’s self-reported function report), 268- 2 76 (third party function report), 281-82 (disability report), 283-87 (disability 3 report appeal). 4 The ALJ found that Plaintiff’s statements about the intensity, persistence 5 and limiting effects of these symptoms were not fully credible because they 6 were not supported by the objective medical evidence. See AR 28. The ALJ 7 also noted that “[c]ontrary to [Plaintiff’s] allegations of medication-induced 8 fatigue, Dr. Mahfoozi’s records do not document any medication side effects.” 9 AR 29. 10 3. 11 The ALJ offered at least two specific, clear and convincing reasons for 12 13 Analysis discrediting Plaintiff’s symptom testimony. First, Plaintiff’s allegations regarding medication side effects conflicted 14 with the medical record. See AR 28. At his hearing, Plaintiff noted that his 15 medication helped him “function on a daily basis without having . . . anger 16 issues . . . but they make me real tired, real drowsy.” AR 86. In describing his 17 typical day, Plaintiff said he would wake up, take his medication, eat breakfast, 18 then “I’ll start feeling a little tired so I’ll watch some TV, and then I’ll lay down 19 and I’ll take a nap, maybe two or three hours, and then I’ll get back up.” AR 20 91. He stated that if he spent the day around too many people, “I start getting a 21 little bit of anxiety, so I start to take my pills, so I’ll start getting tired” such 22 that he would need to go back home. AR 92. In contrast, Dr. Mahfoozi noted 23 on at least 31 separate occasions that Plaintiff had no negative side effects from 24 his medication. The ALJ validly considered that Plaintiff discussed during the 25 hearing a side effect that he did not mention once to his psychiatrist over the 26 course of 31 appointments and several years. It was appropriate to consider 27 Plaintiff’s inconsistent statements regarding medication side effects when 28 making her credibility findings, as Plaintiff’s failure to tell his physicians about 10 1 2 those side effects undermines his complaints. Second, the ALJ considered the objective medical evidence in assessing 3 Plaintiff’s credibility. See AR 29. Plaintiff set forth many symptoms and 4 included records and an opinion from Dr. Mahfoozi that allegedly supported 5 his subjective symptom testimony. See JS at 10. But the record shows that the 6 ALJ thoroughly considered the objective medical evidence from Dr. Mahfoozi 7 in concluding that Plaintiff’s subjective symptom testimony was not credible. 8 See AR 28-29; see also supra Section II.A. In considering the objective record 9 and explaining why she had discounted the opinion findings of Dr. Mahfoozi, 10 the ALJ gave clear and convincing reasons supported by substantial evidence 11 when she concluded that Plaintiff’s statements concerning the intensity, 12 persistence, and limiting effects of his symptoms were not credible. Just as with 13 Dr. Mahfoozi’s opinions regarding the effect of Plaintiff’s limitations, 14 Plaintiff’s testimony cannot be easily reconciled with his psychiatrist’s 15 conservative treatment over many years. See Osenbrock v. Apfel, 240 F.3d 16 1157, 1166 (9th Cir. 2001) (holding that ALJ permissibly discredited claimant’s 17 subjective complaints where objective evidence did not corroborate severity of 18 alleged symptoms). 19 On appellate review, the Court does not reweigh the hearing evidence 20 regarding Plaintiff’s credibility. Rather, this Court is limited to determining 21 whether the ALJ properly identified clear and convincing reasons for 22 discrediting Plaintiff’s credibility, which the ALJ did in this case. See Smolen, 23 80 F.3d at 1284. It is the ALJ’s responsibility to determine credibility and 24 resolve conflicts or ambiguities in the evidence. See Magallanes v. Bowen, 881 25 F.2d 747, 750 (9th Cir. 1989). If the ALJ’s findings are supported by 26 substantial evidence, as here, this Court may not engage in second-guessing. 27 See Thomas, 278 F.3d at 959 (9th Cir. 2002); Fair v. Bowen, 885 F.2d 597, 604 28 (9th Cir. 1989). As both the inconsistent testimony and objective medical 11 1 evidence affected Plaintiff’s credibility, they constitute clear and convincing 2 reasons for discounting Plaintiff’s testimony regarding his symptoms and 3 functionality. Reversal is therefore not warranted on this basis. 4 III. 5 CONCLUSION 6 7 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 8 9 Dated: March 20, 2018 __________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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