Juan Marcos Acevedo-Rodriguez v. Carolyn W. Colvin, No. 8:2013cv00235 - Document 18 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JUAN MARCOS ACEVEDO-RODRIGUEZ, ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING ) COMMISSIONER OF SOCIAL SECURITY,1 ) ) Defendant. ) ___________________________________) NO. SA CV 13-235-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on February 13, 2013, seeking review 21 of the Commissioner s denial of benefits. The parties filed a consent 22 to proceed before a United States Magistrate Judge on March 12, 2013. 23 /// 24 /// 25 26 27 28 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security as of February 14, 2013, is hereby substituted as Defendant in this matter. See Fed. R. Civ. P. 25(d)(1); 42 U.S.C. § 405(g). 1 Plaintiff filed a motion for summary judgment on August 14, 2013. 2 Defendant filed a motion for summary judgment on September 10, 2013. 3 The Court has taken both motions under submission without oral 4 argument. See L.R. 7-15; Order, filed February 19, 2013. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 7 8 9 Plaintiff asserted disability since May 14, 2007, based on a variety of alleged physical and mental impairments (Administrative 10 Record ( A.R. ) 54-60, 146-63, 173, 960-66). The Administrative Law 11 Judge ( ALJ ) examined the voluminous record and heard testimony from 12 Plaintiff, a medical expert and a vocational expert (A.R. 18-254, 263- 13 1552). 14 15 The ALJ found Plaintiff has certain severe physical and mental 16 impairments, but retains the residual functional capacity to perform a 17 limited range of light work (A.R. 23, 25). 18 of the vocational expert, the ALJ found that Plaintiff could perform 19 particular jobs existing in significant numbers in the national 20 economy (A.R. 29-30, 61-62). 21 Plaintiff s testimony regarding the severity of his subjective 22 symptoms (A.R. 25-28). 23 treating physician, Dr. Nina Trinh, who had opined Plaintiff could not 24 perform even sedentary work (A.R. 27). 25 additional evidence, but denied review (A.R. 1-4, 255-62, 1553-1617). 26 /// 27 /// 28 /// Relying on the testimony The ALJ deemed not fully credible The ALJ rejected the opinions of 2 Plaintiff s The Appeals Council considered 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration s decision to determine if: (1) the Administration s 5 findings are supported by substantial evidence; and (2) the 6 Administration used proper legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007). 9 relevant evidence as a reasonable mind might accept as adequate to See Carmickle v. Substantial evidence is such 10 support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 11 (1971) (citation and quotations omitted); Widmark v. Barnhart, 454 12 F.3d 1063, 1067 (9th Cir. 2006). 13 14 Where, as here, the Appeals Council considered additional 15 material but denied review, the additional material becomes part of 16 the Administrative Record for purposes of the Court s analysis. 17 Brewes v. Commissioner, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen 18 the Appeals Council considers new evidence in deciding whether to 19 review a decision of the ALJ, that evidence becomes part of the 20 administrative record, which the district court must consider when 21 reviewing the Commissioner s final decision for substantial 22 evidence. ; expressly adopting Ramirez v. Shalala, 8 F.3d 1449, 1452 23 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 1228, 1231 (2011) 24 (courts may consider evidence presented for the first time to the 25 Appeals Council to determine whether, in light of the record as a 26 whole, the ALJ s decision was supported by substantial evidence and 27 was free of legal error ); Penny v. Sullivan, 2 F.3d 953, 957 n.7 (9th 28 Cir. 1993) ( the Appeals Council considered this information and it 3 See 1 became part of the record we are required to review as a whole ); see 2 generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 3 4 DISCUSSION 5 6 After consideration of the record as a whole, Defendant s motion 7 is granted and Plaintiff s motion is denied. 8 findings are supported by substantial evidence and are free from 9 material2 legal error. 10 The Administration s Plaintiff s contrary arguments are unavailing.3 11 12 I. 13 Substantial Evidence Supports the ALJ s Residual Functional Capacity Determination. 14 15 Substantial medical evidence supports the ALJ s determination 16 that Plaintiff can perform a limited range of light work. Dr. Ursula 17 Taylor, a consultative examining internist, opined Plaintiff retains a 18 physical capacity consistent with the ALJ s conclusions (A.R. 1082- 19 87). 20 Plaintiff retains a mental capacity consistent with the ALJ s 21 conclusions (A.R. 1096-99). 22 substantial evidence supporting the ALJ s residual functional capacity Dr. Ernest Bagner, a consultative examining psychiatrist, opined These doctors opinions constitute 23 24 25 26 27 28 2 The harmless error rule applies to the review of administrative decisions regarding disability. See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 3 The Court has considered all of Plaintiff s arguments and has found those arguments unpersuasive. The Court discusses Plaintiff s principal arguments herein. 4 1 determination. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 2 Cir. 2001) (consultative examiner s opinion is substantial evidence 3 that can support an ALJ s finding of nondisability); see also Orn v. 4 Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (examining physician s 5 independent clinical findings are substantial evidence). 6 7 The opinions of non-examining State agency physicians provide 8 further support for the ALJ s determination. See Tonapetyan v. 9 Halter, 242 F.3d at 1149 (non-examining physician s opinion may 10 constitute substantial evidence when opinion is consistent with 11 independent evidence of record); Lester v. Chater, 81 F.3d 821, 831 12 (9th Cir. 1995) (same). 13 retains a residual functional capacity at least as great as the 14 capacity the ALJ found to exist (A.R. 1089-93, 1100-17). State agency physicians opined Plaintiff 15 16 Additionally, the medical expert, Dr. Goldhamer, gave testimony 17 at the administrative hearing consistent with the residual functional 18 capacity the ALJ found to exist (A.R. 50-51). 19 opinions of non-examining experts do not contradict all other 20 evidence in the record, the Administration properly may rely on such 21 opinions. 22 Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1990). Where, as here, the See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); 23 24 The record contains conflicting medical evidence, but it was the 25 prerogative of the ALJ to resolve the conflicts. See Lewis v. Apfel, 26 236 F.3d 503, 509 (9th Cir. 2001). 27 susceptible to more than one rational interpretation, the Court must 28 uphold the administrative decision. Where, as here, the evidence is 5 See Andrews v. Shalala, 53 F.3d 1 at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). 3 4 5 II. The ALJ Did Not Materially Err in Evaluating Plaintiff s Credibility. 6 7 Although Plaintiff testified to subjective symptoms of allegedly 8 disabling severity, the ALJ found this testimony less than fully 9 credible (A.R. 26-28, 55-60). 10 Contrary to Plaintiff s arguments, the ALJ did not thereby materially err. 11 12 An ALJ s assessment of a claimant s credibility is entitled to 13 great weight. Anderson v. Sullivan, 914 F.2d 1121, 1124 (9th Cir. 14 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1985). 15 discounting of a claimant s testimony regarding subjective symptoms 16 must be supported by specific, cogent findings. 17 81 F.3d at 834; see also Berry v. Astrue, 622 F.3d 1228, 1234 (9th 18 Cir. 2010) (reaffirming same); but see Smolen v. Chater, 80 F.3d 1273, 19 1282-84 (9th Cir. 1996) (indicating that ALJ must offer specific, 20 clear and convincing reasons to reject a claimant s testimony where 21 there is no evidence of malingering).4 The See Lester v. Chater, As discussed below, the ALJ 22 23 24 25 26 27 28 4 In the absence of an ALJ s reliance on evidence of malingering, most recent Ninth Circuit cases have applied the clear and convincing standard. See, e.g., Chaudhry v. Astrue, 688 F.3d 661, 670, 672 n.10 (9th Cir. 2012); Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012); Taylor v. Commissioner, 659 F.3d at 1234; see also Ballard v. Apfel, 2000 WL 1899797, at *2 n.1 (C.D. Cal. Dec. 19, 2000) (collecting earlier cases). In the present case, the ALJ s findings are sufficient under either standard, so the distinction between the two standards (if any) (continued...) 6 1 stated sufficient reasons for deeming Plaintiff s testimony less than 2 fully credible. 3 4 The ALJ properly reasoned that the objective medical evidence did 5 not support a level of physical or mental symptomatology that would 6 prevent Plaintiff from working (A.R. 26-28). 7 credibility cannot be rejected on the sole ground that it is not 8 fully corroborated by objective medical evidence, the medical evidence 9 is still a relevant factor. . . . Although a claimant s Rollins v. Massanari, 261 F.3d 10 853, 857 (9th Cir. 2001). Here, the medical evidence suggests 11 Plaintiff s mental and physical problems have not been, and are not 12 now, as profound as he has claimed (A.R. 266-434, 438-801, 803-05, 13 807-958, 969-1087, 1096-99, 1119-1195, 1199-1404, 1406-73, 1475, 1477- 14 78, 1480-1546, 1548-52, 1556-1603). 15 16 The ALJ also properly cited direct evidence of Plaintiff s 17 exaggeration of his symptoms (A.R. 28). According to Dr. Taylor, 18 Plaintiff ambulated with mild antalgia into the room but thereafter 19 claimed he could not get out of the chair, could not cooperate with 20 the examination, and could not even walk back out of the room without 21 being partially carried (A.R. 1084-87). 22 concluded that there appears to be great exaggeration of symptoms 23 /// 24 /// 25 /// Dr. Taylor reasonably 26 27 28 4 (...continued) is academic. The Court observes, however, that the ALJ did cite evidence of Plaintiff s malingering (A.R. 28, 1084-87). 7 1 (A.R. 1086).5 2 furnish an adequate reason for rejecting the claimant s credibility. 3 See, e.g., Tonapetyan v. Halter, 242 F.3d at 1148; Bickell v. Astrue, 4 343 Fed. App x 275, 277-78 (9th Cir. 2009); see also Copeland v. 5 Bowen, 861 F.2d 536, 541 (9th Cir. 1988) (disparity between a 6 claimant s representations and the observations of an examiner 7 properly may impeach a claimant s credibility). A claimant s demonstrated tendency to exaggerate can 8 9 In evaluating Plaintiff s credibility, the ALJ also stated: 10 11 The claimant testified that he dropped things and as a 12 result was unable to do household chores, but these 13 assertions are inconsistent with his statements noted above 14 as to being able to engage in household chores. 15 claimant claims grogginess from his medications, although he 16 testified that he walks his dog, takes his daughter to 17 school and does exercises for his knees, hands and wrists. 18 It seems unlikely that an individual with a degree of pain, 19 grogginess and dysfunction as alleged by the claimant would 20 have the motivation, stamina, alertness etc., of doing these 21 types of activities. The 22 23 (A.R. 28). 24 /// 25 26 27 28 5 knee 12). fails could Plaintiff asserts he was having a bad day with his when he went to Dr. Taylor s office (Plaintiff s Motion at This assertion, which the ALJ was not obligated to credit, to explain why Plaintiff could walk into, but supposedly not walk out of, the same office on the same day. 8 1 Inconsistences between a claimant s testimony and his or her 2 actions can support the rejection of the claimant s credibility. See, 3 e.g., Molina v. Astrue, 674 F.3d at 1112; Thomas v. Barnhart, 278 F.3d 4 at 958-59; Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999).6 5 6 Thus, the ALJ stated sufficient reasons to allow this Court to 7 conclude that the ALJ discounted Plaintiff s credibility on 8 permissible grounds. 9 Cir. 2004). See Moisa v. Barnhart, 367 F.3d 882, 885 (9th The Court therefore defers to the ALJ s credibility 10 determination. See Lasich v. Astrue, 252 Fed. App x 823, 825 (9th 11 Cir. 2007) (court will defer to ALJ s credibility determination when 12 the proper process is used and proper reasons for the decision are 13 provided); accord Flaten v. Secretary of Health & Human Services, 44 14 F.3d 1453, 1464 (9th Cir. 1995). 15 16 III. The ALJ Did Not Err in Rejecting the Opinions of Dr. Trinh. 17 18 19 An ALJ must provide specific, legitimate reasons based on substantial evidence in the record for rejecting a treating 20 21 22 23 24 25 26 27 28 6 Plaintiff s testimony concerning a purported inability to perform housework because of dropping things from his hands is not entirely clear, but does seem arguably inconsistent with Plaintiff s unqualified report to a consultative examiner that Plaintiff performs housework (compare A.R. 56 with A.R. 1097). Assuming arguendo, however, that the ALJ s partial reliance on this consideration was improper, the ALJ s credibility determination nevertheless would stand. Under Carmickle v. Commissioner, 533 F.3d 1155, 1163 (9th Cir. 2008), the infirmity of one or two supporting reasons for an ALJ s credibility determination does not require overturning the determination if independently valid supporting reasons remain. Independently valid supporting reasons remain in the present case. 9 1 physician s contradicted opinion. See Valentine v. Commissioner, 574 2 F.3d 685, 692 (9th Cir. 2009); Orn v. Astrue, 495 F.3d at 631-33. 3 Contrary to Plaintiff s arguments, the ALJ stated sufficient specific, 4 legitimate reasons for rejecting the contradicted opinions of Dr. 5 Trinh. 6 7 The ALJ stated: 8 9 Dr. Trinh went on to assess restrictions below an even 10 sedentary functional capacity . . . and elsewhere in the 11 record, requested that [Plaintiff] be placed on disability 12 partly on the basis of fibromyalgia,[7] and symptoms which 13 include cognitive deficits, fatigue, diffuse joint pain. 14 . . . 15 are not explained by the treatment notes which for the most 16 part are notable for primary subjective tenderness and 17 decreased sensation. 18 not noted on the examination of Dr. Bagner . . . nor are any 19 noted within the records of Dr. Trinh except for claimant s 20 subjective allegations. The assessed restrictions from a physical standpoint Significant cognitive deficits were 21 22 (A.R. 27) (footnoted added). 23 24 Thus, the ALJ rejected Dr. Trinh s opinions because, inter alia, 25 the opinions relied on Plaintiff s subjective complaints. An ALJ is 26 free to disregard a treating physician s opinions that are based on a 27 7 28 The ALJ properly found Plaintiff does not have any severe fibromyalgia (A.R. 23-24). 10 1 claimant s subjective complaints where the ALJ has properly discounted 2 those subjective complaints. 3 1149; Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989) (disregarding 4 opinion premised on claimant s properly-discounted subjective 5 complaints is a specific, legitimate reason for rejecting a treating 6 physician s opinion); see also Mattox v. Commissioner of Social 7 Security, 371 Fed. App x 740, 742 (9th Cir. 2010) ( a physician s 8 opinion of disability premised to a large extent upon the claimant s 9 own accounts of his symptoms and limitations may be disregarded where 10 those complaints have been properly discounted ) (internal quotations 11 and citations omitted). 12 discounted Plaintiff s subjective complaints.8 See Tonapetyan v. Halter, 242 F.3d at As discussed above, the ALJ properly 13 14 Additionally, the ALJ properly rejected Dr. Trinh s opinions as 15 unsupported by Dr. Trinh s treatment notes. See Bayliss v. Barnhart, 16 427 F.3d 1211, 1216 (9th Cir. 2005) (contradiction between treating 17 physician s assessment and clinical notes justifies rejection of 18 assessment); Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 19 2004) ( an ALJ may discredit treating physicians opinions that are 20 conclusory, brief, and unsupported by the record as a whole . . . or 21 by objective medical findings ); Connett v. Barnhart, 340 F.3d 871, 22 875 (9th Cir. 2003) (treating physician s opinion properly rejected 23 where treating physician s treatment notes provide no basis for the 24 functional restrictions he opined should be imposed on [the 25 26 27 28 8 Significantly, Dr. Trinh relied in part on Plaintiff s self-reported alleged cognitive problems. As the ALJ pointed out, mental status testing of Plaintiff by Dr. Bagner tended to refute Plaintiff s allegations of such problems (A.R. 27, 109798). 11 1 claimant]. ). 2 3 CONCLUSION 4 5 For all of the reasons discussed herein, Plaintiff s motion for 6 summary judgment is denied and Defendant s motion for summary judgment 7 is granted.9 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: September 20, 2013. 12 13 ______________/S/_________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 The Court has considered and rejected each of Plaintiff s arguments. Neither Plaintiff s arguments nor the circumstances of this case show any substantial likelihood of prejudice resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 12

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