Serrano v. Astrue, No. 5:2009cv04528 - Document 22 (N.D. Cal. 2011)
Court Description: ORDER DENYING 18 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND GRANTING 20 DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT. Signed by Judge Jeremy Fogel on 3/28/2011. (jflc2, COURT STAFF) (Filed on 3/28/2011)
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Serrano v. Astrue Doc. 22 1 **E-Filed 3/28/2011** 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 SAN JOSE DIVISION 11 12 FELISSA SERRANO, 13 Case Number 5:09-CV-04528 JF Plaintiff, 14 v. 15 16 ORDER1 DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; AND GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Re: Docket Nos. 18, 20 17 Defendant. 18 19 20 Plaintiff Felissa Serrano appeals the denial of disability insurance benefits and 21 Supplemental Security Income by Defendant Michael J. Astrue, the Commissioner of Social 22 Security.2 The parties have filed cross-motions for summary judgment. For the reasons set forth 23 below, Serrano’s motion will be denied, and Defendant’s motion will be granted. 24 25 1 26 27 28 This disposition is not designated for publication in the official reports. 2 This decision was rendered by Administrative Law Judge Brenton L. Rogozen on June 18, 2009. AR 6. It became final on August 13, 2009, when the Appeals Council of the Social Security Administration denied Serrano’s request for administrative review. AR 1. 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) Dockets.Justia.com I. BACKGROUND 1 2 A. Personal and Medical History Serrano was born in Mexico on July 6, 1953, where she attended school through the 3 4 eleventh grade. AR 175, 55. She immigrated to the United States in 1982 and became a U.S. 5 citizen. AR 175. Although Serrano understands some English, she has never studied English 6 formally and prefers to communicate in Spanish. AR 54. Serrano worked as an electronics tester 7 for nineteen years before being laid off in 2004. AR 56. She collected unemployment benefits 8 for a few months before finding work as a housekeeper in a convalescent hospital, where she 9 worked until she was hospitalized on August 11, 2005. AR 205-212, 217, 289. Serrano was 10 diagnosed by Dr. Gubbala as having suffered an “acute cerebrovascular accident,” which is 11 commonly known as a stroke, although the results of several subsequent medical tests were 12 within normal limits. AR 289-311. Dr. Gubbala also diagnosed Serrano with diabetes. AR 289. 13 Serrano has not had a job since she was hospitalized in August 2005. AR 13. Serrano claims that she has suffered ongoing pain and weakness on the right side of her 14 15 body since her stroke. She was evaluated by Dr. James Laster, a neurology specialist, in 16 November 2005. AR 312-314. Dr. Laster noted that Serrano’s upper arm muscles felt strong 17 and that her symptoms seemed to be “somewhat embellished.” AR 313. Serrano was evaluated 18 again in June 2006 by Dr. Carmen Lopez, who found “inconsistencies in her alleged weakness” 19 and signs of malingering and poor cooperation. AR 347. Dr. Laster evaluated Serrano a second 20 time in May 2007 and again noticed “some embellishment of her symptoms.” AR 352. Serrano 21 was hospitalized in June 2007 for anxiety and extreme pain on her right side. After performing 22 several tests, including a CT scan and an MRI, Dr. Guisado determined that there was no 23 evidence of “any old or new strokes” and that Serrano’s symptoms were “psychogenic.” AR 24 385. Serrano was involuntarily hospitalized on July 22, 2008, because she expressed an intention 25 to commit suicide. AR 525-548. 26 B. Standard for Awarding Disability Benefits To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The ALJ first considers whether the claimant is engaged in substantial gainful activity; if not, the ALJ asks in the second step 2 27 28 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) whether the claimant has a severe impairment (i.e., one that significantly affects his or her ability to function); if so, the ALJ asks in the third step whether the claimant's condition meets or equals one of those outlined in the Listing of Impairments in Appendix 1 of the Regulations; if not, then in the fourth step the ALJ asks whether the claimant can perform his or her past relevant work; if not, finally, the ALJ in the fifth step asks whether the claimant can perform other jobs that exist in substantial numbers in the national economy. 1 2 3 4 5 Lewis v. Apfel, 236 F.3d 503, 508 (9th Cir. 2001). 6 C. Procedural History Serrano received State Disability Insurance (“SDI”) benefits for approximately nine 7 8 months after her hospitalization in August 2005. AR 197-200. She applied for Social Security 9 Disability (“SSD”) and Supplemental Security Income (“SSI”) benefits in November 2005, but 10 her application was denied initially and on reconsideration. AR 175-181, 114. She was granted 11 a hearing before Administrative Law Judge Brenton L. Rogozen (“the ALJ”) on August 28, 2007, 12 during which she asserted that she could not walk without assistance, could not use her right 13 hand, had chronic pain on her right side, and was depressed. AR 114. The ALJ ruled against 14 Serrano on December 5, 2007, finding that her statements regarding her symptoms were “not 15 entirely credible.” AR 118. Serrano appealed, and the Appeals Council remanded to the ALJ 16 with specific instructions. AR 120. The Council found that the ALJ improperly disregarded the 17 opinions of certain medical experts and that the record was unclear with respect to Serrano’s 18 mental impairments; accordingly, it ordered the ALJ to obtain further evidence of Serrano’s 19 physical and mental impairments and to consult with a vocational expert to determine the effects 20 of such impairments on Serrano’s ability to work. AR 123. On July 9, 2008, following remand, Dr. Paula Chaffee conducted a psychological 21 22 evaluation of Serrano. She diagnosed Serrano with conversion disorder, which means that her 23 symptoms are “often based on external cues” but are not malingered. AR 471. She also 24 diagnosed Serrano with hypochondriasis, major depressive disorder, generalized anxiety 25 disorder, and panic disorder. AR 471. Dr. Chaffee further determined that Serrano’s I.Q. was 26 consistent with mild mental retardation. AR 471. Dr. Robert Bilbrey, a licensed psychologist, 27 administered various intelligence, memory, and malingering tests on August 7, 2008, and Serrano 28 performed poorly on all of them. AR 455-58. Dr. Bilbrey believed that Serrano likely had been 3 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) 1 malingering because she could carry on conversations in two languages and could drive a car, 2 which are abnormal abilities for individuals who perform poorly on intelligence and memory 3 tests. AR 457-58. Serrano also was evaluated by Dr. Lin, a neurologist, who concluded that 4 Serrano was unable to use the right side of her body and that she was not malingering. AR 5 477-483. The ALJ conducted a second hearing on May 6, 2009. AR 84. The ALJ issued a partially 6 7 favorable decision on June 18, 2009, ruling that Serrano became disabled in July 2008 but not 8 before that date.3 AR 13. The ALJ found that Serrano’s depression was sufficiently severe to 9 satisfy the requirements of step two of the five-step benefits inquiry, but that her other alleged 10 impairments were not. AR 13. The ALJ determined that Serrano’s statements regarding the 11 intensity, persistence, and limiting effects of her alleged symptoms were “not credible before July 12 22, 2008,” as Serrano had been suspected of “embellishing and malingering” by several doctors 13 prior to July 2008. AR 18, 14. Accordingly, the ALJ granted Serrano’s request for benefits 14 commencing in July 2008, but he denied her request for benefits for the period of August 2005 to 15 July 2008. AR 13. Serrano appealed the denial of benefits for this period, but the Appeals 16 Council denied review, thus making the ALJ’s decision the final decision of the Commissioner. 17 II. STANDARD OF REVIEW The Court may review the decision of the Commissioner pursuant to 42 U.S.C. § 405(g). 18 19 The Court must affirm the Commissioner’s decision if it is supported by substantial evidence and 20 applies the correct legal standards. Lewis, 236 F.3d at 509. “Substantial evidence is relevant 21 evidence that, considering the entire record, a reasonable person might accept as adequate to 22 support a conclusion.” Id. (citations omitted). “Where evidence is susceptible to more than one 23 rational interpretation, the decision of the ALJ must be upheld.” Moncada v. Chater, 60 F.3d 24 521, 533 (9th Cir. 1995). However, if the Court finds “that the ALJ’s findings are based on legal 25 26 27 28 3 The Social Security Act defines “disability” as an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A). 4 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) 1 error or are not supported by substantial evidence in the record,” it may set aside the 2 Commissioner’s denial of benefits. Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1995). III. DISCUSSION 3 4 A. Dr. Chaffee’s Opinion The ALJ dismissed Dr. Chaffee’s opinion as “speculative,” opining that Dr. Chaffee was 5 6 being paid by Serrano’s counsel and therefore was biased. AR 18. Serrano argues that the ALJ’s 7 finding of bias is unsupported by the record, which shows that Serrano was referred to Dr. 8 Chaffee by the Department of Social Services and that Serrano’s counsel never hired or paid Dr. 9 Chaffee to assess Serrano. AR 465. Serrano points to a letter written by Dr. Chaffee to the 10 Appeals Counsel after the ALJ issued his final ruling, in which she stated: 11 I would like to clarify that I have no professional relationship with Ms. Valle [Serrano’s counsel]. She has never hired me to assess a client, and I have never been compensated by Ms. Valle or her office . . . my referrals come from social workers at GA, and I am compensated only by the County [of Santa Clara]. AR 607. 12 13 It appears from the record that Serrano was referred to Dr. Chaffee by the Department of 14 15 Social Services and that she never was paid by counsel for her services. AR 465. However, 16 almost all of the physicians who evaluated or treated Serrano following her first hospitalization 17 in August 2005 suspected her of malingering. See AR 113 (Dr. Laster noted that Serrano’s 18 symptoms were embellished”); AR 347 (Dr. Lopez found inconsistencies and signs of poor 19 cooperation and malingering); AR 385 (Dr. Guisado determined that her symptoms were 20 “psychogenic” after conducting various medical tests); AR 455-58 (Dr. Bilbrey administered a 21 malingering test to Serrano and she performed poorly on it). Accordingly, the record supports 22 the ALJ’s decision to give little weight to Dr. Chaffee’s diagnosis of conversion disorder. See 20 23 C.F.R. 404.1527(d)(3) (weight afforded medical opinion depends on how well it is supported by 24 and consistent with the other evidence of record). Moreover, Dr. Chaffee’s finding of mild mental retardation is uncorroborated. Although 25 26 mild retardation may explain Serrano’s poor performance on the intelligence test administered by 27 Dr. Bilbrey, Dr. Bilbrey questioned the reliability of this test result in light of Serrano’s poor 28 performance on a malingering test that he administered on the same day. AR 457-58. Dr. 5 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) 1 Bilbrey also noted that individuals who score poorly on intelligence tests typically cannot carry 2 on conversations in two languages or drive a car, as Serrano can. AR 457-58. Accordingly, the 3 ALJ’s decision to give “very little weight” to Dr. Chaffee’s diagnoses is supported adequately by 4 the record. 5 B. Serrano’s Credibility Serrano also asserts that the ALJ improperly found that her testimony was unreliable. 6 7 After a claimant produces objective medical evidence showing that her alleged impairments 8 reasonably could be expected to produce some degree of the alleged symptoms, the ALJ may 9 reject the claimant’s testimony only upon (1) finding evidence of malingering, or (2) expressing 10 clear and convincing reasons for doing so. Benton v. Barnhart, 331 F.3d 1030, 1040-41 (9th 11 Cir. 2003). Here, there is substantial evidence in the record to support the ALJ’s finding that 12 Serrano was not credible, as several doctors suspected Serrano of malingering and characterized 13 her as uncooperative during medical examinations. See, e.g., Thomas v. Barnhart, 278 F.3d 947, 14 959 (9th Cir. 2002) (upholding ALJ’s determination that the claimant lacked credibility because 15 the record showed that she failed to give maximum effort during medical examinations). Under 16 these circumstances, the ALJ did not commit legal error in rejecting Serrano’s testimony. 17 C. Dr. Rack’s Testimony Serrano contends that the ALJ mischaracterized the testimony of Dr. William Rack, a 18 19 neurologist who testified at her hearing on May 6, 2009, by disingenuously suggesting that Dr. 20 Rack had stated that Serrano could perform at least light work. The record does not support this 21 contention. During the hearing, Dr. Rack stated that “there was no evidence of a stroke having 22 been present” and agreed with the ALJ’s statement that “there doesn’t seem to be any objective 23 evidence to show that there is anything wrong with her arm.” AR 103. Accordingly, Dr. Rack’s 24 testimony regarding Serrano’s physical condition is consistent with the ALJ’s finding that 25 Serrano was able to perform at least light work during the period at issue. 26 // 27 // 28 6 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1) ORDER 1 Good cause therefor appearing, IT IS HEREBY ORDERED that Serrano’s motion for 2 3 summary judgment is DENIED and that Defendant’s cross-motion for summary judgment is 4 GRANTED. 5 6 7 8 DATED: March 28, 2011 ____________________________ JEREMY FOGEL United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 5:09-CV-04528 JF ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT ETC. Case N o. (JFEX1)
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