Nancy Suenega-Wilson v. Michael J Astrue

Filing 15

MEMORANDUM AND ORDER by Magistrate Judge Arthur Nakazato. (twdb)

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FILED - SOUTHERN DIVISION
CLERK, U.S. DISTRICT COURT

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CENT~AL DISTRICT OF CALIFORNIA

BY C..V\.VI

DEPUTY

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 NANCY SUENEGA-WILSON,

Case No. CV 12-10679 AN

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MEMORANDUM AND ORDER

Plaintiff,

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v.

13 CAROLYNW.COLVIN ACTING
COMMISSIONER OF THE SOCIAL
14 SECURITY ADMINISTRATION,
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Defendant.!!

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Pursuant to the Court's Case Management Order, the parties have filed the

18 Administrative Record ("AR") and a Joint Stipulation ("JS") raising two disputed issues.
19 The parties have consented to proceed before the Magistrate Judge. The Court has
20 carefully reviewed the parties' respective contentions in conjunction with the AR. This
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matter is now ready for decision.

Issue #1

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Plaintiff contends that the Administrative Law Judge ("ALJ") improperly rejected

24 the opinion ofPlaintiff s workers' compensation treating physician, David L. Friedman,
25 M.D., Ph.D. (JS 3-9.)
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The Acting Commissioner is substituted as the defendant pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure. No further action is needed to continue this case
by reason of the last sentence of 42 U.S.C. § 405(g).

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Dr. Friedman first evaluated Plaintiff in January 2007. (AR 275-90, 337-52.)

2 Plaintiffs mood was "moderately depressed," and her thought content revealed themes
3 of diminished self-confidence, low self-esteem, anxiety, anger, and depression. (AR
4 286.) Plaintiff was oriented to person, place, time and situation, her judgment was intact,
5 and she appeared to have above-average intelligence, a clear and coherent thought
6 process, and no short-term or long-term memory impairment. (AR 286.) Dr. Friedman
7 noted that Plaintiff was able to perform a wide range of daily activities. (AR 277-78.) Dr.
8 Friedman diagnosed depression, single episode, severe, non-psychotic, and assigned
9 Plaintiff a Global Assessment of Function ("GAF") score of 45, denoting serious
10 symptoms or serious impairment with social and occupational functioning. (AR 287); see
11 American Psychiatric Association, Diagnostic and Statistical Manual of Mental
12 Disorders, Fourth Edition ("DSM-IV") Multiaxial Assessment, 27-36 (rev. 2000)). Dr.
13 Friedman recommended weekly psychotherapy and psychoactive medication. (AR 289.)
14 In February 2007, Plaintiffbegan receiving mental health treatment from a psychologist
15 and a physician associated with Dr. Friedman's practice. (AR269, 271-73,274, 333-36.)
16 In an August 2007 re-evaluation report, Dr. Friedman reported that Plaintiff was still
17 moderately depressed, but Plaintiff had benefitted from treatment. (AR 263, 265.) Dr.
18 Friedman gave Plaintiff a GAF of score of 51, indicating moderate symptoms or
19 moderate difficulty in social, occupational, or school functioning. DSM-IV at 32.
20 Plaintiff continued to receive mental health treatment at Dr. Friedman's office through
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June 2009. (AR 226-49.)
In December 2010, Dr. Friedman completed a form assessing Plaintiffs ability to

23 perform mental work-related activities. (AR 518-19.) In 24 out of25 mental functional
24 abilities listed, Dr. Friedman checked the boxes indicating that Plaintiff was "unable to
25 meet competitive standards." (AR 518-19.) By giving Plaintiff this rating, Dr. Friedman
26 necessarily found that Plaintiff could not satisfactorily perform the described work
27 activities independently, appropriately, or effectively on a sustained basis in a regular
28 work setting. (AR 518.) The ALJ accorded no weight to this assessment. (AR 15.)
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As Dr. Friedman's opinion was controverted by the opinions of other medical

2 sources, the ALJ was obligated to provide specific and legitimate reasons for rejecting
3 it. Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1996) (if a treating or examining
4 physician's opinion on disability is controverted, it can be rejected only with specific and
5 legitimate reasons supported by substantial evidence in the record). The ALJ properly
6 found that Dr. Friedman's "checksheet" assessment conflicted with his previous findings
7 that Plaintiff was able "to perform a wide range of activities independently and with little
8 interruption" from her alleged mental impairments. (AR 15, 252, 277-78.) In January
9 2007, Dr. Friedman reported that daily activities included exercising, doing household
10 chores, shopping, and reading. (AR 277.) Plaintiff enjoyed cooking, and interacting with
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friends and family on a regular basis. (AR 277-78.) Dr. Friedman also reported that

12 Plaintiff was working on her taxes and had been assisting her brother in compiling
13 paperwork for his taxes. (AR 278.) In August 2007, Dr. Friedman reported that while
14 Plaintiffs mood was still "moderately depressed," she had benefitted from treatment.
15 (AR 263, 265.) The extreme limitations assessed in the December 2010 mental
16 functional ability check sheet conflicted with Dr. Friedman's earlier findings. As there
17 was no indication that Plaintiffs condition had deteriorated since August 2007, the ALJ
18 provided a specific, legitimate reason for discounting Dr. Friedman's opinion. See
19 Batson v. Comm 'rofSoc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that
20 the ALJ did not err in giving "minimal evidentiary weight" to controverted treating
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source opinions that were "in the form of a checklist," and lacked supportive objective

22 medical findings); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) ("[t]he ALJ
23 need not accept the opinion of any physician, including a treating physician, if that
24 opinion is brief, conclusory, and inadequately supported by clinical findings");
25 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) ("[w]hen confronted with
26 conflicting medical opinions, an ALJ need not accept a treating physician's opinion that
27 is conclusory and brief and unsupported by clinical findings").
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In addition, the ALJ accorded "great weight" to the non-examining medical expert,

2 psychologist Dr. Betty Borden. (AR 15-16, 102-03.) Dr. Borden testified that Plaintiff
3 was capable of performing simple, repetitive tasks, and could occasionally interact with
4 the public and complete complex and detailed tasks. (AR 103.) A nonexamining medical
5 expert's opinion may constitute substantial evidence when it is consistent with other
6 independent evidence. Morgan v. Apfel, 169 F.3d 595, 599-600 (9th Cir. 1999)
7 ("Opinions of a nonexamining, testifying medical advisor may serve as substantial
8 evidence when they are supported by other evidence in the record and are consistent with
9 it."); Tonapetyan, 242 F.3d at 1149. Here, Dr. Borden's opinion was corroborated by the
10 opinion of the examining psychiatrist, Ernest Bagner, M.D. (AR 491-94.) Dr. Bagner
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found that Plaintiff would have no more than "mild" limitations in completing simple

12 tasks, and "mild to moderate" limitations handling normal work stresses, maintaining
13 concentration and attention, completing complex tasks, and completing a normal work
14 week without interruption. (AR 15-16, 494.) Because Dr. Bagner's opinion was based
15 on "independent clinical findings," the ALJ had discretion to disregard Dr. Friedman's
16 assessment ofPlaintiffs functional limitations. (AR 15-16); see, e.g., Tonapetyan, 242
17 F.3d at 1149 (consultative examiner's opinion constituted substantial evidence, because
18 it rested on independent examination of claimant); Andrews v. Shalala, 53 F.3d 1035,
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1041 (9th Cir. 1989) ("Reports of consultative physicians called in by the Secretary may

20 serve as substantial evidence"). Furthermore, the ALJ gave weight to the state agency
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physician's opinion that Plaintiffhad mild to moderate limitations in mental functioning.

22 (AR 15-16, 495-508.) The state agency physician's opinion, which was based in part on
23 the medical findings of Dr. Bagner and was consistent with other record evidence,
24 provides additional support for the ALJ's rejection of Dr. Friedman's opinion. See
25 Tonapetyan, 242 F.3d at 1149; Andrews, 53 F.3d at 1041. The ALJ's resolution of the
26 conflicting medical opinions is supported by substantial evidence.
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Accordingly, Plaintiff is not entitled to a reversal or remand based upon Issue # 1.

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Issue #2
Plaintiff contends that the ALJ erred in failing to comment upon a function report

3 completed by Plaintiffs friend, Gilbert Davis ("Davis"). (AR 214-21.)
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Generally, lay testimony regarding a claimant's symptoms is competent evidence

5 that the ALJ must consider unless he "expressly determines to disregard such testimony
6 and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503,
7 511 (9th Cir. 2001 ). However an error in addressing lay witness testimony is harmless,
8 if a reviewing court "can confidently conclude that no reasonable ALJ, when fully
9 crediting the testimony, could have reached a different disability determination." Stout
10 v. Comm 'r, 454 F.3d 1050, 1054 (9th Cir. 2006); Molina v. Astrue, 674 F.3d 1104, 1122
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(9th Cir. 2012) (explaining that if an ALJ's failure to discuss testimony favorable to the

12 claimant was "inconsequential to the ultimate nondisability determination in the context
13 ofthe record as a whole" then the failure is harmless error); see also Graham v. Comm 'r,
14 441 Fed. Appx. 487, 489 (9th Cir. 2011).
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Here, the ALJ' s error in failing to discredit Davis's statement is harmless because

16 the ALJ would not have reached a different disability determination had he considered
17 it. Stout, 454 F.3d at 1056; see also Robbins v. Social Sec. Admin., 466 F.3d 880, 885
18 (9th Cir. 2006). Davis's statement essentially reiterated Plaintiffs subjective complaints.
19 Davis reported that Plaintiff has difficulty dealing with stress and changes in routine,
20 experiences panic attacks, and has deficiencies in memory and concentration. (AR 215,
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220-21.) Davis also described Plaintiff as a person who was physically and socially

22 active. Davis reported that Plaintiff spends her days doing housework and chores,
23 reading, exercising, cooking, caring for her friend's dogs, and interacting with others
24 through emails, talking on the telephone and visiting in person. (AR 214-21.) Because
25 Davis did not offer any new evidence or insight to establish disability, no reasonable ALJ
26 would have reached a more favorable determination had Davis's statement been properly
27 addressed. Stout, 454 F.3d at 1056. Moreover, the ALJ found that the inconsistency
28 between Plaintiff's subjective complaints and admitted daily activities provided a legally
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1 sufficient basis to discount Plaintiffs credibility. (AR 14-16, 198-202, 252, 277); see
2 Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002); Light v. Social Security
3 Admin., 119 F.3d 789, 792 (9th Cir. 1997) (inconsistencies between testimony and
4 conduct may be considered in weighing a claimant's credibility). As Davis's statement
5 contained the same internal inconsistencies between Plaintiffs subjective complaints and
6 her daily activities, any error on the ALJ's part in failing to specifically reject Davis's
7 statement was inconsequential to the ultimate nondisability determination. See Molina,
8 674 F.3d at 1121-22 ("an ALJ's failure to comment upon lay witness testimony is
9 harmless where the same evidence that the ALJ referred to in discrediting the claimant's
10 claims also discredits the lay witness's claims" (brackets and internal quotation marks
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omitted)); Valentine v. Comm 'r of Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)

12 (holding that an ALJ's clear and convincing reasons for discounting a claimant's
13 testimony are equally germane to reject similar testimony by a lay witness).
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Accordingly, a reversal or remand is not warranted on the basis of Issue #2.

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ORDER

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The Court finds that the ALJ' s determination of non-disability is free oflegal error

18 and supported by substantial evidence in the record. Therefore, Plaintiffs request for
19 an order directing the payment ofbenefits or remanding this case for further proceedings
20 is DENIED, and the Commissioner's request for an order affirming the Commissioner's
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final decision and dismissing the action is GRANTED. The clerk shall enter judgment,

22 close the file and terminate all pending motions.
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25 DATED: September 30, 2013
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