Francisco Peralta Zamora v. Carolyn W. Colvin

Filing 19

MEMORANDUM AND OPINION by Magistrate Judge Alka Sagar. For all of the foregoing reasons, this Court affirms the decision of the Administrative Law Judge. (See Order for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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No. CV 13-8955-AS
)
)
)
Plaintiff,
) MEMORANDUM AND OPINION
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of the
Social Security Administration, )
)
)
Defendant.
)
)
FRANCISCO PERALTA ZAMORA,

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PROCEEDINGS

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On December 4, 2013, Plaintiff Francisco Peralta Zamora filed a

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Complaint seeking review of the denial of his application for a

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period of disability, disability insurance benefits, and supplemental

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security income.

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after service of the Complaint, the parties consented to proceed

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before a United States Magistrate Judge.

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Defendant

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Administrative

then

(Docket Entry No. 3.)

filed
Record

an

Answer

(“A.R.”)

on
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to
May

In January 2014, shortly

(Docket Entry Nos. 9, 10.)
the
2,

Complaint
2014.

and

(Docket

the
Entry

1

Nos.

2

Stipulation

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Plaintiff’s claim.

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matter under submission without oral argument, and it is now before

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the Court for decision.

12,

13.)

On

setting

July

24,

forth

2014,

their

the

parties

respective

(Docket Entry No. 17.)

filed

positions

a

Joint

regarding

The Court has taken the

See C.D. Cal. L.R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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Plaintiff

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filed

applications

for

a

period

of

disability,

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disability insurance benefits, and supplemental security income on

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September 23, 2009, alleging disability commencing on March 24, 2009.

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(A.R. 285–93.)

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of a stroke.

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from diplopia, commonly referred to as double vision.

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Joint Stip. 4.)

Plaintiff alleges physical impairments as the result

(Joint Stip. 3.)

His main complaint is that he suffers
(See A.R. 21;

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After

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the

Commissioner

initially

denied

Plaintiff’s

claims,

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Plaintiff requested a de novo hearing before an Administrative Law

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Judge (“ALJ”).

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on the matter.

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2011,

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(A.R. 28–37.)

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held on June 29, 2011.

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expert (“VE”), Freeman Leeth, testified.

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hearing, the ALJ ordered Plaintiff to see a psychologist to determine

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the

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(A.R. 57–60.)

the

extent

The ALJ, Edward P. Schneeberger, held four hearings
(A.R. 28–110.)

ALJ

of

offered

At the first hearing, on February 10,

Plaintiff

to

obtain

counsel.

Plaintiff obtained counsel and the second hearing was

the

(A.R. 38–60.)

damage

to

Plaintiff and a vocational
(Id.)

Plaintiff’s

At the end of the

cognitive

functioning.

On January 25, 2012, the ALJ held the third hearing on
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resources

1

this

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neurologist Dr. James Haines.

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recommendation, the ALJ ordered Plaintiff to see an ophthalmologist

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to undergo a diplopia filed red lens test.

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hearing was held on August 24, 2012.

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ophthalmologist

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hearing.

matter,

where

Plaintiff

Dr.

once

again

testified

(A.R. 92–110.)

Patrick

along

with

Based on Dr. Haines’

(A.R. 108.)

The final

Plaintiff, VE Irma Bebe, and

McCafferty

testified

at

the

final

(A.R. 61–91.)

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On September 27, 2012, the ALJ issued an unfavorable decision.

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(A.R. 10–27.)

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a result of a stroke, including headaches, significant right facial

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weakness, and some right-sided sensory deficits.

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ALJ

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impairment.

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corrective

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Plaintiff’s alleged level of vision is inconsistent with the degree

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of pathology.

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adverse credibility finding with regard to Plaintiff’s allegations of

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the

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symptoms.

found

The ALJ found that Plaintiff has severe impairments as

that

Plaintiff’s

(Id.)
lenses

intensity,

alleged

(A.R. 19.)

diplopia

is

a

But the

non-severe

The ALJ found that Plaintiff has been prescribed
and

(Id.)

prisms

to

improve

his

double

vision,

and

In reaching these conclusions, the ALJ made an

persistence,

and

limiting

effects

of

his

physical

(A.R. 20–22.)

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The

ALJ

determined

that

Plaintiff

retained

the

residual

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functional capacity (“RFC”) to perform a full range of work at all

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exertional levels, but with the non-exertional limitations that he

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cannot

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(A.R. 22.)

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determined that Plaintiff was able to perform his past relevant work

work

around

unprotected

heights

moving

machinery.

Relying on the testimony of VE Leeth and VE Bebe, the ALJ

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or

1

as

2

performed.

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disabled under section 216(i) and 223(d) of the Social Security Act.

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(A.R. 22.)

an

assembler,
(Id.)

DOT

No.

827.684-010,

as

actually

and

generally

Accordingly, the ALJ found that Plaintiff was not

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PLAINTIFF’S CONTENTION

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Plaintiff contends that the ALJ failed to provide specific and
legitimate reasons for rejecting his testimony.

(Joint Stip. 4.)

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STANDARD OF REVIEW

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This court reviews the Administration’s decision to determine

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if: (1) the Administration’s findings are supported by substantial

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evidence; and (2) the Administration used proper legal standards.

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Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

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evidence is more than a scintilla, but less than a preponderance.”

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Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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whether

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consider

[]

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supports

and

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conclusion.”

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As a result, “[i]f evidence can reasonably support either affirming

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or reversing the ALJ’s conclusion, [a] court may not substitute its

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judgment for that of the ALJ.”

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359 F.3d 1190, 1196 (9th Cir. 2004).

substantial
the

evidence

record

evidence

as

a

that

supports

finding,

whole,

weighing

detracts

from

“a

both
the

To determine
court

must

evidence

that

[Commissioner’s]

Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998).

Batson v. Comm’r of Soc. Sec. Admin.,

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a

“Substantial

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APPLICABLE LAW

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“The Social Security Act defines disability as the ‘inability to

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engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment which can be expected to

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result in death or which has lasted or can be expected to last for a

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continuous period of not less than 12 months.’”

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433 F.3d 683, 686 (9th Cir. 2005) (quoting 42 U.S.C. § 423(d)(1)(A)).

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The ALJ follows a five-step, sequential analysis to determine whether

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a claimant has established disability.

Webb v. Barnhart,

20 C.F.R. § 404.1520.

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At step one, the ALJ determines whether the claimant is engaged

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in substantial gainful employment activity.

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“Substantial

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[i]nvolves

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duties[] and . . . [i]s done (or intended) for pay or profit.”

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§§ 404.1510, 404.1572.

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not engaged in substantial gainful activity, the ALJ proceeds to step

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two which requires the ALJ to determine whether the claimant has a

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medically

impairments

that

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significantly limits her ability to do basic work activities.

See

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id. §

The

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“ability to do basic work activities” is defined as “the abilities

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and aptitudes necessary to do most jobs.”

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Webb, 433 F.3d at 686.

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“a slight abnormality (or combination of slight abnormalities) that

gainful
doing

severe

activity”

significant

is
and

as

productive

“work

that

physical

.

or

.

.

mental
Id.

If the ALJ determines that the claimant is

impairment

404.1520(a)(4)(ii);

see

or

combination

also

Webb,

433

of

F.3d

at

686.

20 C.F.R. § 404.1521(b);

An impairment is not severe if it is merely

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defined

Id. § 404.1520(a)(4)(i).

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has no more than a minimal effect on the ability to do basic work

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activities.”

Webb, 433 F.3d at 686.

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If the ALJ concludes that a claimant lacks a medically severe

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impairment,

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20 C.F.R. § 1520(a)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th

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Cir. 2005) (holding that the ALJ need not consider subsequent steps

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if there is a finding of “disabled” or “not disabled” at any step).

the

ALJ

must

find

the

claimant

not

disabled.

Id.;

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However,

if

the

ALJ

finds

that

a

claimant’s

impairment

is

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severe, then step three requires the ALJ to evaluate whether the

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claimant’s

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entitling her to a disability finding.

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the impairment does not satisfy the statutory requirements entitling

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the claimant to a disability finding, the ALJ must determine the

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claimant’s RFC, that is, the ability to do physical and mental work

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activities on a sustained basis despite limitations from all her

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impairments.

impairment

satisfies

certain

statutory

requirements

Webb, 433 F.3d at 686.

If

20 C.F.R. § 416.920(e).

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Once the RFC is determined, the ALJ proceeds to step four to

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assess whether the claimant is able to do any work that she has done

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in the past, defined as work performed in the last fifteen years

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prior to the disability onset date.

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claimant is not able to do the type of work that she has done in the

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past or does not have any past relevant work, the ALJ proceeds to

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step five to determine whether—taking into account the claimant’s

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age, education, work experience, and RFC—there is any other work that
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If the ALJ finds that the

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the claimant can do and if so, whether there are a significant number

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of such jobs in the national economy.

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1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(iii)–(v).

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claimant has the burden of proof at steps one through four, and the

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Commissioner has the burden of proof at step five.

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at 1098.

Tackett v. Apfel, 180 F.3d
The

Tackett, 180 F.3d

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DISCUSSION

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After consideration of the record as a whole, the Court finds

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that

the

Commissioner's

findings

are

supported

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by

substantial

evidence and are free from material 1 legal error.

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A.

The ALJ Did Not Err in Evaluating Plaintiff’s Credibility

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Plaintiff challenges the ALJ’s credibility assessment of the

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severity

of

his

symptoms,

emphasizing

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Plaintiff’s significant vision problems.

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while the ALJ properly identified the two-step credibility process,

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Plaintiff argues that the ALJ “never articulated a single reason” for

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finding Plaintiff not credible.

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ALJ properly articulated reasons for finding Plaintiff not credible.

(Id.)

that

the

evidence

(Joint Stip. 5.)

proved

Moreover,

But the Court finds that the

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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) (stating that an ALJ’s decision will not be
reversed for errors that are harmless).

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1.

Legal Standard

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An ALJ’s assessment of symptom severity and claimant credibility

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is entitled to “great weight.”

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1121, 1124 (9th Cir. 1990); Nyman v. Heckler, 779 F.2d 528, 531 (9th

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Cir. 1985).

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of disabling pain, or else disability benefits would be available for

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the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).”

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Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012).

See Anderson v. Sullivan, 914 F.2d

“[T]he ALJ is not required to believe every allegation

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In evaluating a claimant’s subjective symptom testimony, the ALJ

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engages in a two-step analysis.

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1028,

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whether the claimant has presented objective medical evidence of an

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underlying medical impairment which could reasonably be expected to

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produce the pain or other symptoms alleged.”

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quotations and citation omitted).

If such objective medical evidence

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exists,

the

the

19

because

there

20

produce the degree of symptom alleged.”

Smolen, 80 F.3d at 1282

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(emphasis

in

finding

22

subjective

complaints

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cogent” findings that support the conclusion.

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F.3d 821, 834 (9th Cir. 1995) (quoting Rashad v. Sullivan, 903 F.2d

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1229,

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malingering,

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testimony must be “clear and convincing.”

1035–36

1231

(9th

ALJ
is

Cir.

may

not

no

(9th
the

2007).

reject

showing

original).
not

Cir.
ALJ’s

Lingenfelter v. Astrue, 504 F.3d
“First,

that

Instead,

1990)).

the

for

8
28

in

ALJ

must

determine

Id. at 1036 (internal

testimony

impairment

Absent

reasons

ALJ

claimant’s

the

credible,

the

must

can

“simply

reasonably

the

claimant’s

make

“specific,

Lester v. Chater, 81

affirmative

rejecting

the

evidence

of

claimaint’s

Lester, 81 F.3d at 834.

1

2.

Affirmative Evidence of Malingering

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3

Defendant argues that the Court should affirm the ALJ’s decision

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because there is affirmative evidence of malingering in this case.

5

(Joint

6

“considerable

7

psychologist, Dr. Ahmad Riahinejad.

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evaluated Plaintiff’s mental impairment as a result of the stroke and

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included in his diagnosis that Plaintiff was malingering with respect

Stip.

7.)

As

weight”

Defendant

on

the

diagnosis

10

to alleged mental impairment.

11

Riahinejad,

12

diagnostic testing in August 2011.

Plaintiff

did

points

out,
from

the
the

(A.R. 21–22.)

put

forth

his

placed

consultative

Dr. Riahinejad

(A.R. 21, 464–77.)

not

ALJ

According to Dr.

best

effort

during

(Id.)

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14

Where there is affirmative evidence of malingering, the ALJ is

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not required to provide “clear and convincing” reasons to reject

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Plaintiff’s

17

Thus, as Defendants argue, because the ALJ sufficiently explained and

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placed

19

Plaintiff

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credibility

21

A.R. 21–22.)

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of Plaintiff was for mental impairment, his diagnosis of malingering

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is indicative of Plaintiff’s overall credibility with respect to his

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overall

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2014 WL 6065898, at *8 (C.D. Cal. Nov. 13, 2014) (“[T]he ALJ was

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entitled to reject Plaintiff’s testimony without providing clear and

27

convincing reasons because she specifically found that ‘the record

subjective

“considerable
was

statements.

weight”

malingering,

findings

need

on

The Court agrees.

symptoms.

See

Dr.

this

not

Medel

go

Lester,

F.3d

Riahinejad’s

Court’s
any

81

review

further.

at

opinion
of

the

(Joint

834.

that
ALJ’s

Stip.

7;

While Dr. Riahinejad’s examination

v.

9
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See

Colvin,

No.

EDCV

13-2052-JPR,

1

includes statements by a doctor suggesting [Plaintiff] was engaged in

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possible malingering or misrepresentation.”).

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3.

Objective Medical Evidence

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6

Nevertheless, even if Dr. Riahinejad’s malingering diagnosis is

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insufficient on its own, the diagnosis along with the ALJ’s reliance

8

on

9

convincing” reasons for the ALJ’s adverse credibility finding.

additional

objective

medical

evidence

suffice

as

“clear

and

10
11

In

addition

to

Dr.

Riahinejad’s

examination,

the

ALJ

also

12

credited the opinions of nondisability from the other consultative

13

examiners and medical experts.

14

511–13.)

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which the ALJ stated “put to rest any concerns about lifting and

16

carrying.”

(A.R.

17

results

the

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indicated that Plaintiff’s alleged level of vision was not consistent

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with the degree of pathology and that his vision was closer to 20/20.

20

(A.R.

21

hearing that Plaintiff’s alleged double vision can be offset by head

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positioning and improved with the use of prisms.

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Dr. McCafferty also testified that patching one eye for periods of

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time would help correct the problem during work.

(A.R. 19–22, 73–78, 101–07, 464–77,

Dr. Haines testified to Plaintiff’s exertional limitations,

of

511–13.)

21,

105.)

With

ophthalmological

Moreover,

Dr.

respect

to

examination

McCafferty

the

ordered

testified

diplopia,
by

at

the

the

the
ALJ

last

(A.R. 21, 73–78.)

(Id.)

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26

The Court also notes that the ALJ’s credibility findings did not

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entirely reject Plaintiff’s subjective symptoms, particularly with
10

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1

respect to his vision problems.

2

limitations

3

unprotected heights or moving machinery.

4

Court finds that the ALJ rationally interpreted the evidence and

5

articulated

6

severity of Plaintiff’s subjective symptoms including his alleged

7

displopia.

8

Cir.

9

medical experts can serve “as substantial evidence supporting the

10

ALJ’s findings with respect to [the claimant’s] physical impairment

11

and exertional limitations”); Morgan v. Comm’r of Soc. Sec. Admin.,

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169 F.3d 595, 600–01 (9th Cir. 1999) (holding that a medical expert’s

13

testimony

14

specific

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consistent with other evidence in the record); Matthews v. Shalala,

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10 F.3d 678, 680 (9th Cir. 1993) (holding that the ALJ properly

17

discounted the claimant’s allegations where no doctor “expressed the

18

opinion that [the claimant] was totally disabled” or “implied that

19

[the claimant] was precluded from all work activity”).

supported

“clear

See

2001)

by

and

the

that

constitutes
rationale

record—Plaintiff

convincing”

Tonapetyan

(holding

The RFC incorporates non-exertional

v.
the

cannot

(A.R. 22.)

reasons

for

around

Overall, the

discounting

Halter,

242

F.3d

1144,

opinions

of

examining

substantial

evidence

where

narrative

justifying

his

and

work

1149

the

(9th

doctors

he

provides

opinion

that

and

a
is

20

CONCLUSION

21
22

“If the ALJ’s credibility finding is supported by substantial

23
24

evidence

second

guessing.”

25

Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002).

Here, the

26

ALJ not only provided specific affirmative evidence of malingering,

27

but

he

in

also

the

record,

provided

we

may

specific,

not

clear
11

28

engage

and

in

convincing

reasons

for

1

discounting Plaintiff’s statements regarding his subjective symptoms.

2

Therefore,

3

disability was properly based upon substantial evidence.

the

ALJ’s

decision

that

Plaintiff

failed

to

establish

4
5

ORDER

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7
8

For

all

of

the

foregoing

reasons,

this

Court

affirms

decision of the Administrative Law Judge.

9
10

LET JUDGMENT BE ENTERED ACCORDINGLY.

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Dated: December 11, 2014.
_/s/__________________________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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the