Judith Jeanette Neblett v. Carolyn W. Colvin

Filing 19

MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton This Memorandum Opinion will constitute the Courts findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. The Complaint will be dismissed with prejudice. (rh)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

7
8
9
10
11

JUDITH JEANETTE NEBLETT,

12
13
14

Plaintiff,
v.

15

CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

16

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

No. CV 14-01204-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

17
18

This matter is before the Court for review of the decision by the

19

Commissioner of Social Security denying Plaintiff’s application for

20

disability benefits.

21

consented that the case may be handled by the Magistrate Judge.

22

action arises under 42 U.S.C. §405(g), which authorizes the Court to

23

enter judgment upon the pleadings and transcript of the record before

24

the Commissioner.

25

(“JS”), and the Commissioner has filed the certified Administrative

26

Record (“AR”).

Pursuant to 28 U.S.C. §636(c), the parties have
The

The parties have filed the Joint Stipulation

27

Plaintiff raises the following issues:

28

1.

Whether

the Administrative Law Judge (“ALJ”) properly

1

considered the treating physician’s opinion; and

2

2.

Whether the ALJ properly considered Plaintiff’s testimony

3
4

and made proper credibility findings.
(JS at 2.)

5
6

This Memorandum Opinion will constitute the Court’s findings of

7

fact and conclusions of law.

After reviewing the matter, the Court

8

concludes that the decision of the Commissioner must be affirmed.

9
10

I

11

THE ALJ PROPERLY ASSESSED THE OPINION

12

OF TREATING PHYSICIAN DR. ORKIN

13

Following a hearing on October 24, 2012, at which Plaintiff was

14

present with counsel, and testified, and testimony was also received

15

from a vocational expert (“VE”) (AR 23-52), an unfavorable decision

16

was rendered on November 9, 2012. (AR 9-19.) The ALJ followed the five

17

step sequential evaluation process summarized in the decision (AR 10-

18

11), determining at Step Two that Plaintiff has severe impairments

19

consisting of the following: bipolar disorder; attention deficit

20

hyperactivity disorder (“ADHD”); and a history of polysubstance abuse,

21

in

22

Plaintiff’s impairments do not meet or equal any of the Listings, and

23

he then determined that Plaintiff’s residual functional capacity

24

(“RFC”) allows her to perform the full range of work at all exertional

25

levels

26

repetitive tasks; no prolonged public contact; and solitary work not

27

in coordination with others. (AR 13.) The ALJ found that Plaintiff

28

could not perform her past relevant work, and thus proceeded to Step

remission.

with

(AR

the

12.)

At

following

the

next

step,

non-exertional

2

the

ALJ

found

limitations:

that

simple,

1

Five, concluding that there are jobs that exist in significant numbers

2

in the national economy that she can perform, thus rendering her not

3

disabled. (AR 17-18.)

4

The record contains an April 3, 2012 “check the box” type of

5

questionnaire entitled “Medical Opinion Re: Ability to Do Work-Related

6

Activities (Mental)” completed by treating psychologist Dr. Orkin. (AR

7

282-283.) There, Dr. Orkin concluded that Plaintiff has “no useful

8

ability to function” with regard to her ability to maintain attention

9

for two-hour segments of time and her ability to complete a normal

10

workday and workweek without interruptions from psychologically-baaed

11

symptoms,

12

independently of others, an ability to deal with the stress of semi-

13

skilled and skilled work. Dr. Orkin noted that Plaintiff has “severe

14

ADHD” and Bipolar II Disorder, cannot maintain concentration or focus

15

for more than five to ten minutes, and could be expected to miss more

16

than four days of work per month due to her impairments. (AR 283.)

or

an

ability

to

set

realistic

goals

and

make

plans

17

The ALJ rejected Dr. Orkin’s conclusions, giving them “no weight”

18

because they are “simply not supported by the objective medical

19

findings or the longitudinal record.” Plaintiff’s first issue focuses

20

on asserted error with regard to this conclusion.

21

Plaintiff first notes that she has consistently been diagnosed

22

with bipolar disorder, and cites various portions of the record to

23

substantiate this. (JS at 4.) This conclusion was not disputed by the

24

ALJ, who in fact found that Plaintiff’s bipolar disorder is a severe

25

impairment. (AR 12.) Further, Plaintiff notes that, during separate

26

mental health appointments, there are observations of a depressed or

27

anxious mood, perceptual disturbances, restlessness, irritability, and

28

feelings of hopelessness or worthlessness. (Id.) She also points to a
3

1

test that she indicates was designed to identify symptoms consistent

2

with ADHD. (JS at 4-5, citing AR 291.)

3

Plaintiff disputes the ALJ’s conclusion that Dr. Orkin “appears

4

to have accepted the claimant’s subjective complaints, and the above-

5

noted opinions appear reflective of a position of ‘advocate’ for the

6

patient.” (JS at 5, citing AR 16.)

7

The

Court

must

determine

whether

the

ALJ’s

decision

and

8

conclusions are supported by substantial evidence in the record.

9

Plaintiff has the burden to establish that she has a medically

10

determinable severe impairment which ultimately causes her disability.

11

As noted, Plaintiff has been diagnosed with bipolar disorder, as

12

evidenced in treatment notes in the record spanning the period 2006 to

13

October 2012 (AR 208-230, 277-328); however, the Commissioner is

14

correct in pointing out that these notes show that Plaintiff was

15

stable when on medication, that her mental status examinations did not

16

demonstrate cognitive deficits (AR 208-230, 277-328); that she did

17

work (although sometimes on a part time basis) during this period (and

18

in fact in October 2012 was currently working as a caregiver). (AR 32-

19

33, 37-38, 41.) With regard to that position, Plaintiff told her

20

therapist that she “loved” this job although she indicated to the ALJ

21

that it was stressful and made her cry. (AR 37-38, 41, 299.)

22

Indeed, the ALJ’s assessment of the longitudinal records reflects

23

a thorough and fair reading of these documents. For example, on

24

January 12, 2010, Plaintiff presented to her treating facility, Kaiser

25

Permanente, with manic depressive symptoms, but indicated she was

26

doing well and that she viewed her only problem as losing Kaiser

27

Permanente health insurance. (AR 208.) During her mental status

28

examination, her anxiety level was described as “calm in session,” she
4

1

was alert and oriented, did not have suicidal ideations or overt

2

psychotic symptoms. (AR 209.) Similar conclusions were reached in a

3

mental status examination during a Kaiser Permanente visit on November

4

12, 2009. (AR 211-213.)

5

In sum, the longitudinal record that the ALJ examined does not

6

demonstrate consistent or serious mental limitations. Indeed, at one

7

point Plaintiff attended school for computer classes. Her activities

8

of daily living were robust; she indicated she had friends at church,

9

maintained good relations with her family, and enjoyed being with her

10

grandchildren.

11

Further, Plaintiff was provided with a consultative psychiatric

12

evaluation (“CE”) on November 22, 2011 (AR 237-240), which indicated

13

essentially

14

Orkin’s conclusions essentially rendered him an outlier, the ALJ

15

correctly discharged his function to weigh the evidence by examining

16

the entire record in concluding that Dr. Orkin’s opinions were not

17

entitled to credibility. In any event, one of the least favored forms

18

of medical opinion in the context of Social Security adjudications are

19

“check the box” forms such as the one that was provided by Plaintiff’s

20

current counsel to Dr. Orkin. See Batson v. Commissioner of Social

21

Security Administration, 359 F.3d 1190, 1196-1197 (9th Cir. 2004).

benign

and

normal

assessments.

Considering

that

Dr.

22

Finally, the ALJ allowed for mental limitations by assessing an

23

RFC that limited Plaintiff to the performance of simple, repetitive

24

tasks with no prolonged public contact, and solitary work not in

25

coordination with others. (AR 13.)

26

Thus, the ALJ relied not only on the record, but also the

27

conclusions of the CE, and the State Agency review physicians, who

28

noted that Plaintiff did not have significant mental difficulties with
5

1

the exception of her ability to interact with the general public and

2

maintain her concentration. (AR 15-16, 245-258, 259-262.)

3

All in all, the Court must respectfully disagree with Plaintiff’s

4

contention that the ALJ did not provide specific and legitimate

5

reasons

6

conclusions.

to

depreciate

or

in

fact

entirely

reject

Dr.

Orkin’s

7
8

II

9

THE ALJ PROPERLY CONSIDERED PLAINTIFF’S CREDIBILITY

10

In Plaintiff’s second issue, she asserts the ALJ erred in

11

depreciating her credibility as to subjective symptoms. During her

12

testimony at the hearing before the ALJ, she stated she experiences

13

some

14

impairments; that she is extremely forgetful; and that she had

15

difficulty completing tasks. (AR 34.) The ALJ found that Plaintiff’s

16

statements concerning the intensity, persistence and limiting effects

17

of her symptoms are not credible to the extent they are inconsistent

18

with the determined RFC. In making this finding, the ALJ relied upon

19

Plaintiff’s activities of daily living (“ADL”); the conflict between

20

Plaintiff’s assertions and the objective medical evidence; the fact

21

that these records also indicated that Plaintiff responded well to

22

medication; and Plaintiff’s own statements that she was doing well and

23

only regretted losing her health insurance. (AR 14-15.)

days

on

which

she

cannot

get

out

of

bed

due

to

mental

24

For reasons to be stated, the Court concludes that the ALJ did

25

find and cite to legitimate reasons to detract from Plaintiff’s

26

credibility as to her own assessment of her subjective symptoms.

27

With regard to Plaintiff’s response to her medication, the ALJ’s

28

conclusion that Plaintiff was “very stable” on medication is borne out
6

1

by the records. (AR 14, 208-230, 277-328.) See Warre v. Commissioner

2

of Social Security, 439 F.3d 1001, 1006 (9th Cir. 2006). Further, as

3

the Court has noted, the longitudinal record of Plaintiff’s treatment

4

does

5

substantially corroborate Plaintiff’s subjective claims.

not

evidence

the

type

of

disabling

symptoms

that

would

6

The ALJ must make specific credibility findings as mandated not

7

only by case law but by regulation. (See Social Security Regulation

8

[“SSR”] 96-7p.) The factors cited in the regulations are those which

9

would be expected to be referenced in any credibility determination.

10

Plaintiff’s part time work during the time she claims disability

11

are

12

activities. See McCalmon v. Astrue, 319 Fed.Appx. 658, 660 (9th Cir.

13

2009); Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); Bray v.

14

Astrue, 554 F.3d 1219, 1227 (9th Cir. 2009). As noted, during the

15

hearing, Plaintiff indicated she was working as a personal caregiver,

16

and as also noted, she had indicated to her medical professionals that

17

she loved this job.

18

a

relevant

factor

considered

alongside

her

routine

daily

Plaintiff appeared to have a consistently good reaction to

19

medications

as

reflected

in

mental

status

examinations

20

that

essentially indicated a normal level of mental functioning.

21

While Plaintiff claimed an inability to remember or to follow

22

written or verbal instructions and finish tasks, at the same time, as

23

the ALJ noted, she was able to look for work, obtain jobs and perform

24

jobs that required a mental state beyond her determined ability to

25

perform simple repetitive tasks with limited public contact and

26

solitary work.

27

With regard to the ALJ’s own observations of Plaintiff, while

28

Plaintiff dismisses these as insignificant, and certainly the Court is
7

1

aware that “sit and squirm” jurisprudence is not acceptable, at the

2

same time, an ALJ may rely upon his observations of a plaintiff’s

3

demeanor and functioning during a hearing as one factor in the

4

credibility analysis. See Berduzco v. Apfel, 188 F.3d 1087, 1090 (9th

5

Cir. 1999).

6

All in all, the Court must conclude that the credibility findings

7

here

8

requirements set out by both regulation and the Ninth Circuit.

9

Consequently, the Court rejects Plaintiff’s second issue as without

10
11
12
13

are

supported

by

substantial

evidence

and

do

meet

merit.
The decision of the ALJ will be affirmed.

The Complaint will be

dismissed with prejudice.
IT IS SO ORDERED.

14
15
16

the

DATED: August 21, 2014

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

17
18
19
20
21
22
23
24
25
26
27
28
8