Eileen M Moreno v. Micheal J Astrue

Filing 17

ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Robert N. Block, re Joint Stipulation for Social Security Cases 16 . (twdb)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 EILEEN M. MORENO, ) Case No. EDCV 12-0747 RNB ) Plaintiff, ) ) ORDER AFFIRMING DECISION OF vs. ) COMMISSIONER ) CAROLYN W. COLVIN, Acting ) Commissioner of Social ) Security,1 ) Defendant. ) _____________________________ ) 17 18 The Court now rules as follows with respect to the two disputed issues listed 19 in the Joint Stipulation.2 20 21 1 The Acting Commissioner is hereby substituted as the defendant pursuant to Fed. R. Civ. P. 25(d). No further action is needed to continue this case 23 by reason of the last sentence of 42 U.S.C. § 405(g). 24 2 As the Court advised the parties in its Case Management Order, the 25 decision in this case is being made on the basis of the pleadings, the administrative 26 record (“AR”), and the Joint Stipulation (“Jt Stip”) filed by the parties. In accordance with Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined 27 which party is entitled to judgment under the standards set forth in 42 U.S.C. § 28 405(g). 22 1 1 A. Reversal is not warranted based on the ALJ’s alleged failure to make a 2 proper adverse credibility determination (Disputed Issue No 2). 3 Disputed Issue No. 2 is directed to the ALJ’s adverse credibility determination. 4 (See Jt Stip at 15-19.) 5 An ALJ’s assessment of pain severity and claimant credibility is entitled to 6 “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. 7 Heckler, 779 F.2d 528, 531 (9th Cir. 1986). Under the “Cotton test,” where the 8 claimant has produced objective medical evidence of an impairment which could 9 reasonably be expected to produce some degree of pain and/or other symptoms, and 10 the record is devoid of any affirmative evidence of malingering, the ALJ may reject 11 the claimant’s testimony regarding the severity of the claimant’s pain and/or other 12 symptoms only if the ALJ makes specific findings stating clear and convincing 13 reasons for doing so. See Cotton v. Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986); see 14 also Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); Dodrill v. Shalala, 12 15 F.3d 915, 918 (9th Cir. 1993); Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) 16 (en banc). 17 Here, plaintiff testified that she was unable to work because of pain in her legs 18 and arms, lack of energy, difficulty with focusing, and an inability to stand or sit for 19 a long period of time. (See AR 64.) The ALJ determined that although plaintiff’s 20 medically determinable impairments could reasonably be expected to cause the 21 alleged symptoms, plaintiff’s symptoms concerning the intensity, persistence, and 22 limiting effects of these symptoms were not credible to the extent they were 23 inconsistent with the ALJ’s assessment of plaintiff’s residual functional capacity 24 (“RFC”). (See AR 46.) 25 In support of this adverse credibility determination, the ALJ proffered multiple 26 reasons. For example, the ALJ noted that no objective medical findings supported 27 the degree of limitation alleged and cited several inconsistencies between plaintiff’s 28 subjective symptom testimony and the objective medical findings. (See AR 46-49.) 2 1 Specifically, the ALJ noted that although plaintiff had tested positive for hepatitis C 2 in May 2008, she had done well on treatment, and the virus had cleared by May 2009. 3 (See AR 46-47; see also AR 348, 605-06.) The ALJ also noted that during a 4 rheumatological evaluation in March 2008, the treating physician found no evidence 5 of inflammatory arthritis or inflammatory myelopathy but simply assessed generalized 6 pain of unclear etiology. (See AR 47; see also AR 500-01.) The ALJ also noted that 7 during an examination in May 2008, the treating physician concluded that plaintiff’s 8 pain was not characteristic of any neurologic disease, but that the examination was 9 difficult due to inconsistencies and giveaway weakness. (See AR 47; see also AR 10 485.) The ALJ also noted that x-rays of plaintiff’s lumbar spine, sacrum, and coccyx 11 revealed no abnormalities. (See AR 48; see also AR 654, 747.) The ALJ also noted 12 that during a consultative examination in June 2009, plaintiff complained of back 13 pain and joint pain, but the examining physician’s clinical findings were “normal” or 14 “negative.” (See AR 48; see also AR 575-77.) The ALJ also noted that plaintiff 15 reported a history of fibromyalgia, but two physicians found no discrete tender points 16 during separate examinations, and the medical expert saw no clinical evidence to 17 support a diagnosis of fibromyalgia. (See AR 48; see also AR 76, 500, 576-77.) The 18 ALJ also noted that during a psychiatric evaluation in May 2009, the examining 19 psychiatrist (1) diagnosed a depressive disorder, not otherwise specified, with mild 20 to moderate stressors, and (2) assigned a Global Assessment of Functioning (“GAF”) 21 score of 70, which indicated that plaintiff had only mild symptoms and was generally 22 functioning “pretty well.”3 (See AR 48-49; see also AR 570.) Relatedly, the ALJ 23 noted that plaintiff’s daily activities, which were severely restricted, appeared to have 24 been self limited and not commensurate with functional limitations imposed by her 25 3 A GAF score of 61-70 indicates “some mild symptoms . . . but generally functioning pretty well.” See American Psychiatric Association, Diagnostic and 27 Statistical Manual of Mental Disorders, 32 (4th ed.). 28 26 3 1 medically determinable impairments. (See AR 49.) The Court finds that this 2 constituted a clear and convincing reason for not crediting plaintiff’s subjective 3 symptom testimony. See Chaudhry v. Astrue, 688 F.3d 661, 672 (9th Cir. 2012) (ALJ 4 may properly rely on lack of objective support for complaints of depression); Morgan 5 v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may 6 properly consider conflict between claimant’s testimony of subjective complaints and 7 objective medical evidence in the record); Tidwell v. Apfel, 161 F.3d 599, 602 (9th 8 Cir. 1998) (ALJ may properly rely on weak objective support for the claimant’s 9 subjective complaints); Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995) (ALJ may 10 properly rely on lack of objective evidence to support claimant’s subjective 11 complaints); Nyman, 779 F.2d at 531 (noting that “a claimant’s self-serving 12 statements may be disregarded to the extent they are unsupported by objective 13 findings”). 14 The ALJ also noted that, although plaintiff testified that she was unable to 15 obtain mental health treatment because of insurance problems, there was evidence 16 that she had not been compliant with her treating psychiatrist’s recommendation that 17 she attend group therapy. (See AR 49; see also AR 345, 484.) The Court finds that 18 this constituted a clear and convincing reason for not crediting plaintiff’s subjective 19 symptom testimony. See Bunnell, 947 F.2d at 346 (ALJ may properly rely on 20 plaintiff’s unexplained or inadequately explained failure to seek treatment or follow 21 prescribed course of treatment); Fair v. Bowen, 885 F.2d 597, 603-04 (9th Cir. 1989) 22 (same); see also Molina v. Astrue, 674 F.3d 1104, 1114 (9th Cir. 2012) (ALJ may 23 properly rely on claimant’s failure to pursue mental health treatment where resistance 24 was attributable not to a mental impairment, but to claimant’s own personal 25 preference). 26 The ALJ also noted that plaintiff’s medical treatment had been conservative in 27 nature and not commensurate with the degree of limitation alleged, and that the 28 medical records had not reflected debilitating side effects from medical treatment that 4 1 lasted or were expected to last 12 continuous months. (See AR 49.) The Court finds 2 that this constituted a clear and convincing reason for not crediting plaintiff’s 3 subjective symptom testimony. See Parra v. Astrue, 481 F.3d 742, 751 (9th Cir. 4 2007) (evidence of conservative treatment is sufficient to discount a claimant’s 5 testimony regarding severity of an impairment); Johnson v. Shalala, 60 F.3d 1428, 6 1434 (9th Cir. 1995) (ALJ may properly rely on the fact that only conservative 7 treatment had been prescribed); Orteza, 50 F.3d at 750 (ALJ may properly rely on 8 lack of side effects from prescribed medications). 9 The ALJ also noted that plaintiff had made inconsistent statements regarding 10 why she left her last job: although plaintiff testified that she stopped working due to 11 pain, she reported to one of her doctors that she had experienced an altercation at 12 work, after which she stopped working, and that she had a pending sexual harassment 13 lawsuit against another employee. (See AR 49; see also AR 63, 483.) The Court 14 finds that this constituted a clear and convincing reason for not crediting plaintiff’s 15 subjective symptom testimony. See Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th 16 Cir. 2001) (ALJ properly discredited claimant’s testimony because of her inconsistent 17 statements); Smolen, 80 F.3d at 1283-84 (ALJ may consider claimant’s inconsistent 18 statements in evaluating credibility). 19 The Court therefore finds and concludes that reversal is not warranted based 20 on the ALJ’s alleged failure to make a proper adverse credibility determination. 21 22 B. Reversal is not warranted based on the ALJ’s consideration of the medical 23 evidence in determining plaintiff’s residual functional capacity (Disputed 24 Issue No 1). 25 Disputed Issue No. 1 is directed to the ALJ’s determination that plaintiff had 26 an RFC for light work, based on the opinions of Dr. Nafoosi, Dr. To, and Dr. Han. 27 (See Jt Stip at 5-9.) Specifically, plaintiff contends that the ALJ’s reliance on these 28 opinions was improper because (1) Dr. Nafoosi, the medical expert, had allowed his 5 1 board certification in internal medicine to expire in 2007, but the ALJ represented 2 that it was current; (2) Dr. To, the examining physician, had no opportunity to review 3 plaintiff’s medical records as part of the examination and rendered an opinion that 4 was inconsistent with the records; and (3) Dr. Han, the state agency physician, 5 rendered an opinion that relied on the defective opinion of Dr. To. (See id.) 6 The Court disagrees. First, with respect to Dr. Nafoosi, there was no evidence 7 that his expired board certification played a significant role in the ALJ’s evaluation 8 of the medical evidence. Although a physician’s board certification or specialization 9 may be a basis to accord additional weight to that physician’s opinion, see 20 C.F.R. 10 §§ 404.1527(c)(5), 416.927(c)(5), it did not appear that the ALJ accorded any 11 deference to Dr. Nafoosi’s opinion on that basis. Specifically, the ALJ made only a 12 passing reference to Dr. Nafoosi’s board certification status (see AR 43) and did not 13 cite Dr. Nafoosi’s credentials as a basis for evaluating his opinion or the medical 14 evidence on the whole. Instead, the ALJ exhaustively detailed Dr. Nafoosi’s 15 testimony (see AR 43) and explained that Dr. Nafoosi’s opinion was being accorded 16 considerable weight for the independent reason that it was “well supported by the 17 objective medical evidence of record” (see AR 49). Accordingly, since there was no 18 evidence that the ALJ accorded any undue weight to his mistaken belief about Dr. 19 Nafoosi’s board certification status, the Court finds that the error was harmless. See 20 Stout v. Commissioner, Social Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006) 21 (ALJ’s error is harmless when it is “inconsequential to the ultimate nondisability 22 determination”).4 23 24 4 The Court notes that another court in this district has reached a different 25 conclusion on this issue. In Bogosian v. Astrue, 2012 WL 1956861, at *2-*3 (C.D. 26 Cal. May 31, 2012), the court found that Dr. Nafoosi’s “sin of omission” about his lapsed board certification was a basis for reversal after agreeing with the claimant that 27 it was “an important factor in the weight given to Dr. Nafoosi’s opinion.” Here, the 28 reasoning of Bogosian does not apply because the ALJ’s mistaken belief about Dr. 6 1 Second, with respect to Dr. To, the Court rejects plaintiff’s contention that the 2 ALJ was not entitled to accord considerable weight to his opinion because Dr. To did 3 not have an opportunity to review plaintiff’s medical records during the consultative 4 examination. Although the Commissioner generally should provide examining 5 physicians the necessary background information about a claimant’s condition, see 6 20 C.F.R. §§ 404.1517, 416.917, the Court finds that reversal is not warranted on that 7 basis in light of the circumstances here. Dr. To conducted a thorough examination 8 resulting in independent clinical findings and reached an opinion about plaintiff’s 9 functional limitations that was generally consistent with plaintiff’s medical record. 10 Dr. To’s opinion also was consistent with that of a state agency physician, who did 11 have an opportunity to review the entire record. See, e.g., Debbs v. Astrue, 2012 WL 12 5544077, at *7 (E.D. Cal. Nov. 14, 2012) (examining physician’s lack of opportunity 13 to review claimant’s record was not basis for reversal where his opinion was 14 supported by a thorough examination resulting in independent clinical findings and 15 was generally consistent with other evidence and opinions in the record); Pearson v. 16 Astrue, 2010 WL 3036005, at *3 (E.D. Cal. Aug. 2, 2010) (failure to provide 17 pertinent objective evidence to examining physician was not reversible error where 18 another reviewing physician who did have access to the evidence came to the same 19 conclusion as the examining physician). Moreover, to the extent that plaintiff 20 contends that Dr. To’s opinion was inconsistent with the medical record (see Jt Stip 21 at 9), the Court notes that plaintiff purports to support her contention with portions 22 of the medical record that only documented her subjective symptom complaints, 23 which the ALJ properly rejected. 24 // 25 26 Nafoosi’s board certification status was not an important factor in the weight given to his opinion; rather, the ALJ accorded considerable weight to Dr. Nafoosi’s opinion 28 because it was well supported by the objective medical evidence of record. 27 7 1 Third, with respect to Dr. Han, the Court rejects plaintiff’s contention that Dr. 2 Han’s opinion could not constitute substantial evidence because it was based on Dr. 3 To’s opinion. (See Jt Stip at 15.) Rather, the Court finds that Dr. Han’s opinion 4 constituted substantial evidence because it was consistent with other evidence in the 5 medical record, which was not limited to the opinion of Dr. To. See Thomas v. 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or 7 non-examining physicians may also serve as substantial evidence when the opinions 8 are consistent with independent clinical findings or other evidence in the record.”). 9 10 ******************* IT THEREFORE IS ORDERED that Judgment be entered affirming the 11 decision of the Commissioner and dismissing this action with prejudice. 12 13 DATED: April 16, 2013 14 15 16 ROBERT N. BLOCK UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 8

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