Frank Ramirez v. Carolyn W Colvin

Filing 18

MEMORANDUM AND ORDER by Magistrate Judge Arthur Nakazato. The clerk shall enter judgment, close the file and terminate all pending motions. (twdb)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 16 17 CENTRAL DISTRICT OF CALIFORNIA ) ) ) Plaintiff, ) ) v. ) ) CAROLYN W. COLVIN, ACTING COMMISSIONER OF THE SOCIAL ) ) SECURITY ADMINISTRATION, ) ) Defendant. ) FRANK RAMIREZ, Case No. EDCV 13-01483 AN MEMORANDUM AND ORDER 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 21 matter is now ready for decision. 22 23 Issue #1 Plaintiff contends that the Administrative Law Judge (“ALJ”) failed to give 24 specific, clear and convincing reasons for rejecting his subjective complaints regarding 25 the severity of his symptoms and limitations. (JS 3-8.) 26 Plaintiff suffers from the severe impairments of human immunodeficiency virus 27 (“HIV”), and depressive disorder, not otherwise specified. (AR 11.) Plaintiff testified that 28 he is unable to perform household chores, prepare meals, or grocery shop, and is limited 1 to walking 200 yards at a time, standing 1 hour at a time, and sitting 2 to 3 hours at a 2 time. (AR 13, 44-45.) Plaintiff alleges that his symptoms include depression, panic 3 attacks, night sweats, fatigue, and dizziness. (AR 13, 37.) 4 The ALJ found that Plaintiff’s statements concerning his symptoms and limitations 5 were not credible to the extent they were inconsistent with a residual functional capacity 6 (“RFC”) for a limited range of light work.1/ (AR 12-15.) In finding Plaintiff less than fully 7 credible, the ALJ noted that Plaintiff’s complaints of fatigue and other reported 8 debilitating symptoms related to HIV were unsupported by the objective medical 9 evidence. (AR 13-15.) While subjective symptom testimony may not be rejected on the 10 sole ground that it was not fully corroborated by objective medical evidence, the medical 11 evidence was still a relevant factor in determining the severity of Plaintiff’s pain and 12 symptoms. See 20 C.F.R. § 416.929(c)(2); Rollins v. Massanari, 261 F.3d 853, 857 (9th 13 Cir. 2001) (objective medical evidence may not be sole reason for discounting credibility 14 but is nonetheless a legitimate and relevant factor to be considered in assessing 15 credibility). Here, the ALJ found that the relevant treatment records consistently 16 documented Plaintiff’s HIV as stable. (AR 13-14, 162, 165, 166, 208, 306, 308-09, 311, 17 314-16.) Lab tests also showed that Plaintiff’s HIV was controlled with antiretroviral 18 medication therapy. (AR 13-14, 138, 144, 157, 159, 248-49, 251, 254, 256-57, 263-64, 19 268-69, 273-74, 278-79, 282-83, 286-87, 299-300, 353-54.) In addition, a physical 20 examination of Plaintiff conducted in August 2010 by a consultative internist was 21 generally unremarkable. (AR 14, 323-27.) In sum, the conflict between Plaintiff’s 22 subjective complaints and the objective medical evidence supported the ALJ’s adverse 23 credibility determination. See, e.g., Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 24 25 1/ Specifically, the ALJ determined that Plaintiff is capable of the following: lifting, carrying, pushing and pulling 20 pounds occasionally and 10 pounds frequently; standing 26 and/or walking 6 hours in an 8-hour workday; sitting 6 hours in an 8-hour workday; climbing ramps and stairs occasionally; and balancing, stooping, kneeling, crouching, and 27 crawling frequently. (AR 12.) The ALJ further found that Plaintiff is able to perform routine and repetitive work, but is precluded from climbing ladders, ropes or scaffolds, 28 and must avoid all exposure to hazards, fumes, dust, and biological/chemical hazards. (AR 12.) Page 2 1 595, 600 (9th Cir. 1999) (ALJ may properly rely on conflict between claimant’s 2 testimony of subjective complaints and objective medical evidence in the record); see 3 also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) 4 (explaining that impairments that can be controlled effectively with medication are not 5 disabling for purposes of determining eligibility for benefits); Tidwell v. Apfel, 161 F.3d 6 599, 601-02 (9th Cir. 1999) (in assessing claimant’s credibility, the ALJ did not err in 7 considering that medication aided the claimant’s symptoms). 8 The ALJ also properly cited Plaintiff’s ability to participate in normal daily 9 activities, which included cooking, performing housework, grocery shopping, driving, 10 maintaining his personal care, taking care of his finances and going for short walks. (AR 11 13, 323, 329.) The ALJ explained that some of the physical and mental abilities and 12 social interactions associated with Plaintiff’s daily activities were the same as those 13 necessary for obtaining and maintaining employment. (AR 13.) Although the level of 14 Plaintiff’s activities may not suggest an automatic inference that Plaintiff is capable of 15 working, Plaintiff’s activities were at odds with his testimony describing extremely 16 limited functioning. (AR 44-45.) The inconsistency between Plaintiff’s testimony 17 describing extreme functional limitations and his admitted daily activities constituted a 18 specific, clear and convincing reason for finding Plaintiff’s subjective complaints less 19 than fully credible.(AR 13); see Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 20 1227 (9th Cir. 2009) (ALJ may consider inconsistencies between the claimant’s 21 testimony and her conduct, daily activities, and other factors in reaching a credibility 22 determination); Curry v. Sullivan, 925 F.2d 1127, 1130 (9th Cir. 1990) (finding that 23 claimant’s ability to “take care of her personal needs, prepare easy meals, do light 24 housework and shop for some groceries . . . may be seen as inconsistent with the presence 25 of a condition which would preclude all work activity”). 26 Accordingly, Plaintiff is not entitled to a reversal or remand based upon Issue #1. 27 /// 28 /// Page 3 1 2 Issue #2 Plaintiff contends that the ALJ improperly rejected the opinion of his treating 3 physician, Ryan Zane, M.D. (JS 12-16.) In June 2010, Dr. Zane assessed Plaintiff’s 4 ability to do work-related activities by completing a two-page HIV questionnaire 5 physician statement form. (AR 203-08.) Dr. Zane reported on Plaintiff’s most recent lab 6 results and indicated that Plaintiff appeared chronically ill and visibly fatigued due to 7 HIV and depression. (AR 207-08.) Dr. Zane opined that Plaintiff was limited to lifting 8 and carrying 10 pounds occasionally and less than 10 pounds frequently, standing and 9 walking less than 2 hours at a time, and sitting 6 hours at a time. (AR 207.) When asked 10 how long these findings and limitations had been present, Dr. Zane responded, “Pt. states 11 limitation since Feb/2008.” (AR 207.) And, when asked to describe the objective findings 12 to support the assessed limitations, Dr. Zane responded, “Patient’s HIV is controlled with 13 H.A.A.R.T. [medication].” (AR 208.) Dr. Zane also checked a box on the physician 14 statement form to indicate that there were findings of a diagnosed mental impairment. 15 (AR 208.) However, when asked for a description of the signs supporting the diagnosis, 16 Dr. Zane failed to give a response. (AR 208.) 17 The ALJ permissibly rejected the extreme functional limitations assessed by Dr. 18 Zane in the HIV questionnaire physician’s statement, as unsupported by the objective 19 medical evidence. (AR 14-15); see Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 20 2005) (noting that an ALJ need not accept a physician’s opinion that is brief, conclusory 21 and inadequately supported by clinical findings); Batson v. Comm’r of Soc. Sec. Admin., 22 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that the ALJ did not err in giving “minimal 23 evidentiary weight” to controverted treating source opinions that were “in the form of a 24 checklist,” and lacked supportive objective medical findings). Dr. Zane failed to provide 25 adequate explanation to substantiate his assertions that Plaintiff has disabling functional 26 limitations, and his treatment notes lacked substantive medical findings to support his 27 conclusions. As discussed above and acknowledged by Dr. Zane himself, Plaintiff’s HIV 28 was controlled with antiretroviral medication. (AR 13-14, 138, 144, 157, 159, 162, 165, Page 4 1 166, 208, 248-49, 251, 254, 256-57, 263-64, 268-69, 273-74, 278-79, 282-83, 286-87, 2 299-300, 306, 308-09, 311, 314-16, 353-54.) Moreover, the ALJ noted that Dr. Zane 3 appeared to have based his opinion on Plaintiff’s subjective complaints. (AR 15, 207.) 4 This finding is supported by the HIV questionnaire physician statement. (AR 207.) 5 Because the present record supports the ALJ’s decision to discount Plaintiff’s credibility, 6 as discussed above, the ALJ properly disregarded Dr. Zane’s opinion, to the extent it was 7 premised on Plaintiff’s subjective complaints. Tonapetyan v. Halter, 242 F.3d 1144, 1149 8 (9th Cir. 2001); Fair v. Bowen, 885 F.2d 597, 605 (9th Cir. 1989).Thus, the record does 9 not support Dr. Zane’s conclusion that Plaintiff’s impairments caused the extreme 10 functional limitations assessed. Bayliss, 427 F.3d at 1217. 11 Plaintiff asserts that the ALJ had a duty to recontact Dr. Zane to ascertain the basis 12 for his opinion or to obtain additional evidence. (JS 15.) This contention lacks merit. The 13 ALJ’s “duty to develop the record further is triggered only when there is ambiguous 14 evidence or when the record is inadequate to allow for proper evaluation of the evidence.” 15 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001). Dr. Zane’s opinion was not 16 ambiguous. He was asked to identify medical or clinical findings supporting his opinion, 17 but failed to do so. (AR 207-08.) The record was also not inadequate to allow for proper 18 evaluation of Dr. Zane’s functional capacity assessment. The record contained numerous 19 treatment records describing Plaintiff’s HIV condition as stable and well controlled. (AR 20 138, 144, 157, 159, 162, 165, 166, 208, 248-49, 251, 254, 256-57, 263-64, 268-69, 27321 74, 278-79, 282-83, 286-87, 299-300, 306, 308-09, 311, 314-16, 353-54.) Under these 22 circumstances, the ALJ did not commit legal error by failing to recontact Dr. Zane. See 23 Mayes, 276 F.3d at 459-460 (rejecting the argument that the ALJ breached his duty to 24 develop the record as an impermissible attempt to shift the burden of proving disability 25 away from the claimant). 26 /// 27 /// 28 /// Page 5 1 Accordingly, Plaintiff is not entitled to a reversal or remand based upon Issue #2. 2 3 ORDER The Court finds that the ALJ’s determination of non-disability is free of legal error 4 and supported by substantial evidence in the record. Therefore, Plaintiff’s request for an 5 order directing the payment of benefits or remanding this case for further proceedings is 6 DENIED, and the Commissioner’s request for an order affirming the Commissioner’s 7 final decision and dismissing the action is GRANTED. The clerk shall enter judgment, 8 close the file and terminate all pending motions. 9 10 11 DATED: June 16, 2014 12 ARTHUR NAKAZATO UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 6

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