Graciela Hernandez Alcala v. Carolyn W Colvin

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh; the ALJ's decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. See order for details. (jy)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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GRACIELA HERNANDEZ ALCALA,
Plaintiff,

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v.
CAROLYN W. COLVIN,
ACTING COMMISSIONER OF THE
SOCIAL SECURITY ADMINISTRATION,
Defendant.

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Case No. ED CV 14-526-PJW
MEMORANDUM OPINION AND ORDER

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I.

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INTRODUCTION

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Plaintiff appeals a decision by Defendant Social Security

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Administration (“the Agency”), denying her applications for Disability

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Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).

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She claims that the Administrative Law Judge (“ALJ”) erred when he

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rejected her treating psychologist’s opinion, found that she was not

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credible, and concluded that she could perform various jobs.

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reasons explained below, the Court concludes that the ALJ did not err.

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For the

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II.

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SUMMARY OF PROCEEDINGS

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In June 2011, Plaintiff applied for DIB and SSI, alleging that

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she had been unable to work since February 27, 2010, due to a

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combination of impairments, including high blood pressure, diabetes,

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and depression.

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81.)

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reconsideration, she requested and was granted a hearing before an

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ALJ.

(Administrative Record (“AR”) 32-39, 100, 117, 168-

After her applications were denied initially and on

(AR 98-103, 110-24.)

On October 4, 2012, she appeared with

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counsel and testified at the hearing.

(AR 24-48.)

On December 4,

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2012, the ALJ issued a decision denying the applications.

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Plaintiff appealed to the Appeals Council, which denied review.

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1-6.)

(AR 10-19.)
(AR

This action followed.

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III.

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DISCUSSION

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A.

The ALJ’s Credibility Determination

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Plaintiff testified at the administrative hearing that she

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suffered from episodes of dizziness, had gained weight over the last

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year, was unable to perform various daily activities, had blurred

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vision, and needed to lie down for four to five hours a day.

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40.)

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inconsistent with statements she had made to her doctors and because

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there was no medical basis for her claim that she had to lie down four

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to five hours a day.

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are not clear and convincing reasons for rejecting her testimony.

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(Joint Stip. at 13-15.)

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that they are.

(AR 32-

The ALJ rejected this testimony because he found that it was

(AR 17.)

Plaintiff contends that these reasons

For the following reasons, the Court finds

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ALJs are tasked with judging the credibility of witnesses,

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including the claimants.

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ordinary credibility evaluation techniques.

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1273, 1284 (9th Cir. 1996).

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medical evidence of an impairment which could reasonably be expected

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to produce the symptoms alleged and there is no evidence of

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malingering, the ALJ can only reject the testimony for specific,

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clear, and convincing reasons, id. at 1283-84, that are supported by

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substantial evidence in the record.

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In evaluating testimony, they employ
Smolen v. Chater, 80 F.3d

Where a claimant has produced objective

Thomas v. Barnhart, 278 F.3d 947,

959 (9th Cir. 2002).
The record supports the ALJ’s finding that Plaintiff’s testimony

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was inconsistent with the record.

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weighed 195 pounds at the time of the hearing in October 2012 and had

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gained 11 pounds over the last year.

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contradict that testimony.

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the hearing she weighed between 211 and 220 pounds.

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398, 406.)

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gained it.

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For example, she testified that she

(AR 35.)

The medical records

They establish that during the year before
(AR 385, 396,

Thus, she had lost weight at the time of the hearing, not

During this same period, Plaintiff was telling her treating

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doctor that she was doing relatively well.

For example, in June 2012,

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she told her doctor that her health “is generally good” and denied,

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among other things, fatigue and sleep disturbance.

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hearing four months later, however, she testified that her body hurt

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so much that she had to lie down for four or five hours a day.

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36-37.)

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treating doctor and, as the ALJ noted, there is no evidence in the

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record to support a medical basis for her having to lie down for four

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hours every day.

(AR 408.)

At the

(AR

This was obviously inconsistent with her statements to her

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The ALJ was free to focus on these contradictions in evaluating

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Plaintiff’s testimony.

Smolen, 80 F.3d at 1284 (explaining ALJs are

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entitled to rely on ordinary credibility evaluation techniques,

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including a claimant’s prior inconsistent statements concerning his

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symptoms, in evaluating his credibility).

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the administrative hearing–-that she was doing poorly--was

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qualitatively different from what she told her doctor in the months

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leading up to the administrative hearing–-that she was doing

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relatively well.

Clearly, her testimony at

And, though her testimony that she had gained weight

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over the proceeding year was not so critical in and of itself, it was

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emblematic of the fact that she was exaggerating her condition to

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appear more impaired than she was.

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concluding that she was not credible.

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As such, the ALJ did not err in

Plaintiff argues that the ALJ overlooked her son’s written

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questionnaire in which he, like Plaintiff had done, chronicled her

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many difficulties.

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ALJ’s part.

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reasons for discounting it.

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this failure mandates reversal.

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was filled out on the same day as Plaintiff’s, was, in all material

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respects, identical to Plaintiff’s submission as well as her testimony

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at the administrative hearing.

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properly rejected Plaintiff’s testimony, setting forth clear and

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convincing reasons for doing so.

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Court finds that those reasons were sufficient to explain away the

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son’s statements, too.

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Cir. 2012); Valentine v. Comm’r Soc. Security, 574 F.3d 685, 694 (9th

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Cir. 2009).

(Joint Stip. at 15.)

This was a mistake on the

He should have noted the questionnaire and set forth his
The Court does not find, however, that
Clearly, the son’s submission, which

(AR 195-202, 210-17.)

The ALJ

In the context of this case, the

See Molina v. Astrue, 674 F.3d 1104, 1117 (9th

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B.

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Plaintiff contends that the ALJ erred when he rejected her

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treating psychologist’s opinion and accepted, instead, the opinion of

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the examining psychiatrist.

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reasons, the Court finds that the ALJ did not err here.

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The Treating Psychologist’s Opinion

(Joint Stip. at 6-8.)

For the following

It is the province of the ALJ to resolve conflicts in the medical

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evidence.

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

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Generally speaking, three types of doctors supply that evidence:

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treating doctors, examining doctors, and reviewing doctors.

All other

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things being equal, treating doctors are entitled to the greatest

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weight because they are hired to cure and have more opportunity to

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know and observe the patient.

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416.927(d)(2) (“Generally, we give more weight to opinions from your

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treating sources, since these sources are likely to be the medical

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professionals most able to provide a detailed, longitudinal picture of

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your medical impairment(s) and may bring a unique perspective to the

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medical evidence that cannot be obtained from the objective medical

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findings alone or from reports of individual examinations”).

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Examining doctors are next, followed by reviewing doctors.

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v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995).

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not required to accept the opinion of any doctor and, where the

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opinion is contradicted, may reject it for specific and legitimate

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reasons that are supported by substantial evidence in the record.

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at 830.

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Id. at 1041; see also 20 C.F.R.

See Lester

ALJs, however, are

Id.

Prior to the administrative hearing, Plaintiff submitted a one-

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page letter/report from her treating psychologist in which he

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summarized her complaints and his analysis of them.

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diagnosed her with post-traumatic stress disorder (“PTSD”), which he
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(AR 356.)

He

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believed was triggered by her being laid off from her job.

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He did not, however, attempt to set forth what, if any, limitations

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this condition caused.

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notes.

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(AR 356.)

(AR 356.)

Nor did he include any treatment

The ALJ complained to Plaintiff’s counsel more than once at the

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hearing that the treating psychologist’s letter was conclusory and

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that the doctor had not submitted any treatment notes to support his

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opinion.

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and agreed to submit the records after the hearing.

(AR 31, 40.)

Plaintiff’s counsel acknowledged this problem
(AR 31.)

But

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Plaintiff and/or her counsel never submitted any treatment notes.

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Instead, they submitted an updated version of the treating

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psychologist’s original letter/report, which contained an additional

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paragraph summarizing the doctor’s thoughts since the earlier

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letter/report.

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(AR 518-19.)

The ALJ rejected this opinion because it was conclusory and was

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not supported by any treatment notes or by any other doctor.

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He accepted, instead, the examining psychiatrist’s opinion that

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Plaintiff’s psychological ailments would not prevent her from working.

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(AR 13.)

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argument is rejected.

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Plaintiff argues that the ALJ erred in doing so.

(AR 17.)

That

Doctors are not empowered to determine whether a claimant is

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disabled under Social Security law.

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(explaining medical opinion that claimant is disabled, “even when

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offered by a treating source, can never be entitled to controlling

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weight or given special significance”).

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Doctors are called upon to offer opinions as to a claimant’s medical

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condition so that an ALJ can decide if he or she is disabled.

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as is the case here, the doctors’ opinions are in conflict with one
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See Social Security Ruling 96-5p

Only an ALJ can do that.

Often,

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another and the ALJ is required to decide which opinion to accept and

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which to reject.

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strength of each doctor’s opinion.

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In doing so, the ALJ must necessarily evaluate the

The strength of a doctor’s opinion comes in large measure from

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the data, records, and evidence that he or she relied on in rendering

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the opinion.

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doctor’s treatment notes, which typically consist of a chronological

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series of entries setting out the patient’s complaints, how the doctor

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treated those complaints, and how the patient responded to the

For treating doctors, this is usually found in the

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treatment.

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also included in the treatment records.

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Often, the results of tests that have been performed are

There are still no treatment notes from the treating psychologist

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in this record, despite the fact that the ALJ pointed this out to

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Plaintiff’s counsel at the hearing–-the same counsel who represents

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Plaintiff in this appeal--and counsel told the ALJ that he would

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follow up and submit the records after the hearing.

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was more than two years ago.

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counsel has never produced any treatment notes is because they do not

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exist.

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(AR 31.)

That

The Court presumes that the reason

In the absence of any treating records, all that exists is the

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doctor’s conclusory report that Plaintiff suffers from PTSD, which the

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doctor believes was triggered by her being laid off from her job.

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356.)

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Because there are no records, it is unknown whether the doctor

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performed any tests on Plaintiff or reviewed any medical records.

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is it clear what the basis for his opinion is.

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notes that he saw Plaintiff twice monthly over an 18-month period, he

(AR

Like the ALJ, the Court questions the validity of this opinion.

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Nor

Though the doctor

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does not say how long the sessions were or what took place during

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them.

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(AR 356, 518-19.)
It appears that the opinion is based solely on Plaintiff’s claims

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of what was wrong with her and what she believed was causing her

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symptoms, which the doctor apparently accepted at face value.

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wholesale acceptance of her statements in formulating his opinion is

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particularly problematic in this case because the ALJ found that she

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was not credible.

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1041 (9th Cir. 2008) (affirming ALJ’s rejection of treating doctor’s

His

See, e.g., Tommasetti v. Astrue, 533 F.3d 1035,

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opinion, which was primarily based on claimant’s statements to doctor,

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where claimant was found to be incredible).

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failure to provide his treatment notes and any test findings severely

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undermines his opinion and supports the ALJ’s decision to reject it.

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See, e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)

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(affirming ALJ’s rejection of treating doctor’s opinion because it was

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unsupported by rationale, treatment notes, and/or objective medical

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findings).

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The treating doctor’s

In contrast to the treating doctor, the examining psychiatrist

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laid out exactly what he relied on in formulating his opinion.

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253-56.)

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mental status examination, employing a series of tests that are

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routinely seen by the Court in these types of cases.

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(AR

He took a detailed history from Plaintiff and conducted a

(AR 255.)

The ALJ was charged with resolving the contradictory opinions in

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this case.

He accepted the one that was supported by the record and

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rejected the one with little or no support.

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he erred in doing so.

The Court cannot say that

For that reason, his decision will be upheld.

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C.

Plaintiff’s Eye Impairment

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Plaintiff complains that the ALJ overlooked her diabetic

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retinopathy when listing her severe impairments.

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5.)

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acuity being 20/30 and 20/40.

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(Joint Stip. at 4-

She believes that this condition is responsible for her visual

The Agency disagrees.

It points out that the testing that

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revealed her visual acuity at 20/30 and 20/40 was done with only one

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eye open at a time and that when Plaintiff was tested with both eyes

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open her vision was 20/25 in both eyes.

(AR 248, 412.)

It points out

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further that no doctor ever suggested that her vision impacted her

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ability to work and that, in fact, the doctors who examined her eyes

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consistently noted that they were normal.

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339, 342, 344, 362, 370, 406, 408.)

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(AR 303, 305, 310, 334,

Here, again, the Court sides with the Agency.

The medical record

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does not establish that Plaintiff’s vision problems impacted her

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ability to work.

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age appears to be nearly perfect.

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experienced “flashes & floaters” and “blurry foggy vision” on occasion

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does not change the analysis nor did any doctor opine that it did.

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For this reason, her argument that the ALJ should have included

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retinopathy as a severe impairment is rejected.

In fact, her visual acuity (20/25) at 40+ years of
The fact that she reportedly

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D.

The Residual Functional Capacity Determination

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Finally, Plaintiff argues that the ALJ erred in establishing her

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residual functional capacity and, consequently, in formulating the

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hypothetical questions to the vocational expert.

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this argument.

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There is no merit to

Plaintiff contends that the ALJ erred when he failed to include
visual limitations stemming from her retinopathy in the residual
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functional capacity determination.

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however, the ALJ did not err in failing to find that her retinopathy

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or any problems with her vision caused by it impacted her ability to

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work.

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functional capacity finding or the hypothetical question to the

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vocational expert to account for it.

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1157, 1163-64 (9th Cir. 2001) (explaining ALJ only required to include

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limitations in residual functional capacity and hypothetical question

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to vocational expert that are supported by substantial evidence in the

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As the Court explained above,

Thus, the ALJ did not need to include anything in the residual

Osenbrock v. Apfel, 240 F.3d

record).
Similarly, Plaintiff complains that the ALJ failed to take into

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account her testimony that she suffered from headaches and blurry

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vision and was required to lie down for four to five hours a day.

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(Joint Stip. at 20.)

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Petitioner’s testimony, which the ALJ found was incredible.

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not, therefore, required to include them in the residual functional

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capacity finding or the hypothetical question to the vocational

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expert.

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But the evidence of these ailments came from
He was

Osenbrock, 240 F.3d at 1163-64.

The ALJ limited Plaintiff to simple and routine tasks.

(AR 14.)

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The vocational expert determined that, despite this limitation,

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Plaintiff could perform the job of electronics worker.

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Plaintiff argues that she cannot perform this job because it involves

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reasoning level two, which is beyond simple, routine work.

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does not support this argument.

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repetitive tasks is consistent with level two reasoning.

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Astrue, 580 F.3d 471, 478 (7th Cir. 2009); Renfrow v. Astrue, 496 F.3d

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918, 921 (8th Cir. 2007).

(AR 44-46.)

The law

An ability to perform simple,

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See Terry v.

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Plaintiff also claims that she cannot perform the job of

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electronics worker because it is light work and, therefore, requires

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standing for more than two hours a day.

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vocational expert testified that the reason that this job is

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categorized as light work, instead of sedentary work, is because of

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the lifting requirement (up to 20 pounds), not because of the standing

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required.

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can perform this job despite her limitation on standing.

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(AR 46.)

Plaintiff is mistaken.

The

Thus, because Plaintiff can lift 20 pounds, she

The ALJ limited Plaintiff to standing for up to two hours a day.

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(AR 14.)

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perform the job of house cleaner as a result.

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apparently disregarded this testimony but failed to explain why.

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The vocational expert testified that Plaintiff could not
(AR 46.)

The ALJ
(AR

This was error.
In the end, even with the ALJ’s erroneous finding that Plaintiff

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could work as a house cleaner, there are still enough jobs in the

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national and local economy identified by the vocational expert that

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she can perform–-electronics worker, 5,000 locally and 80,000

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nationally, and assembler, 1,300 locally and 21,000 nationally (AR 44-

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45)--to support the ALJ’s finding that she is not disabled.

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IV.

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CONCLUSION

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For these reasons, the ALJ’s decision is affirmed and the case is
dismissed with prejudice.

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IT IS SO ORDERED.

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DATED: March 4, 2015

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE
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