Aqela Akbary v. Michael J Astrue

Filing 32

MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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AQELA AKBARY,

)
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Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
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Defendant.
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___________________________________)

NO. SACV 10-00793-MAN
MEMORANDUM OPINION
AND ORDER

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Plaintiff filed a Complaint on June 17, 2010, seeking review of the

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denial of plaintiff’s application for supplemental security income

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(“SSI”). On July 27, 2010, the parties consented, pursuant to 28 U.S.C.

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§ 636(c), to proceed before the undersigned United States Magistrate

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Judge.

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February 14, 2011, in which:

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Commissioner’s decision and remanding this case for the payment of

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benefits or, alternatively, for further administrative proceedings; and

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the

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alternatively, remanded for further administrative proceedings.

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Stip. at 5, 7-8, 11, 16-17.)

The parties filed a Joint Stipulation (“Joint Stip.”) on

Commissioner

requests

plaintiff seeks an order reversing the

that

his

decision

be

affirmed

or,

(Joint

1

On October 4, 2011, this Court issued a minute order (“Minute

2

Order”)

requesting

3

Commissioner filed a Response to the Minute Order on October 21, 2011,

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and plaintiff

5

Response”).

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telephonic conferences with the Court, and the Court thereafter took the

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parties’ Joint Stip. and supplemental briefing under submission.

filed

supplemental

a

Response

briefing

on

by

both

October 24,

parties.

The

2011 (“Plaintiff’s

On November 17 and 24, 2011, the parties participated in

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9

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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On February 19, 2004, plaintiff filed an application for SSI.

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(Administrative Record (“A.R.”) 72-73, 256.) Plaintiff, who was born on

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December 8, 1962 (A.R. 20),1 claims to have been disabled since January

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14, 2004 (A.R. 9), due to anxiety, depression, and various aches and

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pains.2

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apparent past relevant work experience.

(A.R. 12-15, 257-58; Joint Stip. at 2.)

Plaintiff has no

(A.R. 20-21.)

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18

After the Commissioner denied plaintiff’s claim initially and upon

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reconsideration (A.R. 256), plaintiff requested a hearing (A.R. 47, 55-

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1
On the date the application was filed, plaintiff was 41 years
old, which is defined as a younger individual. (A.R. 20; citing 20
C.F.R. § 416.963.)

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2

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In addition to allegations of mental problems, [plaintiff]
alleges she has pain in her lower back and left leg, has
migraine headaches, dizziness and asthma; and cannot lift with
her right hand due to having broken her wrist. [Plaintiff]
reports that her pain is constant, especially in terms of her
back with pain spreading to her upper back at time and
headaches. She also reports she is fatigued all the time.

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26
27
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In her decision, the Administrative Law Judge notes that:

(A.R. 12; internal citations omitted.)
2

1

56).

On September 25, 2006, plaintiff, who was represented by counsel,

2

appeared and testified with the assistance of interpreter Jayla Rochan

3

at a hearing before Administrative Law Judge Helen E. Hesse (the “ALJ”).

4

(A.R. 318-357.)

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Stephen Berry, and plaintiff’s daughter, Zermina Akbary, also testified.

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(Id.)

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61), and the Appeals Council subsequently denied plaintiff’s request for

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review of the ALJ’s decision (A.R. 306-09).

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sought review in this Court, which remanded the case for further

Medical expert Joseph Malancharvil, vocational expert

On October 27, 2006, the ALJ denied plaintiff’s claims (A.R. 256-

On June 12, 2007, plaintiff

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proceedings in an August 14, 2008 Order (“Remand Order”).

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(A.R. 452-

65.)

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On February 27, 2009, the Appeals Council effectuated the Court’s

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Remand Order and remanded the matter to the ALJ for further actions

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consistent with the Remand Order.

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also directed that plaintiff have an opportunity for a supplemental

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hearing and that a subsequent, duplicative SSI application, filed by

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plaintiff on January 29, 2008, be consolidated with the remanded case.

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(Id.)

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attorney and assisted by Pashto interpreter Kasem Gardizi, testified

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before the ALJ at a supplemental hearing.

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expert

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daughter, Zarmina Akbary, also testified.

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ALJ denied plaintiff’s claims.

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issue in this action.

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///

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///

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///

(A.R. 310-11.)

The Appeals Council

On September 1, 2009, plaintiff, who was represented by an

Sami

Nafoosi,

vocational

expert

(A.R. 421-51.)
Alan

(Id.)

(A.R. 9-22.)

3

Ey,

and

Medical

plaintiff’s

On March 24, 2010, the

That decision is now at

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SUMMARY OF ADMINISTRATIVE DECISION

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3

The ALJ found that plaintiff has not engaged in substantial gainful

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activity since February 19, 2004, her application date. (A.R. 11.) The

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ALJ determined that plaintiff has the following severe impairments:

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“somatoform disorder not otherwise specified; anxiety disorder not

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otherwise

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specified.”

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an impairment or a combination of impairments that meets or equals one

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of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1

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(20 C.F.R. § 416.920(d), 416.925, 416.926).

specified,
(Id.)

mild;

and

depressive

disorder

not

otherwise

The ALJ also determined that plaintiff does not have

(A.R. 15.)

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13

After reviewing the record, the ALJ determined that plaintiff has

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the residual functional capacity (“RFC”) to perform a full range of work

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at all exertional levels with the following nonexertional limitations:

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“[plaintiff] can perform moderately complex tasks, up to four steps,

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requiring no hypervigilence [sic]; and she should not be in charge of

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safety operations of others.”

(A.R. 16.)

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The

ALJ

determined

that

plaintiff

has

no

past

relevant work

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experience and, therefore, transferability of job skills is not an

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issue.

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work experience, RFC, and the testimony of the vocational expert, the

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ALJ found that jobs exist in the national economy that plaintiff could

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perform, including dining room attendant, hand packager, and laundry

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laborer.

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not been under a disability, as defined in the Social Security Act,

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since February 19, 2004, the date her SSI application was filed.

(A.R. 20-21.)

(A.R. 21.)

Having considered plaintiff’s age, education,

Accordingly, the ALJ concluded that plaintiff has

4

(A.R.

1

22.)

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s

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decision to determine whether it is free from legal error and supported

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by substantial evidence in the record as a whole.

8

F.3d 625, 630 (9th Cir. 2007).

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evidence as a reasonable mind might accept as adequate to support a

Orn v. Astrue, 495

Substantial evidence is “‘such relevant

10

conclusion.’”

Id. (citation omitted).

The “evidence must be more than

11

a mere scintilla but not necessarily a preponderance.”

12

Barnhart, 340 F.3d 871, 873 (9th Cir. 2003).

13

record can constitute substantial evidence, only those ‘reasonably drawn

14

from the record’ will suffice.”

15

1066 (9th Cir. 2006)(citation omitted).

Connett v.

“While inferences from the

Widmark v. Barnhart, 454 F.3d 1063,

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Although this Court cannot substitute its discretion for that of

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the Commissioner, the Court nonetheless must review the record as a

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whole, “weighing both the evidence that supports and the evidence that

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detracts from the [Commissioner’s] conclusion.”

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Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also

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Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

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responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities.”

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1035, 1039 (9th Cir. 1995).

Desrosiers v. Sec’y of

“The ALJ is

Andrews v. Shalala, 53 F.3d

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The Court will uphold the Commissioner’s decision when the evidence
is susceptible to more than one rational interpretation.
5

Burch v.

1

Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

2

review only the reasons stated by the ALJ in his decision “and may not

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affirm the ALJ on a ground upon which he did not rely.”

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at 630; see also Connett, 340 F.3d at 874.

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the Commissioner’s decision if it is based on harmless error, which

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exists only when it is “clear from the record that an ALJ’s error was

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‘inconsequential to the ultimate nondisability determination.’” Robbins

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v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v.

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Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d

10

However, the Court may

Orn, 495 F.3d

The Court will not reverse

at 679.

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DISCUSSION

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Plaintiff claims that the ALJ:

(1) failed to comply with the

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Remand Order; and (2) improperly considered the treating doctors’

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opinions regarding plaintiff’s inability to work.

(Joint Stip. at 3.)

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I.

The Alleged Failure To Comply With The Remand Order Does Not
Warrant Remand.

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It is well established that an ALJ must comply with a district

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court’s remand order.

Sullivan v. Hudson, 490 U.S. 877, 886, 109 S. Ct.

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2248, 104 L. Ed. 2d 941 (1989)(noting that “[d]eviation from the court’s

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remand order in the subsequent administrative proceedings is itself

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legal error, subject to reversal on further judicial review”). However,

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as with other errors, an ALJ’s failure to comply with a court’s remand

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order is subject to a harmless error analysis.

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679 (“A decision of the ALJ will not be reversed for errors that are
6

See Burch, 400 F.3d at

1

harmless”); Juarez v. Astrue, 2011 U.S. Dist. LEXIS 96220, at *6 (C.D.

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Cal. Aug. 26, 2011)(applying harmless error analysis to ALJ’s failure to

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comply with a court’s remand order); Banquet v. Astrue, 2011 U.S. Dist.

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LEXIS 6879, at *12 (C.D. Cal. Jan. 24, 2011)(same); Fuller v. Astrue,

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2010 U.S. Dist. LEXIS 122676, at *6 (D. Ariz. Nov. 5, 2010)(same).

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In its Remand Order, dated August 14, 2008, this Court noted that:

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As the ALJ recognized that [p]laintiff needed to see a

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culturally-appropriate doctor to obtain a proper disability

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determination, the ALJ should have ensured that a suitable

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examination was obtained.

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[p]laintiff

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treatment, the ALJ should have met her burden of developing

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the record.

failed

to

Once the ALJ was made aware that
receive

the

requisite

follow-up

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(A.R. 462-63; emphasis in original.)

Accordingly, the Court remanded

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the matter so that the ALJ could develop properly the record regarding

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plaintiff’s claimed mental impairment.

(A.R. 452-64.)

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Prior to the issuance of the Remand Order, however, plaintiff

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received a psychiatric evaluation from consultative examiner Ernest A.

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Bagner, M.D., a board eligible psychiatrist, apparently in connection

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with plaintiff’s subsequent, January 29, 2008 SSI application.

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310.)

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otherwise specified, and opined that plaintiff would be “significantly

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better” with psychiatric treatment.

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assessment of plaintiff, Dr. Bagner concluded that plaintiff would have:

(A.R.

Dr. Bagner diagnosed plaintiff with depressive disorder, not

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(A.R. 384-85.)

Based on his

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“no limitations interacting with supervisors, peers or the public,”

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“zero to mild limitations maintaining concentration and attention and

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completing

tasks”;

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completing

a

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moderate limitations handling normal stresses at work.”3

“mild

normal

limitations

workweek

completing

without

complex

interruption”;

and

tasks
“mild

and
to

(A.R. 385.)

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7

Following the issuance of this Court’s Remand Order, the Appeals

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Council vacated the ALJ’s March 24, 2010 decision, remanded the matter

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for further proceedings consistent with the Remand Order, and directed

10

that plaintiff’s subsequent, duplicative SSI application be consolidated

11

with the remanded case. (A.R. 310-11.)

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13

In

her

post-remand

decision,

the

ALJ notes

that

the

Appeals

14

Council, pursuant to the Remand Order, “directed [her] to fully and

15

fairly develop the record regarding [plaintiff]’s mental impairment.”

16

(A.R. 9.)

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the care of any mental health professional since her treatment at

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Windstone

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psychiatric evaluation [in March 2008] while this case was pending at

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the District Court.”

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with the help of Jaleh Roshan, an interpreter.”

The ALJ also notes that, while plaintiff “has not been under

Behavioral

Health

(Id.)

in

2006,”

she

did

have

“a

complete

That psychiatric evaluation “was completed
(A.R. 382.)

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23

Plaintiff argues that the ALJ failed to comply with the Remand

24

Order, because she did not develop the record and obtain a proper

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26
27
28

3

Although the ALJ afforded Dr. Bagner’s opinion great weight,
the ALJ accorded “greater weight” to the opinion of medical expert
Joseph Malancharuvil, Ph.D., a psychologist, because his assessment was
“more consistent with the record as a whole and accord[ed] [plaintiff]
every reasonable benefit of the doubt.” (A.R. 18.)
8

1

consultative examination from a culturally sensitive and/or appropriate

2

doctor for plaintiff, as directed.

3

record before the Court, there is no evidence to indicate that Dr.

4

Bagner was not a culturally sensitive and/or appropriate doctor or that

5

there

6

diagnosis

7

plaintiff was completed with the help of a female interpreter, which, as

8

the Commissioner properly asserts, indicates that efforts were made to

9

obtain appropriate linguistic and/or cultural reference in completing

was

anything
of

deficient

plaintiff.

examination.4

Dr.

(Joint Stip. at 3-5.)

about

Dr.

Bagner’s

Accordingly,

Bagner’s

examination

psychiatric

while

it

Based on the

evaluation

appears

and
of

10

plaintiff’s

that the

11

directives of the Remand Order may have not been followed precisely,

12

plaintiff does not allege, and the Court cannot find, that Dr. Bagner’s

13

interpreter-assisted, psychiatric evaluation of plaintiff was inadequate

14

and/or prejudiced plaintiff in any way.

15

without any evidentiary support, that Dr. Bagner was not a culturally

16

appropriate and/or sensitive doctor, plaintiff alleges no error in Dr.

17

Bagner’s psychiatric evaluation of plaintiff.5

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committed by the ALJ in not complying fully with the Remand Order was

19

harmless and does not constitute a ground for reversal.

20

///

21

///

Indeed, beyond alleging,

As such, any error

22
23
24
25
26
27
28

4

Although the spelling is slightly different, it appears that
plaintiff was assisted by the same interpreter who assisted her at the
September 25, 2006 hearing. Plaintiff neither asserted any objection to
the use of the interpreter at that hearing nor gave any indication that
the interpretation provided was inadequate or incorrect.
5

In fact, in Plaintiff’s Response, it was noted that plaintiff
“has not been able to find a treating physician that speaks her
language” and that “having a culturally-sensitive physician at a
[consultative examination] . . . would be impractical and expensive.”
(Plaintiff’s Response at pp. 1-2.)
9

1

II.

The ALJ Committed No Reversible Error In Considering The Opinions

2

Of Plaintiff’s Treating Physicians Regarding Plaintiff’s Alleged

3

Inability To Work.

4
5

It is the responsibility of the ALJ to analyze evidence and resolve

6

conflicts in medical testimony.

Magallanes v. Bowen, 881 F.2d 747, 750

7

(9th Cir. 1989).

8

assessing a social security claim, “[g]enerally, a treating physician’s

9

opinion carries more weight than an examining physician’s, and an

10

examining physician’s opinion carries more weight than a reviewing

11

physician’s.”

12

2001); 20 C.F.R. § 416.927(d).

In the hierarchy of physician opinions considered in

Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir.

13
14

The opinions of treating physicians are entitled to the greatest

15

weight, because the treating physician is hired to cure and has a better

16

opportunity to observe the claimant. Magallanes, 881 F.2d at 751. When

17

a treating physician’s opinion is not contradicted by another physician,

18

it may be rejected only for “clear and convincing” reasons.

19

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

20

doctor, a treating physician’s opinion may only be rejected if the ALJ

21

provides “specific and legitimate” reasons supported by substantial

22

evidence in the record.

23

treating physician’s opinion is contradicted . . . , the ALJ must assess

24

its persuasiveness in light of specified factors, including the ‘length

25

of the treatment relationship and the frequency of examination;’ the

26

‘nature and extent of the treatment relationship;’ and the treating

27

opinion’s consistency ‘with the record as a whole.’”

28

SSA, 405 Fed. Appx. 139, 141 (9th Cir. 2010)(quoting Orn, 495 F.3d at

Id.

Lester v.

When contradicted by another

It is well established that “[w]hen a

10

Aranda v. Comm’r

1

631).

2
3

“The

opinion

of

a

nonexamining

physician

cannot

by

itself

4

constitute substantial evidence that justifies the rejection of the

5

opinion of . . . a treating physician.”

6

also Pitzer v. Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)(finding

7

that the nonexamining physician’s opinion “with nothing more” did not

8

constitute substantial evidence).

9

claimant’s treating physician is contradicted, and the opinion of a

10

nontreating source is based on independent clinical findings that differ

11

from those of the treating physician, the opinion of the nontreating

12

source may itself be substantial evidence.”

13

Independent clinical findings include “(1) diagnoses that differ from

14

those offered by another physician and that are supported by substantial

15

evidence, or (2) findings based on objective medical tests that the

16

treating physician has not herself considered.”

17

(internal citations omitted).

Lester, 81 F.3d at 831; see

However, “[w]here the opinion of the

Andrews, 53 F.3d at 1041.

Orn, 495 F.3d at 632

18
19

An ALJ “has a special duty to fully and fairly develop the record

20

and to assure that claimant’s interests are considered.”

21

Heckler, 713 F.2d 441, 443 (9th Cir. 1983).

Pursuant to 20 C.F.R. §

22

416.912(e),

additional

23

clarification from your medical source when the report from your medical

24

source contains a conflict or ambiguity that must be resolved, [or] the

25

report does not contain all the necessary information . . . .”

26

Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996)(noting that “[i]f

27

the ALJ thought he needed to know the basis of [the doctor’s] opinions

28

in order to evaluate them, he had a duty to conduct an appropriate

the

Administration

“will

11

seek

Brown v.

evidence

or

See

1

inquiry”).

2
3

Plaintiff contends that the ALJ improperly rejected the opinions of

4

plaintiff’s treating physicians –- to wit, Dr. Charles J. Barbanel, Dr.

5

Daniel N. Blum, and Dr. Emmanuel O. Fashakin.

6

Specifically, plaintiff claims that the ALJ failed to give specific and

7

legitimate reasons for rejecting their opinions regarding plaintiff’s

8

alleged inability to work.

(Joint Stip. at 3, 8-11.)

(Id. at 3, 10-11.)

9
10

Dr. Barbanel

11
12

In an August 20, 2003 letter, Charles J. Babanel, a psychiatrist,

13

stated the following:

“[Plaintiff] is a patient under my care at the

14

above named facility.

15

unable to work at this time.

16

free to contact me . . . .”

She is suffering from a Major Depression.

She is

If you have any questions, please feel
(A.R. 103.)

17
18

In her decision, the ALJ summarized Dr. Barbanel’s brief August 20,

19

2003 letter.

20

any weight to his opinion, because it is “conclusory, without any

21

objective basis supporting his opinion, and without any indication as to

22

[plaintiff]’s

23

statement is not supported by objective evidence elsewhere in the record

24

and

25

Commissioner.”

the

(A.R. 18-19.)

functional

determination

of

The ALJ stated that she could not assign

abilities.

disability

Furthermore,

is

a

matter

Dr.

Barba[n]el’s

reserved

to

the

(Id.)

26
27

Contrary to plaintiff’s contention, the ALJ gave specific and

28

legitimate reasons for giving no weight to the opinion of Dr. Barbanel.
12

1

As the ALJ correctly noted, Dr. Barbanel’s four sentence letter is

2

conclusory, lacks objective support, and contains no opinion regarding

3

plaintiff’s abilities.

4

is “disabled” is not binding on the ALJ.

5

1002, 1004 (9th Cir. 2005)(“Although a treating physician’s opinion is

6

generally afforded the greatest weight in disability cases, it is not

7

binding on an ALJ with respect to the existence of an impairment or the

8

ultimate determination of disability”)(internal quotations and citations

9

omitted); 20 C.F.R. § 416.927(e)(1)(“We are responsible for making the
decision

about

Ukolov v. Barnhart, 420 F.3d

10

determination

11

definition of disability . . . .

12

you are ‘disabled’ or ‘unable to work’ does not mean that we will

13

determine that you are disabled’”); Boardman v. Astrue, 286 Fed. App’x

14

397, 399 (9th Cir. 2008)(“ALJ is correct that a determination of a

15

claimant’s ultimate disability is reserved to the Commissioner, and that

16

a

17

signficance”).

physician’s

or

Further, Dr. Barbanel’s opinion that plaintiff

the

whether

you

meet

the

statutory

A statement by a medical source that

opinion

on

matter

as

Commissioner

is

not

entitled

to

special

18
19

Moreover,

the

properly

notes,

Dr.

Barbanel’s

20

“opinion” predates plaintiff’s alleged disability onset date, and, thus,

21

it is of limited relevance.

22

F.3d 1155, 1165 (9th Cir. 2008)(noting that “[m]edical opinions that

23

predate the alleged onset of disability are of limited relevance”).

24

Accordingly, for the aforementioned reasons, the ALJ committed no

25

reversible error in assigning no weight to the opinion of Dr. Barbanel.

26

///

27

///

28

///

Carmickle v. Comm’r, Soc. Sec. Admin., 533

13

1

Dr. Blum

2
3

In

a

September

15,

2003

“Physician’s

Employability

Report,”

4

plaintiff’s internist, Daniel N. Blum, M.D., noted that plaintiff’s

5

current diagnosis is anxiety, with an onset date of November 2002. (A.R.

6

110.)

7

“psych consult for counseling.”

8

opined that plaintiff “can’t function well enough to perform job duties

9

at this time due to emotional distress.”

In that report, Dr. Blum advised that plaintiff should have a
(Id.)

With respect to work, Dr. Blum

(Id.)

10
11

After summarizing Dr. Blum’s report, the ALJ afforded it no weight,

12

because:

(1) “Dr. Blum’s statements are . . . without any objective

13

basis”; (2) “Dr. Blum’s opinion is not supported by his own treating

14

records, which suggest his report was made based on sympathy rather than

15

objectivity”; and (3) “the determination of disability is an issue that

16

is reserved to the Commissioner.”

(A.R. 19.)

17
18

The ALJ provided specific and legitimate reasons supported by

19

substantial evidence for rejecting Dr. Blum’s opinion.

20

ALJ properly noted, there is no objective evidence supporting Dr. Blum’s

21

statements.

22

treating

23

treatment note, there appears to be only one treatment note, dated April

24

28, 2003, which notes that plaintiff has “+ anxiety” and that a “psych

25

consult”

26

plaintiff’s anxiety and possible need for a psychiatric consulation,

27

however, does not support, or provide a solid basis for, his September

28

15, 2003 opinion that plaintiff is unable to perform work due to

Second, Dr. Blum’s opinion is not supported by his own

records.

was

First, as the

For

discussed.

example,

(A.R.

prior

204.)

14

to

his

This

September

brief

15,

2003

reference

to

1

emotional distress.6

2

disability

3

recognized, is a matter ultimately reserved to her.

4

Barbanel,

5

predates plaintiff’s alleged disability onset date.

6

committed no reversible error in rejecting the opinion of Dr. Blum.

is

not

Third, as noted supra, Dr. Blum’s finding of
binding

Dr. Blum’s

on

opinion

the

is

ALJ

of

and,

limited

as

the

ALJ

properly

Lastly, as with Dr.

relevance,

because it

As such, the ALJ

7
8

Dr. Fashakin

9
10

In

a

November

15,

2004

“Physician’s

Employability

Report,”

11

plaintiff’s treating doctor, Emmanuel O. Fashakin, M.D., noted that

12

plaintiff’s

13

depression, and low back pain.

14

that plaintiff was to start taking Paxil and Zyprexa.

15

Fashakin reported that plaintiff “has episodes of dizziness . . . and

16

sudden attacks of blackouts.”

17

noted that plaintiff “needs [a] psychiatric evaluation [and] follow-up,”

18

and, until that is completed, he does not “see [plaintiff] being able to

19

perform any work.”

current

diagnoses

include

dizziness,

(A.R. 235.)

(Id.)

syncope,

anxiety,

Dr. Fashakin also noted
(Id.)

Dr.

In reference to work, Dr. Fashakin

(Id.)

20
21
6

22
23
24
25
26
27
28

In finding Dr. Blum’s opinion to be not supported by his
treatment notes, the ALJ noted that Dr. Blum’s report appears to be
“based on sympathy rather than objectivity.”
(A.R. 19.)
In his
September 15, 2003 treatment note, Dr. Blum noted, inter alia, that
plaintiff
is
“stress[ed],”
“anxious,”
“tearful,”
“req[uires]
disability,” “can’t function,” has “5 children,” “no husband,” and is
the “sole supporter” in her family. (A.R. 204.) Based on a review of
Dr. Blum’s treatment notes, it is certainly plausible that his finding
of disability was based on sympathy for plaintiff.
However, even
assuming that the ALJ erred in opining that Dr. Blum’s report was
motivated by sympathy, the ALJ provided other specific and legitimate
reasons for rejecting Dr. Blum’s opinion which are supported by
substantial evidence in the record. Accordingly, any error committed by
the ALJ with respect to her reference to “sympathy” was harmless.
15

1

Plaintiff

alleges

that

there

is

no

indication

that

the

ALJ

2

considered Dr. Fashakin’s November 15, 2004 “opinion” -- to wit, that

3

plaintiff is unable to perform any work.

4

initial matter, and as discussed in detail supra, Dr. Fashakin’s opinion

5

that plaintiff is unable to work is an opinion on a matter reserved to

6

the Commissioner and, thus, not given any “special significance.”

7

C.F.R. § 416.927(e). Notwithstanding this fact, the ALJ did address

8

plaintiff’s alleged inability to work.

9

ALJ did not specifically mention Dr. Fashakin’s November 15, 2004
the

ALJ

that

20

In pertinent part, although the

Report,

11

inability to work, the record does not contain evidence which shows that

12

[plaintiff]

13

evidence regarding [plaintiff]’s alleged disabling mental impairments is

14

sparse and is fully consistent with [her RFC determination].”

15

17.)

16

treatment

17

supporting plaintiff’s functional inability to work.

18

the extent the ALJ erred in not rejecting specifically Dr. Fashakin’s

19

November 15, 2005 statement that plaintiff is unable to work, any such

20

error was harmless in view of the ALJ’s determination that the medical

21

record provides no evidence to support such a finding.7

functionally

“[i]n

As an

10

is

noted

(Joint Stip. at 9-11.)

unable

terms

to

of

work.

[plaintiff]’s

Indeed,

alleged

the

medical

(A.R.

As the ALJ properly notes, the record, which includes the
notes

of

Dr.

Fashakin,

does

not

include

any

evidence

Accordingly, to

22
7

23
24
25
26
27
28

Moreover, although not mentioned by plaintiff, the ALJ did
reference Dr. Fashakin’s later treatment notes.
For example, with
respect to plaintiff’s dizziness and reports of syncope, the ALJ noted
that while Dr. Fashakin reported that plaintiff “has had various
episodes of syncope[,] [a]ll work[up] ha[s] been negative.” (A.R. 14;
internal quotation marks omitted.) In addition, the ALJ noted that a
later treatment note from Dr. Fashakin stated that “[plaintiff]’s workup
for syncope had been negative.” (Id.) The ALJ also noted that Dr.
Fashakin had prescribed plaintiff Zyprexa and Zoloft and that plaintiff
later reported that the Zoloft was helping her.
(A.R. 18.)
Accordingly, while the ALJ did not reference Dr. Fashakin’s November 15,
2004 report specifically, she did reference and discuss the findings in
16

1

Accordingly, for the aforementioned reasons, the ALJ committed no

2

reversible error in considering the opinions of plaintiff’s treating

3

physicians.

4
5

CONCLUSION

6
7

For the foregoing reasons, the Court finds that the Commissioner’s

8

decision is supported by substantial evidence and is free from material

9

legal error. Neither reversal of the Commissioner’s decision nor remand

10

is warranted.

11
12

Accordingly, IT IS ORDERED that Judgment shall be entered affirming

13

the decision of the Commissioner of the Social Security Administration.

14

IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of

15

this Memorandum Opinion and Order and the Judgment on counsel for

16

plaintiff and for the Commissioner.

17
18

LET JUDGMENT BE ENTERED ACCORDINGLY.

19
20

DATED:

January 30, 2012

21
22
23

MARGARET A. NAGLE
UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28

later reports, none of which contained an opinion regarding plaintiff’s
inability to work.
17