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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 AQELA AKBARY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. SACV 10-00793-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on June 17, 2010, seeking review of the 19 denial of plaintiff’s application for supplemental security income 20 (“SSI”). On July 27, 2010, the parties consented, pursuant to 28 U.S.C. 21 § 636(c), to proceed before the undersigned United States Magistrate 22 Judge. 23 February 14, 2011, in which: 24 Commissioner’s decision and remanding this case for the payment of 25 benefits or, alternatively, for further administrative proceedings; and 26 the 27 alternatively, remanded for further administrative proceedings. 28 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, 4 and plaintiff 5 Response”). 6 telephonic conferences with the Court, and the Court thereafter took the 7 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 8 9 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 10 11 On February 19, 2004, plaintiff filed an application for SSI. 12 (Administrative Record (“A.R.”) 72-73, 256.) Plaintiff, who was born on 13 December 8, 1962 (A.R. 20),1 claims to have been disabled since January 14 14, 2004 (A.R. 9), due to anxiety, depression, and various aches and 15 pains.2 16 apparent past relevant work experience. (A.R. 12-15, 257-58; Joint Stip. at 2.) Plaintiff has no (A.R. 20-21.) 17 18 After the Commissioner denied plaintiff’s claim initially and upon 19 reconsideration (A.R. 256), plaintiff requested a hearing (A.R. 47, 55- 20 21 22 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.) 23 2 24 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. 25 26 27 28 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.) 5 Stephen Berry, and plaintiff’s daughter, Zermina Akbary, also testified. 6 (Id.) 7 61), and the Appeals Council subsequently denied plaintiff’s request for 8 review of the ALJ’s decision (A.R. 306-09). 9 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 10 proceedings in an August 14, 2008 Order (“Remand Order”). 11 (A.R. 452- 65.) 12 13 On February 27, 2009, the Appeals Council effectuated the Court’s 14 Remand Order and remanded the matter to the ALJ for further actions 15 consistent with the Remand Order. 16 also directed that plaintiff have an opportunity for a supplemental 17 hearing and that a subsequent, duplicative SSI application, filed by 18 plaintiff on January 29, 2008, be consolidated with the remanded case. 19 (Id.) 20 attorney and assisted by Pashto interpreter Kasem Gardizi, testified 21 before the ALJ at a supplemental hearing. 22 expert 23 daughter, Zarmina Akbary, also testified. 24 ALJ denied plaintiff’s claims. 25 issue in this action. 26 /// 27 /// 28 /// (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 1 SUMMARY OF ADMINISTRATIVE DECISION 2 3 The ALJ found that plaintiff has not engaged in substantial gainful 4 activity since February 19, 2004, her application date. (A.R. 11.) The 5 ALJ determined that plaintiff has the following severe impairments: 6 “somatoform disorder not otherwise specified; anxiety disorder not 7 otherwise 8 specified.” 9 an impairment or a combination of impairments that meets or equals one 10 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 11 (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.) 12 13 After reviewing the record, the ALJ determined that plaintiff has 14 the residual functional capacity (“RFC”) to perform a full range of work 15 at all exertional levels with the following nonexertional limitations: 16 “[plaintiff] can perform moderately complex tasks, up to four steps, 17 requiring no hypervigilence [sic]; and she should not be in charge of 18 safety operations of others.” (A.R. 16.) 19 20 The ALJ determined that plaintiff has no past relevant work 21 experience and, therefore, transferability of job skills is not an 22 issue. 23 work experience, RFC, and the testimony of the vocational expert, the 24 ALJ found that jobs exist in the national economy that plaintiff could 25 perform, including dining room attendant, hand packager, and laundry 26 laborer. 27 not been under a disability, as defined in the Social Security Act, 28 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.) 2 3 STANDARD OF REVIEW 4 5 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s 6 decision to determine whether it is free from legal error and supported 7 by substantial evidence in the record as a whole. 8 F.3d 625, 630 (9th Cir. 2007). 9 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, 16 17 Although this Court cannot substitute its discretion for that of 18 the Commissioner, the Court nonetheless must review the record as a 19 whole, “weighing both the evidence that supports and the evidence that 20 detracts from the [Commissioner’s] conclusion.” 21 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 22 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 23 responsible for determining credibility, resolving conflicts in medical 24 testimony, and for resolving ambiguities.” 25 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec’y of “The ALJ is Andrews v. Shalala, 53 F.3d 26 27 28 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 3 affirm the ALJ on a ground upon which he did not rely.” 4 at 630; see also Connett, 340 F.3d at 874. 5 the Commissioner’s decision if it is based on harmless error, which 6 exists only when it is “clear from the record that an ALJ’s error was 7 ‘inconsequential to the ultimate nondisability determination.’” Robbins 8 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 9 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. 11 12 DISCUSSION 13 14 Plaintiff claims that the ALJ: (1) failed to comply with the 15 Remand Order; and (2) improperly considered the treating doctors’ 16 opinions regarding plaintiff’s inability to work. (Joint Stip. at 3.) 17 18 19 I. The Alleged Failure To Comply With The Remand Order Does Not Warrant Remand. 20 21 It is well established that an ALJ must comply with a district 22 court’s remand order. Sullivan v. Hudson, 490 U.S. 877, 886, 109 S. Ct. 23 2248, 104 L. Ed. 2d 941 (1989)(noting that “[d]eviation from the court’s 24 remand order in the subsequent administrative proceedings is itself 25 legal error, subject to reversal on further judicial review”). However, 26 as with other errors, an ALJ’s failure to comply with a court’s remand 27 order is subject to a harmless error analysis. 28 679 (“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. 2 Cal. Aug. 26, 2011)(applying harmless error analysis to ALJ’s failure to 3 comply with a court’s remand order); Banquet v. Astrue, 2011 U.S. Dist. 4 LEXIS 6879, at *12 (C.D. Cal. Jan. 24, 2011)(same); Fuller v. Astrue, 5 2010 U.S. Dist. LEXIS 122676, at *6 (D. Ariz. Nov. 5, 2010)(same). 6 7 In its Remand Order, dated August 14, 2008, this Court noted that: 8 9 As the ALJ recognized that [p]laintiff needed to see a 10 culturally-appropriate doctor to obtain a proper disability 11 determination, the ALJ should have ensured that a suitable 12 examination was obtained. 13 [p]laintiff 14 treatment, the ALJ should have met her burden of developing 15 the record. failed to Once the ALJ was made aware that receive the requisite follow-up 16 17 (A.R. 462-63; emphasis in original.) Accordingly, the Court remanded 18 the matter so that the ALJ could develop properly the record regarding 19 plaintiff’s claimed mental impairment. (A.R. 452-64.) 20 21 Prior to the issuance of the Remand Order, however, plaintiff 22 received a psychiatric evaluation from consultative examiner Ernest A. 23 Bagner, M.D., a board eligible psychiatrist, apparently in connection 24 with plaintiff’s subsequent, January 29, 2008 SSI application. 25 310.) 26 otherwise specified, and opined that plaintiff would be “significantly 27 better” with psychiatric treatment. 28 assessment of plaintiff, Dr. Bagner concluded that plaintiff would have: (A.R. Dr. Bagner diagnosed plaintiff with depressive disorder, not 7 (A.R. 384-85.) Based on his 1 “no limitations interacting with supervisors, peers or the public,” 2 “zero to mild limitations maintaining concentration and attention and 3 completing tasks”; 4 completing a 5 moderate limitations handling normal stresses at work.”3 “mild normal limitations workweek completing without complex interruption”; and tasks “mild and to (A.R. 385.) 6 7 Following the issuance of this Court’s Remand Order, the Appeals 8 Council vacated the ALJ’s March 24, 2010 decision, remanded the matter 9 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.) 12 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.) 17 the care of any mental health professional since her treatment at 18 Windstone 19 psychiatric evaluation [in March 2008] while this case was pending at 20 the District Court.” 21 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.) 22 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 25 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 18 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

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