Haseltine v. Astrue

Filing 69

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT by Magistrate Judge Bernard Zimmerman denying 64 Motion for Summary Judgment; granting 65 Motion for Summary Judgment; finding as moot 67 Motion to Strike (bzsec, COURT STAFF) (Filed on 6/24/2010)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 All parties have consented to my jurisdiction for all proceedings, including entry of final judgment, pursuant to 28 U.S.C. § 636(c). 1
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

JO ANNE E. HASELTINE, Plaintiff, v. MICHAEL J. ASTRUE, Defendant.

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No. C 08-5782 BZ ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Before the Court are plaintiff Jo Ann Haseltine's and defendant Michael Astrue's cross-motions for summary judgment. Plaintiff argues that she should have been granted disability benefits as of December 10, 1999 instead of September 1, 2001.1 Defendant moves for summary judgment that the onset

date decision is supported by substantial evidence and free of legal error. Plaintiff applied for disability insurance benefits in March 2001 and was granted benefits as of September 1, 2001 by

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Administrative Law Judge (ALJ) Thomas P. Tielens on September 4, 2008.2 That decision became final when the Appeals Council Plaintiff contends that the scope of this

declined review.

review is substantially larger than ALJ Tielens's September 2008 decision. First, plaintiff contends that the Appeals

Council's decision not to review ALJ Tielens's September 2008 ruling is subject to judicial review. well established law however. This is contrary to

"The Appeals Council's

decision, or the decision of the administrative law judge if the request for review is denied, is binding unless you or another party file an action in Federal district court, or the decision is revised." 20 C.F.R. § 404.981. "The Appeals

Council denied review, making the ALJ's decision the Commissioner's final decision for purposes of review." v. Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). Doyal

Under 42

U.S.C. 405(g), a claimant may only seek review of a "final decision of the Commissioner of Social Security." One

exception arises when the Appeals Council considers new evidence in its denial of review, which the Council did not do in this case. Therefore, the decision of the ALJ is the Second, Plaintiff asserts

operative, reviewable decision.

that ALJ Tielens was biased against her, but this claim has been addressed in a prior ruling. See Doc. No. 42.

The sole issue before the Court is whether ALJ Tielens's decision to award Plaintiff an onset date of September 1, 2001 In a prior decision, I remanded this case after finding that ALJ Lazuran had improperly offered a compromise date of disability onset. See Haseltine v. Astrue, C07-1605 BZ, Doc. No. 17, (N.D.Cal. Dec. 10, 2007). 2
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is supported by substantial evidence.3 `Substantial evidence means more than a scintilla but less than a preponderance.' (citation and internal quotation marks omitted). "Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir.1995). Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Further, "at all times, the burden is on the claimant to establish her entitlement to disability insurance benefits." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Turning to the administrative record, I find ALJ Tielens's September 2008 decision was supported by substantial evidence. The following evidence supports the decision to

grant plaintiff a disability onset date of September 1, 2001. Malcolm Brodzinksi, plaintiff's vocational rehabilitation counselor, found that there were "no medical contraindications" to plaintiff returning to full time employment in July of 2001. (AR 283).

Dr. Tracy Newkirk, who treated Plaintiff from June 2000 onwards stated on June 4, 2001 that the physical job demands of "activities coordinator," provided by Malcolm Brodzinski were "well within her capacity." (AR 424). On August 3, 2001

Dr. Newkirk stated that "it remains my medical opinion based on the evidence we have, therefore, that the patient is a candidate for Social Security Disability benefits, based on Plaintiff's assertion that the standard of review is de novo is incorrect. 3
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her injury and underlying physical condition, which cannot be changed in any reasonable way any time in the near future." (AR 423). Dr. Newkirk stated on September 28, 2001 that

plaintiff "should be considered permanently, totally disabled as there appear to be no employment options for her particularly in view of her learning disability." (AR 445).

It is unclear what prompted Dr. Newkirk to change his medical opinion of plaintiff's disability between June and September of 2001. However, it is undisputed that just three months

prior to September 1, 2001, Dr. Newkirk opined that plaintiff was capable of working. In May 2001, psychiatrist Robert Lee, M.D. examined plaintiff and found her capable "of sustained simple work with limited public interactions." (AR 409).

In June of 2001 Dr. Eugene McMillan, M.D. observed that other than some hand pain, there were very few other objective physical findings. (AR 412).

At least one doctor opined that plaintiff was disabled prior to September 1, 2001. On July 27, 2001 Dr. Richard Lee

Schoenbrun, M.D., Ph.D. stated that plaintiff was "severely disabled and continuing to deteriorate." (AR 423).

In sum, there is substantial evidence, certainly more than a scintilla, that plaintiff was not disabled in the months leading up to September 1, 2001. In fact, the majority

of the opinions rendered by medical and other professionals indicate that plaintiff was capable of working. There is

simply no evidence in the record that plaintiff was disabled as of December 10, 1999 as she argues in her moving papers. 4

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Plaintiff's argument appears to be as follows.

On

December 10, 1999 plaintiff was injured and subsequently underwent vocational rehabilitation with Malcolm J. Brodzinski. insurance. That injury was covered by worker's compensation After that injury, plaintiff never returned to Therefore, plaintiff

full time substantive employment.

argues, defendant should have determined that the date of onset of disability is December 10, 1999. However, this argument is contradicted by all medical and professional opinions rendered by those that worked with and treated plaintiff during the relevant time period. No doctor

or professional at any point stated that plaintiff was unable to return to work due to disability as of December 10, 1999. Turning to plaintiff's assertions of legal error, plaintiff first argues that ALJ Tielens did not properly apply 20 C.F.R. § 404.1520a, which outlines the method of evaluating mental impairments. Doc. No. 64, p. 18. The first step is to

evaluate "pertinent symptoms, signs, and laboratory findings to determine" whether a plaintiff has "a medically determinable mental impairment." § 404.1520a(b). This is

done by rating the degree of functional limitation in "activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation." § 404.1520a(c)(3). Here, ALJ Tielens

included a specific finding on each of those functional areas. (AR 603). He found moderate difficulties in activities of

daily living; social functioning; and concentration, persistence, and pace. Id. ALJ Tielens found that the 5

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plaintiff experienced one or two episodes of decompensation. Id. All of these findings were made in accordance with § Plaintiff did not explicitly state what was

404.1520a.

lacking in the ALJ's application and the Court can find no significant departures from § 404.1520a. Second, plaintiff's argument that ALJ Tielens failed to properly weigh the treating physicians' opinions fails for two reasons. Plaintiff's assertion that a treating physician's

opinion is generally entitled to greater weight than a nontreating physician's opinion is correct. See Andrews v. However, the

Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

"opinion" to which plaintiff refers is not a medical opinion, but instead is a letter drafted by Mr. Ragnes, a representative for the plaintiff. (AR 442-43). Moreover, ALJ

Tielens credited Dr. Newkirk's various opinions regarding plaintiff's disability onset date. The Ragnes letter

postdates the onset date of September 1, 2001 by more than four months. It is unclear what weight plaintiff would have Even assuming that the January

the ALJ attach to the letter.

2002 letter conclusively established that plaintiff was disabled as of January 2002, plaintiff has already received benefits for that time period. To the extent that plaintiff believes that this letter would trigger a duty to re-contact Dr. Newkirk, plaintiff has not persuaded me that any such duty was triggered. The duty

to further develop the record only arises when "there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence." 6 Mayes v. Massanari,

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276 F.3d 453, 460-61 (9th Cir. 2001).

In a prior opinion, I

remanded the case because the ALJ committed legal error when she offered a compromise date of disability onset in lieu of properly evaluating the evidence. Haseltine v. Astrue, C07Here however,

1605 BZ, Doc. No. 17, (N.D.Cal. Dec. 10, 2007).

ALJ Tielens carefully parsed through and weighed all of the relevant medical opinions in rendering his decision. No duty

to supplement the record was triggered as ALJ Tielens found the evidence neither ambiguous nor inadequate. Instead, he

found that Dr. Newkirk had opined in the months leading up to September 1, 2001, that plaintiff was able to work, and subsequently changed his mind. Third, plaintiff argues that ALJ Tielens improperly determined her credibility. Plaintiff's argument is somewhat It appears that

difficult to follow and therefore address.

plaintiff takes issue with the manner in which ALJ Tielens documented his credibility findings regarding plaintiff's testimony of intensity, persistence, and limiting effect of her impairment. For the ALJ to reject the claimant's subjective complaints, he must provide specific, cogent reasons for the disbelief. See Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir.

1999)(citing Lester v. Chater, 81 F.3d 821, 824 (9th Cir. 1995)). General findings are insufficient; rather, the ALJ

must identify what testimony is not credible and what evidence undermines the claimant's complaints. 12 F.3d 915, 918 (9th Cir. 1993). are the province of the ALJ. See Dodrill v. Shalala,

Credibility determinations

See Fair v. Bowen, 885 F.2d 597, 7

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604 (9th Cir. 1989). ALJ Tielens explained that he found plaintiff's testimony not credible because her symptoms were undocumented, or unsupported and contradicted by the medical and documentary evidence before him. In his ruling, ALJ Tielens specified the

evidence which undercut plaintiff's testimony and therefore properly determined plaintiff's credibility. Plaintiff

further claims that ALJ Tielens made a credibility determination that is at odds with the prior, vacated determination of ALJ Lazuran and that ALJ Tielens was bound by res judicata to accept the earlier credibility determination. Yet, plaintiff cites no authority for such an argument. Further, plaintiff would have this Court cherry-pick the parts of ALJ Lazuran's vacated ruling which are favorable to her and disregard the parts that are not. so. Defendant's motion for summary judgment is GRANTED. ALJ The Court declines to do

Tielens's decision to grant an onset date of SEPTEMBER 1, 2001 is supported by substantial evidence. summary judgment is DENIED. Plaintiff's motion for

Defendant's motion to strike

plaintiff's proposed order (Doc. No. 66) is DENIED AS MOOT. Dated: June 24, 2010

Bernard Zimmerman United States Magistrate Judge
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