STANLEY A. BOONE, Magistrate Judge.
Plaintiff Sabrina L. Tucker ("Plaintiff") filed this action seeking judicial review of the final decision of Defendant Commissioner of Social Security ("Defendant" or "Commissioner") denying Plaintiff's application for benefits under the Social Security Act. (ECF No. 1.) All parties have consented to the jurisdiction of a United States Magistrate Judge for all purposes. (ECF Nos. 7, 8.)
Plaintiff applied for Social Security benefits due to impairments stemming from her back disorders, anxiety and depression. For the reasons set forth below, Plaintiff's appeal from the final decision of the Commissioner is denied.
Plaintiff applied for Supplemental Security Income benefits on January 15, 2010. (AR 151.) Plaintiff's application was denied on June 14, 2010. (AR 85.) Plaintiff requested reconsideration of the denial on July 23, 2010. (AR 93.) Plaintiff's application was denied after reconsideration on September 1, 2010. (AR 94.) On November 2, 2010, Plaintiff requested a hearing. (AR 100.)
On October 13, 2011, a hearing took place before Administrative Law Judge Philip Callis ("the ALJ"). (AR 41.) On April 25, 2012, the ALJ issued a written decision and found that Plaintiff was not disabled. (AR 12-27.) The Appeals Council denied Plaintiff's request for review on June 2, 2013. (AR. 1.)
Plaintiff testified that she was 41 years old at the time of the hearing. (AR 46.) Plaintiff did not complete high school but was schooled until the 12th grade. (AR 46.) Plaintiff has not received a GED. (AR 47.) Plaintiff did complete a program at a technical college for medical assisting. (AR 47.)
The last job Plaintiff held was with American Medical Response. (AR 47.) Plaintiff performed billing and data entry. (AR 48.) Plaintiff stopped working for them on April 4, 2009. (AR 48.) Plaintiff stopped working because she "had gone off on disability" and "had like a mental breakdown." (AR 48.) Plaintiff receives treatment as a result with Dr. Arabati. (AR 48.)
Plaintiff lives in a duplex with her thirteen year old son and eleven year old daughter. (AR 49.) Plaintiff wakes up around 10:00 a.m. on "good mornings" and closer to noon on a "bad day." (AR 49-50.) Plaintiff can sometimes take care of her own bathing and personal needs, but sometimes will have severe muscle spasms which cause her to lie down and rest until someone can help her. (AR 50.) On good days, Plaintiff can get out of bed and fix herself something to eat. (AR 50.) Plaintiff cannot clean the house and relies on her children or her friends for those chores. (AR 50.)
Plaintiff leaves the house for doctor's appointments or counseling a couple times per month. (AR 51.) On good days, she can drive herself but on bad days someone has to take her. (AR 51.) On weekends, Plaintiff usually visits her mom, who lives 20 minutes away. (AR 51.) Usually someone else takes her or her sister picks her up. (AR 51.)
Plaintiff usually eats out with her kids for dinner, but sometimes makes things at home and sometimes her son or daughter cooks. (AR 52.) Plaintiff usually sits or lays down at night and watches television with her kids. (AR 53.)
Plaintiff takes medication for her mental problems, which helps a little bit. (AR 54.) Plaintiff also sees a counselor. (AR 54.) Plaintiff discusses her problems handling any kind of stress. (AR 54.) Plaintiff has trouble sleeping every night and only gets 4-5 hours of sleep per night. (AR 55.) As a result, Plaintiff is fatigued throughout the day. (AR 55.) Plaintiff can concentrate "[m]aybe 10 minutes" at a time. (AR 56.)
Plaintiff takes a lot of pain medication for chronic pain in her neck and back. (AR 57.) Plaintiff's doctor talked about surgery for her back, but Plaintiff did not want surgery. (AR 57.) Plaintiff lies down around two times between 10:00 a.m. and 6:00 p.m. for about an hour or so. (AR 57-58.) Plaintiff cannot sit for longer than ten minutes without pain. (AR 58.)
At the hearing, Plaintiff testified that she could sit for 10 to 15 minutes before she had to get up. (AR 59.) Plaintiff's attorney noted that Plaintiff had been sitting in her chair for 20 to 30 minutes. (AR 58.) Plaintiff then said 20-25 minutes of sitting would make her really uncomfortable. (AR 59.)
Plaintiff has a prescribed cane and knee brace. (AR 61.)
Stephen Schmidt testified at the hearing as a vocational expert ("the VE"). (AR 59.) The VE testified that Plaintiff's prior work could be classified as real estate clerk (sedentary, SVP 5), medical assistant (light, SVP 6), and billing clerk (sedentary, SVP 4). (AR 60.)
The ALJ provided the VE with the following hypothetical:
(AR 60.) The VE testified that a person with such hypothetical limitations could not perform Plaintiff's past work, but could perform other jobs such as a cleaner, electronics worker, or packer. (AR 60.)
The VE also testified that a hypothetical person who could not work eight hours per day and forty hour per week is generally not considered employable under the relevant regulations. (AR 60.) Similarly, a hypothetical person who has three or more absences per month due to illness or injury is not considered employable. (AR 60.) The VE also testified that someone who used a cane for standing and walking could not perform Plaintiff's past work but could possibly perform work at the sedentary level. (AR 63.)
The administrative record includes Plaintiff's medical records from Golden Valley Health Center (AR 249-260, 327-351, 447-466, 585-605); medical records from Memorial Medical Center (AR 261-298, 404-429); medical records from Modesto Advanced Diagnostic Imaging Center (AR 299-305); medical records from Doctors Medical Center (AR 306-326, 526-534); medical records from Modesto Pain Medicine (AR 352-369, 388-403, 467-494, 535-584); a March 29, 2010 Psychiatric Review Technique from Dr. A. Garcia, M.D. (AR 370-380); a March 29, 2010 Mental Residual Functional Capacity Assessment from Dr. A. Garcia, M.D. (AR 381-383); a March 29, 2010 Case Analysis from Dr. A. Garcia, M.D. (AR 384-387); a May 26, 2010 Physical Residual Functional Capacity Assessment from Dr. C. Fracchia, M.D. (AR 430-434), medical records from Roseburg Chiropractic (AR 495-512), an August 17, 2010 Psychiatric Review Technique (AR 513-516); an August 31, 2010 Case Analysis from Dr. L. Kiger, M.D. (AR 517-518); an August 30, 2011 questionnaire signed by Cesar Garcia and Charles Edwards (AR 606-611), medical records from Health Analysis Inc. (AR 614-623); medical records from MDSI Physician Group, which includes a Medical Source Statement from Dr. Rita Gogna, M.D. (AR 624-638); and a Psychiatric Review Technique and Comprehensive Psychological Evaluation from Dr. Robert L. Morgan, Ph.D (AR 649-661).
The ALJ made the following findings of fact and conclusions of law in his April 25, 2012 written decision:
(AR 18-27.)
An individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). The Court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error."
Plaintiff argues that the ALJ erred by failing to discuss the opinion of Dr. Lalia Akhbarati, M.D. and Martha Ruiz-Hayes MSW/ASW. Further, Plaintiff argues that the ALJ erred by giving little weight to the opinions of examining psychologist Dr. Robert Morgan, Ph.D. Finally, Plaintiff argues that the ALJ erred by giving little weight to the opinions of Dr. Charles Edwards, M.D.
Plaintiff contends that the ALJ erred in his treatment of the opinions of Dr. Lalia Akhbarati and Martha Ruiz-Hayes. Plaintiff contends that these opinions were not addressed by the ALJ in his written opinion and that the ALJ erred in giving these opinions little weight. Plaintiff contends that both opinions should be regarded as opinions from treating physicians.
"Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians)."
Treatment notes from a November 2, 2009 visit with Dr. Akhbarati indicate that Plaintiff came in due to trouble sleeping. (AR 343.) Plaintiff's mood was described as "sad" and her affect was described as "depressed." (AR 344.) Plaintiff was oriented, her insight was fair, her judgment and memory was intact, and her immediate recall, reversals and concentration were good. (AR 344.) Treatment notes from November 25, 2009 (AR 338-39), December 7, 2009 (AR 334-35), December 23, 2009 (AR 331-32), June 29, 2010 (AR 451-453), and July 27, 2010 (AR 448-450) describe similar findings of depression and anxiety, but normal orientation, insight, judgment, memory, concentration, etc. The June 3, 2010 treatment notes indicate that Plaintiff had "23-full panic attacks" within the ten days preceding the visit. (AR 457.) April 13, 2010 treatment notes describe back pain which worsened after a car accident the week before the visit. (AR 464.) Plaintiff also reported having panic attacks 1-2 times a day since the car accident and that she wakes up at night due to pain. (AR 464.)
On August 17, 2010, Plaintiff was seen for insomnia by Martha Ruiz-Hayes. (AR 604.) Plaintiff reported that the difficulty sleeping "started insidiously and is unchanged." (AR 604.) "The problem started 10, years ago." (AR 604.) Plaintiff also complained of poor concentration, irritability, crying spells and fatigue. (AR 604.) Plaintiff's functional impairment was described as "moderate." (AR 604.) The record also includes similar follow-up treatment reports from Ms. Ruiz-Hayes. (AR 595-603.)
On May 23, 2011, Plaintiff was seen for an initial psychiatric evaluation. (AR 589.) Plaintiff reported persistent depression over the past 14 years since the birth of her first child. (AR 589.) Plaintiff reported "partial remission of depression, but persistent insomnia, panic episodes and anxiety." (AR 589.) Plaintiff reported "intermittent nocturnal panic episodes and occasional daytime panic episodes often related to being in closed spaces such as elevators." (AR 589.) On July 1, 2011, Plaintiff reported "having withdrawls from not having her cymbalta, and having chest pain." (AR 587.) Treatment notes from August 30, 2011 indicate that Plaintiff's "Functional Impairment" was "severe." (AR 585.) Plaintiff reported a history of sexual abuse, a first husband who was "very violent with her," and that she had been separated from her second husband for one month. (AR 585.)
The record includes a report regarding Plaintiff's psychiatric symptoms, dated August 17, 2010. Plaintiff identifies this report as provided by Dr. Lalia Akhbarati, M.D. and Martha Ruiz-Hayes, MSW, ASW. However, the signatures on this report are illegible. The report states that Plaintiff suffers from symptoms including anhedonia, appetite disturbance, sleep disturbance, psychomotor agitation or retardation, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, delusions, hyperactivity, pressures of speech, flight of ideas, decreased need for sleep, easy distractibility, involvement in activities that have a high probability of painful consequences which are not recognized, and bipolar syndrome. (AR 513.) The report also indicates that Plaintiff has marked limitations in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. (AR 514.) The report states that Plaintiff suffered from three episodes of decompensation, each of extended duration. (AR 514.) The report further states that Plaintiff has marked limitations in:
(AR 515.)
As an initial matter, Plaintiff contends that the ALJ erred because the ALJ did not discuss the August 17, 2010 psychiatric report at all. This is not the case, as the ALJ's written decision describes the August 17, 2010 report and gave little weight to it because "the claimant's self reported abilities are inconsistent with the limitations determined by the treating physician." (AR 24-25.)
Since the August 17, 2010 report is contradicted by the opinions of other physicians in the record, the ALJ must have provided "specific and legitimate" reasons supported by substantial evidence to reject the report. The Court finds that the ALJ did cite specific and legitimate reasons supported by substantial evidence, and therefore did not err.
The ALJ noted that the severe limitations identified in the August 17, 2010 report were inconsistent with Plaintiff's reported daily activities. The ALJ noted that Plaintiff reported that she lives independently, cares for her minor children, goes out shopping and to doctor's appointments, visits with family, socializes on Facebook, and helps her children with their homework. Plaintiff's professed ability to care for herself and her minor children, without any other adults in her household, is inconsistent with the limitations expressed in the August 17, 2010 report, which claims that Plaintiff is markedly impaired in activities of daily living, social functioning, and concentration. Accordingly, the Court finds that the ALJ did not err in giving little weight to the opinions expressed in the August 17, 2010 report.
Plaintiff argues that the ALJ erred in giving little weight to the opinions of examining psychologist Robert Morgan, Ph.D. Dr. Morgan authored a Psychiatric Review Technique dated December 15, 2011. (AR 650-652.) Dr. Morgan opined that Plaintiff suffers from anhedonia, appetite disturbance, sleep disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking and thoughts of suicide. (AR 651.) Dr. Morgan also stated that Plaintiff had marked restrictions in activities of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. (AR 652.) Dr. Morgan stated that Plaintiff suffered from four or more episodes of decompensation, each of extended duration. (AR 652.) Dr. Morgan also authored a narrative report regarding Plaintiff's condition. (AR 653-661.)
The ALJ gave little weight to Dr. Morgan's opinion because there was no supportive evidence that the claimant had five episodes of emotional deterioration in work like situations. The ALJ also noted that Dr. Morgan opined that Plaintiff had marked limitations in activities of daily living, social functioning, etc., yet opined that Plaintiff would be capable of managing funds in her own best interest should an award be made. The ALJ also discounted Dr. Morgan's opinion because it was not given in the context of seeking treatment but in the context of seeking evidence for Plaintiff's appeal.
Plaintiff contends that the ALJ's finding that the record did not support the conclusion that Plaintiff had five episodes of emotional deterioration in work-like situations was improper. Plaintiff points to Dr. Morgan's narrative as well as the portions of the record identifying periods of unemployment as supporting these findings. However, Dr. Morgan's narrative fails to identify what evidence Dr. Morgan relied upon in determining that Plaintiff suffered five episodes of emotional deterioration. The ALJ may reject Dr. Morgan's findings since they are brief, conclusory and inadequately supported by clinical findings.
Plaintiff contends that the ALJ erred by concluding that Dr. Morgan's opinion was internally inconsistent, as Dr. Morgan concluded that Plaintiff was markedly impaired in her ability to maintain normal daily activities yet at the same time could manage her own money should she be awarded benefits. Internal inconsistencies are a legitimate basis to reject an opinion.
Plaintiff also contends that the ALJ discredited Dr. Morgan's opinion because it was not a treating source and it was solicited for the purpose of supporting Plaintiff's application for benefits. Although the Ninth Circuit in
Based upon the foregoing, the Court finds that the ALJ did not err in giving little weight to Dr. Morgan's opinions.
Plaintiff contends that the ALJ erred in giving little weight to the opinion of Dr. Charles Edwards, M.D. Dr. Edwards authored a psychiatric report dated August 30, 2011. (AR 606-610.) Dr. Edwards opined that Plaintiff suffered from symptoms such as anhedonia, appetite disturbance, sleep disturbance, decreased energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, thoughts of suicide, pressures of speech, flight of ideas, decreased need for sleep, and easy distractibility. (AR 606.) Dr. Edwards opined that Plaintiff suffered from moderate limitations in activities of daily living, maintaining social functioning and marked limitations in maintaining concentration, persistence or pace. (AR 608.) Dr. Edwards further opined that Plaintiff suffered from:
(AR 610.)
The ALJ gave little weight to Dr. Edwards' opinions because they were inconsistent with Plaintiff's reported daily activities. In particular, Dr. Edwards' opinion that Plaintiff suffered from marked limitations in her ability to understand, remember and carry out simple instructions was inconsistent with Plaintiff's reported daily activities which involved caring for her minor children largely on her own and helping them with their school work.
Based upon the foregoing, the Court finds that the ALJ did not err in giving little weight to Dr. Edwards' opinions.
Based upon the foregoing, the Court finds that the ALJ's analysis was proper and the ALJ's conclusions were supported by substantial evidence. Accordingly, it is HEREBY ORDERED that Plaintiff's appeal from the administrative decision of the Commissioner is DENIED and JUDGMENT is entered in favor of Defendant Commissioner of Social Security and against Plaintiff Sabrina L. Tucker. The Clerk of the Court is directed to CLOSE this action.
