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Mohr v. Astrue


March 18, 2009


The opinion of the court was delivered by: Honorable Oswald Parada United States Magistrate Judge


The Court*fn1 now rules as follows with respect to the three disputed issues listed in the Joint Stipulation ("JS").*fn2


As reflected in the Joint Stipulation, the disputed issues which Plaintiff raises as the grounds for reversal and/or remand are as follows:

1. Whether the ALJ properly considered the treating physician's opinion;

2. Whether the ALJ properly considered the type, dosage, effectiveness, and the side effects of Plaintiff's medications; and

3. Whether the ALJ posed a complete hypothetical to the vocational expert ("VE").

(JS at 2.)


Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (citation omitted). The Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984).


A. Case Background

In a determination issued on or about November 19, 1996, Plaintiff was found disabled as of September 1, 1996. On June 28, 2005, it was determined that as of June 27, 2005, Plaintiff was no longer disabled. This determination was upheld upon reconsideration after a disability hearing by a state agency disability hearing officer. On January 11, 2007, Plaintiff appeared and testified at a hearing in San Bernardino, California. On April 19, 2007, an unfavorable decision issued. Plaintiff filed a written request for review of hearing decision. On August 20, 2007, the Appeals Council denied that request. (JS at 2.)

B. The ALJ Properly Considered the Treating Physician's Opinion

The ALJ found that Plaintiff had the medically determinable and severe impairments of mood disorder, NOS; personality disorder, NOS, with borderline personality traits; history of marijuana abuse, methamphetamine abuse, and alcohol abuse; noninsulin dependent diabetes; and left eye vision loss. (AR at 16.) The ALJ found that Plaintiff had the residual functional capacity ("RFC") to "perform simple tasks in an object oriented setting requiring no safety operations or hypervigilence, no depth perception, only occasional interaction with co-workers or supervisors, and only superficial contact with the public." (Id.) He concluded that Plaintiff exhibited medical improvement and that her disability ended as of June 27, 2005. (Id. at 17, 20.)

Plaintiff contends the ALJ failed to properly consider the opinions of her treating physician, Dr. Murad, who on December 18, 2006, completed a Mental Assessment questionnaire on behalf of Plaintiff. (JS at 3; AR at 368-71.) The Court does not agree.

In the questionnaire, Dr. Murad found that Plaintiff had a host of moderate limitations, including her ability to remember locations and work-like procedures, understand and remember short and simple instructions, carry out detailed instructions, maintain attention and concentration, perform activities within a schedule, maintain regular attendance, complete a normal workday and work week without interruptions from psychologically based symptoms, perform at a consistent pace, interact with the general public, ask questions and request assistance, get along with co-workers and peers without distracting them or exhibiting behavioral extremes, maintain socially appropriate behavior, respond to appropriate changes in the work setting, and awareness of normal hazards. (AR at 368-71.) Dr. Murad found Plaintiff markedly limited in her ability to understand and remember detailed instructions (id. at 368), accept instruction and respond appropriately to criticism from supervisors (id. at 369), and travel in unfamiliar places or use public transportation (id. at 370).

It is well-established in the Ninth Circuit that a treating physician's opinions are entitled to special weight, because a treating physician is employed to cure and has a greater opportunity to know and observe the patient as an individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). "The treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). Where, as here, the treating physician's opinion is controverted, it may be rejected only if the ALJ makes findings setting forth specific and legitimate reasons that are based on the substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). Contrary opinions of examining and non-examining physicians "serve as additional specific and legitimate reasons" for rejecting the opinions of treating and examining physicians. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); see also Johnson v. Shalala, 60 F.3d 1428, 1423, 1433 (9th Cir. 1995) (self- contradictory nature of treating physician opinion was "clear and convincing" reason for rejection).

In his decision the ALJ stated:

As for the opinion evidence, I can give little weight to the treating source assessment [of Dr. Murad] at Exhibit 15F. It suggests that the claimant is markedly limited in two rather key areas of functioning, but the treating source offered no narrative explanation of the summary findings which were framed as alternative situations, i.e., traveling in unfamiliar places or using public transportation, and the treating source records indicated no symptoms that would support a finding of marked impairment in either situation. I have also noted that the treating sources have never really questioned the claimant closely about her substance abuse history and that they are unaware of the claimant's admissions about what is at least significant alcohol abuse since it is reasonable to conclude that the claimant like most abusers underreported her substance abuse. (AR at 19.)

Plaintiff raises several issues with respect to this report. She contends the ALJ: 1) failed to specifically address the areas of marked limitations; 2) failed to discuss any of the moderate functional limitations; 3) failed to identify the treating sources he believed had failed to question Plaintiff about her substance abuse history; and 4) based his decision on his own subjective assumption that Plaintiff underreported her substance abuse.*fn3 (JS at 4.)

To the extent that the form did not contain an explanation for Dr. Murad's conclusions, the ALJ may properly reject the assessment. Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that an ALJ may reject check-off forms that do not contain an explanation of the bases of their conclusions); see also Thomas, 278 F.3d at 957 (holding that "[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings."). This alone is a specific and legitimate reason for rejecting Dr. Murad's conclusions.

Moreover, substantial evidence supported the ALJ's decision. The medical expert, Dr. Glassmire, testified that Plaintiff did not have a record of hospital admission since the 1990s. (AR at 16-19, 389-90.) He also noted that Dr. Murad's findings simply were not supported by the medical record, which, for example, suggested no problems with memory. (Id. at 19, 390-91.) Dr. Glassmire also reported that the record reflected no restrictions in activities of daily living, moderate difficulties maintaining social functioning, moderate difficulties with maintaining concentration, persistence, and pace and, with alcohol, one or two episodes of decompensation. (Id. at 17, 387-88.) He limited Plaintiff to simple, object-oriented tasks with only superficial public contact and occasional co-worker and supervisor contact. (Id. at 17, 388-89.) Due to presumed alcohol abuse, he also limited Plaintiff to no responsibility for the safety of others or use of dangerous equipment. (Id. at 17, 389.)

The ALJ also noted that consultative examiner Dr. Linda Smith, a psychiatrist, found only mild symptoms in an April 2005 examination. (Id. at 16, 299-307.) Plaintiff appeared to be of at least average intelligence, and she had no memory problems. (Id. at 304.) Dr. Smith diagnosed only a mood disorder, not otherwise specified, noting that Plaintiff's description of panic attacks seemed to be actually describing low blood sugar, and the details of her alleged manic episodes were not reliable. (Id. at 300, 306.) Dr. Smith also found indications that Plaintiff was not truthful. For example, she claimed to have panic attacks but could not describe them "at all." (Id. at 300.) Dr. Smith also noted that treating records suggested that Plaintiff was "making up stories" to go to the hospital; she also admitted to lying about her marital status and drug and alcohol use during the consultative examination as well as during the ALJ hearing. (Id. at 16, 19, 301-05, 428-30, 433-36.) Where, as here, an examining physician's opinion rests on independent objective tests and clinical findings, the opinion may itself be substantial evidence. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995).

Finally, the report of the State Agency physician who reviewed the medical evidence and found only mild to moderate functional limitations provides further support for the ALJ's finding that Plaintiff's impairments did not result in functional limitations precluding all work activity. (See AR at 331-48); see also 20 C.F.R. § 416.927(f) (2007); Soc. Sec. Ruling 96-6p ("Findings of fact made by State Agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual's impairment(s) must be treated as expert opinion evidence of nonexamining sources at the [ALJ] and Appeals Council level of administrative review").

Based on the above and on its own review of the record, the Court finds no evidence that the ALJ improperly rejected the opinions of Plaintiff's treating physician. Thus, there was no error.

C. The ALJ Did Not Err with Respect to Consideration of Plaintiff's Medications

In her "Disability Report-Appeal" Plaintiff reported that she was taking Metformin (for diabetes), Zoloft (for depression), and Seroquel (for bipolar disorder), and that she was experiencing the side effects of diarrhea and drowsiness. (AR at 150.) In the Joint Stipulation, Plaintiff provides a list of potential side effects her medications are capable of producing, claiming these side effects can have an "impact . . . upon Plaintiff's ability to obtain and sustain full-time competitive employment."*fn4 (JS at 9-10, 11.) Plaintiff contends that the ALJ failed to properly consider the type, dosage, and side effects of these drugs without providing legally sufficient reasons. (Id. at 9, 11.) The Court does not agree.

Under Ninth Circuit law, the ALJ must "consider all factors that might have a 'significant impact on an individual's ability to work.'" Erickson v. Shalala, 9 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec'y of Health & Human Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 (1988)). Such factors "may include side effects of medications as well as subjective evidence of pain." Erickson, 9 F.3d at 818. When the ALJ disregards the claimant's testimony as to subjective limitations of side effects, he must support that decision with specific findings similar to those required for excess pain testimony, as long as the side effects are in fact associated with the claimant's medications.*fn5 See Varney, 846 F.2d at 545; see also Muhammed v. Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *6 (N.D. Cal. 1999).

However, medication side effects must be medically documented in order to be considered. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir. 1985). In this case, Plaintiff denied that she was experiencing any side effects from her medications. (See, e.g., AR at 288, 289, 352, 355.) On June 20, 2002, the Court found a medical note indicating that Plaintiff's Clonazepam made her sleepy. (Id. at 284.) This is not a medication she currently reports taking; apparently that medication was discontinued. The Court finds no other medical notes that reflect Plaintiff was experiencing any medication side effects. (See generally id. at 61-375.) Further, Plaintiff did not report any side effects during her hearing testimony and, in fact, noted that the medications she was taking "somewhat" help her. (Id. at 423.)

Accordingly, there was no reason for the ALJ to mention the alleged side effects of the various medications. Thus, there was no error in his failure to do so.

D. The Hypothetical Posed to the Vocational Expert Was Proper

Plaintiff contends that the ALJ erred because the hypothetical questions posed to the VE failed to take into account any mention of the impairments and functional limitations determined by Dr. Murad as discussed previously. (JS at 12.) The Court disagrees.

"In order for the testimony of a VE to be considered reliable, the hypothetical posed must include 'all of the claimant's functional limitations, both physical and mental' supported by the record." Thomas, 278 F.3d at 956 (quoting Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical questions posed to a VE need not include all alleged limitations, but rather only those limitations which the ALJ finds to exist. See, e.g., Magallanes, 881 F.2d at 756-57; Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). Thus, an ALJ must propose a hypothetical that is based on medical assumptions, supported by substantial evidence in the record, that reflects the claimant's limitations. Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001) (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995)); see also Andrews, 53 F.3d at 1043 (although the hypothetical may be based on evidence which is disputed, the assumptions in the hypothetical must be supported by the record).

As previously discussed, the record evidence did not support the conclusions of Dr. Murad. Accordingly, there was no error in the ALJ's hypothetical questions to the VE which did not include these limitations. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ("Because the ALJ included all of the limitations that he found to exist, and because his findings were supported by substantial evidence, the ALJ did not err in omitting the other limitations that Rollins had claimed, but had failed to prove.").


IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice.

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