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Avalos v. Astrue


March 18, 2009


The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge



On November 5, 2007, plaintiff Rogelio Villa Avalos ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 7, 2007 Case Management Order, ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1


On April 12, 2004, plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 60-62). Plaintiff asserted that he became disabled on July 16, 2002, due to hepatitis B and psychiatric problems. (AR 75-81). The Administrative Law Judge examined the medical record and heard testimony from plaintiff, who was represented by counsel, from plaintiff's friend, and from medical and vocational experts, on January 8, 2007. (AR 294-320).

On April 26, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 10-16). Specifically, the ALJ found:

(1) plaintiff suffered from the following severe impairments: hepatitis C; a mood disorder, not otherwise specified; and a history of drug and/or alcohol abuse (AR 15); (2) plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments (AR 11, 15); (3) plaintiff retained the residual functional capacity to perform medium work (AR 16);*fn2 (4) plaintiff could not perform his past relevant work (AR 16); (5) there are a significant number of jobs in the national economy that plaintiff could perform (AR 16); and (6) plaintiff's allegations regarding his limitations were not totally credible (AR 15).

The Appeals Council denied plaintiff's application for review. (AR 3-5).


A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).

In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity*fn3 to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457).


A. Treating Psychologist's Opinion

Plaintiff contends that the ALJ erroneously failed to address the opinion of a treating psychologist Dr. Lisa Shelton. (Plaintiff's Motion at 2-3). This Court concludes that the ALJ did not materially err in his consideration of Dr. Shelton's opinion, and that a reversal or remand is not warranted on this basis.

1. Relevant Facts

Between approximately July 2002 and December 2006, plaintiff was treated by Dr. Donna Barrozo at the San Bernardino County Department of Behavioral Health. (AR 142-58, 257-81). On July 23, 2002, during plaintiff's first visit, Dr. Lisa Shelton, conducted an initial assessment of plaintiff. (AR 146, 261). The record does not reflect that Dr. Shelton saw, assessed or treated plaintiff on any other date. Dr. Shelton noted that plaintiff was anxious and had a history of depression, and opined that plaintiff suffered from a severe dysfunction (as defined by the Department of Behavior Health), because he was unable to go and find work due to depression and anxiety. (AR 145-146, 260-61). Dr. Barrozo treated plaintiff with medication, including Seroquel and Zoloft, and, during the course of treatment, noted that plaintiff's depression had decreased, that he was sleeping better on the medications, and that his concentration was better on the medication. (AR 148-58, 259-75).

On June 25, 2004, consulting examiner Dr. Linda Smith conducted a complete psychiatric evaluation of plaintiff. (AR 179-86). Dr. Smith diagnosed plaintiff with a mood disorder, not otherwise specified. (AR 183). She opined that his prognosis was fair and that he had no functional impairments. (AR 184).

On April 3, 2005, consulting examiner Dr. Sohini Parikh conducted a complete psychiatric evaluation of plaintiff. (AR 218-25). Dr. Parikh diagnosed plaintiff as having a mood disorder because of medical condition and a history of polysubstance abuse in the past. (AR 222). She opined that he had no functional impairments. (AR 223).

On February 16, 2007, Dr. Smith conducted another complete psychiatric evaluation. (AR 282-93). She reviewed plaintiff's medical records, including the above-summarized medical records and examination reports. (AR 282). Dr. Smith diagnosed plaintiff with polysubstance abuse, possibly abstaining and alcohol abuse, unclear current status. (AR 288). She opined that plaintiff's prognosis was fair and that he had no functional impairments. (AR 289-92).

On January 8, 2007, during the administrative hearing, medical expert Dr. Sidney Bolter, testified regarding, inter alia, plaintiff's alleged mental impairments. (AR 307-13). Dr. Bolter reviewed plaintiff's medical records, including those from Drs. Barrozo and Shelton. (AR 307) (citing Exhibit 11F [AR 256-81]). Dr. Bolter noted that plaintiff's physicians accepted plaintiff's subjective complaints, but that such complaints were not supported by objective evidence such as a mental status examination. (AR 307-08). Referring specifically to Dr. Shelton's "check-off" mental status report, Dr. Bolter noted that the record did not reflect that such assessment was based on any actual testing of plaintiff's mental status. (AR 308). He further noted that the progress notes were essentially a "recital of symptoms by the patient" followed by a conclusion statement from the doctor without any real examination. (AR 308). Dr. Bolter contrasted plaintiff's doctor's records with the reports of the consulting examiners who had performed "reasonably good mental status exam[s]." (AR 308). Dr. Bolter testified that it was his "overall read" that plaintiff "has depression in a significant severity to cause limitations." (AR 310). He further opined that plaintiff was moderately limited in his activities, markedly limited in social functioning, mildly limited in concentration, persistence and pace, and should be limited to simple repetitive tasks in a non-public atmosphere. (AR 310, 312).

In his decision, the ALJ pointed to Dr. Bolter's opinion regarding plaintiff's treatment records (Exhibit 11F, which included Dr. Shelton's assessment). (AR 13). The ALJ noted that "Dr. Bolter opined that they contained primarily subjective complaints with no objective, clinical findings to support the claimant's allegations." (AR 13). The ALJ essentially adopted Dr. Bolter's opinion in assessing plaintiff's mental residual functional capacity, finding that plaintiff could "perform simple, repetitive tasks in the competitive workplace on a routine or sustained basis if he ha[d] no contact with the general public and only minimal contact with coworkers and supervisor". (AR 14).

2. Applicable Law

In Social Security cases, courts employ a hierarchy of deference to medical opinions depending on the nature of the services provided. Courts distinguish among the opinions of three types of physicians: those who treat the claimant ("treating physicians") and two categories of "nontreating physicians," namely those who examine but do not treat the claimant ("examining physicians") and those who neither examine nor treat the claimant ("nonexamining physicians"). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A treating physician's opinion is entitled to more weight than an examining physician's opinion, and an examining physician's opinion is entitled to more weight than a nonexamining physician's opinion.*fn4 See id. In general, the opinion of a treating physician is entitled to greater weight than that of a non-treating physician because the treating physician "is employed to cure and has a greater opportunity to know and observe the patient as an individual." Morgan v. Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)).

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) (citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician's opinion is not contradicted by another doctor, it may be rejected only for clear and convincing reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal quotations omitted). The ALJ can reject the opinion of a treating physician in favor of a conflicting opinion of another examining physician if the ALJ makes findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Id. (citation and internal quotations omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out detailed and thorough summary of facts and conflicting clinical evidence, stating his interpretation thereof, and making findings) (citations and quotations omitted); Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite "magic words" to reject a treating physician opinion -- court may draw specific and legitimate inferences from ALJ's opinion). "The ALJ must do more than offer his conclusions." Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). "He must set forth his own interpretations and explain why they, rather than the [physician's], are correct." Id. "Broad and vague" reasons for rejecting the treating physician's opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).

3. Analysis

Here, the record reflects that the ALJ did in fact consider Dr. Shelton's July 2002 assessment of plaintiff. As noted above, the medical expert expressly referenced it during his testimony at the hearing, and the ALJ expressly referenced the expert's opinion regarding Dr. Shelton's and Dr. Barrozo's records in the ALJ's written decision. (AR 13, 307-08). To the extent the ALJ's disability determination is viewed as being inconsistent with Dr. Shelton's opinion, it is reasonable to infer that he discounted such opinion for the reason articulated by the medical expert and expressly referenced in the ALJ's decision, i.e., it contained primarily subjective complaints with no objective, clinical findings to support plaintiff's allegations. This was an appropriate, and a clear and convincing basis upon which to reject Dr. Shelton's assessment. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physicians' opinions that are conclusory, brief, and unsupported by record as a whole or by objective medical findings).

Accordingly, a remand or reversal is not warranted based upon the ALJ's rejection of Dr. Shelton's one-time assessment.

B. Plaintiff's Credibility

Plaintiff contends that a remand or reversal is warranted because the ALJ rejected plaintiff's testimony without discussing it. (Plaintiff's Motion at 5-6). This claim is specious.

1. Pertinent Law

An ALJ is not required to believe every allegation of disabling pain or other non-exertional impairment. Orn, 495 F.3d at 635 (citing Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989)). If the record establishes the existence of a medically determinable impairment that could reasonably give rise to symptoms assertedly suffered by a claimant, an ALJ must make a finding as to the credibility of the claimant's statements about the symptoms and their functional effect. Robbins, 466 F.3d 880 at 883 (citations omitted). Where the record includes objective medical evidence that the claimant suffers from an impairment that could reasonably produce the symptoms of which the claimant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration, 533 F.3d 1155, 1160 (9th Cir. 2008) (citations omitted). The only time this standard does not apply is when there is affirmative evidence of malingering. Id. The ALJ's credibility findings "must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant's testimony on permissible grounds and did not arbitrarily discredit the claimant's testimony." Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004).

To find the claimant not credible, an ALJ must rely either on reasons unrelated to the subjective testimony (e.g., reputation for dishonesty), internal contradictions in the testimony, or conflicts between the claimant's testimony and the claimant's conduct (e.g., daily activities, work record, unexplained or inadequately explained failure to seek treatment or to follow prescribed course of treatment). Orn, 495 F.3d at 636; Robbins, 466 F.3d at 883; Burch, 400 F.3d at 680-81; SSR 96-7p. Although an ALJ may not disregard such claimant's testimony solely because it is not substantiated affirmatively by objective medical evidence, the lack of medical evidence is a factor that the ALJ can consider in his credibility assessment. Burch, 400 F.3d at 681.

Questions of credibility and resolutions of conflicts in the testimony are functions solely of the Commissioner. Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006). If the ALJ's interpretation of the claimant's testimony is reasonable and is supported by substantial evidence, it is not the court's role to "second-guess" it. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001).

2. Analysis

Contrary to plaintiff's suggestion, the ALJ rejected plaintiff's testimony for multiple clear and convincing reasons which are reflected in his decision and which are supported by substantial evidence in the record.

Initially, the ALJ pointed to plaintiff's "markedly inconsistent statements regarding his marital history, education, gang membership, prison and jail history, and drug and/or alcohol abuse . . . [which] inconsistencies rendered the veracity of his entire testimony highly suspect." (AR 14). As the ALJ noted, the record reflects that in June 2004, plaintiff told Dr. Smith that he had been a gang member, had a prior history of drug abuse, had been married three times, had three children, had completed the sixth grade, used to drink alcohol daily until 2003, had used heroin until five years prior, had been arrested 30 times for being under the influence and traffic offenses, and had been in prison five times. (AR 11-12) (citing AR 180-81). However, as the ALJ also noted, in February 2007, plaintiff told Dr. Smith that he had not been a gang member, had been married only once, had no children, had completed nine years of formal education, had been arrested only 10 times for DUIs and drugs, had served only one year in jail, and had never been sent to prison. (AR 13) (citing AR 283-85). Dr. Smith further noted that plaintiff's statements to her regarding drug and alcohol use were inconsistent with what plaintiff had told others. (AR 285). She pointed out that plaintiff did not appear to be entirely genuine and truthful with her and that he attempted to manipulate the interview and to dodge questions. (AR 286). As noted above, such inconsistencies are a permissible basis upon which to discount plaintiff's credibility.

The ALJ also pointed to the inconsistency between plaintiff's claim that he suffered from a disabling mental impairment and the fact that he had been treated relatively conservatively, i.e., that he had denied any psychiatric hospitalization. (AR 14). This too was a permissible basis upon which to reject plaintiff's credibility.

Finally, the ALJ noted that plaintiff's testimony regarding the disabling nature of his mental impairments was inconsistent with the opinions of Drs. Smith and Parikh, and gave greater weight to the opinions of the doctors in light of their expertise. (AR 14). Such an inconsistency with objective medical opinions is a factor that the ALJ can consider in his credibility assessment.

In short, the ALJ's assessment of plaintiff's credibility was free from material error and provides no basis for remand or reversal.

C. Medication Side Effects

Plaintiff contends that a remand or reversal is warranted because the ALJ erroneously failed properly to evaluate evidence regarding plaintiff's reported side effects of her medications. (Plaintiff's Motion at 3-4). Here, plaintiff complained that his medications, which included Zoloft and Seroquel, caused him to be alert and drowsy, and to suffer a high fever, body aches, cold sweats, and weakness. (AR 108). A claimant bears the burden of demonstrating that his use of medications caused a disabling impairment. See Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.1985) (claimant failed to meet burden of proving medication impaired his ability to work because he produced no clinical evidence). Plaintiff offers no objective evidence that his medications affected him in the ways that he claims, let alone that they interfered with his ability to work. See Osenbrock v. Apfel, 240 F.3d 1157, 1164 (9th Cir. 2001) (Side effects not "severe enough to interfere with [plaintiff's] ability to work" are properly excluded from consideration). The only evidence regarding these alleged side effects is plaintiff's own statements to his doctors and the Administration, and plaintiff's testimony at the hearing. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (ALJ did not err in failing to "explicitly address the drowsiness side-effect of [claimant's] medication" in making an RFC determination as "the ALJ took into account those limitations for which there was record support that did not depend on [the claimant's] subjective complaints"). While plaintiff's statements and testimony cannot be rejected solely because the objective medical evidence does not support the severity of his impairment, the ALJ, as noted above, properly rejected his testimony by using ordinary techniques of credibility evaluation, and by providing specific, clear and convincing reasons, supported for by the record, that his testimony was generally not credible. See Thomas, 278 F.3d at 960 (citation and internal quotation marks omitted). Accordingly, it was not necessary for the ALJ specifically to discuss such alleged side effects. See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ only required to explain why probative evidence has been rejected).

In this case, plaintiff fails to demonstrate that a reversal or remand is warranted based upon the ALJ's failure specifically to consider and discuss plaintiff's alleged side effects from his medication.

D. Hypothetical Question to Vocational Expert

Plaintiff alleges that a reversal or remand is appropriate because the ALJ erroneously omitted Dr. Shelton's opinion and the side effects of plaintiff's medications from the hypothetical questions posed to the vocational expert. (Plaintiff's Motion at 7). This Court disagrees.

A hypothetical question posed by an ALJ to a vocational expert must set out all the limitations and restrictions of the particular claimant. Light v. Social Security Administration, 119 F.3d 789, 793 (9th Cir.), as amended (1997) (citing Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. 1995)); Embrey, 849 F.2d at 422 ("Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant . . . .") (emphasis in original; citation omitted). However, an ALJ's hypothetical question need not include limitations not supported by substantial evidence in the record. Osenbrock, 240 F.3d at 1163-64 (citation omitted).

As discussed above, the ALJ properly rejected Dr. Shelton's opinion in favor of the opinions of the consulting examiners and the medical expert. Moreover, plaintiff's claim that he suffered side effects from his medications is supported only by his own statements and testimony which the ALJ appropriately rejected. See Thomas, 278 F.3d at 960 (rejecting claim that ALJ improperly excluded side effects caused by medication from hypothetical question where only evidence regarding side effects was plaintiff's own statements and testimony and ALJ properly determined that plaintiff's testimony generally not credible).

Accordingly, the ALJ properly omitted such opinions and the alleged medication side effects from the hypothetical questions posed to the vocational expert. A remand or reversal on this basis is not warranted.


For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.


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