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Sheffa v. Astrue

May 15, 2009

SHEMSIA SHEFFA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION AND ORDER

This matter is before the Court for review of the Decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income under Title XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and the parties have filed a joint stipulation. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.

On December 16, 1999, plaintiff Shemsia Sheffa filed an application for Supplemental Security Income, alleging an inability to work since September 9, 1999 due to major depression. (Administrative Record ["AR"] 113-16, 135-44). On August 29, 2001, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 15-22).

Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 6-7, 10-11), plaintiff filed an action in this Court. On August 7, 2003, the Court remanded the matter in order for the ALJ to fully and fairly develop the record pertaining to plaintiff's excess pain allegations and to set forth clear and convincing reasons for rejecting plaintiff's excess pain testimony. (AR 380-95). The Appeals Council subsequently remanded the case to an ALJ. (AR 397-98).

In addition to alleging depression, plaintiff alleged an inability to work due to low back pain, joint pain, rheumatoid arthritis, migraine headaches, heavy menstrual bleeding, uterine fibroids, anemia, vertigo and diarrhea. (See AR 432-37, 500-01, 503, 505-08, 528, 530-33). On August 22, 2005 (on remand) (hereinafter referred to as the "2005 Decision"), another ALJ determined that, although plaintiff's anemia due to menorrhagia with a history of fibroids and plaintiff's depressive disorder were considered "severe," plaintiff was not disabled within the meaning of the Social Security Act. (AR 368-79).

After plaintiff failed to timely request a review of the hearing decision (AR 357-63), plaintiff filed another action in this Court. On October 5, 2006, based on a Stipulation to Remand the Case because of the inability to locate the administrative file, the Court ordered that the matter be remanded pursuant to Section 6 of Section 205(g) of the Social Security Act. On January 11, 2008, based on a Stipulation to Reopen the Case, the Court ordered the reopening of the case.

Plaintiff makes eight challenges to the ALJ's 2005 Decision denying benefits. Plaintiff alleges that the ALJ erred in (1) making unsupported findings about plaintiff's pain testimony and medical expert Dr. Alpern's testimony; (2) failing to properly evaluate the medical reports of plaintiff's treating physicians; (3) failing to properly evaluate plaintiff's subjective complaints, including her pain testimony; (4) failing to properly evaluate plaintiff's use of medications and the possible side effects of such use; (5) failing to properly evaluate plaintiff's maximum residual functional capacity; (6) failing to properly evaluate the medical-vocational guidelines; (7) failing to properly evaluate the vocational expert's testimony; and (8) failing to properly evaluate new evidence. Each of plaintiff's contentions will be addressed in turn.

ISSUE NO. 1

Plaintiff asserts that the ALJ made an unsupported findings about Dr. Alpern's testimony and about plaintiff's exaggerated pain testimony.*fn1 In response, respondent argues that substantial evidence supported the ALJ's findings.

At a hearing on March 10, 2005, medical expert Harvey Alpern, M.D., testified that plaintiff likely had a fibroid tumor in her uterus that could cause anemia, and that plaintiff could either live with it (in discomfort) or have it surgically removed. (See AR 508-09). The ALJ simply noted Dr. Alpern's testimony. (AR 375). The ALJ found that plaintiff's anemia due to menorrhagia with a history of fibroids was severe. (AR 378). Contrary to plaintiff's assertion, the ALJ did not expressly accept Dr. Alpern's testimony about plaintiff's options with respect to her fibroid tumor. Nonetheless, since Dr. Alpern was subject to cross-examination (see AR 511-13) and since plaintiff has not pointed to evidence in the record contradicting Dr. Alpern's expert testimony, the ALJ was entitled to rely on Dr. Alpern's testimony. See Andrews v. Shalala, 53 F.3d 1035, 1042 (9th Cir. 1995).

With respect to the ALJ's finding regarding plaintiff's exaggerate pain testimony, the record reflects the following. On April 7, 2005, Roger A. Izzi, PhD, conducted a consultative psychiatric evaluation of plaintiff. (See AR 444-48). Dr. Izzi reported the following: "She stated that she experiences auditory-type of hallucinations when she is "very depressed." When asked what she hears, she responded, 'My kids are in trouble, or something bad is going to happen to me. (AR 445). After noting that plaintiff had always denied having any hallucinations in the past (AR 374; see AR 216, 274, 279, 284, 348), the ALJ found that plaintiff's statement that she was hallucinating was not credible and was "just another exaggeration on [that] date in which she is attempted to portray symptoms which are not actually present in order to increase the chance of obtaining benefits." (AR 374). The conflict between plaintiff's subjective complaint and the objective medical evidence constituted substantial evidence in support of the ALJ's determination about plaintiff's credibility. See Thomas v. Barnhart, 278 F.3d 947, 959-60 (9th Cir. 2002); Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

ISSUE NO. 2

Plaintiff asserts that the ALJ erred in rejecting the opinions of Louis Simpson, M.D., plaintiff's treating psychologist. Plaintiff further asserts that the ALJ failed to explain the weight given to some of plaintiff's treating physicians' opinions on plaintiff's internal medical problems and pain problems.

In response, defendant argues that the ALJ properly rejected the opinions of Dr. Simpson. Defendant further argues that the ALJ properly considered the opinions of plaintiff's treating physicians.

Plaintiff challenges the ALJ's decision to reject Dr. Simpson's opinions. In a Medical Provider Evaluation dated December 13, 1999, Dr. Simpson, who had treated plaintiff since December 2, 1999 (see AR 273), stated that plaintiff was unable to work until June 15, 2000. (See AR 184). In a Mental Form for Mental Disorders, dated December 22, 1999, Dr. Simpson stated that plaintiff was expected to improve with medications and treatment within 2 years. (See AR 226-29). In a Mental Assessment Form dated March 1, 2001, Dr. Simpson indicated that plaintiff was markedly or moderately limited in understanding and memory, sustained concentration and persistence, and adaptation; and that plaintiff was unable to work in a work setting. (See AR 275-78). In a Mental Assessment dated February 12, 2005, Dr. Simpson, who had treated plaintiff from December 20, 1999 to April 3, 2001 (see AR 279-86), indicated that plaintiff was markedly or slighly limited in understanding and memory, and markedly or moderately limited in sustained concentration and persistence, social interaction, and adaptation. (See AR 421-424). Dr. Simpson opined that plaintiff was not able to work or make plans to work. (See AR 423).

With respect to Dr. Simpson's March 1, 2001 opinions, the ALJ noted that "there are few objective findings and his opinion appears to have been based mostly on the complaints and history from the claimant." (AR 371). With respect to Dr. Simpson's February 12, 2005 opinions, the ALJ noted that "Dr. Simpson has provided no treatment notes, no report of mental status evaluations, and no indication that he even continued to have a treating relationship with [plaintiff]." (AR 374). The ALJ further noted plaintiff's statement during a consultative psychiatric evaluation in June 2001 that she was not having any outpatient mental health treatment. (Id.; see AR 345).

Since Dr. Simpson's March 1, 2001 opinions were primarily based on subjective complaints, and since there were no records showing that Dr. Simpson treated plaintiff from April 2001 to February 2005, the ALJ was entitled to not give any weight to Dr. Simpson's opinions about plaintiff's inability to work based on severe mental symptoms. (AR 374). See Magallanes v. Bowen, 881 F.2d 747, 751 (1989) ( "[T]he ALJ need not accept a treating physician's opinion which is 'brief and conclusionary in form with little in the way of clinical findings to support its conclusion.'"); Burkart v. Bowen, 856 F.2d 1335, 1339 (9th Cir. 1988) ("A treating physician's medical opinion unsupported by described medical findings, personal observations, or test results may be rejected."); 20 C.F.R. § 416.927(b)-(d) (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).

Moreover, the ALJ's finding was consistent with the Court's August 2003 finding (which the ALJ cited and relied on) that the ALJ in the 2001 Decision correctly determining that Dr. Simpson's March 1, 2001 opinions that plaintiff was unable to work were entitled to very little weight because such opinions were "based almost entirely on Plaintiff's self-serving complaints," because Dr. Simpson "provided no objective medical evidence as to why, in his opinion, Plaintiff was disabled," and because Dr. Simpson "never performed any type of objective mental test, nor did he administer a mental status examination on Plaintiff" (see AR 391-92). (See AR 371).

Finally, the ALJ found that plaintiff was able to work based, in part, on a June 19, 2001 consultative psychiatric examination, in which David Bedrin, M.D., determined that plaintiff was able to work (even though she was moderately limited in her ability to perform detailed tasks as a result of her memory problems). (See AR 373; AR 344-50). Dr. Bedrin's opinions constituted substantial evidence supporting the ALJ's decision to reject Dr. Simpson's opinions. See Magallanes, supra ("To reject the opinion of a treating physician which conflicts with that of an examining physician, the ALJ must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record."); Andrews v. Shalala, supra, 53 F.3d at 1041 (Where "the opinion of a treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict.").

Plaintiff further challenges the ALJ's consideration of the medical records of plaintiff's treating physicians, including: L. Khadijah Lang, M.D. (see AR 182, 287-91 [3F, 27F]); Dr. Simpson (see AR 184, 272-86 [5F, 23F, 25F, 26F1]); California Hospital Medical Center (see AR 185-209, 297-300 [6F, 30F]; Southern California Sports Rehab (see AR 212-13 [8F]); Kaiser Permanente (see AR 214 [9F]); Clinica Metropolitana (see AR 269-271, 292-95 [21F, 22F, 28F]; Augustus F. Hawkins Mental Health Center (see AR 273-74 [24 F]); Komfort Care Medical Group (see AR 296 [29F]); and Good Samaritan Hospital (see AR 301-33 [31F]).

Dr. Lang, who apparently treated plaintiff from October 7, 1999 to November 4, 1999, stated that he did not believe plaintiff would be able to work or attend school until the end of November. (See AR 182, 287-91). The ALJ addressed the medical records of Dr. Lang as follows: "[Plaintiff] also complained of arthralgias in her right shoulder, right knee, and left chest pain for which her doctor had prescribed Motrin (see Exhibits 3F and 27F dated October 14, 1999 and November 4, 1999, wherein Dr. Lang stated that the claimant is "medically unable to work or attend classes. . . for this condition," the "condition" being that she had palpitations with stress with thinking of her school situation)." (AR 370).

As discussed above, the ALJ properly rejected the opinions of Dr. Simpson. Plaintiff was treated at California Hospital Medical Center on October 19, 1999, and from December 27 to 29, 1999. (See AR 186-209; 297-300). The ALJ stated: "Medical report from California Hospital Medical Center reveals that the claimant presented on October 19, 1999 with 'multiple complaints mostly related to stressors at school due to her differences in belief system and religious habits.'"(AR 370; see AR 196; 300). With regard to treatment on October 19, 1999, the ALJ stated: " Examination was essentially normal. EKG was normal. It was recommended that she seek support with her religious affiliations. There was no evidence of cardiopulmonary disease. Diagnosis was reactive depression and somatization." (AR 370; see AR 191-92). The ALJ further stated: "The [plaintiff returned on December 27, 1999 with an aching chest pain elicited by stress that she reported experiencing ...


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