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Roach v. Astrue

July 30, 2009


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


I. Proceedings

This matter is before the Court to review the Administrative Law Judge's ("ALJ") denial of Plaintiff's application for Disability Insurance Benefits ("DIB") benefits. Plaintiff and Defendant have filed their respective pleadings and the parties have filed a Joint Stipulation dated January 30, 2009. The parties have consented to the jurisdiction of the Magistrate Judge.

II. Background

On October 26, 2005, Plaintiff, Mary Roach, filed a Title XVI application for supplemental security income ("SSI") and protectively filed a Title II application for DIB. Plaintiff alleged disability beginning October 5, 2000, due to a history of right lateral epicondylitis and borderline intellectual functioning (AR 31). The claims were denied initially and upon reconsideration, and Plaintiff filed a timely request for a hearing on November 1, 2006. (AR 30). The hearing was held in Orange, California on July 18, 2007, before an ALJ. (AR 325). The ALJ denied benefits to Plaintiff on August 24, 2007, on the grounds that Plaintiff's limitations did not prevent her from performing past relevant work as a housekeeper and nurse's aide. (AR 9-16). The Appeals Council denied review of the decision. (AR 2). On March 21, 2008, Plaintiff filed with the Court. The matter has been taken under submission.

III. Discussion

1. Standard of Review

Under 42 U.S.C. § 405(g)(1998), the court reviews the Commissioner's decision to determine if: (1) the Commissioner's findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla", Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance." Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 1988).

This court cannot disturb the Commissioner's findings if those findings are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971). The court is required to uphold the decision of the Commissioner where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984).

2. The ALJ Properly Rejected Dr. Lee's Findings

Plaintiff contends that the ALJ failed to give proper weight to the findings of the non-examining State Agency physician's mental residual functional capacity assessment. Pursuant to 20 C.F.R. § 416.927(d)(1), more weight should be given to the opinion of a source who has examined the Plaintiff than one who has not. See Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) (non-examining physician's conclusion entitled to less weight than that of examining physician).

In the case at hand, the ALJ gave greater weight to the opinion of examining physician Dr. Townsend than to Dr. Lee, a non-examining physician. (AR 15). The ALJ noted that Dr. Lee imposed greater limitations on Plaintiff than the examining physician, including moderate limitations in her ability to understand and carry out detailed instructions, maintain attention for extended periods of time, work with others without being distracted by them, respond appropriately to criticism from supervisors, get along with co-workers, and set realistic goals or make plans independent of others (AR 185-201). (AR 14-15). On the other hand, the examining psychologist found that Plaintiff could understand simple and detailed instructions and could complete a full day's work without interruption from psychiatric symptoms. (AR 209).

The ALJ specifically stated his choice to give greater weight to the opinion of Dr. Townsend due to support from objective medical findings. (AR 15). Dr. Townsend administered five psychological tests and based her findings on the results of these tests and her interactions with Plaintiff. (AR 204). Additional support for Dr. Townsend's opinion is found in Dr. Jacob's review, which states his agreement that Plaintiff can complete the simple work she did in the past. (AR 183). Dr. Lee however, relied merely on Plaintiff's file in finding greater limitations on the Plaintiff than those found by the examining physician. (AR 185). Dr. Lee's opinion was not supported by other evidence in the record. (AR 15).

Where a diagnosis of a non-examining physician is based in part on the self-reporting of an unreliable person, the ALJ can accord that diagnosis less weight. See Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Here, the ALJ gave specific reasons for questioning Plaintiff's credibility with regard to her subjective symptoms. (AR 15). The ALJ pointed to Plaintiff's conviction of welfare fraud and lack of medication to alleviate pain that would significantly impair Plaintiff's ability to work. Id. The record also includes evidence that Plaintiff emphasized her disabilities and put forth a low level of effort during a mental examination. (AR 204-08). In relying on Plaintiff's file, Dr. Lee looked to reports that included Plaintiff's own allegations of ...

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