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Parra v. Astrue


August 25, 2010


The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge


Plaintiff Mireya Parra seeks judicial review of the Social Security Commissioner's final decision denying her application for Disability Insurance Benefits ("DIB"). For the reasons set forth below, the decision of the Commissioner is affirmed.

I. Background

Plaintiff was born on March 28, 1950. (Administrative Record ("AR") 55.) She is a high school graduate, with additional training in cosmetology. (AR 74-75.) Plaintiff was employed as a traffic coordinator/import-export manager for an aerospace company from 1979 to 1999. (AR 70.)

Plaintiff filed an application for DIB on November 16, 2005, alleging that she has been disabled since April 16, 1999, as a result of depression, high blood pressure, migraine headaches, inability to concentrate, and carpal tunnel syndrome. (AR 55, 69.) Plaintiff's date last insured was December 31, 2004. (AR 401.) In order to qualify for disability insurance benefits, Plaintiff is required to establish that she was disabled on or before the date her insured status expired. 20 C.F.R. §404.131(b)(1); Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1394 (9th Cir. 1984); Flatten v. Secretary of Health & Human Serv., 44 F.3d 1453, 1463 (9th Cir. 1995). Plaintiff was therefore required to establish that she was disabled on or before December 31, 2004, in order to be eligible for disability insurance benefits.

Plaintiff's application was denied initially by the Social Security Administration ("SSA") on the basis of insufficient evidence. (AR 27.) On reconsideration, the SSA affirmed its decision that there was insufficient evidence to establish disability on or before December 31, 2004. (AR 31-35.) An administrative hearing was started on November 7, 2006, before Administrative Law Judge ("ALJ") Lawrence D. Wheeler, and was continued to April 12, 2007. (AR 343-364, 365-388.) On August 8, 2007, ALJ Wheeler issued a decision denying Plaintiff's application for benefits. (AR 11-22.) The ALJ found that Plaintiff suffered from the severe impairments of cervical spine pain, headaches and carpal tunnel syndrome but that Plaintiff's impairments did not meet, or were not medically equal to, one of the listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (AR 21.) The ALJ found that Plaintiff retained the residual functional capacity ("RFC") to do the full range of light work and that she was able to perform her past relevant work. (Id.)

On March 21, 2008, the Appeals Council denied review (AR 5-7) and Plaintiff sought judicial review in this Court. On January 26, 2009, this Court remanded the case to the Commissioner for further proceedings, finding that the ALJ had erred in finding that Plaintiff's mental impairment was not severe. Parra v. Astrue, CV 08-3173-MLG. (AR 417-435.)

On June 16, 2009, a second administrative hearing was held before ALJ Wheeler. (AR 461-481.) On September 11, 2009, the ALJ issued a decision again concluding that Plaintiff was not disabled. (AR 400-408.) The ALJ found that Plaintiff suffered from the severe impairments of cervical spine pain, headaches, carpal tunnel syndrome, and depression. (AR 402.) The ALJ further determined that Plaintiff's depression prevented her from performing her past relevant work, but that it was not sufficiently severe to preclude all work. (AR 407.) Relying on testimony from a vocational expert, the ALJ concluded that there were jobs existing in significant numbers in the national economy that Plaintiff could perform, such as assembler, small products and back office helper. (Id.) On December 4, 2009, the Appeals Council denied review. (AR 389-392.)

Plaintiff then filed this action for judicial review. On August 11, 2010, the parties filed a Joint Stipulation ("Joint Stp.") of disputed facts and issues. Plaintiff alleges: (1) the ALJ failed to accord proper weight to the opinion of Plaintiff's treating psychiatrist; (2) the ALJ's finding that Plaintiff was only mildly to moderately impaired due to her depression was not supported by substantial evidence; and (3) the ALJ erred in assessing and weighing Plaintiff's testimony and subjective complaints. (Joint Stp. 3.) Plaintiff seeks an award of benefits. (Joint Stp. 17.) The Commissioner requests that the ALJ's decision be affirmed.

(Joint Stp. 18.)

II. Standard of Review

The Court must uphold the Social Security Administration's disability determination unless it is not supported by substantial evidence or is based on legal error. Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)(citing Stout v. Comm'r of Soc. Sec. Admin., 454 F.3d 1050, 1052 (9th Cir. 2006)). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing court "must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the reviewing court "may not substitute [its] judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff's Treating Physician

Plaintiff contends that the ALJ erred in failing to give controlling weight to the opinion of her treating psychiatrist, Dr. Adib Bitar. (Joint Stp. 3.) Dr. Bitar, who first began treating Plaintiff on June 14, 2005, diagnosed her with major depression. In a letter to counsel dated April 16, 2007, Dr. Bitar opined that cumulative stress beginning in 1998, when she lost her job, "perpetuated a disabling depression" for which Plaintiff "remains in treatment for indeterminate time." (AR 337.)

An ALJ should generally accord greater probative weight to a treating physician's opinion than to opinions from non-treating sources. See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's contradictory opinion. Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). However, the ALJ need not accept the opinion of any medical source, including a treating medical source, "if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: "[l]ength of the treatment relationship and the frequency of examination" by the treating physician; and the "nature and extent of the treatment relationship" between the patient and the treating physician. Orn, 495 F.3d at 631-33; 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii).

The ALJ provided several legitimate reasons for refusing to give Dr. Bitar's opinion controlling weight, each of which was supported by substantial evidence in the record. First, the ALJ noted that Dr. Bitar did not examine Plaintiff until June 14, 2005, six months after the date last insured of December 31, 2004, and did not complete a Mental Disorder form until February 2006, fifteen months after her date last insured. (AR 253-256, 405.) Thus, there was no medical evidence within the relevant period that established that Plaintiff's mental impairment was disabling. See Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 1982) ("The existence of emotional disorder, however, is not per se disabling.... there must be proof of the impairment's disabling severity.").

Plaintiff argues that Dr. Bitar's medical reports, even though issued after the date last insured, are relevant to assess disability, citing Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). Although medical reports rendered retrospectively may not be disregarded solely on the basis that they were prepared after the claimant's insured status expired, there is no medical evidence in the record which supports a finding that Plaintiff was unable to perform substantial gainful employment prior to December 31, 2004, because of her depression. The claimant bears the initial burden of showing that he or she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment. 42 U.S.C. § 1382c(a)(3)(4); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). In light of the evidence in the record, the ALJ correctly determined that Plaintiff had not met this burden.

Moreover, the only medical opinion rendered during the relevant time period does not establish that Plaintiff's depression prevented her from performing any substantial gainful employment. Plaintiff's neurologist, Dr. Fawaz Al Faisal, began treating Plaintiff in January 2002 for migraine headaches. (AR 210-212.) Dr. Faisal diagnosed Plaintiff with "classic migraine headaches" and "distal paresthesias in both hands," but did not diagnose her with depression. (Id.) Although Plaintiff notes that Dr. Faisal prescribed her Celexa in 2002 to treat depression, this was based solely on Plaintiff's self-reported symptoms as Dr. Faisal never conducted a mental status examination of Plaintiff.

Further, Dr. Faisal never diagnosed Plaintiff with depression nor did he ever find that her depression was disabling. (AR 187-88, 194-212, 403.) In addition, Dr. Faisal did not refer Plaintiff to Dr. Bitar for mental health treatment until June 2005, over three years after he first began treating her for migraine headaches, presumably because her depression was not sufficiently severe until then.

The ALJ also rejected Dr. Bitar's February 2006 opinion because it was very general and did not "quantify a deficit in attention or concentration or clearly explain the limitation in social functioning." (AR 253-256, 405.) The ALJ also found that Dr. Bitar's report was "partially countered by Dr. Faisal's reported examination that, while also somewhat brief and general, at least describes the claimant as alert, attentive, cooperative, and with intact memory." (AR 210-212, 405.) This is the type of conclusory, brief, and unsupported report that may be properly discounted by an ALJ. Batson v. Comm'r, 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan, 242 F.3d at 1149.

The ALJ provided specific and legitimate reasons for rejecting Dr. Bitar's assessment, each of which was supported by substantial evidence in the record. Plaintiff has failed to show that her depression prevented her from performing substantial gainful activity prior to her date last insured. Therefore, no relief is warranted on this claim.

B. The ALJ's Determination That Plaintiff's Depression Was Not Functionally Limiting Was Supported by Substantial Evidence

Plaintiff next contends that the ALJ's determination that Plaintiff had only mild to moderate limitation in activities of daily living and in maintaining social functioning and concentration due to her depression was not supported by substantial evidence. (Joint Stp. 9.) The ALJ stated that although there was "evidence of some depression reasonably linked [to] the alleged onset date and, more clearly, established by December 31, 2004," there was a lack of medical evidence in the record to support a finding that Plaintiff's depression significantly limited her ability to perform substantial gainful employment. (AR 406.)

Substantial evidence supported the ALJ's finding that Plaintiff's depression caused only mild to moderate limitation in activities of daily living and in maintaining social functioning. As discussed in detail above, there is no medical opinion in the record during the relevant period of disability which establishes that Plaintiff's depression was disabling and precluded her from working. In fact, Plaintiff even concedes that Dr. Faisal, her treating physician during the relevant disability period, "never expressed an opinion as to whether [P]laintiff was employable or disabled, nor did he assess her functional capacity." (Joint Stp. 9.)

In addition, the ALJ noted that Plaintiff's claim that her depression was disabling was undermined by her lack of credibility. (AR 406.) As the Court concluded in its January 26, 2009 opinion remanding the case for further proceedings, the ALJ properly rejected Plaintiff's testimony as not being fully credible.*fn1

Accordingly, the ALJ's determination that Plaintiff only had mild to moderate limitation in activities of daily living and in maintaining social functioning and concentration due to her depression was supported by substantial evidence in the record, and Plaintiff is not entitled to relief on this issue.

C. The ALJ Accorded Appropriate Weight to Plaintiff's Testimony and Subjective Complaints

Plaintiff contends that the ALJ failed to properly evaluate her testimony and subjective complaints. (Joint Stip. 13.) As he did in the August 8, 2007, decision finding Plaintiff not disabled, the ALJ cited Plaintiff's lack of credibility as adversely affecting the evaluation of the severity of her impairments prior to the date last insured. (AR 405.) The ALJ incorporated his analysis of Plaintiff's testimony from the August 8, 2007, decision into the September 11, 2009, decision finding Plaintiff not disabled. (AR 401.)

As discussed in detail in the Court's January 26, 2009, opinion, the ALJ gave multiple reasons for finding that Plaintiff's subjective testimony was not entirely credible, all of which are fully supported by the record. (AR 428-431.)

In addition, the ALJ also found that Plaintiff was not fully credible based upon her testimony at the second administrative hearing held on June 16, 2009. (AR 459-482.) Although Plaintiff testified at the first administrative hearing that she wanted to work after being laid off from her job and sent out resumes for many years, at the second administrative hearing, she claimed that she could not have worked even if she had been offered a job. (AR 467.) As the ALJ noted, this inconsistency in Plaintiff's testimony further diminishes her credibility. (AR 405.)

The ALJ made specific findings articulating clear and convincing reasons for his rejection of Plaintiff's subjective testimony. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). It is the responsibility of the ALJ to determine credibility and resolve conflicts or ambiguities in the evidence. Magallanes v. Brown, 881 F.2d 747, 750 (9th Cir. 1989). A reviewing court may not second-guess the ALJ's credibility determination when it is supported by substantial evidence in the record, as here. See Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989). It was reasonable for the ALJ to rely on all of the reasons stated above, each of which is fully supported by the record, in rejecting the credibility of Plaintiff's subjective complaints. In sum, the ALJ reasonably and properly discredited Plaintiff's subjective testimony regarding the severity of her symptoms as not being wholly credible.


For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice.

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