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Blanca Maldonado v. Michael J. Astrue

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION


May 29, 2012

BLANCA MALDONADO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.

The opinion of the court was delivered by: Howard R. Lloyd United States Magistrate Judge

** E-filed May 29, 2012 **

NOT FOR CITATION

ORDER RE: PARTIES' CROSS MOTIONS FOR SUMMARY JUDGMENT [Re: Docket Nos. 11, 13]

In this Social Security action, plaintiff Blanca Maldonado appeals a final decision by the Commissioner ("defendant") denying her application for Social Security disability insurance 18 benefits. Presently before the court are the parties' cross-motions for summary judgment. The matter 19 is deemed fully briefed and submitted without oral argument. Upon consideration on the moving 20 papers, and for the reasons set for below, plaintiff's motion for summary judgment is DENIED, and 21 defendant's motion for summary judgment is GRANTED. Pursuant to 28 U.S.C. § 636(c) and Fed. 22 R. Civ. P. 73, all parties have expressly consented that all proceedings in this matter may be heard 23 and finally adjudicated by the undersigned.

BACKGROUND

Blanca Maldonado was 48 years old when the Administrative Law Judge ("ALJ") rendered 26 the decision under review in this action. Dkt. No. 11, p. 2-3 (Plaintiff's Motion for Summary 27 Judgment, or "Plaintiff's MSJ"); Administrative Record ("AR") 156 ("Proof of Age"). Her prior 28 work experience is as a commercial cleaner. AR 32. She claims disability since November 15, 2007, when she suffered a stroke. Plaintiff's MSJ, p. 4. Apparently, plaintiff ceased working 2 approximately two and a half years prior to the stroke. AR 264. 3

4 timely filed a request for hearing before an ALJ. Id. at 1-2. In a decision dated November 25, 2009, 5 the ALJ found that the plaintiff was not disabled under the Social Security Act. AR 33. She 6 evaluated plaintiff's claim of disability using the five-step sequential evaluation process for 7 disability required under federal regulations. See 20 C.F.R. § 404.1520 (2007). At step one, she 8 found that Maldonado had not engaged in substantial gainful activity since November 15, 2007. AR 9 Plaintiff's claim was denied initially and upon reconsideration. Plaintiff's MSJ at 1. She 28. At step two, she found that plaintiff had a history of cerebral vascular accident and seizure 10 disorder and that these are "severe impairments." Id. But at step three, she concluded that plaintiff's impairments did not "meet[] or medically equal[] one of the listed impairments in 20 C.F.F. Part 404, Subpart P, Appendix 1." AR 29. At step four, she found that Maldonado had the residual functional capacity ("RFC") to perform "a wide range of light work as defined by 20 C.F.R. 14 404.1567(b) and 416.967(b), except for the inability to climb ladders, ropes, or scaffolds, and the 15 need to avoid environments with exposure to unprotected heights and dangerous or moving 16 machinery." Id. Noting the inconsistency between her finding and the plaintiff's assertions as to the 17 intensity, persistence, and limiting effects of her symptoms, the ALJ found that plaintiff's testimony 18 was "not credible" insofar as it contradicted the RFC finding. Id. at 30. At step five, the ALJ found 19 that Maldonado was not capable of performing past relevant work, but that she could perform "light, 20 unskilled work" such as housekeeping. AR 32-33. 21 22 the final decision of the Commissioner. Plaintiff now seeks judicial review of that decision. 23

Pursuant to 42 U.S.C. 405(g), this court has the authority to review the Commissioner's 25 decision to deny benefits. The Commissioner's decision will be disturbed only if it is not supported 26 by substantial evidence or if it is based upon the application of improper legal standards. Morgan v. 27 523 (9th Cir. 1995). In this context, the term "substantial evidence" means "more than a mere The Appeals Council denied plaintiff's request for review, and the ALJ's decision became

LEGAL STANDARD

Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Moncada v. Chater, 60 F.3d 521, 28 scintilla but less than a preponderance - it is such relevant evidence that a reasonable mind might 2 accept as adequate to support the conclusion." Moncada, 60 F.3d at 523; see also Drouin v. Sullivan, 3 966 F.2d 1255, 1257 (9th Cir. 1992). When determining whether substantial evidence exists to 4 support the Commissioner's decision, the court examines the administrative record as a whole, 5 considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. Where evidence 6 exists to support more than one rational interpretation, the court must defer to the decision of the 7

DISCUSSION

Plaintiff challenges the ALJ's finding on one basis-that the ALJ's determination that 10 plaintiff has no severe mental impairment was not supported by substantial evidence. Plaintiff's MSJ at 6. In support of this claim, plaintiff alleges that the ALJ misinterpreted the treatment records of certain of plaintiff's physicians and improperly discredited testimony by plaintiff's family and friends. Plaintiff also offers new medical records, some of which she submitted to the Appeals 14 Commissioner. Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258.

Council when requesting review, and some of which post-date the Appeals Council's decision to 15 deny the request for review. Plaintiff's MSJ, Exh. A. Defendant asserts that the ALJ's findings were 16 supported by substantial evidence and free of legal error. 17

Decision

In support of her claims, plaintiff presents new medical records that post-date the ALJ's 20 decision and argues that the court may consider this new evidence to determine whether the ALJ's 21 decision was supported by substantial evidence. She offers two categories of new medical records: 22

(1) those that postdate the ALJ's decision, but which she submitted to the Appeals Council when she 23 requested review of the ALJ's decision, and (2) newer medical records that postdate the Appeals 24

When the Appeals Council considers evidence submitted by plaintiff after the ALJ's ruling, 26 such evidence is properly part of the AR before the district court. Ramirez v. Shalala, 8 F.3d 1449, 27 1452 (9th Cir. 1993). But, when seeking remand for consideration of new evidence (i.e., evidence 28 submitted after the Commissioner's final decision has been made), a plaintiff "must show that there

For the Northern District of Cal

A. Whether This Court May Consider New Evidence That Postdates the Commissioner's Council's decision not to grant her request for review.

is: (1) new evidence that is material, and (2) good cause for his failure to incorporate that evidence 2 into the administrative record." Sanchez v. Secretary of Health & Human Services, 812 F.2d 509, 3

(9th Cir. 1984)). "A claimant does not meet the good cause requirement by merely obtaining a more 5 favorable report once his or her claim has been denied." Mayes v. Massanari, 276 F.3d 453, 463 6

(9th Cir. 2001). New reports made after issuance of the Commissioner's final decision "would be 7 material to a new application, but not probative of [plaintiff's] condition at the hearing." Sanchez, 8

It is uncontroversial that the records plaintiffs submitted to the Appeals Council may be 10 considered by this court in deciding the pending motions. Defendant has not opposed plaintiff's use of these records, and includes them in the AR. See AR pp. 396-431. Accordingly, the court will consider them.

The most recent reports, made after the Appeals Council denied plaintiff's request for 14 review, are a different story. Plaintiff argues that "good cause" exists for this new evidence because 15 the reports were not made until after the Appeals Council issued its final decision. Dkt. No. 14, p. 3. 16

Plaintiff appears to misunderstand what constitutes "good cause." Mayes holds that when a plaintiff 17 obtains new evidence after the Commissioner's final decision has been rendered, she meets the good 18 cause standard by "demonstrat[ing] that the new evidence was unavailable earlier." 276 F.3d at 463 19 (citing Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985)). Merely obtaining a new report after 20 the ALJ has ruled does not satisfy this standard, as it does not evidence an inability to have obtained 21 the evidence in time for the ALJ hearing. See Kay, 754 F.2d at 1551 (finding that where plaintiff 22 seeks a new medical opinion after being denied benefits, the new evidence does not meet the good 23 cause standard). Accordingly, the medical evidence that postdates the Appeals Council's decision is 24 not appropriate for inclusion in the AR and the court will not consider it in its determination of the 25 pending motions. Instead, plaintiff may use this evidence as the basis for a new application for 26 benefits. Sanchez, 812 F.2d at 512. 27

Substantial Evidence

511 (9th Cir. Cal. 1987) (citing Allen v. Secretary of Health & Human Serv., 726 F.2d 1470, 1473 4 812 F.2d at 512.

B. Whether The ALJ's Analysis of the Mental Health Evidence Was Supported by Plaintiff claims that the ALJ, as well as the psychologist on whose diagnosis the ALJ relies 2 most heavily, misread certain of plaintiff's other medical records and therefore came to conclusions 3 unsupported by the record. Plaintiff's MSJ at 7-8. Defendant argues that the ALJ's decision was 4 supported by substantial evidence and was free of legal error. As stated above, the court will 5 consider all medical records included in the AR, but not any medical reports made after the Appeals 6

Council rendered its decision. 7

The opinion of a treating physician "can only be rejected for specific and legitimate reasons 8 that are supported by substantial evidence in the record." Lester v. Chater, 81 F.3d 821, 831 (9th 9 Cir. 1995). But, the ALJ can reject a treating physician's opinion if it was "unsupported by rationale 10 or treatment notes, and offered no objective medical findings." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The Secretary must explain why he has rejected uncontroverted medical evidence, but can resolve disputes in contradicted medical evidence. Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984) (emphasis added). 14

In this case, Maldonado underwent evaluation by a variety of physicians and mental health 15 professionals following her stroke. Her treating physician, Kenneth Greene, noted speech 16 limitations, especially an unwillingness or inability to initiate conversation or provide anything more 17 than simple responses. AR 377, 413. A neurologist, Edwin Tasch, treated plaintiff in the months 18 following her stroke and noted that plaintiff and her husband reported some mistakes in "word-19 finding," with "continued slow improvement in her function." AR 272. In August 2008, 20 psychologist Janine Marinos examined plaintiff and administered several psychological 21 examinations. AR 324. Although plaintiff scored "extremely poor" or "extremely low" on all three 22 exams administered, Marinos concluded that the "test results are not considered valid" and 23 diagnosed plaintiff of malingering. AR 325. After the ALJ had issued her decision, plaintiff saw 24 another psychologist, Erasmo Nevarez, who reported that plaintiff's "[a]ttention and concentration 25 appeared impaired as did both short-term and long-term memory." AR 397. This report was 26 submitted to the Appeals Council, which determined that it did not provide a basis for granting 27 plaintiff's request for review. 28

See AR 30-32. She cited to the reports issued by Drs. Greene, Tasch, and Marinos, concluding that 3 The ALJ devoted the majority of her decision to an analysis of the mental health evidence.

Greene and Tasch did not note severe mental impairments in their treatment notes, while Marinos 4 diagnosed malingering. Id. She noted specific findings in the various medical reports and explained 5 that she found Marinos's conclusion to be the most convincing because none of the doctors' reports 6 indicated that plaintiff was suffering from any severe impairments in speech or function. AR 31. 7 8 mental impairment. Dkt. No. 11, pp. 8-9. Indeed, the reports submitted to the Appeals Council 9 indicate that plaintiff is experiencing more significant limitations on speech and cognitive ability 10 than were reported in the records submitted to the ALJ. See, e.g., AP 398, 428. However, the relevant inquiry at this stage is not whether there is some evidence to support plaintiff's position, but whether there was substantial evidence to support the finding made by the ALJ. As stated above, where more than one rational interpretation exists based on the evidence, the court must defer to the 14 Plaintiff argues that recent records provided by Greene and Nevarez support a finding of Commissioner's finding. See Moncada, 60 F.3d at 523; Drouin, 966 F.2d at 1258. Here, the ALJ 15 evaluated all of the evidence regarding plaintiff's mental health, and gave specific and legitimate 16 reasons for discrediting the opinions of Drs. Greene, Tasch, and Nevarez. This court may not 17 substitute its own judgment for the Commissioner's in such a case. 18 19 by substantial evidence, the plaintiff's motion is DENIED and the Commissioner's motion is 20

C. Whether the ALJ Properly Discredited Testimony by Plaintiff's Family and Friend Plaintiff claims that the ALJ improperly discredited testimony by her son, Asedro Juarez, 23 and a friend, Irma Snortum. Dkt. No. 11, p. 9. Lay witnesses, including family members, may give 24 evidence "to show the severity of [claimant's] impairment(s) and how it affects [claimant's] ability 25 to work." 20 C.F.R. 404.1513(d). Lay witness testimony as to a claimant's symptoms "is competent 26 evidence that an ALJ must take into account," unless she "expressly determines to disregard such 27 testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 28 511 (9th Cir. 2001). "[T]he fact that a lay witness is a family member cannot be a ground for

Accordingly, as to plaintiff's claim that the ALJ's mental health finding was not supported

rejecting his or her testimony." Regennitter v. Commissioner of SSA, 166 F.3d 1294, 1298 (9th Cir. 2 1999) (citing Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996)). 3

4 although they are certainly consistent with claimant's subject complaints, they are inconsistent with 5 the record as a whole." AR 31. Juarez, Maldonado's 17 year old son, testified that Maldonado was 6

The ALJ gave the testimony by both Maldonado's son and Snortum "little weight because

"not the same as she was before" and that she no longer cooked, cleaned, went out alone, or 7 answered the phone. AR 56. He also testified that she would speak with the family even if they did 8 not address her first, and that she would respond to questions they asked her. AR 57. Snortum 9 testified that she had known Maldonado for approximately 20 years, and that Maldonado had 10 become "dead like inside" following her stroke. AR 52. She stated that Maldonado was largely unresponsive and unwilling to speak when Snortum called or visited. AR 52-53.

The ALJ devotes little of her decision to analysis of the lay witness testimony, but she does state that she found Juarez's and Snortum's testimony unconvincing because it did not comport with 14 the record as a whole. AR 31. "Inconsistency with medical evidence" is a germane reason for 15 discrediting the testimony of a lay witness. Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 16 2005). As this court has already stated, it appears from the ALJ's report that she adequately 17 considered all of the evidence in the record, including testimony, and came to a reasonable 18 conclusion about plaintiff's RFC. In doing so, she concluded that the lay witness testimony about 19 the intensity, persistence, and limiting effects of plaintiff's symptoms were not consistent with the 20 record as a whole, especially Marinos's diagnosis of malingering. 21

22 and Snortum, the court finds that the ALJ did have a germane reason, and therefore DENIES 23 plaintiff's motion and GRANT's defendant's motion. 24

Plaintiff requests that this matter be remanded for a new hearing to assess the effect of her 26 alleged mental impairment on her ability to work, or, in the alternative, for remand so that the 27 Commissioner may assess the new evidence submitted with the motion. Dkt. No. 11, p. 10. This 28

Accordingly, as to plaintiff's claim that the ALJ improperly discredited testimony by Juarez

D. Plaintiff's Request for Remand

court does not find it appropriate to remand on either basis. As stated above, plaintiff may instead 2 submit any new medical evidence suggestive of disability in a new application for benefits. 3

CONCLUSION

Based on the foregoing, IT IS ORDERED THAT:

1. Plaintiff's motion for summary judgment is DENIED;

2. Defendant's cross-motion for summary judgment is GRANTED; and

3. The Clerk of the Court shall close the file.

C11-00969 HRL

Notice will be electronically mailed to: Steven Chabre chabre66@yahoo.com Susan Smith Susan.L.Smith@ssa.gov 3 Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court's CM/ECF program.

20120529

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