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Shelebian v. Colvin

United States District Court, C.D. California

March 5, 2015

MICHAEL JOSEPH SHELEBIAN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

MARGARET A. NAGLE, Magistrate Judge.

On September 10, 2013, plaintiff filed a Complaint seeking review of the denial of his application for disability and disability insurance benefits ("DIB").[1] (ECF No. 4.) On October 2, 2013, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (ECF No. 11.) On August 11, 2014, the parties filed a Joint Stipulation, in which plaintiff seeks an order reversing the Commissioner's decision and remanding this case for further administrative proceedings; and the Commissioner requests that her decision be affirmed. (ECF No. 11 at 60.)[2] The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On August 12, 2010, plaintiff filed his application for DIB. (Administrative Record ("A.R.") 21, 133-34.) Plaintiff, who was born on May 2, 1955 ( id. 133), [3] claims to have been disabled since February 26, 2009, due to: cardiovascular and lumbar spine conditions; depression; high blood pressure; fatigue; decreased energy; and an inability to concentrate. (Id. 21.) Plaintiff has past relevant work experience as an accounting clerk. (Id. )

After the Commissioner denied plaintiff's claim initially, plaintiff requested a hearing. (A.R. 21.) On February 27, 2012, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Sally C. Reason (the "ALJ"). (Id. 21, 30.) Medical Expert ("ME") Sterling Moore, MD, and Vocational Expert ("VE") June Hagen, PhD, also testified. (Id. 21, 39-43, 59-61.) On March 24, 2012, the ALJ denied plaintiff's claim ( id. 21-30), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision ( id. 1-4). That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

In her March 24, 2012, decision, the ALJ found that from February 26, 2009, the alleged onset date of plaintiff's disability, through the date of the ALJ's decision, plaintiff had not engaged in substantial gainful activity. (A.R. 29.) The ALJ determined that plaintiff has the severe impairments of coronary artery disease (status post myocardial infarction and stenting); and degenerative disease of the lumbar spine, status post discectomy. (Id. 21-22, 29.) The ALJ found that plaintiff's depression is not a severe impairment but also presented an alternative analysis, which assumed that plaintiff's depression satisfied the "threshold severity' step." (Id. 22, 29.) The ALJ concluded that plaintiff does not have an impairment or combination of impairments that meets or medically equals the listed impairments in 20 C.F.R. part 404, subpart P, appendix 1. (Id. 29.)

After reviewing the record, the ALJ made the following assessment of plaintiff's residual functional capacity ("RFC"). Plaintiff: can "lift/carry ten pounds frequently and less than ten pounds occasionally[;]"[4] can sit for six hours in an eight-hour workday; can stand and/or walk for six hours in an eight-hour workday, but must be afforded the opportunity to change positions (between sitting and standing/walking) every 30 minutes for one to two minutes; is precluded from climbing ladders, ropes, or scaffolds; and is limited to performing other postural maneuvers only occasionally. (A.R. 29.) In the alternative, with the additional "severe" impairment of depression, plaintiff would also be restricted to interacting with co-workers, supervisors, and/or the public for two hours in an eight-hour workday. (Id. ) In making these findings, the ALJ considered the medical evidence and opinions of record ( id. 22-28), as well as the subjective symptom testimony of plaintiff, finding him to be not credible to the extent his statements were inconsistent with his RFC as assessed by the ALJ ( id. 29). The ALJ gave significant weight to the opinion of the medical expert, Dr. Moore. (Id. 25.) She gave little weight to the opinion of plaintiff's treating physician, Steven Waltrip, MD. (Id. )

Based on the testimony of the VE, the ALJ found that plaintiff is able to perform his past relevant work as an accounting clerk, both as he performed it and as generally performed, with or without the additional severe impairment of depression. (A.R. 28, 29.) Accordingly, the ALJ found that plaintiff has not been under a disability at any time through the date of the ALJ's decision. (Id. 29.)

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue , 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart , 340 F.3d 871, 873 (9th Cir. 2003). "While inferences from the record can constitute substantial evidence, only those reasonably drawn from the record' will suffice." Widmark v. Barnhart , 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Hum. Servs. , 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala , 53 F.3d 1035, 1039 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart , 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn , 495 F.3d at 630; see also Connett , 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was inconsequential to the ultimate nondisability determination.'" Robbins v. Soc. Sec. Admin. , 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r , 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch , 400 F.3d at 679.

DISCUSSION

Plaintiff alleges four sources of error. First, plaintiff claims the ALJ erred in evaluating his credibility. (Joint Stip. at 3.) Second, plaintiff claims the ALJ erred in rejecting the opinions of plaintiff's treating physician, Dr. Waltrip. (Id. ) Third, he claims the ALJ erred in determining that plaintiff's depression was not a severe impairment. (Id. ) Fourth, plaintiff claims the ALJ failed to properly consider the combined effects of plaintiff's impairments in determining the RFC. (Id. )

I. The ALJ Provided Specific And Legitimate Reasons For Finding Plaintiff's Testimony Regarding His Subjective Symptoms And Pain To Be Not Credible.

Once a disability claimant produces objective medical evidence of an underlying impairment that is reasonably likely to be the source of claimant's subjective symptom(s), all subjective testimony as to the severity of the claimant's symptoms must be considered. Moisa v. Barnhart , 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan , 947 F.2d 341, 345 (9th Cir. 1991); see also 20 C.F.R. § 404.1529(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins , 466 F.3d at 883. The factors to be considered in weighing a claimant's credibility include: (1) the claimant's reputation for truthfulness; (2) inconsistencies either in the claimant's testimony or between the claimant's testimony and his conduct; (3) the claimant's daily activities; (4) the claimant's work record; and (5) testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. See Thomas v. Barnhart , 278 F.3d 947, 958-59 (9th Cir. 2002); see also 20 C.F.R. § 404.1529(c). An ALJ also may properly consider "[t]he nature, location, onset, duration, frequency, radiation, and intensity" of any pain or other symptoms; "[p]recipitating and aggravating factors"; "[t]ype, dosage, effectiveness, and adverse side-effects of any medication"; "[t]reatment, other than medication"; "[f]unctional restrictions"; "unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment"; and "ordinary techniques of credibility evaluation, " in assessing the credibility of the allegedly disabling subjective symptoms. Bunnell , 947 F.2d at 346-47; see also Soc. Sec. Ruling 96-7p; 20 C.F.R. 404.1529 (2005); Morgan v. Comm'r of Soc. Sec. Admin. , 169 F.3d 595, 600 (9th Cir. 1999) (ALJ may properly rely on plaintiff's daily activities and on any conflict between plaintiff's testimony regarding his subjective complaints and the objective medical evidence in the record); Tidwell v. Apfel , 161 F.3d 599, 602 (9th Cir. 1998) (ALJ may properly rely on weak objective support, lack of treatment, daily activities inconsistent with total disability, and helpful medication); Johnson , 60 F.3d at 1432 (ALJ may properly rely on the fact that only conservative treatment had been prescribed); Orteza v. Shalala , 50 F.3d 748, 750 ...


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