Geraldine O Serna v. Michael J Astrue, No. 2:2008cv01673 - Document 16 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton: The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (dhl)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 GERALDINE O. SERNA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 08-01673-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issue: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered the mental residual functional capacity ( RFC ) 2 for the demands of work activity. 3 4 This Memorandum Opinion will constitute the Court s findings of 5 fact and conclusions of law. After reviewing the matter, the Court 6 concludes that the decision of the Commissioner must be affirmed. 7 8 I 9 THE ALJ PROPERLY CONSIDERED THE EVALUATION OF PLAINTIFF S 10 MENTAL IMPAIRMENT IN THE DISABILITY ANALYSIS 11 In his decision (AR 13-17), the ALJ found that Plaintiff has a 12 severe depressive disorder. (AR 16, Finding 2.) Utilizing techniques 13 set forth in 20 C.F.R. §416.920, the ALJ determined that Plaintiff has 14 the following limitations: mild restriction of activities of daily 15 living; moderate difficulties in maintaining social functioning; 16 moderate deficiencies in concentration, persistence or pace resulting 17 in failure to complete tasks in a timely manner; and no episodes of 18 deterioration or decompensation. The ALJ determined that Plaintiff is 19 restricted to simple, 1-2 step repetitive tasks with limited public 20 contact. (AR 15.) 21 In making the foregoing determinations, the ALJ considered the 22 psychiatric consultative examination ( CE ) of Dr. Ho, performed on 23 May 18, 2005 (AR 193-195), in which Dr. Ho rendered a prognosis that 24 Plaintiff is able to make simple social, occupational and personal 25 adjustments. (AR 194.) 26 Review Technique Form ( PRTF ) of the State Agency psychiatrist dated 27 June 17, 2005 (AR 276-292), which assessed functional limitations and 28 also made a mental RFC assessment. (AR 286-287, 290-292.) Further, the ALJ relied upon the Psychiatric 2 It was 1 opined therein that Plaintiff is capable of simple repetitive tasks of 2 one to two steps, with limited public contact. (AR 292.) 3 4 A. Applicable Law. 5 In evaluating psychiatric impairments, 20 C.F.R. §404.1520a(e)(1) 6 and §416.920a(e)(1) require that consideration be given, among other 7 things, to activities of daily living ( ADL ); social functioning; 8 concentration, persistence or pace; and episodes of decompensation. 9 20 C.F.R. §§404.1520a(c)(1) and 416.920a(c)(1) require that 10 consideration be given to all relevant and available clinical signs 11 and laboratory findings, the effects of your symptoms, and how your 12 functioning may be affected by factors including, but not limited to 13 chronic mental disorders, structured settings, medication and other 14 treatment. 15 20 C.F.R. §§404.1545(c) and 416.945(c) require that consideration 16 be given to residual functional capacity for work activity on a 17 regular and continuing basis and A limited ability to carry out 18 certain mental activities, such as limitations in understanding, 19 remembering, 20 appropriately to supervision, co-workers, and work pressures in a work 21 setting, [which] may reduce your ability to ... work. and carrying out instructions, and in responding 22 The types of relevant evidence to be assessed in making these 23 considerations are set forth in Social Security Ruling ( SSR ) 85-16, 24 and include such factors as history, findings, and observations from 25 medical sources, reports of the individual s activities of daily 26 living and work activity, as well as testimony of third parties about 27 the individual s performance and behavior. 28 Under 20 C.F.R. §404.1520a(c)(2) 3 and §416.920a(c)(2), 1 consideration must be given to the extent to which a mental impairment 2 interferes with an ability to function independently, appropriately, 3 effectively, and on a sustained basis ... 4 The degree of functional limitations in four broad areas (ADLs; 5 social functioning; concentration, persistence or pace; and episodes 6 of decompensation) are evaluated; that is, as to the first three 7 functional areas, the following five-point scale is utilized: none, 8 mild, moderate, marked, and extreme. 9 a four-point scale is utilized: none, one or two, three, four or more. 10 With regard to the fourth area, (20 C.F.R. §§416.920a(3),(4) and 404.1520a(c)(3),(4). 11 Following the September 2000 amendments to the regulations which 12 modified 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ is no 13 longer required to complete and attach a PRTF. 14 regulations require that in the decision, the ALJ, Instead, these 15 [M]ust incorporate the pertinent findings and conclusions 16 based on the [PRTF] technique. 17 significant history, including examination and laboratory 18 findings, 19 considered in reaching a conclusion about the severity of 20 the mental impairment(s). 21 specific finding as to the degree of limitation in each of 22 the functional areas described in paragraph (c) of this 23 section. [that is, ADLs; social functioning; concentration, 24 persistence or pace; and episodes of decompensation.] and the The decision must show the functional limitations that were The decision must include a 25 26 Further guidance is provided in SSR 85-16, which, although it 27 does not specifically mention concentration, persistence or pace, does 28 note, Ability to sustain activities, interests, and relate to others 4 1 over a period of time. The frequency, appropriateness, and 2 independence of the activities must also be considered as well as 3 ability to function in a work-like situation. 4 When there is finding of moderate difficulties in the area of 5 maintaining concentration, persistence or pace, this factor must be 6 included 7 vocational expert ( VE ). 8 merely 9 hypothetical question is insufficient to describe and to accommodate in to any hypothetical simple jobs question posed at a hearing to a Thus, one court has held that referring or unskilled 10 difficulties in this functional area. 11 sedentary work in a 688 (8th Cir. 1996). 12 The regulations do not See Newton v. Chater, 92 F.3d provide a standard definition of 13 moderate. (See 20 C.F.R. §416.902a(c)(4).) They do note, however, 14 that a finding of none or mild in the first three areas will 15 generally [mean] that your impairment(s) is not severe, ... 16 C.F.R. §920a(d)(1). See 20 17 The Commissioner has issued a Policy Operations and Manual of 18 Systems ( POMS ), which is an internal employee guidance manual. 19 While not having the force of law, this manual can be persuasive 20 authority. 21 1001, 1005 (9th Cir. 2006). POMS provides guidance for the completion 22 of the Functional Capacity Assessment form (Form SSA-4734-F4-Sup) and 23 instructs that a reviewing source should check [M]oderately limited 24 when the evidence supports the conclusion that the individual s 25 capacity to perform the activity is impaired. 26 of the capacity or limitation should be set forth in a narrative 27 format in the form. 28 See Warre v. Commissioner, Social Sec. Admin., 439 F.3d The degree and extent HALLEX is the Hearings Appeals and Litigation Law Manual, which 5 1 is also an internal agency guide. HALLEX requires that when an ALJ 2 requests a consultative examination, the ALJ should provide the 3 corresponding state agency with a medical source statement form. 4 (See HALLEX I-2-5-20.) 5 Ability to do Work-Related Activities (Mental), provides definitions 6 for the ratings of none, slight, moderate, marked, and extreme. Thus, 7 a moderate rating is defined as there is moderate limitation in this 8 area but the individual is still able to function satisfactorily. Form HA-1152, the Medical Assessment of 9 In LaCroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006), the 10 Eighth Circuit upheld an ALJ s finding that a claimant found to have 11 a moderate limitation in her ability to respond appropriately to work 12 pressures 13 satisfactorily function in this area. (Id. at 888.) 14 Court noted that the evaluation form (HA-11) defined moderate as 15 indicating that the individual could still function satisfactorily. 16 (Id.) in a usual work setting would still be able to The Appellate 17 18 B. Analysis. 19 Plaintiff does not quibble with the opinions of the State Agency 20 physician describing her moderate limitations. (See JS at 8, lines 6- 21 8.) 22 consistent with the opinions of Dr. Ho and the treatment records. 23 (Id.) Plaintiff s argument may be summarized in the following portion 24 of the JS: Plaintiff further agrees that these opinions are wholly 25 However, for a person closely approaching advanced age 26 with a limited education, the erosive nature of moderate 27 impairments in 10 areas of important aspects of the mental 28 residual functional capacity do far more than narrow the 6 1 occupational base, they eradicate it. (JS at 7.) 2 3 At the hearing, the ALJ posed hypothetical questions concerning 4 Plaintiff s 5 Indeed, as framed, the ALJ posited an individual who was moderately 6 limited in regards to virtually all of the mental functions of work 7 ... 8 therefore, the VE s resulting analysis of available work can only 9 inure to Plaintiff s benefit. (AR mental 450.) impairment Clearly, to this the vocational exceeds the expert found ( VE ). limitations; The ALJ refined the hypothetical to 10 limit Plaintiff to very simple repetitive tasks such as one and two 11 steps instructions and with limited public contact, ... (AR 450.) 12 These limitations were exactly as found by Dr. Ho and by the State 13 Agency physician, conclusions with which Plaintiff does not disagree. 14 Based on the foregoing, the Court finds that the ALJ s decision, 15 with regard to assessment of Plaintiff s mental impairments and the 16 effect of such impairments on her ability to work, is consistent with 17 the evidence in the record, complies with applicable regulations and 18 law, and the decision is therefore supported by substantial evidence 19 and must be affirmed. 20 21 22 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 23 24 25 DATED: December 9, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 26 27 28 7
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