Hortensia C Freeman v. Michael J Astrue, No. 2:2008cv02837 - Document 24 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for details. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 HORTENSIA C. FREEMAN, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) __________________________________) No. CV 08-2837-RC OPINION AND ORDER Plaintiff Hortensia C. Freeman filed a complaint on May 8, 2008, 17 seeking review of the Commissioner s decision denying her applications 18 for disability benefits, and on October 22, 2008, the Commissioner 19 answered the complaint. 20 December 5, 2008. The parties filed a joint stipulation on 21 22 BACKGROUND 23 I 24 On February 2, 2006, plaintiff applied for disability benefits 25 under Title II of the Social Security Act ( Act ), 42 U.S.C. § 423, 26 and the Supplemental Security Income program ( SSI ) of Title XVI of 27 the Act, claiming an inability to work since March 23, 2005, due to 28 severe headaches, dizziness, hypertension, and right leg problems. 1 Certified Administrative Record ( A.R. ) 108-16, 148. 2 applications were initially denied on August 30, 2006. 3 The plaintiff then requested an administrative hearing, which was held 4 before Administrative Law Judge Ariel L. Sotolongo ( the ALJ ) on 5 November 1, 2007. 6 issued a decision finding plaintiff is not disabled. 7 plaintiff appealed this decision to the Appeals Council, which denied 8 review on March 28, 2008. A.R. 25-51, 62-63. The plaintiff s A.R. 53-57. On January 15, 2008, the ALJ A.R. 8-20. The A.R. 3-7. 9 II 10 11 The plaintiff, who was born on February 11, 1956, is currently 53 12 years old. A.R. 29, 108, 113. She has a college degree, and 13 previously worked as a bus driver. A.R. 29, 135-42, 148-50, 176. 14 15 DISCUSSION 16 III 17 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 18 review the Commissioner s decision denying disability benefits to 19 plaintiff to determine whether the Commissioner s findings are 20 supported by substantial evidence and whether he used the proper legal 21 standards in reaching his decision. 22 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 23 2009). 24 supported by substantial evidence, [this Court] must review the 25 administrative record as a whole, weighing both the evidence that 26 supports and the evidence that detracts from the Commissioner s 27 conclusion. 28 Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). Vasquez v. Astrue, 572 F.3d 586, In determining whether the Commissioner s findings are Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); 2 Where the 1 evidence can reasonably support either affirming or reversing the 2 decision, [this Court] may not substitute [its] judgment for that of 3 the Commissioner. 4 2007), cert. denied, 128 S. Ct. 1068 (2008); Vasquez, 572 F.3d at 591. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 5 6 The Commissioner has promulgated regulations establishing a five- 7 step sequential evaluation process for the ALJ to follow in a 8 disability case. 9 the ALJ must determine whether the claimant is currently engaged in 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 10 substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 11 If not, in the Second Step, the ALJ must determine whether the 12 claimant has a severe impairment or combination of impairments 13 significantly limiting her from performing basic work activities. 14 20 C.F.R. §§ 404.1520(c), 416.920(c). 15 ALJ must determine whether the claimant has an impairment or 16 combination of impairments that meets or equals the requirements of 17 the Listing of Impairments ( Listing ), 20 C.F.R. § 404, Subpart P, 18 App. 1. 19 Step, the ALJ must determine whether the claimant has sufficient 20 residual functional capacity despite the impairment or various limita- 21 tions to perform her past work. 22 If not, in Step Five, the burden shifts to the Commissioner to show 23 the claimant can perform other work that exists in significant numbers 24 in the national economy. If so, in the Third Step, the 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth 20 C.F.R. §§ 404.1520(f), 416.920(f). 20 C.F.R. §§ 404.1520(g), 416.920(g). 25 26 Applying the five-step sequential evaluation process, the ALJ 27 found plaintiff has not engaged in substantial gainful activity since 28 her alleged onset date of March 23, 2005. 3 (Step One). The ALJ then 1 found plaintiff has the following severe impairments: uterine 2 fibroids and bleeding; right leg strain; hypertension and obesity ; 3 however, she does not have a severe mental impairment (Step Two). 4 ALJ then found plaintiff does not have an impairment or combination of 5 impairments that meets or equals a Listing. 6 next determined plaintiff is unable to perform her past relevant work. 7 (Step Four). 8 significant number of jobs in the national economy; therefore, she is 9 not disabled. (Step Three). The The ALJ Finally, the ALJ determined plaintiff can perform a (Step Five). 10 IV 11 12 In Social Security cases, the ALJ has a special duty to fully 13 and fairly develop the record and to assure that the claimant's 14 interests are considered. 15 Cir. 1996) (citation omitted); Widmark v. Barnhart, 454 F.3d 1063, 16 1068 (9th Cir. 2006). 17 claimant is represented by counsel, Celaya v. Halter, 332 F.3d 1177, 18 1183 (9th Cir. 2003); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th 19 Cir. 2001), and it is heightened where the claimant may be mentally 20 ill and thus unable to protect her own interests. 21 242 F.3d at 1150. 22 the record is inadequate to allow for proper evaluation of the 23 evidence, triggers the ALJ s duty to conduct an appropriate 24 inquiry. 25 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005). Smolen v. Chater, 80 F.3d 1273, 1288 (9th This duty exists regardless of whether the Tonapetyan, Ambiguous evidence, or the ALJ s own finding that Tonapetyan, 242 F.3d at 1150 (citations omitted); Webb v. 26 27 28 Here, plaintiff contends the ALJ did not fairly develop the record because he failed to request a consultative psychiatric 4 1 examination of plaintiff. However, the Commissioner has broad 2 latitude in ordering a consultative examination[,] Reed v. 3 Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (quoting Diaz v. Sec y of 4 Health & Human Servs., 898 F.2d 774, 778 (10th Cir. 1990)), which is 5 required only when such an evaluation is necessary for [the ALJ] to 6 make an informed decision. 7 (8th Cir. 2001); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 8 1988). 9 there must be some objective evidence in the record suggesting the 10 existence of a condition which could have a material impact on the 11 disability decision. 12 Cir. 1997). Haley v. Massanari, 258 F.3d 742, 749 In other words, for a consultative examination to be required, Hawkins v. Chater, 113 F.3d 1162, 1167 (10th 13 14 The plaintiff contends a psychiatric consultative examination was 15 required because at one time she complained she was suffering from 16 depression because of [her] pain. 17 [i]solated and unsupported comments . . . are insufficient to 18 require a consultative examination. 19 Moreover, plaintiff did not claim she had a mental impairment when 20 applying for disability benefits, A.R. 108-16, 148, nor did she claim 21 any mental health problems during the administrative hearing.1 A.R. 168. However, a claimant s Hawkins, 113 F.3d at 1167. 22 23 1 Indeed, at the administrative hearing, plaintiff s attorney described plaintiff s disability claim as follows: 24 25 26 27 28 Basically, the [plaintiff s] past work involved work as a bus driver. She injured her right foot, ankle, [and] leg in doing that kind of work. She also has low back pain. She has a couple of other problems too. She s scheduled for a hysterectomy coming up here in another couple [of] months. She has hypertension [and] digestive problems referred to as [gastroesophageal 5 1 A.R. 25-51. In fact, no treating or examining physician has diagnosed 2 plaintiff with depression, and the evidence before the ALJ did not 3 suggest plaintiff has a disabling mental impairment.2 4 ALJ did not fail to develop the record by not obtaining a consultative 5 psychiatric examination of plaintiff. 6 Diaz, 898 F.2d at 778. Therefore, the Hawkins, 113 F.3d at 1165; 7 8 9 The plaintiff also claims the ALJ failed to properly develop the record regarding the pain medications she was prescribed at Southern 10 California Pain Management Center ( SCPMC ),3 which make[] [her] 11 groggy and sleepy during the day[,] 4 A.R. 30, and because the ALJ did 12 13 14 15 16 17 reflux disease]. So, she has other problems, but her main problem is what s been referred to as regional pain complex or complex regional pain syndrome I should say in the right leg and low back or spinal column disorder. She is due for a spinal cord stimulator to be placed soon, and basically those impairments result in pain, fatigue, swelling, difficulty sleeping at night, and keep her from being able to sustain even sedentary work. 18 19 A.R. 28. 2 20 21 Plaintiff points to absolutely no medical evidence supporting her claim of depression, and the record does not show any mental health care after March 23, 2005, the date of plaintiff s alleged onset of disability. 22 3 23 24 The most recent medical record from SCPMC, dated March 2, 2006, states plaintiff has been off medications for about 1 year[.] A.R. 177. 4 25 26 27 28 The ALJ, however, rejected plaintiff s claim of side effects from the medications she used to take, finding it was not credible since it was not supported by the record. A.R. 18. Since plaintiff has not challenged the ALJ s adverse credibility determination, this finding provides a sufficient basis to reject plaintiff s testimony regarding the side effects from her medications. See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 6 1 not obtain updated medical records from SCPMC. Jt. Stip. at 8:13- 2 9:15, 11:22-12:19, 13:18-20. 3 since the ALJ specifically left the administrative record open for 4 plaintiff to obtain updated records from SCPMC, A.R. 50-51, but she 5 failed to do so. However, these claims are without merit Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999). 6 7 8 9 V When there is a colorable claim of a mental impairment, agency regulations require the ALJ to rate as being either none, mild, 10 moderate, marked, or extreme the claimant s functional limitations in 11 the areas of daily activities, social functioning, and concentration, 12 persistence or pace and also rate as either none, one or two, three, 13 or four or more the claimant s episodes of decompensation, and such 14 ratings must be included in the ALJ s written decision.5 Behn v. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2002) (ALJ properly rejected claimant s alleged side effects, including dizziness and difficulties in concentration, based on a finding plaintiff lacked credibility). Therefore, any possible error stemming from the ALJ not discussing the medications was harmless. 5 The Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing colorable mental impairments. Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must 7 1 Barnhart, 463 F. Supp. 2d 1043, 1047 (C.D. Cal. 2006); 20 C.F.R. 2 §§ 404.1520a(c)(3-4), (e)(2), 416.920a(c) (3-4), (e)(2). 3 colorable if it is not wholly insubstantial, immaterial, or 4 frivolous. 5 (citations omitted), cert. denied, 537 U.S. 818 (2002); Cassim v. 6 Bowen, 824 F.2d 791, 795 (9th Cir. 1987); Behn, 463 F. Supp. 2d at 7 1047. 8 showing that plaintiff, since her alleged onset date of March 23, 9 2005, has a mental impairment that affects her ability to perform A claim is Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir. 2001) Here, as set forth above, there is no competent evidence 10 basic work activities. Thus, plaintiff s claim of a mental impairment 11 is not colorable, and the ALJ did not improperly assess her mental 12 condition. 13 (Unpublished Disposition).6 Salerno v. Astrue, 266 Fed. Appx. 570, 573 (9th Cir. 2008) 14 15 ORDER 16 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 17 and (2) the Commissioner s decision is affirmed, and Judgment shall be 18 entered in favor of defendant. 19 DATE: August 20, 2009 20 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then make a residual functional capacity assessment, and the ALJ s decision must incorporate the pertinent findings and conclusions regarding plaintiff s mental impairment, including a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]. 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 6 See Fed. R. App. P. 32.1(a); Ninth Circuit Rule 36-3(b). R&R-MDO\08-2837.mdo - 8/20/09 8

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