Bruce Bartmann v. Michael J Astrue, No. 2:2009cv03163 - Document 18 (C.D. Cal. 2010)
Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Bruce Bartmann v. Michael J Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 BRUCE BARTMANN, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. CV 09-03163 (CW) DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 review of the Commissioner s denial of disability benefits. 22 discussed below, the court finds that judgment should be granted in 23 favor of defendant, affirming the Commissioner s decision. 24 25 I. Plaintiff seeks As BACKGROUND Plaintiff Bruce Bartmann was born on March 16, 1962 and was 26 forty-six years old at the time of his administrative hearing. 27 [Administrative Record AR 24, 186.] 28 equivalency diploma (GED) and no past relevant work. [AR 24.] He has a high school 1 Dockets.Justia.com 1 Plaintiff alleges disability on the basis of psychiatric problems, 2 hallucinations, and back pain. [Id.] II. 3 4 PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on May 5, 2009, and filed on May 5 8, 2009. 6 plaintiff s Administrative Record ( AR ). 7 parties filed their Joint Stipulation ( JS ) identifying matters not 8 in dispute, issues in dispute, the positions of the parties, and the 9 relief sought by each party. 10 On January 26, 2010, the This matter has been taken under submission without oral argument. 11 12 On October 19, 2009, defendant filed an Answer and III. PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff Bartmann applied for supplemental security income 13 ( SSI ) under Title XVI of the Social Security Act on November 14, 14 2005, alleging disability since April 1, 2003. 15 the application was denied initially and on reconsideration, Plaintiff 16 requested an administrative hearing, which was held on February 13, 17 2008, before Administrative Law Judge ( ALJ ) Lawrence D. Wheeler. 18 [Transcript, AR 399-423.] 19 testimony was taken from plaintiff and a vocational expert. 20 ALJ Wheeler denied benefits in a decision issued on April 22, 2008. 21 [Decision, AR 24-31.] 22 January 20, 2009, the ALJ s decision became the Commissioner s final 23 decision. 24 25 [JS 2; AR 24.] After Plaintiff appeared with counsel, and [Id.] When the Appeals Council denied review on [AR 6-8.] IV. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner s decision to deny benefits. 27 ALJ s) findings and decision should be upheld if they are free of 28 legal error and supported by substantial evidence. 2 The Commissioner s (or However, if the 1 court determines that a finding is based on legal error or is not 2 supported by substantial evidence in the record, the court may reject 3 the finding and set aside the decision to deny benefits. 4 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 5 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 6 F.3d 1157, 1162 (9th Cir. 7 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 8 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 9 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 10 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 11 preponderance. Reddick, 157 F.3d at 720. 12 which a reasonable person might accept as adequate to support a 13 conclusion. 14 a finding, a court must review the administrative record as a whole, 15 weighing both the evidence that supports and the evidence that 16 detracts from the Commissioner s conclusion. 17 can reasonably support either affirming or reversing, the reviewing 18 court may not substitute its judgment for that of the Commissioner. 19 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 20 V. Id. If the evidence DISCUSSION 21 A. THE FIVE-STEP EVALUATION 22 To be eligible for disability benefits a claimant must 23 demonstrate a medically determinable impairment which prevents the 24 claimant from engaging in substantial gainful activity and which is 25 expected to result in death or to last for a continuous period of at 26 least twelve months. 27 721; 42 U.S.C. § 423(d)(1)(A). 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: 3 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 1 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 14 not disabled at any step, there is no need to complete further 15 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 16 Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 21 If this burden is met, a prima facie case of disability is 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, 24 25 1 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since November 14, 2005, (step one) and that 7 plaintiff did not have a severe impairment (step two). [AR 29.] 8 Alternatively, when interpreting the evidence in the most favorable 9 light to the claimant, the ALJ found that Plaintiff might have 10 severe impairments, namely mood disorder, personality disorder, 11 possibly some psychotic disorder - albeit minor, and possibly a 12 lumbar spine condition (step two); and that Plaintiff did not have an 13 impairment or combination of impairments that met or equaled a 14 listing (step three). 15 RFC that limited him to medium work including lifting and carrying 16 fifty pounds regularly and twenty-five pounds frequently, sitting for 17 six hours in an eight hour work day, and standing and/or walking six 18 of eight hours. [AR 30.] 19 Plaintiff should avoid public contact and more than minimal contact 20 with peers. 21 Based on the vocational expert ( VE ) testimony that a person with 22 Plaintiff s RFC limitations would be able to perform jobs that exist 23 in significant numbers in the national economy such as packager and 24 small products assembler (step five), Plaintiff was found not 25 disabled as defined by the Social Security Act. [AR 31.] Id. [AR 25, 29.] Plaintiff was found to have an Additionally, the ALJ concluded that Plaintiff had no past relevant work (step four). 26 27 28 Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 C. ISSUE IN DISPUTE 2 The parties Joint Stipulation sets out the following disputed 3 issue: whether the ALJ properly considered the medical evidence as 4 contained in the examining opinion of Stephen Simonian, M.D. 5 D. DR. SIMONIAN 6 On April 19, 2007, Plaintiff underwent a psychiatric evaluation 7 conducted by Dr. Simonian. [AR 82-87.] 8 available medical records and took a psychiatric history, which noted 9 that Plaintiff had a history of psychiatric hospitalization while he Dr. Simonian reviewed 10 was in prison and addicted to drugs. [AR 83.] 11 that Plaintiff exhibited coherent thought processes, an appropriate 12 affect, and no delusional thinking or hallucinations. [AR 85.] 13 Additionally, the doctor found that his intellectual functioning, 14 memory, comprehension, abstract thinking, and ability to perform 15 calculations were all intact and average. [Id.] 16 diagnosed Plaintiff with cocaine and methamphetamine abuse in 17 remission and depressive disorder and judged Plaintiff s functional 18 ability to be 55 percent. [AR 85-86.] 19 functional assessment, Dr. Simonian opined that Plaintiff was mildly 20 limited in his ability to interact with coworkers and the public, 21 adapt to stresses in the work environment, and maintain regular 22 attendance and perform work activity on a consistent basis. [AR 86.] 23 Dr. Simonian observed Dr. Simonian As to Plaintiff s psychiatric In the administrative decision, the ALJ did not specifically 24 discuss Dr. Simonian s evaluation. [AR 24-31.] Plaintiff contends 25 that this omission constitutes error and is significant because it 26 establishes Plaintiff was functionally limited to the point of 27 disability. [JS 9.] 28 contentions are without merit. Upon review of the record, however, plaintiff s 6 1 An ALJ is not required to discuss and develop every piece of 2 evidence in his decision. Vincent v. Heckler, 739 F. 2d 1393, 1394-95 3 (9th Cir. 1984). 4 Simonian s evaluation unless he was rejecting significant probative 5 evidence. Id. 6 that of Dr. Jobst Singer s March 2006 evaluation of Plaintiff. [AR 7 253-56.] 8 Plaintiff suffered from drug dependancy. [AR 255.] 9 Plaintiff s interview with Dr. Simonian, Plaintiff s drug problem was Here, the ALJ was not required to address Dr. Dr. Simonian s opinion was substantially similar to Dr. Singer s main concern, noted by the ALJ, was that At the time of 10 diagnosed as in remission. [AR 85.] Although the ALJ accepted Dr. 11 Singer s report, he allowed that Plaintiff likely has depression or 12 other mood disorder and a personality disorder. [AR 28.] It is 13 reasonable to infer that this allowance stems from Dr. Simonian s 14 report, as a diagnosis of depression is the only material difference 15 between the evaluations of Dr. Simonian and Dr. Singer. [AR 85, 255.] 16 See Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989) (A 17 reviewing court may draw specific and legitimate inferences from the 18 ALJ s opinion if those inferences are there to be drawn. ) 19 doctors assessed Plaintiff as mildly impaired in some respects, but 20 neither ascribed significant limitations such that Plaintiff would be 21 unable to perform work in the national economy. [AR 86, 256; see AR 22 420-22 (vocational expert testimony).] 23 supported by the Department of Corrections psychiatric services which 24 document Plaintiff as having minimal psychological problems while 25 incarcerated.2 [AR 230, 233, 236, 357-59.] Therefore, the failure of Both Further, their opinions are 26 27 28 2 There is evidence in the record that, while Plaintiff was in prison, he occasionally exhibited more serious psychological problems, including suicidal threats. [AR 324.] Department of Corrections 7 1 the ALJ to discuss Dr. Simonian s opinion was not reversible error. 2 See Vincent, 739 F.3d at 1394-95. 3 VI. ORDERS 4 Accordingly, IT IS ORDERED that: 5 1. The decision of the Commissioner is AFFIRMED. 6 2. This action is DISMISSED WITH PREJUDICE. 7 3. The Clerk of the Court shall serve this Decision and Order 8 and the Judgment herein on all parties or counsel. 9 10 11 12 DATED: July 20, 2010 _________________________________ CARLA M. WOEHRLE United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 psychologists linked these instances to Plaintiff s desire to change cell mates or cell locations. [AR 316-17.] These records were also noted by the ALJ. [AR 29.] 8
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