Audrey P. Walters v. Michael J. Astrue, No. 2:2010cv00904 - Document 21 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (ag)
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Audrey P. Walters v. Michael J. Astrue Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 AUDREY P. WALTERS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 10-0904 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Audrey Walters (“Plaintiff”) brings this action seeking to reverse 22 and remand the decision of the Commissioner of the Social Security 23 Administration 24 application for Supplemental Security Income (“SSI”) benefits. 25 parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction 26 of the undersigned United States Magistrate Judge. 27 stated below, the decision of the Agency is AFFIRMED. (the “Commissioner” or the “Agency”) denying her The For the reasons 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On August 30, 2001, Plaintiff filed for SSI benefits pursuant to 5 Title XVI of the Social Security Act. (Administrative Record (“AR”) 43, 6 45). 7 43), due to hepatitis B and C. 8 application on December 17, 2001. 9 Agency reconsider her application. Plaintiff alleged an onset disability date of June 10, 1993, (AR request, The Agency denied Plaintiff’s (AR 33). Plaintiff requested the (AR 37). Plaintiff’s 11 original 12 Administrative Law Judge (“ALJ”) on April 1, 2002. 13 C. Tobin presided over the hearing (the “2002 Hearing”) on September 9, 14 2002. 15 request for benefits in a written decision. (AR 243). (AR nonetheless The Agency granted 10 decision. but (AR 51). 38). affirmed Plaintiff the Commissioner’s requested a Hearing (AR 42). By ALJ John On December 26, 2002, the ALJ denied Plaintiff’s (AR 19). 16 17 Plaintiff requested review of the ALJ’s decision. (See AR 9-10). 18 The Appeals Council denied that request on January 14, 2004. 19 Plaintiff filed a civil action that resulted in a stipulation to remand 20 the case back to the Commissioner. 21 required the ALJ to re-evaluate Plaintiff’s subjective complaints and 22 medical evidence in light of all evidence in the record. 23 On December 6, 2004, the Appeals Council vacated the ALJ’s 2002 decision 24 and ordered a new hearing pursuant to the Court’s order. 25 That hearing (the “2005 Hearing”) was held on February 16, 2005. 26 462). 27 \\ 28 -2- (AR 315). (AR 5). The stipulated remand (AR 313-14). (AR 318). (AR 1 On May 24, 2005, the ALJ again denied Plaintiff’s request for 2 benefits. 3 20051, (See AR 308), Plaintiff again requested the Agency to review the 4 ALJ’s decision on June 23, 2005. 5 Appeals Council remanded the case to a new ALJ to further consider 6 Plaintiff’s physical condition, qualifying work history, and residual 7 functional capacity2 (“RFC”). 8 scheduled a third hearing for March 28, 2007, (the “2007 Hearing”), (AR 9 336, 339), and a supplemental hearing on June 17, 2008 (the “2008 10 Hearing”). (AR 279). On July 24, 2008, ALJ Wheeler held that Plaintiff 11 was not eligible for benefits. (AR 288). On August 11, 2008, Plaintiff 12 filed written exceptions to the ALJ’s decision that challenged the ALJ’s 13 rejection of evidence regarding Plaintiff’s mental impairments. 14 272, 274). 15 and 16 Commissioner. (AR 270). Plaintiff filed the instant action on February 17 11, 2010. 18 \\ 19 \\ 20 \\ 21 \\ held (AR 305). Pursuant to written exceptions filed on June 20, (AR 329). (AR 308-09). On January 12, 2006, the ALJ Lawrence D. Wheeler (AR On December 17, 2009, the Agency denied Plaintiff’s request that the ALJ’s decision was the final decision of the 22 23 1 The June 20, 2005 written exceptions are not included in the administrative record. Based on the Appeals Council’s order, (AR 30824 09), the Court construes them to challenge the ALJ’s RFC determination 25 and to ask that an eye-ulcer that developed after the 2001 hearing be considered in the ALJ’s analysis of Plaintiff’s physical limitations. 26 2 Residual functional capacity is “the most [one] can still do 27 despite [one’s] limitations” and represents an assessment “based on all 20 C.F.R. §§ 28 the relevant evidence in [one’s] case record.” 404.1545(a), 416.945(a). -3- 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on December 24, 1956. (AR 43). Plaintiff 5 completed the eleventh grade, (See AR 246), and has no special job, 6 trade, or vocational training. 7 hepatitis B and C limited her ability to work. 8 Plaintiff claimed she was “always in pain” and suffered from chronic 9 vomiting and diarrhea. (AR 57). (AR 51). Plaintiff alleged that (AR 51). Specifically, Plaintiff claimed her illness began 10 on August 7, 1978, (AR 51), but that it first rendered her unable to 11 work on June 10, 1993. 12 Disability Report on August 30, 2001, she stated that she was currently 13 working. 14 a month working part-time as a telemarketer at World Tech Computers. 15 (AR 44, 246). 16 August of 1978 to August of 2001, (AR 52), and as a bartender. 17 262). 18 incarcerated six times as a result. She was arrested approximately five 19 months prior to her 2001 psychiatric evaluation and was on probation at 20 that time. (See AR 140, 496). (AR 51, 59). (AR 43). However, when Plaintiff completed a Plaintiff reported making six hundred dollars Further, Plaintiff reported working in office sales from (AR Plaintiff admitted to a history of cocaine use and has been 21 22 A. Plaintiff’s Subjective Complaints 23 24 On August 30, 2001, Plaintiff completed an application for SSI 25 benefits and a Disability Report. 26 stated she could not work because she suffered from Hepatitis B and C 27 and was “always in pain, vomiting, diereta [sic].” 28 Plaintiff stated her work hours were reduced “because of always being -4- (AR 43, 45, 50, 59). (AR 51). Plaintiff Further, 1 tired.” (AR 51). On November 11, 2001, Plaintiff completed a Daily 2 Activities Questionnaire. 3 Hepatitis C precluded her from working because it made her “tire[d] all 4 the time and [caused her] a lot of pain.” 5 admitted daily living activities consisting of “shopping, cleaning, 6 visiting, [and] watching TV,” (AR 60), as well as cooking, laundry, 7 household maintenance, and ironing. 8 denied needing assistance to complete these household tasks. 9 61). (AR 60, 65). Plaintiff again claimed (AR 64). (See AR 61). However, Plaintiff Further, Plaintiff (See AR Plaintiff also claimed she had difficulty sleeping “due to 10 breathing problems” but denied taking medication to sleep. 11 On January 14, 2002, Plaintiff completed a Reconsideration Disability 12 Report and claimed she suffered from asthma. 13 stated that “with flu-like problems all the time and asthma, it’s hard 14 to get going.” 15 in [her] left eye.” (AR 72, 75). (AR 60). Plaintiff Six months later, Plaintiff claimed that she was “blind (AR 29). 16 17 At the 2002 Hearing, Plaintiff admitted that she “used to smoke,” 18 and stated she stopped using cocaine “[a] year and a half ago.” (AR 19 250, 254-55). 20 C “for over 15 years” and that it made her tired, vomit, and gave her 21 diarrhea. 22 (AR 249-50), seizures, (AR 249), and a corneal ulcer in her left eye. 23 (AR 251). Plaintiff reported taking Singular and Proventil to treat her 24 asthma, (AR 250), and Dilantin to treat her seizures. 25 However, Plaintiff stated she was not being treated for Hepatitis C 26 because her doctors told her “that the medication they give you for 27 Hepatitis C will cause more seizures.” 28 that she stopped working because she was “too tired all the time.” Plaintiff claimed that she had suffered from Hepatitis (AR 249). Plaintiff also claimed she suffered from asthma, -5- (AR 249). (AR 248, 260). Plaintiff testified (AR 1 247). Plaintiff claimed that her breathing problems, poor eye-sight, 2 and general fatigue prevented her from working at her telemarketing job 3 for eight hours a day. 4 feel good. 5 Plaintiff testified that she could only walk “half a block because [she] 6 can’t breathe.” 7 seeing the stairs” and that she was prone to “falling downstairs a lot.” 8 (AR 259). (See AR 256-57) (“[I]’m always tired. My body aches, the whole thing. (AR 259). I don’t’ I just don’t feel good.”). Further, Plaintiff claimed she had “trouble 9 10 At the 2005 Hearing, Plaintiff reported her “asthma [was] getting 11 worse,” and that she used an inhaler “maybe eight, nine times a day.” 12 (AR 468). 13 “six, seven, eight times a day” that would last for “three to four 14 minutes.” 15 because she would “run out of air in the middle of a sentence.” 16 467). However, Plaintiff admitted to smoking “like two cigarettes a 17 day.” (AR 471). 18 fatigue, vomiting, and diarrhea, (AR 472), and that, “[b]etween the 19 breathing and the hepatitis, [she] didn’t have any energy.” 20 Plaintiff testified that she could only sit for “[t]en, fifteen minutes” 21 and that she could not “stand too long, five or ten minutes.” 22 74). 23 the day and that lying down triggered choking fits. 24 However, Plaintiff admitted not reporting these problems to her doctors, 25 and stated, “maybe I should, huh?” Plaintiff also claimed she suffered from asthma attacks, (AR 477). Plaintiff testified that she had to stop working (AR Plaintiff again complained of Hepatitis C-related (AR 479). (AR 473- Plaintiff further testified that she had to lie down a lot during (AR 474-75). (AR 475). 26 27 At the 2007 Hearing, Plaintiff testified that she had asthma 28 attacks “four or five times a day” but admitted she still smoked “two -6- 1 cigarettes a day.” 2 eye surgery she received in November of 2006, though she still “ha[d] 3 trouble seeing up close.” 4 suffering symptoms of depression for “[a]bout six months, seven months, 5 eight months, somewhere around there.” (AR 499). Plaintiff claimed the 6 depression exacerbated her fatigue. 7 I 8 depressed.”). 9 treatment for her depression. just want to (AR 498). just--I Plaintiff reported improvement from an (AR 498). don’t Plaintiff testified she had been (AR 499) (“I don’t want to get up. want to do anything. I’m just However, Plaintiff has failed to seek any consistent (AR 500). 10 11 At the 2008 Hearing, Plaintiff testified that she had stopped 12 smoking “about four or five months ago.” (AR 512). Plaintiff testified 13 that in December of 2007 she was hospitalized because she “had pneumonia 14 [and] had a mass in [her] lungs” that was potentially cancerous. 15 513-14). However, Plaintiff denied receiving chemotherapy or radiation 16 treatments and claimed her doctors were “still doing tests.” 17 Further, Plaintiff admitted the tests were not conclusive. 18 515). 19 because she “just had foot surgery.” 20 admitted that prior to her foot surgery, she was able to “clean the 21 house,” “[g]o to the store for dinner, or just whatever [was] available 22 for the day . . . .” 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ (AR (AR 514). (See AR Plaintiff also testified that she “can’t walk on [her] foot” (AR 516). -7- (AR 516). However, Plaintiff 1 B. Plaintiff’s Relevant Medical History 2 3 On November 18, 1999, Plaintiff tested positive for Hepatitis C at 4 the Northeast Valley Health Corporation Homeless Division. 5 On June 11, 2001, Plaintiff sought treatment at Northeast Valley for an 6 “infection in both eyes.” 7 Plaintiff with conjunctivitis and prescribed an ophthalmic solution. 8 (AR 234). 9 Laboratory issued a report stating Plaintiff tested positive for both (AR 235). (AR 372). The attending doctor diagnosed On June 19, 2001, the Twin Towers Correctional Facility 10 Hepatitis B and C. 11 treatment at the Pacifica Hospital of the Valley emergency room for 12 chills, cough, and congestion. (AR 93). The attending doctor diagnosed 13 Plaintiff with Bronchitis, (AR 97), and was prescribed Robitussin and 14 Bioxin. 15 the Northeast Valley for “trouble breathing.” 16 reported smoking one pack of cigarettes per week, (AR 225), and that she 17 had recently quit cocaine. (AR 226). Plaintiff also reported suffering 18 from Hepatitis B and C and that it caused vomiting and fatigue. (AR 19 225). The attending doctor prescribed Atrovent and Albutenol. (AR 220). (AR 98). (AR 123). On August 22, 2001, Plaintiff sought On September 25, 2001, Plaintiff began treatment at (AR 225). Plaintiff 20 21 On June 7, 2002, Plaintiff sought treatment at the Olive View UCLA 22 Medical Center emergency room. (AR 206). 23 diagnosed Plaintiff with a left corneal ulcer and prescribed Vicodin and 24 Ciloxan eye drops. 25 diagnosed Plaintiff with HSV keratitis and prescribed Acyclovir. 26 188). 27 better. 28 Valley for various ailments between 2004 and 2006. (See AR 348, 354-55, (AR 206, 210). The attending doctor Subsequent attending doctors later (AR By August 9, 2002, Plaintiff reported that her eye was feeling (AR 183). Plaintiff continued to seek treatment at Northeast -8- 1 408). Plaintiff sought treatment at the Kaiser Permanente emergency 2 room on April 2, 2006, (AR 423), for a “painful rash” and “mild left eye 3 pain.” 4 her left eye, (AR 422), and prescribed her Vicodin, Prednisone and 5 Acyclovir. 6 emergency room on July 19, 2006 and complained of neck, shoulder, and 7 chest pain as well as “eyelid swelling.” 8 doctor prescribed Prednisone, Gentamycin eye drops, and Doxycycline and 9 instructed (AR 421). The attending doctor reported Plaintiff was blind in (AR 423). Plaintiff Plaintiff returned to the Kaiser Permanente to continue using (AR 415). her The attending inhalers. (AR 418). 10 Plaintiff last sought treatment at Northeast Valley on September 26, 11 2006. 12 cataract, “dry eye syndrome,” and “HS keratitis.” 13 November 29, 2006, Plaintiff underwent cataract surgery at Olive View 14 Medical Center. (AR 408). The attending doctor diagnosed Plaintiff with a (AR 409). On (AR 411). 15 16 On May 16, 2007, a student examined Plaintiff at West Valley Mental 17 Health Center. (See AR 433, 439). 18 “disheveled” and “anxious” and had severely to moderately impaired 19 judgment and insight. 20 “major depressive disorder” and “cocaine dependency in remission.” 21 439). 22 findings. 23 County Department of Mental Health on May 18, 2007 and was prescribed 24 Zoloft. 25 appointment. (AR 438). The student reported Plaintiff was The student diagnosed Plaintiff with (AR However, a medical doctor did not sign and adopt the student’s (See AR 439). (AR 460-61). Plaintiff sought treatment at the Los Angeles Plaintiff reported “doing ok” at a follow up (AR 460). 26 27 28 -9- 1 On December 4, 2007, Plaintiff received a chest x-ray that revealed 2 an abnormality in her right lung thought to be “fluid loculated in the 3 minor fissure.” 4 January 3, 2008 that revealed and “increase” in the abnormality that was 5 diagnosed as “either loculated fluid or mass.” 6 Plaintiff also received a “biopsy of the chest” that revealed “no 7 evidence of prior described ‘mass’.” 8 Plaintiff received a third chest x-ray that revealed the abnormality was 9 “not present.” (AR 458). Plaintiff received a follow-up x-ray on (AR 454). (AR 452). However, On May 10, 2008, (AR 450). 10 11 C. Consultative Examinations 12 13 1. Internal Medicine Evaluations 14 15 On September 28, 2001, Dr. Raymond Lee examined Plaintiff. (AR 16 134, 137). Dr. Lee diagnosed Plaintiff with hepatitis B and C, but 17 noted that there was “no evidence of end-stage liver disease.” 18 136). 19 there was “no evidence of acute respiratory disease.” 20 Lee reported that Plaintiff’s “[r]espiratory auscultation reveals normal 21 excursions without appreciable wheezing, rhonchi, or rubs.” 22 Dr. Lee found that Plaintiff’s “range of motion of all extremities 23 appears normal” and that Plaintiff “moved about the room without 24 becoming significantly short of breath . . . .” 25 noted that Plaintiff smoked “one-half pack of cigarettes per day,” had 26 “a history of intravenous drug use,” and that “[s]he snorted cocaine 27 until six months ago.” (AR 135). Dr. Lee concluded that, “[b]ased upon (AR Dr. Lee also diagnosed Plaintiff with emphysema, but noted that 28 -10- (AR 136). (AR 136). Dr. (AR 136). Dr. Lee 1 the physical examination and the history as obtained . . . [Plaintiff] 2 currently ha[d] no impairment related physical limitations.” (AR 136). 3 4 On June 14, 2006, Dr. Ursula E. Taylor examined Plaintiff. (AR 5 382, 387). Dr. Taylor found Plaintiff to be “friendly and cooperative” 6 and “in no acute distress.” (AR 383-84). Dr. Taylor reported Plaintiff 7 had “a good range of motion without evidence of pain . . . .” 8 Further, Dr. Taylor reported that Plaintiff’s heart “rate and rhythm 9 [were] regular,” (AR 384), her “[m]uscle tone and mass appear[ed] 10 normal,” (AR 385), and that she could “walk without an assistive 11 device.” (AR 386). Dr. Taylor also reported Plaintiff’s “[r]espiratory 12 auscultation reveals normal excursions without appreciable wheezing, 13 rhonchi, or rubs.” 14 function test was not consistent” with Plaintiff’s claim that she 15 suffered from asthma. 16 hepatitis-related disability claims. 17 “[Plaintiff] does not appear significantly limited based on [the] 18 possible history” of hepatitis. 19 suggested that Plaintiff’s “long-term IV drug abuse and cocain use” and 20 “long-term smoking” explained her reported symptoms. (AR 384). (AR 384). Dr. Taylor noted that “the pulmonary (AR 386). Dr. Taylor also doubted (See AR 386). (AR 386). Plaintiff’s Dr. Taylor stated, However, Dr. Taylor (See AR 386). 21 22 2. Psychiatric and Psychological Evaluations 23 24 On November 19, 2001, Dr. Mehboob Ali Makhani examined Plaintiff. 25 (AR 139, 143). 26 nourished, [and] in no apparent distress.” 27 reported 28 problems” or a “depressed mood.” that Dr. Makhani found Plaintiff to be “well kept, well Plaintiff denied “suffer[ing] (AR 139). -11- (AR 141). from any Dr. Makhani psychiatric Dr. Makhani stated that 1 Plaintiff admitted to cocaine abuse, (AR 140), and reported she was 2 “currently in remission for the past six months.” 3 Makhani found Plaintiff “able to understand, retain, and follow basic 4 instructions.” 5 “adequate self-care skills of bathing, dressing, eating, toileting, and 6 safety precautions.” 7 admitted to “shopping, cooking and cleaning.” 8 reported that Plaintiff’s social activities included “visiting friends 9 and relatives, going to movies . . . [and] shopping in a variety of (AR 142). (AR 140). (AR 142). Dr. Dr. Makhani also found that Plaintiff had (AR 141). Dr. Makhani reported that Plaintiff (AR 141). Dr. Makhani 10 stores.” Dr. Makhani concluded that Plaintiff, “should be 11 able to relate appropriately to [the] general public, coworkers and 12 supervisors.” (AR 142). Additionally, Dr. Makhani found that Plaintiff 13 could “handle the stresses and demands of gainful employment within her 14 intellectual and physical limitations.” (AR 142). 15 16 On December 6, 2001, Dr. Marina C. Vea assessed Dr. Makhani’s 17 examination results and determined Plaintiff’s mental RFC. (AR 160, 18 162). 19 “ability to understand and remember detailed instructions” and her 20 “ability to carry out detailed instructions.” 21 Vea found Plaintiff had no other significant mental limitations. 22 AR 160-61). Dr. Vea concluded that Plaintiff’s understanding and memory 23 were “sufficient for short and simple tasks.” 24 further concluded that Plaintiff’s concentration and persistence were 25 “sufficient for unskilled work” and that she could “adapt . . . to usual 26 changes in [the] work setting.” 27 \\ Dr. Vea found that Plaintiff was moderately limited in her (AR 161). 28 -12- (AR 160). However, Dr. (AR 161). (See Dr. Vea 1 On March 19, 2008, Dr. Stefanie Stolinsky examined Plaintiff. (AR 2 443, 449). Dr. Stolinsky reported that Plaintiff appeared to have 3 “serious medical problems compounded by a long history of alcohol and 4 cocaine use and abuse.” 5 with “Substance Induced Mood disorder; Cocaine Abuse; RULE OUT: Mood 6 Disorder Due to Lung Cancer diagnosis and other physical medical 7 problems; RULE OUT: Borderline Personality Disorder.” (AR 445-46). Dr. 8 Stolinsky cited Plaintiff’s “long history of drug and alcohol use and 9 abuse” and “incarcerations in prison” to support her diagnosis. (AR 446). Dr. Stolinsky diagnosed Plaintiff (See 10 AR 443, 446, 448) (“The alcohol and cocaine use and abuse has led to 11 several arrests and incarcerations. 12 . . . depressed due to the effect of the substances on her brain.”). The claimant has probably become 13 14 Dr. Stolinsky reported that Plaintiff’s “[r]ecent and remote memory 15 were adequate, but [her] attention span and concentration appeared 16 impoverished.” 17 very tired and [was] unable to continue” a test that measured mental 18 functioning. 19 “cannot 20 “participate in any activity for long periods of time.” 21 Stolinsky concluded that Plaintiff “does not have the energy or stamina 22 to sustain a position for five days a week, forty hours a day.” 23 446). 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ (AR 444). (AR 445). concentrate or Dr. Stolinsky noted that Plaintiff “became Thus, Dr. Stolinsky found that Plaintiff attend to -13- simple or complex tasks” nor (AR 446). Dr. (AR 1 D. Vocational Expert Testimony 2 3 Dr. June Hagen, a vocational expert (“VE”), testified at the 2002 4 Hearing. (AR 261). 5 “sedentary” and “semiskilled” and Plaintiff’s bartending work as “light” 6 and “semiskilled.” 7 “limited education” and “irregular vision” who was capable of “medium 8 exertional work” could perform Plaintiff’s past relevant work. 9 264-65). The VE The VE described Plaintiff’s telemarketing work as (AR 264). further The VE testified that a person with stated that Plaintiff could (See AR work as a 10 telemarketer but not a bartender even if her “fatigue and flu-like 11 symptoms” precluded working full-time. (See AR 266). 12 13 Lynne Tracy, a VE, testified at the 2005 Hearing. characterized Plaintiff’s limitations as (AR 482). “limited The 14 ALJ education,” 15 “monocular vision,” and “light exertional level” work at the “sedentary 16 level.” (AR 486). The VE testified that an individual with Plaintiff’s 17 limitations “would still be able to perform the telemarketing job.” (AR 18 487). 19 breaks . . . between six to seven a day” and “another set of breaks 20 three times a day for . . . unexpected restroom visits.” 21 Plaintiff’s attorney added yet a further limitation requiring Plaintiff 22 to “lie down at will.” 23 required all of the limitations, she would be unable to work. 24 489). 25 itself is a problem.” The ALJ further limited Plaintiff to requiring “unscheduled (AR 489). (AR 488). The The VE testified that if Plaintiff (See AR The VE noted, “[t]he lying down at will, obviously, in and of (AR 489). 26 27 28 A VE did not testify at the 2007 Hearing. (See AR 504-05). However, Dr. Ronald Hatakeyama, a VE testified at the 2008 Hearing. (AR -14- 1 517). 2 light,” work that avoids “moderate exposure to smoke, dust, fumes, [and] 3 gasses,” 4 accommodate Plaintiff’s mental impairments, the ALJ further limited 5 Plaintiff to “no public contact, and minimal pier [sic] contact, and 6 simple one to three step tasks.” 7 Plaintiff could not work her past jobs based on the ALJ’s limitations. 8 (AR 519). 9 label coder, which is doing assembly type work” or a “collator operator, 10 The ALJ limited Plaintiff’s work ability to “exertionally . . . and requires “[n]o binocular vision.” (AR 519). (AR 519). To The VE testified that However, the VE testified that Plaintiff could work as “a which is in the clerical field.” (AR 519-20). 11 12 IV. 13 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 15 To qualify for disability benefits, a claimant must demonstrate 16 a medically determinable physical or mental impairment that prevents him 17 from engaging in substantial gainful activity3 and that is expected to 18 result in death or to last for a continuous period of at least twelve 19 months. 20 42 U.S.C. § 423(d)(1)(A)). 21 incapable of performing the work he previously performed and incapable 22 of performing any other substantial gainful employment that exists in 23 the national economy. 24 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 25 26 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 27 -15- 1 To decide if a claimant is entitled to benefits, an ALJ conducts 2 a five-step inquiry. 3 follows: 20 C.F.R. §§ 404.1520, 416.920. The steps are as 4 5 (1) Is the claimant presently engaged 6 substantial gainful activity? 7 claimant is found not disabled. 8 proceed to step two. in If so, the If not, 9 10 (2) Is the claimant’s impairment severe? If not, 11 the claimant is found not disabled. If so, 12 proceed to step three. 13 14 (3) Does the claimant’s impairment meet or equal 15 one of a list of specific impairments 16 described in 20 C.F.R. Part 404, Subpart P, 17 Appendix 1? 18 disabled. If so, the claimant is found If not, proceed to step four. 19 20 (4) Is the claimant capable of performing her past 21 work? If 22 disabled. so, the claimant is found not If not, proceed to step five. 23 24 (5) Is the claimant able to do any other work? 25 not, the claimant is found disabled. 26 the claimant is found not disabled. 27 28 -16- If If so, 1 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)- 2 (g)(1), 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 3 (9th Cir. 2001) (citations omitted). 4 5 The claimant has the burden of proof at steps one through four, and 6 the Commissioner has the burden of proof at step five. 7 F.3d at 953-54. 8 establishing an inability to perform past work, the Commissioner must 9 show that the claimant can perform some other work that exists in 10 “significant numbers” in the national economy, taking into account the 11 claimant’s RFC, age, education, and work experience. 12 at 1098, 1100; Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(g)(1), 13 416.920(g)(1). 14 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 15 Part 404, Subpart P, Appendix 2 (commonly known as “the Grids”). 16 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 17 claimant 18 limitations, the Grids are inapplicable and the ALJ must take the 19 testimony of a VE. has Bustamante, 262 If, at step four, the claimant meets his burden of Tackett, 180 F.3d The Commissioner may do so by the testimony of a VE or both exertional (strength-related) and When a nonexertional Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 20 21 V. 22 THE ALJ’S DECISION 23 24 On July 24, 2008, the ALJ issued a decision denying benefits. (AR 25 288). The ALJ employed the five-step sequential evaluation process, 26 (see AR 281, 286), and concluded that Plaintiff was not disabled. 27 287). 28 substantial gainful activity since applying for benefits. (AR 281). (AR At the first step, the ALJ held Plaintiff had not engaged in -17- 1 Next, the ALJ found Plaintiff’s hepatitis, asthma, and visual impairment 2 qualified as severe impairments. (AR 281). At step three, however, the 3 ALJ found the severe impairments at step two did not meet or medically 4 equal a listed impairment. (AR 281). 5 6 At step four, the ALJ held that Plaintiff was capable of working 7 as a telemarketer despite her impairments. (AR 286). Specifically, the 8 ALJ held that “the cumulative evidence . . . [did] not establish a 9 disabling persistence and intensity of symptoms” 10 sufficient to preclude work. 11 Council’s 12 “telemarketer [was] past relevant work,” (AR 281), that Plaintiff was 13 capable of performing. 14 “worked long enough [as a telemarketer] to learn average performance 15 from that period.” 16 chief complaints were fatigue and shortness of breath, “neither appears 17 to have stymied her from engaging in a wide range of activities.” 18 283). 19 visiting and watching television” to support his holding. 20 (citing AR 60-61). 21 maintaining 22 household chores.” order, the ALJ (AR 282). [Plaintiff’s] determined (AR 286). (AR 281). that Pursuant to the Appeals Plaintiff’s work as a The ALJ reasoned that Plaintiff The ALJ noted that though Plaintiff’s (AR The ALJ cited Plaintiff’s admission of “shopping, cleaning, her (AR 282) The ALJ also cited Plaintiff’s denial of “problems personal care” and “independently completing all (AR 282) (citing AR 60). 23 24 The ALJ addressed Plaintiff’s other physical limitations as well. 25 The ALJ held that there was no “durationally significant period in which 26 the claimant was precluded from performing jobs requiring only monocular 27 vision.” (AR 284). The ALJ noted that Plaintiff’s reported seizures 28 -18- 1 were “very infrequent” and “would not change the outcome” of his 2 decision. (AR 284). 3 4 The ALJ found that Plaintiff’s alleged depression not 5 significantly limit her ability to work. 6 Plaintiff “did not allege a mental basis for ‘disability’” on her 2001 7 application. 8 consistently denied “any psychiatric problems” and did not “claim to 9 have any specific functional deficit due to mental health,” until 2007. (AR 285). (AR 285). did Further, the The ALJ noted that ALJ stated that Plaintiff 10 (See AR 285). 11 even less durationally significant value” in the data resulting from 12 those initial complaints. 13 results 14 “inconsistent with the longitudinal history” and “[Plaintiff’s] daily 15 independent activities.” 16 “no ‘severe’ mental impairments.” from The ALJ held that there was “little probative value and Plaintiff’s (AR 285). 2008 The ALJ determined that the psychological (AR 285-86). evaluation were The ALJ concluded Plaintiff had (AR 286). 17 18 The ALJ suggested “that drug abuse and legal problems have played 19 a role in [Plaintiff’s] inconsistent employment history as much as any 20 impairments that are potentially compensable under the Act.” 21 The ALJ thus assessed Plaintiff’s RFC and determined Plaintiff was 22 capable of “light work.” 23 moderate (and greater) exposure to smoke, dusts, fumes and gasses; and 24 can only perform work that requires monocular vision.” 25 ALJ further limited Plaintiff to “no public contact, minimal peer 26 contact [and] simple 1-3 step tasks.” (AR 282). However, the ALJ noted 27 that Plaintiff “could perform the work on a 40-hour a week schedule.” 28 (AR 286). Finally, at step five, the ALJ concluded that Plaintiff could (AR 281). (AR 284). The ALJ held Plaintiff “must avoid -19- (AR 281). The 1 work as a label coder or collator operator based on Plaintiff’s RFC and 2 the VE’s testimony. 3 Plaintiff was not disabled at any time through the date of the decision. 4 (AR 287). (AR 286). Accordingly, the ALJ found that 5 6 VI. 7 STANDARD OF REVIEW 8 9 Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner’s decision to deny benefits. The court may set aside the 11 Commissioner’s decision when the ALJ’s findings are based on legal error 12 or are not supported by substantial evidence in the record as a whole. 13 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 14 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 15 16 “Substantial evidence is more than a scintilla, but less than a 17 preponderance.” 18 which a reasonable person might accept as adequate to support a 19 conclusion.” (Id.). To determine whether substantial evidence supports 20 a finding, the court must “‘consider the record as a whole, weighing 21 both 22 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 23 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 24 reasonably support either affirming or reversing that conclusion, the 25 court may not substitute its judgment for that of the Commissioner. 26 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. that supports and evidence 27 28 -20- It is “relevant evidence that detracts from the If the evidence can 1 VII. 2 DISCUSSION 3 4 The ALJ Properly Found That Plaintiff Does Not Suffer 5 From A Severe Mental Impairment 6 7 Plaintiff argues that the ALJ’s conclusion that Plaintiff’s mental 8 impairment was not severe was error. (Plaintiff’s Complaint Brief 9 (“Compl. Br.”) at 2). Specifically, Plaintiff contends that the ALJ 10 erroneously rejected the opinion of Dr. Stephanie Stolinsky, one of two 11 consultative examiners who assessed Plaintiff’s mental capacity. 12 Plaintiff’s Reply Brief (“Reply Br.”) at 2). 13 improperly 14 consultative examiner Dr. Mehboob Ali Makahni. 15 Plaintiff maintains that Dr. Stolinsky’s report should be given more 16 weight than Dr. Makahni’s and, thus, the ALJ’s decision should be 17 remanded for further administrative proceedings. 18 Court disagrees. relied on an outdated medical (See Plaintiff asserts the ALJ evaluation written by (Compl. Br. at 6). (Id. at 7). This 19 20 By its own terms, the evaluation at step two is a de minimis test 21 intended to weed out the most minor of impairments. 22 Yuckert, 482 U.S. 137, 153-154, 107 S. Ct. 2287, 96 L. Ed. 2d 119 23 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2005) 24 (stating that the step two inquiry is a de minimis screening device to 25 dispose of groundless claims) (quoting Smolen, 80 F.3d at 1290). 26 impairment is not severe only if the evidence establishes “a slight 27 abnormality that has only a minimal effect on an individual’s ability 28 -21- See Bowen v. An 1 to work.” 2 omitted). Smolen, 80 F.3d at 1290 (internal quotations and citations 3 4 Plaintiff’s medical history supports the ALJ’s determination that 5 Plaintiff does not suffer from a severe mental impairment. 6 indicates that Plaintiff has received substantial medical treatment for 7 various physical problems over a ten year period. 8 is void of any significant treatment for mental health problems. 9 record indicates that Plaintiff tested positive for Hepatitis C as early (AR 372). The record However, the record The 10 as November 18, 1999. Further, the record indicates 11 extensive medical treatment for Plaintiff’s left eye that includes 12 diagnoses of HSV keratitis, (AR 188), and blindness, (AR 422), as well 13 as cataract surgery. (AR 411). The record also indicates Plaintiff has 14 been consistently treated for asthma. (See AR 220, 225, 335, 348). 15 16 Conversely, there are no records indicating significant mental 17 health treatment. A mental health evaluation was performed by Dr. 18 Makhani at the request of the Agency as part of Plaintiff’s disability 19 evaluation. (AR 139, 143). 20 19, 2001. 21 psychiatric problems” or “a depressed mood.” 22 found Plaintiff to be in “no apparent distress.” (AR 141). Dr. Makhani 23 concluded that Plaintiff “should be able to handle the stresses and 24 demands of gainful employment within her intellectual and physical 25 limitations.” 26 nominal 27 application for benefits. (AR 139). mental Notably, Plaintiff denied suffering from “any (AR 142). health That evaluation was performed on November (AR 139). Dr. Makhani The record indicates Plaintiff received treatment in 28 -22- 2007, long after her first 1 Again at the request of the agency, Dr. Stephanie Stolinsky, a 2 clinical psychologist, examined Plaintiff on April 3, 2008.4 3 433, 439, 443, 446, 460-61). 4 “serious medical problems compounded by a long history of alcohol and 5 cocaine use and abuse.” 6 with “substance induced mood disorder” and noted Plaintiff could not 7 “concentrate or attend to simple or complex tasks.” 8 However, Dr. Stolinsky’s evaluation coincided with six months of testing 9 Plaintiff received to determine whether an abnormality in her right lung (See AR Dr. Stolinsky found Plaintiff to have (AR 446). Dr. Stolinsky diagnosed Plaintiff (See AR 450, 452, 455, 458). (AR 445-46). 10 was cancerous. Indeed, Dr. Stolinsky 11 noted that Plaintiff “seemed to perseverate on her physical health.” 12 (AR 444). 13 14 Moreover, Plaintiff’s own subjective complaints support the ALJ’s 15 determination that Plaintiff did not suffer a severe mental impairment. 16 Plaintiff maintained consistent, specific complaints regarding her 17 hepatitis, eye problems, and asthma with both her doctors and the 18 Agency. 19 Plaintiff’s 20 impairments (AR 51) and there is little evidence in the record of mental 21 impairments until Plaintiff testified at the 2007 Hearing. 22 Plaintiff claimed she had suffered from symptoms of depression for 23 “[a]bout six months, seven months, eight moths, somewhere around there.” (See AR 29, 51, 72, 249-51, 467-68, 471-72). original application failed to mention However, any mental (AR 499). 24 4 At the 2007 Hearing, Plaintiff testified she discussed her 25 symptoms of depression and received a prescription for Zoloft at North 26 East Valley. (AR 499). However, these medical records are not included in the record. Further, the record indicates attending doctors at the 27 Los Angeles County Department of Mental Health prescribed Plaintiff Zoloft on May 18, 2007 and on December 14, 2007, Plaintiff reported 28 “doing ok.” (AR 460-61). -23- 1 (AR 499). However, Plaintiff could not clearly articulate the effect 2 her alleged depression had on her daily activities. 3 Plaintiff only stated: “I don’t want to get up. 4 don’t want to do anything. (See AR 499). I just want to just–I I’m just depressed.” (AR 499). 5 6 Plaintiff fails to provide any credible evidence suggesting that 7 her mental impairments, to the extent they exist, result in anything 8 more than a slight abnormality. 9 Hearing that she suffered from depression and that it made her not want Plaintiff merely stated at the 2007 10 to “get up” or “do anything.” (AR 499). 11 she did not seek treatment at that time. 12 2008 Hearing, Plaintiff admitted to being able to “clean the house,” “go 13 to the store for dinner, or just whatever is available for the day.” 14 (AR 516). This admission is consistent with the daily activities of 15 “shopping, cleaning, 16 reported on her 2001 Daily Activities Questionnaire. 17 activities are consistent with a finding that Plaintiff does not suffer 18 from a severe mental impairment. Thus, Plaintiff has not met her burden 19 of proof on this issue. 20 F.3d 1219, 1222 (9th Cir. 2009) (“The burden of proof is on the claimant 21 at steps one through four . . . .”). visiting, [and] However, Plaintiff admitted (AR 500). watching Moreover, at the TV” that Plaintiff (AR 60). These See Bray v. Comm’r of Soc. Sec. Admin., 554 22 23 The ALJ properly relied upon Dr. Makhani’s opinion in evaluating 24 Plaintiff’s mental impairment. The ALJ is not bound by an expert 25 medical opinion on the ultimate question of disability. 26 Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). 27 provide specific and legitimate reasons for rejecting medical opinions. 28 See id. Tommasetti v. However, the ALJ must Ultimately, “the ALJ is the final arbiter with respect to -24- 1 resolving ambiguities in the medical evidence.” 2 found Dr. Makhani’s report consistent with Plaintiff’s medical history. 3 (See AR 285). 4 problems” during Dr. Makhani’s examination, (AR 285) (citing AR 139), 5 and that Dr. Makhani “reported a normal mental status examination.” (AR 6 285). 7 complaints, examinations and treatment between Dr. Makhani’s examination 8 and Plaintiff’s subjective complaints at the 2007 Hearing. 9 285). 10 Id. Here, the ALJ The ALJ noted that Plaintiff “denied any psychiatric The ALJ questioned the absence of substantial mental health (See AR The ALJ stated “[t]here is essentially no evidence in the next several years related to emotional health . . . .” (AR 285). 11 12 Moreover, the ALJ found Dr. Stolinsky’s analysis of Plaintiff’s 13 mental condition “inconsistent with the longitudinal history.” 14 285). 15 Plaintiff 16 correspond with Plaintiff’s self-reported daily activities. 17 The ALJ explained that these activities suggested that “[Plaintiff’s] 18 energy level is not compromised so as to preclude a regular work 19 schedule.” 20 concentration was at least partially due to concerns over her physical 21 health. (AR 286). Furthermore, the ALJ dismissed Plaintiff’s treatment 22 at West valley Mental Health Center as “essentially . . . a form with 23 circling 24 quantification.” 25 signed by a M.D. or Ph.D.” and in subsequent examinations, Plaintiff 26 reported “doing well.” 27 requisite “specific and legitimate reasons” that justified his rejection 28 of Dr. Stolinsky’s opinion. The ALJ could reasoned not Dr. “concentrate (AR 286). of that various Stolinsky’s on even determination simple tasks” did (AR that not (AR 286). The ALJ suggested that Plaintiff’s lack of signs (AR 285). or symptoms as present, but no The ALJ noted that “[t]he form [was] not (AR 285, 460). Thus, the ALJ provided the Tommasetti, 533 F.3d at 1041 (holding the -25- 1 rejection of a medical opinion was proper where the ALJ discussed in 2 detail how the opinion was inconsistent with the plaintiff’s medical 3 history). 4 5 The ALJ assessed Plaintiff’s RFC and, though he found “no severe 6 mental impairments,” he nonetheless provided for mental limitations 7 “[b]ased on the cumulative evidence.” 8 Plaintiff from “public contact, from more than minimal peer contact” and 9 further limited plaintiff to “simple 1-3 tasks.” (AR 286). The ALJ precluded (AR 286). Thus, 10 assuming arguendo that the ALJ erred in finding no severe mental 11 impairment, 12 appropriate mental limitations into his RFC finding. 13 Comm’r, 533 F.3d 1155, 1162 (9th Cir. 2008) (“So long as there remains 14 ‘substantial evidence supporting the ALJ's conclusions’ and the error 15 ‘does not negate the validity of the ALJ's ultimate conclusion,’ such 16 is deemed harmless and does not warrant reversal)(quoting Batson v. 17 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004)); Burch 18 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (“A decision of the ALJ 19 will not be reversed for errors that are harmless.”). 20 \\ 21 \\ 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ any error was harmless 28 -26- because the ALJ incorporated See Carmickle v. VIII. 1 CONCLUSION 2 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),5 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 11 DATED: November 12 24, 2010 /S/ _____________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 5 This sentence provides: “The [district] court shall have power 28 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
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