Valencia Small v. Michael J. Astrue, No. 2:2010cv02685 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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Valencia Small v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 VALENCIA SMALL, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 10-02685-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 issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 considered Plaintiff’s mental impairment and limitations (JS 2 at 6); and 3 2. Whether the ALJ properly found Plaintiff could perform a 4 significant number of 5 jobs as required in competitive employment (JS at 25). 6 7 This Memorandum Opinion will constitute the Court’s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes that the decision of the Commissioner must be affirmed. 10 11 I 12 THE ALJ PROPERLY CONSIDERED PLAINTIFF’S 13 MENTAL IMPAIRMENT AND LIMITATIONS 14 Plaintiff asserts that she has been diagnosed with paranoid 15 schizophrenia by her treating psychiatrist, Dr. Puglisi. Relying upon 16 functional assessments made by Dr. Puglisi at two different times in 17 2008 (AT 240-47, 281-86), she asserts that her impairments fulfill the 18 requirements of Listing 12.03, parts A and B. 19 set forth, the Court agrees that the ALJ properly concluded that 20 Plaintiff does not meet a Listing, nor is she disabled due to any 21 mental impairment. For the reasons to be 22 23 A. The ALJ’s Decision. 24 Following a hearing which occurred on December 1, 2008 (AR 28- 25 70), at which Plaintiff was represented by the same attorney who now 26 represents her in this litigation, and at which testimony was taken 27 both from Plaintiff and a Medical Expert (“ME”), the ALJ issued an 28 unfavorable decision. (AR 10-23.) 2 In that decision, the ALJ 1 summarized the evidence concerning Plaintiff’s mental impairment. 2 First, the ALJ noted that on May 18, 2007, at the request of the 3 Department of Social Services, Plaintiff received a complete 4 psychiatric evaluation (“CE”) from Dr. Simonian. (AR 16-17, 208-12.) 5 Dr. Simonian took a history from Plaintiff, who indicated that she has 6 been hearing voices, for which she is on medication, for about four or 7 five months. 8 ago, and is going to Augusta Hawkins Hospital where she is receiving 9 medication for her psychiatric condition. (AR 16, 209.) Plaintiff started seeing a psychiatrist three months Dr. Simonian 10 performed a mental status examination (AR 210-11), which revealed no 11 major disorder of speech; generally coherent thought processes; full 12 range and appropriate affect; slightly guarded mood; no delusional 13 thinking. (AR 210.) 14 was able to comprehend questions and respond to them appropriately, 15 but at times “she was selectively not giving answers to questions.” 16 (Id.) Dr. Simonian felt that Plaintiff was “generally evasive to many 17 questions that were asked.” (AR 211.) 18 arithmetic 19 [Plaintiff] 20 symptoms.” (Id.) 21 (Id.) 22 antisocial personality features. (Id.) 23 Dr. Simonian concluded, however, that Plaintiff calculations, was not Dr. In asking Plaintiff to perform Simonian cooperating, and “strongly was suspected producing that facticious He diagnosed Plaintiff on Axis I with malingering. He also diagnosed her with personality disorder, NOS, with The ALJ reviewed and summarized ongoing mental health treatment 24 that Plaintiff had received from Morongo Basin. (AR 17.) 25 that Plaintiff had received various forms of treatment for her 26 allegedly 27 “generally successful in controlling those symptoms.” (AR 17.) 28 review of records from Morongo Basin of January 11, 2008 indicated disabling symptoms, but 3 that the treatment He noted has been His 1 that Plaintiff had good compliance with medications and that they were 2 working a little. (Id.) 3 reported she was sleeping better although she still cried frequently 4 and had a poor appetite. 5 Basin reported that Plaintiff was feeling less paranoid and a little 6 better, and that she had good compliance with medications. (Id.) 7 June 2008, the ALJ noted that Plaintiff continued to show improvement 8 during the period of adjudication, that she maintained appropriate 9 behavior and reported hearing no voices. She had good compliance with In March 2008, the ALJ noted that Plaintiff In May 2008, the ALJ noted that Morongo In 10 medications and was scheduled for followup. 11 Basin reported that Plaintiff stated she had less anger and there was 12 a decrease in hearing voices, with an increase in her appetite. 13 October 2008, Morongo Basin indicated that Plaintiff had been without 14 medications for a few days and reported voices and irritability. 15 ALJ noted that “this suggests that the [Plaintiff’s] medications are 16 effective 17 irritability.” (Id.) 18 The in ALJ controlling extensively her In August 2008, Morongo auditory summarized the hallucinations findings of In The and Plaintiff’s 19 treating psychiatrist, Dr. Puglisi, who had treated Plaintiff since 20 2007. (AR 19-020.) 21 activities of daily living, marked limitations in maintaining social 22 functioning, and extreme difficulties in maintaining concentration, 23 persistence or pace. 24 decompensation in work related or other situations. He found a marked 25 limitation 26 procedures, 27 instructions, to maintain attention and concentration for extended 28 periods; to perform activities within a schedule; to maintain regular in to her Dr. Puglisi assessed moderate limitations in He found extreme episodes of deterioration or ability understand, to remember remember 4 locations and carry and work-like out detailed 1 attendance; to work in coordination with or proximity to others 2 without being distracted; to make simple work-related decisions; to 3 complete a normal work day and work week without interruptions from 4 psychologically based symptoms, and to perform at a consistent pace 5 without an unreasonable number and length of rest periods. 6 restrictions were found with regard to Plaintiff’s ability to interact 7 appropriately with the general public; to get along with coworkers or 8 peers without distracting them or exhibiting behavioral extremes; to 9 maintain socially appropriate behavior and to adhere Similar to basic 10 standards of neatness and cleanliness; to respond appropriately to 11 changes in the work setting; and to tolerate stress in an ordinary 12 work situation. 13 in her ability to understand, remember, and carry out short and simple 14 instructions; 15 supervision; to accept instructions and respond appropriately to 16 criticisms from supervisors; to be aware of normal hazards and take 17 appropriate precautions; to travel in unfamiliar places or use public 18 transportation; and in her ability to set realistic goals or make 19 plans independently of others. (AR 19, 240-47.) 20 21 Dr. Puglisi found Plaintiff to be moderately limited to sustain an ordinary routine without special The ALJ noted that Dr. Puglisi had found similar functional restrictions in a November 25, 2008 report. (AR 19, 281-88.) 22 Noting that in the hierarchy of opinions, that of a treating 23 physician is entitled to special significance, the ALJ nevertheless 24 depreciated the significance of Dr. Puglisi’s opinions and afforded 25 them no significant weight, as he found they conflicted with the 26 substantial 27 limitations. (AR 20.) 28 that Dr. Puglisi failed to provide evidence or standard descriptions evidence of record which documented less severe Further, the ALJ cited the testimony of the ME 5 1 to support his observations of Plaintiff’s mental symptoms. (AR 20, 2 citing testimony at AR 45-56.) 3 The ALJ assigned “significant weight” to the report of Dr. 4 Simonian. (AR 16-17, 20.) The ALJ noted Dr. Simonian’s discounting of 5 Plaintiff’s 6 conclusions that Plaintiff was not cooperative in the examination, and 7 was strongly suspected of producing factitious symptoms. It was noted 8 that Dr. Simonian diagnosed malingering and personality disorder, NOS. 9 (Id.) reported delusional thinking (AR 210-11), and his 10 The ALJ heavily relied upon the testimony of the ME, who had 11 examined all of the records, and in fact, observed and examined 12 Plaintiff at the ALJ hearing itself. 13 assessed that Plaintiff had mild limitations in activities of daily 14 living; 15 functioning; 16 concentration, 17 decompensation. (AR 47.) 18 be limited to moderately complex tasks in a repetitive setting, that 19 she could have normal contact with supervisors and coworkers, and 20 could 21 operations or do fast raped-paced assembly line work, nor work which 22 involved intense interaction with the public. (Id.) 23 mild do to mild moderate object limitations limitations persistence As noted in the Decision, the ME in and in her pace; maintaining social capacity to and episodes no maintain of Thus, the ME assessed that Plaintiff would oriented work, but should not perform safety Finally, the ALJ noted and assessed weight to the Psychiatric 24 Review Technique 25 psychiatrist Dr. Tasjian. (AR 18-19, 218-28.) 26 limitations 27 functioning; and maintaining concentration, persistence or pace. (AR 28 226.) in Form activities (“PRTF”), of daily completed by non-examining Dr. Tasjian found mild living; maintaining social The ALJ found that this opinion was supported by the medical 6 1 evidence of record. (AR 18-19.) 2 The ALJ also made credibility findings, which Plaintiff does not 3 challenge. He assessed that her assertions concerning her impairments 4 were not considered fully credible in light of her unremarkable mental 5 status 6 inconsistent history she had provided concerning her drug use, in 7 addition to the suspicion by Dr. Simonian that Plaintiff had produced 8 factitious symptoms and was malingering. 9 hearing, Plaintiff had no difficulties answering and understanding 10 questions posed to her, and gave logical responses not consistent with 11 active psychosis. (AR 21.) examinations, the effectiveness of medications, and an The ALJ noted that at the 12 13 B. 14 Applicable Law. 1. Mental Impairments. 15 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 16 and §416.920a(c)(3)(4) mandate that consideration be given, among 17 other 18 functioning; concentration, persistence, or pace; and episodes of 19 decompensation. These factors are generally analyzed in a Psychiatric 20 Review Technique Form (“PRTF”). 21 sequential evaluation to determine if a claimant is disabled under the 22 Listing of Impairments; however, the same data must be considered at 23 subsequent steps unless the mental impairment is found to be not 24 severe at Step Two. 25 things, 20 C.F.R. to activities of daily living (“ADLs”), social The PRTF is used at Step Three of the See SSR 85-16. §§404.1520a(c)(1) and 416.920a(c)(1) require 26 consideration of “all relevant and available clinical signs and 27 laboratory findings, the effects of your symptoms, and how your 28 functioning may be affected by factors including, but not limited to, 7 1 chronic mental disorders, structured settings, medication and other 2 treatment.”1 3 SSR 85-16 suggests the following as relevant evidence: 4 “History, findings, and observations from medical 5 sources (including psychological test results), regarding 6 the presence, frequency, and intensity of hallucinations, 7 delusions or paranoid tendencies; depression or elation; 8 confusion or disorientation; conversion symptoms or phobias; 9 psycho-physiological symptoms, withdrawn or bizarre 10 behavior; anxiety or tension. 11 activities of daily living and work activity, as well as 12 testimony 13 performance and behavior. 14 homes, or similar assistive entities.” of third parties Reports of the individual’s about the individual’s Reports from workshops, group 15 16 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 17 that the ALJ must consider the extent to which the mental impairment 18 interferes with an “ability to function independently, appropriately, 19 effectively, and on a sustained basis” including “such factors as the 20 quality and level of [] overall functional performance, any episodic 21 limitations 22 require[d].” 23 [and] the amount of supervision or assistance [] Pursuant to the September 2000 amendments to the regulations 24 25 26 27 28 1 20 C.F.R. §404.1545(c) and §416.945(c) also require consideration of “residual functional capacity for work activity on a regular and continuing basis” and a “limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting.” 8 1 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 2 is no longer required to complete and attach a PRTF. 3 regulations identify five discrete categories for the first three of 4 four relevant functional areas: activities of daily living; social 5 functioning; concentration, persistence or pace; and episodes of 6 decomposition. These categories are None, Mild, Moderate, Marked, and 7 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 8 incorporate pertinent findings and conclusions based on the PRTF 9 technique. §404.1520a(e)(2) mandates that the ALJ’s decision must show significant history, including examination The revised 10 “the and laboratory 11 findings, and the functional limitations that were considered in 12 reaching a conclusion about the severity of the mental impairment(s). 13 The decision must include a specific finding as to the degree of 14 limitation in each of the functional areas described in paragraph (c) 15 of this section.” 16 The Step Two and Three analyses (see Decision at AR 53-54) are 17 intended to determine, first, whether a claimant has a severe mental 18 impairment (Step Two), and if so, whether it meets or equals any of 19 the Listings (Step Three). It is also required under §404.1520a(c)(2) 20 and §416.920a(c)(2) that the ALJ must consider the extent to which the 21 mental 22 independently, appropriately, effectively, and on a sustained basis” 23 including “such factors as the quality and level of [] overall 24 functional performance, any episodic limitations [and] the amount of 25 supervision or assistance [] require[d].” impairment interferes with an “ability to function 26 These findings and conclusions are relevant to the Step Two and 27 Three analysis of whether a claimant has a severe mental impairment, 28 and if so, whether it meets or equals any of the Listings. (See 20 9 1 C.F.R. Part 4, subpart p, App. 1.) 2 “Mental Disorders,” is relevant: 3 “The criteria in The discussion in Listing 12.00, paragraphs functional B and limitations C describe 4 impairment-related that are 5 incompatible with the ability to do any gainful activity. 6 The functional limitations in paragraphs B and C must be the 7 result of the mental disorders described in the diagnostic 8 description, that is manifested by the medical findings in 9 paragraph A. 10 In Listing 12.00C, entitled ‘Assessment of Severity,’ 11 it is stated that, ‘we assess functional limitations using 12 the four criteria in paragraph B of the Listings: Activities 13 of 14 persistence, or pace; and episodes of decompensation. Where 15 we use ‘marked’ as a standard for measuring the degree of 16 limitation, it means more than moderate but less than 17 extreme.” daily living; social functioning; concentration; 18 19 2. Evaluation of Medical Opinions. 20 The Ninth Circuit has repeatedly enunciated clear standards to 21 guide the Commissioner in the evaluation of the opinion of a treating 22 physician. For example, in Magallanes v. Bowen, the court held that, 23 “We afford greater weight to a treating physician’s 24 opinion because ‘he is employed to cure and has a greater 25 opportunity 26 individual.’ 27 Cir. 1987)(Sprague). 28 not, however, necessarily conclusive as to either a physical to know and observe the patient as an Sprague v. Bowen, 812 F.2d 1226, 1230 (9th The treating physician’s opinion is 10 1 condition or the ultimate issue of disability. Rodriguez v. 2 Bowen, 3 1989)(Rodriguez) 4 physician’s 5 contradicted. See id.; Cotton v. Bowen, 799 F.2d 1403, 1408 6 (9th Cir. 1986)(Cotton).” 7 876 F.2d 759, The opinion 761-62 ALJ may whether or & n. 7 disregard not that (9th the Cir. treating opinion is (881 F.2d 747, 751) 8 9 The court in Magallanes continued that, 10 “To reject the opinion of a treating physician which 11 conflicts with that of an examining physician, the ALJ must 12 ‘’make findings setting forth specific, legitimate reasons 13 for doing so that are based on substantial evidence in the 14 record.’‘ 15 1987)(Winans), quoting Sprague, 812 F.2d at 1230; see also 16 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983)(Murray) 17 (adopting this rule). 18 setting out a detailed and thorough summary of the facts and 19 conflicting clinical evidence, stating his interpretation 20 thereof, and making findings.’ 21 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. ‘The ALJ can meet this burden by Cotton, 799 F.2d at 1408.” (881 F.2d 747, 751) 22 23 This clearly articulated rule, set forth by the Circuit in its 24 Opinions in Magallanes and Cotton, has been often cited in later 25 decisions. (See, Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 26 1995): “The ALJ may reject the opinion only if she provides clear and 27 convincing reasons that are supported by the record as a whole.”; 28 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995): “Even if the 11 1 treating doctor’s opinion is contradicted by another doctor, the 2 Commissioner may not reject this opinion without providing ‘specific 3 and legitimate reasons’ supported by substantial evidence in the 4 record for so doing.” (Citation omitted)). 5 Moreover, the Ninth Circuit has established specific requirements 6 in situations where the ALJ (as in this case) rejects the opinions of 7 treating physicians in favor of the opinions of non-treating, non- 8 examining, testifying medical experts. 9 in Morgan v. Apfel, 169 F.3d 595, 602 (9th Cir. 1999): The rule is succinctly stated 10 “The opinion of a nonexamining medical advisor cannot 11 by itself constitute substantial evidence that justifies the 12 rejection 13 physician. (citations omitted) 14 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)], we determined 15 that ‘the report of [a] nontreating, nonexamining physician, 16 combined with the ALJ’s own observation of [the] claimant’s 17 demeanor at the hearing,’ did not constitute substantial 18 evidence and, therefore, did not support the Commissioner’s 19 rejection of the examining physician’s opinion that the 20 claimant was disabled. 21 Pitzer [Pitzer v. Sullivan, 908 F.2d 502 (9th Cir. 1990)], 22 we held that the nonexamining physician’s opinion ‘with 23 nothing more’ did not constitute substantial evidence. 24 of the opinion of an examining or treating In Gallant [Gallant v. Gallant, 753 F.2d at 1456. In But we have consistently upheld the Commissioner’s 25 rejection of 26 physician, 27 nontreating, 28 omitted] the based opinion in part nonexamining of on a treating the medical or examining testimony advisor. of the [citations In Magallanes [Magallanes v. Bowen, 881 F.2d 747 12 1 (9th 2 determination included, among other things, testimony from 3 the claimant that conflicted with her treating physician’s 4 opinion.” [citation omitted] 5 Cir. 1989)], evidence that supported the ALJ’s (169 F.3d at 602) 6 7 8 Also instructive is the Ninth Circuit’s discussion of this issue in Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995): 9 “Where the opinion of the claimant’s treating physician 10 is contradicted, and the opinion of a nontreating source is 11 based on independent clinical findings that differ from 12 those 13 nontreating source may itself be substantial evidence; it is 14 then solely the province of the ALJ to resolve the conflict. 15 Magallanes, 881 F.2d at 751. 16 nontreating 17 treating physician but is not based on independent clinical 18 findings, or rests on clinical findings also considered by 19 the 20 physician may be rejected only in the ALJ gives specific, 21 legitimate 22 substantial evidence in the record. Id. at 751, 755. 23 Ramirez v. Shalala, 8 F.3d 1449, 1453 (9th Cir. 1993) 24 (applying test where ALJ relied on contradictory opinion of 25 nonexamining medical advisor).” of the treating source’s treating 26 doing // 28 the (53 F.3d at 1041.) 27 for // 13 the opinion of the Where, on the other hand, a opinion physician, reasons physician, contradicts opinion so of that that the are of the treating based on See 1 ANALYSIS 2 While Plaintiff attaches great weight to the opinion of her 3 treating psychiatrist, Dr. Puglisi, the Court does not view the ALJ’s 4 depreciation of Dr. Puglisi’s opinion as unreasonable, because, in 5 fact, much of his opinion was based on subjective evidence, and his 6 reports were largely conclusory and unsupported. See Tonapetyan v. 7 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); Crane v. Shalala, 76 F.3d 8 251, 253 (9th Cir. 1996). 9 the ME at the hearing concerning Dr. Puglisi’s findings, which largely 10 detracted from their validity. The ME specifically testified that Dr. 11 Puglisi failed to provide evidence or standard descriptions to support 12 his observations and conclusions as to Plaintiff’s mental condition. 13 This 14 §404.1527(e)(2)(ii). factor is Moreover, there was extensive testimony by supported in the regulations. See 20 C.F.R. 15 In addition, while Plaintiff claims that Dr. Puglisi’s findings 16 are more consistent with the record than inconsistent, this does not 17 appear to be the case. 18 substantially disagreed with by Dr. Simonian, Dr. Tasjian, and the ME. 19 Moreover, the Court cannot disagree that the progress reports from 20 Morongo Basin, to the extent they do not seem to rely upon Plaintiff’s 21 subjective 22 assessments of disability rendered by Dr. Puglisi. As observed by the 23 ME, with the type of marked limitations assessed by Dr. Puglisi, a 24 person cannot be maintained with once-a-month visits to a mental 25 health center. (AR 56.) complaints, As noted, Dr. Puglisi’s conclusions were do not support the extreme functional 26 For the same reason that the Court upholds the ALJ’s assessment 27 of Plaintiff’s medical condition, it also finds that the ALJ properly 28 rejected the contention that Plaintiff met one of the Listings. 14 It 1 is, of course, Plaintiff’s burden to demonstrate that she meets each 2 required characteristic of a Listing. 3 137, 153 (1987); 20 4 1099 (9th Cir. 1999). Plaintiff has failed to demonstrate that she had 5 all the requisite medical criteria in the Listing. 6 §416.925(d). 7 equal any Listing. (AR 71.) See Bowen v. Yuckert, 482 U.S. C.F.R. §404.1526; Tackett v. Apfel, 180 F.3d 1094, See 20 C.F.R. The ME further testified that Plaintiff did not meet or 8 Because the Court has rejected Plaintiff’s contention that Dr. 9 Puglisi’s functional limitations should have been sustained by the 10 ALJ, her second issue must also fail. 11 that the ALJ posed a proper hypothetical to the vocational expert 12 (“VE”) which did not include those limitations assessed by Dr. 13 Puglisi. 14 by the ALJ, and this Court has found that the ALJ did not err in doing 15 so. 16 questions posed to the VE failed to include all of Plaintiff’s found 17 limitations. 18 1995). 19 20 21 That is, the Court concludes The limitations assessed by Dr. Puglisi were not sustained Consequently, it cannot be contended that the hypothetical See Andrews v. Shalala, 53 F.3d 1035, 1044 (9th Cir. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 22 23 24 DATED: February 9, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 25 26 27 28 15
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