Humberto Salguero v. Michael J. Astrue, No. 2:2011cv00290 - Document 30 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (See document for specifics) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HUMBERTO SALGUERO, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. CV 11-0290-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On January 14, 2011, plaintiff Humberto Salguero filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of Disability Insurance 23 Benefits ( DIB ) and Supplemental Security Income ( SSI ). Both plaintiff and 24 defendant have consented to proceed for all purposes before the assigned Magistrate 25 Judge pursuant to 28 U.S.C. § 636(c). The parties briefing is now complete, and 26 the court deems the matter suitable for adjudication without oral argument. A single issue is presented for decision here: whether the Administrative Law 27 28 Judge ( ALJ ) properly considered the evidence of a medically determinable severe 1 mental impairment. Pl. s Br. at 4-10; Def. s Mem. at 3-10; Reply at 3-5. 2 Having carefully studied, inter alia, the parties written submissions and the 3 Administrative Record ( AR ), the court concludes that, as detailed herein, there is 4 substantial evidence in the record, taken as whole, to support the ALJ s decision. 5 First, the ALJ properly determined that plaintiff does not suffer from a severe 6 mental impairment. And second, the ALJ provided reasons germane to plaintiff s 7 social worker for rejecting the social worker s opinion regarding plaintiff s mental 8 impairment, as such opinion was not from an acceptable medical source and is 9 inconsistent with the objective medical record. Therefore, the court affirms the 10 Commissioner s decision denying benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was fifty-seven years old on the date of his September 17, 2008 14 administrative hearing, has a fourth-grade education. See AR at 43, 116, 152. His 15 past relevant work includes employment as a janitor, painter, parking lot attendant, 16 carpenter s helper, and warehouse worker. Id. at 57, 130-36. 17 Plaintiff filed applications for DIB and SSI, alleging that he has been disabled 18 since January 1, 2002 due to memory loss, depression, blurred vision, hypertension, 19 and high cholesterol. See AR at 28, 65, 116-17, 117-18, 147. Plaintiff s 20 applications were denied initially and upon reconsideration, after which he filed a 21 request for a hearing. Id. at 61, 62, 63, 64, 65-68, 70-74, 76, 77-82, 83-88, 91. 22 On September 17, 2008, plaintiff, represented by counsel, appeared and 23 testified at a hearing before the ALJ with the assistance of a Spanish interpreter. 24 AR at 44-57. The ALJ also heard testimony from Sandra Schneider, a vocational 25 expert ( VE ). Id. at 57-59. On December 9, 2008, the ALJ denied plaintiff s 26 request for benefits. Id. at 28-40. 27 Applying the well-known five-step sequential evaluation process, the ALJ 28 found, at step one, that plaintiff has not engaged in substantial gainful activity since 2 1 his alleged disability onset date. AR at 31. 2 At step two, the ALJ found that plaintiff suffers from hypertension, heart 3 disease, mental depression and a history of alcoholism. The ALJ further found, 4 however, that only plaintiff s impairments of hypertension and heart disease are 5 severe impairments. AR at 31. 6 At step three, the ALJ determined the evidence does not demonstrate that 7 plaintiff s impairments, either individually or in combination, meet or medically 8 equal the severity of any listing set forth in 20 C.F.R. Part 404, Subpart P, Appendix 9 1. AR at 37. The ALJ then assessed plaintiff s residual functional capacity ( RFC )1/ and 10 11 determined that he can perform the full range of medium work. AR at 37. 12 The ALJ found, at step four, that plaintiff is capable of performing his past 13 relevant work as a janitor, painter, parking lot attendant, and warehouse worker. 14 AR at 39. Thus, the ALJ concluded that plaintiff was not suffering from a disability 15 as defined by the Social Security Act. Id. at 29, 40. 16 Plaintiff filed a timely request for review of the ALJ s decision, which was 17 denied by the Appeals Council. AR at 1-3, 16. The ALJ s decision stands as the 18 final decision of the Commissioner. 19 III. 20 STANDARD OF REVIEW 21 This court is empowered to review decisions by the Commissioner to deny 22 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 23 24 1/ Residual functional capacity is what a claimant can still do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 26 n.5 (9th Cir. 1989). Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s 27 residual functional capacity. Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 28 2007). 3 1 Administration must be upheld if they are free of legal error and supported by 2 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 3 But if the court determines that the ALJ s findings are based on legal error or are 4 not supported by substantial evidence in the record, the court may reject the findings 5 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 6 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 7 Substantial evidence is more than a mere scintilla, but less than a 8 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 9 evidence which a reasonable person might accept as adequate to support a 10 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 11 F.3d at 459. To determine whether substantial evidence supports the ALJ s finding, 12 the reviewing court must review the administrative record as a whole, weighing 13 both the evidence that supports and the evidence that detracts from the ALJ s 14 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 15 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 16 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 17 evidence can reasonably support either affirming or reversing the ALJ s decision, 18 the reviewing court may not substitute its judgment for that of the ALJ. Id. 19 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 20 IV. 21 DISCUSSION 22 Plaintiff contends the ALJ erred in concluding that he does not suffer from a 23 severe mental impairment. See Pl. s Br. at 5. Plaintiff maintains that licensed 24 clinical social worker Soccoro Santiago diagnosed plaintiff with schizoaffective 25 disorder, personality disorder not otherwise specified, and a Global Assessment of 26 27 28 4 1 Functioning ( GAF ) rating of 32.2/ Id. at 5, 7. Plaintiff therefore asserts that the 2 ALJ in finding plaintiff does not suffer from a severe mental impairment erred 3 in failing to provide good reasons for rejecting Santiago s opinion. Id. at 9. 4 The threshold inquiry at step two is whether or not a claimant is suffering 5 from a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). At 6 step two of the five-step sequential inquiry, the Commissioner determines whether 7 the claimant has a medically severe impairment or combination of impairments. 8 Smolen v. Chater, 80 F.3d 1273, 1289-90 (9th Cir. 1996) (citation omitted). 9 Important here, at the step two inquiry, is the requirement that the ALJ must 10 consider the combined effect of all of the claimant s impairments on her ability to 11 function, without regard to whether each alone was sufficiently severe. Id. at 1290 12 (citations omitted). An impairment or combination of impairments can be found 13 not severe only if the evidence establishes a slight abnormality that has no more 14 than a minimal effect on an individual[ ]s ability to work. 3/ Id. (citations omitted). 15 [A]n ALJ may find that a claimant lacks a medically severe impairment or 16 combination of impairments only when his conclusion is clearly established by 17 medical evidence. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting 18 19 20 2/ A GAF rating of 31-40 indicates [s]ome impairment in reality testing or 21 communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major 22 impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is 23 unable to work; child frequently beats up younger children, is defiant at home, and 24 is failing at school). Am. Psychiatric Ass n, Diagnostic and Statistical Manual of 25 Mental Disorders 34 (4th Ed. 2000) (emphasis omitted). 3/ Basic work activities are defined as including such capabilities as use of judgment; responding appropriately to supervision, co-workers and usual work 27 situations; and dealing with changes in a routine work setting. Edlund v. 28 Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001) (internal citations omitted). 26 5 1 Social Security Ruling ( SSR ) 85-28,4/ 1985 WL 56856, at *3). 2 Having carefully reviewed the record and the parties written submissions, the 3 court is persuaded that the ALJ properly discounted the opinion of Santiago and 4 found plaintiff does not suffer from a severe mental impairment. A licensed clinical 5 social worker is not an acceptable medical source for establishing a medically 6 determinable impairment. See 20 C.F.R. §§ 404.1513(a), 416.913(a); Turner v. 7 Comm r, 613 F.3d 1217, 1223-24 (9th Cir. 2010) (social workers are not considered 8 acceptable medical sources under the regulations, but instead are treated as other 9 sources). Because licensed clinical social workers are not acceptable medical 10 sources, their opinions are not entitled to the same standard of review afforded 11 physicians; instead, the opinions of licensed clinical social workers are reviewed 12 under the standard afforded lay witnesses. See Turner, 613 F.3d at 1224. Thus, if 13 an ALJ wishes to discount such opinions, the ALJ must give reasons that are 14 germane to each witness for doing so. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 15 1993). 16 Here, the ALJ did, in fact, provide reasons germane to Santiago for rejecting 17 Santiago s opinion. First, the ALJ correctly found that Santiago is not an 18 acceptable source of medical evidence, and thus properly gave Santiago s opinion 19 less weight than other qualifying medical source opinions. AR at 36. 20 Second, the ALJ properly discounted Santiago s opinion as being not 21 consistent with the records of treatment. AR at 36; Cf. Batson v. Comm r, 359 22 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may discredit treating physician s opinions 23 24 25 26 27 28 4/ The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 6 1 that are conclusory, brief, and unsupported by the record as a whole, or by objective 2 medical findings); Burkhart v. Bowen, 856 F.2d 1335, 1339-40 (9th Cir. 1988) (ALJ 3 properly rejected treating physician s opinion which was unsupported by medical 4 findings, personal observations, or test reports). The objective findings in the 5 record reflect only slight mental abnormalities. For instance, aside from noting 6 occasional symptoms of depression due mostly to financial and familial problems, 7 Santiago s own progress notes indicated that plaintiff presented no significant 8 mental impairments. See AR at 263 (February 5, 2007 progress note indicated 9 plaintiff appeared clean, well groomed, somewhat upbeat and cheerful; plaintiff 10 reported he was working part time distributing flyers; aside from losing contact with 11 his daughter and granddaughter, plaintiff presented no pressing issues), 264 12 (December 26, 2006 progress note indicated plaintiff looked clean, well groomed, 13 and sad; plaintiff reported that he was unable to secure the job he wanted; plaintiff 14 also spoke of his daughter and granddaughter; no other pressing issues), 265 15 (progress note indicated plaintiff reported he will continue looking for work, even if 16 that requires him to move out of the area), 266 (November 3, 2006 note indicated 17 plaintiff was clean, casually dressed, and less depressed than in past sessions; note 18 also indicated plaintiff was very disappointed with his job as a dental hygienist 19 because he was unable to get clients), 271 (March 1, 2006 progress note indicated 20 plaintiff appeared clean, casually dressed, and reported no pressing issues; Santiago 21 also noted that plaintiff did not present any suicidal or depressive thoughts), 280 (in 22 an October 28, 2005 Adult Initial Assessment, Santiago reported: that plaintiff was 23 hearing Voices [that] put him down ; that plaintiff blames others for his problems; 24 that plaintiff Cries often; [and] Feels sorry for himself ; but that plaintiff denies 25 any delusions. Santiago stated plaintiff did not require medication and that plaintiff 26 [m]ay benefit from ongoing supportive therapy. ). 27 Furthermore, based upon a complete psychiatric evaluation, consultative 28 examining psychiatrist Ernest A. Bagner III, M.D. found: that plaintiff s thought 7 1 processes are tight and there is no flight of thought, looseness of association, 2 thought blocking, or distractibility; that plaintiff is alert and oriented to person and 3 place; that plaintiff s insight and judgment are fair; and that there was no evidence 4 of paranoid or grandiose delusions during the interview. AR at 294; see 5 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (examining physician s 6 opinion may constitute substantial evidence if the nontreating physician relies on 7 independent clinical findings that differ from the findings of the treating physician 8 (internal quotation marks and citation omitted)). 9 Dr. Bagner ultimately diagnosed plaintiff with, inter alia, depressive disorder 10 not otherwise specified, and a GAF rating of 72. AR at 294. Dr. Bagner therefore 11 opined that plaintiff: would have no limitations interacting with supervisors, peers 12 or the public ; would have zero to mild limitations maintaining concentration and 13 attention and completing simple and complex tasks ; would have mild limitations 14 completing a normal workweek without interruption ; and would have mild to 15 moderate limitations handling normal stresses at work. Id. at 295. Dr. Bagner 16 stated that if plaintiff receives psychiatric treatment, he should be significantly 17 better in less than six months. AR at 295. Based upon this statement, plaintiff 18 argues that because Dr. Bagner expresses his opinion of limitations for [plaintiff] 19 in the conditional progressive verb tense, the obvious condition to the expression 20 is the presence of medical improvement that Dr. Bagner just cited, better in less 21 than six months. Reply at 3-4. Plaintiff therefore argues that Dr. Bagner did not 22 address [plaintiff s] then current function, but what Dr. Bagner thought plaintiff 23 should be able to do in the future if the expectation of improvement 24 materialized. Id. at 4. The court disagrees. 25 Plaintiff appears to ignore Dr. Bagner s diagnosis of plaintiff s Current 26 global assessment of functioning rating of 72. AR at 294. A GAF rating of 71-80 27 indicates that [i]f symptoms are present , they are transient and expectable 28 reactions to psychosocial stressors (e.g., difficulty concentrating after family 8 1 argument); no more than slight impairment in social, occupational, or school 2 functioning (e.g., temporarily falling behind in schoolwork). Am. Psychiatric 3 Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Ed. 2000) 4 (emphasis omitted). It follows that Dr. Bagner s opinion regarding plaintiff s 5 limitations or lack thereof which is consistent with his GAF rating finding was 6 not a mere prognosis, but was his then current opinion that plaintiff: has no 7 limitations interacting with supervisors, peers or the public; has zero to mild 8 limitations maintaining concentration and attention and completing simple and 9 complex tasks; has mild limitations completing a normal workweek without 10 interruption; and has mild to moderate limitations handling normal stresses at work. 11 See AR at 295. 12 Like Dr. Bagner, non-examining psychiatric consultant Paul Balson, M.D. 13 diagnosed plaintiff with depressive disorder but found no objective evidence of 14 severe/extreme purely mental functional impairment within any [activities of daily 15 living] domain or workplace domain. AR at 306; see Andrews v. Shalala, 53 F.3d 16 1035, 1042 (9th Cir. 1995) (non-examining physician s opinion may constitute 17 substantial evidence when it is supported by other evidence in the record and [is] 18 consistent with it ). Specifically, Dr. Balson determined that plaintiff: has no 19 restrictions of activities of daily living; mild difficulties in maintaining social 20 functioning; no difficulties in maintaining concentration, persistence, or pace; and 21 no repeated episodes of decompensation, each of extended duration. AR at 304. 22 Accordingly, the ALJ properly discounted Santiago s opinion and reasonably 23 found that plaintiff does not suffer from a severe mental impairment because any 24 such mental impairment has no more than a minimal effect on plaintiff s ability to 25 work. See Smolen, 80 F.3d at 1290. 26 After the ALJ rendered his decision, plaintiff provided the Appeals Council 27 with a further Mental Work Restriction Questionnaire (AR at 471-73) and an RFC 28 Questionnaire (id. at 475-76), both dated March 3, 2009 and signed by Santiago for 9 1 Gustavo Vintas, M.D., Staff Psychiatrist, as well as additional medical records (id. 2 at 422-70). In the Mental Work Restriction Questionnaire, Dr. Vintas opined that 3 plaintiff is chronically depressed with severe impairments and poor prognosis.5/ Id. 4 at 471-73. The Appeals Council found the additional evidence submitted does not 5 provide a basis for changing the Administrative Law Judge s decision as it 6 contains treatment notes consistent with evidence previously considered and 7 [t]he reports contain no mental status testing or other significant objective findings 8 to further reduce [plaintiff s] ability to perform work related activity. AR at 2. 9 This court finds no error in the Appeals Council s findings. 10 Plaintiff suggests that, given Dr. Vintas s opinion, the ALJ erred in not 11 treating Santiago s opinion as that of a treating physician. See Pl. s Br. at 7-9. But 12 particularly since the ALJ did not have the benefit of the questionnaires submitted 13 after the ALJ rendered his decision, the ALJ did not err in finding Santiago is not an 14 acceptable source of medical evidence. And in any event, the ALJ s rejection of 15 Santiago s opinion as inconsistent with the treatment records is a proper basis for 16 rejecting the opinion of a treating physician as well. See Batson, 359 F.3d at 1195; 17 Burkhart, 856 F.2d at 1339-40. The additional evidence plaintiff submitted to the 18 Appeals Council does not undercut the ALJ s opinion. 19 20 21 22 23 24 25 5/ It is somewhat unclear from the record whether Dr. Vintas was in fact the 26 treating physician who formed this opinion, or whether plaintiff was being treated by Santiago under Dr. Vintas s supervision, with Santiago having formed the 27 opinion. See, e.g., AR at 14. But for purposes of its decision, the court assumes 28 that Dr. Vintas was the treating physician who formed this opinion. 10 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 4 the decision of the Commissioner denying benefits, and dismissing this action with 5 prejudice. 6 7 Dated: January 9, 2012 8 ____________________________________ 9 HON. SHERI PYM UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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