Derik Williams v. Michael J. Astrue, No. 2:2011cv00717 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm: (see attached) For the foregoing reasons, the judgement of the Commissioner is affirmed. (jm)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 DERIK WILLIAMS, Plaintiff, 11 12 13 14 15 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. CV 11-717 FFM MEMORANDUM DECISION AND ORDER 16 Plaintiff seeks to overturn the decision of the Commissioner of the Social 17 Security Administration denying his application for Disability Insurance Benefits and 18 Supplemental Security Income benefits. The parties have consented to the jurisdiction 19 of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 20 21 22 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision to 23 determine whether the Commissioner s findings are supported by substantial evidence 24 and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 25 841, 846 (9th Cir. 1991). Substantial evidence means more than a mere scintilla but 26 less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 27 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 28 573, 575-76 (9th Cir. 1988). Substantial evidence is such relevant evidence as a 1 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 2 U.S. at 401. This Court must review the record as a whole and consider adverse as 3 well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 4 Where evidence is susceptible to more than one rational interpretation, the 5 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 6 (9th Cir. 1984). However, even if substantial evidence exists in the record to support 7 the Commissioner s decision, the decision must be reversed if the proper legal 8 standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 9 (9th Cir. 2003); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 10 11 CONTENTIONS 12 13 Plaintiff raises two issues: 1. 14 15 Whether the ALJ properly found that plaintiff s mental impairment is not severe; and 2. Whether the ALJ properly rejected an opinion of plaintiff s treating physician. 16 17 18 19 DISCUSSION 1. The proper rating of plaintiff s mental impairments. In the decision, the ALJ found that plaintiff suffered from a mental impairment, 20 but that the impairment was not severe. Plaintiff contends that the ALJ failed to 21 follow the five-step sequence set forth in the Social Security regulations for evaluating 22 the severity of plaintiff s mental impairment. The Court finds that remand is not 23 required with respect to this issue. 24 An impairment or combination of impairments can be found not severe only 25 if the evidence establishes a slight abnormality that has no more than a minimal effect 26 on [a claimant s] ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 27 1996) (citing Social Security Ruling 85-28 and Yuckert v. Bowen, 841 F.2d 303, 306 28 (9th Cir. 1988)); 20 C.F.R. §§ 404.1521(a), 416.921(a) ( An impairment or 2 1 combination of impairments is not severe if it does not significantly limit [the 2 claimant s] physical or mental ability to do basic work activities ). Where there is a 3 colorable claim1 of a mental impairment, the ALJ must evaluate the impairment by 4 following specific steps set forth in the Social Security regulations. 20 C.F.R. §§ 5 404.1520a(a), 416.920a(a). First, the ALJ must determine whether the claimant has a 6 medically determinable impairment. If the ALJ finds an impairment, he or she must 7 set forth the evidence substantiating the presence of the impairment. 20 C.F.R. §§ 8 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these 9 medical findings, the ALJ must rate the degree of functional loss resulting from the 10 impairment by considering four areas of function: (a) activities of daily living; (b) 11 social functioning; (c) concentration, persistence, or pace; and (d) episodes of 12 decompensation. 20 C.F.R. §§ 404.1520a(c)(2)-(4), 416.920a(c)(2)-(4). In evaluating 13 the first three areas, the ALJ must use a five-point scale ( [n]one, mild, moderate, 14 marked, and extreme ). Id. at §§ 404.1520a(c)(4), 416.920a(c)(4). In rating the 15 episodes of decompensation, the ALJ must use a four-point scale ( [n]one, one or two, 16 three, four or more ). Id. 17 Third, after rating the degree of functional limitation, the ALJ must determine 18 the severity of the mental impairment, based, inter alia, on the ratings given in the 19 functional areas. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, if the mental 20 impairment is found to be severe, the ALJ must determine if it meets or equals a listed 21 mental disorder. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Fifth, if the 22 impairment does not meet or equal a listed mental disorder, the ALJ must perform a 23 residual functional capacity assessment. 20 C.F.R. §§ 404.1520a(d)(3), 24 25 26 27 28 1 A claim is colorable if it is not wholly insubstantial, immaterial, or frivolous. Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir.2001) (citations omitted). By finding that plaintiff suffered from a medically determinable mental impairment (AR 14), the ALJ impliedly found that plaintiff s claim of mental impairment was colorable. 3 1 416.920a(d)(3). Finally, the ALJ s decision must incorporate the pertinent findings 2 and conclusions regarding plaintiff s mental impairment, including a specific 3 finding as to the degree of limitation in each of the functional areas described in [§§ 4 404.1520a(c)(3), 416.920a(c)(3) ]. 20 C.F.R. §§ 404.1520a(e)(2), 416.920a(e)(2). 5 The ALJ found that plaintiff had a medically determinable mental impairment. 6 (AR 14.) The ALJ proceeded to set forth her findings regarding plaintiff s limitations 7 in the four functional areas set forth in the regulations. (Id.) The ALJ then concluded 8 that, because plaintiff suffered from no more than mild limitations in the first three 9 functional areas and no episodes of decompensation, plaintiff s mental impairment is 10 not severe. (Id.) The ALJ supported her findings by reference to the medical records. 11 Thus, the ALJ properly found that plaintiff s mental impairment is not severe. 12 Plaintiff also contends that the ALJ nonetheless failed to analyze whether 13 plaintiff s non-severe mental impairment caused limitations that should have been 14 included in the residual functional capacity. Although defendant claims that the ALJ 15 did consider and reject any such additional limitations, the ALJ s decision does not 16 expressly reflect such consideration. In this regard, the ALJ noted that after finding 17 the mental impairment to be non-severe, she still was required to reflect the degree of 18 limitation the undersigned has found with respect to the non-severe impairment in 19 assessing plaintiff s residual functional capacity. (AR 14 n.1.) Nonetheless, the ALJ 20 never expressly conducted any further analysis with respect to any mental limitations 21 that might be included in the residual functional capacity. Therefore, the ALJ erred. 22 Defendant contends that any error was harmless. An ALJ s error is harmless 23 where it is inconsequential to the ultimate nondisability determination. Stout v. 24 Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2006); see also 25 Carmickle v. Commissioner, Soc. Sec. Admin., 533 F.3d 1155, 1162-63 (9th Cir. 26 2008). Harmless error may occur when the ALJ provides other record-supported 27 reasons for the determination in question; when the error occurs in a step the ALJ was 28 not required to perform; when the mistake was nonprejudicial to the claimant; or when 4 1 the error was irrelevant to the ultimate disability conclusion. Stout, 454 F.3d at 1055; 2 see also Batson v. Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 3 2004) (error in asserting that plaintiff sat while watching television harmless where 4 ALJ provided numerous other reasons supported by substantial evidence for 5 discounting plaintiff s testimony). 6 Here, the Court must conclude that the error was harmless. Plaintiff has not 7 cited, and the Court has been unable to find, anything in the record that would support 8 the inclusion of mental limitations in the residual functional capacity. Therefore, the 9 failure to expressly conduct the required analysis was irrelevant to the ultimate 10 disability conclusion. 11 2. 12 Plaintiff s Treating Physician s Opinion. In evaluating physicians opinions, the case law and regulations distinguish 13 among three types of physicians: (1) those who treat the claimant (treating 14 physicians); (2) those who examine but do not treat the claimant (examining 15 physicians); and (3) those who neither treat nor examine the claimant (non-examining 16 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other 17 grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. §§ 18 404.1502, 404.1527(d). As a general rule, more weight should be given to the opinion 19 of a treating source than to the opinions of physicians who do not treat the claimant. 20 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); see also 20 C.F.R. § 21 404.1527(d)(2). 22 The Ninth Circuit has held that an ALJ may reject a treating physician s 23 uncontradicted opinion only with clear and convincing reasons supported by 24 substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 25 1998) (quoting Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993)) (internal 26 quotation marks omitted). If the treating physician s opinion is controverted, the ALJ 27 must still provide specific and legitimate reasons, supported by substantial evidence 28 in the record, in order to reject the treating physician s opinion. Lester, 81 F.3d at 5 1 830; Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th Cir. 2001). The ALJ could 2 meet this burden by setting out a detailed and thorough summary of the facts and 3 conflicting clinical evidence, stating his interpretation thereof, and making findings. 4 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (internal quotation marks 5 omitted). 6 Here, state agency reviewing physicians and consultative examiners, as well as 7 the testifying medical expert, all contradicted the limitations contained in the three 8 page check-off form that plaintiff contends was improperly rejected. Therefore, the 9 ALJ was required to provide specific and legitimate reasons for rejecting this opinion. 10 11 12 The Court finds that the ALJ complied with this requirement. The ALJ provided the following reasons for rejecting this opinion: The undersigned has also considered an assessment submitted by 13 the claimant s attorney on April 14, 2008. The signature on this three 14 page assessment form is illegible and there is no information on the form 15 regarding the length or nature of the treating relationship, if any. As 16 such, the undersigned finds it difficult to appropriately weigh this 17 assessment. The undersigned does find, however, that the limitations set 18 forth on this form are so obviously exaggerated so as to be of little 19 probative value. Indeed, the person completing this form circled 20 responses indicating the most minimal ability to function. He indicated, 21 for example, that the claimant could not lift or carry even ten pounds 22 occasionally, could not stand, walk or sit for even two hours total during 23 an eight-hour workday, could not sit or stand for more than five minutes 24 at one time, could not walk for any amount of time, could never twist, 25 stoop, crouch, or climb, had a limited ability to reach, handle, finger, feel, 26 and push/pull, needed to avoid even moderate exposure to extreme cold 27 and heat, wetness, humidity, and respiratory irritants, and needed to avoid 28 all exposure to hazards such as machinery or heights. He also stated the 6 1 claimant needed a cane for ambulation and would be absent from work 2 more than three times per month (Exhibit 28-F). In considering this form, 3 the undersigned finds it entitled to little weight as the identify of the 4 person completing the form is not known and as the limitations assessed 5 are so restrictive as to be unbelievable. That is, there is absolutely 6 nothing in the record to indicated the claimant is unable to sit for more 7 than five minutes at one time or for two hours total during a workday. 8 Indeed, if such a limitation were true, then one would have to assume the 9 claimant spends the majority of his day lying down. There is no evidence 10 that the claimant spends his time lying down, however, nor is there any 11 evidence of muscle atrophy-a problem which occurs after even a 12 relatively short period of inactivity. Furthermore, the person who 13 completed this form provided little information to explain the basis for 14 his assessment or the facts informing this reasoning process. Finally, 15 there is nothing in the evidence of record to support the limitations set 16 forth in this form. As such, the undersigned cannot give the assessment 17 significant weight. 18 AR 18. 19 The foregoing reasons were specific and legitimate. Treating physicians 20 opinions may be rejected if they are conclusory or not supported by medical evidence. 21 Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ may 22 discredit treating physicians opinions that are conclusory, brief, and unsupported by 23 the record as a whole, or by objective medical findings); Matney v. Sullivan, 981 F.2d 24 1016, 1019 (9th Cir. 1992). See also Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 25 1996) (ALJ properly rejected doctor s opinions because they were check-off reports 26 that did not contain any explanation of the bases of their conclusions); Murray v. 27 Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for individualized 28 medical opinions over check-off reports). 7 1 Therefore, remand is not required with respect to this issue. 2 3 CONCLUSION 4 For the foregoing reasons, the judgement of the Commissioner is affirmed. 5 IT IS SO ORDERED. 6 7 DATED: October 17, 2011 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

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