Dorothy Dosey v. Michael J Astrue, No. 5:2007cv00890 - Document 22 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that, The decision of the Commissioner is AFFIRMED. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 DOROTHY DOSEY, 13 ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. 14 15 MICHAEL J. ASTRUE, Commissioner, Social Security Administration, 16 Defendant. 17 No. EDCV 07-890-CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned magistrate judge. 21 review of the denial of supplemental security income ( SSI ). 22 court finds that judgment should be granted in favor of defendant, 23 affirming the Commissioner s decision. 24 25 I. Plaintiff seeks The BACKGROUND Plaintiff Dorothy Dosey was born on May 1, 1963, and was 41 years 26 old at the time her application for benefits was filed. 27 [Administrative Record ( AR ) 22.] She has a limited high school 28 education, is able to communicate in English, and has no past relevant 1 1 work. [Id.] 2 an enlarged heart, high blood pressure, and skin illness. [AR 80.] Plaintiff alleges disability on the basis of depression, 3 4 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was filed on July 18, 2007. On November 5 26, 2007, Defendant filed an answer and Plaintiff s Administrative 6 Record ( AR ). 7 Stipulation ( JS ) identifying matters not in dispute, issues in 8 dispute, the positions of the parties, and the relief sought by each 9 party. On March 20, 2008, the parties filed their Joint On July 14, 2009, this matter was randomly re-assigned to the 10 calendar of the undersigned for all further proceedings. 11 has been taken under submission without oral argument. 12 13 III. This matter PRIOR ADMINISTRATIVE PROCEEDINGS On November 23, 2004, Plaintiff applied for SSI under Title XVI 14 of the Social Security Act alleging disability since October 26, 2003. 15 [AR 59.] 16 reconsideration, Plaintiff requested an administrative hearing, which 17 was held on September 27, 2006, before Administrative Law Judge 18 ( ALJ ) Mason D. Harrell Jr. [AR 333-65.] 19 counsel and gave testimony. [AR 336-54.] 20 decision issued November 6, 2006. 21 Council denied review on June 18, 2007, the ALJ s decision became the 22 Commissioner s final decision. [AR 4-6.] 23 24 After the application was denied initially and on IV. Plaintiff appeared with The ALJ denied benefits in a [AR 11-23.] When the Appeals STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. 21 To be eligible for benefits a claimant must demonstrate a 22 medically determinable impairment which prevents the claimant from 23 engaging in substantial gainful activity and which is expected to 24 result in death or to last for a continuous period of at least twelve 25 months. 26 U.S.C. § 423(d)(1)(A). 27 28 THE FIVE-STEP EVALUATION Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 721; 42 Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial 3 1 gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 416.920. 14 at any step, there is no need to complete further steps. 15 F.3d 1098; 20 C.F.R. § 404.1520. 16 If a claimant is found disabled or not disabled Tackett, 180 Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non- 18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. 21 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 24 25 26 27 28 1 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since October 26, 2003, the alleged onset date (step 7 one); that Plaintiff had the severe impairments of depression with 8 anxiety, obesity, upper respiratory infections, hypertension, 9 hypothyroidism, nicotine addiction, and abdominal hernia (step two); 10 and that Plaintiff did not have an impairment or combination of 11 impairments that met or equaled a listing (step three). [AR 13.] 12 The ALJ determined that Plaintiff had the residual functional 13 capacity ( RFC ) to lift and carry 20 pounds occasionally and 10 14 pounds frequently, that out of an 8-hour workday plaintiff remains 15 able to stand, walk and sit for 6 hours each, is limited to working in 16 an environment with no more pollutants than in an air-conditioned 17 environment, and that she is precluded from working in a noisy 18 environment. 19 repetitive tasks that are object-oriented and do not require 20 hypervigilance and only impersonal interactions. 21 found plaintiff is precluded from working in a public environment, 22 that she would be distracted for only a few seconds occasionally 23 throughout the workday, and that she can read and/or write very simple 24 English words. [AR 13.] Plaintiff had no past relevant work (step 25 four). [AR 22.] He found plaintiff is limited, furthermore, to simple, Finally, the ALJ 26 27 28 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 The vocational expert ( VE ) testified that a person with 2 Plaintiff s RFC could perform other work that exists in significant 3 numbers in the national economy, such as bench assembler, toy 4 assembler, and inspector/hand packager (step five). [AR 22.] 5 Accordingly, Plaintiff was found not disabled as defined by the 6 Social Security Act. [AR 23.] 7 C. 8 In the joint stipulation, the parties indicate that in dispute is 9 10 ISSUES IN DISPUTE whether the ALJ: 1. 11 Accepted jobs that are inconsistent with the Dictionary of Occupational Titles; 12 2. Properly considered the treating psychologist s opinion; 13 3. Posed a complete hypothetical to the VE; and 14 4. Properly developed the record. 15 [JS 2-3.] 16 D. 17 In the first claim for relief, Plaintiff contends the decision is 18 in error because the three jobs proposed by the VE are not appropriate 19 for plaintiff given that the RFC precludes her from working in a 20 noisy environment. [JS 3-4, 6-7.] No physician has opined that 21 Plaintiff should avoid excessive noise, though Plaintiff complained to 22 a physician that she had problems with noise and she testified that 23 she no longer goes to Wal-Mart because, among other things, the noise 24 gets her. [AR 314, 344-45.] 25 ISSUE ONE: DICTIONARY OF OCCUPATIONAL TITLES The VE testified that a person with Plaintiff s RFC remains able 26 to perform a range of jobs including bench assembler (DICOT 706.684- 27 042, 1991 WL 679055), toy assembler (DICOT 731.687-034, 1991 WL 28 679819), and inspector hand packager (DICOT 559.687-074, 1991 WL 6 1 2 683797). [AR 363.] Plaintiff is correct that the inspector hand packager position, 3 which requires an employee to work in a loud noise environment, 4 would exceed her RFC. 5 AR 13. 6 exposure only to a moderate noise level and, consequently, do not 7 exceed Plaintiff s RFC. Compare DICOT 706.684-042, 1991 WL 679055, and 8 DICOT 731.687-034, 1991 WL 679819, with AR 13. Compare DICOT 559.687-074, 1991 WL 683797 with However, the bench and toy assembler positions both require 9 At step five of the sequential evaluation, the burden shifts to 10 the Commissioner to show that plaintiff can perform alternative work 11 that exists in "significant numbers" in the economy. See Burkhart v. 12 Bowen, 857 F.2d 1335, 1340 (9th Cir. 1988) (citing Hoffman v. Heckler, 13 785 F.2d 1423, 1425 (9th Cir. 1986)). The existence of more than 1,000 14 jobs in the region has been considered to be "significant." 15 Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir.1999)(between 1,000 and 16 1,500 jobs in the regional economy constitutes a significant number 17 for purposes of the meaning of the Social Security Act); Barker v. 18 Sec y of Health and Human Servs., 882 F.2d 1474, 1479 (9th Cir.1989) 19 (1,266 jobs in regional economy constitutes significant numbers). 20 Here, the VE testified that 3,000 bench assembler positions exist in 21 the regional economy and 35,000 in the national economy, and that 22 3,000 toy assembler positions exist in the regional economy and 20,000 23 in the national economy. [AR 361.] 24 25 See Accordingly, any error here is harmless, and this claim provides no grounds to reverse the ALJ s decision. 26 E. 27 In the second and third claims for relief, Plaintiff asserts that 28 ISSUES TWO AND THREE: PSYCHOLOGIST AND VE HYPOTHETICAL the ALJ erred because he did not indicate whether he accepted or 7 1 rejected mental limitations referred to in the report of one-time 2 treating psychologist Benjamin Barnes, Ph.D., and because he did not 3 include those limitations in the VE hypothetical. [JS 7-11.] The 4 limitations Plaintiff contends should have been included involve 5 Plaintiff s concentration, attention and judgment, and Dr. Barnes 6 finding that plaintiff has a Global Assessment of Functioning ( GAF ) 7 score of 45. 8 9 The record belies these contentions. First, to the extent Plaintiff claims the ALJ improperly failed to include limitations Dr. Barnes found in Plaintiff s concentration, 10 attention, and judgment, the ALJ did not reject and, indeed, 11 effectively adopted these limitations within the RFC. 12 assessment for "simple, routine, entry-level work" with further 13 limitations to object-oriented work that does not require 14 hypervigilance [AR 13], adequately encompasses these types of 15 limitations. 16 Cir. 2008) (the ALJ is permitted to paraphrase restrictions related to 17 concentration, persistence and pace so long as the ALJ s assessment is 18 consistent with the restrictions identified in the medical testimony). 19 To the extent Plaintiff claims the ALJ improperly failed to 20 assess and include in the VE hypothetical Dr. Barnes assessment of a 21 GAF score of 45 [see AR 327], Plaintiff misapprehends the meaning of 22 the GAF assessment. 23 it is "a rough estimate of an individual's psychological, social, and 24 occupational functioning used to reflect the individual's need for 25 treatment. 26 20 (4th ed. 1994 (DSM-IV)). The GAF score does not, however, correlate 27 directly with functional impairments. 28 Sec. Admin, 169 F.3d 595, 598 n.1 (9th Cir. 1999). The RFC See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th The GAF scale is a tool for clinician evaluation; Diagnostic and Statistical Manual of Mental Disorders p. 8 See Morgan v. Comm r of Soc. Indeed, as the ALJ 1 specifically noted, though Plaintiff s GAF score suggested some 2 limitations in her functioning, it does not speak directly to her 3 work capacity over a consecutive 12 months. [AR 18.] 4 In any event, the ALJ specifically evaluated and declined to 5 accept Dr. Barnes overall assessment of Plaintiff s mental 6 functioning, including his GAF assessment, on multiple bases that are 7 wholly supported by the medical record. 8 that at the time of Dr. Barnes examination of Plaintiff she was 9 attempting to stop smoking, and it is reasonable that [she] would As an example, the ALJ noted 10 have some symptoms of depression and anxiety. [AR 18.] Furthermore, 11 as the ALJ noted, a mental status examination conducted only a few 12 days after Dr. Barnes evaluation found that plaintiff s perceptual 13 processes, thought processes, and thought content were within normal 14 limits, her insight and judgment were fair, and her memory was within 15 normal limits. [See AR 18, 318.] In February 2006 a progress note 16 indicated Plaintiff s depression was stable. [AR 274.] In June 2006 17 Plaintiff scored normal on a mini-mental state examination. [AR 316.] 18 Plaintiff s treatment regimen was not aggressive, and consisted 19 primarily of medication maintenance. 20 [AR 314.] While the opinion of a treating physician is generally given 21 great weight, Lester, 81 F.3d at 830, the ALJ has the ultimate 22 authority to gauge the relative weight of the medical evidence. 23 ALJ may to decline to give controlling weight to the opinion of a 24 treating physician provided that he or she sets out a detailed and 25 thorough summary of the facts and conflicting clinical evidence, 26 states his interpretation thereof, and makes findings. 27 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 28 standard here. The ALJ summarized Dr. Barnes findings in detail, 9 The Magallenes v. The ALJ amply met that 1 contrasted those findings with those made by other physicians of 2 record, and ultimately concluded that the opinions of the consultative 3 examiner and state agency review psychiatrists were more consistent 4 with the weight of the medical evidence and did not support a finding 5 that Plaintiff was mentally impaired to a greater extent than is 6 delineated in the RFC. [See AR 17-19.] 7 This is legally sufficient. In any event, the ALJ found that Plaintiff s mental symptoms may 8 be controlled by medication [AR 21], and substantial evidence of 9 record supports this finding [see, e.g., AR 213, 274, 313, 314]. A 10 mental impairment that may be so controlled may not be considered to 11 be disabling. 12 1982). E.g., Sample v. Schweiker, 694 F.2d 639, 643 (9th Cir. 13 Accordingly, these claims must be denied. 14 F. 15 In her final claim, Plaintiff asserts that the ALJ should have ISSUE FOUR: DUTY TO DEVELOP THE RECORD 16 further developed the record to clarify the September 2006 opinion of 17 treating physician Kari Enge, M.D. that Plaintiff was unable to work 18 at this time because Plaintiff was easily overwhelmed, confused and 19 emotional, and that it would jeopardize her mental stability if she 20 were to attempt to work. [AR 331.] 21 It is a plaintiff, however, who bears the burden of proving that 22 she is disabled. Meanel v. Apfel, 172 F.3d at 1113. An ALJ is 23 required to recontact a doctor or otherwise undertake to develop the 24 record more fully only if the medical evidence is ambiguous or 25 insufficient for the ALJ to make a disability determination. 20 C.F.R. 26 §§ 404.1512(e), 416.912(e); Bayliss v. Barnhart, 427 F.3d 1211, 1217 27 (9th Cir. 2005). With abundant support in the record and employing 28 proper legal standards, the ALJ here found that Dr. Enge s ultimate 10 1 opinion was conclusory, and was unsupported by the record as a whole 2 and by Dr. Enge s own treatment of Plaintiff, not that her opinion was 3 ambiguous or that the record was insufficient to permit him to 4 evaluate her opinion. [AR 19.] 5 substantial record evidence. Dr. Enge s opinion did not, for example, 6 refer to specific clinical findings that would support her opinion 7 that Plaintiff was unable to work. See, e.g., Bunnell v. Sullivan, 8 947 F.2d 341, 348 (9th Cir. 1991). Her treatment notes showed that 9 Plaintiff s cognitive functioning was normal, that aggressive 10 treatment was not necessary, and that Dr. Enge s treatment of 11 Plaintiff consisted essentially of medication management. [AR 19, 12 314.] Accordingly, the ALJ s evaluation of Dr. Enge s records is 13 legally sufficient. 14 Cir.2002) ( The ALJ need not accept the opinion of any physician, 15 including a treating physician, if that opinion is brief, conclusory, 16 and inadequately supported by clinical findings. ). 17 This finding is supported by See Thomas v. Barnhart, 278 F.3d 947, 957 (9th This claim must be denied. 18 V. ORDERS 19 Accordingly, IT IS ORDERED that: 20 1. The decision of the Commissioner is AFFIRMED. 21 2. This action is DISMISSED WITH PREJUDICE. 22 3. The Clerk of the Court shall serve this Decision and Order 23 and the Judgment herein on all parties or counsel. 24 25 26 27 DATED: May 10, 2010 ___________/S/___________________ CARLA M. WOEHRLE United States Magistrate Judge 28 11

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