Lena J Hine v. Michael J Astrue, No. 5:2007cv01681 - Document 19 (C.D. Cal. 2008)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle: IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (See document for further details.) (pcl)

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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 13 14 15 16 17 LENA J. HINE, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 07-1681 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 disability benefits. 22 judgment should be granted in favor of defendant, affirming the 23 Commissioner s decision. 24 25 I. Plaintiff seeks The court finds that BACKGROUND Plaintiff Lena J. Hine was born on March 19, 1985, and was 26 twenty-two years old years old at the time of her latest 27 administrative hearing. [Administrative Record ( AR ) 61, 424.] 28 has a high school education with special education and no past 1 She 1 relevant work experience. [AR 216.] 2 the basis of mental retardation, attention deficit disorder and 3 learning disabilities. [AR 65.] 4 II. 5 Plaintiff alleges disability on PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) on 6 October 7, 2004, alleging disability since March 19, 1985. [AR 61.] 7 After the application was denied initially and upon reconsideration, 8 plaintiff requested an administrative hearing, which was held on 9 December 7, 2005, before Administrative Law Judge ( ALJ ) Helen Hesse. 10 [AR 187.] 11 from plaintiff, medical expert Joseph Malancharuvil, third party 12 witness Elizabeth Jane Hine, and vocational expert Stephen Berry. [AR 13 188.] 14 [AR 10-14.] 15 2006, the ALJ s decision became the Commissioner s final decision. 16 [AR 3.] 17 Plaintiff appeared with counsel, and testimony was taken The ALJ denied benefits in a decision dated December 29, 2005. When the Appeals Council denied review on February 22, Plaintiff filed a complaint in the district court on March 15, 18 2006 (Case No. EDCV 06-269 CW). 19 remanded pursuant to a stipulation between the parties. 20 the parties agreed that the Commissioner would (1) obtain additional 21 evidence from the treating physicians to clarify the severity of 22 plaintiff s mental impairment; (2) obtain a consultative psychological 23 examination; (3) further consider the opinion of state agency 24 physician Dr. Williams; (4) further consider all medical source 25 opinions of record; and (5) further consider the severity of 26 plaintiff s mental impairment. 27 administrative hearing was held before ALJ Hesse. [AR 424.] 28 appeared with counsel, and testimony was taken from medical expert On October 24, 2006, the matter was Specifically, On July 23, 2007, a supplemental 2 Plaintiff 1 Craig Rath and vocational expert Stephen Berry. [AR 425.] 2 denied benefits in a decision dated October 19, 2007. [AR 207-17.] 3 The ALJ The instant complaint was lodged on December 26, 2007, and filed 4 on January 8, 2008. 5 plaintiff s Administrative Record ( AR ). 6 parties filed their Joint Stipulation ( JS ) identifying matters not 7 in dispute, issues in dispute, the positions of the parties, and the 8 relief sought by each party. 9 submission without oral argument. 10 11 On August 7, 2008, defendant filed an answer and III. On October 23, 2008, the This matter has been taken under STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s decision to deny benefits. 13 ALJ s) findings and decision should be upheld if they are free of 14 legal error and supported by substantial evidence. 15 court determines that a finding is based on legal error or is not 16 supported by substantial evidence in the record, the court may reject 17 the finding and set aside the decision to deny benefits. 18 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 19 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 20 F.3d 1157, 1162 (9th Cir. 21 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 22 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 23 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 24 The Commissioner s (or However, if the See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 25 preponderance. 26 which a reasonable person might accept as adequate to support a 27 conclusion. 28 a finding, a court must review the administrative record as a whole, Id. To determine whether substantial evidence supports 3 1 weighing both the evidence that supports and the evidence that 2 detracts from the Commissioner s conclusion. 3 can reasonably support either affirming or reversing, the reviewing 4 court may not substitute its judgment for that of the Commissioner. 5 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. 6 IV. Id. If the evidence DISCUSSION 7 A. THE FIVE-STEP EVALUATION 8 To be eligible for disability benefits a claimant must 9 demonstrate a medically determinable impairment which prevents the 10 claimant from engaging in substantial gainful activity and which is 11 expected to result in death or to last for a continuous period of at 12 least twelve months. 13 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 14 Disability claims are evaluated using a five-step test: 15 Step one: Is the claimant engaging in substantial 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. 16 17 18 19 20 21 22 23 24 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 25 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 26 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 27 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 28 4 1 not disabled at any step, there is no need to complete further 2 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 3 4 subject to the presumption that Social Security hearings are non- 5 adversarial, and to the Commissioner s affirmative duty to assist 6 claimants in fully developing the record even if they are represented 7 by counsel. 8 1288. 9 made, and the burden shifts to the Commissioner (at step five) to 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 10 prove that, considering residual functional capacity ( RFC )1, age, 11 education, and work experience, a claimant can perform other work 12 which is available in significant numbers. 13 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 14 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 15 Here, the ALJ found that plaintiff had never engaged in 16 substantial gainful activity (step one); that plaintiff had severe 17 impairments, namely organic brain syndrome not otherwise specified 18 with static encephalopathy and specific learning disabilities (step 19 two); and that plaintiff did not have an impairment or combination of 20 impairments that met or equaled a listing (step three). [AR 209.] 21 Plaintiff was found to have an RFC for a full range of work at all 22 exertional levels except that the claimant is limited to simple 23 1 24 25 26 27 28 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 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 repetitive tasks at a moderate pace in a work environment not 2 requiring hypervigilance or to be in charge of the safety operations 3 of others, with no intense interpersonal interactions or the 4 supervision of others. [AR 211.] 5 (step four). [AR 216.] 6 with plaintiff s RFC could perform work existing in significant 7 numbers, such as bagger, laundry worker II and assembler (step five). 8 [AR 216.] 9 by the Social Security Act. [AR 217.] Plaintiff had no past relevant work The vocational expert testified that a person Accordingly, plaintiff was found not disabled as defined 10 C. 11 The parties Joint Stipulation sets out the following disputed 12 issues: 13 1. ISSUES IN DISPUTE 14 15 treating physician; 2. 16 17 Whether the ALJ properly developed the record regarding plaintiff s IQ tests and mild mental retardation; 3. 18 19 Whether the ALJ properly considered the opinion of a Whether the Alj properly held that plaintiff can perform work in the national economy; and 4. 20 Whether the ALJ posed a complete hypothetical question to the vocational expert. 21 [JS 3.] 22 D. 23 In 2004, while she was a part time student at Riverside City 24 College, plaintiff was seen by Dr. Chris Bovetas. [AR 148-52.] In 25 October 2004, Dr. Bovetas wrote a note stating, This patient has ADD 26 and mild mental retardation making it necessary to take less than a 27 full time load but still be a full time student. [AR 150.] 28 latest administrative decision, the ALJ did not mention Dr. Bovetas ISSUES ONE, TWO and FOUR: RETARDATION 6 In the 1 note but found that there was substantial evidence that, based on 2 independent psychological evaluations, plaintiff was not disabled 3 based on her intellectual capacity and that she functioned in at 4 worst, the low average range. [AR 214.] 5 Plaintiff argues in Issue One that the ALJ s failure to discuss 6 or mention Dr. Bovetas opinion was reversible error. [JS 4.] 7 Issue Two, plaintiff argues that the ALJ should have developed the 8 record to obtain the IQ testing results that supported Dr. Bovetas 9 finding of mild mental retardation. [JS 10.] In In Issue Four, plaintiff 10 argues that the hypothetical questions asked to the VE improperly 11 failed to include the limitations bearing on plaintiff s mild mental 12 retardation. [JS 17.] 13 merit. 14 As discussed below, none of these issues has The ALJ did not err in failing to mention Dr. Bovetas brief note 15 because it was not significant or probative as to the issue of 16 disability. 17 1984). 18 retardation is not inconsistent with the ALJ s finding that plaintiff 19 has organic brain syndrome and learning disorders that impose non- 20 exertional limitations in her ability to work; to the extent that Dr. 21 Bovetas opinion is read as suggesting that these conditions are 22 disabling, it is not supported by the record and was refuted by three 23 rounds of psychological testing that placed plaintiff, at worst, in 24 the low average range of intellectual functioning.2 See Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. Dr. Bovetas statement that plaintiff has ADD and mild mental Id. (finding ALJ 25 26 27 28 2 Under the Commissioner s regulations, in pertinent part, one way to establish disability based on mental retardation is a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or mental impairment imposing an additional and significant workrelated limitation of function. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 7 1 entitled to ignore treating opinion of disability that was 2 controverted by substantial evidence). 3 completely unsupported by any clinical evidence or Dr. Bovetas brief 4 treatment notes. 5 the record further to determine whether any IQ testing was conducted 6 to support an opinion that plaintiff is disabled by virtue of mental 7 retardation, but there is nothing to suggest that Dr. Bovetas had such 8 testing conducted. 9 other medical sources one of which was conducted at almost the same 10 time that Dr. Bovetas gave his statement that refute any suggestion 11 that plaintiff is mentally retarded in the context of Social Security 12 disability.3 13 adequacy of the record, and there is no indication that plaintiff s 14 counsel made any effort to obtain this evidence. 15 416.912(a)&(c), 416.916, 416.1435. 16 circumstances, Issues One, Two and Four are without merit. Moreover, such an opinion is Plaintiff claims that the ALJ should have developed The record does contain IQ test results from three Moreover, plaintiff shares in the burden of ensuring the See 20 C.F.R. §§ Accordingly, under these 17 18 19 20 21 22 23 24 25 26 27 28 Section 12.05(C). In November 2004, plaintiff took a Wechsler Adult Intelligence Scale test - Third Edition ( WAIS-III ) and received a verbal IQ score of 77, a performance IQ score of 79, and a full scale IQ score of 76. [AR 144.] In August 2006, plaintiff took the WAIS-III again and received a verbal IQ score of 82, a performance IQ score of 100, and a full scale IQ score of 89. [AR 351-52.] In May 2007, plaintiff took the WAIS-III again and received a verbal IQ score of 81, a performance IQ score of 102, and a full scale IQ score of 89. [AR 394.] Moreover, the record does not indicate that plaintiff has, pursuant to the regulation, a physical or mental impairment imposing an additional and significant work-related limitation of function. 3 In addition, the ALJ discussed, in both decisions, the opinions of multiple medical sources who stated that plaintiff would not be precluded from work despite her intellectual limitations. [See AR 145 (opinion of Dr. Robin Rhodes Campbell), AR 193-94 (testimony of medical expert Joseph Malancharuvil), AR 396 (opinion of Dr. Jeannette Townsend), AR 167-69 (opinion of state agency physician Donald Williams), AR 430-34 (testimony of medical expert Craig Rath).] 8 1 E. ISSUE THREE: WORK IN THE NATIONAL ECONOMY 2 As noted above, the ALJ found that plaintiff had an RFC for work 3 at all exertional levels except that the claimant is limited to 4 simple repetitive tasks at a moderate pace in a work environment not 5 requiring hypervigilance or to be in charge of the safety operations 6 of others, with no intense interpersonal interactions or the 7 supervision of others. 8 containing these limitations to the VE, who testified that plaintiff 9 could perform work existing in significant numbers in the national 10 economy, such as bagger, laundry worker II and assembler. [AR 436.] 11 Plaintiff contends that this finding is not supported by substantial 12 evidence because these jobs, as described in the Dictionary of 13 Occupational Titles ( DOT ), are inconsistent with plaintiff s non- 14 exertional limitations. [JS 13-14.] 15 that each of these jobs requires a Reasoning Level of 2, which is 16 described as Apply commonsense understanding to carry out detailed 17 but uninvolved written or oral instructions. 18 involving a few concrete variables in or from standardized 19 situations ; this conflicts with plaintiff s restriction to simple, 20 repetitive work, as well as her moderate limitation in her ability to 21 understand, remember and carry out detailed instructions.4 22 The ALJ posed a hypothetical question Specifically, plaintiff contends Deal with problems However, several courts have found Level 2 reasoning to be 23 consistent with the ability to do simple, repetitive work tasks. See 24 Meissl v. Barnhart, 403 F. Supp. 2d 981, 983-85 (C.D. Cal. 2005) 25 (finding limitation to simple and repetitive tasks to be closer to 26 Level 2 reasoning); Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th 27 4 28 Dr. Williams opined that plaintiff had this limitation after reviewing her medical records. [AR 214.] 9 1 Cir. 2005)(same); Flaherty v. Halter, 182 F. Supp. 2d 824, 850-51 (D. 2 Minn. 2001)(finding no conflict between Level 2 reasoning and work 3 involving simple, routine, repetitive, concrete, and tangible tasks); 4 see also Riggs v. Astrue, 2008 WL 1927337 at *16 (W.D. Wash. 2008) 5 (finding limitation to understanding, remembering and carrying out 6 simple instructions and to making simple decisions to be consistent 7 with the level 2 reasoning requirement of the jobs found at step 8 five); Salazar v. Astrue, 2008 WL 4370056 at *7 (C.D. Cal. 2008) 9 (rejecting argument that limitation to simple, repetitive tasks is 10 inconsistent with level 2 reasoning ability); Tudino v. Barnhart, 2008 11 WL 4161443 at *10 (S.D. Cal. 2008)( Level-two reasoning appears to be 12 the breaking point for those individuals limited to performing only 13 simple repetitive tasks. ). 14 case, that a claimant can perform simple tasks with some element of 15 repetitiveness to them, then Level 1 on the DOT scale requires 16 slightly less than this level of reasoning.5 Meissl, 403 F. Supp. 2d 17 at 984. Moreover, although Level 2 reasoning references an ability to 18 follow detailed instructions, it qualifies and downplay[s] the 19 rigorousness of those instructions by labeling them as uninvolved. 20 Id.; Flaherty, 182 F. Supp. at 850. 21 term detailed in describing Level 2 reasoning does not render it 22 inconsistent with a limitation to simple, repetitive tasks. Where there is a finding, as in this Accordingly, the DOT s use of the 23 24 25 5 26 27 28 Level 1 reasoning requires that the worker be able to [a]pply commonsense understanding to carry out simple one- or two- step instructions in standardized situations with occasional or no variables. It is the lowest rung on the developmental scale and requires only the slightest bit of rote reasoning. Meissl, 403 F. Supp. 2d at 984. 10 V. 1 ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is AFFIRMED. 4 2. This action is DISMISSED WITH PREJUDICE. 5 3. The Clerk of the Court shall serve this Decision and Order 6 and the Judgment herein on all parties or counsel. 7 8 DATED: November 3, 2008 9 10 ____________/S/__________________ CARLA M. WOEHRLE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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