Ronald King v. Michael J Astrue, No. 5:2008cv00209 - Document 19 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the Administrative Law Judge will be affirmed. The Complaint will be dismissed with prejudice. (esa)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 RONALD KING, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-00209-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 ). 27 28 Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 1 Plaintiff raises the following issues:1 2 1. 3 4 Whether the Administrative Law Judge ( ALJ ) properly considered the treating physician s opinion; 2. 5 Whether the ALJ properly rated Plaintiff s mental impairment; 6 3. Whether the ALJ properly developed the record; and 7 4. Whether the ALJ posed a complete hypothetical question to 8 9 the vocational expert ( VE ). This Memorandum Opinion will constitute the Court s findings of 10 fact and conclusions of law. After reviewing the matter, the Court 11 concludes that the decision of the Commissioner must be affirmed. 12 13 I 14 THERE IS NO ERROR IN THE RECORD CONCERNING 15 THE ISSUE OF MENTAL IMPAIRMENT 16 In his first issue, Plaintiff asserts that his treating 17 physician, Dr. Boutros, noted the word depression in an Adult 18 Progress Note dated November 13, 2006. (AR 221.) 19 that the ALJ failed to discuss this notation. Plaintiff complains 20 In his second issue, Plaintiff asserts that the ALJ erred by 21 failing to discuss Plaintiff s assertion in a Disability Report - 22 Appeal that, I don t work and I stay home all the time. I m a 23 24 25 26 1 27 28 Although Plaintiff identifies four discrete issues, each is related to Plaintiff s contention that the ALJ erred with regard to the analysis of a possible mental impairment; e.g., depression. The Court will consolidate its discussion of each issue in one section. 2 1 little depressed. (AR 178.)2 2 medication Elavil as a sleep aid, that it has helped his mood and, 3 that he is not depressed like I was before. (AR 30.) Plaintiff then noted that he takes the 4 In Plaintiff s third issue, he asserts that the ALJ failed to 5 properly develop the record based on Plaintiff s belief that he has 6 depression. Plaintiff asserts that this evidence demonstrates that he 7 has a colorable mental condition. 8 Finally, Plaintiff asserts that in failing to include any mental 9 limitations in the hypothetical question to the VE, the ALJ committed 10 11 12 error. As the Court will discuss, none of these claims have any validity. 13 14 A. Applicable Law. 15 In the sequential evaluation process, it is Plaintiff s burden to 16 demonstrate that he has a severe impairment, as that term in defined 17 in the applicable regulations. (See 20 C.F.R. §404.1521.) 18 A severe impairment or combination of impairments is one which 19 significantly limits the physical or mental ability to perform basic 20 work activities. 20 C.F.R. §416.920. Basic work activities relate to 21 the aptitudes necessary to perform most jobs, such as the ability to 22 perform physical functions, the capacity for seeing and hearing, and 23 the ability to use judgment, respond to supervisors, and deal with 24 changes in the work setting. 25 482 U.S. 137, 141-42 (1987). 20 C.F.R. §416.921; Bowen v. Yuckert, 26 2 27 28 In his testimony at the hearing before the ALJ, Plaintiff said that his insurance would not cover him to see a psychiatrist but that, I would love to because I think I have depression too. (AR 29.) 3 1 Plaintiff is not required to establish total disability at this 2 level of the evaluation. Rather, the severe impairment requirement is 3 a threshold element which plaintiff must prove in order to establish 4 disability within the meaning of the Act. 5 requirement increases the efficiency and reliability of the evaluation 6 process by identifying at an early stage those claimants whose medical 7 impairments are so slight that it is unlikely they would be found to 8 be disabled even if their age, education, and experience were taken 9 into account. 10 Id. at 146. The severity Id. at 153. Pursuant to Social Security Ruling 85-28, 11 An impairment or combination of impairments is found 12 non-severe and a finding of not disabled is made at this 13 Step 14 abnormality or a combination of slight abnormalities which 15 would have no more than a minimal effect on an individual s 16 ability to work even if the individual s age, education, or 17 work experience were specifically considered (i.e., the 18 person s impairment(s) has no more than a minimal effect on 19 his or her physical or mental ability(ies) to perform basic 20 work activities). when medical evidence establishes only a slight 21 22 In evaluating medical evidence, the ALJ need not discuss each and 23 every notation in the record; rather, relevant evidence must be 24 evaluated. 25 1990). 26 professional does not establish the types of functional deficits which 27 by definition preclude an ability to work. 28 169 F.3d 595, 601 (9th Cir. 1999). Gonzalez v. Sullivan, 914 F.2d 1197, 1200-01 (9th Cir. Moreover, mere identification of symptoms by a medical Morgan v. Commissioner, Finally, even a diagnostic opinion 4 1 does not suffice to demonstrate the existence of a severe impairment. 2 Sample v. Schweicker, 694 F.2d 639, 642-43 (9th Cir. 1989). 3 The ALJ does have a duty to develop the record when the evidence 4 is ambiguous or inadequate to allow for proper evaluation. Mayes v. 5 Massanari, 276 F.3d 453, 459 (9th Cir. 2001). 6 demonstrated functional limitations of a claimant must be included in 7 the hypothetical question posed to a VE. 8 562, 570-71 (9th Cir. 1995). Finally, all of the Flores v. Shalala, 49 F.3d 9 10 B. 11 Plaintiff sought disability benefits because, he asserted, he had 12 an enlarged heart and dilated ascending aorta which made him unable to 13 lift as needed. (See Disability Report - Adult, AR 138-147, at 139.) 14 Further, 15 Plaintiff ever sought treatment for a mental impairment. 16 Court appreciates that Plaintiff s insurance might not allow him to 17 see a psychiatrist, as he testified (AR 29), there is no evidence he 18 ever complained to his primary care physician that he had issues 19 pertaining to a mental impairment. 20 pertains to his heart condition. 21 word depression by Dr. Boutros certainly fails to qualify under any 22 definition as a diagnosis of a condition. 23 assessments 24 limitations observed by the physician regarding Plaintiff s mental 25 health. 26 Analysis. there by is no Dr. indication Boutros whatsoever in the record that While the Plaintiff s treatment in fact Moreover, the mere mention of the There are no statements or concerning any possible functional Looked at in the light most favorable to Plaintiff, even his own 27 testimony at the hearing indicated 28 medication which helped his mood and led him to feel not as depressed 5 that he was taking a sleep 1 as he had been before. Plaintiff s belief that the ALJ should have 2 discussed this isolated statement in his testimony is simply not 3 supported by case law. 4 Plaintiff s third issue, concerning an asserted failure by the 5 ALJ to properly develop the record, is again without any merit. 6 Plaintiff asserts that the ALJ raised the issue of the absence of a 7 pulmonary function test (AR 17), but there is nothing in this brief 8 statement that indicates any belief on the part of the ALJ that such 9 a test was necessary. Plaintiff points to nothing in the record 10 indicating that the evidence was ambiguous or inadequate to allow 11 proper evaluation. 12 Finally, Plaintiff raises as his fourth issue that the ALJ failed 13 to pose a complete hypothetical question to the VE, in that no mental 14 limitations were incorporated in the hypothetical question. 15 factually correct, but legally insignificant. 16 no mental limitations to be included in the hypothetical question. No 17 substantial evidence exists to support a mental limitation and for 18 that 19 hypothetical question. 20 reason, no such limitations needed The decision of the ALJ will be affirmed. 21 Simply put, there were be placed into IT IS SO ORDERED. 23 24 25 DATED: January 6, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 26 27 28 6 the The Complaint will be dismissed with prejudice. 22 This is

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