Doreena Arriola v. Michael J Astrue, No. 5:2008cv00249 - Document 15 (C.D. Cal. 2008)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton. The decision of the Administrative Law Judge will be affirmed. The Complaint will be dismissed with prejudice. (READ ATTACHED ORDER FOR DETAILS) (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 DOREENA ARRIOLA, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 08-00249-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 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. 1 Plaintiff states the following issues: 2 1. Whether the Administrative Law Judge ( ALJ ) properly 3 considered significant longitudinal evidence that documents 4 a functionally limiting mental disorder; 5 2. 6 7 the ALJ properly considered the psychiatric considered the psychiatric evaluation of Dr. Henry Khin; 3. 8 9 Whether Whether the ALJ properly evaluation of Dr. Romeo Villar; 4. Whether the ALJ misrepresented the record and properly 10 considered 11 disability; 12 5. Dr. Villar s medical report opinion of Whether the ALJ complied with Social Security Ruling ( SSR ) 13 96-7p, 14 effects of medication; 15 6. 16 17 regarding type, dosage, effectiveness and side Whether the ALJ properly considered the treating clinician s evaluation; 7. Whether the ALJ should have allowed Plaintiff s counsel to 18 pose a complete hypothetical question to the vocational 19 expert ( VE ); and 20 8. 21 Whether the ALJ posed a complete hypothetical question to the VE. 22 23 I 24 THE ALJ DID NOT IMPROPERLY FAIL TO EVALUATE LONGITUDINAL 25 EVIDENCE REGARDING PLAINTIFF S MENTAL DISORDER 26 Plaintiff asserts that a Discharge Summary from San Bernardino 27 County Department of Mental Health 28 indicates she has a history of depression, crying spells and feelings 2 ( SBCDMH ) of May 23, 1994 1 of abandonment and social isolation. (JS at 3, citing AR 271.) 2 Plaintiff also objects to the ALJ s failure to consider her Global 3 Assessment of Functioning ( GAF ) score of 46 as reported in the 1994 4 Discharge Summary. (Id.) 5 As the Commissioner has noted, a prior claim filed by Plaintiff 6 in which she alleged mental problems was administratively denied in 7 December 2004 due to insufficient evidence. (JS at 5, et seq., AR 8 391.) 9 through an ALJ decision in 1995. (Id.) In addition, there is a notation of a prior denial of a claim The Court agrees with the 10 Commissioner s contention that the ALJ was not required to address the 11 1994 medical evidence with regard to his consideration of the present 12 claim, which Plaintiff filed in November 2005. 13 SSI 14 application is filed. (See 20 C.F.R. §416.335.) In any event, the 15 ALJ s consideration 16 Plaintiff s longitudinal mental health history. (See AR at 15, 16.) 17 entitlement decision begins here no does earlier reflect than As the parties agree, the month substantial in which an of Discussion of GAF scores is in the next section. 18 19 II 20 THE ALJ PROPERLY CONSIDERED THE PSYCHIATRIC EVALUATION OF DR. KHIN 21 Dr. Henry Khin of the San Bernardino County Department of 22 Behavioral Health, completed a mental status form, which included 23 check-off boxes, on November 8, 2005. (AR 344-347.) 24 that Dr. Khin indicated she had rapid speech, depressed mood and 25 visual hallucinations. (Id.) 26 disorder, NOS, and a GAF rating of 45. (Id.) 27 ALJ failed to consider Dr. Khin s findings. 28 Plaintiff notes He diagnosed Plaintiff with bipolar Plaintiff asserts the Contrary to Plaintiff s assertion, the ALJ did consider Dr. 3 1 Khin s November 8, 2005 evaluation. (See AR at 11.) The ALJ 2 discounted Dr. Khin s findings because he instead relied upon the 3 testimony of Dr. Glassmire, the medical expert ( ME ), who testified 4 that Dr. Khin s conclusion that Plaintiff suffered from bipolar 5 syndrome with polysubstance and alcohol dependence is undermined by 6 the fact that Plaintiff presently was in sustained remission. (See JS 7 at 11, AR at 31.) 8 With regard to Plaintiff s assertion that the ALJ failed, in 9 particular, to consider Dr. Khin s assessment of her GAF, this Court 10 has often and consistently opined that the GAF score is largely 11 irrelevant to the determination of an individual s ability to function 12 in an occupation. 13 The GAF scale is intended to reflect a person s overall level of 14 functioning at or about the time of the examination, not for a period 15 of at least 12 consecutive months, which is required for a finding of 16 impairment or disability. (See 20 C.F.R. §§416.905, 416.920(c)(2006).) 17 GAF scores are intended to be used for clinical diagnosis and 18 treatment, and do not directly correlate to the severity assessment 19 set 20 Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 21 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000), and American Psychiatric 22 Ass n, Diagnostic and Statistical Manual of Mental Disorders, Text 23 Revision 33 (4th Ed. 2000). forth in Social Security regulations. (See Revised Medical 24 25 III 26 THE ALJ PROPERLY CONSIDERED THE EVALUATION OF DR. VILLAR 27 Dr. Villar, of San Bernardino County Department of Behavioral 28 Health, conducted a psychiatric evaluation of Plaintiff on June 8, 4 1 2007. (AR 401.) Dr. Villar diagnosed Plaintiff with bipolar disorder, 2 Type I, with psychotic features. 3 identical diagnosis, and opined that Plaintiff was incapable of any 4 work. (AR 393.) Plaintiff asserts that the ALJ failed to consider the 5 mental status findings of Dr. Villar. (JS at 10.) 6 Initially, the notes impairment that the psychotic 9 diagnosis. Plaintiff s apparent complaint, therefore, is that the ALJ 10 ignored the opinion of Dr. Villar that Plaintiff is unable to work as 11 a result of this diagnosis. 12 the 13 inability to work, he had only seen her three times. 14 ALJ 15 Plaintiff s condition, which included the absence of hallucinations. 16 (See AR at 399-402, and 15-16.) 17 correctly cited Social Security regulations embodied in 20 C.F.R. 18 §§404.1527 and 416.927, in addition to SSR 96-5p, all of which 19 unambiguously instruct that the determination of a claimant s residual 20 functional capacity ( RFC ), or the application of vocational factors 21 is the final responsibility of the Commissioner. 22 rejects Plaintiff s apparent approach, which is that when an ALJ 23 disagrees with the ultimate opinion on disability expressed by a 24 physician, even a treating physician, that constitutes a disregard of 25 the opinion of the treating physician. 26 cases, identify the medical evidence upon which he relies in making a 27 functional assessment. The opinion of a treating physician is not, of 28 course, necessarily determinative on the disability issue. See, e.g., Dr. noted, Villar Dr. is exactly the had same syndrome as Dr. with Villar s But, as the ALJ noted in his decision, at rendered Villar bipolar that 8 which of determined Plaintiff s features, consists ALJ 7 time severe Court On July 25, 2007, he provided the his also opinion assessed regarding recent Plaintiff s Moreover, as the improvement in Indeed, the ALJ specifically and 5 Thus, the Court Rather, the ALJ must, in all v. Shalala, Andrews 2 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In this case, 3 in addition, the ALJ relied upon the testimony and opinion of the ME, 4 Dr. 5 evidence. Glassmire, which 53 F.3d was 1035, 1041 (9th 1 supported by Cir. 1995) substantial, (citing independent 6 The above discussion is also applicable to the Court s rejection 7 of Plaintiff s fourth issue, which is that the ALJ misrepresented the 8 record and improperly failed to consider Dr. Villar s medical report 9 opinion of disability. (See JS at 13, et seq.) 10 Plaintiff also objects because the ALJ appeared to assess bias on 11 the part of Dr. Villar, charging that he prepared [the medical 12 report] for the express purpose of enabling the [Plaintiff] to obtain 13 transitional assistance. (AR 15.) 14 nothing in the record which would appear to support that assertion; 15 nevertheless, any error is deemed to be harmless, because the ALJ s 16 remaining assessment of the weight to be given to Dr. Villar s opinion 17 is supported by substantial evidence. (e.g., the fact that he had only 18 met with Plaintiff on three brief occasions prior to preparing his 19 medical report, and that he also reported Plaintiff to be improved and 20 without hallucinations.) The Court agrees that there is 21 22 IV 23 THE ALJ DID NOT FAIL TO CONSIDER SIDE EFFECTS OF MEDICATION 24 Plaintiff notes that one of her treating physicians, Dr. Villar, 25 at one point increased the dosage of Seroquel (JS at 17, AR 395). 26 Plaintiff complains that the ALJ failed to consider evidence of side 27 effects of Seroquel, and cites a drug textbook which indicates 28 possible side effects of this medication. (AR 17.) As such, Plaintiff 6 1 asserts the ALJ failed to adhere to the requirements of SSR 96-7p, 2 which requires that such side effects be considered. 3 Plaintiff s argument only goes so far. While there is evidence 4 in the record that she was prescribed Seroquel, there is absolutely no 5 evidence that it led to any side effects whatsoever. 6 Plaintiff specifically denied side effects from any medication after 7 a medical evaluation on November 10, 2005. (AR 350.) 8 hearing before the ALJ, Plaintiff testified in the past she stopped 9 taking a prescribed medication because her purse was stolen. (AR 25- 10 11 In fact, Further, at the 26.) It is Plaintiff s burden to demonstrate that she has disabling 12 conditions. Thus, it would be the ALJ s obligation to consider side 13 effects of medication if, for example, the medical records documented 14 this, or if Plaintiff substantially raised complaints about such side 15 effects. 16 essentially postulates is that any time a claimant is on medication, 17 it is the Commissioner s responsibility to investigate whether any 18 possible side effects of medications taken by the claimant have been 19 manifested. 20 obligation, and that Plaintiff s argument is, therefore, without 21 merit. Neither situation exists in this case. What Plaintiff The Court finds that the Commissioner is under no such 22 23 V 24 THE ALJ DID NOT FAIL TO PROPERLY CONSIDER 25 THE TREATING CLINICIAN S EVALUATION 26 In her sixth issue, Plaintiff asserts that the ALJ failed to 27 consider the July 30, 2001 evaluation of Holli Prince, licensed 28 clinical social worker of the San Bernardino County Department of 7 1 Behavioral Health, that Plaintiff has tangential and flight of idea 2 thought processing. (JS at 20, AR at 323.) 3 that Ms. Prince is not a physician or otherwise considered to be an 4 acceptable medical source pursuant to 20 C.F.R. §416.913(a). (JS at 5 20.) 6 Prince was issued four years prior to the SSI application which is at 7 issue in this case. 8 concerning her 1994 medical evaluation, Plaintiff s 2004 SSI claim, 9 which was denied in that year, is res judicata regarding the issue of Plaintiff acknowledges Again, Plaintiff ignores the fact that the 2001 report of Ms. As noted with regard to Plaintiff s claim 10 disability through December 2004, when it was denied. 11 Plaintiff s argument is without merit. 12 13 VI 14 THE ALJ DID NOT FAIL TO PERMIT A 15 COMPLETE HYPOTHETICAL QUESTION TO THE VE 16 Plaintiff notes that at the hearing, the ALJ posed a question to 17 the VE which incorporated moderate limitations in ability to get along 18 with 19 behavioral extremes. 20 as more than a slight limitation in the area. (AR 37-38.) Thereafter, 21 the ALJ disallowed the attempt by Plaintiff s counsel to amend the 22 word moderate to be defined as significant limitations. (AR 38.) 23 The ALJ indicated that, coworkers or peers without distracting them or exhibiting In the hypothetical, the ALJ defined moderate 24 If you want to say she has significant limitations 25 that are in the marked area, more extreme, et cetera, you 26 may do so. 27 moderate without a legal factual basis for changing it. 28 But you may not change the definition of (AR 38-39.) 8 1 2 In response, the attorney indicated, Okay. No further questions. (AR 39.) 3 While Plaintiff claims that the ALJ made an arbitrary attempt to 4 change the definition of the word moderate, the fact is that the 5 hypothetical question posed by the ALJ to the VE was based upon the 6 limitations set forth in Dr. Glassmire s testimony (AR 32), which was 7 accepted by the ALJ. 8 referenced in the 2006 edition of SSA Form HA-1152, which defines that 9 term as, There is more than a slight limitation in this area but the 10 The ALJ s definition of the term moderate is individual is still able to function satisfactorily. 11 The ALJ s disallowance of a hypothetical question which would 12 have changed the accepted meaning of the term moderate was not 13 error. 14 for his own proposed definition of the term. 15 any error in the ALJ s determination at the hearing to prohibit a 16 hypothetical question based on this unsubstantiated definition. Plaintiff s counsel was unable to identify any legal support The Court cannot find 17 18 VII 19 THE ALJ POSED A COMPLETE HYPOTHETICAL QUESTION TO THE VE 20 Plaintiff asserts that at the hearing, the ALJ s hypothetical to 21 the VE did not include GAF scores of 45, 46 and 47, which Plaintiff 22 had previously received during various evaluations. 23 incorporates its prior discussion regarding the lack of relevance of 24 a GAF in determining occupational suitability, and the ability to 25 work. 26 question would have rendered any answer ambiguous. The Court finds no 27 error 28 hypothetical posed to the VE. The Court again Indeed, the injection of GAF scores into a hypothetical in the ALJ s failure to 9 include GAF questions in the 1 2 3 For the foregoing reasons, the decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: November 14, 2008 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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