Tammy Binger v. Michael J. Astrue, No. 5:2008cv00852 - Document 25 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 TAMMY BINGER, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) No. EDCV 08-0852-RC OPINION AND ORDER 17 18 Plaintiff Tammy Binger filed a complaint on July 3, 2008, seeking 19 review of the Commissioner s decision denying her application for 20 disability benefits, and on November 12, 2008, the Commissioner 21 answered the complaint. 22 April 7, 2009. The parties filed a joint stipulation on 23 24 BACKGROUND 25 I 26 On April 1, 2005, plaintiff applied for disability benefits under 27 the Supplemental Security Income program of Title XVI of the Social 28 Security Act ( the Act ), 42 U.S.C. § 1382(a), claiming an inability 1 to work since June 28, 2003, due to a broken tail bone, ankle 2 inflammation, sciatica, left leg numbness and adenomyosis. 3 Administrative Record ( A.R. ) 80-82, 88. 4 was initially denied on July 22, 2005, and was denied again on 5 November 10, 2005, following reconsideration. 6 plaintiff then requested an administrative hearing, which was held 7 before Administrative Law Judge Lowell Fortune ( the ALJ ) on 8 February 9 and September 7, 2007. 9 September 28, 2007, the ALJ issued a decision finding plaintiff is not A.R. 14-27. Certified The plaintiff s application A.R. 43-55. A.R. 42-42A, 420-96. 10 disabled. 11 Appeals Council, which denied review on May 27, 2008. The On The plaintiff appealed this decision to the A.R. 4-6, 13. 12 13 II 14 The plaintiff, who was born on March 9, 1960, is currently 49 15 years old. A.R. 80, 423. She has a ninth-grade education, and has 16 previously worked as a waitress, stock clerk, and merchandiser. 17 89-90, 323, 423, 427-28, 437-38, 486-90. A.R. 18 19 Between October 13, 2005, and August 8, 2007, plaintiff received 20 mental health treatment at the Riverside County Department of Mental 21 Health ( DMH ).1 22 2005, plaintiff was diagnosed with an unspecified depressive disorder 23 and a history of attention deficit hyperactivity disorder and 24 antisocial personality traits, and her Global Assessment of A.R. 211, 213, 260-318, 385-417. On October 13, 25 26 27 28 1 Although plaintiff has both physical and mental complaints, she challenges only the ALJ s assessment of her mental condition; therefore, the Court only summarizes the medical records pertaining to plaintiff s mental state. 2 1 Functioning ( GAF ) was determined to be 45.2 2 December 7, 2005, Coney Ebro, M.D., examined plaintiff, diagnosed her 3 as having mixed bipolar disorder and intermittent explosive disorder, 4 determined plaintiff s GAF was 50, and prescribed medication for 5 plaintiff. A.R. 300, 304. On A.R. 307. 6 7 On September 15, 2006, Dr. Ebro determined plaintiff has poor 8 impulse control, is easily angered, has been isolated and withdrawn, 9 and is afraid of hurting other people. A.R. 211. Dr. Ebro opined 10 plaintiff cannot complete a forty-hour workweek without decompensat- 11 ing, and she cannot maintain a sustained level of concentration, 12 sustain repetitive tasks for an extended period, adapt to new or 13 stressful situations, or interact appropriately with family, 14 strangers, or co-workers, although she can interact appropriately with 15 supervisors and authority figures. Id. 16 17 On February 1, 2007, Dr. Ebro found plaintiff has severe angry 18 outbursts and can be violent and hurt other people, but her aggressive 19 behavior is controlled with medication. 20 concluded plaintiff cannot complete a forty-hour workweek without 21 decompensating, and she cannot maintain a sustained level of 22 concentration, sustain repetitive tasks for an extended period, or 23 adapt to new or stressful situations. 24 25 26 27 28 2 A.R. 213. Dr. Ebro again Id. A GAF of 41-50 means that the plaintiff exhibits [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g. no friends, unable to keep a job). American Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders ( DSM-IV-TR ), 34 (4th ed. (Text Revision) 2000). 3 On May 24, 2007, Oluwafemi Adeyemo, M.D., a psychiatrist, 1 2 examined plaintiff and diagnosed her as having a recurrent severe 3 major depressive disorder with psychotic features, an unspecified 4 impulse control disorder, rule out dysthymic disorder and bipolar 5 disorder with psychotic features, and determined plaintiff s GAF was 6 55.3 A.R. 322-28. Dr. Adeyemo opined: 7 8 [plaintiff] does not appear to have any restrictions of 9 daily activities at home but she has difficulty maintaining 10 social functioning outside her home environment. 11 not appear to have significant difficulties with 12 concentration and is able to understand, retain and execute 13 simple and complex instructions. 14 history of emotional deterioration in a work environment. 15 [She] may have mild to moderate difficulties interacting 16 with co-workers and supervisors but should be able to 17 respond appropriately to usual work situations with 18 accommodations for her current symptoms (basically limiting 19 her interaction with co-workers and supervisors). 20 appears to have moderate to mild difficulties interacting 21 with the public but her symptoms should improve with optimal 22 treatment. 23 substance abuse. 24 She does She does not have [a] She . . . There was no obvious evidence of ongoing // 25 3 26 27 28 A GAF of 55 indicates [m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or coworkers). DSM-IV-TR at 34. 4 1 A.R. 324. Dr. Adeyemo further opined plaintiff s ability to under- 2 stand, remember, and carry out instructions is not affected by her 3 impairment, but she has: 4 interact appropriately with the public; moderate limitations in her 5 ability to respond appropriately to usual work situations and to 6 changes in a routine work setting; and a mild limitation in her 7 ability to interact appropriately with supervisors and co-workers. 8 A.R. 327. a marked limitation in her ability to 9 10 Medical expert Dr. Michael Kania testified at the administrative 11 hearing, and opined plaintiff has an unspecified depressive disorder, 12 an intermittent explosive disorder, and anti-social personality 13 traits, and that none of these conditions meets or equals a listing. 14 A.R. 462-73. 15 her activities of daily living, moderate difficulty maintaining 16 social functioning, mild difficulties maintaining concentration, 17 persistence or pace, and no episodes of decompensation. 18 Dr. Kania also opined plaintiff should be limited to a non-public job 19 with limited contact with other workers [s]o, if she was working 20 independently or with one or two other people there probably would not 21 be any difficulty, but beyond that there might be. 22 Kania reviewed the DMH records, and observed that plaintiff s response 23 to medication has been very positive, there was no problem with 24 impulse control, and she was less agitated, less irritable, she had 25 better control and the auditory hallucinations, when they were 26 reported, are few and far between and don t seem to impair her 27 functioning at all. 28 // Dr. Kania opined plaintiff has a mild restriction in A.R. 464-65. 5 A.R. 463. A.R. 463-64. Dr. 1 DISCUSSION 2 III 3 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 4 review the Commissioner s decision denying plaintiff disability 5 benefits to determine if his findings are supported by substantial 6 evidence and whether the Commissioner used the proper legal standards 7 in reaching his decision. 8 Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). Vasquez v. Astrue, 572 F.3d 586, 591 (9th 9 10 In determining whether the Commissioner s findings are supported 11 by substantial evidence, [this Court] must review the administrative 12 record as a whole, weighing both the evidence that supports and the 13 evidence that detracts from the Commissioner s conclusion. 14 v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 15 246 F.3d 1195, 1201 (9th Cir. 2001). 16 reasonably support either affirming or reversing the decision, [this 17 Court] may not substitute [its] judgment for that of the 18 Commissioner. 19 cert. denied, 128 S. Ct. 1068 (2008); Bray v. Astrue, 554 F.3d 1219, 20 1222 (9th Cir. 2009). Reddick Where the evidence can Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), 21 22 The claimant is disabled for the purpose of receiving benefits 23 under the Act if he is unable to engage in any substantial gainful 24 activity due to an impairment which has lasted, or is expected to 25 last, for a continuous period of at least twelve months. 26 § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). 27 burden of establishing a prima facie case of disability. 28 Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 6 42 U.S.C. The claimant bears the Roberts v. 1 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996). 2 3 The Commissioner has promulgated regulations establishing a five- 4 step sequential evaluation process for the ALJ to follow in a 5 disability case. 6 must determine whether the claimant is currently engaged in 7 substantial gainful activity. 8 Second Step, the ALJ must determine whether the claimant has a severe 9 impairment or combination of impairments significantly limiting her 20 C.F.R. § 416.920. In the First Step, the ALJ 20 C.F.R. § 416.920(b). If not, in the 10 from performing basic work activities. 20 C.F.R. § 416.920(c). 11 so, in the Third Step, the ALJ must determine whether the claimant has 12 an impairment or combination of impairments that meets or equals the 13 requirements of the Listing of Impairments ( Listing ), 20 C.F.R. § 14 404, Subpart P, App. 1. 15 Fourth Step, the ALJ must determine whether the claimant has 16 sufficient residual functional capacity despite the impairment or 17 various limitations to perform her past work. 18 If not, in Step Five, the burden shifts to the Commissioner to show 19 the claimant can perform other work that exists in significant numbers 20 in the national economy. 21 there is evidence of a mental impairment that may prevent a claimant 22 from working, the Commissioner has supplemented the five-step 23 sequential evaluation process with additional regulations addressing 24 mental impairments.4 25 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). 20 C.F.R. § 416.920(d). If If not, in the 20 C.F.R. § 416.920(f). 20 C.F.R. § 416.920(g). Moreover, where Maier v. Comm r of the Soc. Sec. Admin., 26 27 Applying the five-step sequential evaluation process, the ALJ 28 4 See 20 C.F.R. § 416.920a. 7 1 found plaintiff has not engaged in substantial gainful activity since 2 the application date of April 1, 2005. 3 found plaintiff has the severe impairments of: 4 disorder, a knee disorder, an unspecified depressive disorder, an 5 intermittent explosive disorder, now in remission, and antisocial 6 personality traits (Step Two); however, she does not have an 7 impairment or combination of impairments that meets or equals a 8 Listing. 9 perform her past relevant work. (Step Three). (Step One). The ALJ then a lumbar spine The ALJ next determined plaintiff cannot (Step Four). Finally, the ALJ 10 concluded plaintiff can perform a significant number of jobs in the 11 national economy; therefore, she is not disabled. (Step Five). 12 IV 13 14 A claimant s residual functional capacity ( RFC ) is what she can 15 still do despite her physical, mental, nonexertional, and other 16 limitations. 17 Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 18 the ALJ found plaintiff has the RFC to perform: Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Here, 19 20 sedentary work[5] in a non-public, habituated work setting 21 with limited contact with her co-workers, except she 22 requires an option to stand and stretch every 30 minutes and 23 24 25 26 27 28 5 Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. § 416.967(a). 8 1 is limited to occasional climbing of ramps or stairs, 2 occasional balancing, and occasional, not repetitive, 3 bending, stooping, or crouching. 4 limited to less than occasional kneeling, and precluded from 5 climbing ladders, ropes or scaffolds, from crawling, or 6 working on uneven terrain. 7 noise and vibrations, dangerous, or fast moving machinery 8 and unprotected heights. The [plaintiff] is also She must avoid all excessive 9 10 A.R. 20 (footnote added). However, plaintiff contends the ALJ s 11 decision is not supported by substantial evidence because the ALJ did 12 not properly consider the opinions of her treating psychiatrist Dr. 13 Ebro or examining psychiatrist Dr. Adeyemo. 14 these contentions. There is no merit to 15 16 The medical opinions of treating physicians are entitled to 17 special weight because the treating physician is employed to cure and 18 has a greater opportunity to know and observe the patient as an 19 individual. 20 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 21 1999). 22 for rejecting the uncontroverted opinion of a treating physician, Ryan 23 v. Comm r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Reddick, 24 157 F.3d at 725, and [e]ven if [a] treating doctor s opinion is 25 contradicted by another doctor, the ALJ may not reject this opinion 26 without providing specific and legitimate reasons supported by 27 substantial evidence in the record. 28 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987); Therefore, the ALJ must provide clear and convincing reasons 9 Reddick, 157 F.3d at 725; Similarly, 1 the ALJ must provide clear and convincing reasons for rejecting the 2 uncontradicted opinion of an examining physician[,] Lester v. Chater, 3 81 F.3d 821, 830 (9th Cir. 1995); Widmark v. Barnhart, 454 F.3d 1063, 4 1066 (9th Cir. 2006), and [e]ven if contradicted by another doctor, 5 the opinion of an examining doctor can be rejected only for specific 6 and legitimate reasons that are supported by substantial evidence in 7 the record. 8 166 F.3d 1294, 1298-99 (9th Cir. 1999); Ryan, 528 F.3d at 1198. Regennitter v. Comm r of the Soc. Sec. Admin., 9 10 Dr. Ebro opined plaintiff cannot complete a forty-hour workweek 11 without decompensating, and she cannot maintain a sustained level of 12 concentration, sustain repetitive tasks for an extended period, adapt 13 to new or stressful situations, or interact appropriately with family, 14 strangers, or co-workers, although she can interact appropriately with 15 supervisors and authority figures. 16 Ebro s opinion, stating: A.R. 211. The ALJ rejected Dr. 17 18 The doctor s opinion is without substantial support from the 19 other evidence of record, which obviously renders it less 20 persuasive. 21 treatment for her allegedly disabling symptoms, which would 22 normally weigh somewhat in the [plaintiff s] favor, the 23 record also reveals that the treatment has been generally 24 successful in controlling those symptoms. 25 hospitalizations or crises since commencing treatment and 26 has shown improvement. Although the [plaintiff] has received on-going She has had no 27 28 A.R. 24-25. The ALJ s rationale is supported by substantial evidence 10 1 in the record, which shows, as Dr. Kania opined, that plaintiff has 2 responded positively to medication and she is able to control her 3 anger. 4 Ebro, Dr. Adeyemo opined that plaintiff does not appear to have 5 significant difficulties with concentration[,] does not have a 6 history of emotional deterioration in a work environment[,] and 7 should be able to respond appropriately to usual work situations. 8 . . . 9 examining physicians ] conclusions provided the ALJ additional See, e.g., A.R. 260, 263, 289, 294. A.R. 324, 326. Moreover, contrary to Dr. Inconsistencies between [treating and 10 justification for rejecting [the treating physician s] opinion. 11 Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 12 1999); see also Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 13 (ALJ properly rejected treating physician s opinion that was 14 contradicted by his own notes and was inconsistent with other 15 physicians examination of claimant.); Tonapetyan v. Halter, 16 242 F.3d 1144, 1149 (9th Cir. 2001) ( The contrary opinions of [the 17 examining and nonexamining physicians] serve as . . . specific and 18 legitimate reasons for rejecting the opinion[] of [the treating 19 physician], and provide assurance that the record was sufficiently 20 developed with regard to the issue of physical impairment. ). 21 22 Dr. Adeyemo also opined plaintiff has a marked limitation in 23 her ability to deal with the public; a moderate limitation in her 24 ability to respond appropriately to usual work situations and changes 25 in a routine work setting; and mild limitations in her ability to 26 interact appropriately with supervisors and co-workers. 27 More specifically, Dr. Adeyemo explained that plaintiff should be 28 able to respond appropriately to usual work situations if she has 11 A.R. 327. 1 only limited interaction with co-workers and supervisors. 2 Plaintiff contends, however, that the ALJ failed to discuss or 3 mention . . . plaintiff s mild limitations in her ability to interact 4 with supervisors and co-workers. 5 disagrees. 6 plaintiff to non-public work with limited contact with co-workers, 7 A.R. 20, which the ALJ further described as working independently or 8 with one or two coworkers. 9 incorporated the evidence that [the plaintiff] argues it ignored[,] Jt. Stip. at 9:2-10:2. A.R. 324. The Court As noted above, the RFC determination specifically limited A.R. 493. Therefore, the RFC actually 10 and plaintiff s contention is without merit. Valentine v. Astrue, 11 574 F.3d 685, __, 2009 WL 2138981, *4 (9th Cir. (Or.)). 12 13 14 V At Step Five, the burden shifts to the Commissioner to show the 15 claimant can perform other jobs that exist in the national economy. 16 Hoopai v. Astrue, 499 F.3d 1071, 1074-75 (9th Cir. 2007); Widmark, 17 454 F.3d at 1069. 18 this burden: (1) by the testimony of a vocational expert, or (2) by 19 reference to the Medical Vocational Guidelines [ Grids ] at 20 C.F.R. 20 pt. 404, subpt. P, app. 2. 6 21 (9th Cir. 1999); Widmark, 454 F.3d at 1069. 22 23 24 25 26 27 28 There are two ways for the Commissioner to meet Tackett v. Apfel, 180 F.3d 1094, 1099 6 Moreover, the The Grids are guidelines setting forth the types and number of jobs that exist in the national economy for different kinds of claimants. Each rule defines a vocational profile and determines whether sufficient work exists in the national economy. These rules represent the [Commissioner s] determination, arrived at by taking administrative notice of relevant information, that a given number of unskilled jobs exist in the national economy that can be performed by persons with each level of residual functional capacity. Chavez v. Dep t of Health & Human Servs., 103 F.3d 849, 851 (9th Cir. 1996) (citations omitted). 12 1 Commissioner must identify specific jobs existing in substantial 2 numbers in the national economy that [the] claimant can perform 3 despite her identified limitations. 4 1114 (9th Cir. 1999) (quoting Johnson v. Shalala, 60 F.3d 1428, 1432 5 (9th Cir. 1995)). Meanel v. Apfel, 172 F.3d 1111, 6 7 Hypothetical questions posed to a vocational expert must consider 8 all of the claimant s limitations, Lewis v. Apfel, 236 F.3d 503, 517 9 (9th Cir. 2001), and [t]he ALJ s depiction of the claimant s 10 disability must be accurate, detailed, and supported by the medical 11 record. 12 expert Sandra Fioretti the following hypothetical question: Tackett, 180 F.3d at 1101. Here, the ALJ asked vocational 13 14 [A]ssume an individual of the same age, education and work 15 experience as the claimant. . . . 16 individual with the following [RFC] based exertionally at 17 sedentary, posturally this person is able to climb ramps and 18 stairs occasionally, but not ladders, scaffolds or ropes, 19 occasionally able to balance. 20 stooping and crouching no repetitive motions . . . on 21 either of those accumulation can be occasionally up to a 22 third of the day. 23 Crawling no crawling. 24 Environmentally avoid all exposure to excessive vibration, 25 avoid all exposure to dangerous or fast moving machinery and 26 unprotected heights. 27 Limited contact with other workers, which means according to 28 the medical expert, working independently or with one or two I want you to assume an Now, in terms of bending, Kneeling less than occasionally. And no walking on uneven terrain. Mentally . . . non-public tasks. . . . 13 1 coworkers. . . . Based on these circumstances[,] . . . 2 could this hypothetical person perform any other work in the 3 regional or in the national economy? 4 5 A.R. 492-93. The vocational expert responded that such a person could 6 work as a buttons and notions assembler (Dictionary of Occupational 7 Titles ( DOT )7 no. 734.687-018), with 900 job positions regionally 8 and 12,000 nationally, an optical assembler (DOT no. 713.687-018), 9 with 600 job positions regionally and 4,800 nationally, or an 10 agricultural sorter (DOT no. 521.687-086), with 450 job positions 11 regionally and 5,000 nationally. A.R. 493-94. 12 13 The plaintiff contends, however, that the hypothetical question 14 to the vocational expert fails to set out all of [her] particular 15 limitations and restrictions as identified by Drs. Ebro and Adeyemo. 16 Jt. Stip. at 14:20-15:19, 16:21-25. 17 Ebro s opinion is supported by substantial evidence, those limitations 18 need not be included in a hypothetical question to the vocational 19 expert. 20 Magallanes v. Bowen, 881 F.2d 747, 756-57 (9th Cir. 1989). 21 as discussed above, the hypothetical question to the vocational expert 22 accommodates the limitations found by Dr. Adeyemo. 23 vocational expert s testimony constitutes substantial evidence to 24 support the ALJ s Step Five determination that plaintiff is not 25 // 26 // Since the ALJ s rejection of Dr. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); Moreover, Therefore, the 27 7 28 The DOT is the Commissioner s primary source of reliable vocational information. Johnson, 60 F.3d at 1434 n.6. 14 1 disabled. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th 2 Cir. 2008). 3 4 ORDER 5 IT IS ORDERED that: (1) plaintiff s request for relief is denied; 6 and (2) the Commissioner s decision is affirmed, and Judgment shall be 7 entered in favor of defendant. 8 9 DATE: August 31, 2009 10 11 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\08-0852.mdo 8/31/09 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 15

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