James Russell Gonzalez v. Michael J Astrue, No. 5:2008cv01108 - Document 20 (C.D. Cal. 2009)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. The Commissioner's decision is supported by substantial evidence and is free of legal error. Accordingly, the Commissioner's decision is affirmed. IT IS SO ORDERED. (mz)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 JAMES GONZALES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _____________________________________) Case No. CV 08-1108 AJW MEMORANDUM OF DECISION Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the Commissioner ), denying plaintiff s application for supplemental security income ( SSI ) benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect to each disputed issue. Administrative Proceedings Plaintiff, aged 25, filed an application for SSI benefits on October 13, 2005, alleging that he became disabled on May 1, 2005, due to depression with psychotic features. [JS 2; Administrative Record ( AR ) 105]. In a written hearing decision dated August 31, 2007, an administrative law judge ( ALJ ) found that plaintiff had severe impairments consisting of a psychotic disorder, not otherwise specified ( NOS ) and a personality disorder with schizophrenic features. [AR 11]. The ALJ further found that plaintiff s impairments left him 1 with a residual functional capacity ( RFC ) for work at any exertional level, with nonexertional 2 impairments restricting him to simple, repetitive tasks that do not involve working with the 3 public or around dangerous machinery, and require no safety operations or hypervigilance. [AR 4 12]. The ALJ found that plaintiff s RFC did not preclude him from performing his unskilled, 5 light past work as a dog bather as he actually performed it. [AR 14]. Alternatively, the ALJ 6 found that plaintiff could perform unskilled jobs available in significant numbers in the national 7 economy, such as the jobs of assembler and hand packager. [AR 14-15]. The Appeals Council 8 denied plaintiff s request for review. [JS 2; AR 1-5]. Standard of Review 9 10 The Commissioner s denial of benefits should be disturbed only if it is not supported by 11 substantial evidence or is based on legal error. Stout v. Comm r, Social Sec. Admin., 454 F.3d 12 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). 13 Substantial evidence means more than a mere scintilla, but less than a preponderance. 14 Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). It is such relevant evidence as a 15 reasonable mind might accept as adequate to support a conclusion. Burch v. Barnhart, 400 16 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to 17 review the record as a whole and to consider evidence detracting from the decision as well as 18 evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 19 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is 20 susceptible to more than one rational interpretation, one of which supports the ALJ's decision, 21 the ALJ's conclusion must be upheld. Thomas, 278 F.3d at 954 (citing Morgan v. Commr of 22 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). Discussion 23 Medical opinion evidence 24 State agency physicians 25 26 Plaintiff contends that the ALJ failed properly to consider a nonexamining state agency 27 physician s findings that plaintiff has moderate work-related functional limitations. [See JS 3- 28 7]. 2 1 D. L. Williams, M.D., completed a Mental Residual Functional Capacity Assessment form on 2 November 30, 2005, indicating that plaintiff was not limited or not significantly limited in twelve of the 3 twenty work-related functional abilities rated on the form, and was moderately limited in the remaining 4 eight abilities, including, for example, the ability to understand, remember, and carry out detailed 5 instructions. [AR 190-193]. The ALJ did not discuss that assessment; however, he summarized the findings 6 made by Dr. Williams on a Psychiatric Review Technique ( PRT ) form completed on the same date. [AR 7 14, 176-189]. On the PRT form, Dr. Williams found that plaintiff had a severe psychotic disorder with 8 persistent delusions or hallucinations, but that his psychotic and depressive symptoms were improving 9 steadily over time with medication. [AR14, 176, 178-179]. Dr. Williams concluded that plaintiff s 10 impairment did not meet or equal a listed impairment because he had only a mild limitation in activities of 11 daily living, a moderate limitation in maintaining social functioning, and maintaining concentration, 12 persistence, and pace, and no repeated episodes of decompensation. [AR 14, 186-187]. Remarking that the 13 alleged degree of functional limitation is not fully supported by the objective findings, Dr. Williams wrote 14 that plaintiff appeared capable of performing nonpublic, simple, repetitive tasks. [AR 14, 193]. 15 Nonexamining state agency psychiatrist, K.D. Gregg, M.D., affirmed Dr. Williams s opinion as written. [AR 16 194-195]. 17 Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide 18 clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted 19 by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate 20 reasons that are based on substantial evidence in the record. Batson v. Comm r of Social Sec. Admin., 359 21 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001); Lester v. 22 Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). 23 A nonexamining physician does not have the opportunity to conduct an independent examination 24 and does not have a treatment relationship with the claimant, so a nonexamining source opinion ordinarily 25 carries less weight than that of an examining or treating physician. Andrews v. Shalala, 53 F.3d 1035, 1040- 26 41 (9th Cir. 1995)(explaining that more weight is given to the opinions of treating and examining physicians 27 because they have a greater opportunity to know and observe the patient as an individual). Standing alone, 28 the opinion of a nonexamining physician cannot constitute substantial evidence that justifies the rejection 3 1 of the opinion of either an examining physician or a treating physician. Morgan, 169 F.3d at 602; Lester v. 2 Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). When supported by other evidence in the record, however, 3 the opinion of a nonexamining physician may serve as substantial evidence. Andrews, 53 F.3d at 1041; 4 Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989). 5 Although the ALJ did not discuss the specific functional limitations reflected in Dr. Williams s 6 mental RFC assessment form, he considered and adopted Dr. Williams s conclusion that, notwithstanding 7 those functional limitations, plaintiff could perform simple, repetitive tasks that do not involve working with 8 the public, provided his job did not require hypervigilance, safety operations, and working around dangerous 9 machinery were not required. [AR 12]. Accordingly, the ALJ did not ignore or reject Dr. Williams s 10 opinion, and he gave that opinion appropriate deference. 11 Treating psychiatrist 12 Plaintiff also contends that although the ALJ briefly mention[ed] portions of a May 2005 mental 13 status examination performed by Jesse DeVera, M..D., a staff psychiatrist who treated plaintiff at the San 14 Bernardino Department of Behavioral Health ( County Behavioral Health ), the ALJ did not discuss Dr. 15 DeVera s diagnosis of a psychotic disorder or the Global Assessment of Function ( GAF ) score of 50. [See 16 AR 162-175, 197-210]. Plaintiff argues that Dr. DeVera s reports establish that plaintiff suffers from a 17 severe mental impairment that causes significant limitations, and that the ALJ did not properly consider 18 all of the findings made by Dr. DeVera. [See JS 8-12]. Plaintiff further contends that the ALJ improperly 19 rejected a Work Capacity Evaluation (Mental) signed by Dr. DeVera on August 30, 2006. [See JS 15-16; 20 AR 197-198]. 21 The ALJ said that progress notes from County Behavioral Health indicated that plaintiff received 22 routine care for a depressive disorder and do not reflect any acute mental health crisis requiring inpatient 23 hospitalization or intensive treatment. [AR 13]. The ALJ further noted that on mental status examination, 24 plaintiff exhibited normal memory, speech, and thought processes, was fully oriented, had fair insight and 25 judgment, and endorsed visual hallucinations and paranoia. [AR 13]. The ALJ added that 26 [o]ver the course of treatment, the claimant s mood became more stable, he said he was 27 doing better, was less paranoid, had fewer hallucinations, and his mood was becoming more 28 stable. Treating notes from Dr. DeVera also indicate that the claimant was improving and 4 1 doing well on his medications. . . . 2 ... 3 Dr. DeVera completed a mental work capacity form and marked most domains as marked 4 limitation; yet his own treating notes indicate that the claimant was improving and doing 5 well on his medications. His treating notes show the claimant s memory was intact, he was 6 doing alright, had only occasional bad moods, and was alert and oriented. The auditory 7 hallucinations were getting better. 8 [AR 13-14 (internal citations omitted)]. 9 Contrary to plaintiff s argument, the ALJ did not reject either Dr. DeVera s diagnosis or 10 his conclusion that plaintiff had a severe mental impairment that caused significant functional 11 limitations. Rather, the ALJ found that plaintiff had a severe psychotic disorder that caused 12 nonexertional limitations that significantly restricted the jobs plaintiff could perform, but did 13 not preclude him from working altogether. 14 Furthermore, the ALJ did not err in rejecting Dr. DeVera s August 2006 mental 15 functional assessment, which was reflected on a check the box evaluation form. [AR 197-198]. 16 The ALJ permissibly rejected Dr. DeVera s opinion because it was inconsistent with his treatment notes, 17 which indicated that although he still exhibited some symptoms, such as some paranoia or blunted affect, 18 plaintiff was responding well to medication and doing pretty well. [See AR 200 (July 20, 2007 progress 19 note stating that plaintiff was becoming more stable and told Dr. DeVera he was doing alright ); AR 202 20 (May 24, 2007 progress note stating that plaintiff is doing well [with] the current regimen ); AR 203 (May 21 18, 2007 progress note stating that plaintiff was improving and reported that he was doing alright ); AR 22 204 (April 20, 2007 progress note stating that plaintiff reported less voices but still had paranoia); AR 205 23 (February 16, 2007 progress note stating that plaintiff was improving and said he was able to separate 24 what is read and what is not ); AR 208 (November 7, 2006 progress note stating that plaintiff is doing 25 fairly well except for some hallucinations and some lability of emotion ); AR 212 (April 2006 progress note 26 stating that plaintiff said he was fine, his mood was getting better, and that he still heard voices but did 27 not have paranoia)]. Dr. DeVera s notes, moreover, do not contain clinical findings substantiating the 28 degree of limitation indicated on the evaluation form. See Bayliss, 427 F.3d at 1217 (noting that an ALJ 5 1 need not accept the opinion of a doctor if that opinion is brief, conclusory, and inadequately supported by 2 clinical findings, and holding that the ALJ properly rejected a treating physician's opinion that was 3 contradicted by the doctor's treatment notes); Connett v. Barnhart, 340 F.3d 871, 874-875 (9th Cir. 2003) 4 (holding that the ALJ did not err in rejecting the controverted opinion of a treating physician whose 5 restrictive functional assessment was not supported by his treatment notes); see also Batson, 359 F.3d at 6 1195 & n.3 (upholding the ALJ's rejection of an opinion that was conclusionary in the form of a 7 check-list, and lacked supporting clinical findings). 8 legitimate reasons supporting his assessment of Dr. DeVera s opinion. Accordingly, the ALJ provided specific, 9 The GAF score of 50 given by Dr. DeVera in his initial evaluation of plaintiff in March 10 2005 does not compel a different conclusion.1 The Commissioner has not endorsed the use of 11 the GAF scale in the social security disability context, and the GAF scale does not have a direct 12 correlation to the severity requirements in our mental disorders listings. Revised Medical Criteria 13 for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. 50746, 50764-65 (August 21, 14 2000). The ALJ found that plaintiff had a severe mental impairment and gave legally adequate reasons 15 for rejecting Dr. DeVera s functional assessment. Even if the GAF score is accepted at face value, it 16 describes plaintiff s current condition in May 2005, before he started treatment with Dr. DeVera, and before 17 plaintiff filed his application for benefits in October 2005.2 Therefore, the ALJ s failure to discuss plaintiff s 18 GAF score was not legal error. See Howard v. Comm r of Social Sec., 276 F.3d 235, 241 (6th Cir. 2002) 19 20 21 22 23 24 25 26 27 28 1 The GAF score is a multiaxial assessment that reflects a clinician's subjective judgment of a patient s overall level of functioning by asking the clinician to rate two components: the severity of a patient's psychological symptoms, or the patient s psychological, social, and occupational functioning. The GAF score is the lower of the symptom severity score or the functioning severity score. A GAF score of 41 through 50 denotes serious symptoms, such as suicidal ideation or severe obsessional rituals, or any serious impairment in social, occupational, or school functioning, such as the absence of friends or the inability to keep a job. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ( DSM-IV ) Multiaxial Assessment, 27-36 (rev. 2000)); see also Morgan, 169 F.3d at 598 n.1( Clinicians use a GAF to rate the psychological, social, and occupational functioning of a patient. ). 2 Plaintiff is not eligible for to receive SSI benefits for the period prior to November 2005 because SSI benefits are payable no earlier than the month following the month in which the application was filed. See 20 C.F.R. §§ 416.330, 416.335. 6 1 ( While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to 2 the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not 3 make the RFC inaccurate. ); Roach v. Astrue, 2009 WL 2407961, at *4 (C. D. Cal. 2009)(holding that the 4 ALJ erred in failing to address a treating source GAF score of 47 where he provided [no] other rationale 5 for otherwise rejecting a treating physician s opinion of a claimant s overall mental functioning, and such 6 opinion as expressed in a GAF score clearly contradicts the ALJ s finding that the claimant had no severe 7 mental impairment). 8 Social worker s opinion 9 Plaintiff contends that the ALJ erred in failing to consider the opinion of Elizabeth 10 Ustick, M.S.W., a social worker at County Behavioral Health who completed a clinical 11 assessment update of plaintiff in May 2005. [See JS 7-8; AR 175]. In her report, Ms. Ustick 12 gave plaintiff a severe dysfunction rating under County Behavioral Health standards. She 13 concluded that plaintiff has a [d]istorted view of reality, is moody and isolative when anger 14 and irritability build, could not sustain parenting alone, and could not hold a job at this time. 15 [AR 175]. 16 report or present with disorganized speech, grossly disorganized or catatonic behavior, or 17 affective flattening. 18 hallucinations as a teenager and continued to do so, but that he got along fairly well without 19 medication because he was used to the crazy thoughts and things. He said that was raising 20 his son with a lot of help from mom. He said that he worked as a dog bather in a dog 21 grooming business, short order cook, and laborer (shoveling cement). [AR 174-175]. Ms. Ustick noted that plaintiff was well-groomed and cooperative and did not Plaintiff told her that he began experiencing auditory and visual 22 Evidence from an acceptable medical source is required to establish the existence of a 23 medically determinable impairment, that is, an impairment that can serve as the basis for a 24 finding of severity or disability. See 20 C.F.R. §§ 404.1508, 404.1513(a), 416.980, 416.913(a). Unlike 25 a licensed physician or psychologist, a social worker is not an acceptable medical source whose findings 26 can establish the existence of a medically determinable impairment. A social worker falls into the category 27 of other sources. See 20 C.F.R. §§ 404.1513(d), 416.913(d). The ALJ may also use information in 28 the record from other sources to show the severity (but not the existence) of a claimant s medically 7 1 determinable impairments and how those impairments affect the ability to work 20 C.F.R. §§ 404.1513(d), 2 416.913(d). Ordinarily, however, the ALJ is not required to give that information the same weight as 3 information from an acceptable medical source. See Gomez v. Chater, 74 F.3d 967, 970-971 (9th Cir.) 4 (explaining that opinions from other sources may be given less weight than those from acceptable 5 medical sources under the governing regulations), cert. denied, 519 U.S. 881 (1996); see generally Social 6 Security Ruling ( SSR ) 06-03p, 2006 WL 2329939, at *1-*6. 7 The ALJ discussed and considered the reports of Dr. DeVera, who was an acceptable medical source 8 and who began treating plaintiff shortly after he was evaluated by Ms. Ustick. Dr. DeVera did not sign Ms. 9 Ustick s report, nor is there other evidence in the record suggesting that he adopted all of her conclusions. 10 Moreover, Ms. Ustick s May 2005 report was a one-time evaluation, conducted before plaintiff began 11 psychiatric treatment with Dr. DeVera, and several months before he filed his SSI benefits application on 12 October 13, 2005. [JS 2]. Accordingly, the ALJ permissibly disregarded Ms. Ustick s report. 13 Past relevant work 14 Plaintiff contends that the ALJ s finding that plaintiff can perform his past relevant work 15 as a dog bather is inconsistent with plaintiff s RFC as articulated by the ALJ. [See JS 10-14]. 16 Plaintiff argues that the Dictionary of Occupational Titles ( DOT ) states that the job of dog 17 bather entails a reasoning level of 3, and that a reasoning level of 3 is inconsistent with 18 plaintiff s RFC for simple, repetitive work. [See JS 17-24]. 19 DOT jobs classifications include a General Educational Development ( GED ) 20 component comprising three scales: Reasoning Development, Math Development, and 21 Language Development. The GED reasoning, math, and language development scales range 22 from Level 1 (low) to Level 6 (high). Level 2 reasoning is defined as the ability to [a]pply 23 commonsense understanding to carry out detailed but uninvolved written or oral instructions. 24 Deal with problems involving a few concrete variables in or from standardized situations. See 25 DOT, Appendix C, Components of the Definition Trailer (4th ed. rev.1991). Level 3 reasoning 26 is defined as the ability to [a]pply commonsense understanding to carry out instructions furnished in 27 written, oral, or diagrammatic form. Deal with problems involving several concrete variables in or from 28 standardized situations. DOT, App. C. 8 1 A claimant is not disabled if he retains the residual functional capacity to perform the 2 actual functional demands and job duties of a particular past relevant job or the functional 3 demands and job duties of the occupation as generally required by employers throughout the 4 national economy. Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001) (quoting SSR 82- 5 62); see also Burch, 400 F.3d at 679; Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) ( The 6 claimant has the burden of proving an inability to return to his former type of work and not just 7 to his former job. ). The claimant is in the best position to describe just what he or she did 8 in [past relevant work], how it was done, what exertion was involved, what skilled or semiskilled 9 work activities were involved, etc. SSR 82-41, 1982 WL 31389, at *4. Where, however, the 10 ALJ s step-four finding rests on a determination that the claimant can perform her past relevant 11 work as generally performed, rather than as actually performed in a particular past job, the 12 DOT or a vocational expert must be consulted to determine the functional demands and job 13 duties of the occupation as generally required by employers throughout the national economy. 14 Pinto, 249 F.3d at 845-846. 15 The ALJ found that plaintiff could perform his past relevant work as a dog bather as 16 plaintiff actually performed that job, not as generally required by employers. Therefore, the job 17 classification information in the DOT does not control. In his vocational report, plaintiff stated 18 that his past job as a dog bather at Petco did not require use of any machines or equipment, 19 involved no technical knowledge or skills, did not require writing or completing reports, and did 20 not involve supervising others. [AR 115]. Plaintiff testified that he left that job [b]ecause I 21 wanted to take a class, and then but then I started thinking that the manager like was against 22 me. And then I just walked out one day. [AR 36]. Nothing in plaintiff s vocational report or 23 testimony suggests that the job of dog bather as he actually performed it required more than 24 simple, repetitive tasks, as envisioned by the ALJ s RFC finding. Accordingly, plaintiff s 25 argument to the contrary lacks merit. 26 27 28 Conclusion The Commissioner's decision is supported by substantial evidence and is free of legal error. Accordingly, the Commissioner's decision is affirmed. 9 1 IT IS SO ORDERED. 2 3 DATED: November 5, 2009 _________________________ ANDREW J. WISTRICH United States Magistrate Judge 4 5 6 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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