Amy Adams v. Michael J Astrue, No. 5:2008cv01449 - Document 17 (C.D. Cal. 2010)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh: The Agencys decision is affirmed and the case is dismissed with prejudice. IT IS SO ORDERED. (ca)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 AMY ADAMS, Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 08-1449-PJW MEMORANDUM OPINION AND ORDER 16 17 18 I. INTRODUCTION Before the Court is Plaintiff s appeal of a decision by Defendant 19 Social Security Administration ( the Agency ), denying her 20 applications for Disability Insurance benefits ( DIB ) and 21 Supplemental Security Income ( SSI ). 22 Administrative Law Judge ( ALJ ) erred in failing to: 1) properly 23 consider the state agency psychiatrist s opinion; 2) pose a complete 24 hypothetical question to the vocational expert; 3) properly consider 25 lay witness testimony; and 4) develop the record. 26 5, 7-9, 10-13, 15-19.) 27 was not disabled within the meaning of the Social Security Act is 28 supported by substantial evidence, it is affirmed. Plaintiff claims that the (Joint Stip. at 3- Because the Agency s decision that Plaintiff 1 2 II. SUMMARY OF PROCEEDINGS Plaintiff applied for DIB and SSI on November 2, 2006, alleging 3 that she had been unable to work since July 1, 2006, because of 4 Asperger s Syndrome and agoraphobia. 5 118, 137, 169.) 6 reconsideration. 7 granted a hearing before an ALJ. 8 appeared with counsel and testified at a hearing on June 6, 2008. 9 20-49.) (Administrative Record ( AR ) The Agency denied the application initially and on (AR 54-58, 62-66.) Plaintiff then requested and was (AR 68, 108-115.) Plaintiff (AR On August 7, 2008, the ALJ issued a decision denying 10 benefits. 11 which denied review. 12 action. (AR 5-15.) Plaintiff appealed to the Appeals Council, (AR 1-4.) 13 Plaintiff then commenced the instant III. DISCUSSION 14 1. 15 In her first claim of error, Plaintiff contends that the ALJ 16 erred in failing to properly consider an opinion of Dr. H.C. Amado, a 17 state agency reviewing physician. 18 argues that the ALJ was required to consider Dr. Amado s findings and 19 to give those findings some weight, unless the ALJ specifically chose 20 to reject them. 21 this claim is rejected. 22 The State Agency Reviewing Psychiatrist s Opinion (Joint Stip. at 3-5.) (Joint Stip. at 3, 5.) Plaintiff For the following reasons, ALJ s are required to consider the opinions of non-examining, 23 consulting doctors. 20 C.F.R. §§ 404.1527(f)(1), (2); 416.927(f)(1), 24 (2); Social Security Ruling 96-6p; see also Andrews v. Shalala, 53 25 F.3d 1035, 1041 (9th Cir. 1995) (suggesting that a non-examining 26 doctor s opinion is entitled to at least some weight). 27 consulting doctor. Dr Amado was a He never examined or treated Plaintiff. 28 2 Instead, 1 he reviewed the records of the doctors who had examined or treated 2 Plaintiff and offered his opinion based on those reports. 3 Dr. Amado s opinion was contained in two check-the-box forms. 4 The first was a Psychiatric Review Technique form in which he opined 5 that Plaintiff had a medically-determinable anxiety disorder, not 6 otherwise specified, and Asperger Syndrome. 7 Plaintiff s degree of limitation as moderate for social functioning, 8 concentration, persistence, and pace, and mild for activities of 9 daily living. 10 11 (AR 249.) (AR 241-53.) He rated He found that there was no evidence of repeated episodes of decompensation. (AR 249.) In the Consultant s Notes section of the form, Dr. Amado 12 reported that Plaintiff had been previously diagnosed with 13 developmental autism variant as well as agoraphobia, but had never 14 received treatment. 15 psychiatric examiner had made fairly benign findings, including a 16 Global Assessment Functioning ( GAF ) score of 70, and concluded: 17 It appears overall that available [evidence of record] 18 supports the presence of a psych[iatric medically 19 determinable impairment] which would not preclude the 20 ability to sustain at least unskilled work activity, in a 21 low-stress environment away from the general public. 22 restricted determination could result if claimant were to 23 avail herself of psychotherapy and/or medications for 24 depression/anxiety, which could likely improve her quality 25 of life. 26 supported within the available [medical evidence of record] 27 at this time. 28 (AR 251.) He noted that the consultative A less Mental allegations are seen to be partially (AR 251.) 3 1 The second from he completed was a Mental Residual Functional 2 Capacity Assessment form. (AR 238-40.) In the Summary Conclusions 3 portion of that form, Dr. Amado opined that Plaintiff would be 4 moderately limited in her ability to carry out detailed 5 instructions, maintain attention and concentration for extended 6 periods, interact appropriately with the general public, accept 7 instructions and respond appropriately to criticism from supervisors, 8 get along with coworkers and peers, respond appropriately to changes 9 in the work setting, travel to unfamiliar places or use public 10 transportation, set realistic goals, and make plans independently of 11 others. 12 of the form, Dr. Amado explained the bases for these opinions, 13 directing the reader to Please see CNN and 2506 IV. 14 CNN apparently refers to the Case Analysis prepared by the state 15 agency, which concluded that Plaintiff would be restricted to simple, 16 repetitive, non-public work. 17 refer to the Psychiatric Review Technique form, designated form 2506, 18 discussed above. (AR 238-39.) In the Functional Capacity Assessment portion (AR 253.) (AR 240.) The term 2506 IV appears to (AR 241-52.) 19 In his decision, the ALJ found at step two that Plaintiff s 20 mental impairment resulted in mild restrictions in activities of daily 21 living and moderate difficulties in social functioning, concentration, 22 persistence, and pace. 23 from Dr. Amado. 24 residual functional capacity would restrict her to simple repetitive 25 tasks with preclusion from public contact and assembly line work. 26 (AR 11.) 27 28 (AR 11.) (AR 249.) Clearly, these findings were taken The ALJ then found that Plaintiff s Though Dr. Amado reported Plaintiff s limitations in slightly different language in the Summary Conclusions portion of the check4 1 the-box form, it is clear from the forms that he filled out that he 2 believed that Plaintiff s mental limitations would not preclude her 3 from unskilled, low-stress work away from the general public.1 4 240, 251.) 5 opinion but, in fact, adopted it in most respects, he was not required 6 to set forth why he was rejecting the opinion. 7 that the ALJ erred because he failed to specifically address each of 8 the limitations found by Dr. Amado in the check-the-box forms is 9 rejected. (AR Because the ALJ not only took into account Dr. Amado s That was not required. Plaintiff s argument See Bayliss v. Barnhart, 427 F.3d 10 1211, 1217 (9th Cir. 2005) (affirming ALJ s residual functional 11 capacity determination where he applied the proper legal standard and 12 his decision [wa]s supported by substantial evidence. ); see also 13 Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 14 (holding ALJ is not required to discuss every piece of evidence so 15 long as the decision is supported by substantial evidence). 16 reasons, the Court concludes that the ALJ did not err with respect to 17 Dr. Amado s opinion. For these 18 2. 19 In her second claim of error, Plaintiff contends that the ALJ 20 erred when he failed to incorporate Dr. Amado s limitations in the 21 hypothetical question to the vocational expert. 22 Again, the Court disagrees. 23 The Hypothetical Question to the Vocational Expert (Joint Stip. at 7-9.) A hypothetical question that does not include all of a claimant s 24 restrictions is legally inadequate. 25 466 F.3d 880, 886 (9th Cir. 2006). Robbins v. Soc. Security Admin., An ALJ may, however, limit a 26 27 28 1 Moreover, the ALJ expressly rejected the consultative psychiatrist s finding that Plaintiff had no limitations, as did Dr. Amado. (AR 13, 251.) 5 1 hypothetical to only those restrictions that are supported by 2 substantial evidence in the record. 3 Bayliss, 427 F.3d at 1217-18. The ALJ asked the vocational expert to assume a hypothetical 4 person with Plaintiff s background and education, who could do light 5 work, but was restricted in the use of her right arm, and who could do 6 simple work, not fast-paced production-type work, with no public 7 interaction. 8 assume that the person would work best alone, but would not be 9 precluded from working around others. (AR 45.) The ALJ asked the vocational expert to also (AR 45.) The vocational expert 10 testified that the hypothetical person could not perform any of 11 Plaintiff s past work, or any other work. 12 (AR 46.) The ALJ then expanded the hypothetical question to include 13 someone who could perform production work, such as light janitorial 14 work, office work or something like that, but could not perform 15 assembly line work. 16 expert found that such a hypothetical person could work as a data 17 entry clerk or housekeeper/cleaner. (AR 46.) With that revision, the vocational (AR 47.) 18 Contrary to Plaintiff s arguments, this hypothetical question 19 properly reflected Dr. Amado s conclusion that Plaintiff could perform 20 unskilled work in a low-stress environment away from the general 21 public. 22 Amado s ultimate residual functional capacity assessment, as opposed 23 to Dr. Amado s summary conclusions in his check-the-box form which the 24 ALJ did not accept, the ALJ did not err in declining to include in the 25 hypothetical question other limitations. 26 1217 (upholding ALJ s hypothetical question that contained all the 27 limitations found credible and supported by substantial evidence in 28 the record). (AR 251.) Because these limitations were consistent with Dr. See Bayliss, 427 F.3d at Thus, this claim does not warrant remand or reversal. 6 1 3. Lay Witness Testimony 2 In her third claim of error, Plaintiff contends that the ALJ 3 erred by failing to properly discuss the written testimony of her 4 mother, Gina Rider. 5 her mother offered detail on Plaintiff s inability to function, but 6 that the ALJ stated only that the mother s statements were somewhat 7 consistent with his residual functional capacity determination, 8 without specifying which parts of her statements were not consistent 9 and why he concluded that they were not. 10 11 (Joint Stip. at 10-13.) Plaintiff argues that (Joint Stip. at 11-12.) This claim has no merit. An ALJ must consider lay witness testimony concerning a 12 claimant's ability to work. 13 F.3d 1050, 1053 (9th Cir. 2006); Smolen v. Chater, 80 F.3d 1273, 1288 14 (9th Cir. 1996); 20 C.F.R. §§ 404.1513(d)(4),(e). 15 ALJ need only give reasons that are germane to the testimony in 16 order to reject it. 17 Stout v. Comm r, Soc. Sec. Admin., 454 Bayliss, 427 F.3d at 1218. Nevertheless, an Here, the ALJ did so. Plaintiff s mother filled out and submitted two forms in support 18 of Plaintiff s applications. 19 2006 form, she reported that Plaintiff helped with chores and played 20 with a dog during the day. 21 needed reminders to take medication and had difficulty with 22 comprehension, but could do her own laundry and load and unload the 23 dishwasher. 24 very nervous about going anywhere alone, but would accompany her 25 shopping. 26 social life somewhat on her computer, and reported that she 27 finally has a few friends. 28 observed that Plaintiff had a very low tolerance for being teased, (AR 153.) (AR 154.) (AR 151-59; 188-96.) (AR 151-52.) In a November 16, She offered that Plaintiff According to Plaintiff s mother, Plaintiff was She also reported that Plaintiff has found a (AR 155.) 7 Plaintiff s mother also 1 seemed angry a lot of the time, and had always been quite anti-social. 2 (AR 156.) 3 some difficulty with concentration, and sometimes could not follow 4 written instructions, depend[ing] on complexity[.] 5 According to Plaintiff s mother, Plaintiff did not know what to say in 6 social situations, but had always gotten along very well with 7 authority figures. 8 not handle stress or changes in routine well at all. 9 In addition, Plaintiff s mother believed that Plaintiff had (AR 157, 158.) (AR 156.) She believed that Plaintiff did (AR 158.) In a February 15, 2007 statement, she provided a very similar 10 description of Plaintiff s activities and limitations. 11 Plaintiff had trouble counting and telling time, unless a clock was 12 digital. 13 a week to church and had no problem paying attention. 14 She believed that Plaintiff had become more and more unwilling to go 15 out around people, but noted that Lexapro seemed to be helping her 16 relax more and not get so angry and irritated easily. (AR 191.) She added that The mother reported that Plaintiff went out once (AR 193, 194.) (AR 196.) 17 In his decision, the ALJ stated that he had considered the 18 mother s statements and that he accepted them to the extent that they 19 were consistent with his residual functional capacity determination. 20 (AR 12.) 21 to was based on the objective medical evidence and the ALJ s finding 22 that Plaintiff was not as functionally limited as she claimed. 23 11-12.) 24 though terse, is germane to the testimony. 25 1218 (affirming ALJ s rejection of lay witness testimony because it 26 was inconsistent with medical evidence). 27 is affirmed. 28 specify which parts of the mother s testimony he accepted and which The residual functional capacity determination he referred (AR This justification for rejecting the mother s testimony, See Bayliss, 427 F.3d at As such, the ALJ s finding Plaintiff s argument that the ALJ was required to 8 1 parts he rejected is overruled. The ALJ was not required to discuss 2 each point made by the mother and explain why he did not accept it. 3 Rather, it was enough for him to merely set forth a germane reason for 4 discounting the mother s testimony as a whole.2 5 4. Failure To Develop The Record 6 In her fourth claim of error, Plaintiff contends that the ALJ 7 failed to properly develop the record when he rejected a medical 8 report, in part, because it was unclear who had completed the form and 9 what relationship that person had to Plaintiff, and, further, because 10 it might represent a vocational opinion beyond the scope of that 11 person s expertise. 12 if the ALJ believed that there was insufficient information to 13 determine who completed the form, he was obligated to recontact the 14 facility to find out. 15 that the ALJ s other basis for rejecting the form -that it was 16 inconsistent with treatment notes from the same facility -is not 17 supported by substantial evidence. 18 following reasons, this claim is rejected. 19 (Joint Stip. at 15-19.) Plaintiff argues that, (Joint Stip. at 16-17.) Plaintiff also argues (Joint Stip. at 17-18.) For the Plaintiff s objections here center on a Riverside County Mental 20 Health form, entitled Narrative Report (Adult), dated March 15, 21 2007. 22 and chronic social phobia. 23 contained on the form, the health care provider indicated that 24 Plaintiff is unable to maintain a sustained level of concentration, (AR 265.) The form includes a diagnosis of Asperger s Disorder (AR 265.) In response to Yes/No questions 25 26 27 28 2 Had the ALJ been more clear in his decision, this challenge could have been avoided. Though the standard for rejecting lay testimony is low, the ALJ should still endeavor to set forth his reasons clearly to avoid needless disputes. 9 1 sustain repetitive tasks for an extended period of time, adapt to new 2 or stressful situations, and interact appropriately with strangers, 3 co-workers, or supervisors. 4 Plaintiff cannot complete a 40-hour work week without decompensating 5 and that her prognosis is chronic. 6 (AR 265.) The form also states that (AR 265.) The ALJ stated that he gave little weight to the 7 questionnaire s conclusion that Plaintiff was incapable of completing 8 a 40-hour work week without decompensation: 9 First, it is unclear who is completing this form, what their 10 relationship is to claimant and whether they represent an 11 appropriate medical source. 12 a vocational opinion that, as far as I know, may or may not 13 be within the individual s expertise. 14 appears inconsistent with other [Riverside County Mental 15 Health] treatment notes indicating good response to 16 medications and appropriate behavior in all respects with 17 few, if any episodes, of low functioning. 18 19 Second, this opinion represents Third, this opinion (AR 13.) The ALJ did not err in failing to develop the record with respect 20 to this report. 21 triggered when there is ambiguous evidence or an inadequacy in the 22 record prevents a proper evaluation of the disability claim. 23 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); see also 20 24 C.F.R. §§ 404.1512(e), 416.912(e). 25 was unclear who completed the form did not prevent him from evaluating 26 the opinion contained therein, and Plaintiff s disability claim in 27 general. 28 for further clarification. His duty to fully develop the record is only Here, the ALJ s finding that it Thus, he was not obligated to recontact Plaintiff s doctors See Bayliss, 427 F.3d at 1217. 10 1 Moreover, even assuming that the form represented a treating 2 physician s opinion that Plaintiff was impaired, the ALJ was not 3 required to accept it. 4 contradicted by the chart notes that preceded and followed it. 5 310-33.) 6 and legitimate reason, see Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 7 2007) (stating that ALJ must provide specific and legitimate reasons, 8 supported by substantial evidence in the record, for rejecting 9 treating doctor s opinion that is contradicted by a non-treating 10 doctor s opinion) (citation omitted), and this is a specific and 11 legitimate reason for rejecting an opinion. 12 Comm r, Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) (holding 13 inconsistencies within and between treating physicians reports 14 support rejection of the treating opinion). 15 warrant remand.3 As he noted, the March 2007 opinion was An ALJ can reject a treating doctor s opinion for specific See, e.g., Morgan v. Thus, this claim does not IV. CONCLUSION 16 17 (AR For these reasons, the Agency s decision is affirmed and the case 18 is dismissed with prejudice. 19 IT IS SO ORDERED. 20 DATED: March 1, 2010. 21 22 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 23 24 S:\PJW\Cases-Soc Sec\Adams\Memo_Opinion.wpd 25 26 27 28 3 Had the ALJ rejected the opinion solely because it was unclear who had rendered it and what his or her expertise was, the Court would have sided with Plaintiff. But, because the ALJ set forth a specific and legitimate reason for rejecting the report, which was supported by substantial evidence, his decision will not be disturbed. 11

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