Jaime Perdomo v. Michael J Astrue, No. 5:2008cv01690 - Document 16 (C.D. Cal. 2009)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal: IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (dhl)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 JAIME PERDOMO, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) _______________________________) NO. EDCV 08-01690 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Jaime Perdomo ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter the Commissioner or the Agency ) denying his application 24 for Supplemental Security Income ( SSI ). 25 pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. 27 parties Joint Stipulation ( Jt. Stip. ), filed on July 9, 2009. 28 the reasons stated below, the decision of the Commissioner is AFFIRMED. The parties consented, This matter is before the Court on the For 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for SSI on April 19, 2006. 5 (Administrative Record ( AR ) 72). He claimed that his disability onset 6 date was July 17, 1995. 7 on September 6, 2006. 8 a request for reconsideration. 9 initial denial of benefits on February 2, 2007. (AR 94). (AR 75). The Commissioner denied SSI benefits On September 15, 2006, Plaintiff filed (AR 80). The Commissioner upheld the (AR 84). On March 6, 10 2007, Plaintiff requested a hearing before an Administrative Law Judge 11 ( ALJ ). (AR 90). 12 13 On February 26, 2008, ALJ Jay E. Levine held a hearing to consider 14 Plaintiff s claims. 15 Plaintiff was not disabled. 16 review of the hearing decision on July 16, 2008. 17 Council denied this request on September 23, 2008. 18 filed the instant Complaint on December 3, 2008. (AR 33). On June 17, 2008, the ALJ found that (See AR 8-22). Plaintiff requested a (AR 4). The Appeals (AR 1). Plaintiff 19 20 III. 21 FACTUAL HISTORY 22 23 A. Generally 24 25 Plaintiff was born on August 13, 1970 and was 37 years old at the 26 time of the hearing. (AR 94). He has limited education and did not 27 graduate from high school. 28 Plaintiff claims to have never held a job. (AR 39-41). 2 In various disability reports (See, e.g., AR 98). 1 However, at the hearing Plaintiff testified that he had worked as a 2 carpet 3 Additionally, Plaintiff works for his sister, watching her autistic son. 4 (AR 37). 5 injury in 1973 resulting in an inability to remember, concentrate, or 6 answer questions. cleaner and as a car windshield repairman. (AR 60). Plaintiff claims that he is unable to work due to a brain (AR 98). 7 8 B. Relevant Medical History 9 10 1. Treating Physician 11 12 The medical records from Plaintiff s treating psychiatrist are 13 sparse. Plaintiff met with Dennis Payne, M.D., for the first time on 14 October 7, 2005. 15 Plaintiff made poor eye contact and was withdrawn. 16 described Plaintiff as having a poverty of speech [and] thought 17 content. 18 depressed and found that he exhibited thought blocking, he also found 19 that Plaintiff s perceptual process and thought content were within 20 normal limits. 21 judgment were poor, and Plaintiff s memory was impaired. 22 Payne ultimately concluded that Plaintiff had dementia, a non-specific 23 depressive disorder, and borderline intellectual functionality. 24 Dr. Payne did not diagnose Plaintiff with any specific disorders. 25 (Id.). (Id.). (See AR 208). At the time, Dr. Payne found that (AR 209). He also Although Dr. Payne considered Plaintiff to be (Id.). In Dr. Payne s opinion, Plaintiff s insight and Dr. Payne prescribed Paxil. (Id.). Dr. (Id.). (Id.). 26 27 28 Plaintiff returned to Dr. Payne intermittently for several months, and the treatment notes from that period are few and brief. 3 (See AR 1 290-311). 2 medication was fairly effective. 3 accompanied him on his visits to Dr. Payne, reported that he was doing 4 better, with a fifty-percent improvement. 5 however, numerous times when Plaintiff failed to keep his appointments 6 with Dr. Payne, (see AR 291, 300, 304, 308), or was not fully compliant 7 with the treatment plan. When Plaintiff complied with Dr. Payne s treatment plan, the (AR 306). Plaintiff s sister, who (AR 297-98). There were, (See AR 305, 203). 8 9 Dr. Payne apparently was not aware of any substance abuse by 10 Plaintiff. (AR 310). 11 illegal drug use and alcoholism. 12 influence of alcohol and methamphetamine. 13 heavily until 2001 or 2002. 14 age 15 methamphetamine until 2002. 16 stop living with them, in part, because of his drug use. thirteen, and However, Plaintiff has a significant history of was a He was arrested for driving under the (Id.). chronic Plaintiff drank He began using illicit drugs at user (Id.). (AR 159). of marijuana, cocaine, and Plaintiff s parents asked him to (AR 158). 17 18 Although Dr. Payne did not specifically address his lack of 19 knowledge about Plaintiff s substance abuse history, he did admit that 20 he did not have a good feel for Plaintiff. 21 met with Plaintiff, Plaintiff was always accompanied by his sister, who 22 did most of the talking. 23 knows about Plaintiff comes from Plaintiff s sister. (Id.). (AR 227). When Dr. Payne Dr. Payne stated that most of what he (Id.). 24 25 2. Consultative Physicians 26 27 28 On September 30, 2003, Dr. Jagvinder Singh performed an internal medicine consultation on Plaintiff. 4 (See AR 152-56). Dr. Singh is 1 board certified in internal medicine. 2 to Dr. Singh that he had memory problems, depression, and that he was 3 unable to control his anger. 4 did not have dementia, but noted that Plaintiff was [a] little slow on 5 mathematical skills. 6 no problem in dressing, grooming and bathing himself. 7 cooking, vacuuming, dishwashing, and watches television. (AR 152). In 8 evaluating Petitioner s physical ability to work, Dr. Singh stated: (AR 156). (AR 152). (AR 155). Plaintiff complained Dr. Singh opined that Plaintiff Dr. Singh reported that Plaintiff had [Plaintiff did] 9 10 I think that [Plaintiff] is able to stand and walk for 6 11 hours. 12 use of assistive devices. 13 occasionally 14 Posturally and manipulatively there are no restrictions. 15 Environmentally, [Plaintiff] should avoid working at extremes 16 of temperature and at heights. Sitting is no restriction. and He does not require the He would be able to lift and carry frequently is [sic] 50 & 25 pounds. 17 18 (AR 156). 19 20 On October 1, 2003, Dr. Kim Goldman, a clinical psychologist, (See AR 158-62). 21 performed a psychological evaluation of Plaintiff. 22 During the examination, Plaintiff responded in a coherent and relevant 23 fashion. 24 day of the week and the date, and he knew both the city of the 25 examination and his city of residence. 26 and birthday, as well as the current and previous President. 27 was able to recall two of three objects after a five minute delay. 28 (Id.). The rate of his speech was normal. (Id.). (AR 159). He knew the Plaintiff knew his age (Id.). He Nonetheless, Plaintiff was low functioning in some categories. 5 1 He claimed not to know the alphabet and could not recite it. 2 Dr. Goldman found Plaintiff s I.Q. to be sixty-four. 3 overall thinking and reasoning abilities were in the first percentile. 4 (Id.). (AR 160). His (Id.). 5 6 Dr. Goldman specifically test results warned be of interpreted the with report that 7 Plaintiff s 8 [Plaintiff] did not appear to make his best effort on the tasks 9 presented to him. (Id.). should readers caution as Dr. Goldman specifically cited Plaintiff s 10 inability to reproduce more than nine out of fifteen items from memory 11 as evidence of not making his best effort on the tests. 12 Goldman ultimately concluded that: (AR 161). Dr. 13 14 [Plaintiff s] ability to understand, carry out and remember 15 simple instructions is not impaired. 16 appropriately to coworkers, supervisors and the public is 17 mildly impaired due to limits in his cognitive functioning. 18 His ability to respond appropriately to usual work situations 19 and deal with changes in a routine work setting is mildly to 20 moderately 21 functioning. impaired due to His ability to respond limits in his cognitive 22 23 (AR 162). 24 25 On January 13, 2004, Dr. John Woodard performed a psychological 26 evaluation of Plaintiff. (See AR 184-87). 27 eligible neurologist and psychiatrist. 28 6 Dr. Woodard is a board (AR 187). Dr. Woodard found 1 that Plaintiff had a history of abusive alcohol consumption as well as 2 methamphetamine abuse. (AR 184). 3 4 In evaluating Plaintiff s intellectual functioning, Dr. Woodard 5 found that Plaintiff could recall both the current President and three 6 former Presidents. 7 events. 8 without error, and had an average range vocabulary. 9 Woodard found that: (Id.). (AR 186). Plaintiff had knowledge of current He could subtract sevens serially from 100 to 72 (Id.). Dr. 10 11 [Plaintiff s] 12 interacting with the public; slight for interacting with 13 supervisors and co-workers, for maintaining concentration and 14 attention, for withstanding normal stresses and pressures in 15 the workplace, and for performing detailed, complex tasks; and 16 none for performing simple repetitive tasks. 17 slight for working on a continuous basis without special 18 supervision and slight to moderate for completing a normal 19 workweek without interruption. [i]mpairments are slight to moderate for Incapacity is 20 Dr. Woodard concluded that Plaintiff s prognosis was good for 21 (Id.). 22 improvement in psychiatric status with abstinence from alcohol and 23 illegal drugs and with appropriate treatment. (AR 187). 24 25 Plaintiff s final consultative examination was on May 5, 2006, with 26 Dr. Clifford Taylor, a licensed clinical psychologist. (See AR 190-94). 27 During this evaluation, Plaintiff stated that he had never worked in any 28 capacity, and his sister stated that he had never attended school. 7 (AR 1 191). Plaintiff denied any current or past use of illegal drugs, and 2 also denied ever being arrested. 3 sister provided Dr. Taylor with any medical records. (Id.). Neither Plaintiff nor his (AR 191-92). 4 5 Dr. Taylor evaluated Plaintiff s mental status and found that he 6 had an I.Q. of forty-eight. 7 any letters from the alphabet, recognize shapes, does not know his last 8 name, age, the date or the date of his birth. 9 simple body parts such as his nose and ear. 1 (AR 192). Plaintiff could not count, say He could not point to (Id.). Given Plaintiff s 10 performance on these evaluations, Dr. Taylor suspected Plaintiff of 11 malingering. (AR 192, 194). 12 13 3. Plaintiff s Testimony 14 15 Plaintiff testified at the disability hearing. (AR 16 Plaintiff knew his age and the place of his birth. 17 being able to drive a car. 18 read and write [a] little bit, and that he had taught himself to read. 19 (Id.). 20 remember for how long. 21 once in a while and having used marijuana, speed, and cocaine a long 22 time ago. 23 house during the day and takes care of his nephew, who he called Alex. 24 (Id.). According to Plaintiff s sister, the nephew s name is Viviano. (AR 40). (AR 36). 36-66). He denied Plaintiff testified that he could Plaintiff testified that he went to school, but could not (AR 42). (AR 40-41). Plaintiff admitted to drinking Plaintiff testified that he sits at his sister s 25 26 27 1 28 During Plaintiff s physical examination, Dr. Singh reported that the [f]inger-to-nose exam is precise. (AR 154). 8 1 (Id.). 2 Plaintiff then testified that he does not know who Alex is. (AR 43). 3 4 In response to the ALJ s questions about physical problems, 5 Plaintiff testified that he was tired because he could not breathe. 6 (Id.). 7 was hospitalized after a childhood car accident. (AR 43-44). Plaintiff 8 did not know the name of any medication he was taking. 9 Plaintiff was not in any pain at the time of the hearing. He denied ever being in the hospital, but then admitted that he (AR 44). (AR 53). 10 11 The ALJ and a Vocational Expert (VE) questioned Plaintiff about his 12 work history. 13 one month. 14 but claimed that he did not know what he did to make money that year. 15 (Id.). 16 and repairing car windshields. Plaintiff testified that he washed cars at a car wash for (AR 46). Plaintiff reported an income of $3,672 in 2006, In addition to washing cars, Plaintiff worked cleaning carpets (AR 60). 17 18 4. Lay Witness Testimony 19 20 Plaintiff s sister also testified at the hearing. She told the ALJ 21 that Plaintiff had been living with her for two years, and she paid him 22 $380 per month to watch her autistic son. 23 Plaintiff s sister, Plaintiff s mental problems began after he was hit 24 by a car when he was three years old. 25 that she has never seen Plaintiff have any friends. 26 acknowledged that Plaintiff s parents had problems with him drinking, 27 but that she did not allow him to drink in her house unless under her 28 supervision. (AR 51-52). 9 (AR 37). (AR 47-48). According to The sister testified (AR 50). She 1 The ALJ asked Plaintiff s sister about Plaintiff s ability to get 2 [himself] ready for work, get dressed, . . . brush [his] teeth, comb 3 [his] hair, . . . [and] fix some food for [himself]. 4 testified that Plaintiff tries to do [these things] but he doesn t 5 succeed. (Id.). Plaintiff s sister gives Plaintiff his medication and 6 makes sure that he takes it. (AR 52). She (AR 53). 7 8 9 Plaintiff s sister testified about his medical history. According to her, Plaintiff takes Risperdal and, separately, Albuterol for severe 10 asthma. (AR 55). Plaintiff was hospitalized twice during his 11 childhood: once following the car accident and once after Plaintiff was 12 beaten with a baseball bat. (AR 56).2 13 Plaintiff has mood swings. (AR 58). According to Plaintiff s sister, 14 15 Plaintiff s sister testified that Plaintiff worked at a car wash in 16 2006. (AR 61). She thought that he only worked at the car wash for one 17 month. (Id.). When confronted with the fact that Plaintiff was 18 unlikely to have earned $3,600 in one month working at a car wash, 19 Plaintiff s sister claimed the she could not remember if he had worked 20 elsewhere or for more than one month. (AR 62). 21 22 23 24 25 26 27 2 28 Plaintiff denied any memory of the baseball bat beating. 57). 10 (AR 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must demonstrate a 5 medically determinable physical or mental impairment that prevents him 6 from engaging in substantial gainful activity3 and that is expected to 7 result in death or to last for a continuous period of at least twelve 8 months. 9 U.S.C. § 423(d)(1)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 The impairment must render the claimant 10 incapable of performing the work he previously performed and incapable 11 of performing any other substantial gainful employment that exists in 12 the national economy. 13 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 14 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 17 18 (1) Is the claimant presently engaged in substantial gainful 19 activity? If so, the claimant is found not disabled. If 20 not, proceed to step two. 21 22 (2) Is the claimant s impairment 23 claimant is found not disabled. 24 severe? If not, the If so, proceed to step three. 25 26 27 28 3 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 11 1 (3) Does the claimant s impairment meet or equal the 2 requirements of any impairment listed at 20 C.F.R. Part 3 404, Subpart P, Appendix 1? If so, the claimant is found 4 disabled. If not, proceed to step four. 5 6 (4) Is the claimant capable of performing her past work? 7 so, the claimant is found not disabled. 8 If to step five. If not, proceed 9 10 (5) Is the claimant able to do any other work? If not, the 11 claimant is found disabled. If so, the claimant is found 12 not disabled. 13 14 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 15 949, 16 404.1520(b)-(g)(1), 416.920(b)-(g)(1). 953-54 (9th Cir. 2001) (citations omitted); 20 C.F.R. §§ 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. Bustamante, 262 20 F.3d at 953-54. 21 establishing an inability to perform the past work, the Commissioner 22 must show that the claimant can perform some other work that exists in 23 significant numbers in the national economy, taking into account the 24 claimant s 25 experience. 26 Commissioner may do so by the testimony of a VE or by reference to the 27 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart 28 P, Appendix 2 (commonly known as the Grids ). If, at step four, the claimant meets his burden of residual functional capacity, age, education and Tackett, 180 F.3d at 1100; 20 C.F.R. § 416.920(g)(1). 12 work The Osenbrock v. Apfel, 240 1 F.3d 1157, 1162 (9th Cir. 2001). 2 (strength-related) 3 inapplicable and the ALJ must take the testimony of a VE. 4 Apfel, 216 F.3d 864, 869 (9th Cir. 2000). and When a claimant has both exertional nonexertional limitations, the Grids are Moore v. 5 6 V. 7 THE ALJ S DECISION 8 9 At step one, the ALJ rejected Plaintiff s assertion that he had not 10 engaged in substantial gainful activity since April 19, 2006. 11 The ALJ determined that Plaintiff had worked since his alleged onset 12 date. 13 worked at a car wash and as a floor cleaner. 14 that this work activity was performed long enough for it to be 15 considered substantial gainful activity. (Id.). (AR 10). Plaintiff cared for his sister s autistic child and (Id.). The ALJ found (Id.). 16 17 At step two, the ALJ found that Plaintiff s impairments were 18 borderline intellectual functioning, alcohol dependence, and organic 19 brain disorder. 20 affected Plaintiff more than minimally, the ALJ concluded they should be 21 considered severe. (Id.). Because the ALJ found that these impairments (Id.). 22 23 At step three, the ALJ concluded that Plaintiff does not have an 24 impairment or combination of impairments that meets or medically equals 25 one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 26 1. (Id. (internal citations omitted)). 27 28 13 1 At step four, the ALJ found that Plaintiff had the residual 2 functional capacity ( RFC ) to perform very heavy work. (AR 11). The 3 ALJ found that, due to Plaintiff s mental impairment, he should be 4 limited to routine, repetitive tasks, consisting of entry level work, 5 and working with things rather than people. 6 testimony that Plaintiff s past relevant work as a car wash cleaner and 7 a floor cleaner amounted to unskilled work performed at a light or 8 medium level of exertion, the ALJ found that Plaintiff could perform his 9 past relevant work. Based on the VE s (Id.). (AR 20). 10 11 Although the ALJ found that he did not need to move to step five, 12 he did so to consider the alternative situation in which Plaintiff s 13 past jobs were not considered past relevant work. 14 considered Plaintiff s age, education, work experience, and residual 15 functional capacity. 16 capable of making a successful adjustment to other work that exists in 17 significant numbers in the national economy. (Id.). (AR 21). The ALJ He concluded that Plaintiff has been (Id.). 18 19 VI. 20 STANDARD OF REVIEW 21 22 Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner s decision to deny benefits. 24 Commissioner s decision when the ALJ s findings are based on legal error 25 or are not supported by substantial evidence in the record as a whole. 26 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 27 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 28 14 The court may set aside the 1 Substantial evidence is more than a scintilla, but less than a 2 preponderance. 3 which 4 conclusion. 5 finding, the court must consider the record as a whole, weighing both 6 evidence 7 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 8 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 9 reasonably support either affirming or reversing that conclusion, the 10 court may not substitute its judgment for that of the Commissioner. 11 Reddick, 157 F.3d at 720-21. a Reddick, 157 F.3d at 720. reasonable Id. that person might accept It is relevant evidence as adequate to support a To determine whether substantial evidence supports a supports and evidence that detracts from the If the evidence can 12 13 VII. 14 DISCUSSION 15 16 17 A. The ALJ Gave Appropriate Weight To The Treating Psychiatrist s Opinion 18 19 Plaintiff contends that the ALJ did not properly consider all of 20 Dr. Payne s findings and failed to provide specific and legitimate 21 reasons for doing so. (Jt. Stip. at 4). This Court disagrees. 22 23 Dr. Payne s findings are discussed above in section III.B.2. 24 relationship between Plaintiff and Dr. Payne was limited. Plaintiff met 25 with Dr. Payne approximately twelve times for generally twenty minutes 26 per session. 27 Plaintiff cancelled his sessions or failed to show up eight times. When 28 Plaintiff did keep his appointments his sister came with him, and she (AR 290-311). The During his time under Dr. Payne s care, 15 1 provided most of the information to Dr. Payne. (AR 227). As a result, 2 Dr. Payne later reported that he did not have a good feel for 3 Plaintiff. 4 Plaintiff, the treatment he recommended appears to have been effective. 5 Plaintiff s sister reported a fifty percent improvement, with Plaintiff 6 becoming calmer. Despite Dr. Payne s limited relationship with (Id.). (See, e.g., AR 205-06). 7 8 If the treating physician s opinion is contradicted by another 9 doctor who uses the same clinical findings as the treating physician, 10 the 11 legitimate reasons, supported by substantial evidence in the record. 12 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). 13 opinions of treating physicians are entitled to special weight because 14 the treating physician is hired to cure and has a better opportunity to 15 know and observe the claimant as an individual. 16 881 F.2d 747, 751 (9th Cir. 1989). 17 physician bases her opinion on independent clinical findings that differ 18 from those of the treating physician, the opinion of the nontreating 19 source may itself be substantial evidence; it is solely the province of 20 the ALJ to resolve the conflict. 21 1041 (9th Cir. 1995). ALJ may not reject this opinion without providing specific, The Magallanes v. Bowen, If, however, the non-treating Andrews v. Shalala, 53 F.3d 1035, 22 23 Although the treating physician s opinion is entitled to great 24 deference, it is not necessarily conclusive as to either the physical 25 condition or the ultimate issue of disability. 26 Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 27 conflicting medical evidence, the Secretary must determine credibility 28 and resolve the conflict. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th 16 Morgan v. Comm r of When there is 1 Cir. 1992). The ALJ need not accept the opinion of any physician, 2 including a treating physician, if that opinion is brief, conclusory, 3 and inadequately supported by clinical findings. 4 at 1019; Batson v. Comm r of Soc. Sec., 359 F.3d 1190, 1195 (9th Cir. 5 2004). See Matney, 981 F.2d 6 7 The ALJ concluded that [g]iving [Plaintiff] a generous benefit of 8 the doubt . . . he is of borderline intelligence and he has an organic 9 brain disorder. (AR 18). Plaintiff argues that there was no mention 10 of . . . Plaintiff s poor insight and judgment, as well as . . . 11 Plaintiff s impaired memory to immediate, recent and remote events. 12 (Jt. Stip. at 4). 13 intelligence and had an organic brain disorder was an acceptance of Dr. 14 Payne s 15 specifically mentioning Dr. Payne s opinions of Plaintiff s insight, 16 judgment, and memory, Plaintiff fails to show why this omission was 17 material. The check off boxes concerning Plaintiff s insight, judgment, 18 and memory are part of the Mental Status section of the form Dr. Payne 19 filled out, and these opinions presumably factored in to Dr. Payne s 20 ultimate diagnosis of dementia, unspecified depressive disorder, and 21 borderline intellectual functionality. findings. The ALJ s finding that Plaintiff was of borderline Although Plaintiff faults the ALJ for not (See AR 208-09). 22 23 To the extent the ALJ rejected or discounted some of Dr. Payne s 24 opinions, i.e., Dr. Payne s conclusions about Plaintiff s insight, 25 judgment, and memory, he gave specific and legitimate reasons for doing 26 so. 27 discussed Dr. Goldman s findings. 28 have a good feel for Plaintiff. The ALJ noted that the State Agency analyst called Dr. Payne and Dr. Payne admitted that he did not 17 (AR 16). He also stated that 1 Plaintiff did not appear to be severely retarded, (Id.), and that the 2 concerns of the consultative psychologists, i.e., that Plaintiff was 3 malingering, had merit. 4 Plaintiff s examinations, most of the information was provided by 5 Plaintiff s sister. Dr. Payne acknowledged that there were conflicting 6 elements underlying his diagnosis, such as a lack of a documented 7 history of medical treatment and an absence of IQ testing. Dr. Payne acknowledged that during (Id.). (Id.). 8 9 All of these admissions by Dr. Payne were specific and legitimate 10 reasons to discount his opinions regarding Plaintiff. 11 No remand is necessary. 12 13 14 B. The ALJ Properly Considered The State Agency Psychiatrist s Findings 15 16 Plaintiff contends that the ALJ failed to consider the findings of 17 Dr. Gregg, a State Agency psychiatrist. 18 (Jt. Stip. at 10-12). This Court disagrees. 19 20 On October 14, 2003, Dr. K. Gregg completed a Mental Residual 21 Functional Capacity Assessment of Plaintiff. 22 found that Plaintiff was Not Significantly Limited in fourteen of the 23 twenty categories evaluated. 24 Limited in any categories. 25 was moderately limited in six categories: (AR 163-64). (Id.). (AR 163-65). Dr. Gregg Plaintiff was not Markedly According to Dr. Gregg, Plaintiff 26 27 28 1. The ability to understand instructions; 18 and remember detailed 1 2. The ability to carry out detailed instructions; 3. The ability to maintain attention and concentration for 2 3 4 extended periods; 5 6 4. The ability to complete a normal workday and workweek 7 without interruptions from psychologically based symptoms 8 and 9 unreasonable number and length of rest periods; to perform at a consistent pace without an 10 11 5. 12 The ability to interact appropriately with the general public; 13 14 6. 15 The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes. 16 17 (Id.). Dr. Gregg ultimately concluded that Plaintiff could sustain 18 simple repetitive tasks with adequate pace and persistence. 19 adapt and relate to coworkers and [supervisors]. 20 public. [Could] Cannot work with (AR 165). 21 22 Plaintiff points to 20 C.F.R. § 416.927(f) and Social Security 23 Ruling 96-6p to support his allegation that the ALJ s failure to discuss 24 Dr. 25 administrative law judges are not bound by any findings by a State 26 Agency 27 416.927(f)(2)(I). 28 psychological consultants are highly qualified and are also experts in Gregg s opinion medical or was error. The psychological However, because 19 regulations consultant. these Agency state 20 that C.F.R. physicians the § and 1 Social Security disability evaluations, the regulations state that the 2 ALJs 3 Furthermore, 4 controlling weight, the administrative law judge must explain in the 5 decision the weight given to the Agency physician s opinion, as the ALJ 6 must do for any opinion from a treating source or a nontreating source. 7 20 C.F.R. § 416.927(f)(2)(ii). must consider unless findings the from treating an Agency physician s physician. opinion is Id. given 8 9 Social Security Ruling 96-6p also states that the findings of fact 10 made by an Agency physician must be treated as expert opinion evidence 11 by the ALJ. 12 weight given to these opinions in their decisions. See SSR 96-6p, 1996 13 WL 374180, *1. 14 of law, they are binding on all components of the Social Security 15 Administration and courts give them some deference. 16 402.35(b)(1); Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 17 2001) (holding that although Social Security Rulings that are issued by 18 the Commissioner of Social Security to clarify implementing regulations 19 and agency policies do not have the force of law, reviewing courts will 20 give them some deference because they represent the Commissioner s 21 interpretations 22 inconsistent with statutes or regulations). An ALJ may not ignore these opinions and must explain the Although Social Security Rulings do not have the force of the agency s regulations, See 20 C.F.R. § unless they are 23 24 The ALJ considered Dr. Gregg s findings. (AR 17). Dr. Gregg found 25 that Plaintiff could sustain simple repetitive tasks. (AR 165). The 26 ALJ concluded that Plaintiff was limited to routine, repetitive tasks. 27 (AR 11). Dr. Gregg found that Plaintiff [c]annot work with [the] 28 public. (AR 165). The ALJ found that Plaintiff was limited to 20 1 working with things rather than people. 2 did not specifically address the categories in which Dr. Gregg found 3 Plaintiff 4 limitations contradict the ALJ s conclusion about Plaintiff s RFC. 5 Plaintiff fails to show how the ALJ erred in his consideration of Dr. 6 Gregg s findings. to have moderate (AR 11). limitations, none of Although the ALJ those moderate No remand is required. 7 8 C. 9 The ALJ Properly Determined That Plaintiff Could Perform His Past Relevant Work 10 11 Plaintiff contends that the ALJ erred in concluding that Plaintiff 12 could perform his past relevant work. 13 jobs require mental demands that are in excess of the Plaintiff s RFC. 14 (Jt. Stip. at 16). According to Plaintiff, the past This Court disagrees. 15 16 Plaintiff was not specific about his previous work. He testified 17 that he worked at a car wash, but did not go into detail about what 18 exactly he did there. 19 repaired car windshields at the car wash. (AR 60). Plaintiff testified 20 that he worked cleaning carpets, but claimed that he remembered nothing 21 about the job. 22 could 23 performed. 24 step four of the sequential evaluation process, claimant has burden of 25 proving an inability to return to his former type of work and not just 26 to his former job). 27 Cir. 2001) (plaintiff has the burden of proving that he can no longer 28 perform his past relevant work); SSR 82-61 (if claimant cannot perform not (Id.). perform the (See AR 46). Plaintiff later admitted that he Plaintiff has the burden of showing that he job as actually performed or as generally See Villa v. Heckler, 797 F.2d 794, 798 (9th Cir. 1986) (at See also Pinto v. Massanari, 249 F.3d 840, 844 (9th 21 1 the functional demands and job duties of his former job as actually 2 required but can perform the functional demands and job duties as 3 generally required by employers, he should be found not disabled). 4 5 Initially, it should be noted that if an ALJ determines that an 6 individual can return to his past relevant work, no VE testimony is 7 necessary. Additionally, the Court notes that the determination at step 8 four that a claimant can perform his past relevant work need not be 9 supported by VE testimony. 10 See Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996). 11 12 Nonetheless, the ALJ heard the testimony of a VE. The VE testified 13 that Plaintiff s work at the car wash was as an automatic car wash 14 attendant, [which is] characterized as light and having a specific 15 vocational preparation of a two and make it un-skilled. 16 VE evaluated Plaintiff s work cleaning carpets as an occupation of 17 floor cleaner, [which is] characterized as medium work and having a 18 specific vocational preparation code of two would make it un-skilled. 19 (AR 66). 20 Plaintiff, who had the residual functional capacity to perform very 21 heavy work activities. 22 repetitive tasks, consisting of entry level work, and working with 23 things rather than people. [Plaintiff] is precluded from working at 24 unprotected heights and work with dangerous machinery. 25 perform work requiring production quotas such as assembly line or piece 26 work. (AR 65). The The ALJ found that these jobs were within the capabilities of His mental impairment limits him to routine, (AR 11). 27 28 22 He cannot 1 Plaintiff argues that the job of Rug Cleaner requires a greater 2 reasoning level than could be expected of Plaintiff. (AR 13). Although 3 the VE testified that the Rug Cleaner reasoning level was two, it is 4 actually three. 5 369.384-014). 6 Plaintiff 7 necessarily as it is defined in the DOT. can (Directory of Occupational Titles ( DOT ) at No. The Court notes that the ALJ need only find that return to his former job as he performed it, not 8 9 Even though there was a conflict between the DOT s requirements for 10 a Rug Cleaner and the VE s description of the position, there was no 11 similar conflict for the car washer position. The position of Automatic 12 Car Wash Attendant only requires a reasoning level of two. 13 915.667-010). 14 commonsense understanding to carry out detailed but uninvolved written 15 or oral instructions[, and also] [d]eal with problems involving a few 16 concrete variables in or from standardized situations. 17 C, Section III). 18 Plaintiff was moderately impaired in the ability to understand and 19 remember detailed instructions, he was unable to perform this job. 20 15). (DOT at No. A reasoning level of two requires a worker to apply (DOT Appendix Plaintiff argues that because Dr. Gregg found that (AR 21 22 Plaintiff has not met his burden of showing that he can no longer 23 perform his previous job at the car wash. 24 worked at the car wash for one month in 2005. 25 the car wash long enough to earn a little over $2,600.00. 26 Plaintiff contends that it is clear that he is incapable of performing 27 the job[] of . . . car washer. 28 presents no evidence that his level of disability has increased since Plaintiff estimated that he (AR 46). (Jt. Stip. at 18). 23 He worked at (AR 45). However, he 1 the time he was able to work as a car washer. Dr. Gregg s finding of 2 moderate impairment in the ability to understand and remember detailed 3 instructions therefore does not amount to a finding that Plaintiff 4 cannot perform a job requiring a reasoning level of two. 5 6 The ALJ and the VE correctly concluded that Plaintiff was capable 7 of returning to his previous work as a car wash attendant. 8 this alone, the ALJ was correct in finding that Plaintiff is not 9 disabled. Based on Any error the ALJ and the VE may have made concerning the DOT 10 requirements for the rug cleaner position was harmless. See Curry v. 11 Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (harmless error rule 12 applies to review of administrative decisions regarding disability); 13 Booz v. Sec y of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th 14 Cir. 1984). No remand is required. 15 16 D. The ALJ s Hypothetical Was Sufficient 17 18 Plaintiff argues that the hypothetical presented by the ALJ was 19 incomplete because it did not mention the moderate impairments described 20 by Dr. Gregg or the poor insight and judgment and the impaired memory 21 reported by Dr. Payne. 22 requires a remand. (Jt. Stip. at 19). (Jt. Stip. at 20). Plaintiff contends that this This Court disagrees. 23 24 First, as discussed above in section VII.C, no VE testimony was 25 necessary in this case because the ALJ found that Plaintiff was able to 26 return to his past relevant work. 27 been required, the hypotheticals provided by the ALJ sufficiently However, even if VE testimony had 28 24 1 described Plaintiff s limitations. 2 The hypotheticals were based on Plaintiff s RFC, which allowed him 3 4 to perform very heavy work activities. 5 limits him to routine, repetitive tasks, consisting of entry 6 level work, and working with things rather than people. 7 [Plaintiff] is precluded from working at unprotected heights 8 and work with dangerous machinery. 9 requiring production quotas such as assembly line or piece 10 His mental impairment He cannot perform work work. 11 12 (AR 11). In the first hypothetical, the ALJ asked the VE to 13 14 assume [an individual Plaintiff s] age, education which would 15 have been less than a high school education but a limited 16 education for sure or less. . . . 17 exertional limitations [sic] . . . except very heavy. 18 assume this person should not work around dangerous machinery 19 and no work on unprotected heights and restricted to routine, 20 repetitive tasks, entry level work and working with things 21 rather than with people and also no production quotas such as 22 assembly line or piece work. A person s has no But 23 24 (AR 66-67). Given this hypothetical, the VE determined that such a 25 claimant could perform the work as a floor cleaner. 26 second hypothetical, the ALJ asked the VE to assume a hypothetical 27 individual [with] the same restrictions as in [the first hypothetical]. 28 This person would be off task at least 20 percent of the time due to 25 (AR 67). In the 1 inability to maintain concentration or pace. (Id.). 2 that such an individual could not perform any work. The VE concluded (Id.). 3 4 Plaintiff does not object to any of the limitations included in the 5 hypotheticals. (See Jt. Stip. at 19). 6 hypothetical 7 specifically mention some of Dr. Gregg s and Dr. Payne s findings. 8 (Id.). 9 that Plaintiff exhibited poor judgment and insight as well as impaired questions [were] Instead, he argues that the incomplete because they did not As part of his mental examination of Plaintiff, Dr. Payne noted 10 memory. (AR 209). 11 properly considered Dr. Payne s findings in determining Plaintiff s RFC. 12 Also as discussed in section VII.A, to the extent that the ALJ rejected 13 Dr. Payne s conclusions about Plaintiff s judgment, insight, and memory, 14 he did so for specific and legitimate reasons. As discussed above in 15 section Plaintiff s 16 impairments did not contradict the ALJ s determination of Plaintiff s 17 RFC. 18 required to include in the hypotheticals any other limitations. 19 Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). VII.C, Dr. As discussed above in section VII.A, the ALJ Gregg s conclusions about moderate Because the ALJ properly determined Plaintiff s RFC he was not See 20 21 Because the ALJ properly determined that Plaintiff could return to 22 his prior relevant work, no hypotheticals or VE testimony was necessary. 23 However, the hypotheticals presented to the VE accurately reflected the 24 RFC determined by the ALJ. 25 Plaintiff s clearly established limitations. 26 required. 27 \\ 28 \\ The RFC was an accurate statement of 26 Therefore, no remand is 1 2 E. The ALJ Was Not Required To Obtain Records Pertaining To Plaintiff s Special Education Classes 3 4 Plaintiff argues that the ALJ failed to fully develop the record of 5 Plaintiff s disability. 6 Plaintiff had been in Special Education classes. 7 contends that records regarding Plaintiff s special education classes 8 are not included in the current record, and the ALJ should have 9 developed the record further by obtaining these records. (Jt. Stip. at 10 21-22). (Jt. Stip. at 21-22). The ALJ noted that (AR 19). Plaintiff This Court disagrees. 11 12 The ALJ has an affirmative duty to fully and fairly develop the 13 record in a social security case. Tonapetyan v. Halter, 242 F.3d 1144, 14 1150 (9th Cir. 2001). 15 own finding that the record is inadequate to allow for proper evaluation 16 of the evidence, triggers the ALJ s duty to conduct an appropriate 17 inquiry or gather additional information. 18 Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (duty not triggered where 19 the ALJ did not make a finding that the medical report was inadequate to 20 make a disability determination). However, only ambiguous evidence, or the ALJ s Id., see also Thomas v. 21 22 The medical report in this case was more than adequate to make a 23 disability determination. In addition to the records from Dr. Payne, 24 Plaintiff s treating psychiatrist, the Commissioner arranged for four 25 additional consultative examinations. 26 had only mild to moderate limitations, (AR 162), and Dr. Woodard 27 described Plaintiff s limitations as slight to moderate. 28 Both Drs. Goldman and Taylor suspected Plaintiff of malingering on their 27 Dr. Goldman found that Plaintiff (AR 186). 1 tests. 2 physician, thought that charges of malingering had merit. 3 The Commissioner will recontact medical sources only when the medical 4 evidence is inadequate for the Commissioner to determine whether a 5 claimant is disabled. 6 either seek additional evidence or clarification from the treating 7 physician when a medical report contains a conflict or an ambiguity 8 that must be resolved. 9 was no conflict or ambiguity that had to be resolved, nor did the ALJ 10 (See AR 161, 192, 194). Even Dr. Payne, Plaintiff s treating 20 C.F.R. § 416.912(e). (AR 227). The Commissioner will 20 C.F.R. § 416.912(e)(1). In this case there make such a finding. 11 12 Although Plaintiff claims that the mention of his Special Education 13 attendance renders the record ambiguous, he fails to articulate what 14 would be found in his school records that would be meaningful to the 15 ALJ s evaluation. 16 mention these records. Counsel could have submitted these records prior 17 to the hearing, but failed to do so. 18 that Plaintiff or his attorney requested that the agency obtain these 19 records. 20 offer any explanation as to how they would alter the evaluation of his 21 alleged disability. At the time of the hearing, his attorney failed to There is no evidence in the record Plaintiff does not describe these records in any detail nor 22 23 Four consultative doctors evaluated Plaintiff s mental limitations. 24 This was sufficient to develop the record. 25 required. 26 27 28 28 Accordingly, no remand is 1 VIII. 2 CONCLUSION 3 4 The ALJ properly considered the opinions of Dr. Payne, Plaintiff s 5 treating physician and Dr. Gregg, the State Agency psychiatrist. The 6 ALJ properly determined Plaintiff s RFC and his ability to return to his 7 past relevant work. 8 Finally, the ALJ met his responsibility to fully develop the record. 9 Accordingly, Plaintiff s contentions do not warrant remand. The hypothetical posed to the VE was complete. 10 11 Consistent with the foregoing, and pursuant to sentence four of 42 12 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered AFFIRMING the 13 decision of the Commissioner and dismissing this action with prejudice. 14 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 15 Order and the Judgment on counsel for both parties. 16 17 18 DATED: August 14, 2009. /S/ 19 20 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 4 This sentence provides: The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. 29

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