Christine M Modesitt v. Michael J Astrue, No. 5:2009cv00483 - Document 28 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is AFFIRMED. LET JUDGMENT BE ENTERED ACCORDINGLY. (es)
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Christine M Modesitt v. Michael J Astrue Doc. 28 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 CHRISTINE E. MODESITT, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-0483-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 18 19 PROCEEDINGS On March 12, 2009, Christine E. Modesitt (“Plaintiff” or “Claimant”) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security (“Commissioner”) 21 denying Plaintiff’s application for Supplemental Security Income (“SSI”) benefits. The 22 Commissioner filed an Answer on June 16, 2009. On January 5, 2010, the parties filed a 23 Joint Stipulation (“JS”). The matter is now ready for decision. 24 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 25 Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record 26 (“AR”), the Court concludes that the Commissioner’s decision should be affirmed. 27 28 Dockets.Justia.com BACKGROUND 1 2 Plaintiff is a 44 year old female who was found to have the medically determinable 3 severe impairments of bipolar disorder, generalized anxiety disorder, and substance 4 addiction disorder. (AR 397.) Plaintiff has not engaged in substantial gainful activity since 5 February 26, 2003, the application date. (Id.) 6 Plaintiff’s claim for SSI benefits was denied initially (AR 33-36) and on 7 reconsideration. (AR 38-41.) Plaintiff filed a written request for hearing (AR 42), which was 8 held before Administrative Law Judge (“ALJ”) Philip E. Moulaison on February 18, 2005, in 9 San Bernardino, California. (AR 344-369.) The ALJ issued an unfavorable decision on 10 March 25, 2005. (AR 23-32.) On April 11, 2005, Plaintiff filed a Request for Review of 11 Hearing Decision. (AR 52.) The Appeals Council remanded the case for further proceedings 12 on July 12, 2005. (AR 53-56.) 13 A supplemental hearing was conducted by ALJ Joseph D. Schloss on February 22, 14 2006. (AR 370-91.) On June 24, 2006, the ALJ issued a decision denying benefits. (AR 1215 19.) On July 31, 2006, Plaintiff filed a Request for Review of Hearing Decision (AR 10), 16 which was denied by the Appeals Council on September 15, 2006. (AR 7-9.) 17 On November 21, 2006, Plaintiff filed a complaint in the United States District Court 18 for the Central District of California, Case No. CV 06-1229-JWJ. On March 28, 2008, the 19 District Court remanded the case to the Commissioner. (AR 416-438.) On May 17, 2008, 20 the Appeals Council remanded the case to the ALJ. (AR 441.) 21 On August 14, 2008, a second supplemental hearing was held before ALJ Schloss. 22 (AR 1179.) Plaintiff appeared and testified at the hearing. (AR 1193-1197.) Medical expert 23 Miriam Sherman, M.D., and vocational expert (“VE”) Sandra Fioretti also appeared and 24 testified. (AR 1183-1193.) On November 18, 2008, the ALJ issued an unfavorable decision. 25 (AR 392-401.) Thereafter, Plaintiff commenced the present action. 26 27 28 2 DISPUTED ISSUES 1 2 As reflected in the Joint Stipulation, the disputed issues that Plaintiff raises as grounds 3 for reversal are as follows: 4 1. Whether the ALJ complied with the District Court’s remand order to consider 5 Plaintiff’s credibility under the proper legal standards? 6 2. Whether the ALJ properly considered the State agency findings? 7 3. Whether the ALJ properly considered the treating psychiatrist’s opinion? 8 4. Whether the ALJ properly considered the treating clinician’s opinion? 9 5. Whether the ALJ properly considered Dr. Multani’s opinion? 10 6. Whether the ALJ posed a complete hypothetical question to the vocational expert? STANDARD OF REVIEW 11 12 Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 13 the ALJ’s findings are supported by substantial evidence and whether the proper legal 14 standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). 15 Substantial evidence means “‘more than a mere scintilla’. . . but less than a preponderance.” 16 Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. Perales, 402 17 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401 19 (internal quotations and citation omitted). 20 This Court must review the record as a whole and consider adverse as well as 21 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 22 Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision 23 must be upheld. Morgan v. Comm’r, 169 F.3d 595, 599 (9th Cir. 1999). “However, a 24 reviewing court must consider the entire record as a whole and may not affirm simply by 25 isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 882 (quoting 26 Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 F.3d 27 625, 630 (9th Cir. 2007). 28 3 SEQUENTIAL EVALUATION 1 2 The Social Security Act defines disability as the “inability to engage in any substantial 3 gainful activity by reason of any medically determinable physical or mental impairment which 4 can be expected to result in death or . . . can be expected to last for a continuous period of 5 not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner 6 has established a five-step sequential process to determine whether a claimant is disabled. 7 20 C.F.R. §§ 404.1520, 416.920. 8 The first step is to determine whether the claimant is presently engaging in 9 substantially gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the 10 claimant is engaging in substantially gainful activity, disability benefits will be denied. Bowen 11 v. Yuckert, 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant 12 has a severe impairment or combination of impairments. Parra, 481 F.3d at 746. Third, the 13 ALJ must determine whether the impairment is listed, or equivalent to an impairment listed, 14 in Appendix I of the regulations. Id. If the impediment meets or equals one of the listed 15 impairments, the claimant is presumptively disabled. Bowen, 482 U.S. at 141. Fourth, the 16 ALJ must determine whether the impairment prevents the claimant from doing past relevant 17 work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). Before making the step four 18 determination, the ALJ first must determine the claimant’s residual functional capacity 19 (“RFC”).1 20 C.F.R. § 416.920(e). The RFC must consider all of the claimant’s impairments, 20 including those that are not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security 21 Ruling (“SSR”) 96-8p. If the claimant cannot perform his or her past relevant work or has no 22 past relevant work, the ALJ proceeds to the fifth step and must determine whether the 23 impairment prevents the claimant from performing any other substantial gainful activity. 24 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 25 26 27 28 1 Residual functional capacity (“RFC”) is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 4 1 The claimant bears the burden of proving steps one through four, consistent with the 2 general rule that at all times the burden is on the claimant to establish his or her entitlement 3 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 4 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 5 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 6 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 7 demonstrating that other work exists in significant numbers in the national economy that the 8 claimant an do, given the RFC, age, education, and work experience. 20 C.F.R. § 9 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 10 entitled to benefits. Id. DISCUSSION 11 12 13 14 A. The ALJ Properly Considered Plaintiff’s Credibility and Complied With the Remand Order The District Court found that the ALJ had failed to provide clear and convincing 15 reasons for discrediting Plaintiff’s subjective complaints and remanded the matter to the 16 Commissioner for proper consideration of Plaintiff’s credibility. (AR 437.) Plaintiff contends 17 that the ALJ failed to comply with the remand order because he failed to make proper 18 credibility findings. (JS 3.) Plaintiff’s contention is without merit. The record is clear that the 19 ALJ properly considered Plaintiff’s subjective symptom testimony and rejected it as not 20 credible based on Plaintiff’s inconsistent statements about her substance abuse and 21 because her statements regarding her limitations were inconsistent with the medical records. 22 The test for deciding whether to accept a claimant’s subjective symptom testimony 23 turns on whether the claimant produces objective medical evidence of an impairment that 24 reasonably could be expected to produce the pain or other symptoms alleged. Bunnell v. 25 Sullivan, 947 F.2d 341, 346 (9th Cir. 1991); Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 26 1998); Smolen v. Chater, 80 F.3d 1273, 1281-82 esp. n. 2 (9th Cir. 1995); Cotton v. Bowen, 27 799 F.2d 1403, 1407 (9th Cir. 1986). Once the claimant produces objective medical 28 5 1 evidence of an underlying impairment, the ALJ may not discredit a claimant’s testimony on 2 the severity of symptoms merely because they are unsupported by objective medical 3 evidence. Reddick, 157 F.3d at 722; Bunnell, 947 F.2d at 343, 345. If the ALJ finds the 4 claimant’s subjective symptom testimony not credible, the ALJ must make specific findings 5 that support this conclusion. Bunnell, 947 F.2d at 345. The ALJ must set forth “findings 6 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit 7 claimant’s testimony.” Thomas v. Barnhart, 278 F.3d 949, 958 (9th Cir. 2002); Rollins v. 8 Massanari, 261 F.3d 853, 856-57 (9th Cir. 2001); Bunnell, 947 F.2d at 345. Unless there is 9 evidence of malingering, the ALJ can reject the claimant’s testimony about the severity of a 10 claimant’s symptoms only by offering “specific, clear and convincing reasons for doing so.” 11 Reddick, 157 F.3d 722; Smolen, 80 F.3d at 1283-84. The ALJ must identify what testimony 12 is not credible and what evidence discredits the testimony. Reddick, 157 F.3d at 722; 13 Smolen, 80 F.3d at 1284. 14 In evaluating a claimant’s credibility, the ALJ may consider the nature of the 15 symptoms alleged, including aggravating factors, medication, treatment, and functional 16 restrictions. See Bunnell, 947 F.2d at 345-47. The ALJ also may consider numerous 17 additional factors, including the claimant's prior inconsistent statements or other inconsistent 18 testimony and physician and third-party testimony about the nature, severity, and effect of 19 the claimant’s symptoms. See Smolen, 80 F.3d at 1284 (citations omitted); see also Thomas 20 v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (in assessing claimant’s credibility, ALJ can 21 consider prior conflicting statements concerning drug and/or alcohol abuse). If the claimant 22 testifies as to symptoms greater than normally would be produced by a given impairment, the 23 ALJ may disbelieve that testimony provided specific findings are made. See Carmickle v. 24 Commissioiner, Social Security, 533 F.3d 1155, 1161 (9th Cir. 2008) (citing Swenson v. 25 Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 26 27 28 6 1 The ALJ summarized Plaintiff’s hearing testimony as follows: At the hearing, the claimant testified that she was taking her medications 2 3 today and was feeling drowsy, almost falling asleep. She stated that her 4 depression went through stages; she throws things away that she needs, does 5 not care about her life, does not talk to anyone, is afraid of people and only 6 stays by the people she lives with. She reported that her last drink was 40 7 days ago. She does not drink any longer as she is on too much medication. 8 She does not attend AA. Now she cannot concentrate and cannot remember 9 to take medication. Her boyfriend and kids help her with medication. 10 (AR 399.) 11 The ALJ acknowledged that Plaintiff’s impairments reasonably could be expected to 12 produce the alleged symptoms but that “the claimant’s statements concerning the intensity, 13 persistence and limiting effects of these symptoms are not credible to the extent they are 14 inconsistent with the above [RFC] assessment.” (AR 399.) The RFC assessment to which 15 the ALJ referred was made at step 3 of the sequential evaluation: 16 Without the use of alcohol, in activities of daily living, the claimant has 17 mild restriction. In social functioning, the claimant has moderate difficulties. 18 With regard to concentration, persistence or pace, the claimant has mild 19 difficulties. As for episodes of decompensation, the claimant has experienced 20 no episodes of decompensation, which have been of extended duration. 21 With the use of alcohol, in activities of daily living, the claimant has 22 moderate restriction. In social functioning, the claimant has moderate 23 difficulties. With regard to concentration, persistence or pace, the claimant has 24 moderate difficulties. As for episodes of decompensation, the claimant has 25 26 27 28 7 1 experienced no episodes of decompensation, which have been of extended 2 duration. 3 (AR 398.) 4 The ALJ’s adverse credibility determination properly was based on the lack of support 5 in the medical records for ALJ’s assessment of Plaintiff’s limitations without the use of 6 alcohol as well as Plaintiff’s inconsistent statements regarding her substance abuse, and was 7 supported by substantial evidence. 8 The ALJ properly relied on information from Plaintiff’s medical records in assessing 9 her credibility. See 20 C.F.R. § 416.929(c)(1)&(2) (2009) (requiring consideration of medical 10 history, medical signs and laboratory findings, and objective medical evidence in evaluating 11 the extent and impact of alleged pain); Batson v. Comm’r, 359 F.3d 1190, 1196 (9th Cir. 12 2003) (ALJ properly relied on objective medical evidence and medical opinions in 13 determining credibility). First, the ALJ considered the testimony of medical expert Dr. 14 Sherman. (AR 399, 1183-1189.) Dr. Sherman testified at the hearing that, based upon her 15 review of the records, Plaintiff did not have any mental impairment that met or equaled a 16 Listing. (AR 1184.) She also testified that, without alcohol abuse, Plaintiff would be capable 17 of simple, repetitive tasks with no contact with the public. (AR 1186.) The ALJ considered 18 the opinion of State Agency physician Douglas R. Conte, M.D., who reviewed the entire 19 record on June 2, 2008, and concluded that Plaintiff could sustain unskilled, non-detailed 20 tasks with adequate pace and persistence, and could relate to coworkers and supervisors, 21 but could not work with the public. (AR 400, 886-904.) The ALJ also considered the 22 treatment records, which indicated Plaintiff’s symptoms of anxiety and depression while 23 abusing alcohol. (AR 399-400, 956, 984, 1006, 1115.) See Rollins v. Massanari, 261 F.3d 24 853, 857 (9th Cir. 2001) (“While subjective pain testimony cannot be rejected on the sole 25 ground that it is not fully corroborated by objective medical evidence, the medical evidence is 26 still a relevant factor in determining the severity of the claimant’s pain and its disabling 27 effects.”) 28 8 1 The ALJ also properly discounted Plaintiff’s credibility based on her inconsistent 2 statements regarding her alcohol abuse. (AR 399-400.) Thomas v. Barnhart, 278 F.3d 948, 3 959 (9th Cir. 2002) (ALJ may rely on lack of candor as to drug and alcohol use to discount 4 claimant’s credibility as to severity of pain). The ALJ “noted that in the previous hearing held 5 on February 22, 2006, the claimant stated that she does not drink at all, and then said that 6 she quit drinking 3 years ago.” (AR 400; see also AR 383-384.) The ALJ also noted that 7 Plaintiff had reported to her doctors on June 13, 2008, that she had no history of drug or 8 alcohol use. (AR 400, 959.) However, the record is replete with evidence of alcohol abuse, 9 including five separate incidents in 2008 that were referenced by the ALJ: On February 27, 10 2008, Plaintiff presented at Kaiser Permanente, Fontana, with depression and suicidal 11 thoughts. (AR 982.) She admitted to recently drinking two 24 ounce and four 12 ounce 12 beers (AR 399, 982-984) and “alcohol intoxication” was noted. (AR 984.) On March 5, 2008, 13 Plaintiff was admitted to the hospital on a 5150 for being a danger to self. (AR 875-76.) She 14 reported that she was drinking beer all day while also taking Klonopin “quite a bit.” (AR 399, 15 875, 1115.) She admitted to “drinking 12 cans of beer a day.” (AR 875.) She was 16 diagnosed with bipolar disorder, mixed type, and alcohol abuse. (AR 399, 870, 876.) The 17 doctor noted that “she is a drug seeker still.” (AR 399, 870.) On May 17, 2008, Plaintiff was 18 seen for an injury to her right lower extremity after a slip and fall. She admitted drinking 19 several beers and taking Klonopin. (AR 400, 973.) The clinical impressions were strained 20 right hip and substance abuse (alcohol). (AR 974.) On June 21, 2008, Plaintiff presented 21 with depression, anxiety and bizarre behavior. (AR 955.) She admitted to recent alcohol 22 consumption. (AR 400, 955-56.) The clinical impression was alcohol intoxication. (AR 956.) 23 On July 2, 2008, Plaintiff was admitted to Kaiser Hospital with alcohol abuse, possible 24 withdrawal. (AR 400, 1006.) 25 The medical records also reveal other instances of inconsistent statements regarding 26 alcohol abuse: On January 7, 2008, Plaintiff reported: “Alcohol use. History of drug use: 27 marijuana” (AR 675) and was found to be legally intoxicated. (AR 677.) However, on 28 9 1 February 2, 2008, Plaintiff reported: “No alcohol use or drug use.” (AR 672.) Then, on 2 February 13, 2008, Plaintiff reported occasional alcohol use (AR 665), and that she had “a 3 couple cans a night” of alcohol. (AR 668.) 4 Thus, the ALJ properly rejected Plaintiff’s testimony based, in part, on the record of 5 Plaintiff’s inconsistent statements regarding her substance abuse. 6 Where, as here, the ALJ made specific findings justifying his decision to discredit 7 Plaintiff’s subjective symptom testimony, and substantial evidence in the record supports 8 those findings, the ALJ’s decision must be upheld. Fair v. Bowen, 885 F.2d 597, 604 (9th 9 Cir. 1989). 10 B. The ALJ Properly Considered the State Agency Findings of Dr. Conte 11 On June 2, 2008, State Agency medical consultant Dr. Conte completed a Mental 12 Residual Functional Capacity Assessment. (AR 897-899.) In the Summary Conclusions 13 portion of his report, Dr. Conte indicated that Plaintiff had several moderate functional 14 limitations. (AR 897-898.) Based on these stated limitations, Dr. Conte then concluded in 15 his Functional Capacity Assessment that Plaintiff could do unskilled, nondetailed, nonpublic 16 work. (AR 899.) Plaintiff contends that the ALJ erred by not properly considering Dr. 17 Conte’s opinion. This contention is without merit. 18 The ALJ is required to consider all evidence relevant to Plaintiff’s claim, including 19 medical opinions from physicians or other acceptable medical sources. See 20 C.F.R. §§ 20 404.1527, 416.927. As to the consideration of medical opinions, the Ninth Circuit 21 distinguishes among three types of physicians: (1) treating physicians (who examine and 22 treat); (2) examining physicians (who examine but do not treat); and (3) non-examining 23 physicians (who neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 24 1995). The opinion of a treating physician is generally given more weight than the opinion of 25 a non-treating physician. Orn, 495 F.3d at 631. A non-examining physician's opinion, such 26 as Dr. Conte’s opinion, constitutes substantial evidence when it is supported by other 27 evidence in the record and is consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 28 Cir. 1995). However, a non-examining physician's opinion cannot by itself constitute 10 1 substantial evidence. Lester, 81 F.3d at 831; see also Widmark v. Barnhart, 454 F.3d 1063, 2 1066 n. 2 (9th Cir. 2006). 3 Plaintiff’s contention that “the ALJ ignored without explanation the State Agency 4 findings regarding [P]laintiff’s multiple limitations” (JS 9) is incorrect. The ALJ specifically 5 discussed Dr. Conte’s findings, as follows: On June 19, 2008, State Agency medical consultant Douglas R. Conte, 6 7 M.D. noted that the claimant was alleging new impairments of diabetes mellitus 8 and asthma, but his assessment was that these were non-severe. Dr. Conte 9 also noted that extensive medical evidence of record shows concurrent abuse 10 of benzodiazepines and alcohol; treatment also complicated by non-compliance 11 with treatment. When sober and in treatment she is able to provide activities of 12 daily living within normal limits. The alleged severity is not fully supported – the 13 claimant can support unskilled, nondetailed tasks with adequate pace and 14 persistence, can relate to coworkers and supervisors, but cannot work with the 15 public . . . . 16 (AR 400.) 17 Based on the medical expert’s testimony and Dr. Conte’s conclusions, the ALJ found 18 that, without alcohol abuse, Plaintiff “would have mild limitations in activities of daily living 19 and concentration persistence or pace ,and moderate limitations in social functioning. . . . 20 She can perform simple repetitive, non-public tasks. The best diagnoses would still be 21 substance induced mood disorder.” (AR 399.) The ALJ essentially adopted Dr. Conte’s 22 findings in concluding that Plaintiff had the RFC to perform unskilled, nondetailed tasks with 23 adequate pace and persistence, can relate to coworkers and supervisors, but cannot work 24 with the public. (AR 398, 400.) 25 In claiming that the ALJ failed to consider Dr. Conte’s opinion properly, Plaintiff 26 erroneously focuses exclusively on the Summary Conclusions section of the Mental Residual 27 Functional Capacity Assessment. (AR 897.) As the form itself indicates, the Summary 28 Conclusions section is a recording of summary conclusions derived from the evidence in the 11 1 file. (Id.) A more detailed explanation of the degree of limitations, as well as any other 2 assessment information, is recorded in Section III (Functional Capacity Assessment). These 3 limitations were accepted by the ALJ and incorporated into his RFC assessment. 4 Thus, the record is clear that the ALJ did not fail to consider Dr. Conte's opinion. 5 Rather, the ALJ properly considered Dr. Conte’s report and ultimately adopted the limitations 6 Dr. Conte recorded in the Functional Capacity Assessment. 7 C. Report 8 9 The ALJ Did Not Err In Failing to Discuss the Treating Psychiatrist’s On February 10, 2008, Plaintiff presented at Western Medical Center Anaheim on a 10 5150 for being a danger to self. (AR 879.) Ravinder Singh, M.D., completed treatment notes 11 stating a diagnostic impression of “major depressive disorder with psychotic features, most 12 likely bipolar” and “alcohol abuse.” (AR 879-880.) Dr. Singh’s notes also indicate that 13 Plaintiff was a binge drinker, had recently consumed four beers, and was not taking her 14 medications. (AR 879.) Dr. Singh assessed Plaintiff with a Global Assessment of 15 Functioning (“GAF”) Score of 25.2 (AR 880.) 16 Plaintiff contends that the ALJ erred by ignoring Dr. Singh’s treatment notes in his 17 decision. (JS 12.) This contention is without merit. 18 The ALJ “need not discuss all evidence presented” to him. Vincent on Behalf of 19 Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted) (emphasis in 20 original); see also Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ need not 21 discuss every piece of evidence). The ALJ must explain only why “significant probative 22 evidence has been rejected.” Vincent, 739 F.2d at 1395 (internal quotations and citation 23 omitted). As an initial matter, there is no indication that Dr. Singh’s assessment of Plaintiff’s 24 condition with alcohol abuse was “rejected.” Rather, Dr. Singh’s treatment notes were not 25 2 26 27 28 A GAF score of 21 to 30 indicates: “Behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends.” Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) at 34. 12 1 “significant probative evidence,” and it was not erroneous for the ALJ to have failed to 2 discuss them. 3 Dr. Singh’s treatment notes indicated that Plaintiff was under the influence of alcohol 4 and was not taking her medications; his diagnosis included “alcohol abuse.” (AR 879.) The 5 regulations require the ALJ to determine “which of the claimant’s disabling limitations would 6 remain if the claimant stopped using drugs or alcohol.” Parra, 481 F.3d at 747 (citing 20 7 C.F.R. § 404.1535(b)). In other words, the ALJ is required to determine a claimant’s RFC 8 without drug or alcohol abuse. Id. It is the claimant’s burden to show that she is disabled 9 without drug or alcohol abuse. Id. Accordingly, Plaintiff’s reliance on treatment notes which 10 assess her condition with alcohol abuse is misplaced. The issue is which of the disabling 11 limitations would remain if she was not using alcohol. See id. Here, Dr. Singh’s low GAF 12 score of 25 clearly reflects the severity of Plaintiff’s mental condition with alcohol abuse. (AR 13 880.) It does not assess Plaintiff’s mental condition without alcohol abuse and, therefore, 14 does not contradict the ALJ’s finding that Plaintiff is not disabled without alcohol abuse.3 15 In addition, Dr. Singh’s treatment notes do not constitute a “medical opinion,” as 16 defined in the regulations. The regulations provide that the ALJ “will always consider the 17 18 19 20 21 22 23 24 25 26 27 28 3 The February 10, 2008, treatment notes also are consistent with Dr. Singh’s March 3, 2008, intake notes (AR 876-76), and his March 5, 2008, discharge notes. (AR 870-71.) On March 5, 2008, Plaintiff again was admitted to the hospital on a 5150 for being a danger to self. (AR 870.) Upon admission, Dr. Singh noted Plaintiff’s statement that “she is depressed and she wanted to kill herself, and the patient admits the patient [is] drinking 12 cans of beer a day.” (AR 875.) The intake diagnosis was “bipolar disorder, mixed type” and “alcohol abuse.” (AR 876.) Dr. Singh noted a discharge diagnosis that included “alcohol and benzodiazepine abuse.” (AR 870.) He noted that, on the day Plaintiff was admitted to the hospital, she “had been drinking some kind of beer all day, also has been using Klonopin quite a bit.” (Id.) Plaintiff “was treated and detoxed symptomatically . . . .” It was noted that “she is a drug seeker still.” (Id.) All of these treatment notes clearly assess Plaintiff’s condition with alcohol abuse and are not probative in determining Plaintiff’s RFC without alcohol abuse. Accordingly, the ALJ did not err by failing to discuss them. 13 1 medical opinions in [the claimant’s] case record together with the rest of the relevant 2 evidence we receive.” 20 C.F.R. § 404.1527(b). “Medical opinions” are defined as follows: 3 Medical opinions are statements from physicians and psychologists or other 4 acceptable medical sources that reflect judgments about the nature and 5 severity of your impairment(s), including your symptoms, diagnosis and 6 prognosis, what you can still do despite impairment(s), and your physical or 7 mental restrictions. 8 20 C.F.R. § 404.1527(a)(2); see also 20 C.F.R. § 404.1513(b) (stating that “medical reports” 9 should include medical history, clinical findings, laboratory findings, diagnosis, treatment 10 prescribed, prognosis, and RFC). 11 Although the medical opinions of treating physicians are entitled to “greater weight” 12 and the ALJ must provide “clear and convincing reasons” for rejecting the uncontroverted 13 opinion of a treating physician, Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989), Dr. 14 Singh’s treatment notes do not qualify as a “medical opinion” that required the ALJ to state 15 “clear and convincing reasons” if they were rejected. Rather, Dr. Singh’s treatment notes, 16 while providing a diagnosis of major depressive disorder, most likely bipolar, and alcohol 17 abuse, do not mention what Plaintiff can do despite her impairments or contain any 18 consequent mental restrictions. (AR 879-880.) Accordingly, the treatment notes do not fit 19 within the definition of a “medical opinion” and the ALJ was not required to discuss them in 20 his decision. 21 Dr. Singh’s treatment notes were not probative to the issue of Plaintiff’s RFC without 22 alcohol abuse because they considered Plaintiff’s current condition with alcohol abuse. The 23 ALJ was required by law to consider Plaintiff’s condition without alcohol abuse. Thus, there 24 is no indication that the ALJ rejected probative evidence, and no further discussion or 25 explanation was needed. See Vincent, 739 F.2d at 1394-95 (ALJ only required to explain 26 why probative evidence has been rejected). This was not a case of “conflicting medical 27 viewpoints but one in which differing opinions ‘are not drawn from the same facts.’” Sprague 28 14 1 v. Bowen, 812 F.3d 1226, 1231 (9th Cir. 1987). Accordingly, the ALJ did not err by failing to 2 discuss Dr. Singh’s treatment notes. 3 D. The ALJ Did Not Err In Failing to Discuss the Treating Clinician’s Report 4 On February 27, 2008, a treating clinician4 completed a psychiatric evaluation of 5 Plaintiff at Kaiser Permanente Fontana Medical Center. (AR 657-661.) The report indicated 6 findings of “Major Dep[ression] Recurrent R/O alcohol abuse” and assessed Plaintiff with a 7 GAF score of 50.5 (AR 660.) The report also indicated that Plaintiff was “hearing voices” 8 that “told her to hurt herself” and that Plaintiff was “doing some drinking,” “drank 6 beers 9 tonight,” and “drinks daily.” (AR 657, 658.) 10 Plaintiff contends that this report was “relevant evidence” and the ALJ erred because 11 he “totally failed to discuss or even mention it anywhere in his decision.” (JS 13.) Plaintiff’s 12 contention is without merit. 13 Again, the ALJ “need not discuss all evidence presented” to him. Vincent, 739 F.2d at 14 1394-95; see also Howard, 341 F.3d at 1012. The ALJ must only explain why “significant 15 probative evidence has been rejected.” Vincent, 739 F.2d at 1395 (internal quotations and 16 citation omitted). Moreover, the ALJ was required to consider Plaintiff’s limitations without 17 alcohol abuse. Parra, 481 F.3d at 747. Here, it is clear from the report that Plaintiff was 18 under the influence of alcohol and was abusing alcohol at the time she was evaluated. (See 19 AR 657, 658, 660.) Plaintiff’s low GAF score of 50 plainly reflects the severity of her mental 20 condition with alcohol abuse and was not inconsistent with the ALJ’s finding that Plaintiff is 21 not disabled without alcohol abuse. The treating clinician’s report was not probative to the 22 ALJ’s RFC assessment without alcohol abuse because it considered Plaintiff’s condition with 23 24 25 26 27 28 4 The treating clinician’s name is illegible. (AR 661.) 5 A GAF score of 41-50 indicates: “Serious 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).” Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) at 34. 15 1 alcohol abuse.6 There is no indication that the ALJ rejected probative evidence from the 2 treating clinician’s report, and no further discussion or explanation was needed. See 3 Vincent, 739 F.2d at 1394-95 (ALJ only required to explain why probative evidence has been 4 rejected). Again, this was not a case of “conflicting medical viewpoints but one in which 5 differing opinions ‘are not drawn from the same facts.’” Sprague, 812 F.3d at 1231. 6 E. The ALJ Properly Considered the Report of Treating Physician Dr. Multani 7 Gurmeet S. Multani, M.D., a treating physician, completed a “Work Capacity 8 Evaluation (Mental)” (“Mental Evaluation”) regarding Plaintiff. (AR 1140-41.) The Mental 9 Evaluation is a two-page check-the-box form from the office of Plaintiff’s counsel. (Id.) The 10 Mental Evaluation itself does not indicate any historic treating relationship with Plaintiff, there 11 is no indication that Dr. Multani examined Plaintiff in connection with it, and there is no basis 12 on which to determine the reason for any of Dr. Multani’s conclusions evidenced by the 13 checked boxes. Although the date is illegible, Plaintiff represents that the Mental Evaluation 14 was completed July 21, 2008. (JS 16.) 15 Plaintiff contends that the ALJ erred by failing “to discuss or even mention [the Mental 16 Evaluation] anywhere in his decision.” (JS 16.) Plaintiff’s contention is without merit. 17 The Mental Evaluation does not constitute significant probative evidence that the ALJ 18 was required to discuss. See Vincent, 739 F.2d at 1394-95. The Mental Evaluation is a 19 two-page check-the-box form, which does not meet the requirements of a medical report, as 20 defined by the regulations. 20 C.F.R. § 416.913(b) states that a “medical report” should 21 include a diagnosis and objective or clinical support for the stated limitations. Dr. Multani’s 22 report did not include either. (See AR 1140-41.) Accordingly, Dr. Multani’s report does not 23 constitute a “medical opinion” of a treating physician that requires special consideration. See 24 Orn, 495 F.3d at 631. Moreover, Dr. Multani completed his report during a time that the 25 6 26 27 28 Moreover, as Plaintiff concedes (JS 13), the treating clinician was not a physician or other acceptable medical source. 20 C.F.R. §§ 416.913(a), 414.1513(a). The ALJ may consider the opinion of a treating clinician, 20 C.F.R. § 416.913(d), and may accord it less weight than opinions from an acceptable medical source. Gomez v. Chater, 74 F.3d 967, 971-72 (9th Cir. 1996). 16 1 records show Plaintiff was abusing alcohol. Only three weeks earlier, Plaintiff had been 2 admitted to the hospital for alcohol abuse, possible withdrawal. (AR 400, 1006.) The Mental 3 Evaluation fails to address Plaintiff’s alcohol abuse or indicate whether Dr. Multani’s 4 assessment considers Plaintiff’s limitations with or without alcohol abuse. Thus, the two5 page box-checked Mental Evaluation did not constitute “significant probative evidence” that 6 the ALJ was required to discuss. See Vincent, 739 F.2d at 1394-95. 7 Moreover, even if the Mental Evaluation did constitute a “medical opinion,” as defined 8 by the regulations, the ALJ was not obligated to accept it in his RFC because it was “brief, 9 conclusory, and inadequately supported by clinical findings.” Thomas, 278 F.3d at 957 (“The 10 ALJ need not accept the opinion of any physician, even a treating physician, if that opinion is 11 brief, conclusory, and inadequately supported by clinical findings.”); see also Batson, 359 12 F.3d at 1195; Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Dr. Multani 13 completed a standardized report that consisted of check-off boxes without accompanying 14 narrative or observational analysis. The ALJ was well within his rights to reject the Mental 15 Evaluation as a wholly conclusory “check the box” document. See Batson, 359 F.3d at 1195 16 (ALJ properly rejected treating physician’s conclusory check-list report); Crane v. Shalala, 76 17 F.3d 251, 253 (9th Cir. 1996) (ALJ may reject check-off reports that do not explain basis for 18 conclusions); Matney, 981 F.2d at 1019 (ALJ may discredit treating physician’s opinion that 19 is conclusory, brief, and unsupported by the record as a whole); Murray v. Heckler, 722 F.2d 20 499, 501 (9th Cir. 1983) (preference for individualized medical opinions over check-off 21 reports). Accordingly, the ALJ did not err in failing to discuss the Mental Evaluation. 22 F. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert 23 24 At the hearing, the ALJ posed the following question to the VE: 25 Q: All right . . . based upon a person 35 to 42 years of age, with a high school 26 education, with no past relevant work experience, would there be jobs for that 27 person using – no exertional limitations, but the mental limitation as given by 28 17 1 Dr. Sherman that she should have a job of simple, repetitive, non-public tasks. 2 There any jobs within that? 3 (AR 1191.) Later, the ALJ asked: 4 Q: . . . If this person could do a full range of entry-level unskilled, light work . . . 5 can understand, remember, and carry out simple instructions, use judgment in 6 making work-related decisions, making personal plans, and dealing with 7 changes in a routine work setting, with mild limitations in responding to 8 supervision, coworkers, and work situations . . . would there be any difference 9 in your opinion . . . ? 10 (AR 1192.) 11 Plaintiff contends that this was an incomplete hypothetical because it “fails to set out 12 factors bearing upon Plaintiff’s multiple limitations as set forth above in Issue No. 3 and Issue 13 No. 5.” (JS 18-19.) Plaintiff’s contention is without merit. 14 At step five of the sequential evaluation, the Commissioner can meet his burden: (1) 15 by reference to the Medical-Vocational Guidelines contained in 20 C.F.R. Part 404, Subpart 16 P, Appendix 2; or (2) through the testimony of a VE as to other work in the economy that 17 Plaintiff could perform. Tackett v. Apfel, 180 F.3d 1094, 1100-01 (9th Cir. 1999). An ALJ 18 must propound a hypothetical question to a VE that is based on medical assumptions 19 supported by substantial evidence in the record that reflects all the claimant's limitations. 20 See Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001); see also Embrey v. Bowen, 21 849 F.2d 418, 423 (9th Cir. 1988) (“Hypothetical questions posed to the vocational expert 22 must set out all the limitations and restrictions of the particular claimant . . . .” (emphasis in 23 original)). The hypothetical should be “accurate, detailed, and supported by the medical 24 record.” Tackett, 180 F.3d at 1101. It is, however, proper for an ALJ to limit a hypothetical to 25 those impairments that are supported by substantial evidence in the record. Magallanes, 26 881 F.2d at 756-57. 27 As discussed above, the ALJ was not required to incorporate Dr. Singh’s treatment 28 notes or the Mental Evaluation into his RFC assessment. The ALJ’s RFC assessment was 18 1 otherwise supported by substantial evidence regarding Plaintiff’s limitations without alcohol 2 abuse. Accordingly, a hypothetical that did not include the limitations stated in Dr. Singh’s 3 treatment notes or the Mental Evaluation was proper. See Magallanes, 881 F.3d at 756-57. 4 The ALJ appropriately relied on the VE’s response to the hypotheticals in finding that Plaintiff 5 could perform alternative work as a small products assembler and house cleaner. (AR 4006 01, 1191-93.) ORDER 7 8 IT IS HEREBY ORDERED that the Decision of the Commissioner of Social Security is 9 AFFIRMED. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: September 21, 2010 13 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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