Diane Merchant v. Michael J Astrue, No. 5:2009cv00510 - Document 19 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. (rp)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 DIANE MERCHANT, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-00510-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered the treating clinicians opinions; 2. 3 4 regarding Plaintiff s mental residual functional capacity; 3. 5 6 4. Whether the ALJ posed a complete hypothetical question to the vocational expert; and 5. 9 Whether the ALJ properly considered the actual mental and physical demands of Plaintiff s past work as a teacher s 10 11 Whether the ALJ failed to properly consider and rate the severity of Plaintiff s mental impairment; 7 8 Whether the ALJ properly considered Dr. Eklund s opinion aide, driver and home care aide. (JS at 2-3.) 12 13 This Memorandum Opinion will constitute the Court s findings of 14 fact and conclusions of law. After reviewing the matter, the Court 15 concludes that the decision of the Commissioner must be affirmed. 16 17 I 18 THE ALJ DID NOT ERR IN DISCOUNTING OPINIONS OF NURSE PRACTITIONERS 19 In her first issue, Plaintiff asserts that the ALJ erred by 20 failing 21 practitioners 22 Plaintiff s mental state. On October 6, 2005, Plaintiff asserts, the 23 clinicians 24 psychotic features and a Global Assessment of Functioning ( GAF ) 25 score of 39. (JS at 3, citing AR 460.) 26 diagnosis on November 13, 2006. (Id.) 27 28 to properly (denominated diagnosed Plaintiff consider her asserts treating with that diagnostic Major the opinions clinicians ) Depressive of nurse regarding Disorder without The clinicians repeated this ALJ s failure to consider the clinicians opinions as establishing a diagnosis is error, because the 2 1 clinicians were working with Plaintiff s psychiatrist, Dr. Eklund, at 2 the San Bernardino County Department of Behavioral Health, and that 3 Dr. Eklund affirmed the clinicians diagnoses in his Mental Status 4 examination (JS at 4, citing AR 459.) 5 Plaintiff s argument is factually incorrect, as even she concedes 6 in the discussion of her second issue, which concerns the ALJ s 7 evaluation 8 residual functional capacity. She there acknowledges that on December 9 22, 2005, Dr. Eklund assessed Plaintiff with a diagnosis which ruled 10 out bipolar disorder with psychotic features, and ruled out Major 11 Depressive Disorder with psychotic features, and obsessive compulsive 12 disorder. (JS at 7, citing AR 459.) 13 Eklund s opinion and that of the clinicians concerns a GAF assessment 14 of 40. (AR 459-460.) 15 of Plaintiff s argument. 16 of Dr. Eklund s opinion regarding Plaintiff s mental The only parallel between Dr. The Court will address both of these components With regard to Plaintiff s contention that the opinion of nurse 17 practitioners constitutes an acceptable diagnostic source, her 18 reliance on 20 C.F.R. §404.1513(a)(1) and 20 C.F.R. §416.913(a)(1) is 19 misplaced. 20 by Plaintiff that such evidence must be considered an accepted 21 medical source ... if the clinician works in conjunction with a 22 physician. (JS at 3-4.) 23 conclusion in the regulations. 24 C.F.R. §416.913(a)(6), deleted by amendments to the regulations in 25 2000 (see 65 F.R. 34950-01, 34952 [June 1, 2000]), provided that the 26 report of an interdisciplinary team that contains the evaluation and 27 signature 28 acceptable medical evidence. These regulations do not stand for the principle advanced of an There is absolutely no support for such a acceptable Indeed, a previous incarnation of 20 medical source is also considered Current regulations, however, do not 3 1 contain any such provision; instead, the opinion of sources such as 2 nurse 3 §404.1513(d)(1), not as a diagnostic source, but as evidence to show 4 the severity of your impairment(s) and how if affects your ability to 5 work. 6 1083, 1086 (9th Cir. 2000), and Schneider v. Commissioner of the Social 7 Security Administration, 223 F.3d 968, 975 (9th Cir. 2000) (see JS at 8 4) in support of her proposition that the clinicians opinions are an 9 acceptable medical source because clinicians work in conjunction with 10 the treating psychiatrist, completely misstates the holdings of those 11 cases, which concern evaluation of lay witness testimony. 12 expects that counsel will actually read cases and then cite them for 13 the applicable principles of law. practitioners is considered pursuant to 20 C.F.R. Moreover, Plaintiff s citations to Merrill v. Apfel, 224 F.3d This Court 14 In any event, the ALJ did not ignore the opinions of the 15 clinicians, but considered them in conjunction with the evidence in 16 the file. (See AR at 18.) 17 If Plaintiff s argument in her first issue concerns the 18 assertedly erroneous rejection of the clinicians and Dr. Eklund s 19 assessment of a GAF score of 40 as relevant to establishing a severe 20 mental impairment, that is, again, an unpersuasive argument. 21 The GAF scale is intended to reflect a person s overall level of 22 functioning at or about the time of the examination, not for a period 23 of at least 12 consecutive months, which is required for a finding of 24 impairment or disability. (See 20 C.F.R. §§416.905, 416.920(c)(2006).) 25 GAF scores are intended to be used for clinical diagnosis and 26 treatment, and do not directly correlate to the severity assessment 27 set 28 Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, forth in Social Security regulations. 4 (See Revised Medical 1 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000), and American Psychiatric 2 Ass n, Diagnostic and Statistical Manual of Mental Disorders, Text 3 Revision 33 (4th Ed. 2000). 4 5 For the foregoing reasons, the Court determines that Plaintiff s first issue has no merit. 6 7 II 8 THE ALJ PROPERLY CONSIDERED THE OPINION OF PLAINTIFF S TREATING 9 PSYCHIATRIST AS TO HER MENTAL RESIDUAL FUNCTIONAL CAPACITY 10 In Plaintiff s second issue, she asserts that the ALJ erred in 11 rejecting the diagnostic opinions of her treating psychiatrist, Dr. 12 Eklund, with regard to functional limitations assess by Dr. Eklund in 13 a 14 ( Evaluation ). (JS at 8, AR 487-488.) document entitled Work Capacity Evaluation (Mental) 15 In the Decision, the ALJ referenced and discussed Dr. Eklund s 16 evaluation, denominated Medical Source Statement in the decision. 17 (AR 18.) 18 limitations in all of the delineated areas of mental functioning. 19 (Id.) The ALJ determined that she would not assign controlling weight 20 to 21 indicated that Dr. Eklund s assessment of an extreme limitation in 22 Plaintiff s 23 defined in the form as having no useful ability to function in this 24 area. 25 the 26 continued to drive and spend time reading, and that she is the 27 responsible person for disabled adults. (AR 18.) 28 indicated that Dr. Eklund reported that at the same time, Plaintiff Dr. As the ALJ noted, Dr. Eklund assessed moderate to extreme Eklund s opinion, ability to for several maintain reasons. attention and First, the concentration ALJ was The ALJ determined that this assessment was not supported by evidence in the record, including 5 evidence that Plaintiff Further, the ALJ 1 had normal mental status with suspicious thoughts about people. 2 This conclusion was rejected on the basis that there were no specific 3 findings supporting such severe ratings. (Id.) Finally, in a previous 4 paragraph in the Decision, the ALJ assessed that the examining 5 consultative 6 significant limitations in Plaintiff s concentration. (AR 213-217 7 [examining 8 Ultimately, the ALJ relied upon the opinion of the non-examining State 9 Agency physician (AR 173-175) to determine that Plaintiff does not 10 psychologist psychiatrist]; and AR psychiatrist 461-464 had both [examining reported no psychologist].) have a severe mental impairment. (AR 13, 18.) 11 12 A. Applicable Law. 13 The Ninth Circuit has repeatedly reaffirmed the principle that 14 greatest weight is ordinarily given to the opinions of treating 15 physicians versus those physicians who do not treat: 16 We afford greater weight to a treating physician s 17 opinion because he is employed to cure and has a greater 18 opportunity 19 individual. Magallanes v. Bowen, 881 F.2d 747, 751 20 Cir. 1989), quoting Sprague v. Bowen, 812 F.2d 1226, 1230 21 (9th Cir. 1987). to know and observe the patient as an (9th 22 23 Even so, the treating physician s opinion is not necessarily 24 conclusive as to either a physical condition or the ultimate issue of 25 disability. Id., citing Rodriguez v. Bowen, 876 F.2d 759, 761-62 & n. 26 7 (9th Cir. 1989) 27 opinion whether or not that opinion is contradicted, Id., citing 28 Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). The ALJ may disregard the treating physician s 6 However, if the 1 ALJ chooses to do so, the ALJ must make findings setting forth 2 specific, for 3 substantial evidence in the record. Id., citing Winans v. Bowen, 4 853 F.2d 643, 647 (9th Cir. 1987), quoting Sprague, 812 F.2d at 1230; 5 see also Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). legitimate reasons doing so that are based on 6 This clearly articulated rule, set forth by the Circuit in its 7 opinions in Magallanes and Cotton, has been often cited in later 8 decisions. (See, Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 9 1995): The ALJ may reject the opinion only if she provides clear and 10 convincing reasons that are supported by the record as a whole. ; 11 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995): Even if the 12 treating doctor s opinion is contradicted by another doctor, the 13 Commissioner may not reject this opinion without providing specific 14 and legitimate reasons supported by substantial evidence in the 15 record for so doing. (Citation omitted). 16 Moreover, the Ninth Circuit has established specific requirements 17 in situations where the ALJ (as in this case) rejects the opinions of 18 treating or examining physicians in favor of the opinion of a non- 19 treating, non-examining physician, such as a medical expert. The rule 20 is succinctly stated in Morgan v. Apfel, 169 F.3d 595, 602 (9th Cir. 21 1999): 22 The opinion of a nonexamining medical advisor cannot 23 by itself constitute substantial evidence that justifies the 24 rejection 25 physician. (citations omitted) 26 Heckler, 753 F.2d 1450, 1456 (9th Cir. 1984)], we determined 27 that the report of [a] nontreating, nonexamining physician, 28 combined with the ALJ s own observation of [the] claimant s of the opinion of 7 an examining or treating In Gallant [Gallant v. 1 demeanor at the hearing, did not constitute substantial 2 evidence and, therefore, did not support the Commissioner s 3 rejection of the examining physician s opinion that the 4 claimant was disabled. 5 Pitzer [Pitzer v. Sullivan, 908 F.2d 502 (9th Cir. 1990)], 6 we held that the nonexamining physician s opinion with 7 nothing more did not constitute substantial evidence. 8 Gallant, 753 F.2d at 1456. In But we have consistently upheld the Commissioner s 9 rejection 10 physician, 11 nontreating, 12 omitted] 13 (9th 14 determination included, among other things, testimony from 15 the claimant that conflicted with her treating physician s 16 opinion. [citation omitted] 17 of the based opinion in of part nonexamining a on treating the medical or examining testimony advisor. of the [citations In Magallanes [Magallanes v. Bowen, 881 F.2d 747 Cir. 1989)], evidence that supported the ALJ s (169 F.3d at 602) 18 19 With regard to check-off forms, they are generally disfavored, 20 especially when they are unsupported by objective findings. See Crane 21 v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996), citing Murray v. Heckler, 22 722 F.2d 499, 501 (9th Cir. 1983). 23 F.2d 747, 751 (9th Cir. 1989). See also Magallanes v. Bowen, 881 24 25 B. Analysis. 26 The issue presented to the Court in Plaintiff s second assertion 27 of error is whether the ALJ erred in not giving controlling weight to 28 the treating psychiatrist s opinion. 8 The ALJ noted that Dr. Eklund s 1 assessment that Plaintiff had an extreme impairment in her ability to 2 maintain concentration and attention for extended periods (AR 47) was 3 substantially 4 Moreover, the consulting psychiatrist, Dr. Fontana, did not find the 5 extended limitations that Dr. Eklund noted in his check-off form. The 6 examining psychologist, Dr. Goldman, did not assess any mental health 7 impairment at all, and found that Plaintiff malingered. (AR 464.) 8 Thus, the ALJ relied upon several independent sources of evidence -- 9 Plaintiff s contradicted own testimony, by and Plaintiff the during reports her of the testimony. consultative 10 examining psychiatrist and psychologist -- to depreciate Dr. Eklund s 11 opinion. Further, the ALJ found that Dr. Eklund s own treatment notes 12 did not support his assessment as to functional limitations. 13 all, 14 evidentiary bases to reject Dr. Eklund s conclusions, and the Court 15 therefore finds no error with regard to the second issue. 16 the ALJ relied upon a sufficient number of All in independent The Court can also assess Plaintiff s third issue within the 17 parameters of the discussion of the second issue. 18 issue raises the question of whether the ALJ failed to properly 19 consider the severity of Plaintiff s mental impairment. The ALJ found 20 no severe mental impairment. 21 Plaintiff s third The evidentiary support for the ALJ s decision has already been 22 largely discussed by the Court. First, the ALJ properly rejected the 23 extreme functional limitations assessed by Dr. Eklund in the check-off 24 evaluation form. 25 consulting psychiatrist, Dr. Fontana, and the consulting clinical 26 psychologist, Dr. Goldman. (AR 13-14.) 27 that Plaintiff has no limitation in functional areas of daily living, 28 social functioning, concentration, persistence or pace. (AR 14.) Next, the ALJ relied on the findings of the 9 The ALJ therefore determined 1 Plaintiff again asserts that this is an erroneous conclusion because 2 it fails to consider Dr. Eklund s check-off form; however, the Court 3 has already addressed this issue, and determined that the ALJ had a 4 sufficient and reasonable basis to do so. 5 Within these parameters, the Court can also adjudicate 6 Plaintiff s fourth claim, where she asserts that the ALJ did not pose 7 a complete hypothetical question to the vocational expert ( VE ). 8 Essentially, Plaintiff asserts that the hypothetical questions posed 9 to the VE (see AR at 526-528) are incomplete, because they failed to 10 include the conclusions set out in Dr. Eklund s check-off form, which 11 identified mental limitations and restrictions. (JS at 17.) 12 because the ALJ properly rejected Dr. Eklund s conclusions as set 13 forth 14 incorporate any of the limitations asserted to exist by Dr. Eklund in 15 the hypothetical questions, and therefore, no error was committed. 16 (See Embrey v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988).) in this check-off form, she was under no Again, obligation to 17 18 III 19 THE ALJ PROPERLY CONSIDERED EVIDENCE PERTAINING TO WHETHER 20 PLAINTIFF COULD PERFORM HER PAST RELEVANT WORK 21 AS A TEACHER S AIDE, DRIVER AND HOME CARE AIDE 22 In her fifth issue, Plaintiff asserts that the ALJ erred in 23 determining that she can perform her past relevant work as a teacher s 24 aide, driver, and home care aide. 25 ALJ erroneously failed to consider Plaintiff s mental limitations and 26 restrictions as identified by Dr. Eklund. (JS at 19.) 27 has already been addressed by the Court, which has found that the ALJ 28 did not err in her consideration of Dr. Eklund s opinions. Plaintiff first contends that the 10 This argument 1 Plaintiff further asserts that the ALJ concluded that she is 2 capable of performing her past relevant work without providing a 3 comparative analysis of her current residual functional capacity 4 ( RFC ) with the actual physical demands and requirements of her past 5 jobs. (JS 21.) 6 testimony from the VE that Plaintiff could perform her three past 7 relevant jobs as she previously performed them and as they were 8 actually performed, given her RFC. (AR 525-527.) 9 testified But this is an erroneous argument. that Plaintiff could perform these The ALJ obtained The VE clearly jobs as they are 10 generally performed. (AR 525-527.) Plaintiff s argument to the effect 11 that she cannot perform these jobs because they exceed her RFC is 12 based 13 requirements of the actual jobs identified. 14 identified the DOT code of driver, 906.683-022 to define her past 15 relevant work as driving children to and from school. 16 code, however, describes a truck driver who would deliver materials. 17 That description substantially differs from the work that Plaintiff 18 described as her past relevant work. 19 in large part on her erroneous identification of the For example, Plaintiff The actual Plaintiff has failed to meet her burden of proof to demonstrate 20 that the jobs available to her 21 requirements in excess of her functional abilities. 22 the Court finds no error with regard to Plaintiff s fifth and last 23 issue. 24 // 25 // 26 // 27 // 28 // 11 encompass mental or physical For that reason, 1 2 3 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 4 5 6 DATED: November 20, 2009 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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