Rebel Schroeder v. Michael J. Astrue, No. 5:2009cv00734 - Document 17 (C.D. Cal. 2009)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is affirmed. (See Order for details) (db)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 REBEL SCHROEDER, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-00734-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff 19 Commissioner s 20 Disability Insurance benefits ( SSDI ) and Supplemental Security 21 Income benefits( SSI ) pursuant to Titles II and XVI of the Social 22 Security Act. For the reasons stated below, the decision of the 23 Social Security Commissioner is affirmed. Rebel denial Schroeder of his seeks judicial application for review Social of the Security 24 25 I. Facts and Procedural Background 26 Plaintiff was born on May 8, 1965. He has a tenth grade 27 education and has worked as a forklift operator, janitor, and 28 maintenance person. (Administrative Record ( AR ) at 98.) 1 1 Plaintiff filed an application for SSDI benefits on December 28, 2 2005, and an application for SSI on April 10, 2006, alleging 3 disability as of March 13, 2005, due to a head, neck, and ankle 4 injuries 5 applications were denied initially and upon reconsideration. (AR at 6 23, 28.) An administrative hearing was started on December 18, 2007 7 before Administrative Law Judge ( ALJ ) John W. Belcher, but was 8 continued to May 1, 2008 before ALJ Mason D. Harrell. (AR at 253- 9 99.) Plaintiff was represented by counsel and testified on his own 10 behalf at both hearings. (AR at 256-61, 267-79.) A medical expert, 11 Dr. Samuel Landau, testified at the first hearing, and a vocational 12 expert, David Rinehart, testified at the second hearing. (AR at 13 261-66, 296-99.) as well as dyslexia. (AR at 11, 75-77, 97.) His 14 ALJ Harrell issued an unfavorable decision on June 17, 2008. 15 (AR at 8-18.) The ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since his alleged onset date of March 17 13, 2005, and met the insured status requirements of the Social 18 Security Act through December 31, 2008. (AR at 13.) Plaintiff s 19 severe 20 sprain/strain, dyslexia, depression, and personality disorder. 21 However, these severe impairments, alone or in combination, did not 22 meet the requirements of a listed impairment in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. (AR at 13-14.) The ALJ concluded that 24 Plaintiff could not return to his past relevant work, but that he 25 retained the residual functional capacity ( RFC ) to impairments were found to include chronic 26 read and write short English words; lift/carry 10 pounds 27 frequently; 28 infrequent basis; sit without restriction; stand/walk for lift/carry up to 2 20 pounds on a very neck 1 4 hours out of an 8 hour workday, with a break every 2 2 hours; never climb ladders or balance or work at heights; 3 can 4 occasionally perform neck motion but avoid extremes of 5 motion; head should be held in a comfortable position 6 most of the time; occasionally hold head in a fixed 7 position for 15 minutes at a time; and perform simple, 8 repetitive tasks. climb stairs; occasionally work overhead; 9 (AR at 14-16.) Finally, the ALJ determined that Plaintiff was not 10 disabled because there were a significant number of jobs in the 11 national and local economy that Plaintiff could perform based on 12 the testimony of the vocational expert and use of the Medical- 13 Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, 14 Rule 201 ( the grids ), as a framework for decision. (AR at 16-17.) 15 The Appeals Council denied review on March 26, 2009, (AR at 5- 16 7), 17 Plaintiff contends the ALJ erred by: (1) failing to properly 18 consider a treating physician s opinion regarding Plaintiff s 19 ability to work; (2) failing to properly consider Plaintiff s GAF 20 score as noted in a psychiatric evaluation; (3) failing to consider 21 a treating physician s opinion regarding the side effects of 22 Plaintiff s medication; and (4) failing to propound a complete 23 hypothetical to the vocational expert. (Joint Stip. at 2-3.) and Plaintiff commenced this action on April 13, 2009. 24 25 26 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 27 Commissioner s decision to deny 28 decision must be upheld unless the ALJ s findings are based on 3 benefits. The Commissioner s 1 legal error or are not supported by substantial evidence in the 2 record as a whole. Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 3 1999); 4 Substantial evidence means more than a scintilla, but less than a 5 preponderance; it is evidence that a reasonable person might accept 6 as adequate to support a conclusion. Lingenfelter v. Astrue, 504 7 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 8 466 9 substantial evidence supports a finding, the reviewing court must 10 review the administrative record as a whole, weighing both the 11 evidence that supports and the evidence that detracts from the 12 Commissioner s conclusion. Reddick v. Chater, 157 F.3d 715, 720 13 (9th Cir. 1996). If the 14 or reversing the ALJ s conclusion, the reviewing court may not 15 substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 16 882. Parra F.3d v. 880, Astrue, 882 481 (9th F.3d Cir. 742, 2006)). evidence can 746 To support (9th Cir. determine either 2007). whether affirming 17 18 19 20 III. Discussion A. The ALJ Properly Considered the Treating Physician s Opinion 21 In the decision denying benefits, the ALJ found that the 22 medical opinion evidence in the record was fully credible. (AR at 23 16.) Nonetheless, Plaintiff argues that the ALJ failed to properly 24 consider the opinion of Dr. David Siambanes, a treating physician, 25 that Plaintiff could not work. (Joint Stip. at 4.) In particular, 26 Plaintiff points to two medical reports prepared by Dr. Siambanes, 27 on August 16, 2006, and September 13, 2007, for the San Bernardino 28 County Transitional Assistance Department. (AR at 243, 246.) The 4 1 opinion in each report consists of a single box checked by Dr. 2 Siambanes that states Plaintiff can perform no work. (Id.) In 3 conjunction with checking the box on each form, Dr. Siambanes noted 4 that 5 repetitive upward/downward gazing or rotation of the cervical 6 spine. (Id.) In determining Plaintiff s RFC, the ALJ specifically 7 noted and credited these specific physical limitations. (AR at 15.) 8 However, the ALJ did not explicitly discuss the checked boxes. 9 Plaintiff argues this was reversible error. Plaintiff s limitations include no heavy lifting, no 10 A treating physician s medically supported opinion regarding 11 the nature and severity of a disability claimant s impairments is 12 generally given great weight. 20 C.F.R. § 404.1527(d)(2); Orn v. 13 Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 14 821, 830 (9th Cir. 1995). However, the ultimate determination of 15 disability (i.e. whether a claimant can perform work in the 16 national 17 physician s statement that a claimant is unable to work is not 18 entitled to special weight. 20 C.F.R. 404.1527(e); see Tonapetyan 19 v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001) (ALJ not bound by 20 opinion 21 determination of disability); Martinez v. Astrue, 261 Fed.Appx 33, 22 35 (9th Cir. 2007) ( [T]he opinion that [the claimant] is unable to 23 work is not a medical opinion...[and] is therefore not accorded the 24 weight of a medical opinion. ). Moreover, an ALJ need not accept 25 the opinion of any medical source, including a treating medical 26 source, if that opinion is brief, conclusory, and inadequately 27 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 28 957 (9th Cir. 2002); accord Tonapetyan 242 F.3d at 1149. economy) of rests treating solely physician 5 with the with Commissioner, respect to and a ultimate 1 Here, Plaintiff s argument that the ALJ failed to properly 2 consider Dr. Siambanes s notation indicating Plaintiff can perform 3 no work is unpersuasive. The box checked by Dr. Siambanes on two 4 occasions is precisely the type of conclusory statement afforded no 5 special weight by the Ninth Circuit in accordance with the Social 6 Security regulations. Further, Plaintiff s argument is even less 7 persuasive when considered in the context of the entire form 8 completed by Dr. Siambanes. Within the same question on the medical 9 form referred to by Plaintiff, Dr. Siambanes also listed 10 Plaintiff s specific, medically supported limitations: no heavy 11 lifting, no repetitive upward/downward gazing or rotation of the 12 cervical spine. (AR at 243, 246.) In contrast to Plaintiff s 13 argument, a close examination of the form suggests that Dr. 14 Siambanes believed Plaintiff could not perform work involving the 15 listed physical limitations. As described above, the ALJ properly 16 credited and included Plaintiff s lifting, gazing, and rotation 17 limitations during the RFC assessment. (AR at 15.) 18 Finally, the ALJ is charged with summarizing the relevant 19 medical evidence and is not required to discuss every piece of 20 evidence. Howard v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) 21 (citing Black v. Apfel, 143 F.3d 383 (8th Cir. 1998)). The ALJ s 22 discussion of Plaintiff s specific physical limitations in the 23 exact terms used by Dr. Siambanes suggests he was aware of and 24 rejected only the non-medical portion of the opinion, as he was 25 entitled to do. See e.g., Martinez, 261 Fed.Appx at 35. For these 26 reasons, the ALJ afforded proper weight to Dr. Siambanes s medical 27 opinion, and Plaintiff is not entitled to relief on this claim. 28 // 6 1 B. 2 3 The ALJ Properly Considered Dr. Hudson s Psychiatric Evaluation Plaintiff contends that the ALJ failed to properly consider the 4 results of a psychiatric evaluation performed by Dr. Marcia Hudson 5 on March 26, 2008. Plaintiff points to a single sentence in the 6 ALJ s decision to argue that the ALJ: misrepresents the record by 7 stating, Dr. Hudson assessed the claimant s GAF [Global Assessment 8 of Functioning] at 50 indicating moderate limitations. (Joint 9 Stip. at 7; AR at 16.) Plaintiff argues that this is a legally 10 erroneous misrepresentation because a GAF score from 41-50 11 represents serious symptoms rather than moderate limitations. 12 The GAF Scale provides a measure for an individual s overall 13 level of psychological, social, and occupational functioning. Am. 14 Psychiatric Ass n, Diagnostic and Statistical Manual of Mental 15 Disorders 30 (4th ed. 1994). The Scale may be particularly useful 16 in tracking the clinical progress of individuals in global terms, 17 using a single measure. Id. A GAF range of 41-50 reflects 18 [s]erious symptoms (e.g., suicidal ideation, severe obsessional 19 rituals, frequent shoplifting) or any serious impairment in social, 20 occupational, or school functioning (e.g., no friends, unable to 21 keep a job). Id. at 32. 22 Despite its usefulness as a tool for psychological assessment, 23 a GAF score is not determinative of mental disability or limitation 24 for social security purposes. 65 Fed.Reg. 50746, 50764-50765 (Aug. 25 21, 2000) ( The GAF score does not have a direct correlation to the 26 severity requirements in our mental disorders listings. ) In 27 evaluating the severity of a claimant s mental impairments, a GAF 28 score may help guide an ALJ s determination, but an ALJ is not bound 7 1 to consider it. McFarland v. Astrue , 288 Fed.Appx 357, 359 (9th 2 Cir. 2008) (ALJ did not commit error by failing to mention the 3 plaintiff s three GAF scores of 50); Howard v. Comm r of Soc. Sec., 4 276 F.3d 235, 241 (6th Cir. 2002)( While a GAF score may be of 5 considerable help to the ALJ in formulating the RFC, it is not 6 essential to the RFC s accuracy. The ALJ s failure to reference the 7 GAF score in the RFC, standing alone, does not make the RFC 8 inaccurate. ); Orellana v. Astrue, 2008 WL 398834, at *9 (E.D. Cal. 9 Feb. 12, 2008)( While a GAF score may help the ALJ assess Claimant s 10 ability to work, it is not essential and the ALJ s failure to rely 11 on the GAF does not constitute an improper application of the 12 law. ). Thus, the ALJ was not even required to discuss Plaintiff s 13 GAF score, and a single, arguably semantic misstep by the ALJ in 14 describing Plaintiff s GAF score does not render the decision 15 erroneous. See Mann v. Astrue, 2009 WL 2246350, at *1-2 (C.D. Cal. 16 July 24, 2009) (affirming denial of benefits despite ALJ incorrectly 17 reporting that claimant had GAF score of 55, when GAF was actually 18 50). 19 The ALJ s overall description of Dr. Hudson s report was 20 accurate and reflective of Dr. Hudson s evaluation. The report 21 indicates that most of Plaintiff s mental status tests (e.g. 22 appearance/hygiene; speech; though process) were within normal 23 limits. (AR at 247-48.) After reviewing the report, the ALJ credited 24 fully Dr. Hudson s clinical diagnoses that Plaintiff suffers from 25 depression, personality disorder and a reading disorder. (AR at 1326 16.) The ALJ properly weighed Dr. Hudson s report, and Plaintiff is 27 not entitled to relief on this claim. 28 // 8 1 C. The ALJ Properly Considered the Treating Doctor s Opinion 2 3 Regarding Medication Side Effects Plaintiff contends that the ALJ failed to properly consider Dr. 4 Siambanes s progress report notation that Plaintiff s medication 5 makes him groggy and sleepy[,] but he has been taking it for some 6 time and maintains his baseline level. (Joint Stip. at 9; AR at 7 238.) 8 The ALJ must consider all factors that might have a 9 significant impact on an individual s ability to work. Erickson 10 v. Shalala, 9 F.3d 813, 817 (9th Cir. 1993) (emphasis in original) 11 (quoting Varney v. Secretary of Health & Human Serv., 846 F.2d 581, 12 585 (9th Cir. 1987)), relief modified, 859 F.2d 1396 (1988)). 13 factors may include side effects of medications as Such well as 14 subjective evidence of pain. Erickson, 9 F.3d at 818; Varney, 846 15 F.3d at 585 ( [S]ide effects can be a highly idiosyncratic 16 phenomenon and a claimant s testimony as to their limiting effects 17 should not be trivialized. ) (citation omitted). However, Plaintiff 18 bears the burden of producing medical evidence to show that any 19 claimed side effects from medication are severe enough to interfere 20 with his ability to work. See Osenbrock v. Apfel, 240 F.3d 1157, 21 1164 (9th Cir. 2001) (finding that passing mentions of the side 22 effects of ... medication in some of the medical records was 23 insufficient to demonstrate interference with ability to work). 24 In support of his claim, Plaintiff relies on WebMD for a myriad 25 of possible side effects caused by Plaintiff s medications, namely 26 Zantac, Feldene, Soma, Vicodin, and Lexapro. (Joint Stip. at 10.) 27 The Court notes that the Social Security regulations do not require 28 an ALJ to consider a claimant s medications as part of every 9 1 disability determination. The mere fact that a claimant takes a 2 certain medication, in and of itself, is not evidence that the 3 claimant also experiences any one of the myriad possible side 4 effects from that medication. Further, a simple recitation of 5 potential side effects from a particular medication does not 6 establish that this claimant experiences these side effects, which 7 prevents him or her from working for these reasons. 8 Plaintiff has failed to demonstrate that side effects from his 9 medications precluded him from engaging in substantial gainful 10 activity. Although the dosage and refill status of Plaintiff s 11 medications is discussed in nearly all of Dr. Siambanes s numerous 12 reports over a period of several years, Dr. Siambanes mentioned the 13 alleged side effects of the medication only once. (See AR at 19814 246.) Indeed, the single reference by Dr. Siambanes appears to be 15 the only mention of medication side effects in the entire medical 16 record.1 This is precisely the type of passing mention of side 17 effects that was found to be inconsequential in Osenbrock, 240 F.3d 18 at 1164. Further, although Dr. Siambanes on numerous occasions 19 described physical limitations that would affect Plaintiff s ability 20 to work, Dr. Siambanes never included medication side effects as an 21 employment limitation. If the side effects of Plaintiff s medication 22 would limit Plaintiff s ability to work, Dr. Siambanes would have 23 made more than a passing reference to it in a single medical 24 report. (Id.) Relief is not warranted on this claim. 25 26 1 27 28 During his hearing, Plaintiff testified that his medication makes him drowsy. However, the ALJ specifically found Plaintiff s testimony not credible, a finding that is not challenged by Plaintiff in this proceeding. 10 1 2 3 D. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert Plaintiff s final contention is that the ALJ failed to pose a 4 complete hypothetical question to the VE. (Joint Stip. at 13-14.) 5 In particular, Plaintiff claims the ALJ should have included in the 6 hypothetical Plaintiff s GAF score, medication side effects, and the 7 specific limitations of no repetitive upward/downward gazing or 8 rotation of the cervical spine. (Joint Stip. at 14.) Plaintiff s 9 argument is unpersuasive. A hypothetical posed to a vocational 10 expert must contain all the limitations of a particular claimant. 11 20 C.F.R. § 404.1545; Bray v. Comm r of Soc. Serv., 554 F.3d 1219, 12 1228 (9th Cir. 2009); DeLorme v. Sullivan, 924 F.2d 841, 850 (9th 13 Cir. 1991)(citations omitted). If the hypothetical fails to reflect 14 all of the claimant s limitations, the vocational expert s testimony 15 cannot support a finding that the claimant could perform jobs in the 16 national economy. See id. However, the ALJ need only include in the 17 hypothetical those limitations that are supported by substantial 18 evidence in the record. Osenbrock, 240 F.3d at 1164-65. 19 Here, the ALJ s hypothetical was complete. As described above, 20 the ALJ was not required to include Plaintiff s GAF score in the 21 hypothetical because a GAF score does not directly correlate to the 22 severity of a disability claimant s limitations. 65 Fed.Reg. 50746, 23 50764-50765 (Aug. 21, 2000); Howard, 276 F.3d at 241. A GAF score 24 is a psychological assessment tool, not a description of specific, 25 work-related limitations. See McFarland, 288 Fed.Appx. at 359. Thus, 26 the ALJ did not err in failing to recite Plaintiff s GAF score to 27 the VE. Similarly, the ALJ was not required to include medication 28 side effects in the hypothetical. As described above, there was 11 1 insubstantial 2 Plaintiff s evidence medication to demonstrate caused that work-related side effects limitations. of See 3 Osenbrock, 240 F.3d at 1164. 4 Finally, the ALJ adequately described Plaintiff s physical 5 limitations (i.e. no repetitive upward/downward gazing or rotation 6 of the cervical spine) as opined by Dr. Siambanes. Contrary to 7 Plaintiff s argument that the hypothetical was vague and not 8 inclusive as to these physical limitations, the ALJ properly 9 translated Plaintiff s them into specific, work related limitations: 10 Mr. Rinehart, let s suppose someone who has a 10th 11 grade education but they have dyslexia, so they can only 12 read and write short English words...could only lift up 13 to 10 pounds frequently, and...no more than 20 pounds 14 infrequently. And would be able to sit, unlimited; but 15 standing and walking would only be no more than four 16 hours out of an eight-hour period, but then not all at 17 once; would need breaks every two hours; could climb 18 stairs, 19 balancing; and only occasional overhead work. He can do 20 occasional neck motion, but should avoid extremes of 21 motion. The head should be held in a comfortable position 22 most of the time; and he can maintain his head in a fixed 23 position for about 15 to 30 minutes at a time, and do 24 that occasionally...and simple, repetitive tasks. but not ladders; no work at heights; no 25 (AR at 296-98) (emphasis added). The emphasized portion of the 26 hypothetical 27 inability to repetitively gaze upward or downward or repetitively 28 rotate the cervical spine. Indeed, almost one-third of the ALJ s directly and specifically 12 captures Plaintiff s 1 hypothetical focuses on the limitations described by Dr. Siambanes. 2 As such, the ALJ posed a complete hypothetical to the VE, and the 3 decision is supported by substantial evidence in the record. 4 Therefore, no relief is warranted on this claim of error. 5 6 7 8 IV. Conclusion For the reasons stated above, the decision of the Commissioner is affirmed. 9 10 Dated: November 2, 2009 11 12 13 ______________________________ Marc L. Goldman United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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