Cedric Baines v. Michael J. Astrue, No. 5:2009cv01121 - Document 27 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman (twdb)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 CENTRAL DISTRICT OF CALIFORNIA 8 EASTERN DIVISION 9 10 CEDRIC BAINES, Plaintiff, 11 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 09-1121-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Cedric Baines seeks judicial review of the Commissioner s 19 final decision denying his application for Supplemental Security Income 20 ( SSI ) benefits. For the reasons set forth below, the decision of the 21 Administrative Law Judge ( ALJ ) is affirmed and the action is dismissed 22 with prejudice. 23 24 I. Background 25 Plaintiff was born on December 13, 1984. (Administrative Record 26 ( AR ) at 38, 146.) He did not complete high school and has some special 27 job training in the California Conservation Corps. (AR at 29, 122.) 28 Plaintiff received SSI benefits until his benefits were terminated when 1 2 he was eighteen pursuant to a Disability Redetermination Decision dated November 19, 2003. (AR at 101-104.) 3 Plaintiff filed an application for benefits on September 2, 2005, 4 alleging that he had been disabled since March 3, 1992 due to a 5 personality disorder 6 application was 7 reconsideration 8 administrative hearing was held on May 29, 2008, before ALJ Joseph D. 9 Schloss. (AR at 22-37.) On June 17, 2008, the ALJ issued an unfavorable 10 decision. (AR at 12-21.) After the Appeals Council denied review, 11 Plaintiff filed this action for judicial review. On August 18, 2009, the 12 Court vacated and remanded the matter to the Commissioner pursuant to a 13 joint stipulation because several exhibits referenced in the ALJ s June 14 17, 2008 decision could not be located. (AR at 54.) 15 and denied on a learning initially June 7, on 2006. disorder. (AR at 146.) The 2005, and upon December 30, (AR 96-100, at 88-92.) An On remand, a second administrative hearing was held on May 19, 16 2010. 17 Plaintiff s application for benefits. (AR at 5-11.) The ALJ found that 18 Plaintiff had not engaged in substantial gainful activity since the 19 application date. (AR at 7.) The ALJ further found that the medical 20 evidence 21 impairments, including a history of learning disorder and a possible 22 history of drug abuse. (Id.) However, the ALJ concluded that Plaintiff s 23 impairments did not meet, or were not medically equal to, one of the 24 listed impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1. (Id.) 25 The ALJ concluded that Plaintiff was not disabled within the meaning of 26 the Social Security Act. See 20 C.F.R. § 416.920(c). (AR at 11.) (AR at 32-37.) established On July that 1, 2010, Plaintiff ALJ Schloss suffered from again the denied severe 27 The case was then reopened in this Court. On August 18, 2011, the 28 parties filed a Joint Stipulation ( Joint Stip. ) of disputed facts and 2 1 issues. Plaintiff contends that (1) the ALJ erred in finding that 2 Plaintiff s condition did not meet Listing 12.05B and in failing to 3 develop the record, and (2) the ALJ failed to properly consider the 4 opinion of Plaintiff s treating physician. (Joint Stip. at 3.) Plaintiff 5 seeks a reversal of the Commissioner s denial of his application and 6 payment 7 administrative hearing. (Joint Stip. at 25.) The Commissioner requests 8 that the ALJ s decision be affirmed. (Joint Stip. at 25.) of benefits or, in the alternative, remand for a new 9 10 11 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 12 Commissioner s decision to deny benefits. 13 decision must be upheld unless the ALJ s findings are based on legal 14 error or are not supported by substantial evidence in the record as a 15 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Parra v. 16 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 17 such evidence as a reasonable person might accept as adequate to support 18 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 19 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 20 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 21 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 22 evidence supports a finding, the reviewing court must review the 23 administrative record as a whole, weighing both the evidence that 24 supports 25 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 26 the evidence can support either affirming or reversing the ALJ s 27 conclusion, the reviewing court may not substitute its judgment for 28 that of the ALJ. Robbins, 466 F.3d at 882. and the evidence that The Commissioner s or ALJ s detracts 3 from the Commissioner s 1 2 3 III. Discussion A. The ALJ Properly Determined that Plaintiff s Impairment Does 4 Not Meet or Equal a Listed Impairment 5 Plaintiff contends that the ALJ failed to properly consider whether 6 he meets Listing 12.05B for mental retardation. (Joint Stip. at 3.) A 7 social security applicant who has an impairment that meets or equals one 8 of the Social Security Administration s listed impairments is considered 9 disabled. 20 C.F.R. § 404.1520(a)(4)(iii). In order to meet Listing 10 12.05B, an individual must have [a] valid verbal, performance, or full 11 scale IQ of 59 or less. 20 CFR Pt. 404, Subpt. P, App. 1, 12.05. 12 Plaintiff 13 Psychological Assessment conducted on December 24, 1995 when Plaintiff 14 was eleven years old by Dr. Haig J. Kojian, Ph.D., which assessed 15 Plaintiff with a verbal IQ of 47, a performance IQ of 72 and a full 16 scale IQ of 56. (Joint Stip. at 3, citing AR at 172-178.) contends that he meets Listing 12.05B based upon a 17 The ALJ rejected Dr. Kojian s report primarily because it was 18 conducted in 1995, almost ten years prior to the filing date, and was 19 therefore outside the relevant time frame. (AR at 10.) The ALJ also gave 20 little 21 Plaintiff with mental retardation and because the more recent evidence 22 in the record did not support a finding of anything greater than minimal 23 work-related limitations. (Id.) In addition, the ALJ relied upon the 24 fact that the State Agency physicians noted significant credibility 25 concerns and major conflicts between objective test results taken at 26 different times. (Id.) 27 28 weight to Substantial the report evidence because supports Dr. the Kojian ALJ s did not diagnose determination that Plaintiff did not meet any listing, including Listing 12.05B. The mere 4 1 diagnosis of a listed impairment is not sufficient to sustain a finding 2 of disability. 20 C.F.R. § 404.1525(d); Key v. Heckler, 754 F.2d 1545, 3 1549 (9th Cir. 1985). Indeed, [i]t is not enough for an applicant to 4 show he has a severe impairment that is one of the listed impairments to 5 find him per se disabled. Young v. Sullivan, 911 F.2d 180, 181 (9th 6 Cir. 1990). To meet a listed impairment, a claimant must present 7 medical findings establishing that he meets each characteristic of the 8 listed impairment. 20 C.F.R. § 404.1525(d); Tackett v. Apfel, 180 F.3d 9 1094, 1099 (9th Cir. 1999). 10 Here, Dr. Kojian s 1995 Psychological Assessment does not establish 11 that 12 retardation. In fact, Dr. Kojian never actually diagnosed Plaintiff with 13 mental retardation. Rather, he found that Plaintiff had borderline 14 intellectual functioning (AR at 174), which is a categorization of 15 intelligence in which a person has below average cognitive ability, that 16 is, an IQ of 71-85, but the deficit is not as severe as mental 17 retardation, which is defined as an IQ of 70 or below. Diagnostic and 18 Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Plaintiff meets the required level of severity for mental 19 Dr. Kojian also noted that there were possible reasons, aside from 20 mental retardation, which could explain the large discrepancy between 21 Plaintiff s verbal and performance IQ scores. Dr. Kojian noted that the 22 25 point difference between Plaintiff s verbal and performance IQ scores 23 was statistically significant because differences of this size or 24 greater were found in only 5% of the children who took these IQ tests. 25 (AR 26 discrepancy were that Plaintiff s nonverbal skills are better developed 27 than expressive language skills, visual processing is better developed 28 than auditory processing, [or] a language deficit may exist. (AR at at 175.) Dr. Kojian concluded 5 that possible reasons for the 1 176-177.) Thus, there were reasons other than mental retardation which 2 would account for Plaintiff s very low verbal IQ scores. 3 In addition, that he multiple was not medical mentally sources examined retarded. Plaintiff Despite and 4 concluded Plaintiff s 5 childhood IQ scores, Dr. Clifford Taylor, Ph.D., the consultative 6 examining psychologist, examined Plaintiff and diagnosed Plaintiff s 7 mental impairment as borderline intellectual functioning, not mental 8 retardation. (AR 190-196.) Dr. Taylor also determined that invalid test 9 scores and a finding of malingering prevented him from diagnosing 10 Plaintiff with mental retardation. (AR 9, 190-196.) Also, after a 11 psychiatric consultative examination on October 3, 2003, the examining 12 psychiatrist, Dr. Louis Fontana, M.D., determined that Plaintiff had 13 borderline intellectual functioning as well as dyslexia and dysgraphia 14 but that there was no evidence that Plaintiff was mentally retarded. (AR 15 at 239-241.) Dr. Fontana concluded that Plaintiff would be capable of at 16 least simple, repetitive work. (AR at 241.) 17 Plaintiff also contends that the ALJ had a special duty to more 18 fully develop the record regarding his alleged mental retardation. 19 (Joint Stip. at 9.) A disability applicant bears the burden of proving 20 disability and must provide medical evidence demonstrating the existence 21 and severity of an alleged impairment. See Mayes v. Massanari, 276 F.3d 22 453, 459 (9th Cir. 2001); 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. § 23 416.912(c). Nonetheless, an ALJ has a duty to develop the record fully 24 and fairly and to ensure that the claimant s interests are considered, 25 even when the claimant is represented by counsel. Mayes, 276 F.3d at 26 459. An ALJ s duty to augment an existing record is triggered only when 27 there is ambiguous evidence or when the record is inadequate to allow 28 for proper evaluation of the evidence. Id. (citing Tonapetyen v. Halter, 6 1 2 242 F.3d 1144, 1150 (9th Cir. 2001)). Here, however, there were no ambiguous medical records or 3 conflicting medical findings that would trigger the ALJ s duty to 4 develop the record. As discussed in detail above, there was no medical 5 evidence in the record that Plaintiff was mentally retarded. Rather, 6 each of the medical sources opined that Plaintiff had borderline 7 intellectual functioning, which 8 retardation. The of 9 functioning was neither ambiguous nor conflicting. Therefore, the ALJ 10 evidence is not considered Plaintiff s to borderline be mental intellectual had no duty to further develop the record. 11 The ALJ properly determined that Plaintiff did not meet the 12 requirements of Listing 12.05B. Accordingly, Plaintiff is not entitled 13 to relief. 14 B. 15 16 The ALJ Accorded Appropriate Weight to the Opinion of Plaintiff s Treating Physician Plaintiff contends that the ALJ erred in failing to give 17 controlling weight to the opinion of Plaintiff s treating psychologist, 18 Dr. Jon Held, Psy.D. (Joint Stip. at 16.) Plaintiff claims that the Work 19 Capacity Evaluation (Mental) prepared by Dr. Held on August 16, 2006 20 establishes that he has marked limitations in the ability to perform 21 various work-related functions. (Id., citing AR at 180-181.) With 22 respect to Dr. Held s August 16, 2006 report, the ALJ found as follows: 23 Dr. Held, apparently a patient advocate, filled out a 2-page 24 counsel-elicited 25 without any objective evaluation, opining extreme functional 26 limitations. These opinions are accorded little weight given 27 the 28 credibility problems. Rather, the objective and more thorough lack of checklist objective form on evaluation 7 the and same the date, again claimant s 1 2 examination of Dr. Taylor is accorded the greatest weight. (AR at 9.) 3 An ALJ should generally accord greater probative weight to a 4 treating 5 sources. See 20 C.F.R. § 404.1527(d)(2). The ALJ must give specific 6 and legitimate reasons for rejecting a treating physician s opinion in 7 favor of a non-treating physician s contradictory opinion. Orn v. 8 Astrue, 495 F.3d 625 (9th Cir. 2007); Lester v. Chater, 81 F.3d 821, 9 830 (9th Cir. 1996). However, the ALJ need not accept the opinion of 10 any medical source, including a treating medical source, if that 11 opinion is brief, conclusory, and inadequately supported by clinical 12 findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); 13 accord Tonapetyen v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The 14 factors to be considered by the adjudicator in determining the weight 15 to 16 relationship 17 physician; and the nature and extent of the treatment relationship 18 between the patient and the treating physician. Orn, 495 F.3d at 631- 19 33; 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). give physician s a medical and opinion opinion the than to include: frequency of opinions [l]ength examination from of by non-treating the the treatment treating 20 The ALJ provided several legitimate reasons for refusing to give 21 Dr. Held s opinion controlling weight, each of which was supported by 22 substantial evidence in the record. First, the ALJ rejected Dr. Held s 23 opinion because it was a check-the-box form without any supporting 24 clinical or laboratory findings. (AR at 9, 180-181.) The August 16, 25 2006 opinion is a two-page report, in which Dr. Held checked off 26 preprinted choices and did not provide any elaboration or explanation 27 for his opinions. (AR at 180-181.) Thus, it was reasonable for the ALJ 28 to refuse to give significant weight to Dr. Held s. See Johnson v. 8 1 Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (holding that ALJ properly 2 rejected 3 unsubstantiated by relevant medical documentation ); Crane v. Shalala, 4 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly rejected check-off 5 reports that did not contain any explanation of the bases of their 6 conclusions ). 7 The physician s ALJ also determination rejected Dr. where Held s it was opinion conclusory because and of the and the 8 relatively 9 infrequency of contact. As the ALJ noted, there is no evidence that 10 Dr. Held had ongoing contact with the claimant.... Rather, [t]he 11 claimant was merely evaluated on two isolated occasions. (AR at 10.) 12 These are proper reasons for the ALJ to refuse to give controlling 13 weight to Dr. Held s opinion. See Orn, 495 F.3d at 631-33; 20 C.F.R. 14 §§ 404.1527(d)(2)(i)-(ii), 416.927(d)(2)(i)-(ii). 15 The short ALJ also length noted of that the treating Dr. Held s relationship finding of significant 16 limitations in the ability to perform various work-related functions 17 was undermined by Plaintiff s lack of credibility given the evidence 18 of malingering and poor testing effort. In a psychological evaluation 19 dated September 7, 2007, the consultative examining psychologist, Dr. 20 Clifford Taylor, Ph.D., concluded that Plaintiff was not a credible 21 participant in the testing portion of the examination [because] he 22 failed the Test of Memory Malingering and there were inconsistencies 23 in attained IQ test scores, his presentation, and vocabulary. (AR at 24 195.) The ALJ noted there was no evidence that Dr. Held was aware of 25 this evidence of malingering when he prepared the report. (AR at 10.) 26 In addition, Dr. 27 Plaintiff s 28 inconsistent with the findings of Dr. Taylor, who opined that [t]here ability Held s to finding perform 9 of marked work-related limitations activities in was 1 is no credible evidence of impairment in [Plaintiff s] ability to 2 understand, 3 attention, concentration, persistence and pace, relate and interact 4 with supervisors, coworkers, and the public, or adapt to day-to-day 5 work 6 records. (AR at 195.) The ALJ credited Dr. Taylor s opinion, finding 7 that it was consistent with the evidence as a whole, unlike Dr. Held s 8 August 16, 2006 opinion, which was contradicted by other evidence in 9 the record. (AR at 19.) See Tonapetyen, 242 F.3d at 1149 (holding that 10 the contrary opinion of a non-examining medical expert may constitute 11 substantial evidence when it is consistent with other independent 12 evidence in the record ). remember, activities other and carry than a out job learning instructions, disorder per the maintain medical 13 The ALJ provided specific and legitimate reasons for rejecting 14 Dr. Held s August 16, 2006 assessment, each of which is supported by 15 substantial 16 warranted on this claim of error. evidence in the record. Accordingly, no relief is 17 18 19 20 IV. Conclusion For the reasons set forth above, the decision of the Social Security Commissioner is AFFIRMED. 21 22 23 DATED: August 25, 2011 24 25 ______________________________ Marc L. Goldman United States Magistrate Judge 26 27 28 10

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