Sharon Palmer v. Michael J. Astrue, No. 5:2009cv01171 - Document 17 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Sharon Palmer v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 13 14 15 16 17 SHARON A. PALMER, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. CV 09-1171 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. 21 seeks review of the Commissioner s denial of disability benefits. 22 court finds that judgment should be granted in favor of defendant, 23 affirming the Commissioner s decision. 24 25 I. Plaintiff The BACKGROUND Plaintiff Sharon A. Palmer was born on January 16, 1946, and was 26 sixty-three years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 63, 324.] She has one year of college 28 education and past relevant work as an apartment manager, legal 1 Dockets.Justia.com 1 assistant, and housekeeper. [AR 69, 72.] Plaintiff alleges disability 2 on the basis of depression, anxiety, back degeneration and right ankle 3 fracture. [AR 68.] 4 5 II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on June 16, 2009, and filed on 6 June 24, 2009. 7 Administrative Record ( AR ). 8 their Joint Stipulation ( JS ) identifying matters not in dispute, 9 issues in dispute, the positions of the parties, and the relief sought 10 by each party. 11 On October 23, 2009, defendant filed Plaintiff s On January 12, 2010, the parties filed oral argument. 12 13 This matter has been taken under submission without III. PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) on 14 February 22, 2007, alleging disability since January 15, 2003. 15 2.] After the application was denied initially and upon 16 reconsideration, Plaintiff requested an administrative hearing, which 17 was held on February 11, 2009, before Administrative Law Judge ( ALJ ) 18 Michael Radensky. 19 testimony was taken from Plaintiff and vocational expert Troy Scott. 20 [Id.] The ALJ denied benefits on March 30, 2009. 21 Appeals Council denied review on May 19, 2009, the ALJ s decision 22 became the Commissioner s final decision. 23 24 [AR 324.] IV. [JS Plaintiff appeared with counsel, and [AR 11.] When the [AR 3.] STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 25 Commissioner s decision to deny benefits. 26 ALJ s) findings and decision should be upheld if they are free of 27 legal error and supported by substantial evidence. 28 court determines that a finding is based on legal error or is not 2 The Commissioner s (or However, if the 1 supported by substantial evidence in the record, the court may reject 2 the finding and set aside the decision to deny benefits. 3 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 4 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 5 F.3d 1157, 1162 (9th Cir. 6 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 7 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 8 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 9 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a 10 preponderance. Reddick, 157 F.3d at 720. 11 which a reasonable person might accept as adequate to support a 12 conclusion. 13 a finding, a court must review the administrative record as a whole, 14 weighing both the evidence that supports and the evidence that 15 detracts from the Commissioner s conclusion. 16 can reasonably support either affirming or reversing, the reviewing 17 court may not substitute its judgment for that of the Commissioner. 18 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. It is relevant evidence To determine whether substantial evidence supports 19 V. Id. If the evidence DISCUSSION 20 A. THE FIVE-STEP EVALUATION 21 To be eligible for disability benefits a claimant must 22 demonstrate a medically determinable impairment which prevents the 23 claimant from engaging in substantial gainful activity and which is 24 expected to result in death or to last for a continuous period of at 25 least twelve months. 26 721; 42 U.S.C. § 423(d)(1)(A). 27 28 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial 3 1 gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 2 3 4 5 6 7 8 9 10 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 11 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 12 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 13 C.F.R. § 404.1520, § 416.920. 14 not disabled at any step, there is no need to complete further 15 steps. 16 If a claimant is found disabled or Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. Claimants have the burden of proof at steps one through four, 17 subject to the presumption that Social Security hearings are non- 18 adversarial, and to the Commissioner s affirmative duty to assist 19 claimants in fully developing the record even if they are represented 20 by counsel. 21 1288. 22 made, and the burden shifts to the Commissioner (at step five) to 23 prove that, considering residual functional capacity ( RFC )1, age, Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is 24 25 26 27 28 1 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 4 1 education, and work experience, a claimant can perform other work 2 which is available in significant numbers. 3 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 4 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 5 Here, the ALJ found that Plaintiff had not engaged in substantial 6 gainful activity since February 22, 2007 (step one); that Plaintiff 7 had severe impairments, namely mild back degeneration, history of 8 right ankle fracture, and mood disorder (step two); and that Plaintiff 9 did not have an impairment or combination of impairments that met or 10 equaled a listing (step three). [AR 13.] Plaintiff was found to 11 have an RFC for light work, except with a non-exertional limitation of 12 no more than occasional public (face to face) contact. [AR 14.] The 13 vocational expert testified that a person with Plaintiff s RFC could 14 return to Plaintiff s past relevant work as a legal assistant (step 15 four). [AR 19, 348.] Accordingly, Plaintiff was found not disabled 16 as defined by the Social Security Act. [AR 20.] 17 C. 18 The parties Joint Stipulation sets out the following disputed 19 issues: 20 1. PLAINTIFF S PRESENT CLAIMS psychiatrist s and psychologist s opinion. 21 22 23 24 Whether the ALJ properly considered the treating 2. Whether the ALJ properly considered the examining psychologist s opinion. [JS 2.] 25 26 27 28 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 D. 2 3 ISSUE ONE: TREATING PSYCHIATRIST S AND PSYCHOLOGIST S OPINION On August 19, 2008, Plaintiff began going to the Phoenix 4 Outpatient Clinic. [AR 308.] Dr. Rene Roberg, Psy.D, completed an 5 Adult Clinical Assessment form of Plaintiff on that day. [AR 319.] He 6 noted that Plaintiff was disheveled with poor hygiene, that she seemed 7 depressed, that her thought process was slow, and that she had poor 8 insight and judgment. [AR 322.] On August 28, 2008, Dr. Han V. Nguyen, 9 M.D., completed an Adult Psychiatric evaluation of Plaintiff. [AR 10 318.] He checked off boxes indicating that Plaintiff had intrusive 11 behavior, rapid speech, a depressed mood, suicidal ideation, flight of 12 ideas, fair insight and judgment, and paranoia. [AR 318.] Dr. Nguyen 13 also indicated that Plaintiff had a global assessment of functioning 14 ( GAF ) score of 48.2 [Id.] After these initial assessments, Plaintiff 15 began seeing Dr. Gurmit Sekhon, M.D., with five appointments in the 16 record through January 28, 2009. [AR 311-316.] 17 Dr. Sekhon indicated in a letter to the Social Security Administration 18 that Plaintiff continued to be a patient of the Phoenix Outpatient 19 Clinic and opined that Plaintiff was unable to work and continue[d] 20 to be eligible for SSI benefits. [AR 305.] On February 9, 2009, 21 In the administrative decision, the ALJ made no explicit 22 reference to the assessments completed by Dr. Nguyen or Dr. Roberg, 23 but discussed Plaintiff s treatment at the Phoenix Outpatient Clinic 24 25 26 27 28 2 A GAF score represents a clinical evaluation of an individual s overall level of functioning. A GAF score of 41 to 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 job). DSM-IV, American Psychiatric Association, (Washington, 1994). 6 1 as a whole and gave limited probative weight to Dr. Sekhon s 2 opinion. [AR 17-19.] 3 appointments with Dr. Sekhon generally consisted of medication 4 management with no indication that treatment should be anymore 5 aggressive, which Plaintiff does not dispute. 6 addressed the GAF score in conjunction with additional GAF scores in 7 the record, which ranged on the whole from 48 to 70,3 and determined 8 that they were of limited evidentiary value, revealing only 9 snapshots of impaired and improved behavior. [AR 18.] The ALJ made a finding that Plaintiff s [Id.] The ALJ also Plaintiff 10 asserts that the ALJ s findings constitute reversible error because 11 the ALJ failed to consider the assessments by Drs. Nguyen and Roberg 12 and did not provide specific and legitimate reasons for rejecting the 13 opinions of these treating doctors. [JS 4.] 14 The record indicates, however, that both the reports of Drs. 15 Nguyen and Roberg were assessments completed before Plaintiff began 16 seeing Dr. Sekhon at the Phoenix Clinic and did not necessarily 17 reflect the record as a whole with regard to Plaintiff s mental 18 impairments. [AR 17-19.] 19 whole, including considering Dr. Sekhon s letter4 and medical reports 20 from examining sources indicating Plaintiff could return to work, 21 found that Plaintiff was not entirely credible about her symptoms, and 22 noted consultative examinations and state agency assessments The ALJ did evaluate the record on the 23 24 3 25 26 A GAF score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. 27 4 28 Plaintiff does not challenge the ALJ s evaluation of Dr. Sekhon s letter. 7 1 indicating Plaintiff did not have any significant functional 2 limitations. [AR 17-19, 137-190, 249-273, 282.] Under these 3 circumstances, the initial Phoenix Clinic evaluations were not 4 significant or probative evidence as to the issue of disability 5 independently. 6 evidence was not reversible error. 7 1393, 1395 (9th Cir. 1984)(ALJ need not discuss all evidence presented 8 if it is not significant or probative). 9 E. Therefore, the ALJ s omission of a reference to this See Vincent v. Heckler, 739 F.2d THE EXAMINING PSYCHOLOGIST S OPINION On May 15, 2006, Dr. Raymond J. Coffin, Psy.D., performed a 10 11 psychological assessment of Plaintiff. [AR 170-179.] A comprehensive 12 psychiatric evaluation was then created by Dr. Perry Maloff, M.D, the 13 head doctor, in conjunction with Dr. Coffin on July 14, 2006. [AR 140- 14 168.] 15 mental limitations. [Id.] The Plaintiff asserts that the ALJ failed to 16 address the assessment of Dr. Coffin and that this constitutes 17 reversible error. 18 Maloff, which incorporated the findings and results of Dr. Coffin s 19 assessment and was created by Dr. Maloff in conjunction with Dr. 20 Coffin. [AR 17-19, 157-57.] 21 Maloff opined that Plaintiff s condition should stabilize in the next 22 several months and that she should be encouraged to return to some 23 type of gainful employment in the near future. [AR 19, 167-168.] 24 ALJ factored this opinion into his assessment of Plaintiff s RFC. [AR 25 19.] Accordingly, Issue Two is without merit. 26 // 27 // 28 // This report detailed Plaintiff s mental history and her current However, the ALJ discussed the report by Dr. The ALJ noted that in this report, Dr. 8 The 1 VI. ORDERS 2 Accordingly, IT IS ORDERED that: 3 1. The decision of the Commissioner is AFFIRMED. 4 2. This action is DISMISSED WITH PREJUDICE. 5 3. The Clerk of the Court shall serve this Decision and Order 6 and the Judgment herein on all parties or counsel. 7 8 9 10 DATED: July 26, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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