Emily Speelman v. Michael J Astrue, No. 5:2009cv01222 - Document 16 (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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Emily Speelman v. Michael J Astrue Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 17 EMILY SPEELMAN, ) ) Plaintiff, ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner, Social Security ) Administration, ) ) Defendant. ) ) No. EDCV 09-1222 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 review of the Commissioner s denial of disability benefits. 22 finds that judgment should be granted in favor of Defendant, affirming 23 the Commissioner s decision. 24 I. Plaintiff seeks The court BACKGROUND 25 Plaintiff Emily Speelman was born on June 6, 1988, and was 26 twenty-one years old at the time of her administrative hearing. 27 [Administrative Record ( AR ) 98, 36.] She completed her high school 28 education through home-schooling and has taken some community college 1 Dockets.Justia.com 1 classes. [AR 15, 43-44, 47.] 2 experience. [AR 103.] 3 attention deficit disorder, hyperactivity, and temporal lobe syndrome 4 with rage. [AR 103.] 5 6 She has no past relevant work Plaintiff alleges disability on the basis of II. PROCEEDINGS IN THIS COURT Plaintiff s complaint was lodged on June 26, 2009, and filed on 7 July 7, 2009. 8 Plaintiff s Administrative Record ( AR ). 9 parties filed their Joint Stipulation ( JS ) identifying matters not 10 in dispute, issues in dispute, the positions of the parties, and the 11 relief sought by each party. 12 submission without oral argument. 13 14 On December 8, 2009, Defendant filed an Answer and III. On February 11, 2010, the This matter has been taken under PRIOR ADMINISTRATIVE PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) on 15 June 15, 2006, alleging disability since June 1, 1992. [JS 2.] The 16 Plaintiff had two prior childhood disability applications from June 17 29, 2001 and June 28, 2002 which were denied and not appealed. [AR 18 8.] After the current application was denied initially and upon 19 reconsideration, Plaintiff requested an administrative hearing, which 20 was held on July 18, 2008, before Administrative Law Judge ( ALJ ) F. 21 Keith Varni. 22 from Plaintiff and Plaintiff s mother. [AR 36.] 23 administrative hearing was conducted by ALJ Varni on January 6, 2009. 24 [AR 25.] 25 vocational expert Joseph Moony. [Id.] The ALJ denied benefits in a 26 decision dated March 3, 2009. [AR 8-16.] When the Appeals Council 27 denied review on May 8, 2009, the ALJ s decision became the 28 Commissioner s final decision. [AR 1.] Plaintiff appeared with counsel and testimony was taken A second Plaintiff appeared with counsel and testimony was taken from 2 IV. 1 2 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s (or 4 ALJ s) findings and decision should be upheld if they are free of 5 legal error and supported by substantial evidence. 6 court determines that a finding is based on legal error or is not 7 supported by substantial evidence in the record, the court may reject 8 the finding and set aside the decision to deny benefits. 9 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. However, if the See Aukland 10 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 11 F.3d 1157, 1162 (9th Cir. 12 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 13 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 14 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 15 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 16 preponderance. 17 which a reasonable person might accept as adequate to support a 18 conclusion. 19 a finding, a court must review the administrative record as a whole, 20 weighing both the evidence that supports and the evidence that 21 detracts from the Commissioner s conclusion. 22 can reasonably support either affirming or reversing, the reviewing 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports V. 25 Id. If the evidence DISCUSSION 26 A. 27 To be eligible for disability benefits a claimant must 28 THE FIVE-STEP EVALUATION demonstrate a medically determinable impairment which prevents the 3 1 claimant from engaging in substantial gainful activity and which is 2 expected to result in death or to last for a continuous period of at 3 least twelve months. 4 721; 42 U.S.C. § 423(d)(1)(A). Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at 5 Disability claims are evaluated using a five-step test: 6 Step one: Is the claimant engaging in substantial 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. 7 8 9 10 11 12 13 14 15 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 16 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 17 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 18 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 19 not disabled at any step, there is no need to complete further 20 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 21 Claimants have the burden of proof at steps one through four, 22 subject to the presumption that Social Security hearings are non23 adversarial, and to the Commissioner s affirmative duty to assist 24 claimants in fully developing the record even if they are represented 25 by counsel. Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at 26 1288. If this burden is met, a prima facie case of disability is 27 made, and the burden shifts to the Commissioner (at step five) to 28 4 1 prove that, considering residual functional capacity ( RFC )1, age, 2 education, and work experience, a claimant can perform other work 3 which is available in significant numbers. 4 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. Tackett, 180 F.3d at 1098, 5 B. THE ALJ S EVALUATION IN PLAINTIFF S CASE 6 Here, the ALJ found that Plaintiff had not engaged in substantial 7 gainful activity since June 15, 2006 (step one); that Plaintiff had 8 severe impairments, namely mood disorders and borderline 9 intellectual functioning, with a history of attention deficit disorder 10 (step two); and that Plaintiff did not have an impairment or 11 combination of impairments that met or equaled a listing (step 12 three). 13 range of work at all exertional levels, but limited to non-public, 14 simple repetitive tasks, with occasional non-intense contact with 15 coworkers and the public, and to be precluded from fast-paced work. 16 [AR 11.] 17 The ALJ adopted the testimony of the vocational expert, who testified 18 that a person with Plaintiff s RFC could perform work existing in 19 significant numbers in the national economy, such as cleaner, 20 housekeeper, deliverer, or garment folder (step five). [AR 15.] 21 Accordingly, Plaintiff was found not disabled as defined by the 22 Social Security Act. [AR 15.] [AR 10.] Plaintiff was found to have an RFC to perform a full Plaintiff had no past relevant work (step four). [AR 14.] 23 1 24 25 26 27 28 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 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 C. 2 The parties Joint Stipulation sets out the following disputed 3 issues: 4 1. PLAINTIFF S PRESENT CLAIMS 5 6 examiner s opinion. 2. 7 8 Whether the ALJ properly considered the consultative Whether the ALJ properly considered the treating psychiatrist s opinion. 3. 9 Whether the ALJ properly considered the State Agency Findings. 10 4. Whether the ALJ considered the lay witness statement. 11 5. Whether the ALJ posed a complete hypothetical question to 12 the vocational expert. 13 [JS 2.] 14 D. 15 On September 30, 2006, Dr. Kim Goldman, Psy.D., completed a ISSUE ONE: THE CONSULTATIVE EXAMINER S OPINION 16 complete psychological evaluation of Plaintiff to determine her 17 functional abilities. [AR 264-268.] 18 score of 76, a Performance IQ score of 75, and a Full Scale IQ score 19 of 74. [AR 266.] 20 intermittent explosive disorder, rule out mood disorder not otherwise 21 specified, and borderline intellectual functioning. [AR 267.] 22 on Plaintiff s test results and diagnoses, Dr. Goldman opined that 23 Plaintiff had moderate difficulties in maintaining social functioning 24 and mild to moderate difficulties of concentration, persistence, and 25 the ability to work at a pace appropriate for her age due to 26 borderline intellectual functioning. [AR 267-268.] 27 Plaintiff s ability to understand, carry out and remember simple 28 instructions not to be impaired and her ability to understand, carry Test results included a Verbal IQ Dr. Goldman s diagnostic impressions included 6 Based Dr. Goldman found 1 out and remember detailed instructions and complex tasks to be 2 moderately impaired due to borderline intellectual functioning. [AR 3 268.] 4 appropriately to coworkers, supervisors and the public to be 5 moderately impaired due to immaturity, impulsivity and a dependent 6 stance and her ability to respond appropriately to usual work 7 situations and deal with changes in a routine work setting to be 8 moderately impaired due to poor judgment. [Id.] 9 that the ALJ failed to address this opinion. 10 Dr. Goldman also found Plaintiff s ability to respond Plaintiff contends However, in his decision, the ALJ did discuss the opinion of Dr. 11 Goldman, specifically noting the IQ test scores and diagnoses noted in 12 September 2006 psychological evaluation. [AR 14.] 13 evaluated and credited the opinion of Dr. David Glassmire,2 noting 14 that it was consistent with the opinions of Dr. Goldman and the State 15 agency psychiatrist. [AR 12-14.] He credited these opinions over those 16 of Dr. Jason Yang, M.D., who examined Plaintiff on April 29, 2007, and 17 found her to have the least restrictive RFC in the record.3 [AR 14.] 18 Dr. Glassmire completed a medical interrogatory concerning Plaintiff s 19 mental impairments on September 22, 2008. [AR 368-370.] Dr. Glassmire 20 opined that Dr. Goldman s assessment of Plaintiff s functional Moreover, the ALJ 21 22 2 The ALJ mistakenly refers to the reports of Dr. Glassmire as those of Dr. Malancharuvil. [AR 8-16.] 23 3 24 25 26 27 28 Dr. Yang found that Plaintiff was able to follow one- and two-part instructions, to adequately remember and complete simple and complex tasks, to tolerate the stress inherent in the work environment, maintain regular attendance, and work without supervision. [AR 337.] He also found Plaintiff was able to interact appropriately with supervisors, coworkers, and the public in the workplace. [Id.] The ALJ noted that Dr. Yang gave Plaintiff the least restrictive limitations, but I have not given Dr. Yang as great a weight as that of Dr. Goldman or the state agency review physicians. [AR 14.] 7 1 abilities was the best current estimate of her cognitive 2 functioning. [AR 369.] Dr. Glassmire found that Dr. Goldman s 3 consultative examination indicated that Plaintiff did not equal a 4 listing and had impairments in social functioning as well as 5 concentration, persistence, and pace. [Id.] Dr. Glassmire opined that 6 Plaintiff would be capable of a job that entails simple repetitive 7 tasks, no contact with the public, occasional non-intense contact with 8 coworkers and supervisors, and no fast-paced work. [AR 370.] 9 The ALJ in this case determined that Plaintiff had an RFC 10 limiting her to non-public, simple repetitive tasks, with occasional 11 non-intense contact with coworkers and the public, and a preclusion 12 from fast-paced work. [AR 11.] He based this determination on the 13 opinion of Dr. Glassmire, which was based on and consistent with that 14 of Dr. Goldman, as the ALJ noted. [AR 13-14.] Further, the ALJ 15 credited the more restrictive RFC of Dr. Goldman and Dr. Glassmire 16 over the less restrictive RFC of Dr. Yang. [Id.] The RFC determination 17 by the ALJ takes into account each of the limitations listed by Dr. 18 Goldman and adopts his opinion. [AR 13-14, 264-268.] Accordingly, 19 Issue One does not warrant reversal. 20 E. ISSUE TWO: THE TREATING PSYCHIATRIST S OPINION 21 Plaintiff was admitted to the College Hospital Costa Mesa from 22 September 17 to September 25, 2002. [AR 179-210.] Plaintiff s chief 23 complaint on admission was that her medicines [weren t] right and 24 she was admitted after becoming physically assaultive with her 25 mother. [AR 182.] Dr. Jon Chaffee, M.D., indicated that Plaintiff had 26 a global assessment of functioning ( GAF ) score of 40 upon discharge 27 28 8 1 and that her highest GAF score in the last year had been 60.4 [AR 2 182.] Plaintiff contends that the ALJ s failure to address these 3 scores was improper.5 4 In this case, the ALJ did not address the Plaintiff s GAF scores 5 in his decision. However, this is not grounds for reversal. An ALJ 6 does not commit legal error by failing to incorporate a GAF score into 7 his disability assessment. 8 scale . . . does not have a direct correlation to the severity 9 requirements in our mental disorders listing. ); McFarland v. Astrue, 10 288 Fed. Appx. 357, 359 (9th Cir. 2008) (finding the ALJ s failure to 11 address Plaintiff s three GAF scores was not legal error); see also 12 Howard v. Comm r of Social Sec., 276 F.3d 235, 241 (6th Cir. 2002) 13 ( While a GAF score may be of considerable help to the ALJ in 14 formulating the RFC, it is not essential to the RFC s accuracy. 15 the ALJ s failure to reference the GAF score in the RFC, standing 16 alone, does not make the RFC inaccurate. ). 17 indicating serious symptoms is not addressed by an ALJ, courts have 18 held that this amounts at most to harmless error depending on the 19 circumstances. See 65 Fed. Reg. 50746, 50764-65 ( The GAF Thus, When a GAF score See Quaite v. Barnhart, 312 F.Supp.2d 1195, 1200 (E.D. 20 21 4 22 23 24 25 26 27 28 A GAF score represents a clinical evaluation of an individual s overall level of functioning. A GAF score of 31 to 40 indicates some impairment in reality testing or communication or major impairments in several areas, such as work or school, family relations, judgment, thinking, or mood. A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning. DSM-IV, American Psychiatric Association, (Washington, 1994). 5 Plaintiff also argues that the ALJ failed to address a discharge summary completed by a Dr. Maher Kozman, M.D., on September 26, 2002. [JS 7.] However, Plaintiff was discharged on September 25, Plaintiff has not provided a cite to this report, and the record appears to contain no such summary. 9 1 Mo. 2004)(finding harmless the ALJ s failure to discuss a GAF score of 2 50 at any point in his decision). 3 utilize Plaintiff s earlier GAF scores in his RFC determination does 4 not amount to a legal error.6 5 reversal. Here, the ALJ s decision not to Accordingly, Issue Two does not warrant 6 F. 7 On October 23, 2006, Dr. K.D. Gregg, M.D., completed a mental ISSUE THREE: THE STATE AGENCY FINDINGS 8 residual functional capacity assessment of Plaintiff. [AR 280-281.] 9 He checked off boxes indicating that Plaintiff was moderately limited 10 in her ability to understand, remember, and carry out detailed 11 instructions, that she was moderately limited in her ability to 12 interact appropriately with the general public and in her ability to 13 accept instructions and respond appropriately to criticism from 14 supervisors, and that she was moderately limited in her ability to 15 complete a normal workday and workweek without interruptions from 16 psychologically based symptoms. [Id.] Plaintiff contends that the ALJ 17 did not consider this assessment in his decision. 18 In this case, the ALJ in fact adopted the opinion of Dr. Gregg. 19 [AR 13-14.] The conclusion section of the RFC form completed by Dr. 20 Gregg indicates that Plaintiff is [c]apable of NP SRTs, or non- 21 public, simple, repetitive tasks. [AR 282.] This is the RFC that the 22 23 24 25 26 27 28 6 Additionally, the GAF scores at issue are from 2002 (when Plaintiff was fourteen), which were relevant to Plaintiff s two prior childhood disability claims that were denied and not appealed. For the current application, the relevant period of disability is from June 16, 2006. [AR 8.] Further, these GAF scores are from Plaintiff s lowest point in the record her only hospitalization and the ALJ credited Dr. Glassmire s opinion that Plaintiff s condition has improved as she has gotten older. [AR 13-14, 368-370.] The ALJ need not address evidence that is not significant or probative to the disability determination. See Vincent v. Heckler, 739 f.2d 1393, 139495 (9th Cir. 1984). 10 1 ALJ adopted in his decision. Contrary to Plaintiff s contention, the 2 ALJ credited Dr. Gregg s opinion and utilized it 3 consistent opinions of Dr. Glassmire and Dr. Goldman in formulating 4 Plaintiff s RFC. [AR 13-14.] Accordingly, Issue Three does not warrant 5 reversal. along with the 6 G. 7 Plaintiff s mother, Sara Speelman, completed a Function Report ISSUE FOUR: THE LAY WITNESS STATEMENT 8 Adult Third Party on July 20, 2006. [AR 115-122.] Mrs. Speelman 9 reported that Plaintiff took care of her pet cat with reminders, could 10 prepare her own simple meals, could groom herself with some reminders, 11 that Plaintiff performed household chores, went shopping with her 12 mother, attended youth group and church, had difficulty handling 13 money, and with following instructions, getting along with others, 14 understanding, completing tasks, concentration, and memory. 15 the administrative hearing, Mrs. Speelman testified that Plaintiff 16 could perform chores, that she was active in youth group and church, 17 and that it was important for Plaintiff to stay busy. 18 Plaintiff contends that the ALJ discounted this testimony without 19 providing explanation, and that this warrants reversal. [JS 13-15.] 20 [Id.] At [AR 51.] In determining whether a claimant is disabled, an ALJ must take 21 into account lay witness testimony concerning a claimant s ability to 22 work unless the ALJ expressly determines not to and gives reasons 23 germane to each witness for doing so. 24 Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006); Lewis v. Apfel, 236 25 F.3d 503, 511 (9th Cir. 2001). [W]here the ALJ s error lies in a 26 failure to properly discuss competent lay testimony favorable to the 27 claimant, a reviewing court cannot consider the error harmless unless 28 it can confidently conclude that no reasonable ALJ, when fully 11 Stout v. Commissioner, Social 1 crediting the testimony, could have reached a different disability 2 determination. Stout, 454 F.3d at 1056; see also Robbins v. Social 3 Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 4 failure to fully address Mrs. Speelman s testimony was harmless error. 5 In this case, the ALJ summarized the testimony and function Here, the ALJ s 6 reports of both Plaintiff and her mother and found that statements 7 concerning the intensity, persistence, and limiting effects of 8 Plaintiff s symptoms were not credible. [AR 12.] The forms and 9 testimony of the Plaintiff and her mother were virtually identical. 10 [AR 39-51, 115-131.] In fact, at the top of Plaintiff s mother s third 11 party function report, Plaintiff s mother wrote we have received two 12 forms to fill out one for her and one for third party. 13 very stressful for Emily to fill this kind of questionnaire out. 14 called and talked to someone at your office and they said my copy 15 would be good enough. [AR 115.] Plaintiff did submit a form as well, 16 but with virtually identical, although abbreviated, answers. [AR 115- 17 131.] 18 convincing reasons that were not challenged on appeal. [AR 12.] 19 Accordingly, Mrs. Speelman s testimony did not add substantial weight 20 to Plaintiff s claim. 21 reversible error in failure to consider testimony of claimant s son, 22 noting that [b]ecause the ALJ did not make a legally sufficient 23 adverse credibility finding with regard to [the claimant s] own 24 testimony, we cannot say with respect to [the son s] testimony that no 25 reasonable ALJ, when fully crediting the testimony, could have reached 26 a different disability determination )(citations and internal 27 quotation marks omitted). 28 address fully this evidence was inconsequential to the ultimate It would be I The ALJ rejected Plaintiff s testimony with clear and Cf. Robbins, 466 F.3d at 885 (finding Under these circumstances, the failure to 12 1 determination of non-disability. Stout, 454 F.3d at 1055. 2 Accordingly, Issue Four does not warrant reversal. 3 H. ISSUE FIVE: THE HYPOTHETICAL POSED TO THE VOCATIONAL EXPERT 4 Plaintiff contends that the hypothetical posed to the vocational 5 expert was incomplete and should have contained further limitations 6 based on the reports discussed in Issues Two and Three. 7 ALJ is only required to submit limitations to a vocational expert that 8 he finds to be supported by the evidence. 9 F.3d 1211, 1217-18 (9th Cir. 2005). However, an Bayliss v. Barnhart, 427 As Issues Two and Three are 10 without merit, they do not call into question the hypothetical posed 11 to the vocational expert. 12 reversal. 13 Accordingly, Issue Five does not warrant VI. ORDERS 14 Accordingly, IT IS ORDERED that: 15 1. The decision of the Commissioner is AFFIRMED. 16 2. This action is DISMISSED WITH PREJUDICE. 17 3. The Clerk of the Court shall serve this Decision and Order 18 and the Judgment herein on all parties or counsel. 19 20 21 22 DATED: July 29, 2010 ______________________________ CARLA M. WOEHRLE United States Magistrate Judge 23 24 25 26 27 28 13

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