Keith Bailey v. Michael J. Astrue, No. 5:2009cv01437 - Document 17 (C.D. Cal. 2010)
Court Description: OPINION AND ORDER by Magistrate Judge Rosalyn M. Chapman; IT IS ORDERED that: (1) plaintiffs request for relief is denied; and (2) the Commissioners decision is affirmed, and Judgment shall be entered in favor of defendant. See order for further details. (jy)
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Keith Bailey v. Michael J. Astrue Doc. 17 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 13 14 15 16 KEITH BAILEY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) Case No. EDCV 09-1437-RC OPINION AND ORDER 17 Plaintiff Keith Bailey filed a complaint on August 5, 2009, 18 seeking review of the Commissioner’s decision denying his applications 19 for disability benefits. 20 answered the complaint, and the parties filed a joint stipulation on 21 February 8, 2010. On December 22, 2009, the Commissioner 22 23 24 BACKGROUND On May 4, 2006, plaintiff, who was born on March 26, 1979, 25 applied for disability benefits under both Title II of the Social 26 Security Act (“Act”), 42 U.S.C. § 423, and the Supplemental Security 27 Income program (“SSI”) of Title XVI of the Act, claiming an inability 28 to work since April 1, 2002, due to testicular pain and mental Dockets.Justia.com 1 problems. A.R. 61-68, 88. 2 initially denied on September 29, 2006, and were again denied on 3 March 16, 2007, following reconsideration. 4 then requested an administrative hearing, which was held before 5 Administrative Law Judge Thomas J. Gaye (“the ALJ”) on January 16, 6 2009. 7 decision finding plaintiff is not disabled. 8 appealed this decision to the Appeals Council, which denied review on 9 June 9, 2009. A.R. 18-40, 59. The plaintiff’s applications were A.R. 41-56. The plaintiff On February 10, 2009, the ALJ issued a A.R. 6-17. The plaintiff A.R. 1-4. 10 11 DISCUSSION 12 I 13 The Court, pursuant to 42 U.S.C. § 405(g), has the authority to 14 review the decision denying plaintiff disability benefits to determine 15 if his findings are supported by substantial evidence and whether the 16 Commissioner used the proper legal standards in reaching his decision. 17 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. 18 Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). 19 the Commissioner’s findings are supported by substantial evidence, 20 [this Court] must review the administrative record as a whole, 21 weighing both the evidence that supports and the evidence that 22 detracts from the Commissioner’s conclusion.” 23 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 24 1201 (9th Cir. 2001). 25 either affirming or reversing the decision, [this Court] may not 26 substitute [its] judgment for that of the Commissioner.” 27 Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 28 (2008); Vasquez, 572 F.3d at 591. “In determining whether Reddick v. Chater, 157 “Where the evidence can reasonably support 2 Parra v. 1 The claimant is “disabled” for the purpose of receiving benefits 2 under the Act if he is unable to engage in any substantial gainful 3 activity due to an impairment which has lasted, or is expected to 4 last, for a continuous period of at least twelve months. 5 §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). 6 “The claimant bears the burden of establishing a prima facie case of 7 disability.” 8 cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 9 1289 (9th Cir. 1996). 42 U.S.C. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), 10 11 The Commissioner has promulgated regulations establishing a five- 12 step sequential evaluation process for the ALJ to follow in a 13 disability case. 14 the ALJ must determine whether the claimant is currently engaged in 15 substantial gainful activity. 16 If not, in the Second Step, the ALJ must determine whether the 17 claimant has a severe impairment or combination of impairments 18 significantly limiting him from performing basic work activities. 19 C.F.R. §§ 404.1520(c), 416.920(c). 20 must determine whether the claimant has an impairment or combination 21 of impairments that meets or equals the requirements of the Listing of 22 Impairments (“Listing”), 20 C.F.R. § 404, Subpart P, App. 1. 23 C.F.R. §§ 404.1520(d), 416.920(d). 24 ALJ must determine whether the claimant has sufficient residual 25 functional capacity despite the impairment or various limitations to 26 perform his past work. 27 in Step Five, the burden shifts to the Commissioner to show the 28 claimant can perform other work that exists in significant numbers in 20 C.F.R. §§ 404.1520, 416.920. In the First Step, 20 C.F.R. §§ 404.1520(b), 416.920(b). 20 If so, in the Third Step, the ALJ 20 If not, in the Fourth Step, the 20 C.F.R. §§ 404.1520(f), 416.920(f). 3 If not, 1 the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). 2 Moreover, where there is evidence of a mental impairment that may 3 prevent a claimant from working, the Commissioner has supplemented the 4 five-step sequential evaluation process with additional regulations 5 addressing mental impairments.1 6 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam). Maier v. Comm’r of the Soc. Sec. 7 8 9 Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since 10 his alleged onset date. (Step One). The ALJ then found plaintiff has 11 the following severe impairments: 12 depressive disorder not otherwise specified and substance abuse”2 “epididymitis, dysthymic disorder, 13 1 14 15 16 17 18 19 20 21 22 23 24 25 First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then perform a residual functional capacity assessment, and the ALJ’s decision “must incorporate the pertinent findings and conclusions” regarding the claimant’s mental impairment, including “a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)].” 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2). 26 2 27 28 In determining plaintiff has a dysthymic disorder, the ALJ found plaintiff has “mild restriction of activities of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence 4 1 (Step Two); however, he does not have an impairment or combination of 2 impairments that meets or equals a listed impairment. 3 The ALJ next determined plaintiff is capable of performing his past 4 relevant work as a laborer and house cleaner; therefore, he is not 5 disabled. (Step Three). (Step Four). 6 7 8 9 II A claimant’s residual functional capacity (“RFC”) is what he can still do despite his physical, mental, nonexertional, and other 10 limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); 11 Valentine v. Comm’r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 12 2009). 13 medium work,3 as follows: Here, the ALJ found plaintiff has the RFC to perform limited 14 15 he is able to perform postural activities on a frequent 16 basis. 17 involving up to 5-6 step instructions, he is able to have 18 occasional, non-intense contact with co-workers, supervisors 19 and the public and he is precluded from work involving 20 hypervigilance. [He] is able to perform moderately complex tasks 21 22 A.R. 12-13. However, plaintiff contends the ALJ’s decision is not 23 supported by substantial evidence because the ALJ failed to properly 24 25 and pace; and no episodes of decompensation.” A.R. 12. 26 3 27 28 Under Social Security regulations, “[m]edium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. §§ 404.1567(c), 416.967(c). 5 1 consider the opinion of Dr. Allison, a nonexamining psychiatrist, and 2 lay witness testimony. 3 4 A. Nonexamining Physician’s Opinion: 5 On April 21, 2005, plaintiff was seen at the Riverside County 6 Department of Mental Health (“DMH”) by a licensed clinical social 7 worker, John Lane, LCSW, A.R. 251-54, and plaintiff contends the ALJ 8 erred in not considering Mr. Lane’s opinion. 9 12:21, 16:25-17:5. Jt. Stip. at 10:26- However, since J. Allison, M.D., subsequently, on 10 May 21, 2005, co-signed Mr. Lane’s assessment, this Court considers 11 the assessment to be Dr. Allison’s,4 rather than Mr. Lane’s, who, as a 12 social worker, “is not considered an ‘acceptable medical source[]’ 13 under the regulations.” 14 WL 2991383, *4 (9th Cir. (Or.)). 15 Dr. Allison, a nonexamining physician, diagnosed plaintiff as having 16 an unspecified mood disorder and an unspecified psychotic disorder, 17 rule out major depression with psychotic features, cannabis 18 dependency, amphetamine abuse and antisocial personality disorder, and 19 determined plaintiff’s Global Assessment of Functioning (“GAF”) was 20 50.5 21 complained of chronic pain in his groin, which caused him to be A.R. 251-54. Turner v. Comm’r, Soc. Sec., __ F.3d __, 2010 Accordingly, the record shows that When Mr. Lane interviewed plaintiff, plaintiff 22 23 24 4 Since Dr. Allison never examined plaintiff, A.R. 250, Dr. Allison is a nonexamining physician. 5 25 26 27 28 A GAF of 50 means the individual exhibits “[s]erious 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 a job).” American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. (Text Revision) 2000). 6 1 depressed and to have moderate suicidal ideations. 2 Plaintiff also reported that he “hear[d] voices on & off” since he was 3 21 years old “telling him to hurt [him]self[,]” and he had paranoid 4 ideations. 5 concentration, psychomotor skills, speech and thought content were 6 intact, his memory was intact, his judgment and insight were fair, his 7 mood was depressed, he was labile, his intelligence was below average, 8 and he did not have a grave disability. Id. A.R. 252. Plaintiff’s appearance, orientation, attention/ A.R. 253. 9 10 “The Commissioner may reject the opinions of a nonexamining 11 physician by reference to specific evidence in the medical record.” 12 Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). 13 however, the ALJ did not reject Dr. Allison’s opinions, but instead 14 incorporated them into his assessment of plaintiff. 15 Nevertheless, plaintiff contends the ALJ’s assessment is not supported 16 by substantial evidence.6 17 Simply put, “[t]he mere diagnosis of an impairment . . . is not 18 sufficient to sustain a finding of disability.” 19 911 F.2d 180, 183 (9th Cir. 1990); see also Matthews v. Shalala, 10 20 F.3d 678, 680 (9th Cir. 1993) (“The mere existence of an impairment is 21 insufficient proof of a disability.”); Higgs v. Bowen, 880 F.2d 860, 22 863 (6th Cir. 1988) (per curiam) (“The mere diagnosis of [an ailment] 23 . . . says nothing about the severity of the condition.”). Here, A.R. 14-15. There is no merit to plaintiff’s claim. Young v. Sullivan, 24 25 26 27 28 6 To support this argument, plaintiff improperly points to: signs and symptoms not found by Dr. Allison or any other physician, see Jt. Stip. at 2-6; “possible” symptoms of the various diagnoses Dr. Allison made, see Jt. Stip. at 11:8-12:7; and findings unsupported by the medical record. See Jt. Stip. at 12:2-7. 7 1 Further, to the extent plaintiff contends the ALJ erred in not 2 properly considering plaintiff’s GAF score, plaintiff is incorrect. 3 An ALJ is not required to give controlling weight to a treating 4 physician’s GAF score -- let alone a nonexamining physician’s GAF 5 score. 6 (6th Cir. 2002) (“While a GAF score may be of considerable help to the 7 ALJ in formulating the RFC, it is not essential to the RFC’s accuracy. 8 Thus, the ALJ’s failure to reference the GAF score in the RFC, 9 standing alone, does not make the RFC inaccurate.”); Petree v. Astrue, 10 260 Fed. Appx. 33, 42 (10th Cir. 2007) (Unpublished Disposition) (“[A] 11 low GAF score does not alone determine disability, but is instead a 12 piece of evidence to be considered with the rest of the record.”). 13 Moreover, since the ALJ did consider Dr. Allison’s opinions, including 14 the GAF score, as part of his overall assessment of plaintiff, A.R. 15 14-15, there was no error. 16 Astrue, 699 F. Supp. 2d 1125, 1135 (C.D. Cal. 2009). 17 the ALJ’s assessment of plaintiff’s mental limitations was supported 18 by substantial evidence, including the opinions of examining 19 psychiatrist Romualdo R. Rodriguez, M.D., A.R. 362-68, medical expert 20 David Glassmire, M.D., A.R. 22-25, and nonexamining psychiatrist K.D. 21 Gregg, M.D. 22 1144, 1149 (9th Cir. 2001) (examining physician’s medical report based 23 on independent examination of claimant constitutes substantial 24 evidence to support ALJ’s disability determination). See, e.g., Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 Valentine, 574 F.3d at 691; Chavez v. To the contrary, A.R. 370-80; see also Tonapetyan v. Halter, 242 F.3d 25 26 B. 27 “Lay testimony as to a claimant’s symptoms is competent evidence 28 Lay Witness Testimony: that an ALJ must take into account, unless he or she expressly 8 1 determines to disregard such testimony and gives reasons germane to 2 each witness for doing so.” 3 Cir. 2001); Valentine, 574 F.3d at 694. 4 are competent evidence, and “an important source of information about 5 a claimant’s impairments[.]” 6 Admin., 166 F.3d 1294, 1298 (9th Cir. 1999); Schneider v. Comm’r of 7 the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000); see also 8 Smolen, 80 F.3d at 1289 (“[T]estimony from lay witnesses who see the 9 claimant every day is of particular value. . . .”). Lewis v. Apfel, 236 F.3d 503, 511 (9th Thus, third party statements Regennitter v. Comm’r of the Soc. Sec. 10 11 Plaintiff contends the ALJ erred in rejecting the third-party 12 reports of his girlfriend, Tylena Ramirez, and another friend, Shanna 13 Ramirez.7 14 completed a report about plaintiff, indicating he is able to take care 15 of himself, but he does not sleep very much because he has groin pain, 16 he cannot stand long enough to cook or shop and he does not do chores 17 because of his injury; rather, he watches television all day everyday 18 and talks on the phone or visits with people about 3 times a week. 19 A.R. 97-104. 20 play any sports, walking hurts him, he cannot walk more than a couple 21 of steps before having to stop and rest, and he needs a cane. 22 102-03. 23 attention all day, gets along well with authority figures, handles 24 changes in routine very well, and has no unusual behavior or fear, but 25 he does not understand written instructions and does not handle stress 26 well. Jt. Stip. at 6:18-9:6, 10:13-22. On July 17, 2006, Tylena Tylena also noted plaintiff cannot lift any weight or Furthermore, Tylena indicated plaintiff is able to pay Id. 27 7 28 A.R. Since both lay witnesses have the same last name, the Court refers to them by their first names. 9 On February 18, 2007, Shanna completed a report about plaintiff, 1 2 stating she sees him about three times a week, and he is in pain and 3 mostly just stays inside and watches television or plays video games. 4 A.R. 131-38. 5 it causes him pain, he cannot stand, walk, talk or climb for long 6 periods of time, he uses a cane, and his memory is bad; however, he 7 can pay attention unless his pain is very bad. 8 further indicated that because of his pain, it is hard for plaintiff 9 to get dressed or use the bathroom, he does not cook or do household Shanna also noted plaintiff cannot lift things because A.R. 133, 137. Shanna 10 chores, and he experiences pain when the water hits his side while he 11 is bathing, so plaintiff will not bathe for weeks. 12 Finally, Shanna also stated plaintiff gets along fine with authority 13 figures, but does not handle stress well. A.R. 134-36. A.R. 137. 14 To the extent the statements of Tylena and Shanna conflict with 15 16 the ALJ’s RFC assessment, the ALJ rejected the statements as 17 unsupported by the record. 18 Tylena and Shanna “reported that [plaintiff’s] activities were 19 limited, Dr. Rodriguez noted that [plaintiff] stated that he was able 20 to perform some household chores, do yard and gardening work, cook, go 21 to the store, run errands, care for his personal hygiene, watch 22 television, read and leave home alone.” 23 are supported by substantial evidence in the record, see, e.g., A.R. 24 353-58, 362-68, 382-86, the ALJ provided germane reasons for rejecting 25 Tylena’s and Shanna’s opinions. 26 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Bayliss v. Barnhart, 427 27 F.3d 1211, 1218 (9th Cir. 2005). 28 // A.R. 15. The ALJ also found that although Id. Since the ALJ’s findings Carmickle v. Comm’r, Soc. Sec. 10 1 2 III “At Step Four, claimants have the burden of showing that they can 3 no longer perform their past relevant work.” Pinto v. Massanari, 249 4 F.3d 840, 845 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683, 686 5 (9th Cir. 2005). 6 perform his past relevant work, the [ALJ] must ascertain the demands 7 of the claimant’s former work and then compare the demands with his 8 present capacity.” 9 1986); Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). “To determine whether a claimant has the [RFC] to Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 10 “This requires specific findings as to the claimant’s [RFC], the 11 physical and mental demands of the past relevant work, and the 12 relation of the residual functional capacity to the past work.” 13 Pinto, 249 F.3d at 845. 14 15 Here, the ALJ found plaintiff can perform his past relevant work 16 as a laborer and house cleaner. A.R. 16. 17 this finding is not supported by substantial evidence because the ALJ 18 did not make specific findings regarding the mental and physical 19 demands of plaintiff’s past relevant work. 20 6:12-17. 21 testified at the administrative hearing that an individual of 22 plaintiff’s age, education, RFC, and past work experience could 23 perform plaintiff’s former work as a laborer and house cleaner. 24 38-39. 25 which, as the ALJ found, is consistent with the Dictionary of 26 Occupational Titles (“DOT”),8 A.R. 16; see U.S. Dep’t of Labor, The plaintiff is incorrect. However, plaintiff contends Jt. Stip. at 2:28-5:9, Vocational expert Troy Scott Plaintiff has not identified any errors in this testimony, 27 8 28 A.R. The DOT is the Commissioner’s primary source of reliable vocational information. Johnson v. Shalala, 60 F.3d 1428, 1434 11 1 Dictionary of Occupational Titles, 248, 947 (4th ed. 1991), and the 2 vocational expert’s testimony constitutes substantial evidence to 3 support the ALJ’s Step Four determination that plaintiff can perform 4 his past relevant work.9 5 Shalala, 999 F.2d 1411, 1415 (9th Cir. 1993); see also Fleming v. 6 Astrue, 274 Fed. Appx. 571, 573 (9th Cir. 2008) (“The ALJ 7 appropriately relied on the Dictionary of Occupational Titles . . . to 8 determine that [claimant] could perform [his] past relevant work as it 9 is generally performed in the national economy.”). Roberts, 66 F.3d at 184; Tylitzki v. Therefore, 10 plaintiff has not met his burden of proving he is unable to perform 11 his past relevant work. 12 Servs., 812 F.2d 509, 511 (9th Cir. 1987). Sanchez v. Secretary of Health & Human 13 14 ORDER 15 IT IS ORDERED that: (1) plaintiff’s request for relief is denied; 16 and (2) the Commissioner’s decision is affirmed, and Judgment shall be 17 entered in favor of defendant. 18 19 DATE: August 24, 2010 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN 20 21 22 23 24 25 26 27 28 n.6 (9th Cir. 1995); Terry v. Sullivan, 903 F.2d 1273, 1276 (9th Cir. 1990). 9 This case is distinguishable from Pinto, in which the ALJ relied on the testimony of a vocational expert to conclude a claimant could perform her past relevant work even though the evidence showed the claimant could not perform at her past relevant work as actually performed, the vocational expert’s testimony contradicted the DOT, and the ALJ failed to considered the claimant’s illiteracy in determining she could perform her past relevant work. Pinto, 249 F.3d at 845-47. R&R-MDO\09-1437.mdo - 8/24/10 12 1 UNITED STATES MAGISTRATE JUDGE 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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