Zena Smith v. Michael J Astrue, No. 5:2009cv02146 - Document 19 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. KentonThe matter is affirmed, and the Complaint is dismissed with prejudice. (See Order for Details) (rp)
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Zena Smith v. Michael J Astrue Doc. 19 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 ZENA SMITH, o/b/o C. T., 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 09-02146-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge (“ALJ”) properly Dockets.Justia.com 1 complied with the District Court’s remand order and the 2 subsequent 3 recontact 4 determining the extent of the child’s functional limitations 5 in the six relevant domains; and 6 2. Appeals Dr. Dey Council in order order to requiring provide the a ALJ basis to for Whether the ALJ properly complied with SSR 96-7p regarding 7 the 8 medications. 9 type, dosage, effectiveness and side effects of (JS at 3.) 10 11 This Memorandum Opinion will constitute the Court’s findings of 12 fact and conclusions of law. After reviewing the matter, the Court 13 concludes that the decision of the Commissioner must be affirmed. 14 15 I 16 THE ALJ PROPERLY COMPLIED WITH THE DISTRICT COURT REMAND ORDER 17 Plaintiff contends that the ALJ failed to properly comply with 18 the District Court remand order and the subsequent Appeals Council 19 order. 20 In this Court’s previous Memorandum Opinion, the Court reversed 21 and remanded the matter to the Commissioner on July 17, 2007, with 22 instructions. (AR 431l-443.) 23 page of the Decision (AR 443), mandated development of the record in 24 the following specific language: “Therefore, the ALJ should recontact 25 Dr. Dey and/or obtain an independent consultative evaluation by a 26 qualified psychiatrist in order to provide a basis for determining the 27 extent of the child’s functional limitations in the six relevant 28 domains.” The instructions, set forth on the last 2 1 On remand, the ALJ conducted a hearing on May 22, 2008 (AR 379- 2 388), at which time the child claimant appeared, along with her 3 attorney (the principal of the law office representing Plaintiff in 4 this litigation), and a medical expert (“ME”). Following the hearing, 5 the ALJ issued a partially favorable decision. (AR 360-376.) 6 found that, based on the evidence, the claimant was disabled from the 7 period June 28, 2004 through December 31, 2005, but not thereafter. 8 (AR 364.) 9 10 The ALJ During the hearing, the ALJ noted that Dr. Dey was subpoenaed to attend, but failed to attend the hearing. (AR 387.) 11 In determining the issue of disability, the ALJ relied upon 12 evidence which included the testimony of the ME at the hearing, along 13 with a report of a psychiatric consultative examination (“CE”) which 14 was obtained on January 15, 2008. (AR 473-479.) 15 Plaintiff does not complain that the ALJ misconstrued the 16 evidence, in particular, the psychiatric CE, and the testimony of the 17 ME. 18 complied 19 essentially raises a frivolous issue. 20 provided that development of the record could be done by either 21 recontacting Dr. Dey and/or obtaining an independent consultative 22 evaluation by a qualified psychiatrist. 23 psychiatric CE, and had he done nothing further, he would have been in 24 full 25 subpoenaed Dr. Dey to attend the hearing, but Plaintiff is seemingly 26 unsatisfied with the ALJ’s recitation on the record that Dr. Dey had 27 in fact been subpoenaed but had not shown up, arguing that there is 28 “absolutely no proof to show that he was in fact subpoenaed to appear Instead, Plaintiff frames the issue as whether the ALJ properly with this compliance with Court’s the remand Court’s 3 order. As such, Plaintiff The Court’s remand order The ALJ did obtain a new remand order. The ALJ also 1 at the hearing.” (JS at 4.) These types of pejorative accusations, 2 based on nothing more than speculation, have no proper place in the 3 litigation context. 4 inexperience of the attorney assigned to this case by the office of 5 Plaintiff’s counsel. 6 nothing of substance, as it is plainly apparent that the ALJ did 7 comply with the Court’s remand order by obtaining a new psychiatric 8 CE. The Court will chalk that up to the apparent Essentially, Plaintiff’s first issue contains 9 10 II 11 THE ALJ DID NOT DISREGARD ISSUES CONCERNING 12 THE SIDE EFFECTS OF MEDICATIONS 13 Plaintiff’s second issue asserts that because the child claimant 14 was taking the drug Risperidal, which may, in certain individuals, 15 cause side effects, the ALJ erred by not looking into those side 16 effects and their possible effect on the claimant. 17 frivolous issue. 18 Plaintiff’s counsel claims that because the claimant is a 15-year-old 19 child, “these side effects could be significantly affecting her life.” 20 (JS at 11.) 21 that there are any actual side effects. 22 the contrary. 23 adverse side effects from the medication at any time, whether in her 24 application, at the psychiatric CE, or during the hearing. (AR 85, 25 413, 478.) 26 issues, in particular, undocumented and unreported side effects of 27 medication. 28 This is, again, a In another speculative and conclusory statement, But there is absolutely nothing in the record to indicate In fact, the evidence is to The child claimant herself never alleged she had any It was not the ALJ’s obligation to address non-existent See Miller v. Heckler, 70 F.2d 845, 849 (9th Cir. 1985). The Court will not sanction Plaintiff’s counsel for what is, in 4 1 effect, a frivolous pleading, in this instance. 2 however, that the associate who prepared this pleading on behalf of 3 Plaintiff will receive proper guidance and supervision from senior 4 attorneys in the office of Plaintiff’s counsel. 5 6 7 The Court expects, The matter is affirmed, and the Complaint is dismissed with prejudice. IT IS SO ORDERED. 8 9 10 DATED: August 31, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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