Tracy Evans v. Michael J Astrue, No. 5:2009cv02316 - Document 18 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Tracy Evans filed this action on January 4, 2010. Pursuant to 28 U.S.C. §636(c), the parties consented to proceed before Magistrate Judge Rosenberg on January 19 and February 19, 2010. (Dkt. Nos. 8, 9.) On October 22, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TRACY EVANS, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 09-2316 AGR MEMORANDUM OPINION AND ORDER 18 Tracy Evans filed this action on January 4, 2010. Pursuant to 28 U.S.C. § 19 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on 20 January 19 and February 19, 2010. (Dkt. Nos. 8, 9.) On October 22, 2010, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On September 27, 2007, Evans filed an application for supplemental 4 security income benefits alleging an onset date of August 1, 2005. Administrative 5 Record ( AR ) 89-95. The application was denied initially and upon 6 reconsideration. AR 37-46. Evans requested a hearing before an Administrative 7 Law Judge ( ALJ ). AR 48. On June 3, 2009, the ALJ conducted a hearing at 8 which Evans testified. AR 17-30. On August 27, 2009, the ALJ issued a decision 9 denying benefits. AR 5-16. On September 17, 2009, Evans requested that the 10 Appeals Council review the decision denying benefits. AR 4. On October 20, 11 2009, the Appeals Council denied the request for review. AR 1-3. This action 12 followed. 13 II. 14 STANDARD OF REVIEW 15 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 16 decision to deny benefits. The decision will be disturbed only if it is not supported 17 by substantial evidence, or if it is based upon the application of improper legal 18 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 19 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 20 Substantial evidence means more than a mere scintilla but less than a 21 preponderance it is such relevant evidence that a reasonable mind might 22 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 23 determining whether substantial evidence exists to support the Commissioner s 24 decision, the Court examines the administrative record as a whole, considering 25 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 26 evidence is susceptible to more than one rational interpretation, the Court must 27 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Evans has a medically determinable impairment of The ALJ s Findings 12 mood disorder, not otherwise specified. AR 10. Evans does not have an 13 impairment or combination of impairments that has significantly limited (or is 14 expected to significantly limit) the ability to perform basic work-related activities 15 for 12 consecutive months; therefore, the claimant does not have a severe 16 impairment or combination of impairments. Id. 17 C. 18 Evans argues that the ALJ erred at step two of the sequential analysis in 19 Step Two of the Sequential Analysis his determination that she does not have a severe mental impairment. 20 At step two, the claimant bears the burden of demonstrating a severe, 21 medically determinable impairment that meets the duration requirement. 20 22 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 23 2287, 96 L. Ed. 2d 119 (1987). To satisfy the duration 24 requirement, the severe impairment must have lasted or be expected to last for a 25 continuous period of not less than 12 months. Id. at 140. 26 Your impairment must result from anatomical, physiological, 27 or psychological abnormalities which can be shown by 28 medically acceptable clinical and laboratory diagnostic 3 1 techniques. A physical or mental impairment must be 2 established by medical evidence consisting of signs, 3 symptoms, and laboratory findings, not only by your 4 statement of symptoms. 5 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. [T]he impairment must be one that 6 significantly limits your physical or mental ability to do basic work activities. 1 7 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen, 80 8 F.3d at 1290 ( [A]n impairment is not severe if it does not significantly limit [the 9 claimant s] physical ability to do basic work activities. ) (citation and internal 10 11 quotation marks omitted). An impairment or combination of impairments may be found not severe 12 only if the evidence establishes a slight abnormality that has no more than a 13 minimal effect on an individual s ability to work. Webb v. Barnhart, 433 F.3d 14 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step Two is 15 a de minimis screening device [used] to dispose of groundless claims and the 16 ALJ s finding must be clearly established by medical evidence. Id. at 687 17 (citations and quotation marks omitted, emphasis added). 18 The ALJ found that Evans has a medically determinable impairment of 19 mood disorder, not otherwise specified, but found it to be not severe. AR 10. 20 Contrary to Evan s contention, the ALJ s determination was supported by 21 substantial evidence. The ALJ stated he gave great weight to consultative 22 examiner Dr. Smith and state agency physicians Dr. Paxton and Dr. Skopec in 23 finding that Evans impairment was not severe. AR 15-16. 24 25 26 27 28 1 The ability to do basic work activities includes physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling, capacities for seeing, hearing, and speaking, understanding, carrying out, and remembering simple instructions, use of judgment, responding appropriately to supervision, co-workers, and usual work situations, and dealing with changes in a routine work setting. Yuckert, 482 U.S. at 168 n.6 (quotation marks omitted); Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). 4 1 Dr. Smith did not see any objective evidence that [Evans] has an Axis I or 2 Axis II disorder and did not believe Evans was impaired in her ability to work as 3 long as she continues to abstain from drugs. AR 157. Dr. Smith also assessed 4 Evans with a Global Assessment of Functioning ( GAF ) of 85.2 AR 156. Dr. 5 Smith determined Evans was not functionally impaired in her ability to (a) 6 understand, remember or complete simple and complex commands; (b) interact 7 appropriately with supervisors, co-workers, or the public; (c) comply with job 8 rules such as safety and attendance; (d) respond to change in the normal 9 workplace setting; and (e) maintain persistence and pace in a normal workplace 10 setting. AR 157. State agency physicians Dr. Paxton and Dr. Skopec agreed 11 Evans did not have a severe mental impairment. See AR 158-71. The opinions 12 of Drs. Smith, Paxton and Skopec support a finding that Evans does not have a 13 severe mental impairment. As an examining physician s opinion based on 14 independent clinical findings, Dr. Smith s opinion constitutes substantial evidence. 15 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). A non-examining physician s 16 opinion constitutes substantial evidence when, as here, it is supported by other 17 evidence in the record and consistent with it. Andrews v. Shalala, 53 F.3d 1035, 18 1041 (9th Cir. 1995). 19 The ALJ considered the Department of Corrections and Rehabilitation 20 treatment records. The ALJ found they did not opine that Evans has a severe 21 mental impairment or is unable to work. AR 15, AR 173-84. The ALJ gave 22 some weight to the GAF score of 65, which shows some mild symptoms but 23 /// 24 /// 25 26 27 28 2 A GAF of 85 indicates [a]bsent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). American Psychiatric Association, Diagnostic Statistical Manual of Mental Disorders, 34 (4th ed. 2000). 5 1 generally functioning pretty well. 3 AR 15, 181. As noted by the ALJ, no 2 functional limitations were assessed. AR 15, 181. 3 Substantial evidence supported the ALJ s conclusion that Evans did not 4 have a severe mental impairment. See Carmickle v. Comm r, Soc. Sec. Admin., 5 533 F.3d 1155, 1165 (affirming finding that carpal tunnel syndrome was not a 6 severe impairment at step two where the medical record does not establish any 7 work-related limitations as a result of this impairment ); Matthews v. Shalala, 10 8 F.3d 678, 680 (9th Cir. 1993) ( [T]he mere existence of an impairment is 9 insufficient proof of a disability. ). A claimant must show that she is precluded 10 from engaging in substantial gainful activity by reason of her impairments. Id. 11 (citing 42 U.S.C. § 423(d)(1)(A)). The ALJ found that Evans had no impairment in 12 activities of daily living, mild limitation in social functioning and concentration, 13 persistence or pace with no episodes of decompensation. AR 11-13. When a 14 claimant s degree of limitation in the first three functional areas is none or mild, 15 and none in the fourth functional area, we will generally conclude that your 16 impairment(s) is not severe, unless the evidence otherwise indicates that there is 17 more than a minimal limitation in your ability to do basic work activities. 20 18 C.F.R. § 404.1520a(d)(1); 20 C.F.R. § 416.920a(d)(1). The ALJ did not err. 19 20 IV. 21 ORDER 22 IT IS HEREBY ORDERED that the decision of the Commissioner is 23 affirmed. 24 /// 25 /// 26 27 28 3 Evans mental status examination indicated she had average intellectual functioning, average fund of knowledge, normal memory, fair insight and poor judgment. AR 182. 6 1 2 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 3 4 DATED: May 3, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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