Rebecca Blanquet v. Michael J. Astrue, No. 5:2010cv00181 - Document 18 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott. IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is AFFIRMED and that this action is dismissed with prejudice. (es)
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Rebecca Blanquet v. Michael J. Astrue Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 REBECCA BLANQUET, 12 Plaintiff, 13 v. 14 MICHAEL J. ASTRUE, 15 Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-0181-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY 17 PROCEEDINGS 18 19 On February 19, 2010, Rebecca Blanquet (“Plaintiff” or “Claimant”) filed a Complaint 20 seeking review of the decision by the Commissioner of the Social Security Administration 21 (“Commissioner”) denying Plaintiff’s application for disability benefits under Title XVI of the 22 Social Security Act. On August 23, 2010, the Commissioner filed an Answer to the 23 Complaint. On October 20, 2010, the parties filed a Joint Stipulation (“JS”) setting forth their 24 positions and the issues in dispute. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before the 26 undersigned Magistrate Judge. After reviewing the pleadings, transcripts, and administrative 27 record (“AR”), the Court concludes that the Commissioner’s decision should be affirmed and 28 the case dismissed with prejudice. Dockets.Justia.com BACKGROUND 1 2 Plaintiff was born on January 25, 1982, and was 22 years old on her alleged disability 3 onset date of December 22, 2004. (AR 62.) Plaintiff filed an application for Supplemental 4 Security Income benefits on February 28, 2005. (AR 62-64, 335.) Plaintiff claims she is 5 disabled due to a traumatic brain injury, pituitary tumor, diabetes, and hypopituitarism. (AR 6 70.) Plaintiff has not engaged in substantial gainful activity since at least February 28, 2005. 7 (AR 93, 335.) 8 Plaintiff’s claim was denied initially on August 3, 2005 (AR 31-35), and on 9 reconsideration on November 1, 2005. (AR 39-43.) Plaintiff filed a timely request for hearing 10 on November 22, 2005. (AR 44.) Plaintiff appeared with counsel and testified at a hearing 11 held on April 25, 2007, before Administrative Law Judge (“ALJ”) John W. Belcher. (AR 27812 326.) The ALJ issued a decision denying benefits on September 14, 2007 (the “Prior 13 Decision”). (AR 22-30.) After the Appeals Council denied Plaintiff’s request for review (AR 14 4-6), Plaintiff appealed to this Court. On December 23, 2008, a United States Magistrate 15 Judge issued an order vacating the Prior Decision and remanding for further administrative 16 proceedings (the “Remand Order”). (AR 452-60.) 17 Following remand, a different ALJ, Jay Levine, held a hearing on July 8, 2009 (AR 18 880-911), and issued an unfavorable decision on November 27, 2009 (the “Post-Remand 19 Decision”). (AR 333-43.) The ALJ determined that Plaintiff has the severe impairments of 20 post-operative craniopharyngioma, panhypopituitarism (controlled), obesity, type II diabetes, 21 a mood disorder, and a cognitive disorder, but is capable of performing her past relevant 22 work as an office clerk. (AR 335, 341-42.) Thus, the ALJ concluded that Plaintiff was not 23 disabled within the meaning of the Social Security Act since the date her application was 24 filed. (AR 343.) The Appeals Council did not review the ALJ’s decision, which became the 25 final decision of the Commissioner. See 20 C.F.R. § 404.984(d). Plaintiff then commenced 26 the present action. 27 28 2 DISPUTED ISSUE 1 2 As reflected in the Joint Stipulation, there is one disputed issue: whether the ALJ 3 complied with the Remand Order to properly consider a State Agency physician’s opinion. 4 (JS at 3.) 5 6 STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ’s decision to determine whether 7 the ALJ’s findings are supported by substantial evidence and free of legal error. Smolen v. 8 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 9 (9th Cir. 1991) (ALJ’s disability determination must be supported by substantial evidence and 10 based on the proper legal standards). 11 Substantial evidence means “‘more than a mere scintilla,’ but less than a 12 preponderance.” Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson 13 v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is “such relevant evidence as a 14 reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. 15 at 401 (internal quotation marks and citation omitted). 16 This Court must review the record as a whole and consider adverse as well as 17 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). 18 Where evidence is susceptible to more than one rational interpretation, the ALJ’s decision 19 must be upheld. Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 20 1999). “However, a reviewing court must consider the entire record as a whole and may not 21 affirm simply by isolating a ‘specific quantum of supporting evidence.’” Robbins, 466 F.3d at 22 882 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 23 495 F.3d 625, 630 (9th Cir. 2007). 24 25 THE SEQUENTIAL EVALUATION The Social Security Act defines disability as the “inability to engage in any substantial 26 gainful activity by reason of any medically determinable physical or mental impairment which 27 can be expected to result in death or . . . can be expected to last for a continuous period of 28 3 1 not less than 12 months.” 42 U.S.C. §§ 423(d) (1)(A), 1382c(a)(3)(A). The Commissioner 2 has established a five-step sequential process to determine whether a claimant is disabled. 3 20 C.F.R. §§ 404.1520, 416.920. 4 The first step is to determine whether the claimant is presently engaging in substantial 5 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is 6 engaging in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 7 482 U.S. 137, 140 (1987). Second, the ALJ must determine whether the claimant has a 8 severe impairment or combination of impairments. Parra, 481 F.3d at 746. An impairment is 9 not severe if it does not significantly limit the claimant’s ability to work. Smolen, 80 F.3d at 10 1290. Third, the ALJ must determine whether the impairment is listed, or equivalent to an 11 impairment listed, in Appendix I of the regulations. Id. If the impediment meets or equals 12 one of the listed impairments, the claimant is presumptively disabled. Bowen v. Yuckert, 482 13 U.S. at 141. Fourth, the ALJ must determine whether the impairment prevents the claimant 14 from doing past relevant work. Pinto v. Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 15 Before making the step four determination, the ALJ first must determine the claimant’s 16 residual functional capacity (“RFC”).1 20 C.F.R. § 416.920(e). The RFC must account for all 17 of the claimant’s impairments, including those that are not severe. 20 C.F.R. §§ 416.920(e), 18 416.945(a)(2); Social Security Ruling (“SSR”) 96-8p. If the claimant cannot perform his or 19 her past relevant work or has no past relevant work, the ALJ proceeds to the fifth step and 20 must determine whether the impairment prevents the claimant from performing any other 21 substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 22 The claimant bears the burden of proving steps one through four, consistent with the 23 general rule that at all times the burden is on the claimant to establish his or her entitlement 24 to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established by the 25 26 27 1 Residual functional capacity (“RFC”) is what one “can still do despite [his or her] limitations” and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 28 4 1 claimant, the burden shifts to the Commissioner to show that the claimant may perform other 2 gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support a 3 finding that a claimant is not disabled at step five, the Commissioner must provide evidence 4 demonstrating that other work exists in significant numbers in the national economy that the 5 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. § 6 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 7 entitled to benefits. Id. DISCUSSION 8 9 10 A. The ALJ’s Decision In this case, the ALJ determined at step one of the sequential evaluation that Plaintiff 11 has not engaged in substantial gainful activity since February 28, 2005, her application date. 12 (AR 335.) 13 At step two, the ALJ determined that Plaintiff has the following severe impairments: 14 post-operative craniopharyngioma; panhypopituitarism, controlled; obesity; type II diabetes; a 15 mood disorder; and a cognitive disorder, not otherwise specified. (AR 335.) 16 At step three, the ALJ found that Plaintiff does not have an impairment or combination 17 of impairments that meets or medically equals one of the listed impairments. (AR 335-36.) 18 The ALJ found that Plaintiff has the RFC to perform light work except she “is limited to 19 walking two hours out of an eight-hour work day and can sit for six hours; she is limited to 20 occasional climbing, balancing, stooping[,] kneeling, crouching, and crawling. [She] is 21 precluded from working at heights [or] on dangerous equipment; she is precluded from 22 work[ing in] environment[s] with temperature extremes; she is precluded from work that 23 requires production quotas or piece work type assembly; and [she] is limited to work with a 24 four to five step work process.” (AR 336.) 25 At step four, the ALJ relied on the testimony of a vocational expert in finding that 26 Plaintiff could perform her past relevant work as an office clerk. (AR 341-42.) The ALJ also 27 made an alternative finding that there are other jobs that exist in significant numbers in the 28 5 1 national economy that Plaintiff can perform. (AR 342.) The ALJ therefore concluded that 2 Plaintiff is not disabled. (AR 342-43.) 3 B. The ALJ Properly Evaluated the State Agency Physician’s Opinion. 4 Plaintiff argues that the ALJ failed to comply with the Remand Order’s instruction to 5 consider properly the opinion of a State Agency physician. (JS at 3-5, 9-10.) The Court 6 disagrees. 7 8 1. Pertinent Law In Social Security cases, courts employ a hierarchy of deference to medical opinions 9 depending on the nature of the services provided. Courts distinguish among the opinions of 10 three types of physicians: those who treat the claimant (“treating physicians”) and two 11 categories of “nontreating physicians,” namely those who examine but do not treat the 12 claimant (“examining physicians”) and those who neither examine nor treat the claimant 13 (“nonexamining physicians”). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). A treating 14 physician’s opinion is entitled to more weight than an examining physician’s opinion, and an 15 examining physician’s opinion is entitled to more weight than a nonexamining physician’s 16 opinion. See id. 17 Accordingly, an ALJ is “not bound by any findings made by [nonexamining] State 18 agency” physicians. 20 C.F.R. § 416.927(f)(2)(i). The Administration recognizes, however, 19 that these individuals “are highly qualified physicians . . . who are also experts in Social 20 Security disability evaluation.” Id. “Therefore, [an ALJ] must consider findings of State 21 agency [physicians] as opinion evidence,” and “must explain in the decision the weight given 22 to the opinions of a State agency” physician. Id. § 416.927(f)(2)(i)-(ii); SSR 96-6p (An ALJ 23 “may not ignore these opinions and must explain the weight given to the opinions in their 24 decisions.”); Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (“An ALJ is required 25 to consider as opinion evidence the findings of state agency medical consultants; the ALJ is 26 also required to explain in his decision the weight given to such opinions.”). Moreover, in 27 determining a claimant’s RFC, if the ALJ's “assessment conflicts with an opinion from a 28 6 1 medical source,[] the adjudicator must explain why the opinion was not adopted.” SSR 2 96-8p. An ALJ “may reject the opinion of a nonexamining physician by reference to specific 3 evidence in the medical record.” Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1988). 4 5 2. Background The dispute in this case centers on a Mental Residual Functional Capacity 6 Assessment completed by a nonexamining State Agency physician on July 14, 2005. (AR 7 206-09.) The physician opined, among other things, that Plaintiff was moderately limited in 8 several areas of functioning: understanding, remembering and carrying out detailed 9 instructions; maintaining attention and concentration for extended periods; performing 10 activities within a schedule, maintaining regular attendance, and being punctual within 11 customary tolerances; sustaining an ordinary routine without special supervision; working in 12 coordination with or proximity to others without being distracted by them; and interacting 13 appropriately with the general public. (AR 206-07.) The physician concluded that Plaintiff 14 “can sustain simple repetitive tasks with adequate pace and persistence [and] can adapt and 15 relate to coworkers and [supervisors],” but “cannot work with [the] public.” (AR 208.) 16 The Prior Decision did not mention this assessment (AR 22-30), and the Court found 17 that the ALJ erred because he “failed to explain why he disregarded aspects of the Mental 18 Residual Functional Capacity Assessment that the State Agency psychiatrist completed on 19 July 14, 2005.” (AR 458-59 (citing AR 206-09).) The Court therefore instructed the ALJ to 20 “either specifically reject the State Agency physician’s opinion or accept the opinion and 21 explain the weight given to it in the decision.” (AR 459.) 22 As a matter of law, an ALJ must comply with a district court’s remand order. Sullivan 23 v. Hudson, 490 U.S. 877, 886 (1989) (“Deviation from the court’s remand order in the 24 subsequent administrative proceedings is itself legal error, subject to reversal on further 25 judicial review.”). Like other errors, however, an ALJ’s failure to comply with a court’s 26 remand order is subject to harmless error analysis. See Burch v. Barnhart, 400 F.3d 676, 27 679 (9th Cir. 2005) (“A decision of the ALJ will not be reversed for errors that are harmless.”); 28 7 1 Fuller v. Astrue, 2010 WL 4573547, at *6 (D. Ariz. Nov. 5, 2010) (applying harmless error 2 analysis to ALJ’s failure to comply with a court’s remand order). 3 4 3. Analysis In the Post-Remand Decision, the ALJ briefly mentioned the State Agency physician’s 5 July 14, 2005 Mental Residual Functional Capacity Assessment. (AR 341 (“On July 14, 6 2005, the Board certified psychiatrists reviewed the record and thought the claimant could do 7 at least simple repetitive tasks and could relate to co[-]workers and supervisors, but could 8 not work with the public.”) (citation omitted).) The ALJ implicitly rejected this opinion 9 because his RFC assessment did not include several of its limitations, including the inability 10 to work with the public. (AR 336.) 11 The ALJ provided a thorough and accurate summary of the medical evidence in 12 support of his RFC assessment. (AR 336-41.) He noted, for example, that clinical 13 psychologist Dr. Pierce examined Plaintiff on June 14, 2005, and concluded that Plaintiff 14 “could do simple repetitive tasks” but “might have problems working with others,” a 15 conclusion based on her “lackluster performance” at the evaluation. (AR 339.) Indeed, Dr. 16 Pierce wrote that Plaintiff “evidences a consistently lackluster approach with testing today, 17 including a borderline pass effort with a malingering-sensitive memory test.” (AR 622.) The 18 ALJ also noted that Dr. Pierce reevaluated Plaintiff on August 12, 2009, and concluded that 19 Plaintiff “would be able to complete medium to full demand of vocational skills and to adapt 20 to minimal changes in the work environment.” (AR 339.) Dr. Pierce also concluded from his 21 second examination that Plaintiff “would have milder to no apparent difficulty working 22 effectively with others” and that “[s]he could concentrate adequately for a regular work 23 schedule for a full workweek.” (AR 873.) 24 The ALJ also cited a January 11, 2007 psychological evaluation performed by Dr. 25 Harrell Reznick. (AR 339 (citing Exhibit 13F [AR 227-34]).) As the ALJ noted, Dr. Reznick 26 found that Plaintiff “appeared to exert a poor effort throughout [the] evaluation” (AR 227), and 27 28 8 1 concluded that Plaintiff “can perform simple and repetitive tasks with minimal supervision . . . 2 with appropriate persistence and pace over a normal work cycle.” (AR 233.) 3 The ALJ assigned great weight to the opinion of nonexamining clinical psychologist 4 Dr. Malancharuvil. (AR 340.) Dr. Malancharuvil reviewed the medical records and opined, 5 on July 7, 2009, that Plaintiff “is at least capable of moderately complex task[s] up to five 6 step instructions. She is precluded from fast-paced work. She is precluded from tasks that 7 require hypervigilance such as safety related tasks or tasks that require quick reaction time. 8 She should not operate hazardous or fast[-]moving machinery.” (AR 849.) Dr. Malancharuvil 9 also noted that multiple physicians expressed “serious concern that [Plaintiff] did not put forth 10 adequate effort and was possibly presenting herself [as] less capable than she actually was.” 11 (AR 850.) Dr. Malancharuvil concluded that “[o]verall the records are internally consistent in 12 identifying a loss of intellectual prowess as well as the development of mood symptoms, 13 albeit manageable, as a result of her surgery in 1995. All the doctors are consistent in 14 assigning the claimant a mild to moderate residual functional capacity.” (AR 850.) 15 Medical expert Dr. Samuel Landau testified at the 2009 hearing before the ALJ after 16 reviewing the medical evidence. (AR 888-91.) As the ALJ noted, Dr. Landau believed 17 Plaintiff’s non-exertional limitations prevented her from climbing ladders, working at heights, 18 balancing, operating motorized equipment or machinery, and working with the public 19 “because she’s susceptible to infection.” (AR 889; see AR 340.) The ALJ explained that he 20 did not incorporate the limitation preventing Plaintiff from working with the public because 21 Plaintiff “reported she did tutoring without any precautions.” (AR 340; see AR 899-900.) 22 Aside from that limitation, the ALJ concluded Dr. Landau’s testimony “is supported by the 23 evidence . . . and is given great weight.” (AR 340.) 24 The ALJ also cited a June 2, 2008 examination by psychiatrist and neurologist Dr. 25 Abejuela. (AR 341 (citing Exhibit B23F [AR 810-16]).) Dr. Abejuela found that Plaintiff’s 26 “overall occupational and social functioning impairment is none to mild.” (AR 815.) 27 28 9 1 In addition to the July 14, 2005 statement of a State Agency psychiatrist, the ALJ also 2 mentioned a June 9, 2008 opinion of a different State Agency psychiatrist. (AR 341 (citing 3 Exhibits B25F, B26F [AR 820-33]).) The 2008 opinion concluded that Plaintiff was partially 4 credible and “fullly capable of at least [simple, routine tasks].” (AR 819.) In sharp contrast to 5 the July 14, 2005 Mental Residual Functional Capacity Assessment, the 2008 assessment 6 noted that Plaintiff was moderately limited in only one functional area: performing activities 7 within a schedule, maintaining regular attendance, and being punctual within customary 8 tolerances.” (AR 820-22; compare AR 206-08.) 9 It is the ALJ’s role to assess and resolve conflicting medical evidence. See Thomas v. 10 Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002). Here, the ALJ discharged this responsibility. 11 As described above, he provided a longitudinal summary of the medical evidence and 12 explained that he gave greatest weight to the opinions of the testifying medical expert and 13 the non-testifying medical expert who reviewed the evidence and issued an opinion in July 14 2009. (AR 336-41.) Although he did not thoroughly discuss the 2005 State Agency 15 physician’s opinion, he relied on several more recent opinions of examining and 16 nonexamining physicians, including a 2008 opinion of a different State Agency physician. 17 Plaintiff does not challenge the ALJ’s evaluation of any of the other medical evidence, or the 18 ALJ’s determination that Plaintiff’s “statements concerning the intensity, persistence, and 19 limiting effects of [her] symptoms are not credible to the extent they are inconsistent with the 20 . . . [RFC] assessment.” (AR 337.) Therefore, to the extent the ALJ’s failure to explicitly 21 reject the 2005 State Agency’s physician can be considered error, the Court concludes that 22 the error was harmless because it was “inconsequential to the ultimate nondisability 23 determination.” See Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 24 2006). 25 /// 26 /// 27 /// 28 /// 10 ORDER 1 2 IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is 3 AFFIRMED and that this action is dismissed with prejudice. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: January 24, 2011 7 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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