Guadalupe Garcia v. Michael J Astrue, No. 5:2010cv00306 - Document 15 (C.D. Cal. 2011)

Court Description: ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge David T Bristow: (see document image for further details). IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this action with prejudice. (ad)

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1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 GUADALUPE GARCIA, 12 Plaintiff, 13 vs. 14 MICHAEL J. ASTRUE, Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 10-0306-DTB ) ) ORDER AFFIRMING DECISION OF ) COMMISSIONER ) ) ) ) ) ) ) 17 18 Plaintiff filed a Complaint on March 9, 2010, seeking review of the 19 Commissioner s denial of her application for Disability Insurance Benefits and 20 Supplemental Security Income under Titles II and XVI of the Social Security Act. 21 In accordance with the Magistrate Judge s Case Management Order, the parties filed 22 a Joint Stipulation ( Jt. Stip. ) on November 16, 2010. Thus, this matter now is ready 23 for decision.1 24 25 1 As the Court advised the parties in its Case Management Order, the 26 decision in this case is being made on the basis of the pleadings, the Administrative Record ( AR ), and the Joint Stipulation filed by the parties. In accordance with 27 Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which 28 (continued...) 1 1 DISPUTED ISSUES 2 1. Whether the Administrative Law Judge ( ALJ ) properly considered the 3 State agency physician s mental residual functional capacity ( RFC ) assessment. 4 (Jt. Stip. 2.) 5 2. Whether the ALJ properly considered the treating psychiatrist s Initial 6 Psychiatric Assessment. (Jt. Stip. 8-9.) 7 3. Whether the ALJ properly assessed plaintiff s RFC. (Jt. Stip. 2.) 8 4. Whether the ALJ posed a complete hypothetical question to the 9 vocational expert ( VE ). (Jt. Stip. 2-3.) 10 11 DISCUSSION 12 I. Reversal is not warranted based on the ALJ s alleged failure to properly 13 consider the medical evidence. 14 Plaintiff asserts that the ALJ failed to properly consider the opinions of State 15 agency consultant Nasra S. Haroun, M.D. and examining psychiatrist Dr. Chun C. 16 Lai.2 (Jt. Stip. 3, 8.) 17 In evaluating medical opinions, the Ninth Circuit distinguishes among three 18 types of physicians: (1) Treating physicians (who examine and treat), (2) examining 19 physicians (who examine but do not treat), and (3) non-examining physicians (who 20 neither examine or treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as 21 amended). In general, more weight should be given to the opinion of a treating 22 physician than to a non-treating physician, and more weight to the opinion of an 23 24 25 1 (...continued) party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 2 Plaintiff contends that Dr. Lai was a treating psychiatrist. (Jt. Stip. 8-9.) The Court concludes that Dr. Lai is properly characterized as an examining 27 psychiatrist. However, for purposes of considering the weight of his opinion, the 28 difference in status is immaterial. 26 2 1 examining physician than to a non-examining physician. Id. When a treating or 2 examining physician s opinion is not contradicted by another physician, it may only 3 be rejected for clear and convincing reasons. Id. Where contradicted, a treating or 4 examining physician s opinion may not be rejected without specific and legitimate 5 reasons supported by substantial evidence in the record. Id. at 830-31; see also 6 Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 7 8 A. Dr. Haroun 9 On February 8, 2008, State agency consultant Dr. Haroun completed a 10 Psychiatric Review Technique, Mental Residual Functional Capacity 11 Assessment, and Medical Evaluation/Case Analysis, in which he opined that 12 plaintiff had mild restrictions in the activities of daily living, moderate difficulties in 13 maintaining social functioning and maintaining concentration, persistence and pace, 14 and did not have any episodes of decompensation. (AR 253-69.) Among other 15 things, Dr. Haroun concluded that plaintiff suffered from an affective disorder and 16 substance addiction disorder. (AR 253.) Dr. Haroun further concluded that based on 17 the evidence in the file, plaintiff would have difficulty sustaining even simple tasks, 18 but that her drug and alcohol abuse appeared to be material to this evaluation. (AR 19 268.) Dr. Haroun noted that when [plaintiff] first started her court mandated 20 treatment[, which was required by the court for plaintiff to obtain custody of her child 21 that was removed from her care,] and was testing negative for drugs[,] she was 22 reporting improvement in her symptoms and there [was] no evidence of any bizarre 23 behavior or any of the type of behavior or problems with attention and concentration 24 noted at the [consultative examination]. (Id.) Overall, Dr. Haroun determined that 25 without the drug and alcohol abuse, plaintiff would be able to perform at least simple 26 repetitive tasks in a non-public environment. (Id.) 27 Contrary to plaintiff s allegations, the ALJ considered Dr. Haroun s findings 28 and the ALJ s RFC assessment was consistent with these findings. There is no 3 1 evidence in the record suggesting that the ALJ disregarded Dr. Haroun s findings 2 without any consideration. Indeed, plaintiff fails to consider that the ALJ implicitly 3 adopted Dr. Haroun s rating of functional limitations in his assessment of plaintiff s 4 mental impairments. The ALJ found [i]n activities of daily living, the claimant has 5 mild restriction. In social functioning, the claimant has moderate difficulties. As for 6 episodes of decompensation, the claimant has experienced no episodes of 7 decompensation, which had been of extended duration. (AR 12.) The ALJ s RFC 8 assessment limiting plaintiff to light, entry level work with no production quotas, 9 such as those imposed by conveyor belt or piece work (Id.), appears consistent with 10 Dr. Haroun s finding that plaintiff could perform at least simple repetitive tasks in a 11 non-public environment (AR 268). 12 Further, in assessing plaintiff s credibility, a finding that plaintiff does not 13 challenge in this action, the ALJ noted that the clinical treatment and examining notes 14 in the record showed [plaintiff] doing well with medication and plaintiff s 15 allegation of hearing voices is contrary to her admission that her mood is stable 16 when she is compliant with medication. (AR 13.) These findings are supported by 17 Dr. Haroun s conclusions. For instance, Dr. Haroun opined that there was evidence 18 that plaintiff reported feeling better and having improvement in her symptoms during 19 the same time period as her psychiatric treatment and negative drug screens. (AR 20 268.) Dr. Haroun further noted that plaintiff did not exhibit any bizarre behavior or 21 problems with either attention or concentration during this same time period. (Id.) 22 Dr. Haroun also opined that there was evidence that [plaintiff] is not entirely 23 credible as she appeared to be exaggerating her psychotic symptoms at the 24 [consultative examination] and there was no objective evidence to suggest that 25 plaintiff was experiencing auditory hallucinations. (Id.) 26 Accordingly, under the circumstances, the Court concludes reversal for further 27 consideration of Dr. Haroun s opinion is not warranted. 28 / / / 4 1 B. Dr. Lai 2 Plaintiff also contends that the ALJ failed to properly consider Dr. Lai s 3 findings or provide specific and legitimate reasons for disregarding his opinion and 4 Global Assessment of Functioning ( GAF )3 assessment. (Jt. Stip. 8-9.) 5 In interpreting the evidence and developing the record, the ALJ need not 6 discuss every piece of evidence; rather, the ALJ need only discuss evidence that is 7 significant and probative. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 8 (9th Cir. 2005) (holding that the ALJ did not selectively analyze the evidence 9 where the ALJ referred to a combination of medical reports without specifically 10 discussing a report of low probative value upon which the ALJ did not rely); Vincent 11 v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (per curiam). Further, the Ninth 12 Circuit has held that [t]he ALJ need not accept the opinion of any physician, 13 including a treating physician, if that opinion is brief, conclusory, and inadequately 14 supported by clinical findings. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 15 2002). 16 Here, rather than discussing Dr. Lai s conclusory initial assessment and GAF 17 score, the ALJ discussed examining psychiatrist Dr. Kent Jordan s more recent and 18 well reasoned findings and conclusions as well as plaintiff s treating physician s 19 findings. Dr. Lai s initial findings were inconsistent with the record as a whole, and 20 thus, the ALJ properly accorded Dr. Lai s treatment records less consideration. As 21 such, to the extent the ALJ failed to expressly discuss Dr. Lai s opinion, such error 22 was harmless. See Stout v. Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 23 2006); see also Carmickle, 533 F.3d at 1162. 24 25 3 A GAF score is the clinician s judgment of the individual s overall level 26 of functioning. It is rated with respect to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or 27 environmental limitations. See American Psychiatric Association, Diagnostic and 28 Statistical Manual of Mental Disorders ( DSM-IV ) at 32 (4th ed. 2000). 5 1 The form at issue is an Initial Psychiatric Assessment conducted by Dr. Lai 2 on October 16, 2007.4 (AR 217-21.) At the time of plaintiff s initial visit with Dr. 3 Lai, she was diagnosed with a mood disorder, not otherwise specified, polysubstance 4 dependence, and a personality disorder, not otherwise specified. (AR 217.) At that 5 time, Dr. Lai assessed plaintiff as having a GAF score of 38, which indicates some 6 impairments in reality testing or communication or major impairments in several 7 areas, such as work or school, family relations, judgment, thinking or mood. (Id.) 8 See also DSM-IV at 34. Dr. Lai s assessment was void of any detail and merely 9 consisted of fill-in-the-box entries and short phrases. (See AR 217-221.) Plaintiff 10 failed to attend her next scheduled appointment with Dr. Lai on January 3, 2008, and 11 all of her subsequent medication follow-up appointments at the Department of Health 12 were with Dr. Roberto Paras Cabugao, Jr. (AR 198, 297.) The medical evidence 13 reflects that Dr. Cabugao thereafter remained plaintiff s treating psychiatrist at the 14 Department of Mental Health, and treated her regularly from January 24, 2008, until 15 at least July 1, 2009. (AR 278-315.) 16 Unlike the initial assessment conducted by Dr. Lai, Dr. Cabugao s findings 17 reflected that, after receiving psychiatric treatment and medication, plaintiff s 18 symptoms improved. For instance, Dr. Cabugao opined, inter alia, that plaintiff 19 exhibited normal motor activity, responsive interactions, an alert level of 20 consciousness, good concentration, a euthymic mood, normal thought processes, and 21 a mood congruent though content. (AR 289.) He further noted that plaintiff had no 22 23 24 25 26 27 28 4 Although Dr. Lai s name appears as the treating physician on the Adult Intake Assessment form dated September 25, 2007, the signature line reflects the name of plaintiff s licensed clinical social worker, Carol Guy. (AR 238, 246). Furthermore, the handwriting on this assessment is the same as that of other medical evidence signed by Ms. Guy. (See, e.g., AR 215, 227, 230.) Likewise, Dr. Lai s name appears on a progress note from November 20, 2007, but, again, the signature at the bottom of the page differs from that of Dr. Lai s signature. (Compare AR 203 with AR 220.) 6 1 delusions or hallucinations, good insight and judgment, and good impulse control. 2 (Id.) Finally, Dr. Cabugao assigned plaintiff a GAF score of 65.5 (AR 286.) 3 The ALJ expressly considered Dr. Cabugao s findings in his decision. (AR 12- 4 13.) For example, in support of his finding that plaintiff was doing well with 5 medication over her course of treatment, the ALJ specifically cited to Dr. Cabugao s 6 treatment records of March 11, 2008, April 9, 2008, June 4, 2008, July 9, 2008, 7 November 3, 2008, April 6, 2009 and July 1, 2009. (AR 12, 279, 282, 285, 292-93, 8 295, 315.) These records reflect a positive improvement in plaintiff s symptoms over 9 the course of plaintiff s treatment. (Compare AR 297 [plaintiff exhibited signs of 10 depression and anxiousness, experienced auditory hallucinations and had poor 11 medication adherence] with AR 279 [plaintiff takes walks every day and is proud, 12 mood is stable, doing well, all categories in the Mental Status Exam marked 13 appropriate, and good medication response and adherence], AR 282 [plaintiff s 14 mood is stable, no hallucinations, appropriate mood, affect, attention and 15 concentration and good medication response and adherence], AR 285 [plaintiff 16 doing well and more animated, no depression nor hallucinations, and good 17 medication response and adherence], AR 286-90 [Psychiatric Re-Assessment showed 18 plaintiff s symptoms markedly improved since initial psychiatric assessment], AR 291 19 [plaintiff s affect calm; upbeat, mood not depressed, no hallucinations, and had 20 good medication response and adherence], AR 293 [plaintiff denies auditory 21 hallucinations and had good medication response and adherence], and AR 295 22 [plaintiff s hallucinations gone and plaintiff had good medication adherence]. 23 The ALJ also properly considered the opinion of examining psychiatrist Dr. 24 Jordan over that of Dr. Lai. Dr. Jordan conducted a Complete Psychiatric 25 26 5 A GAF score between 61 and 70 reflects some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning 28 pretty well, and has some meaningful interpersonal relationships. See DSM-IV at 34. 27 7 1 Evaluation in January, 2008 at the request of the Department of Social Services. 2 (AR 247-52.) After examining plaintiff, Dr. Jordan concluded that plaintiff suffered 3 from polysubstance abuse (alcohol and amphetamines), amphetamine-induced 4 psychotic disorder with hallucinations and paranoia, polysubstance-induced cognitive 5 impairments and mood disorder with highly labile, irritable and tearful affect, and 6 personality disorder with manipulative trends. (AR 251.) He assessed plaintiff with 7 a GAF score of 60, which indicated moderate symptoms or moderate difficulty in 8 social, occupational, or school functioning. (Id.) See also DSM-IV at 34. In his 9 decision, the ALJ expressly discussed Dr. Jordan s findings and noted that his 10 findings were consistent with the totality of the record including clinical treatment 11 notes from the [Department of Mental Health]. (AR 11-12.) 12 Based on a review of the record, the Court concludes that any failure to 13 specifically discuss Dr. Lai s findings was harmless and remand is not warranted on 14 this basis. 15 16 II. Reversal is not warranted based on the ALJ s alleged failure to properly 17 assess plaintiff s RFC and pose a complete hypothetical to the VE. 18 Plaintiff further contends that the ALJ erred in his assessment of plaintiff s 19 RFC because the ALJ did not properly consider the opinions of Drs. Haroun and Lai. 20 (Jt. Stip. 11-12.) Plaintiff further contends that, had the ALJ specifically included 21 their findings in the hypothetical question posed to the VE, it is likely the VE would 22 not have testified that plaintiff is capable of performing the jobs she identified. (AR 23 4.) The Court disagrees. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 8 1 Social Security Ruling ( SSR )6 96 8p, 1996 WL 374184, at *1, defines a 2 claimant s RFC as an assessment of an individual s ability to do sustained 3 work-related physical and mental activities in a work setting on a regular basis. See 4 also Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) ( A claimant s residual 5 functional capacity is what a claimant can still do despite her limitations. ). Further, 6 [i]n determining residual functional capacity, the ALJ must consider subjective 7 symptoms such as fatigue and pain. Smolen, 80 F.3d at 1291; 20 C.F.R. §§ 8 404.1545(a), 416.945(a) (RFC is the most [one] can still do despite [one s] 9 limitations and represents an assessment based on all the relevant evidence in 10 [one s] case record. ). 11 The ALJ properly found that plaintiff had the RFC to do other work. As 12 discussed above, the ALJ concluded that plaintiff had the RFC to perform light work 13 as defined in 20 C.F.R. [§] 416.97(b) except that she is limited to entry level work 14 with no production quotas such as those imposed by conveyor belt of piece work. 15 (AR 12.) The ALJ based this finding on numerous factors and provided ample 16 explanation in support of his RFC assessment. For example, the ALJ explicitly 17 referenced the reports of the treating and examining practitioners from the 18 Department of Mental Health and the findings made on examination by Dr. Jordan 19 in support for plaintiff s RFC assessment. (AR 13.) The ALJ also considered Dr. 20 Jordan s assessment of plaintiff s current level of functioning as mild to moderate 21 with a GAF score of 60, and that plaintiff lived alone in an apartment . . . managed 22 23 6 24 25 26 27 28 The Commissioner issues Social Security Rulings [( SSRs )] to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the [Social Security Administration]. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations omitted). 9 1 her own money, traveled by public transportation, and did her own shopping, food 2 preparation and chores. (AR 12, 249, 251.) The ALJ noted that Dr. Jordan opined 3 that plaintiff exhibited various signs and symptoms of very recent, if not ongoing, 4 substance abuse at the time of the examination. (AR 12, 247, 251.) The ALJ further 5 noted that Dr. Jordan opined that [plaintiff] appeared to highly embellish her 6 symptomology, adding that she was unreliable regarding her present illness, work 7 history and the degree of her recent substance abuse. (AR 12, 248.) 8 As discussed, the ALJ also relied upon the longitudinal treatment records from 9 the Department of Mental Heath indicating that regular and consistent psychiatric 10 treatment and medication resulted in an improvement in plaintiff s symptoms. (AR 11 12.) Further, in explaining his RFC findings, the ALJ noted that plaintiff s 12 impairments could reasonably be expected to cause the alleged symptoms, however 13 he ultimately concluded that plaintiff s statements concerning the intensity, 14 persistence, and limiting effects of these symptoms are not credible to the extent they 15 are inconsistent with the above residual functional capacity assessment. (AR 13.) 16 The ALJ stated that the record fails to document any objective clinical findings 17 establishing that [plaintiff] was not able to perform light entry level work during the 18 period since September 1, 2007. There is no opinion by a treating physician that 19 claimant has been unable to sustain this level of activity where she is compliant with 20 prescribed treatment and medication. In sum, the above residual functional capacity 21 assessment is supported by the totality of the record. (Id.) 22 Given these considerations, it appears that, in making the RFC assessment, the 23 ALJ considered many factors, including plaintiff s daily activities, and the totality of 24 the medical and opinion evidence. Where evidence is susceptible to more than one 25 rational interpretation, the ALJ may resolve the conflict. See Vasquez v. Astrue, 572 26 F.3d 586, 591 (9th Cir. 2009) (as amended); see also Morgan v. Comm r of the Soc. 27 Sec. Admin., 169 F.3d 595, 601 (9th Cir. 1998) ( [W]hen evidence is susceptible to 28 more than one rational interpretation, the ALJ s conclusion must be upheld. ) The 10 1 ALJ s RFC assessment is supported by substantial evidence. Accordingly, remand is 2 not warranted on this issue. 3 Likewise, plaintiff s contention that the ALJ failed to consider all aspects of 4 Dr. Haroun s and Dr. Lai s opinions in eliciting testimony from the VE does not merit 5 reversal. (Jt. Stip. 14.) In posing a hypothetical question to the VE, the ALJ is 6 required to include limitations that he found credible and supported by substantial 7 evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005); Osenbrock 8 v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001); Rollins v. Massanari, 261 F.3d 853, 9 857 (9th Cir. 2001). Plaintiff does not object to any of the limitations included in the 10 hypothetical, but instead argues that they were incomplete because they did not 11 specifically mention the moderate mental limitations opined by Dr. Haroun . . . [and] 12 the GAF scores of 38 and 40 opined by Dr. Lai . . . (Jt. Stip. 14.) However, as 13 discussed, supra, the ALJ considered Dr. Haroun s opinion and any error in failing 14 to consider Dr. Lai s opinion was harmless. The ALJ s RFC assessment properly 15 incorporated those limitations that he found credible and supported by substantial 16 evidence. The ALJ s hypothetical posed to the VE included the same limitations as 17 contained in the RFC assessment. (Compare AR 12 with AR 60-61.) The ALJ s 18 hypothetical questions to the VE relied on his complete impairment determinations 19 and therefore, new VE testimony is unnecessary. See Osenbrock, 240 F.3d at 1163; 20 see also Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995) (as amended) (upholding 21 the ALJ s hypothetical question to a VE that excluded alleged limitations properly 22 rejected by the ALJ). 23 / / / 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 11 1 2 ORDER IT THEREFORE IS ORDERED that Judgment be entered affirming the 3 decision of the Commissioner of Social Security and dismissing this action with 4 prejudice. 5 6 DATED: August 15, 2011 7 8 9 DAVID T. BRISTOW UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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