Robert Canady vs. Michael J Astrue, No. 5:2010cv00392 - Document 17 (C.D. Cal. 2010)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Marc L. Goldman. The decision of the Commissioner is reversed and remanded for proceedings consistent with this opinion. (nbo)
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Robert Canady vs. Michael J Astrue Doc. 17 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 10 ROBERT CANADY, 11 Plaintiff, 12 13 14 v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 10-0392-MLG MEMORANDUM OPINION AND ORDER 17 18 Plaintiff Robert Canady seeks judicial review of the Social 19 Security Commissioner’s denial of his application for Supplemental 20 Security Income Benefits (“SSI”) pursuant to Title XVI of the 21 Social Security Act. 22 remanded for further proceedings consistent with this opinion. For the reasons stated below, the matter is 23 24 I. Facts and Procedural Background 25 Plaintiff was born on October 20, 1967. He completed the 26 eleventh grade and has no past relevant work. (Administrative 27 Record (“AR”) at 15, 83, 137.) Plaintiff filed an application for 28 1 Dockets.Justia.com 1 SSI on February 23, 2006,1 alleging disability as of April 14, 2 2005, due to a psychological impairment and an injury to his right 3 hand. 4 reconsideration. (AR at 19, 57, 64.) Plaintiff appeared at a 5 hearing before Administrative Law Judge (“ALJ”) F. Keith Varni on 6 July 18, 2007. However, his attorney was not present and the 7 hearing was postponed. (AR at 301-05.) Plaintiff appeared at two 8 subsequent hearings before ALJ Varni on September 24, 2007, and 9 February 13, 2008. (AR at 281-300.) Plaintiff was represented by 10 counsel at both hearings and testified on his own behalf. In 11 addition, vocational expert (“VE”) Joseph Mooney, and Plaintiff’s 12 girlfriend, 13 hearing. (Id.) Plaintiff’s Sherry application McKinley, was denied testified at initially the and February upon 2008 14 ALJ Varni issued an unfavorable decision on March 10, 2008. 15 (AR at 7-17.) The ALJ found that Plaintiff had not engaged in 16 substantial gainful activity since the application date of February 17 23, 2006, and suffered from the following severe impairment: “a 18 muskuloskeletal impairment involving the right hand.” (AR at 12.) 19 As discussed in detail below, the ALJ found that Plaintiff did not 20 have a severe mental impairment within the meaning of the Social 21 Security Act. Plaintiff's severe hand impairment did not meet the 22 requirements of a listed impairment found in 20 C.F.R. Part 404, 23 Subpart P, Appendix 1. The ALJ concluded that Plaintiff had no past 24 25 26 27 28 1 The record indicates that Plaintiff filed a prior application on June 9, 2005, which was denied initially and upon reconsideration. (AR at 18, 84.) It appears Plaintiff did not further pursue that application, and both parties agree that the SSI application at issue in this lawsuit was filed on February 23, 2006. (Joint Stip. at 2.) 2 1 relevant 2 ("RFC") to perform light work2 with the following modifications: work, but retained the residual functional capacity 3 [He can engage in] only occasional handling, fingering, 4 and pushing/pulling with the right upper extremity. He 5 can frequently (1/3 to 2/3 of the work day) feel with the 6 right upper extremity. He can frequently crawl and climb 7 stairs/ramps but can only occasionally climb ladders, 8 ropes, 9 unprotected heights; 10 parts; operate 11 nonexertional limitations with the left upper extremity. 12 (AR at 13.) Finally, the ALJ determined that Plaintiff was not 13 disabled because there were a significant number of jobs Plaintiff 14 could perform in the national and local economy based on the 15 testimony of the VE. (AR at 14-16.) and and scaffolds. He can work a frequently: around motor moving, vehicle. work at mechanical There are no 16 The Appeals Council denied review on February 17, 2010, (AR at 17 2-4), and Plaintiff commenced this action on March 15, 2010. 18 Plaintiff argues the ALJ erred by (1) finding that his mental 19 impairment 20 determination; (2) improperly disregarding the lay testimony of 21 Plaintiff’s girlfriend; and (3) concluding that Plaintiff retains 22 the residual functional capacity to perform work in the national was not severe at step two of the disability 23 24 25 26 27 28 2 Light work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects up to 10 pounds...[A] job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404.1567(b). 3 1 economy.3 (Joint Stip. at 2-3.) Plaintiff asks the Court to reverse 2 the ALJ’s decision and order an award of benefits, or, in the 3 alternative, remand for further proceedings. The Commissioner 4 requests that the ALJ's decision be affirmed. 5 6 7 II. Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner’s 9 decision must be upheld unless “the ALJ’s findings are based on 10 legal error or are not supported by substantial evidence in the 11 record as a whole.” Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 12 1999); 13 Substantial evidence means more than a scintilla, but less than a 14 preponderance; it is evidence that a reasonable person might accept 15 as adequate to support a conclusion. Valentine v. Comm'r Soc. Sec. 16 Admin., 574 F.3d 685, 690 (9th Cir. 2009); Lingenfelter v. Astrue, 17 504 F.3d 1028, 1035 (9th Cir. 2007); Robbins v. Soc. Sec. Admin., 18 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 19 evidence supports a finding, the reviewing court “must review the 20 administrative record as a whole, weighing both the evidence that 21 supports and the evidence that detracts from the Commissioner’s 22 conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). 23 “If the 24 the ALJ’s conclusion,” the reviewing court “may not substitute its 25 judgment for that of the ALJ.” Robbins, 466 F.3d at 882. Parra decision v. evidence to Astrue, can deny 481 benefits. F.3d support 742, either 746 The Commissioner’s (9th affirming Cir. 2007). or reversing 26 27 28 3 Plaintiff initially contended that the ALJ improperly rejected his credibility. However, that claim was withdrawn. (Joint Stip. at 21-26.) 4 1 2 III. Discussion A. The ALJ’s Conclusion That Plaintiff Does Not Suffer From 3 A Mental Impairment Is Supported By Substantial Evidence 4 At step two of the sequential analysis, the ALJ found that 5 Plaintiff’s mental impairment was not severe within the meaning of 6 the Social Security Act. (AR at 12-13.) The ALJ reviewed the mental 7 health records submitted by Plaintiff and concluded that they do 8 not demonstrate “any mental limitations that would preclude the 9 performance of simple, unskilled work activities.” (AR at 12.) 10 Plaintiff argues that these conclusions are not supported by 11 substantial evidence. 12 A claimant for disability benefits has the burden of producing 13 evidence to demonstrate that he or she was disabled within the 14 relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th 15 Cir. 1995). The existence of a severe impairment is demonstrated 16 when the evidence establishes that an impairment has more than a 17 minimal effect on an individual’s ability to perform basic work 18 activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996); 19 20 C.F.R. §§ 404.1521(a), 416.921(a). The regulations define “basic 20 work activities” as “the abilities and aptitudes necessary to do 21 most jobs,” which include physical functions such as walking, 22 standing, 23 hearing 24 instructions; responding appropriately in a work setting; and 25 dealing with changes in a work setting. 20 C.F.R. § 404.1521(b). 26 The inquiry at this stage is “a de minimis screening device to 27 dispose of groundless claims.” Smolen, 80 F.3d at 1290 (citing 28 Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987)). An impairment is sitting, and pushing, speaking; carrying; understanding 5 capacities and for remembering seeing, simple 1 not severe only if it is a slight abnormality with “no more than a 2 minimal effect on an individual’s ability to work.” See SSR 85-28; 3 Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988). 4 Here the ALJ relied on the opinion of consultative examining 5 psychiatrist Linda M. Smith, M.D., to conclude that Plaintiff does 6 not have a severe mental impairment. A consultative examining 7 physician’s opinion amounts to substantial evidence supporting a 8 finding if it is based on independent clinical findings. Orn v. 9 Astrue, 495 F.3d 625, 632-33 (9th Cir. 2007); Andrews v. Shalala, 10 53 F.3d 1035, 1041 (9th Cir. 1995) (holding that where treating 11 physician’s 12 opinion based on independent findings, “it is then solely the 13 province of the ALJ to resolve the conflict.”). “Independent 14 clinical findings can be either (1) diagnoses that differ from 15 those offered by another physician and are supported by substantial 16 evidence, or (2) findings based on objective medical tests that the 17 treating physician has not herself considered.” Orn, 495 F.3d at 18 632 (internal citations omitted). 19 On opinion November is 20, contradicted 2007, Dr. by Smith examining conducted physician’s a complete 20 psychiatric 21 Commissioner. (AR at 158-67.) Dr. Smith reviewed Plaintiff’s mental 22 health records from February 2006, December 2006, and January 23 through August 2007 and interviewed Plaintiff about his mental 24 health history. Dr. Smith found Plaintiff to be “not credible at 25 all” when describing his history and symptoms because he was vague, 26 inconsistent, evasive, and could not describe the symptoms he 27 reported in his medical records. (Id. at 158-61.) Dr. Smith noted 28 that the friend who accompanied Plaintiff to the appointment filled evaluation of Plaintiff 6 at the request of the 1 out the mental health questionnaire, and that Plaintiff deferred to 2 “whatever she wrote down” when he could not answer Dr. Smith’s 3 questions. (Id. at 161-62.) 4 Dr. Smith reviewed Plaintiff’s medications. Plaintiff reported 5 taking Wellbutrin and Lexapro and showed Dr. Smith bottles that he 6 picked up from the drug store the day before. Plaintiff also 7 produced a bottle of Seroquel with a 25-day supply from August 23, 8 2007. There were still three pills left in the bottle, indicating 9 to Dr. Smith that Plaintiff was not compliant with medication. 10 (Id.) Plaintiff reported that he could perform activities of daily 11 living, such as dressing himself, going to the store, walking, 12 watching television, and making snacks and “easy food if his arm is 13 okay.” His friend reported that he does not relate well to people 14 and cannot handle cash because he might misplace it. (Id. at 163.) 15 Dr. Smith conducted a full mental status exam during which 16 Plaintiff did not volunteer information spontaneously and was 17 “barely superficially cooperative.” (Id. at 163.) She found no 18 evidence of his claims, significant evidence of exaggeration and 19 manipulation, and concluded: “The entire interview appears to have 20 been staged.” (Id. at 163-64.) Plaintiff’s thought process was 21 coherent and organized and his speech was normal. Dr. Smith found 22 no evidence of a thought disorder or psychosis, noting that 23 Plaintiff was “relevant and non-delusional...[with] no bizarre or 24 psychotic thought content.” (Id.) Plaintiff did not have suicidal 25 or homicidal ideation. Dr. Smith noted that Plaintiff “claims to 26 have every type of hallucination I ask him about which is very rare 27 outside of some cases of organicity, which [Plaintiff] does not 28 have.” (Id.) Plaintiff did not appear to be responding to internal 7 1 stimuli during the interview. 2 Based on the exam as well as tests of Plaintiff’s memory, 3 concentration, fund of knowledge, insight and judgment, Dr. Smith 4 concluded that Plaintiff did not have a diagnosable mental health 5 condition and was not functionally impaired in his ability to work 6 as a result of any mental impairment. (Id. at 164-66.) She found no 7 evidence supporting his claims, and noted that the symptoms he had 8 reported in his prior mental health records were not psychotic, and 9 were only “sometimes seen with stress or depression, but actually, 10 I don’t believe that any of this is credible taking his entire 11 presentation into account.” (Id.) 12 The ALJ properly relied on Dr. Smith’s report, which is both 13 based on independent clinical findings and supported by substantial 14 evidence. Indeed, Dr. Smith’s report contains the most thorough and 15 detailed evaluation of Plaintiff in the entire record; the other 16 mental health records consist primarily of brief notes of the 17 symptoms reported by Plaintiff upon intake, medication refill 18 appointment, and checkbox forms. (See AR at 173-93.) The ALJ also 19 noted that Dr. Smith’s report is consistent with the opinion of 20 state agency reviewing psychologists, who concluded that Plaintiff 21 does 22 limitations. (AR at 12-13, 239-54.) The ALJ’s conclusion that the 23 mental health treatment records from the Pheonix Clinic reflect 24 routine outpatient treatment was reasonable, and his rejection of 25 Dr. Raval’s opinion about Plaintiff’s mental health was proper 26 because Dr. Raval is an osteopath and offered an opinion outside of 27 his area of expertise. (AR at 13.) Accordingly, the ALJ’s finding 28 of no severe mental impairment is supported by “more than a not suffer from a severe 8 impairment and had no mental 1 scintilla” of evidence such that this Court “may not substitute its 2 judgment for that of the ALJ.” Robbins, 466 F.3d at 882. 3 Finally, Plaintiff’s brief argument that the ALJ abrogated his 4 duty to develop the record is unpersuasive. Plaintiff asserts that 5 the ALJ was required to seek out mental health treatment records 6 from August 2007 through February 2008 because Plaintiff answered 7 affirmatively when asked by his counsel at the February 2008 8 hearing if he was currently seeing a psychiatrist. He argues that 9 in the absence of records between those dates, the record was 10 “insufficient to determine disability.” (Joint Stip. at 10-11.) 11 Although the ALJ is required to “develop the record fully and 12 fairly and to ensure that the claimant's interests are considered, 13 even when the claimant is represented by counsel," that duty is 14 triggered “only when there is ambiguous evidence or when the record 15 is inadequate to allow for proper evaluation of the evidence." 16 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir.2001). 17 Under the circumstances of this case, it was not necessary for 18 the ALJ to further develop the record. As discussed above, the ALJ 19 had adequate evidence with which to make a step two determination 20 regarding Plaintiff’s mental impairment. The ALJ did not find that 21 the medical records or opinions of the treating, examining, and 22 reviewing physicians were ambiguous. Instead, the ALJ reviewed the 23 differing opinions and adopted Dr. Smith’s opinion, which was 24 supported by substantial evidence. In addition, it is worth noting 25 that in the two years since the ALJ issued his decision, Plaintiff 26 has not to come forward with any new information suggesting that 27 the record was ambiguous or not fully developed at the time of 28 decision. As such, the ALJ did not fail to develop the record, and 9 1 relief is not warranted on this claim of error. 2 B. Inconsistencies Between The Vocational Expert’s Testimony And The DOT Require Remand4 3 4 Plaintiff argues that the VE’s testimony was unreliable 5 because the VE (1) did not explain inconsistencies between jobs 6 identified 7 functional limitations identified in the hypothetical, and (2) 8 provided ambiguous testimony about the exact number of available 9 jobs that Plaintiff could perform. (Joint Stip. at 30-33.) For the 10 in the Dictionary of Occupational Titles and the reasons stated below, the Court agrees. 11 At the hearing, the ALJ asked the VE whether jobs existed for 12 a 13 experience, and a residual functional capacity to perform simple, 14 routine, 15 restrictions to the right upper extremity, limiting reaching and 16 handling and fingering to occasional.” (AR at 289.) Based on these 17 restrictions, the VE responded that such a person would be capable 18 of performing the jobs of outside deliverer, ticket taker, and 19 counter clerk. (Id. at 289-90.) The ALJ continued: person of Plaintiff’s repetitive, background, non-public, age, light education, work with work “minimal 20 ALJ: What’s the number of those jobs in the regional economy 21 of 22 Counties? 23 VE: In the broad regional economy, they exist in excess of 24 2,000 in several regions, the national economy is up to Los Angeles, Orange, Riverside, and San Bernardino 25 26 27 28 4 The Court has not reached the question of whether the ALJ improperly rejected the testimony of lay witness Sherry McKinley. While the issue appears to be close, the ALJ may revisit this issue on remand. If he again discounts Ms. McKinley’s testimony on remand, he should be more specific about the reasons for doing so. 10 1 2 20,000. (AR at 289-90.) 3 Plaintiff has provided the name, DOT number, and description 4 of the outside deliverer (DOT 230.667-010) and ticket taker (DOT 5 737.687-182) positions and points out that they call for frequent 6 handling, 7 hypothetical to only occasional handling with the right hand. 8 (Joint 9 inconsistencies between Plaintiff’s RFC and the counter clerk 10 position (DOT 249.366-010) and assumed for purposes of argument 11 that there were none. (Id.) which Stip. is at inconsistent 30-31.) with Plaintiff the did limitation not in identify the any 12 Although evidence provided by a VE is generally expected to be 13 consistent with the DOT, "[n]either the DOT nor the VE . . . 14 evidence automatically ‘trumps' when there is a conflict." SSR 15 00-4p; Massachi v. Astrue, 486 F.3d 1149, 1153 (9th Cir. 2007). 16 Rather, the DOT raises a rebuttable presumption as to a job 17 classification, and "[a]n ALJ may rely on expert testimony which 18 contradicts the DOT, but only insofar as the record contains 19 persuasive evidence to support the deviation." Johnson v. Shalala, 20 60 F.3d 1428, 1435 (9th Cir. 1995); Massachi, 486 F.3d at 1153 21 (when a conflict between a VE's testimony and the DOT arises, the 22 ALJ must make an inquiry with the VE and then determine whether the 23 VE's "explanation for the conflict is reasonable and whether a 24 basis exists for relying on the expert rather than the [DOT]"). 25 Here, it appears that neither the ALJ nor the VE recognized the 26 inconsistency, and there is no explanation for the conflict. 27 Accordingly, the ALJ erred when he relied on the VE’s testimony 28 regarding Plaintiff’s ability to perform the outside deliverer and 11 1 ticket taker positions. 2 Moreover, despite the fact that the counter clerk position 3 identified by the VE is consistent with the DOT and the limitations 4 in the hypothetical, the VE did not identify the number of jobs 5 available in that specific category. Instead, the VE “lump[ed] all 6 three jobs” together when he testified that “they exist in excess 7 of 2,000 in several regions, the national economy is up to 20,000.” 8 (Joint Stip. at 33; AR at 289-90.) Thus, remand is necessary 9 because the Court cannot determine how many counter clerk positions 10 are available or assess whether that number is significant within 11 the 12 regulations. meaning of the Social Security Act and corresponding 13 14 IV. Conclusion 15 For the reasons stated above, the decision of the Commissioner 16 is reversed and remanded for proceedings consistent with this 17 opinion. 18 19 Dated: October 15, 2010 20 21 ______________________________ Marc L. Goldman United States Magistrate Judge 22 23 24 25 26 27 28 12
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