Billie Jo Flores v. Michael J Astrue, No. 5:2010cv01205 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Oswald Parada: IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (am)
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Billie Jo Flores v. Michael J Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BILLIE JO FLORES, Plaintiff, 12 v. 13 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 ) Case No. EDCV 10-01205-OP ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 17 18 19 The Court1 now rules as follows with respect to the three disputed issues listed in the Joint Stipulation ( JS ).2 20 21 1 22 23 24 25 26 27 28 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before United States Magistrate Judge Oswald Parada in the instant action. (See Dkt. Nos. 8, 9.) 2 As the Court advised the parties in its Case Management Order, the 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 Rule 12(c) of the Federal Rules of Civil Procedure, the Court has determined which party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 Dockets.Justia.com 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues raised by 4 Plaintiff as the grounds for reversal and/or remand are as follows: (1) 5 considered lay witness statements; 6 (2) 7 Whether the ALJ properly considered the treating psychiatrist s opinions; and 8 (3) 9 Whether the ALJ properly considered the side effects of Plaintiff s medications. 10 11 Whether the Administrative Law Judge ( ALJ ) properly (JS at 2.) 12 II. 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 15 decision to determine whether the Commissioner s findings are supported by 16 substantial evidence and whether the proper legal standards were applied. 17 DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence 18 means more than a mere scintilla but less than a preponderance. Richardson 19 v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); 20 Desrosiers v. Sec y of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 21 1988). Substantial evidence is such relevant evidence as a reasonable mind 22 might accept as adequate to support a conclusion. Richardson, 402 U.S. at 23 401 (citation omitted). The Court must review the record as a whole and 24 consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 25 528, 529-30 (9th Cir. 1986). Where evidence is susceptible of more than one 26 rational interpretation, the Commissioner s decision must be upheld. Gallant v. 27 Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). 28 /// 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairments of obesity; 5 uncontrolled diabetes mellitus II with parasthesias of the upper and lower 6 extremities; HCV infection; mood disorder NOS, with bipolar features, 7 psychological reactions to physical conditions; and mixed substance abuse in 8 reported remission. (AR at 11.) The ALJ found that Plaintiff s medically 9 determinable impairments of hypertension and headaches do not cause more 10 than minimal limitation in her ability to perform basic work activities, and 11 therefore are non-severe. (Id.) 12 The ALJ further found that Plaintiff had the residual functional capacity 13 ( RFC ) to perform light work with the following limitations: stand/walk four 14 hours in an eight-hour workday; sit eight hours in an eight-hour workday with 15 normal breaks every two hours; lift/carry twenty pounds occasionally, ten 16 pounds frequently; no climbing ladders, working at heights, or balancing; work 17 environment should be air conditioned; moderate complex tasks, four and five 18 step instructions; relatively habituated setting, precluded from highly fast- 19 paced work; precluded from safety operations that require hyper-vigilance; and 20 no work with the public. (Id. at 13.) 21 Relying on the testimony of the vocational expert ( VE ) to determine 22 the extent to which Plaintiff s limitations eroded the light occupational base, 23 the ALJ asked the VE whether jobs exist in the national economy for an 24 individual with Plaintiff s age, education, work experience, and RFC. (Id. at 25 17.) Based on the testimony of the VE, the ALJ determined Plaintiff could 26 perform the requirements of such light work as Sewing Machine Operator 27 (Dictionary of Occupational Titles ( DOT ) 786.685-030), and sedentary work 28 such as para-mutual ticket checker (DOT 219.587-010). (Id.) 3 1 B. If the ALJ s Failure to Mention the Lay Witness Statement Was 2 Error, the Error Was Harmless. 3 Plaintiff claims that the ALJ erred in ignoring the Third Party Function 4 Report completed by Plaintiff s boyfriend, John Florez. (JS at 3-4, 5-6.) 5 Florez reported in a February 17, 2008, Third Party Function Report that 6 Plaintiff is able to wake her children for school, give her sons their medication 7 for Attention Deficit Hyperactivity Disorder, and help the children with their 8 homework. (AR at 156.) She is able to take care of most of her personal 9 hygiene and is able to do dishes, sweep, and vacuum. (Id. at 157, 158-59.) 10 Plaintiff is able to drive and complete household shopping. (Id. at 159, 160.) 11 According to Florez, Plaintiff is able to walk for thirty minutes before she 12 needs to rest. (Id. at 161.) Florez also reported that Plaintiff is depressed and 13 angry. (Id. at 157.) She no longer plays with her children, becomes mean and 14 screams, and is unable to get along with others. (Id. at 157, 161.) Florez 15 indicated that he must remind Plaintiff to take a shower and brush her teeth, 16 and encourage her to get up to attend doctors appointments. (Id. at 158.) He 17 also must help Plaintiff put on her shirts and socks, and wash her backside. (Id. 18 at 157.) Florez stated that Plaintiff cannot lift anything heavy, cannot reach 19 with her right arm, has difficulty following written and spoken instructions, 20 cannot pay attention for extended periods, cannot handle changes in her 21 routine, and does not like to listen to others. (Id. at 161-62.) 22 Title 20 C.F.R. §§ 404.1513(d) and 416.913(d) provides that, in addition 23 to medical evidence, the Commissioner may also use evidence from other 24 sources to show the severity of [an individual s] impairment(s) and how it 25 affects [her] ability to work, and the Ninth Circuit has repeatedly held that 26 [d]escriptions by friends and family members in a position to observe a 27 claimant s symptoms and daily activities have routinely been treated as 28 competent evidence. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). 4 1 This applies equally to the sworn hearing testimony of witnesses (see Nguyen 2 v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)), as well as to unsworn 3 statements and letters of friends and relatives. See Schneider v. Comm r of 4 Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000). If the ALJ chooses to 5 reject such evidence from other sources, he may not do so without comment. 6 Nguyen, 100 F.3d at 1467. The ALJ must provide reasons that are germane to 7 each witness. Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993). 8 The ALJ s failure to address lay witness testimony generally is not 9 harmless. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991). In failing to 10 address a lay witness statement, the error is harmless only if a reviewing court 11 . . . can confidently conclude that no reasonable ALJ, when fully crediting the 12 testimony, could have reached a different disability determination. Stout v. 13 Comm r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006); see also 14 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006). 15 Here, the ALJ failed to mention the Function Report completed by 16 Plaintiff s boyfriend. A review of that report, however, demonstrates that it is 17 not inconsistent with the ALJ s findings and, therefore, it is not at all clear that 18 the ALJ actually rejected this evidence. Accordingly, there was no need for the 19 ALJ to discuss this evidence. 20 For instance, Mr. Florez s statement that Plaintiff is depressed, performs 21 only some household chores, does not get along well with others, and does not 22 handle changes in routine are reflected in the ALJ s findings that Plaintiff has a 23 mood disorder, should be limited to habituated work, is precluded from fast- 24 paced work, and should not work with the public. His statement that Plaintiff 25 has difficulty following written and spoken instructions, is reflected in the 26 ALJ s limiting Plaintiff to moderate complex tasks with only four and five step 27 instructions. Likewise, Florez s statement that Plaintiff has difficulty lifting is 28 reflected in the ALJ s limiting Plaintiff to lifting no more than ten pounds 5 1 frequently, twenty pounds occasionally. However, even if the ALJ s failure to address the opinions of Plaintiff s 2 3 boyfriend was error, the error is harmless because no reasonable ALJ would 4 have reached a different disability determination having considered it. Stout, 5 454 F.3d at 1056; Robbins, 466 F.3d at 885. This is because the opinions of 6 Plaintiff s boyfriend mirrored the subjective complaints of Plaintiff, which 7 were properly rejected by the ALJ, as discussed in part below. (See Discussion 8 Part III.C.) Accordingly, the Court finds that even if this testimony was fully 9 considered, no reasonable ALJ could have reached a different disability 10 determination. Thus, any error was harmless. 11 C. The ALJ Properly Considered the Opinions of the Treating 12 Psychiatrist. 13 Plaintiff claims that the ALJ failed to properly consider the opinions of 14 her treating psychiatrist, Donna Barrozo, M.D. (JS at 6-7, 9-10.) The Court 15 disagrees. 16 According to the record, Plaintiff first presented to the San Bernardino 17 County Department of Behavioral Health on February 6, 2008. At that time, 18 the intake clinician, Liticia Lindo, R.N./MS, assessed a Global Assessment of 19 Functioning ( GAF ) score of 50.3 (AR at 312.) Plaintiff was then under the 20 care of Dr. Barrozo specifically, from March 12, 2008, to at least July 23, 2009. 21 22 23 24 25 26 27 28 3 A GAF score is the clinician s judgment of the individual s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 ( DSM-IV ) (4th Ed. 2000). A GAF score of 41-50 indicates [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Id. at 34. 6 1 (Id. at 292-306, 313-14.) In her first treatment note on March 12, 2008, Dr. 2 Barrozo suggested a diagnosis of depressive disorder, rule out bipolar disorder, 3 and noted that Plaintiff s GAF score was 50. (Id. at 306.) On March 21, 2008, 4 Dr. Barrozo confirmed an Axis I diagnosis of bipolar disorder, NOS, and again 5 noted a GAF score of 50. (Id. at 305.) 6 In these and other notes, Dr. Barrozo noted Plaintiff s fluctuating mood, 7 fair to poor insight, fair to poor judgment (id.), dysphoria (id. at 303, 314), and 8 blunted affect (id. at 301, 314). She made frequent adjustments to Plaintiff s 9 medications (see, e.g., id. at 313-14), and at different times Plaintiff reported 10 decreased crying spells and irritability (id. at 301), a decrease in hallucinations 11 and anger (id. at 296), and later that her symptoms had improved (id. at 295). 12 In denying Plaintiff s application, the ALJ discussed Dr. Barrozo s 13 findings along with the findings of other physicians, as background for her 14 determination of whether Plaintiff s statements about the intensity, persistence, 15 or functionally limiting effects of pain and other symptoms were supported 16 after the ALJ s consideration of the entire case record. (Id. at 14.) In that 17 respect, the ALJ noted Dr. Barrozo s findings: 18 Donna Barrozo, M.D., from San Bernardino County Mental Health 19 saw the claimant on March 21, 2008, for complaints of frequent 20 mood swings. Claimant reported getting frustrated easily, irritable 21 towards people, history of postpartum depression, and physical abuse 22 by ex-husband. On mental status exam claimant s mood/affect were 23 angry/irritable and at times less fluctuating. Insight/judgment was 24 fair to poor. The diagnosis was bipolar disorder NOS. Claimant had 25 a GAF (global assessment of function) of fifty. 26 27 28 (Id. (citation omitted).) It is well established in the Ninth Circuit that a treating physician s opinion is entitled to special weight, because a treating physician is employed 7 1 to cure and has a greater opportunity to know and observe the patient as an 2 individual. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The 3 treating physician s opinion is not, however, necessarily conclusive as to either 4 a physical condition or the ultimate issue of disability. Magallanes v. Bowen, 5 881 F.2d 747, 751 (9th Cir. 1989). The weight given a treating physician s 6 opinion depends on whether it is supported by sufficient medical data and is 7 consistent with other evidence in the record. 20 C.F.R. §§ 404.1527(d), 8 416.927(d). Where the treating physician s opinion is uncontroverted by 9 another doctor, it may be rejected only for clear and convincing reasons. 10 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Baxter v. Sullivan, 923 F.2d 11 1391, 1396 (9th Cir. 1991). If the treating physician s opinion is controverted, 12 it may be rejected only if the ALJ makes findings setting forth specific and 13 legitimate reasons that are based on the substantial evidence of record. Thomas 14 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Magallanes, 881 F.2d at 751; 15 Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The ALJ can meet this 16 burden by setting out a detailed and thorough summary of the facts and 17 conflicting clinical evidence, stating his interpretation thereof, and making 18 findings. Thomas, 278 F.3d at 957 (citation and quotation omitted). 19 Noting that the ALJ did not expressly accept or reject Dr. Barrozo s 20 findings, Plaintiff argues, therefore, that the ALJ should have articulated 21 specific and legitimate reasons for not accepting the GAF of 50 as assessed by 22 Dr. Barrozo. (JS at 6, 7.) However, an ALJ is not required to discuss every 23 piece of evidence so long as the decision was supported by substantial 24 evidence. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 25 2003). Rather, the ALJ need only explain why significant probative evidence 26 has been rejected. Vincent ex rel. Vincent v. Heckler, 739 F.2d 1393 (9th Cir. 27 1984) (emphasis added). 28 Further, GAF scores reflect the clinician s judgment of the individual s 8 1 overall level of functioning. DSM-IV at 32. They encompass psychological, 2 social and occupational functioning, but are not meant to be a conclusive 3 medical assessment of overall functioning, but rather, are only intended to be 4 useful in planning treatment[,] . . . measuring its impact, and in predicting 5 outcome. Id. The Social Security regulations do not require an ALJ to take 6 the GAF score into account in determining the extent of an individual s 7 disability; while the score may help the ALJ assess the claimant s disability, it 8 is not essential and the ALJ s failure to rely on the GAF does not constitute an 9 improper application of the law. Howard v. Comm r of Soc. Sec., 276 F.3d 10 235, 241 (6th Cir. 2002) (while a GAF score may be of considerable help to the 11 ALJ, it is not essential; the ALJ s failure to reference the GAF score, standing 12 alone, does not make the ALJ s findings inaccurate). 13 Nor was Plaintiff s GAF score essential to the accuracy of the RFC 14 found by the ALJ. The assessed GAF score was a snapshot assessment of 15 Plaintiff s condition at the time she presented to the clinic and after first being 16 seen by Dr. Barrozo, and was based primarily on Plaintiff s self-reports. (See, 17 e.g., AR at 306.) The longitudinal evidence, including later treatment records 18 from Dr. Barrozo indicates Plaintiff s continued improvement with medication 19 and treatment and is not inconsistent with the ALJ s RFC findings. 20 Accordingly, since the ALJ is not required to take the GAF score into account 21 in determining disability or even to mention it, the ALJ s failure to make 22 further mention of Dr. Barrozo s GAF assessment was not error. 23 Moreover, the Court is not persuaded that the ALJ s failure to further 24 mention Plaintiff s GAF score equates with a rejection of Dr. Barrozo s 25 opinions. In fact, in considering Dr. Barrozo s opinion, together with other 26 medical opinions in making her determination as to whether Plaintiff s 27 subjective complaints were supported by the record, the ALJ appears to adopt, 28 9 1 not reject, Dr. Barrozo s findings.4 Based on the foregoing, the Court finds that the ALJ did not err in failing 2 3 to provide specific and legitimate reasons for rejecting Dr. Barrozo s opinion, 4 specifically her GAF score, as she did not in fact reject that opinion, and even 5 if there was error, it was harmless. Curry, 925 F.2d at 1131 (harmless error 6 rule applies to review of administrative decisions regarding disability). 7 D. The ALJ Did Not Improperly Neglect to Consider Side Effects of 8 Plaintiff s Medications. 9 Plaintiff complains that the ALJ failed to give proper consideration to the 10 type, dosage, effectiveness, and side effects of any medications, or to give 11 proper consideration to whether the repeated increases in Plaintiff s medication 12 amounted to episodes of decompensation with respect to Listing 12.00. (JS 13 at 10-11, 14.) The Court disagrees. 14 1. Side Effects. 15 Under Ninth Circuit law, the ALJ must consider all factors that might 16 have a significant impact on an individual s ability to work. Erickson v. 17 Shalala, 9 F.3d 813, 817 (9th Cir. 1993) (quoting Varney v. Sec y of Health & 18 Human Servs., 846 F.2d 581, 585 (9th Cir.), relief modified, 859 F.2d 1396 19 (1988)). Such factors may include side effects of medications as well as 20 subjective evidence of pain. Id. at 818. When the ALJ disregards the 21 claimant s testimony as to subjective limitations of side effects, he must 22 support that decision with specific findings similar to those required for excess 23 pain testimony, as long as the side effects are in fact associated with the 24 claimant s medications. See Varney, 846 F.2d at 545; see also Muhammed v. 25 Apfel, No. C 98-02952 CRB, 1999 WL 260974, at *6 (N.D. Cal. 1999). 26 27 28 4 Plaintiff does not contend the ALJ failed to properly assess her credibility. 10 1 In this case, there was no indication in the medical records that Plaintiff 2 reported any side effects from her medications, other than an upset stomach 3 from the Abilify which caused Dr. Barrozo to discontinue the medication and 4 prescribe Haldol instead. (AR at 300.) In fact, Plaintiff does not even attempt 5 to argue that the record contains evidence that she suffered from any of the 6 listed side effects. Rather, she simply relies on the fact that she was prescribed 7 various medications and at times had the dose increased as support for her 8 argument that the ALJ was required to consider potential side effects merely 9 because the medications were known to cause some adverse reactions. 10 In the absence of evidence that Plaintiff actually suffered from side 11 effects of medication, there was no error in the ALJ s failure to mention the 12 potential side effects. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 13 2005) (ALJ did not err in failing to explicitly address the drowsiness side- 14 effect of [the claimant s] medication in making an RFC determination as the 15 ALJ took into account those limitations for which there was record support that 16 did not depend on [the claimant s] subjective complaints ); Thomas, 278 F.3d 17 at 960 (alleged side effects need not be considered where no objective evidence 18 supported allegations). 19 2. 20 Episodes of decompensation are defined by Listing 12.00(c)(4) as 21 Episodes of Decompensation. follows: 22 Episodes of decompensation are exacerbations of temporary 23 increases in symptoms or signs accompanied by a loss of adaptive 24 functioning, as manifested by difficulties in performing activities of 25 daily living, maintaining social relationships, or maintaining 26 concentration, persistence, or pace . . . . Episodes of decompensation 27 may be inferred from medical records showing significant alteration 28 in medication; . . . or other relevant information in the record about 11 1 the existence, severity, and duration of the episode. 2 20 C.F.R. § 404, Subpart. P, App. 1, § 12.00(C)(4). Further, in order to 3 establish a Listing Level severity of mental impairment, the evidence must 4 establish that Plaintiff experienced repeated episodes of decompensation, each 5 of extended duration. (Id.; see also id. §§ 12.01-12.10.) This means three 6 episodes within one year, or an average of once every four months, each lasting 7 for at least two weeks. Id. § 12.00(C)(4). There is no evidence in the record to show that Plaintiff experienced any 8 9 such episodes of decompensation. The State Agency physician who reviewed 10 the evidence and completed a Psychiatric Review Technique specifically found 11 no episodes of decompensation. (AR at 265.) In fact, on some dates when Dr. 12 Barrozo increased the dosage of Plaintiff s medication, Plaintiff had reported 13 improved, although persistent, symptoms. (Id. at 296, 301, 313-14.) Rather 14 than evidencing decompensation, it is apparent from the record that the 15 increase in the dosage of Plaintiff s medication was routine medication 16 management in an attempt to provide Plaintiff with continued improvement in 17 her symptoms. See Rogers v. Astrue, No. EDCV 09-584-JC, 2010 WL 18 3749286, at *6 (C.D. Cal. Sept. 21, 2010); Maestas v. Astrue, No. EDCV 09- 19 487-MAN, 2010 WL 3199270, at *5 (C.D. Cal. Aug. 10, 2010); Tarver v. 20 Astrue, No. EDCV 08-1416-MLG, 2009 WL 2711888, at *5-6 (C.D. Cal. Aug. 21 25, 2009). 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 12 1 IV. 2 ORDER 3 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment 4 be entered affirming the decision of the Commissioner, and dismissing this 5 action with prejudice. 6 7 8 9 DATED: April 6, 2011 HONORABLE OSWALD PARADA United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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