Shamah Moody v. Michael J. Astrue, No. 5:2010cv01259 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See order for details. (hr)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SHAMAH MOODY, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 10-1259 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On September 1, 2010, plaintiff Shamah Moody ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 7, 2010 Case Management Order, ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On August 15, 2008, plaintiff filed applications for Supplemental Security 7 Income benefits and Disability Insurance Benefits. (Administrative Record 8 ( AR ) 9, 122, 125). Plaintiff asserted that he became disabled on January 1, 9 2000, due to schizophrenia, severe depression and anxiety. (AR 150). The ALJ 10 examined the medical record and heard testimony from plaintiff (who was 11 represented by counsel), a medical expert and a vocational expert on February 24, 12 2010. (AR 22). 13 On April 6, 2010, the ALJ determined that plaintiff was disabled through 14 the date of the decision, but was not eligible to receive benefits because plaintiff s 15 substance use disorder was a contributing factor material to any disability caused 16 by plaintiff s severe impairments. (AR 10, 21). Specifically, the ALJ found: 17 (1) plaintiff suffered from the following severe impairments: depressive disorder 18 not otherwise specified, borderline intellectual functioning, and polysubstance 19 abuse (alcohol and marijuana) (AR 12); (2) plaintiff s impairments, including the 20 substance use disorder, meet Listings 12.04 and 12.09 (AR 12-14); (3) plaintiff 21 would continue to suffer from a severe impairment or combination of impairments 22 if he discontinued substance use (AR 14); (4) if plaintiff discontinued substance 23 use he would not suffer from an impairment or combination of impairments that 24 would meet or medically equal any of the listed impairments (AR 14-15); (5) if 25 26 1 The harmless error rule applies to the review of administrative decisions regarding 27 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 28 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 1 plaintiff discontinued substance use he would retain the residual functional 2 capacity to perform less than a full range of light work (20 C.F.R. § 404.1567(b), 3 416.967(b)) with additional exertional and nonexertional limitations (AR 15);2 4 (6) plaintiff had no past relevant work (AR 19); (7) if plaintiff discontinued 5 substance use there are jobs that exist in significant numbers in the national 6 economy that plaintiff could perform, specifically small items assembly and 7 production inspector, both limited to items weighing less than one pound (AR 20); 8 and (8) plaintiff s allegations regarding his limitations were not credible to the 9 extent they were inconsistent with the ALJ s residual functional capacity 10 assessment (AR 17). 11 The Appeals Council denied plaintiff s application for review. (AR 1). 12 III. APPLICABLE LEGAL STANDARDS 13 A. 14 To qualify for disability benefits, a claimant must show that he is unable to Sequential Evaluation Process 15 engage in any substantial gainful activity by reason of a medically determinable 16 physical or mental impairment which can be expected to result in death or which 17 has lasted or can be expected to last for a continuous period of at least twelve 18 months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 19 § 423(d)(1)(A)). The impairment must render the claimant incapable of 20 performing the work he previously performed and incapable of performing any 21 other substantial gainful employment that exists in the national economy. Tackett 22 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 23 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 24 sequential evaluation process: 25 26 2 The ALJ determined that plaintiff: (i) could be on his feet for one hour in an eight-hour 27 workday; (ii) had no sitting limitation; (iii) could lift 20 pounds occasionally and 10 pounds frequently; (iv) could not crawl, run, walk over uneven surfaces or operate foot pedals; and (v) 28 was limited to simple repetitive tasks in a non-public setting. (AR 15). 3 1 (1) 2 3 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. (2) Is the claimant s alleged impairment sufficiently severe to limit 4 his ability to work? If not, the claimant is not disabled. If so, 5 proceed to step three. 6 (3) Does the claimant s impairment, or combination of 7 impairments, meet or equal an impairment listed in 20 C.F.R. 8 Part 404, Subpart P, Appendix 1? If so, the claimant is 9 disabled. If not, proceed to step four. 10 (4) Does the claimant possess the residual functional capacity to 11 perform his past relevant work? If so, the claimant is not 12 disabled. If not, proceed to step five. 13 (5) Does the claimant s residual functional capacity, when 14 considered with the claimant s age, education, and work 15 experience, allow him to adjust to other work that exists in 16 significant numbers in the national economy? If so, the 17 claimant is not disabled. If not, the claimant is disabled. 18 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 19 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 20 The claimant has the burden of proof at steps one through four, and the 21 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 22 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 23 (claimant carries initial burden of proving disability). 24 B. 25 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 26 benefits only if it is not supported by substantial evidence or if it is based on legal 27 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 28 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 4 1 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 2 mind might accept as adequate to support a conclusion. Richardson v. Perales, 3 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 4 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 5 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 6 To determine whether substantial evidence supports a finding, a court must 7 consider the record as a whole, weighing both evidence that supports and 8 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 9 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 10 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 11 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 12 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 13 IV. DISCUSSION 14 Plaintiff contends that the ALJ failed adequately to evaluate the medical 15 evidence, and that, consequently, the ALJ s decision was not supported by 16 substantial evidence. (Plaintiff s Motion at 5-22). More specifically, plaintiff 17 argues that: (1) the ALJ failed adequately to consider the opinions of a state18 agency reviewing psychiatrist that plaintiff had moderate limitations in mental 19 functioning; (2) the ALJ did not include in his residual functional capacity 20 assessment or in the hypothetical question posed to the vocational expert the state21 agency psychiatrist s opinions related to moderate limitations in plaintiff s mental 22 functioning; and (3) as a result, the vocational expert s testimony, which the ALJ 23 adopted, did not account for such moderate mental limitations, and therefore could 24 not serve as substantial evidence supporting the ALJ s determination that plaintiff 25 can perform other work that exists in significant numbers in the national economy. 26 (Plaintiff s Motion at 5-22). The Court concludes that a reversal or remand on any 27 of these grounds is not warranted. 28 /// 5 1 A. 2 In Social Security cases, courts employ a hierarchy of deference to medical Pertinent Law 3 opinions depending on the nature of the services provided. Courts distinguish 4 among the opinions of three types of physicians: those who treat the claimant 5 ( treating physicians ) and two categories of nontreating physicians, namely 6 those who examine but do not treat the claimant ( examining physicians ) and 7 those who neither examine nor treat the claimant ( nonexamining physicians ). 8 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 9 treating physician s opinion is entitled to more weight than an examining 10 physician s opinion, and an examining physician s opinion is entitled to more 11 weight than a nonexamining physician s opinion.3 See id. 12 The Commissioner may reject the opinion of a nonexamining physician by 13 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 14 1240, 1244 (9th Cir. 1998). However, while not bound by findings made by 15 State agency or other program physicians and psychologists, [the ALJ] may not 16 ignore these opinions and must explain the weight given to the opinions in their 17 decisions. SSR 96-6p; see also 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) 18 ( State agency medical and psychological consultants and other program 19 physicians and psychologists are highly qualified physicians and psychologists 20 who are also experts in Social Security disability evaluation. Therefore, 21 administrative law judges must consider findings of State agency medical and 22 psychological consultants or other program physicians or psychologists as opinion 23 evidence. . . . ); Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) ( An 24 ALJ is required to consider as opinion evidence the findings of state agency 25 26 3 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to 27 draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment 28 relationship and frequency and nature of the contact) (citation omitted). 6 1 medical consultants; the ALJ is also required to explain in his decision the weight 2 given to such opinions. ).4 3 B. 4 On November 21, 2008, Dr. H. Skopec, a state-agency reviewing Pertinent Facts 5 psychiatrist, completed a Mental Residual Functional Capacity Assessment form 6 which reflects that plaintiff was moderately limited in his ability to (i) understand 7 and remember detailed instructions; (ii) carry out detailed instructions; 8 (iii) maintain attention and concentration for extended periods; (iv) work in 9 coordination with or proximity to others without being distracted by them; 10 (v) complete a normal workday and workweek without interruptions from 11 psychologically based symptoms and to perform at a consistent pace without an 12 unreasonable number and length of rest periods; (vi) interact appropriately with 13 the general public; (vii) get along with coworkers or peers without distracting 14 them or exhibiting behavioral extremes; and (viii) maintain socially appropriate 15 behavior and to adhere to basic standards of neatness and cleanliness (collectively 16 Dr. Skopec s opinions ). (AR 234-35). 17 A report dated January 8, 2009 reflects that on November 3 and November 18 24, 2008, Dr. Kipp Thom, a state-agency psychologist, performed a psychological 19 assessment of plaintiff which included a mental status evaluation and objective 20 psychological testing.5 (AR 287-93). Based on his examination of plaintiff and 21 the results of the objective testing, Dr. Thom diagnosed plaintiff with borderline 22 intellectual functioning and opined that (i) plaintiff s mental status examination 23 24 25 26 27 28 4 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 5 Dr. Thom administered the following tests: Beck Anxiety Inventory, Beck Depression Inventory II, Miller Forensic Assessment Test, Neurobehavioral Cognitive Status Examination, Rey 15 Item, Rey-Osterrieth Complex Figure Test, Rotter s Incomplete Sentence Blank, Thematic Apperception Test, Wechsler Adult Intelligence Scale-III, and Wide Range Achievement Test 4th Edition. (AR 298). 7 1 was a relatively benign but plaintiff was mildly impaired in reasoning and 2 judgment; (ii) plaintiff s overall level of attention and memory was within normal 3 limits; and (iii) plaintiff would benefit from job training. (AR 18, 298, 301-02). 4 As the ALJ notes, there is no indication that plaintiff was using drugs or alcohol 5 when the assessment was being conducted. (AR 18, 296-302). 6 C. 7 Contrary to plaintiff s contention, the ALJ adequately considered Dr. Analysis 8 Skopec s opinions and, to the extent he rejected such opinions, the ALJ did so 9 based on specific evidence in the medical record. 10 First, although the ALJ stated that he gave little weight to Dr. Skopec s 11 opinions because they rely on a prior ALJ s decision, in essence the ALJ 12 properly rejected Dr. Skopec s opinions because they did not constitute significant 13 probative evidence of plaintiff s current limitations. (AR 18-19); cf. Vincent v. 14 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (An ALJ must provide an 15 explanation only when he rejects significant probative evidence. ) (citation 16 omitted). In a decision dated July 22, 2008, a different administrative law judge 17 found that plaintiff could perform a full range of work at all exertional levels with 18 certain nonexertional limitations. (AR 9, 61-67). In a November 21, 2008 case 19 analysis, Dr. Skopec agreed that there should be [n]o significant changes made 20 to the prior ALJ s decision, and that as of that date, plaintiff s file contained no 21 new allegations or findings. (AR 248-49). Therefore, the current ALJ reasonably 22 concluded that Dr. Skopec s opinions which were based solely on the doctor s 23 review of the medical evidence in plaintiff s file on November 21, 2008 were not 24 probative of plaintiff s current mental abilities which include additional 25 limitations related to plaintiff s new diagnosis of borderline intellectual 26 functioning reflected in Dr. Thom s January 8, 2009 report. (AR 18-19). 27 In addition, substantial evidence supports the ALJ s rejection of Dr. 28 Skopec s opinions as failing to account for the effects of plaintiff s polysubstance 8 1 abuse. (AR 14, 19). The medical records that Dr. Skopec reviewed on November 2 21, 2008, contain little evidence of plaintiff s drug and alcohol use. Most notably, 3 plaintiff s own treating psychiatrist opined that he found no evidence of any drug, 4 alcohol or medication abuses [by plaintiff]. 6 (AR 304). In addition, the ALJ 5 concluded that when plaintiff was using drugs and alcohol, plaintiff had marked 6 restrictions in social functioning and in concentration, persistence, or pace. (AR 7 13). The ALJ based this conclusion on plaintiff s own testimony (i.e. that, when 8 [plaintiff] was using drugs and alcohol, he was running amuck and doing things 9 that caused him to go to jail and to be hospitalized ) and on testimony from a 10 medical expert who opined that many of plaintiff s mental difficulties were 11 associated with plaintiff s drug use. (AR 13-14, 36-44, 53-54). In contrast, Dr. 12 Skopec s opinions reflect only moderate limitations in plaintiff s mental abilities. 13 (AR 234-35). 14 Since the ALJ properly rejected Dr. Skopec s opinions, the ALJ did not err 15 in omitting such opinions from his residual functional capacity assessment and the 16 hypothetical question posed to the vocational expert, and consequently, plaintiff 17 fails to demonstrate that the vocational expert s testimony did not constitute 18 substantial evidence supporting the ALJ s determination that plaintiff could 19 perform other work that exists in significant numbers in the national economy. 20 Accordingly, the Court concludes that a reversal or remand is not warranted 21 on any of plaintiff s grounds. 22 /// 23 /// 24 /// 25 /// 26 27 28 6 Although expressed in a letter dated February 2010, such opinion was based on the psychiatrist s treatment of plaintiff which is reflected in medical records that Dr. Skopec considered as part of his review. (AR 219-29, 304). 9 1 V. CONCLUSION 2 For the foregoing reasons, the decision of the Commissioner of Social 3 Security is affirmed. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 DATED: May 26, 2011 6 7 8 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.