Brenda Barrett v. Michael J Astrue, No. 5:2010cv01358 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. Brenda Barrett filed this action on September 9, 2010. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on September 29 and Octobe r 1, 2010. (Dkt. Nos. 7, 9.) On May 23, 2011, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The court has taken the matter under submission without oral argument.Having reviewed the entire file, the court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (mp)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRENDA BARRETT, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-1358 AGR MEMORANDUM OPINION AND ORDER 18 Brenda Barrett filed this action on September 9, 2010. Pursuant to 28 19 U.S.C. § 636(c), the parties consented to proceed before the magistrate judge on 20 September 29 and October 1, 2010. (Dkt. Nos. 7, 9.) On May 23, 2011, the 21 parties filed a Joint Stipulation ( JS ) that addressed the disputed issues. The 22 court has taken the matter under submission without oral argument. Having reviewed the entire file, the court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// 1 I. 2 PROCEDURAL BACKGROUND 3 On November 30, 2007, Barrett filed an application for disability insurance 4 benefits and supplemental security income alleging a disability onset date of June 5 1, 2004. Administrative Record ( AR ) 9. The application was denied initially and 6 upon reconsideration. Id. Barrett requested a hearing before an Administrative 7 Law Judge ( ALJ ). AR 90. On October 22, 2009, the ALJ conducted a hearing 8 at which Barrett and a vocational expert testified. AR 22-70. On December 16, 9 2009, the ALJ issued a decision denying benefits. AR 6-18. On August 11, 10 2010, the Appeals Council denied the request for review. AR 1-3. This action 11 followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court reviews the Commissioner s 15 decision to deny benefits. The decision will be disturbed only if it is not supported 16 by substantial evidence, or if it is based upon the application of improper legal 17 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 18 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 Substantial evidence means more than a mere scintilla but less than a 20 preponderance it is such relevant evidence that a reasonable mind might 21 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 22 determining whether substantial evidence exists to support the Commissioner s 23 decision, the court examines the administrative record as a whole, considering 24 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 25 evidence is susceptible to more than one rational interpretation, the court must 26 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 27 /// 28 /// 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Barrett met the insured status requirements through 12 The ALJ s Findings September 21, 2006. AR 11. 13 Barrett has the following severe impairments: asthma, bipolar disorder, 14 polysubstance abuse, and limited vision in one eye. Id. She has the residual 15 functional capacity to perform less than a full range of light work. AR 13. She 16 is limited to occasional performance of postural activities; no ladders, ropes, 17 scaffolds, hazardous machinery, or heights; [she] needs to work in a clean air 18 environment; she can only perform non-complex work that is object oriented; she 19 is limited to non public work with occasional contact with others; and [she is 20 limited to] work that permits [her] to only see colors in one eye. Id. 21 Barrett is unable to perform her past relevant work. AR 17. However, 22 there are jobs that exist in significant numbers in the national economy that the 23 claimant can perform such as paramutual ticket taker, officer helper and routing 24 clerk. AR 17-18. 25 C. 26 Barrett argues the ALJ improperly rejected the opinions of her treating Treating Psychiatrist 27 psychiatrist, Dr. Eklund and her treating therapist, Ms. Miller, both of whom 28 treated her at the San Bernardino County Department of Behavioral Health. 3 1 An opinion of a treating physician is given more weight than the opinion of 2 a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir.2007). When, 3 as here, a treating physician s opinion is contradicted by another doctor, the ALJ 4 may not reject this opinion without providing specific and legitimate reasons 5 supported by substantial evidence in the record. This can be done by setting out 6 a detailed and thorough summary of the facts and conflicting clinical evidence, 7 stating his interpretation thereof, and making findings. Id. at 632 (citations 8 omitted and internal quotations omitted). When the ALJ declines to give a 9 treating physician s opinion controlling weight, the ALJ considers several factors, 10 including the following: (1) the length of the treatment relationship and frequency 11 of examination;1 (2) the nature and extent of the treatment relationship;2 (3) the 12 amount of relevant evidence supporting the opinion and the quality of the 13 explanation provided; (4) the consistency with the record as a whole; and (5) the 14 specialty of the physician providing the opinion. See Id. at 631; 20 C .F.R. § 15 404.1527(d)(1)-(6). When there is conflicting medical evidence, the Secretary 16 must determine credibility and resolve the conflict. Thomas v. Barnhart, 278 17 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted). 18 The ALJ found that Barrett s treatment records do not contain objective 19 evidence that establishes [she] has been unable to perform work activity for any 20 twelve month period of time. AR 15. In addition, none of the treatment providers 21 opined that Barrett was unable to work for any twelve month period of time. AR 22 16. The ALJ noted that Barrett s records and testimony has established [she] 23 24 25 26 27 28 1 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source s medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source s opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(d)(2)(i). 2 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source s medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii). 4 1 was able to perform work activity in 2007 and 2008. The claimant testified she 2 stopped working due to her move not because of an inability to perform work 3 activity. AR 15. The Global Assessment of Functioning ( GAF ) scores from 4 both providers were inconsistent with the claimant s records and activities of 5 daily living. Id. 6 The ALJ s reasons for discounting the opinions of Dr. Eklund and Ms. Miller 7 are supported by substantial evidence. Dr. Eklund filled out a mental status 8 examination form on January 9, 2008. AR 259-60. Barrett complained of recent 9 paranoia, insomnia, anxiety, and auditory hallucinations. She told Dr. Eklund she 10 could not work because she could not leave the house and felt confused. AR 11 259. She had been off of her medications for one year. Id. Dr. Eklund found that 12 her appearance, behavior and speech were within normal limits. AR 260. Her 13 mood was depressed and anxious, she had auditory hallucinations, and her 14 thought process was tangential and paranoid/persecutory. Id. He diagnosed her 15 with schizoaffective disorder, bipolar type, and a history of marijuana dependence 16 in sustained remission. Id. Her current GAF score was 40. Id. A GAF score of 17 31 to 40 indicates some impairment in reality testing or communication (e.g., 18 speech is at times illogical, obscure, or irrelevant) or major impairment in several 19 areas, such as work or school, family relations, judgment, thinking, or mood (e.g., 20 depressed man avoids friends, neglects family, and is unable to work; child 21 frequently beats up younger children, is defiant at home, and is failing at school). 22 Diagnostic and Statistical Manual of Mental Disorders (4th ed. 2000) ( DSM-IV ) 23 at 34. Dr. Eklund did not provide specific opinions as to Barrett s ability to 24 perform work-related activities. 25 Previously, on November 29, 2007, Ms. Miller filled out intake forms. AR 26 266-72, 298-305. She noted Barrett was not taking medications at that time. AR 27 303. Ms. Miller diagnosed mood disorder, not otherwise specified, and cannabis 28 abuse. She opined Barrett had a GAF score of 45, and a high GAF score of 50 5 1 over the past year. AR 298, 300. A GAF score of 41 to 50 indicates serious 2 symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) 3 or any serious impairment in social, occupational, or school functioning (e.g., no 4 friends, unable to keep a job). DSM-IV at 34. Ms. Miller did not provide specific 5 opinions as to Barrett s ability to perform work-related activities. 6 On October 22, 2009, Barrett testified that she last worked in 2007 to 2008 7 as an inpatient homecare provider or home attendant taking care of a patient in 8 his home. AR 25-26, 30, 64. She did not know how many days a week, how 9 many months she worked3 or how much money she made at this job, but 10 earnings records indicated she made $6,318.00 in 2007 and $8,977.00 in 2008. 11 AR 25-26, 31, 155. Her duties included laundry, cooking and cleaning. AR 32. 12 She drove the patient and lifted more than 20 pounds while working. AR 32-33. 13 She stopped working at this job because she moved. AR 33. 14 Barrett testified she had seen Dr. Eklund for four years. AR 49-50. She 15 used to hear voices, and the last time she heard them was when she was off her 16 medication. AR 51. She takes Seroquel and Paxil, which seem to help. Her 17 psychological condition has improved with medication. AR 46. She cannot work 18 because she freezes up around people; she does not like being around people; 19 and she does not function right. AR 34. However, she did not know what would 20 keep her from working in a job that did not require her to be around people. AR 21 36. She thought she would be okay doing a job similar to putting shoes in a box 22 all day long, working by herself but around other people.4 AR 36-37. 23 The ALJ properly found that the Dr. Eklund s January 9, 2008 opinion and 24 25 26 27 28 3 Barrett also testified that in 2008 she worked probably five or six months maybe. I m not sure exactly. AR 26. 4 As noted above, the ALJ determined that Barrett could performed only non-public, non-complex work that is object oriented and limited to occasional contact with others. AR 13. He gave great weight to the opinions of Dr. Schrift to make this determination. AR 16-17. 6 1 Ms. Miller s November 29, 2007 opinion were inconsistent with Barrett s earnings 2 records and her testimony indicating she could and, in fact, did work in 2007 and 3 2008 providing inpatient homecare. AR 25-26, 30, 155. She testified that she 4 did laundry, cooked, cleaned, and lifted more than 20 pounds while working. AR 5 32-33. She stopped working because she moved, not because she was unable 6 to perform the work. AR 33. The ALJ provided specific and legitimate reasons to 7 reject the opinions of Dr. Eklund and Ms Miller and their GAF scores as only a 8 snapshot in time and not an indication of [her] overall mental health over a twelve 9 month period. The ALJ did not err. 10 D. Lay Witness Testimony 11 Barrett argues the ALJ failed to provide germane reasons for rejecting the 12 lay witness testimony of her friend, Ms. Gaspelin, who completed a third party 13 function report on August 13, 2008. AR 188-95. 14 The ALJ summarized Ms. Gaspelin s report and concluded that it 15 essentially parrot[s] [Barrett s] function report and testimony. AR 14. The ALJ 16 found her report credible only to the extent it was consistent with his decision. Id. 17 He found that she was Barrett s long-time friend and as such biased, and was 18 not a medical doctor or vocation expert qualified to provide expert evidence as to 19 Barrett s impairments or ability to perform work activities. AR 14-15. 20 An ALJ must take into account lay witness testimony concerning a 21 claimant s ability to work unless the ALJ expressly determines not to and gives 22 reasons germane to each witness for doing so. Parra v. Astrue, 481 F.3d 742, 23 750 (9th Cir. 2007); Stout v. Commissioner, 454 F.3d 1050, 1053 (9th Cir. 2006). 24 However, when an ALJ has provided clear and convincing reasons for rejecting 25 the claimant s testimony, and the lay witness testimony was similar to the 26 claimant s testimony, it follows that the ALJ also gave germane reasons for 27 rejecting the [lay witness ] testimony. Valentine v. Commissioner Social Sec. 28 Admin., 574 F.3d 685, 694 (9th Cir. 2009). Barrett does not challenge the ALJ s 7 1 credibility finding as to Barrett. A comparison of Ms. Gaspelin s report with 2 Barrett s report and testimony supports the ALJ s finding that Ms. Gaspelin s 3 report essentially parrots Barrett s report and testimony. Accordingly, any error 4 was harmless.5 See Stout, 454 F.3d at 1056 ( [W]here the ALJ s error lies in a 5 failure to properly discuss competent lay testimony favorable to the claimant, a 6 reviewing court cannot consider the error harmless unless it can confidently 7 conclude that no reasonable ALJ, when fully crediting the testimony, could have 8 reached a different disability determination. ). 9 IV. 10 ORDER 11 12 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 13 14 DATED: September 13, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Contrary to the ALJ s finding, lay witness testimony may be introduced to show the severity of a claimant s impairment(s) and how it affects his ability to work. Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) ( A lay person, Bruce s wife, though not a vocational or medical expert, was not disqualified from rendering an opinion as to how her husband s condition affects his ability to perform basic work activities. ). The ALJ s reliance on bias also was not appropriate. [R]egardless of whether they are interested parties, friends and family members in a position to observe a claimant's symptoms and daily activities are competent to testify as to [his or] her condition. Valentine, 574 F.3d at 694 (citation omitted). 8
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