Cynthia Rubio v. Michael J Astrue, No. 5:2010cv01413 - Document 22 (C.D. Cal. 2011)

Court Description: MEMORANDUM AND OPINION AND ORDER by Magistrate Judge Sheri Pym: IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (am)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CYNTHIA RUBIO, 12 13 14 15 16 17 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant. ) Case No. ED CV 10-1413-SP ) ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) 18 19 I. 20 INTRODUCTION 21 On September 24, 2010, plaintiff Cynthia Rubio filed a complaint against 22 defendant Michael J. Astrue, seeking a review of a denial of supplemental security 23 income ( SSI ) benefits. Both plaintiff and defendant have consented to proceed for 24 all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). 25 The court deems the matter suitable for adjudication without oral argument. 26 Three disputed issues are presented for decision here: (1) whether the 27 Administrative Law Judge ( ALJ ) properly considered the treating physician s 28 opinion; (2) whether the ALJ properly found that plaintiff s mental condition is non- 1 severe; and (3) whether the ALJ properly developed the record. Joint Stipulation 2 ( JS ) at 3-12, 12-15, 15-16, 16-21, 21-23, 23-31, 31-32, 32. 3 Having carefully studied, inter alia, the parties joint stipulation, the 4 administrative record, and the prior decisions of the ALJ and this court, the court 5 concludes that, as detailed herein, plaintiff s claim and each of the issues she raises 6 are foreclosed by the administrative res judicata doctrine. In particular, plaintiff s 7 prior SSI claims were denied because an ALJ found, and this court affirmed, that 8 plaintiff was not disabled as she would not suffer from a severe impairment if she 9 stopped abusing drugs. With her new SSI application, the ALJ found that plaintiff 10 failed to demonstrate changed circumstances to rebut the continuing presumption of 11 non-disability created by the prior decision. This court agrees, and finds the ALJ s 12 determination is supported by substantial evidence. Therefore, the court affirms the 13 Commissioner s decision denying benefits. 14 II. 15 BACKGROUND 16 A. Factual Background 17 Plaintiff, who was 54 years old on the date of her June 4, 2010 administrative 18 hearing, has an eighth-grade education. See Administrative Record ( AR ) at 19, 19 22. Her past relevant work includes employment as a machine cleaner, telephone 20 solicitor, church janitor, machine feeder, and door-to-door sales representative. Id. 21 at 52-53. Plaintiff alleges she is disabled due to bipolar disorder, panic attacks, 22 schizophrenia, and cysts in the brain. Id. at 82, 146. 23 B. Procedural History 24 Plaintiff has filed a total of two applications for Disability Insurance Benefits 25 ( DIB ) and three applications for SSI, including the SSI application at issue herein. 26 JS at 2; AR at 67. On March 7, 2003, plaintiff filed applications for DIB and SSI, 27 alleging that she has been disabled since October 1, 2001 due to asthma, shortness of 28 breath, depression, and panic attacks. AR at 59, 60, 61-62. Her applications were 2 1 denied initially and upon reconsideration, after which she filed a request for a 2 hearing. Id. at 59. On September 14, 2004, plaintiff, represented by counsel, 3 appeared and testified at a hearing before Administrative Law Judge ( ALJ ) 4 Michael D. Tucevich. Id. ALJ Tucevich denied plaintiff s request for benefits on 5 October 7, 2004. Id. at 59-63. Plaintiff filed a timely request for review of ALJ 6 Tucevich s decision, which was denied by the Appeals Council. Id. at 67. 7 Following the Appeals Council s denial, plaintiff filed an action in this court, 8 case number ED CV 05-0208-CW, seeking review of the Commissioner s decision 9 denying her claim. AR at 67. The matter was remanded for further proceedings 10 pursuant to a stipulation between the parties under sentence four of 42 U.S.C. 11 § 405(g) on June 7, 2006. Id. The Appeals Council then remanded the case to a 12 different ALJ for further consideration consistent with this court s remand. Id. 13 Additionally, the Appeals Council noted that plaintiff had filed subsequent claims 14 for DIB and SSI on February 3, 2006 that were duplicative of the claims in the 15 earlier applications, and therefore directed that they be associated and addressed 16 together. Id. On May 2, 2007, a second hearing was held before ALJ Jay E. Levine 17 where plaintiff, represented by counsel, appeared and testified. Id. ALJ Levine 18 denied plaintiff s request for benefits on May 18, 2007. Id. at 67-73. Plaintiff then 19 filed a second complaint in this court, case number ED CV 07-1106-CW, on 20 September 10, 2007. This court affirmed the Commissioner s decision and 21 dismissed the action with prejudice. See Decision and Order, Rubio v. Astrue, No. 22 5:07-cv-01106-CW, at 10 (C.D. Cal. Aug. 8, 2008), ECF No. 18. 23 On December 18, 2007, plaintiff filed the application for SSI at issue here, 24 alleging that she has been disabled since November 1, 2005 due to bipolar disorder, 25 panic attacks, schizophrenia, and cysts in the brain. See AR at 9, 82, 129-36. 26 Plaintiff s application was denied initially and upon reconsideration, after which she 27 filed a request for a hearing. Id. at 80, 81, 82-86, 89, 90-95, 96-100. 28 On June 4, 2010, plaintiff, represented by counsel, appeared and testified at a 3 1 hearing before the ALJ. AR at 21-52. The ALJ also heard testimony from Gayle 2 Martin, a vocational expert ( VE ). Id. at 52-54. On June 25, 2010, the ALJ denied 3 plaintiff s request for benefits. Id. at 9-15. 4 The ALJ engaged in the well-known five-step sequential evaluation process 5 but, at each step, found pursuant to Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 6 1988), that plaintiff had failed to meet her burden to show changed circumstances 7 indicating greater disability since the previous determination that she was not 8 disabled. AR at 12-15. 9 The ALJ found, at step one, that plaintiff has not engaged in substantial 10 gainful activity since her alleged onset date of disability. AR at 12. 11 At step two, the ALJ found that plaintiff suffers from severe impairments 12 consisting of substance abuse, mood disorder secondary to substance abuse, and 13 anxiety/panic attacks secondary to substance abuse. AR at 12 (emphasis omitted). 14 At step three, the ALJ determined that [w]ithout evidence to the contrary, 15 [plaintiff s] impairments, including the substance use disorder, met the severity of a 16 listing set forth in the Social Security regulations. AR at 12 (emphasis omitted); see 17 20 C.F.R. pt. 404, subpt. P, app. 1. 18 The ALJ went on to determine, however, that if plaintiff stopped the 19 substance use, the remaining limitations would not cause more than a minimal 20 impact on [her] ability to perform basic work activities; therefore, [plaintiff] would 21 not have a severe impairment or combination of impairments. AR at 13 (emphasis 22 omitted). The ALJ specifically found that plaintiff had failed to rebut the 23 presumption of continuing non-disability under Chavez. Id. Thus, the ALJ found 24 that plaintiff s substance use disorder is a contributing factor material to the 25 determination of disability and that plaintiff would not be disabled if she stopped 26 the substance use. Id. at 15 (emphasis omitted). The ALJ therefore concluded that 27 plaintiff was not suffering from a disability as defined by the Social Security Act. 28 Id. at 10, 15. 4 1 Plaintiff filed a timely request for review of the ALJ s decision, which was 2 denied by the Appeals Council. AR at 1-3, 4. The ALJ s decision stands as the final 3 decision of the Commissioner. 4 III. 5 STANDARD OF REVIEW 6 This court is empowered to review decisions by the Commissioner to deny 7 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 8 Administration must be upheld if they are free of legal error and supported by 9 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). 10 But if the court determines that the ALJ s findings are based on legal error or are not 11 supported by substantial evidence in the record, the court may reject the findings and 12 set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 13 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001). 14 Substantial evidence is more than a mere scintilla, but less than a 15 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such relevant 16 evidence which a reasonable person might accept as adequate to support a 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d 18 at 459. To determine whether substantial evidence supports the ALJ s finding, the 19 reviewing court must review the administrative record as a whole, weighing both 20 the evidence that supports and the evidence that detracts from the ALJ s 21 conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be affirmed 22 simply by isolating a specific quantum of supporting evidence. Aukland, 257 F.3d 23 at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the 24 evidence can reasonably support either affirming or reversing the ALJ s decision, 25 the reviewing court may not substitute its judgment for that of the ALJ. Id. 26 (quoting Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). 27 / / / 28 5 1 IV. 2 DISCUSSION A. 3 Absent Changed Circumstances, a Prior Finding that Plaintiff Is Not Disabled Creates a Presumption of Continuing Non-Disability 4 The principles of res judicata apply to administrative decisions, although the 5 6 doctrine is applied less rigidly to administrative proceedings than to judicial 7 proceedings. Chavez, 844 F.2d at 693 (citation omitted). Administrative res 8 judicata applies if the Commissioner has made a previous determination or decision 9 . . . about [a claimant s] rights on the same facts and on the same issue or issues, and 10 this previous determination or decision has become final by either administrative or 11 judicial action. 20 C.F.R. §§ 404.957(c)(1), 416.1457(c)(1). A previous final determination of non-disability creates a presumption of 12 13 continuing non-disability with respect to any subsequent unadjudicated period of 14 alleged disability. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996); see also 15 Miller v. Heckler, 770 F.2d 845, 848 (9th Cir. 1985); Lyle v. Sec y of Health & 16 Human Servs., 700 F.2d 566, 568-69 (9th Cir. 1983); Social Security Acquiescence 17 Ruling ( SSAR )1/ 97-4(9), 1997 WL 742758. [I]n order to overcome the 18 presumption of continuing nondisability arising from the first administrative law 19 judge s findings of nondisability, [the claimant] must prove changed circumstances 20 indicating a greater disability. Chavez, 844 F.2d at 693 (citing Taylor v. Heckler, 21 765 F.2d 872, 875 (9th Cir. 1985)). In other words, the presumption of non22 disability does not apply if, e.g., the claimant proves a change in the claimant s age 23 category . . . , an increase in the severity of the claimant s impairment(s), the alleged 24 25 1/ The Commissioner issues SSARs when a United States Court of Appeals[ ] 26 holding conflicts with [the Commissioner s] interpretation of provision of the Social Security Act or regulations. 20 C.F.R. § 416.1485(b). SSARs are binding on all 27 components of the Social Security Administration. 20 C.F.R. § 402.35(b)(2); 28 accord Pinto v. Massanari, 249 F.3d 840, 844 n.3 (9th Cir. 2001). 6 1 existence of an impairment(s) not previously considered, or a change in the criteria 2 for determining disability. SSAR 97-4(9), 1997 WL 742758, at *3. 3 4 5 B. Plaintiff Failed to Demonstrate Pertinent Changed Circumstances to Overcome the Presumption of Non-Disability In this case, the ALJ found that plaintiff s circumstances had not materially 6 changed since the date of the prior decision on May 18, 2007. AR at 12, 13-14, 15. 7 Specifically, the ALJ found that the medical evidence in the record fails to dispel 8 the finding that [plaintiff] could engage in basic work activities if she stopped 9 substance abuse. Id. at 13. Plaintiff contends that she has proven changed 10 circumstances indicating greater disability. JS at 25. This court disagrees. 11 [A]n individual shall not be considered to be disabled for the purposes of 12 [benefits under Title XVI of the Social Security Act] if alcoholism or drug addiction 13 would . . . be a contributing factor material to the Commissioner s determination that 14 the individual is disabled. 42 U.S.C. § 1382c(a)(1)(J); see Sousa v. Callahan, 143 15 F.3d 1240, 1242 (9th Cir. 1998) (plaintiff s mental problems during the pertinent 16 period were intertwined and exacerbated by longstanding substance abuse, thereby 17 precluding award of benefits); 20 C.F.R. § 416.935(a) ( If we find that you are 18 disabled and have medical evidence of your drug addiction or alcoholism, we must 19 determine whether your drug addiction or alcoholism is a contributing factor 20 material to the determination of disability . . . . ). It was on this basis that ALJ 21 Levine found plaintiff not disabled in his May 18, 2007 decision, namely, that absent 22 plaintiff s substance abuse she would not have a severe impairment, and therefore 23 she was not disabled within the meaning of the Social Security Act. AR at 71-73. 24 Here, the only evidence of changed circumstances plaintiff provided as to 25 substance abuse is a Work Capacity Evaluation (Mental) prepared by Kari Enge, 26 M.D. on May 27, 2010. See AR at 348-49. The ALJ considered and properly 27 rejected this opinion because it lacked any supporting clinical or laboratory findings. 28 Id. at 14. The May 27, 2010 opinion is a two-page report, in which Dr. Enge 7 1 checked off preprinted choices and did not provide any elaboration or explanation 2 for her opinions. Id. at 348-49. Thus, it was reasonable for the ALJ to refuse to give 3 significant weight to Dr. Enge s opinion in the Work Capacity Evaluation (Mental). 4 See Batson v. Comm r, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly 5 discounted the opinions of the claimant s treating physicians where those opinions 6 were in the form of checklists, did not have supportive objective evidence, and were 7 contradicted by the other evidence in the record); Thomas v. Barnhart, 278 F.3d 947, 8 957 (9th Cir. 2002) ( ALJ need not accept the opinion of any physician, including a 9 treating physician, if that opinion is brief, conclusory, and inadequately supported by 10 clinical findings (citation omitted)); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 11 1996) (ALJ permissibly rejected check-off reports that did not contain any 12 explanation of the bases of their conclusions (citation omitted)). 13 Plaintiff alleges that her psychiatric diagnosis has changed from Mood 14 Disorder to Schizoaffective Disorder since the prior decision on May 18, 2007. JS at 15 24-25; see AR at 185 (based upon a psychiatric consultative evaluation on March 31, 16 2006, Linda M. Smith, M.D. found that plaintiff s diagnostic impression was Mood 17 Disorder, Not Otherwise Specified ), 314 (on April 12, 2010, Dr. Enge diagnosed 18 plaintiff with Schizoaffective disorder), 333 (based upon a psychiatric evaluation on 19 November 5, 2008, Marcia Hudson, M.D. diagnosed plaintiff with Schizoaffective 20 disorder, depressed type), 335 (on April 27, 2008, Dr. Enge diagnosed plaintiff with 21 Schizoaffective, bipolar type, depressed), 341 (on July 20, 2007, Dr. Enge diagnosed 22 plaintiff with Schizoaffective disorder). But notwithstanding these treatment notes, 23 these diagnoses are not new and do not establish changed circumstances. A careful 24 review of the record indicates that plaintiff has made similar complaints and was, in 25 fact, diagnosed with panic attacks, depression, and schizophrenia before the prior 26 decision on May 18, 2007. See AR at 188 (on November 2, 2006, Dr. Enge 27 diagnosed plaintiff with schizoaffective disorder and noted that plaintiff was stable 28 on medication but was having unacceptable side-effects), 232 (on May 9, 2006, 8 1 plaintiff was diagnosed with panic attacks, bipolar disorder, depression, and 2 schizophrenia), 233 (on February 19, 2004, plaintiff was diagnosed with depression, 3 asthma, and schizophrenia), 283-84 (on May 10, 2006, treatment notes indicated 4 that plaintiff has a history of depression and paranoid schizophrenia), 342 (on March 5 2, 2007, Dr. Enge diagnosed plaintiff with schizoaffective disorder). Thus, 6 plaintiff s assertion that her diagnosis of schizoaffective disorder proves changed 7 circumstances indicating greater disability since the prior decision is unpersuasive. 8 In any event, these diagnoses do not address plaintiff s substance abuse, nor 9 demonstrate that her substance abuse is not a contributing factor to her disability. 10 Plaintiff also asserts that her Global Assessment of Functioning ( GAF ) 11 rating has decreased from 62 to 50 since the prior decision.2/ JS at 25 ( Dr. Enge 12 and Dr. Hudson determined on July 20, 2007, in a Diagnosis form that plaintiff s 13 current GAF was 50. ). But a GAF rating, while helpful to the ALJ, is not 14 dispositive evidence of disability. The ALJ did not err by failing to specifically 15 discuss the GAF ratings assigned by either Dr. Enge or Dr. Hudson. [A]n ALJ is 16 not required to give controlling weight to a treating physician s GAF score; indeed, 17 an ALJ s failure to mention a GAF score does not render his assessment of a 18 claimant s RFC deficient. Chavez v. Astrue, 699 F. Supp. 2d 1125, 1135 (C.D. Cal. 19 2009) (citation omitted); accord Baker v. Astrue, 2009 WL 279085, at *3 (C.D. Cal. 20 Feb. 4, 2009) ( In evaluating the severity of a claimant s mental impairments, a 21 22 2/ A GAF rating of 61-70 indicates [s]ome mild symptoms (e.g., depressed 23 mood and mild insomnia) OR some difficulty in social, occupational, or school 24 functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. Am. 25 Psychiatric Ass n, Diagnostic and Statistical Manual of Mental Disorders 34 (4th 26 Ed. 2000) (emphasis omitted). A GAF score of 41-50 indicates [s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any 27 serious impairment in social, occupational, or school functioning (e.g., no friends, 28 unable to keep a job). Id. (emphasis omitted). 9 1 GAF score may help guide the ALJ s determination, but an ALJ is not bound to 2 consider it. (citation omitted)). Even if plaintiff s GAF rating were dispositive 3 evidence of disability, plaintiff s reliance on her current GAF rating to establish 4 changed circumstances is without merit, as the record indicates that plaintiff s GAF 5 rating did not materially change. Indeed, on January 28, 2004, plaintiff s treating 6 physician Imelda Alfonso, M.D. diagnosed plaintiff with a GAF score of 50 7 identical to the GAF score assigned by Drs. Enge and Hudson after the prior 8 decision. See Decision and Order, Rubio v. Astrue, No. 5:07-cv-01106-CW, at 6 9 (C.D. Cal. Aug. 8, 2008), ECF No. 18. And again, whatever her GAF rating, 10 plaintiff failed to meet her burden to demonstrate her substance abuse is no longer a 11 contributing factor material to the determination of disability. 12 Finally, plaintiff s argument that the ALJ failed to properly develop the record 13 is without merit. An ALJ has an affirmative duty to fully and fairly develop the 14 record and to assure that the claimant s interests are considered . . . even when the 15 claimant is represented by counsel. Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 16 2003) (internal quotation marks and citation omitted). If the evidence is ambiguous 17 or inadequate to permit a proper evaluation of a claimant s impairments, the ALJ has 18 a duty to conduct an appropriate inquiry. Smolen v. Chater, 80 F.3d 1273, 1288 19 (9th Cir. 1996); accord Tonapetyan, 242 F.3d at 1150; Webb v. Barnhart, 433 F.3d 20 683, 687 (9th Cir. 2005) ( ALJ s duty to supplement a claimant s record is triggered 21 by ambiguous evidence [or] the ALJ s own finding that the record is inadequate 22 (citation omitted)). Here, any ambiguity or inadequacy of the record to demonstrate 23 changed circumstances is attributable to plaintiff. On February 1, 2008, consultative 24 examiner Cory A. Brown, Psy.D., noted that plaintiff failed to cooperate by not 25 returning paperwork. AR at 207. Dr. Brown also noted that he attempted to 26 contact Dr. Enge to gain further treatment evidence but the phone number provided 27 by plaintiff on her Disability Report form was incorrect. Id. Also, for reasons 28 unknown (JS at 25), plaintiff failed to cooperate and attend a scheduled psychiatric 10 1 consultative examination on June 2, 2008. See AR at 12, 14, 215-16, 217-27, 229. 2 The court fails to see what more the ALJ could have done to develop the record 3 given plaintiff s non-cooperation. In any event, plaintiff ultimately bears the 4 burden of proving that drug or alcohol addiction is not a contributing factor material 5 to [her] disability (Parra v. Astrue, 481 F.3d 742, 748 (9th Cir. 2007)), and it was 6 plaintiff s burden to prove changed circumstances. See Chavez, 844 F.2d at 693. 7 Plaintiff failed to carry this burden. 8 In short, because plaintiff has failed to prove changed circumstances as to her 9 substance abuse, plaintiff has failed to rebut the presumption of continuing non10 disability. The evidence in the record was fully considered by the ALJ, who 11 correctly found that plaintiff had not provided sufficient evidence to change the prior 12 decision. The ALJ s interpretation of the evidence was reasonable and supported by 13 substantial evidence. Accordingly, the court will not disturb it. 14 V. 15 CONCLUSION 16 IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING 17 the decision of the Commissioner denying benefits, and dismissing this action with 18 prejudice. 19 20 DATED: November 1, 2011 21 ____________________________________ 22 HON. SHERI PYM UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28 11

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