John Restifo v. Michael J Astrue, No. 5:2010cv01469 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The Court finds no error with regard to Plaintiffs second issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JOHN RESTIFO, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-01469-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issues: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 2 considered the treating psychiatrist s opinion; 2. Whether the ALJ properly held that Plaintiff could perform 3 the jobs of a store labor person, an auto body repairer 4 helper and a hand packager. 5 (JS 3.) 6 7 This Memorandum Opinion will constitute the Court s findings of 8 fact and conclusions of law. After reviewing the matter, the Court 9 concludes that the decision of the Commissioner must be affirmed. 10 11 I 12 THE ALJ PROPERLY EVALUATED THE OPINION 13 OF TREATING PSYCHIATRIST DR. BLUMBERG 14 Plaintiff has been receiving treatment at the Riverside County 15 Mental Health Department since November 2004. (AR 236-289.) In a 16 Narrative Report prepared on April 27, 2010, Dr. Blumberg assessed the 17 following: disorganized thought process; no psychosis; moderately 18 impaired memory; intact judgment; confusion, depression and anxiety; 19 inability to maintain a sustained level of concentration or sustained 20 repetitive tasks for an extended period, or to adapt to new or 21 stressful situations; ability to interact appropriately with others, 22 but not with coworkers or with supervisors; pleasant but anxious 23 attitude; able to manage his own funds; unable to complete a 40-hour 24 workweek 25 chronic and very guarded. 26 Plaintiff has a long history of severe anxiety and obsessive symptoms, 27 poor concentration and attention span and an inability to complete 28 tasks; that he is at times depressed and has been very refractory to without decompensating; and a prognosis described as Further, Dr. Blumberg wrote that 2 1 any treatment and unable to maintain consistent employment due to his 2 illness. (AR 289.) 3 In her decision, the ALJ briefly referenced Dr. Blumberg s 4 report, although mistakenly attributing it to a medical source of 5 unknown qualifications. (AR 17.) 6 set forth in this narrative report because they are not consistent 7 with the mental status examinations recorded in the treatment records 8 or with the findings on examination by Dr. Rodriguez. (Id.) 9 Plaintiff as asserts 10 opinion, set 11 that forth in The ALJ rejected the conclusions the depreciation this narrative of Dr. report, Blumberg s is error, necessitating a remand. 12 13 A. 14 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 15 and §416.920a(c)(3)(4) mandate that consideration be given, among 16 other 17 functioning; concentration, persistence, or pace; and episodes of 18 decompensation. These factors are generally analyzed in a Psychiatric 19 Review Technique Form ( PRTF ). 20 sequential evaluation to determine if a claimant is disabled under the 21 Listing of Impairments; however, the same data must be considered at 22 subsequent steps unless the mental impairment is found to be not 23 severe at Step Two. 24 Applicable Law. things, 20 C.F.R. to activities of daily living ( ADLs ), social The PRTF is used at Step Three of the See SSR 85-16. §§404.1520a(c)(1) and 416.920a(c)(1) require 25 consideration of all relevant and available clinical signs and 26 laboratory findings, the effects of your symptoms, and how your 27 functioning may be affected by factors including, but not limited to, 28 chronic mental disorders, structured settings, medication and other 3 1 2 treatment. 1 SSR 85-16 suggests the following as relevant evidence: 3 History, findings, and observations from medical 4 sources (including psychological test results), regarding 5 the presence, frequency, and intensity of hallucinations, 6 delusions or paranoid tendencies; depression or elation; 7 confusion or disorientation; conversion symptoms or phobias; 8 psycho-physiological 9 behavior; anxiety or tension. symptoms, withdrawn or bizarre Reports of the individual s 10 activities of daily living and work activity, as well as 11 testimony 12 performance and behavior. 13 homes, or similar assistive entities. of third parties about the individual s Reports from workshops, group 14 15 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 16 that the ALJ must consider the extent to which the mental impairment 17 interferes with an ability to function independently, appropriately, 18 effectively, and on a sustained basis including such factors as the 19 quality and level of [] overall functional performance, any episodic 20 limitations 21 require[d]. [and] the amount of supervision or assistance [] 22 Pursuant to the September 2000 amendments to the regulations 23 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 24 25 26 27 28 1 20 C.F.R. §404.1545(c) and §416.945(c) also require consideration of residual functional capacity for work activity on a regular and continuing basis and a limited ability to carry out certain mental activities, such as limitations in understanding, remembering, and carrying out instructions, and in responding appropriately to supervision, co-workers, and work pressures in a work setting. 4 1 is no longer required to complete and attach a PRTF. 2 regulations identify five discrete categories for the first three of 3 four relevant functional areas: activities of daily living; social 4 functioning; concentration, persistence or pace; and episodes of 5 decomposition. These categories are None, Mild, Moderate, Marked, and 6 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 7 incorporate pertinent findings and conclusions based on the PRTF 8 technique. §404.1520a(e)(2) mandates that the ALJ s decision must show 9 the significant history, including examination The revised and laboratory 10 findings, and the functional limitations that were considered in 11 reaching a conclusion about the severity of the mental impairment(s). 12 The decision must include a specific finding as to the degree of 13 limitation in each of the functional areas described in paragraph (c) 14 of this section. 15 The Step Two and Three analyses (see Decision at AR 53-54) are 16 intended to determine, first, whether a claimant has a severe mental 17 impairment (Step Two), and if so, whether it meets or equals any of 18 the Listings (Step Three). It is also required under §404.1520a(c)(2) 19 and §416.920a(c)(2) that the ALJ must consider the extent to which the 20 mental 21 independently, appropriately, effectively, and on a sustained basis 22 including such factors as the quality and level of [] overall 23 functional performance, any episodic limitations [and] the amount of 24 supervision or assistance [] require[d]. impairment interferes with an ability to function 25 These findings and conclusions are relevant to the Step Two and 26 Three analysis of whether a claimant has a severe mental impairment, 27 and if so, whether it meets or equals any of the Listings. (See 20 28 C.F.R. Part 4, subpart p, App. 1.) 5 The discussion in Listing 12.00, 1 Mental Disorders, is relevant: 2 The criteria in paragraphs functional B and limitations C describe 3 impairment-related that are 4 incompatible with the ability to do any gainful activity. 5 The functional limitations in paragraphs B and C must be the 6 result of the mental disorders described in the diagnostic 7 description, that is manifested by the medical findings in 8 paragraph A. 9 In Listing 12.00C, entitled Assessment of Severity, 10 it is stated that, we assess functional limitations using 11 the four criteria in paragraph B of the Listings: Activities 12 of 13 persistence, or pace; and episodes of decompensation. Where 14 we use marked as a standard for measuring the degree of 15 limitation, it means more than moderate but less than 16 extreme. daily living; social functioning; concentration; 17 18 Social Security Ruling ( SSR ) 96-8p makes the same point in 19 distinguishing evidence supporting a rating of mental severity at Step 20 Two, a Listing level impairment at Step Three, and the determination 21 of an individual s MRFC at Step Four. 22 In a recent Ninth Circuit opinion, the Court held that an ALJ s 23 failure to comply with 20 C.F.R. §404.1520a is not harmless error in 24 a case in which a claimant has a colorable claim of mental impairment. 25 (See Keyser v. Commissioner of Social Security Administration, 2011 26 DJDAR 7897 (June 1, 2011). 27 // 28 // 6 1 B. Analysis. 2 In this case, the issue is not whether the ALJ complied with 3 statutory and regulatory requirements, as it is clear she did. 4 Rather, 5 legitimate reasons, which are articulated in the decision, to reject 6 Dr. Blumberg s analysis, consistent with the requirements of such 7 seminal cases as Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). the issue raised is whether the ALJ had specific and 8 The ALJ s principal articulated reason for depreciating Dr. 9 Blumberg s analysis is that his opinion is not consistent with the 10 mental status examinations recorded in the treatment records, or with 11 the 12 psychiatric consultant. (See AR at 204-210.) 13 Commissioner has delineated in the JS numerous of the mental status 14 examination reports concerning Plaintiff, prepared over the years by 15 the Riverside County Mental Health Department. 16 cannot dispute the Commissioner s summation that these reports almost 17 universally fail to support the conclusions reached by Dr. Blumberg on 18 April 27, 1010. 19 244, 250, 257-258, 272, 275, 277, 279, 283, and 286. 20 clear that Plaintiff has been prescribed a series of medications for 21 his mental condition, and that these have been adjusted over time by 22 Dr. 23 appearance, 24 pressurized speech, and anxiety, which would appear to be consistent 25 with Dr. Blumberg s Axis I diagnosis of severe anxiety disorder, and 26 an 27 Hyperactivity Disorder ( ADHD ). (AR 289.) 28 the extent of functional deficits as a result of Plaintiff s mental findings Blumberg, on by Dr. Rodriguez, a consultative As to the former, the Indeed, the Court These reports can be found at AR 239, 240, 242, 243, he mood, obsessive examination almost universally affect, attention compulsive disorder, 7 presented and with While it is appropriate concentration, ruling out Attention but with Deficit The question, however, is 1 impairment, and here, the Court must agree that the April 27, 2010 2 evaluation is almost completely inconsistent with the longitudinal 3 treatment records referenced in this decision. 4 Moreover, the mental residual functional capacity as assessed by 5 the ALJ is consistent with the November 4, 2008 complete psychiatric 6 evaluation performed by Dr. Rodriguez at the request of the Department 7 of Social Security, Disability and Adult Programs. As such, the ALJ s 8 analysis, 9 consistent with the record as a whole, and are therefore supported by and findings 10 substantial evidence. 11 determining Plaintiff s mental RFC, are The Court finds no error with regard to Plaintiff s first issue. 12 13 II 14 THE ALJ DID NOT ERR IN IDENTIFYING AVAILABLE JOBS 15 AT STEP FIVE OF THE SEQUENTIAL EVALUATION PROCESS 16 In Plaintiff s second issue, he contends that the ALJ erred in 17 identifying three jobs that he could perform at Step Five of the 18 sequential evaluation process (see AR at 18), because they conflict 19 with 20 identified 21 Plaintiff thus argues that the ALJ s limitation to simple, work- 22 related decisions would preclude him from performing work requiring 23 Reasoning Level II skills. (See JS at 15.) 24 the Reasoning in the Level II Dictionary skills of required Occupational of these Titles jobs, as ( DOT ). Plaintiff s argument has been uniformly rejected in both District See, e.g., Abrew v. Astrue, 303 25 Court and Ninth Circuit decisions. 26 Fed.Appx. 567, 569 (9th Cir. 2008); Lara v. Astrue, 303 Fed.Appx. 324, 27 326 (9th Cir. 2008); Scott v. Astrue, 2011 U.S. Dist. LEXIS 45648, *16 28 (C.D. Cal. 2011); Meissl v. Barnhart, 403 Fed.Supp.2d 981, 983-984 8 1 (C.D. Cal. 2005). 2 Plaintiff attempts to make a distinction between his limitation 3 to simple, routine and repetitive tasks, which he agrees would allow 4 him to perform work requiring either Reasoning Level I or II, but that 5 his limitation to simple, work-related decisions would preclude that 6 work. Plaintiff cites no authority for this proposition, and the Court 7 fails to understand the distinction which Plaintiff seeks to make. 8 9 10 11 12 For the foregoing reasons, the Court finds no error with regard to Plaintiff s second issue. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 13 14 15 DATED: June 15, 2011 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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