Deatra Frazier v. Michael J. Astrue, No. 5:2010cv01811 - Document 16 (C.D. Cal. 2011)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, 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 DEATRA FRAZIER, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 10-01811-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 physician s opinion; and 2. Whether there is a Dictionary of Occupational Titles ( DOT ) 3 inconsistency 4 perform the jobs of Small Products Assembler II and Cleaner, 5 Housekeeping. 6 in the ALJ s holding that Plaintiff can (JS at 2-3.) 7 8 9 10 This Memorandum Opinion will constitute the Court s findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed. 11 12 I 13 THE ALJ PROPERLY CONSIDERED THE OPINION 14 OF TREATING PSYCHIATRIST DR. LASALA 15 In Plaintiff s first issue, she asserts that the ALJ did not give 16 a proper evaluation of Plaintiff s mental condition, in particular, 17 failing to adequately consider the opinions of Plaintiff s treating 18 psychiatrist, Dr. Lasala. 19 20 A. ALJ Decision and ALJ Hearing. 21 At the hearing before the ALJ, which occurred on December 17, 22 2009 (AR 22-52), Plaintiff appeared, testified, and was represented by 23 counsel. 24 medical expert ( ME ), and also a vocational expert ( VE ). 25 testified that he would limit Plaintiff to simple, repetitive tasks, 26 no interaction with the public, only non-intense interactions with 27 coworkers and supervisors, no tasks requiring hypervigilance, and no 28 fast-paced work. (AR 31.) The ALJ called upon the services of Dr. Glassmeyer, a The ME These conclusions were reached based upon 2 1 the ME s review of the primary treatment records from Dr. Lasala, 2 which the ME interpreted as showing that Plaintiff s symptoms are 3 relatively well-controlled with treatment, although she has had a few 4 decompensations. (AR 32.) The ME testified as to various mental 5 status were 6 testified that some of the Global Assessment of Functioning ( GAF ) 7 scores don t match the mental status examinations that were given, or 8 the diagnosis where [Dr. Lasala] consistently diagnoses [sic] is made 9 bipolar examinations I disorder which depressed conducted. moderate. 10 examinations are consistent throughout. 11 same symptoms checked each time. 12 (AR But 32-34.) the mental The ME status They re checked off with the (AR 35-36.) And the GAF scores are the same. 13 In his decision, the ALJ determined that Plaintiff has severe 14 impairments which include bipolar disorder (AR 10). He found that her 15 condition did not meet any of the Listings under the mental health 16 categories, and further evaluated the mental health criteria as 17 required (see, infra): mild restriction in activities of daily living; 18 moderate difficulties in social functioning; moderate difficulties 19 with regard to concentration, persistence or pace; and one to two 20 episodes of decompensation of extended duration. (AR 11.) 21 Considering the evidence, the ALJ limited Plaintiff to performing 22 simple repetitive tasks, no interaction with the public, non-intense 23 interactions with coworkers and supervisors; no hypervigilance; no 24 fast-paced work. (Id.) 25 The ALJ further indicated he had considered the opinions of 26 treatment providers, and included in that the various GAF scores, 27 giving them limited weight. (AR 14.) 28 indicated serious symptoms (e.g., suicidal ideation, severe obsessive 3 Noting that a GAF score of 41-50 1 rituals, frequent shoplifting) or any serious impairment in social 2 occupational, or school functioning (AR 14), the ALJ found that the 3 GAF scores were generally not consistent with the mental status 4 examinations she had received. 5 6 B. 7 Applicable Law. 1. Mental Impairments. 8 In evaluating mental impairments, 20 C.F.R. §404.1520a(c)(3)(4) 9 and §416.920a(c)(3)(4) mandate that consideration be given, among 10 other 11 functioning; concentration, persistence, or pace; and episodes of 12 decompensation. These factors are generally analyzed in a Psychiatric 13 Review Technique Form ( PRTF ). 14 sequential evaluation to determine if a claimant is disabled under the 15 Listing of Impairments; however, the same data must be considered at 16 subsequent steps unless the mental impairment is found to be not 17 severe at Step Two. 18 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 19 consideration of all relevant and available clinical signs and 20 laboratory findings, the effects of your symptoms, and how your 21 functioning may be affected by factors including, but not limited to, 22 chronic mental disorders, structured settings, medication and other 23 treatment. 1 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 (continued...) 4 1 SSR 85-16 suggests the following as relevant evidence: 2 History, findings, and observations from medical 3 sources (including psychological test results), regarding 4 the presence, frequency, and intensity of hallucinations, 5 delusions or paranoid tendencies; depression or elation; 6 confusion or disorientation; conversion symptoms or phobias; 7 psycho-physiological 8 behavior; anxiety or tension. 9 activities of daily living and work activity, as well as of third symptoms, parties withdrawn or bizarre Reports of the individual s 10 testimony about 11 performance and behavior. 12 the individual s homes, or similar assistive entities. Reports from workshops, group 13 14 It is also required under §404.1520a(c)(2) and §416.920a(c)(2) 15 that the ALJ must consider the extent to which the mental impairment 16 interferes with an ability to function independently, appropriately, 17 effectively, and on a sustained basis including such factors as the 18 quality and level of [] overall functional performance, any episodic 19 limitations 20 require[d]. [and] the amount of supervision or assistance [] 21 Pursuant to the September 2000 amendments to the regulations 22 which modify 20 C.F.R. §404.1520a(e)(2) and §416.920a(e)(2), the ALJ 23 is no longer required to complete and attach a PRTF. 24 regulations identify five discrete categories for the first three of 25 four relevant functional areas: activities of daily living; social 26 functioning; concentration, persistence or pace; and episodes of 27 1 28 (...continued) setting. 5 The revised 1 decomposition. These categories are None, Mild, Moderate, Marked, and 2 Extreme. (§404.1520a(c)(3), (4).) In the decision, the ALJ must 3 incorporate pertinent findings and conclusions based on the PRTF 4 technique. §404.1520a(e)(2) mandates that the ALJ s decision must show 5 the 6 findings, and the functional limitations that were considered in 7 reaching a conclusion about the severity of the mental impairment(s). 8 The decision must include a specific finding as to the degree of 9 limitation in each of the functional areas described in paragraph (c) 10 significant history, including examination and laboratory of this section. 11 The Step Two and Three analyses (see Decision at AR 53-54) are 12 intended to determine, first, whether a claimant has a severe mental 13 impairment (Step Two), and if so, whether it meets or equals any of 14 the Listings (Step Three). It is also required under §404.1520a(c)(2) 15 and §416.920a(c)(2) that the ALJ must consider the extent to which the 16 mental 17 independently, appropriately, effectively, and on a sustained basis 18 including such factors as the quality and level of [] overall 19 functional performance, any episodic limitations [and] the amount of 20 supervision or assistance [] require[d]. impairment interferes with an ability to function 21 These findings and conclusions are relevant to the Step Two and 22 Three analysis of whether a claimant has a severe mental impairment, 23 and if so, whether it meets or equals any of the Listings. (See 20 24 C.F.R. Part 4, subpart p, App. 1.) 25 Mental Disorders, is relevant: 26 The criteria in The discussion in Listing 12.00, paragraphs functional B and describe 27 impairment-related 28 incompatible with the ability to do any gainful activity. 6 limitations C that are 1 The functional limitations in paragraphs B and C must be the 2 result of the mental disorders described in the diagnostic 3 description, that is manifested by the medical findings in 4 paragraph A. 5 In Listing 12.00C, entitled Assessment of Severity, 6 it is stated that, we assess functional limitations using 7 the four criteria in paragraph B of the Listings: Activities 8 of 9 persistence, or pace; and episodes of decompensation. Where 10 we use marked as a standard for measuring the degree of 11 limitation, it means more than moderate but less than 12 extreme. daily living; social functioning; concentration; 13 14 Social Security Ruling ( SSR ) 96-8p makes the same point in 15 distinguishing evidence supporting a rating of mental severity at Step 16 Two, a Listing level impairment at Step Three, and the determination 17 of an individual s MRFC at Step Four. 18 19 2. GAF Scores. 20 The GAF scale is intended to reflect a person s overall level of 21 functioning at or about the time of the examination, not for a period 22 of at least 12 consecutive months, which is required for a finding of 23 impairment or disability. (See 20 C.F.R. §§416.905, 416.920(c)(2006).) 24 GAF scores are intended to be used for clinical diagnosis and 25 treatment, and do not directly correlate to the severity assessment 26 set 27 Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 28 65 Fed. Reg. 50746, 50764-65 (Aug. 21, 2000), and American Psychiatric forth in Social Security regulations. 7 (See Revised Medical 1 Ass n, Diagnostic and Statistical Manual of Mental Disorders, Text 2 Revision 33 (4th Ed. 2000). 3 4 C. Analysis. 5 Plaintiff s primary concern is that the ALJ did not give a fair 6 evaluation of Dr. Lasala s assessments. But the ALJ agreed with Dr. 7 Lasala that Plaintiff has a severe impairment of bipolar disorder, and 8 in fact, the ALJ assessed significant functional limitations, may of 9 which are supported by Dr. Lasala s findings. Dr. Lasala, of course, 10 never opined that Plaintiff is disabled from working. 11 the Commissioner correctly notes, many of Dr. Lasala s periodic 12 reports indicate relatively normal mental status examinations. (See, 13 e.g., 14 examinations make no comment whatsoever as to the relevant criteria of 15 a mental status exam. (See, e.g., AR 454, 462, 463.) 16 Plaintiff cannot legitimately disagree that the ALJ correctly noted 17 Dr. 18 medications, her condition is significantly ameliorated. As Plaintiff 19 notes, Dr. Lasala periodically adjusted her medications, but that fact 20 alone does not lean toward a finding of disability. AR 31-34, Lasala s 450-451, conclusion 453, that 464, when 467.) she is Other Moreover, as mental complying status Further, with her 21 The Court also notes that many of the statements contained in the 22 various mental status examinations completed by Dr. Lasala constituted 23 Plaintiff s own subjective reporting. In this respect, they are often 24 at odds with Dr. Lasala s own observations. 25 As to the GAF scores, while Plaintiff seems to largely rely upon 26 them as an indicator of disability, she fails to address the ME s 27 testimony, adopted by the ALJ, that these scores are not consistent 28 with the records as a whole. (See AR at 14.) 8 1 Based on the foregoing reasons, the Court cannot find error in 2 the ALJ s evaluation of Dr. Lasala s treatment notes and opinions. 3 The ALJ properly found that Plaintiff has a severe impairment of 4 bipolar disorder, and assessed reasonable and relevant functional 5 restrictions based on the evidence in the record. 6 7 II 8 THERE IS NO STEP FIVE ERROR 9 In Plaintiff s second issue, she asserts that there is an 10 inconsistency at Step Five of the sequential evaluation process (see 11 AR at 9-10), in that the two jobs identified by the ALJ as being 12 within Plaintiff s mental residual functional capacity ( RFC ) have 13 mental functional requirements which exceed Plaintiff s capacity, also 14 as found by the ALJ. 15 At the hearing, the ALJ took testimony from a VE, and posited a 16 hypothetical which incorporated Plaintiff s mental RFC. (AR 50.) With 17 this in mind, the VE identified work as a Small Products Assembler II, 18 DOT code 739.687-030, and also a Cleaner, Housekeeping, DOT code 19 323.687-014. The VE testified her conclusions are consistent with the 20 DOT. (AR 51.) 21 that are beyond her mental RFC. She contends, generally, that the job 22 of Small Products Assembler II would require her to be exposed to 23 fast-paced work like an assembly line, and the job of Cleaner, 24 Housekeeping would require interaction with the public. Plaintiff asserts that these jobs contain requirements 25 The problem with Plaintiff s analysis is that she is making 26 inferences from the actual job descriptions in the DOT which are not 27 contained in these job descriptions. 28 speculates that the job of Cleaner, Housekeeping requires interaction 9 For example, while Plaintiff 1 with the public, as defined in the DOT, it is strictly an 2 institutional occupation. The ALJ was certainly entitled to rely upon 3 the testimony of the VE to identify that as an available job. 4 Moore v. Apfel, 216 F.3d 864, 869-70 (9th Cir. 2000). See 5 Similarly, Plaintiff seems to rely upon speculation to make her 6 contention that the job of Small Products Assembler would require 7 fast-paced work. There is no such statement of description in the DOT 8 listing of that job. 9 Finally, the DOT descriptions are not the last word in the 10 matter. As defined in Social Security Ruling ( SSR ) 00-4p, the DOT 11 listing indicates the maximum requirements of occupations as they are 12 generally performed. It does not address the range of requirements of 13 a particular job as performed in specific settings. 14 recognizes, a VE or similar reliable source can provide more specific 15 information about jobs or occupations than the DOT does in its own 16 descriptions. (Id.) As SSR 00-4p 17 Plaintiff s arguments, founded upon her own speculation, do not 18 create an inconsistency or deviance between the DOT descriptions and 19 her RFC. 20 JS at 16.) 21 22 23 24 25 Case law cited by Plaintiff is therefore inapplicable. (See The ALJ s Step Five conclusions are supported by substantial evidence. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 26 27 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE DATED: August 3, 2011 28 10
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