Casey Wilkerson v. Michael J. Astrue, No. 5:2010cv01940 - Document 19 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal; IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of theCourt serve copies of this Order and the Judgment on counsel for both parties. See order for further details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CASEY WILKERSON, 12 13 14 15 16 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 10-01940-SS MEMORANDUM DECISION AND ORDER 17 18 19 I. 20 INTRODUCTION 21 22 Plaintiff Casey Wilkerson ( Plaintiff ) brings this action seeking 23 to overturn the decision of the Commissioner of the Social Security 24 Administration (hereinafter the Commissioner or the Agency ) denying 25 Plaintiff s application for Social Security Income benefits ( SSI ). 26 The parties consented to the jurisdiction of the undersigned United 27 States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). 28 reasons stated below, the decision of the Agency is AFFIRMED. For the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an SSI application on May 5, 2009, alleging a 5 disability onset of June 1, 2008, due to depression and borderline 6 personality disorder. (Administrative Record ( AR ) 102-04, 111). The 7 Agency denied Plaintiff s claim on June 15, 2009, as well as at the 8 reconsideration level on September 18, 2009. (AR 46-57). 9 10 On October 20, 2009, Plaintiff requested a hearing before an 11 Administrative Law Judge (the ALJ ), which was held on June 17, 2010. 12 (AR 17-43, 60). 13 decision. (AR 9-16). Plaintiff appealed the ALJ s decision on November 14 11, 2010. 15 review 16 Commissioner. 17 2010, seeks review of Defendant s decision denying disability benefits. and On October 27, 2010, the ALJ issued an unfavorable (AR 4). the The Appeals Council denied Plaintiff s request for ALJ s (AR 1-3). decision became the final decision of the Plaintiff s Complaint, filed on December 29, 18 19 III. 20 FACTUAL BACKGROUND 21 22 Plaintiff was born on March 15, 1988, was twenty-one (21) when he 23 filed his SSI application, and has a limited education. (AR 20, 165). 24 Prior to the onset of the alleged impairments, Plaintiff worked as a 25 laborer for a roofing business two or three days per week. 26 Plaintiff asserts that he is disabled due to his mental impairments. 27 (AR 27, 111). (AR 112). The ALJ found that claimant has the following severe 28 2 1 impairments: 2 dependance. mood disorder, marijuana dependence, and alcohol (AR 11). 3 4 A. Plaintiff s Mental Health History 5 6 1. Dr. Andrew Janik, Treating Physician 7 8 Plaintiff was a patient of Dr. Andrew Janik from April 2009 until 9 March 2010. (AR 234, 247). Plaintiff testified that he usually saw Dr. 10 Janik [o]nce every month. (AR 24). In a case record report from 11 April 20, 2009, Dr. Janik diagnosed Plaintiff with mood disorder not 12 otherwise specified ( NOS ), 13 disorder. (AR 253). Plaintiff s GAF score was 50. 14 noted that Plaintiff blows up, but denies suicidal ideations. 15 255-56). 16 Dr. Janik reported positive heroin use and indicated usage of various 17 other illegal drugs. 18 last use of a street drug was cocaine six months prior. 19 Janik noted that Plaintiff sporadically drank alcohol, and was not in 20 a drug rehabilitation program. polysubstance abuse, and personality (Id.). Dr. Janik (AR Dr. Janik stated that therapy [was] encouraged. (AR 253). (AR 255). Dr. Janik also stated that Plaintiff s (Id.). Dr. (Id.). 21 22 In a case record report from May 19, 2009, Dr. Janik again reported 23 that Plaintiff had no suicidal ideations, but that Plaintiff was [n]ot 24 going to therapy. 25 therapist, and Dr. Janik gave Plaintiff a referral. 26 Janik noted that Plaintiff still smokes weed and needs [to] stop 27 drugs. 28 [said that he] can t afford therapy. (Id.). (AR 252). On June 16, 2009 Plaintiff asked for a (AR 251). Dr. On August 11, 2009, Dr. Janik reported that Plaintiff 3 (AR 250). Dr. Janik also noted 1 that Plaintiff s behavior 2 [Plaintiff] has to over clean, if something drops[,] [he] has to 3 [indecipherable] it 3 times. 4 addition, Dr. Janik stated that Plaintiff denie[d] all marijuana - [and 5 Plaintiff] was getting more nervous. 6 Janik reported that Plaintiff showed signs of OCD, but that [Plaintiff 7 did not] want to address it. (AR 249). Dr. Janik noted that otherwise 8 Plaintiff was stable with no suicidal ideations. (Id.). 9 24, 2009 Plaintiff reported still feeling very angry and [c]laim[ed] 10 [to be] off marijuana. (AR 248). [Plaintiff said that he] stays home 11 [and] does (sic) [the] computer. 12 Plaintiff 13 therapy. 14 (Id.). 15 had [n]o other treatment. 16 [marijuana and] 17 ideations. (Id.). [r]efuses (Id.). med was indicative of O.C.D. Lots of things - X2. (Id). (Id.). [change] and because (Id.). In On September 29, 2009 Dr. On January Dr. Janik also noted that was [n]ot even going to Plaintiff again reported no suicidal ideations. As of March 22, 2010, Dr. Janik reported that Plaintiff still other (AR 247). drugs and Plaintiff again denie[d] continued to have no suicidal Work Capacity 18 19 On November 24, 2009 Dr. Janik completed a 20 Evaluation for mental impairments. In his evaluation, Dr. Janik 21 reported that Plaintiff had serious limitations in his ability to work 22 and would be anticipated to be absent from work three or more days per 23 month due to his impairments and treatment. (AR 244-45). 24 25 Dr. Janik also administered a self-rating test and a mood disorder 26 questionnaire to Plaintiff. (AR 257-260). Plaintiff indicated that his 27 mood caused him moderate problem[s]. 28 // 4 (AR 257-260). 1 2. Robin Rhodes Campbell, Ph.D., Consultative Licensed Clinical 2 Psychologist 3 4 On August 18, 2010 Dr. Robin Rhodes Campbell examined Plaintiff and 5 submitted a complete psychological evaluation. 6 Campbell reviewed Plaintiff s medication records and reported that 7 [Plaintiff] reports [that] he has difficulty with concentration and 8 memory. 9 appear that [Plaintiff] is experiencing psychotic symptoms, but [he] has 10 some intrusive thoughts. (Id.). Dr. Campbell stated that [Plaintiff] 11 report[ed] depression and substance abuse and drinks alcohol nightly 12 to help him sleep. 13 currently takes Lamotrigine [and Plaintiff stated that] the medication 14 has been beneficial. (AR 277). (AR 276-287). Dr. Dr. Campbell noted that [u]pon query, it did not (Id.). Dr. Campbell reported that Plaintiff (Id.). 15 16 In terms of Plaintiff s current level of functioning, Dr. Campbell 17 noted that [Plaintiff] is able to do household chores, run errands, 18 shop, cook, dress and bathe himself. [Plaintiff] does not drive. 19 [Plaintiff] enjoys swimming and drawing. 20 [Plaintiff] will smoke a cigarette, go swimming, watch television and 21 take a nap. 22 [Plaintiff] will play with his dog and feed his lizard. In the evening, 23 [Plaintiff] is not sure what his routine is. 24 noted that [t]here was nothing usual about [Plaintiff s] posture, 25 bearing, manner, or hygiene. 26 [Plaintiff s] mood was described as irritated, . . . [Plaintiff s] 27 [a]ffect was within normal limits with an adequate range. 28 Campbell found that [Plaintiff s] thought processes were linear and (AR 278). In the morning, (AR 278-79). In the afternoon, [Plaintiff] will eat. (Id.). 5 (AR 279). Dr. Campbell Dr. Campbell reported that while (Id.). Dr. 1 goal-directed with no loosening of associations, flight of ideas, racing 2 thoughts, 3 broadcasting. 4 exhibited no evidence of auditory or visual hallucinations, delusions, 5 or illusions. 6 [Plaintiff] denied current suicidal or homicidal ideation, plan or 7 intent. 8 oriented to person, place, time, and situation. [Plaintiff] did not 9 present with obvious cognitive delays. (Id.). In terms of Plaintiff s thought (Id.). thought insertion, withdrawal or Further, Dr. Campbell noted that [Plaintiff] There were no obsessions, compulsions, or paranoia. (Id.) to blocking, Dr. Campbell stated that [Plaintiff] was alert and 10 ability concentrate, Dr. Campbell stated that [Plaintiff s] 11 attention was unimpaired and [Plaintiff s] concentration was adequate 12 for conversation and time-limited assessment tasks. 13 addition, Dr. Campbell found that [Plaintiff s] insight and judgment 14 were good. 15 sense understanding. (Id.). In [Plaintiff] demonstrated no impairment in social and common (Id.). 16 17 Dr. Campbell administered the Wechsler Adult Intelligence Scale 18 test (WAIS-IV), the Wechsler Memory Scale test, the Bender Gestalt 19 Visual Motor Test II, the Trail-Making test, the Rey 15-Item Memory 20 test, 21 Personality Inventory test, and diagnosed Plaintiff using the DSM-IV. 22 (AR 280-83). 23 interpreted cautiously given the [Plaintiff s] poor effort. (AR 279). 24 The Wechsler Memory Scale test was aborted due to [Plaintiff s] lack 25 of motivation. the test of memory malingering, the Minnesota Multiphasic Dr. Campbell noted that her test results should be (AR 281). Dr. Campbell reported that: 26 27 Current test result indicate that [Plaintiff was] functioning 28 in the borderline range. However, given [Plaintiff s] poor 6 1 effort on the testing procedures, [the results are] unlikely 2 to be an accurate representation of the [Plaintiff s] current 3 cognitive and psychological functioning. 4 very poorly on the measure of memory; however, his effort on 5 this 6 instrument, [Plaintiff] scored as impaired in terms of his 7 perceptual ability and unimpaired in terms of his motor 8 functioning. 9 [Plaintiff] also scored as impaired. task was minimal. On a [Plaintiff] scored neurological screening On a second neurological screening instrument, On the Measure of 10 Memory Malingering, [Plaintiff] scored as malingering memory 11 deficits. 12 uninterpretable. 13 consistent 14 symptoms or also potentially a measure of his objective 15 distress and could also be interpreted as a cry for help. [Plaintiff s] with MMPI-2 [Plaintiff s] exaggeration or profile is feigning of and profile validity invalid was psychiatric 16 17 (AR 282). Dr. Campbell diagnosed Plaintiff with cannabis dependence and 18 mood disorder. (AR 283). Dr. Campbell further reported that: 19 20 Based on the current findings, the [Plaintiff s] current test 21 results are invalid in regard to his intellectual memory 22 functioning. 23 the degree to which [Plaintiff] has psychiatric symptoms that 24 would interfere with his ability to understand, remember and 25 carry out detailed instructions. [Plaintiff] did not appear 26 \\ 27 It is not possible at this time to ascertain \\ 28 7 1 to be giving tasks history, his best effort. [Plaintiff] does Based upon some mood 2 [Plaintiff s] have 3 instability as well as probable substance dependence. 4 5 (AR 283). Dr. Campbell made the following conclusion: 6 7 [Plaintiff] 8 remembering, and carrying out short, simple instructions. In 9 addition, [Plaintiff s] ability to understand, remember, and out would have no impairment detailed instructions would unimpaired in 10 carry 11 [Plaintiff] 12 judgment on simple, work-related decisions. [Plaintiff] may 13 have moderate-to-marked difficulty in relating appropriately 14 to the public, supervisors, and co-workers. [Plaintiff s] 15 ability to withstand the stress and changes associated with 16 an eight-hour workday and day-to-day work activities is 17 mildly to moderately impaired. be would understanding, in his be unimpaired. ability to make 18 19 (AR 283). Dr. Campbell also noted that [Plaintiff] does not appear to 20 be able to appropriately handle funds in his own best interest due to 21 ongoing 22 [Plaintiff] drinks a case of alcohol a week, uses marijuana daily, 23 and last used methamphetamines six months ago and cocaine two years 24 ago. 25 Campbell stated that [Plaintiff] has good physical health and [t]here 26 was no report of head injury or loss of consciousness. 27 \\ substance (AR 278). abuse. (Id.). Dr. Campbell reported [Plaintiff] last used heroin and PCP. 28 8 (Id.). (Id.). that Dr. 3. Dr. R. Paxton, Medical Consultant 1 2 3 In a July 11, 2009 Mental Residual Function Capacity Assessment, 4 Dr. R. Paxton indicated that Plaintiff s ability to understand and 5 remember very short and simple instructions was not significantly 6 limited, while Plaintiff s ability to understand and remember detailed 7 instructions was moderately limited. 8 that while Plaintiff s ability to carry out very short and simple 9 instructions was not significantly limited, Plaintiff s ability to carry (AR 214). Dr. Paxton also noted 10 out detailed instructions was moderately limited. 11 noted that Plaintiff is not significantly limited in his ability to 12 maintain attention and concentration for extended periods, to sustain 13 an 14 coordination with or proximity to others without being distracted by 15 them. ordinary routine without special (Id.) supervision, and Dr. Paxton to work in (Id.) 16 17 Dr. Paxton also noted that Plaintiff is moderately limited in his 18 ability to interact appropriately with the general public, but is not 19 significantly limited in his ability to accept instructions and respond 20 appropriately to criticism from supervisors or to maintain socially 21 appropriate behavior and to adhere to basic standards of neatness and 22 cleanliness. 23 Paxton stated that [Plaintiff] is able to understand and remember 24 simple but not detailed tasks[;] [Plaintiff] is able to maintain 25 concentration, pace and persistence over a normal work day and work 26 week[;] 27 [Plaintiff] is able to adapt to normal work environment and situations. (AR 215). [Plaintiff] In his functional capacity assessment, Dr. should have 28 9 limited public contact[;] and 1 (AR 216). 2 Dr. Paxton concluded that an RFC assessment was necessary. (AR 217). 3 4. 4 Hospitalization 5 The Desert Regional Medical Center admitted Plaintiff on February 6 7 25, 2009 on a 5150 hold.1 8 father and brother, Plaintiff pretended to take an overdose of [his] 9 medications and state[ed] that he did not want[] to live anymore. (AR 176-179). After an altercation with his (AR 10 177). [Plaintiff] reports [that] he actually threw the medication in 11 his room[,] [but] [h]e does admit to going to friend (Derek s) house to 12 look for Derek s father s gun. 13 [Plaintiff] admitt[ed] that he easily becomes enraged and often has 14 suicidal thoughts. 15 Plaintiff s use of marijuana. (AR 177). (AR 184). In a hospital report The Emergency Department Record noted (AR 184, 189). 16 Plaintiff was transferred to Aurora Charter Oak Hospital for a 72- 17 18 hour hold. (AR 205). A February 26, 2009 mental status exam revealed 19 [Plaintiff s] 20 Plaintiff s February 28, 2009 discharge summary stated that he does use 21 marijuana, and his urine drug screen was positive for it. 22 summary also indicated that Plaintiff had [i]mproved. 23 Plaintiff s orientation discharge and diagnosis memory to indicated be adequate. bipolar (Id.). (Id.). The (AR 206). disorder and 24 25 1 Under California Welfare and Institutions Code § 5150, [w]hen any person, as a result of mental disorder, is a danger to others, or to 26 himself or herself, or gravely disabled, a peace officer . . . may, upon 27 probable cause, take, or cause to be taken, the person into custody and place him or her in a facility designated by the county and approved by 28 the State Department of Mental Health as a facility for 72-hour treatment and evaluation. 10 1 polysubstance abuse. (Id.). Dr. Adib Bitar stated that Plaintiff s 2 [p]rognosis [was] good [at the time of release] if the [Plaintiff] 3 abstain[ed] from polysubstance abuse, and continue[d] treatment with 4 Lamictal and outpatient treatment. (AR 207). 5 6 B. Plaintiff s History of Substance Abuse 7 8 9 Plaintiff testified that he smokes a pack of cigarettes every two days, does not drink, and stopped smoking marijuana when he was sixteen. 10 (AR 21). Plaintiff stated that he stopped smoking marijuana because 11 it got [him] in trouble at school a lot. 12 also testified that he had relapsed a couple times . . . to help [him] 13 calm down. . . . 14 [marijuana] anymore because it seems to mess with [his] emotions a lot. 15 (AR 22). Plaintiff testified that the last time he used marijuana was 16 in 2009 when [he] bought a $10 bag off someone and [his] brother knew 17 and then [Plaintiff] got drunk and the next day [he] just didn t feel 18 right and they put [Plaintiff] in the solitaire lockdown. 19 In a February 25, 2009 emergency room report [Plaintiff] admit[ted] to 20 smoking 1 gram of marijuana daily[,] [but] [d]enie[d] all other drug 21 use. 22 a positive urine test for marijuana. (AR 21-22). (AR 184, 189). (Id.). However, Plaintiff Plaintiff noted that [he] never use[s] (AR 28). A February 28, 2009 discharge summary indicated (AR 205). 23 24 In a case record report from April 20, 2009, Dr. Janik reported 25 positive heroin use and indicated usage of multiple other drugs. 26 255). 27 heroin. 28 a street drug was cocaine six months prior. (AR In his testimony before the ALJ, Plaintiff denied ever using (AR 39). Dr. Janik also stated that Plaintiff s last use of 11 (AR 255). Dr. Janik noted 1 that Plaintiff sporadically drank alcohol, was not in a drug 2 rehabilitation program, and did not abuse prescription drugs. 3 On June 16, 2009, Dr. Janik noted that Plaintiff still smokes weed and 4 needs [to] stop drugs. (AR 251). On August 11, 2009 Dr. Janik stated 5 that Plaintiff denie[d] all marijuana - [and Plaintiff] was getting 6 more nervous. (Id.). (AR 250). 7 8 In her psychological evaluation on August 18, 2010, Dr. Campbell 9 reported that [Plaintiff] drinks a case of alcohol a week, uses 10 marijuana daily, and last used methamphetamines six months ago and 11 cocaine two years ago and she noted heroin and PCP use. 12 Dr. Campbell diagnosed Plaintiff with cannabis dependence. (AR 278). (AR 283). 13 14 C. Plaintiff And Cathy Wooley s Testimony 15 1. 16 Plaintiff 17 Plaintiff testified that he usually sees a doctor [o]nce every 18 19 month. (AR 24). Plaintiff stated that he has been a patient of Dr. 20 Janik for a year and a half maybe. (AR 24). Plaintiff testified that 21 he cannot work due to his mental condition: 22 23 I just don t know when I m going to burst out or some days I 24 just don t want to wake up. 25 going and, I just can t deal with coping with people telling 26 me what to do all the time. 27 It s hard for me to do that. \\ 28 I feel, just don t feel like \\ 12 1 (AR 22). Plaintiff stated that he worked for his father for a few 2 years, but that [his] father . . . doesn t want [Plaintiff] going to 3 work because of [Plaintiff s] outbursts. [Plaintiff s father] doesn t 4 want [Plaintiff] to be around there. 5 looked for other employment, Plaintiff stated [y]eah, but I just 6 haven t, I just don t feel like doing it. 7 to get on it and do it every day. 8 during the day he swim[s]. Sometimes [Plaintiff] just get[s] real mad. 9 [Plaintiff] just go[es] swimming. [Plaintiff doesn t] know what else to (AR 23). (AR 22-23). When asked if he I tried but I just can t seem (AR 23). Plaintiff testified that 10 do really. 11 spends [f]our hours a day in the pool. 12 Plaintiff testified that he [j]ust eat[s] and watch[es] TV and that s 13 about it. 14 the past year. (AR 23). Plaintiff further explained that he usually (AR 23). During the winter, Plaintiff has not applied for any work at all in (AR 26). Plaintiff further testified: 15 16 It bothers [Plaintiff] that [he] can t go to school and do 17 what they ask [him] to do. [Plaintiff] get[s] pissed about 18 things [that Plaintiff does not] agree with and [Plaintiff 19 has] to do it. 20 that. 21 with [him] outbursts so [he] just (inaudible) to even bother. [Plaintiff] just [doesn t] want to deal with That s why [Plaintiff does not] want to get in trouble 22 23 (AR 25). Plaintiff stated that he has felt suicidal in the past. 24 26). 25 thinking. 26 problems with OCD. (AR 27-28). 27 sleep well and that he hears voices everyday. 28 takes Lamictal and he stated that it improves his condition. (AR Plaintiff affirmed that his only symptoms are anger and suicidal (AR 27). Plaintiff testified that he also somewhat has Plaintiff also stated that he does not 13 (AR 28-29). Plaintiff (AR 27). 1 2. Cathy Wooley 2 3 Cathy Wooley, Plaintiff s mother, submitted a Third Party Function 4 Report on May 17, 2009, and testified at the administrative hearing. 5 (AR 31-39, 139-146). Wooley reported that [Plaintiff] has a very short 6 attention span. [Plaintiff] angers quickley (sic) and sometimes he[ ]s 7 a danger to himself and others. (AR 139). 8 [s]pends time drawing, smoking, arguing with family, naping (sic), and 9 complaining about most everything. Wooley noted that Plaintiff (Id.). Wooley stated that 10 [s]ometimes [Plaintiff] needs [a] reminder to take a shower and to 11 eat. 12 sometimes and that [i]t s like walking on eggshells with [Plaintiff]. 13 You never no (sic) when he[ ]s going to blow up. (AR 141). Wooley noted that [Plaintiff] has to (sic) much rage (AR 142, 144). 14 15 Wooley reported that Plaintiff has difficulty [c]ompleting tasks, 16 concentrat[ing], following [i]nstructions, and getting along with others 17 . . . [because] of his bipolar [condition.] 18 noted that Plaintiff [d]oesn t have the patience to read instructions 19 and that he does not get a [l]ong (sic) with authority figures because 20 [Plaintiff] tends to mouth off. 21 Plaintiff walked[ed] off [from work] or he was sent home for not 22 getting along with others . . . because of his [l]anguage [and] out 23 bursts. (AR 144). (AR 144-45). Wooley also Wooley stated that (AR 145). 24 25 Wooley testified that she does not currently live with Plaintiff 26 and sees Plaintiff [a]bout every two days for ten minutes. 27 31). Wooley stated that she lived with Plaintiff until two months prior 28 to the hearing. (AR 32). (AR 30- Wooley testified that Plaintiff threatens to 14 1 kill himself every couple of weeks. (Id.). Wooley stated that 2 Plaintiff has been depressed his whole life. 3 testified that [she didn t] think the counseling helps much, but that 4 the Lamictal [is] helping [Plaintiff]. (AR 33). Wooley also (AR 34). 5 Wooley stated that Plaintiff s most difficult time is in the 6 7 morning because he has no medicine in his system. 8 noted that [w]ithin an hour or so [of Plaintiff taking his medicine,] 9 [Plaintiff] calms down[,] but it s just like walking on eggshells with (AR 35). (AR 34-35). Wooley 10 [Plaintiff] all the time. Wooley stated that she has seen 11 Plaintiff punch his face and hit his [own] head on the wall. (Id.). 12 Wooley testified that [Plaintiff] can t control his anger. (AR 36). 13 14 D. The Vocational Expert s Testimony 15 Abbie May, an impartial vocational expert ( VE ), testified on June 16 17 17, 2010. (AR 17-18, 40-43). The ALJ provided the following 18 hypothetical question to the VE: 19 claimant s age, education, prior work experience or maybe no work 20 experience. 21 on dangerous machinery; requires a nonpublic setting with limited 22 communication with fellow employees. 23 a person with these limitations could perform work as, various labor 24 type jobs. 25 work as a construction laborer, unskilled . . . [or] [t]his person might 26 also work a light occupation such as a laundry worker in the resorts. 27 (AR 41- 42). 28 Assume a hypothetical individual[,] same restrictions [as the first Assume a hypothetical individual the Assume this person has no exertional limitations; no work (AR 41). The VE responded that A landscape laborer, unskilled . . . This person could also The ALJ posed a second hypothetical question to the VE: 15 1 hypothetical above.] This person would be off task at least 20 percent 2 of the time due to psychological based symptoms. 3 responded that this additional limitation would preclude work. (Id.). (AR 42). The VE 4 5 IV. 6 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 7 8 To qualify for disability benefits, a claimant must demonstrate 9 a medically determinable physical or mental impairment that prevents him 10 from engaging in substantial gainful activity2 and that is expected to 11 result in death or to last for a continuous period of at least twelve 12 months. 13 42 U.S.C. § 423(d)(1)(A)). 14 incapable of performing the work he previously performed and incapable 15 of performing any other substantial gainful employment that exists in 16 the national economy. 17 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 18 19 20 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are: 21 22 (1) Is the claimant presently engaged in substantial gainful 23 activity? 24 If not, proceed to step two. 25 (2) Is the If so, the claimant is found not disabled. claimant s impairment severe? If not, the 26 27 2 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay 28 or profit. 20 C.F.R. §§ 404.1510, 416.910. 16 1 claimant is found not disabled. 2 three. 3 (3) If so, proceed to step Does the claimant s impairment meet or equal one of a 4 list of specific impairments described in 20 C.F.R. Part 5 404, Subpart P, Appendix 1? 6 found disabled. 7 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing his past work? 8 so, the claimant is found not disabled. 9 If to step five. 10 (5) If not, proceed Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the If so, the claimant is found not disabled. 13 14 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 15 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)- 16 404.1520(f)(1) & 416.920(b)-416.920(f)(1). 17 18 The claimant has the burden of proof at steps one through four, and 19 the Commissioner has the burden of proof at step five. 20 F.3d 21 affirmative duty to assist the claimant in developing the record at 22 every step of the inquiry. 23 meets his burden of establishing an inability to perform past work, the 24 Commissioner must show that the claimant can perform some other work 25 that exists in significant numbers in the national economy, taking 26 into at 953-54 account (citing the Tackett). Additionally, Id. at 954. claimant s residual Bustamante, 262 the ALJ has an If, at step four, the claimant functional capacity,3 age, 27 28 3 Residual functional capacity is what [one] can still do despite [his] limitations and represents an assessment based upon all 17 1 education, and work experience. Tackett, 180 F.3d at 1098, 1100; 2 Reddick, 157 F.3d at 721; 20 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 3 The Commissioner may do so by the testimony of a vocational expert or 4 by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. 5 Part 404, Subpart P, Appendix 2 (commonly known as the Grids ). 6 Osenbrock v. Apfel, 240 F.3d 1157, 1162 7 Tackett). 8 nonexertional limitations, the Grids are inapplicable and the ALJ must 9 take the testimony of a vocational expert. (9th Cir. 2001) (citing When a claimant has both exertional (strength-related) and Moore v. Apfel, 216 F.3d 10 864, 869 (9th Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 11 (9th Cir. 1988)). 12 13 V. 14 THE ALJ S DECISION 15 16 The ALJ employed the five-step sequential evaluation process 17 discussed above. 18 had not engaged in substantial gainful activity since April 27, 2009, 19 the application date. 20 suffers 21 dependence. 22 did] not have an impairment or combination of impairments that [met] or 23 medically [equaled] one of the listed impairments in 20 CFR Part 404, 24 Subpart P, Appendix 1. (Id.). In the fourth step of his analysis, the 25 ALJ incorporated the limitations prescribed by the vocational expert and from At the first step, the ALJ indicated that Plaintiff mood (Id.). (AR 11). disorder, Second, the ALJ found that Plaintiff marijuana dependence, and alcohol At the third step, the ALJ found that [Plaintiff 26 27 28 of the relevant evidence. 20 C.F.R. §§ 404.1545(a), 416.945(a). 18 1 the medical 2 record in formulating Plaintiff s residual function capacity: 3 4 After careful examination of the entire record, [the ALJ 5 found] that [Plaintiff] has the residual function capacity to 6 perform a full range of work at all exertional levels[,] but 7 with the following nonexertional limitations: [Plaintiff] is 8 limited to work in a non-public setting and should have 9 limited interaction should with not coworkers work around and 10 [Plaintiff] moving 11 supervisors. or dangerous machinery because of his substance abuse. 12 13 (AR 12). The ALJ noted that he [gave] very limited weight to [the] 14 check sheet from Dr. Janik because it is not consistent with or 15 supported by the other medical evidence including Dr. Janik s own 16 treatment records. 17 great 18 examiner. weight to (AR 13) The ALJ instead noted that he [gave] the assessment of the psychological to Plaintiff s testimony, consulting (Id.). 19 20 With respect 21 [Plaintiff s] 22 credible . . . . In general, [the ALJ noted that Plaintiff s] statements 23 concerning the intensity, persistence and limiting effects of his 24 symptoms [were] credible only to the extent that they [were] consistent 25 with the . . . residual functional capacity assessment. 26 Further, the ALJ considered the Third Party Function Report form 27 completed by Cathy Wooley, mother of [Plaintiff], dated May 17, 2009. 28 . . . Ms. Wooley state[d] that [Plaintiff s] activities [were] very allegations about his 19 the impairments ALJ found [were] not that fully (AR 14). 1 limited due to his mental impairments. 2 obviously concerned about [Plaintiff s] well-being, she [was] not a 3 medical 4 impairments or to assess their effect on [Plaintiff s] ability to 5 perform work-related activities. [The ALJ] [t]herefore [gave] very 6 little probative weight to the Third Party Function Report. professional or otherwise Although the mother [was] qualified to diagnose severe (Id.). 7 8 The ALJ found that [Plaintiff] is unable to perform any past 9 relevant work[,] but that Plaintiff is capable of making a successful 10 adjustment to other work that exists in significant numbers in the 11 national economy. 12 Plaintiff is not disabled. (AR 14-15). The ALJ therefore concluded that (AR 15). 13 14 VI. 15 STANDARD OF REVIEW 16 17 Under 42 U.S.C. § 405(g), a district court may review the 18 Commissioner s decision to deny benefits. The court may set aside the 19 Commissioner s decision when the ALJ s findings are based on legal error 20 or are not supported by substantial evidence in the record as a whole. 21 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (citing 22 Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 F.3d 1273, 1279 (9th 23 Cir. 1996) (citing Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). 24 Substantial evidence is more than a scintilla, but less than a 25 preponderance. 26 112 F.3d 1064, 1066 (9th Cir. 1997)). 27 a reasonable person might accept as adequate to support a conclusion. 28 Id. (citing Jamerson, 112 F.3d at 1066; Smolen, 80 F.3d at 1279). Reddick, 157 F.3d at 720 (citing Jamerson v. Chater, 20 It is relevant evidence which To 1 determine whether substantial evidence supports a finding, the court 2 must consider the record as a whole, weighing both evidence that 3 supports 4 conclusion. 5 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support 6 either affirming or reversing that conclusion, the court may not 7 substitute its judgment for that of the Commissioner. Reddick, 157 F.3d 8 at 720-21 (citing Flaten v. Sec y, 44 F.3d 1453, 1457 (9th Cir. 1995)). and evidence that detracts from the [Commissioner s] Aukland, 257 F.3d at 1035 (citing Penny v. Sullivan, 2 9 10 VII. 11 DISCUSSION 12 13 Plaintiff contends that remand is required because the ALJ: (1) 14 improperly considered the opinions of Consultative Examiner Robin 15 Campbell and (2) improperly discredited Wooley s Third Party Function 16 Report. 17 The Court finds that remand is not required based upon these claims. (Memorandum in Support of Complaint ( Compl. Mem. at 2-7)).4 18 19 A. The ALJ Properly Considered the Opinion of Robin Rhodes Campbell 20 21 Plaintiff argues that while the ALJ [gave] great weight to Dr. 22 Campbell s opinions[,] [the ALJ] overlooked [Dr. Campbell s] opinion 23 about stress. (Compl. Mem. at 2). Although [the ALJ] credited Dr. 24 25 4 The Court notes that Plaintiff does not contest the ALJ s 26 treatment of Dr. Janik s findings, nor the ALJ s rejection of 27 Plaintiff s credibility. (See Compl. Mem. at 2-7). Plaintiff instead limits his contentions to (A) the ALJ s treatment of Consultative 28 Examiner Robin Campbell s report and (B) the ALJ s rejection of the Third Party Testimony by Cathy Wooley. (See id.). 21 1 Campbell generally, [the ALJ] did not even mention Dr. Campbell s 2 opinion about stress. [The ALJ] thereby implicitly denied it [and] [b]y 3 so doing, the ALJ erred. 4 Campbell s observation about stress corroborates the lay observations 5 of Cathy Wooley . . . who indicated that Plaintiff could not deal with 6 stress and in fact would sometimes react to it by violence. 7 4). (Id.). Plaintiff further noted that Dr. (Id. at The Court disagrees. 8 9 Here, Plaintiff s allegation that the ALJ erred in overlooking Dr. 10 Campbell s opinion about stress is without merit. Dr. Campbell examined 11 Plaintiff at the Agency s request. 12 above, Dr. Campbell diagnosed Plaintiff with cannabis dependence and 13 mood disorder. 14 a psychosocial stressor for Plaintiff. 15 Dr. Campbell noted that [Plaintiff s] ability to withstand the stress 16 and changes associated with an eight-hour workday and day-to-day work 17 activities [was] mildly to moderately impaired. (AR 283). (See AR 42-43, 276). As noted Dr. Campbell also noted that unemployment is (Id.). With respect to stress, (Id.). 18 19 The record refutes Plaintiff s claim that the ALJ failed to 20 properly consider or discuss Dr. Campbell s findings with respect to 21 Plaintiff s stress levels. In his discussion of Dr. Campbell s opinion, 22 the ALJ specifically noted that Dr. Campbell reported that [Plaintiff] 23 would have mild to moderate impairment dealing with workday stresses and 24 changes and moderate to marked difficulty relating to the public, 25 supervisors, and coworkers. (AR 13). After considering Dr. Campbell s 26 opinion, as well as the remaining medical evidence, the ALJ included 27 certain mental limitations in Plaintiff s residual function capacity. 28 Specifically, the ALJ included the following nonexertional limitations: 22 1 [Plaintiff] is limited to work in a non-public setting and should have 2 limited interaction with coworkers and supervisors. [Plaintiff] should 3 not work around moving or dangerous machinery because of his substance 4 abuse. 5 included these limitations: no work on dangerous machinery; requires 6 a nonpublic setting with limited communication with fellow employees. 7 (AR 41). 8 Plaintiff s RFC and included limitations suggested by Dr. Campbell s 9 August 18, 2010 psychological evaluation. Plaintiff s claim that the 10 ALJ opinion 11 Plaintiff s stress level is undermined by the record. (AR 12). Further, in his hypothetical to the VE, the ALJ Thus, the Court concludes that the ALJ properly assessed failed to consider Dr. Campbell s with respect to 12 13 Moreover, Dr. Campbell s findings do not support Plaintiff s claims 14 of disability. As noted, Dr. Campbell found that [Plaintiff s] thought 15 processes 16 associations, flight of ideas, racing thoughts, thought blocking, 17 thought insertion, withdrawal or broadcasting. (AR 279). Further, Dr. 18 Campbell noted that [Plaintiff] exhibited no evidence of auditory or 19 visual 20 obsessions, 21 suicidal or homicidal ideation, plan or intent. 22 stated that [Plaintiff] was alert and oriented to person, place, time, 23 and situation. [Plaintiff] did not present with obvious cognitive 24 delays. 25 Campbell stated that [Plaintiff s] attention was unimpaired and 26 [Plaintiff s] concentration was adequate for conversation and time- 27 limited assessment tasks. 28 that [Plaintiff s] were linear hallucinations, and delusions, compulsions, (Id.) goal-directed or or paranoia. with no illusions. loosening There [Plaintiff] denied (Id.). were of no current Dr. Campbell In terms of Plaintiff s ability to concentrate, Dr. insight (Id.). and In addition, judgment 23 were Dr. Campbell found good. [Plaintiff] 1 demonstrated no impairment in social and common sense understanding. 2 (Id.). 3 have no impairment in understanding, remembering, and carrying out 4 short, simple instructions. 5 understand, remember, and carry out detailed instructions would be 6 unimpaired. [Plaintiff] would be unimpaired in his ability to make 7 judgment on simple, work-related decisions. (AR 283). 8 support the ALJ s RFC determination. Furthermore, Dr. Campbell noted that [t]he [Plaintiff] would In addition, [Plaintiff s] ability to These findings 9 10 Furthermore, Dr. Campbell s assessment is corroborated by the 11 findings of Dr. Paxton and Dr. Bitar. In his functional capacity 12 assessment, Dr. Paxton stated that [Plaintiff] is able to understand 13 and remember simple but not detailed tasks[;] [Plaintiff] is able to 14 maintain concentration, pace and persistence over a normal work day and 15 work week[;] [Plaintiff] should have limited public contact[;] and 16 [Plaintiff] is able to adapt to normal work environment and situations. 17 (AR 216). 18 Plaintiff s [p]rognosis [was] good [at the time of release] if the 19 [Plaintiff] 20 treatment with Lamictal and outpatient treatment. After Plaintiff s 5150 hold, Dr. Adib Bitar noted that abstain[ed] from polysubstance abuse, and continue[d] (AR 207). 21 22 Even if the ALJ should have considered additional non-exertional 23 limitations, this consideration would 24 modification of the RFC, and therefore any error was harmless error. 25 See Carmickle v. Comm r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 26 2008) (if ALJ s error was inconsequential to the ultimate nondisability 27 \\ 28 \\ 24 have only led to a slight 1 determination, no remand required); Burch v. Barnhart, 400 F.3d 676, 679 2 (9th Cir. 2005) ( A decision of the ALJ will not be reversed for errors 3 that are harmless. ). No remand is required. 4 5 B. The ALJ Properly Rejected Wooley s Third Party Statement 6 7 Plaintiff also argues that the ALJ did not give a reason germane 8 to Ms. Wooley for rejecting her written report. (Compl. Mem. at 5). 9 Specifically, Plaintiff contends that the ALJ erred in rejecting Ms. 10 Wooley s testimony on the ground that she did not have the medical 11 expertise necessary to offer such observations. (Id. at 6). Plaintiff 12 further argues that the ALJ s rationale is a categorical statement that 13 could apply to most if not all lay witnesses. 14 Ms. Wooley did not attempt to diagnose a condition. [Ms. Wooley] merely 15 reported relevant observations of symptoms and limitations that affect 16 Plaintiff s ability to work. 17 the reason provided by the ALJ was a reason that would be germane to 18 many lay witnesses, and therefore is arguably not a proper reason for 19 rejecting Wooley s testimony, the Court finds that such error was 20 harmless error here. It is also inaccurate: (Id. at 5). While the Court agrees that 21 22 The ALJ stated that he considered the Third Party Function Report 23 form completed by Cathy Wooley, mother of the claimant, dated May 17, 24 2009. 25 limited due to his mental impairments. Although the mother is obviously 26 concerned 27 professional or otherwise qualified to diagnose severe impairments or 28 to assess their effect on [Plaintiff s] ability to perform work-related Ms. Wooley state[d] that [Plaintiff s] activities are very about [Plaintiff s] well-being, 25 she is not a medical 1 activities. Therefore, [the ALJ gave] very little probative weight to 2 the Third Party Function Report. (AR 14). 3 4 The ALJ is required to consider the credibility of lay testimony 5 concerning a plaintiff s ability to work. Bruce v. Astrue, 557 F.3d 6 1113, 1115 (9th Cir. 2009). 7 the ALJ must provide specific reasons that are germane to each witness 8 whose testimony he rejects. 9 Admin., 454 F.3d 1050, 1054 (9th Cir. 2006)); see also Carmickle, 533 10 F.3d at 1164 (noting that an ALJ need only provide reasons germane to 11 [the] witness for rejecting lay witness testimony). 12 discuss medical diagnoses made by lay witnesses because they are 13 beyond the competence of lay witnesses and therefore do not constitute 14 competent evidence. 15 1996) (citing 20 C.F.R. § 404.1513(a)). However, lay witness testimony 16 as to a claimant s symptoms or how an impairment affects ability to work 17 is competent evidence, and therefore cannot be disregarded without 18 comment. If an ALJ rejects lay witness testimony, Id. (citing Stout v. Comm r, Soc. Sec. An ALJ need not Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. Id. (internal citations omitted). 19 20 Wooley submitted a Third Party Function Report on May 17, 2009 and 21 testified at the administrative hearing. 22 respect to Plaintiff s medical condition, Wooley reported that Plaintiff 23 has 24 [i]nstructions, and getting along with others 25 bipolar [condition.] (AR 144). 26 [d]oesn t have the patience to read instructions and that he does not 27 get a [l]ong (sic) with authority figures because [Plaintiff] tends 28 to mouth off. difficulty [c]ompleting (AR 144-45). tasks, (AR 31-39, 139-146). concentrat[ing], With following . . . [because] of his Wooley also noted that Plaintiff Wooley stated that Plaintiff walked[ed] 26 1 off [from work] or he was sent home for not getting along with others 2 . . . because of his [l]anguage [and] outbursts. 3 testified that Plaintiff has been depressed his whole life. 4 Wooley also stated that [she didn t] think the counseling helps much, 5 but that the Lamictal [was] helping [Plaintiff]. (AR 145). Wooley (AR 33). (AR 34). 6 7 Here, the ALJ expressly considered Wooley s statements. (See AR 8 14). Wooley offered her opinions as to how Plaintiff s mental condition 9 affected Plaintiff s ability to concentrate and work. (See AR 144). 10 While the reason given for rejecting her testimony was a reason that was 11 germane to the witness, i.e., she was not a medical professional, it was 12 a reason that would be germane to most lay witnesses. 13 that the ALJ s proferred reason was not a legitimate reason to reject 14 a lay witnesses testimony. The Court agrees 15 16 However, such error was harmless error because the decision remains 17 legally valid. See Keyser v. Commissioner Social Sec. Admin., ___ F.3d 18 ___, 2011 WL 2138237, at * 6 (9th Cir. June 1, 2011) ( an error 19 inconsequential 20 harmless ) (quoting Stout, 454 F.3d at 1055). 21 merely cumulative of Plaintiff s own testimony, which was properly 22 rejected. 23 report and testimony, this consideration would have only led to a slight 24 modification of the RFC, and therefore any error was harmless error 25 because the ALJ would have continued to find Plaintiff not entitled to 26 benefits. 27 based upon this evidence, even if Wooley s statements were fully 28 credited. to the ultimate nondisability determination is Wooley s testimony was Even if the ALJ should have given greater weight to Wooley s No reasonable ALJ would have reached a different decision See Stout, 454 F.3d at 1056 ( [Where the ALJ s error lies in 27 1 a failure to properly discuss competent lay testimony favorable to the 2 claimant, a reviewing court cannot consider the error harmless unless 3 it can confidently conclude that no reasonable ALJ, when fully crediting 4 the testimony, could have reached a different determination. ). 5 6 The Court finds that the ALJ s conclusion that Plaintiff can 7 perform work with certain nonexertional limitations is supported by 8 substantial evidence in the record. Accordingly, no remand is required. 9 10 VIII. 11 CONCLUSION 12 13 Consistent with the foregoing, IT IS ORDERED that Judgment be 14 entered AFFIRMING the decision of the Commissioner and dismissing this 15 action with prejudice. 16 Court serve copies of this Order and the Judgment on counsel for both 17 parties. IT IS FURTHER ORDERED that the Clerk of the 18 19 20 DATED: August 4, 2011 21 22 23 __________/S/_________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 28

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