Brenda Maidlow v. Michael J. Astrue, No. 5:2010cv01970 - Document 17 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 BRENDA MAIDLOW, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 10-01970-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on December 29, 2010, seeking review of 19 the denial by the Social Security Commissioner (the Commissioner ) of 20 plaintiff s 21 disability insurance benefits ( DIB ).1 On January 21, 2011, the parties 22 consented, pursuant to 28 U.S.C. § 636(c), to proceed before the application for a period of disability ( POD ) and 23 24 1 25 26 27 28 Plaintiff s Complaint purportedly seeks review of not only the Commissioner s decision denying plaintiff s application for POD and DIB but also the Commissioner s decision allegedly denying plaintiff s application for social security income ( SSI ). The Commissioner only denied plaintiff s application for POD and DIB; it does not appear that plaintiff applied for SSI. (See generally A.R. 112-22.) Accordingly, the Court limits its review to the Commissioner s denial of plaintiff s application for POD and DIB. 1 undersigned United States Magistrate Judge. The parties filed a Joint 2 Stipulation on September 12, 2011, in which: plaintiff seeks an order 3 reversing the Commissioner s decision and remanding this case for the 4 payment 5 proceedings; and defendant requests that the Commissioner s decision be 6 affirmed 7 proceedings. 8 submission without oral argument. of benefits or, or, alternatively, alternatively, remanded for for further further administrative administrative The Court has taken the parties Joint Stipulation under 9 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 10 11 12 Plaintiff filed an application for POD and DIB. (Administrative 13 Record ( A.R. ) 10.) Plaintiff, who was born on February 13, 1962 (A.R. 14 18),2 claims to have been disabled since June 13, 2004 (A.R. 10), due to 15 depression, bipolar disorder with psychotic features, panic disorder, 16 borderline intellectual functioning, knee pain, difficulties standing 17 for long periods at a time, and seizures (A.R. 92, 97, 138, 251). 18 Plaintiff has past relevant work experience as a warehouse worker, 19 secretary, and production assembler. (A.R. 18.) 20 21 After the Commissioner denied plaintiff s claim initially and upon 22 reconsideration (A.R. 92-101), plaintiff requested a hearing (see A.R. 23 104-09). 24 counsel, appeared and testified at a hearing before Administrative Law 25 Judge Sharilyn Hopson (the ALJ ). On October 21, 2009, plaintiff, who was represented by (A.R. 53-89.) At the hearing, 26 27 28 2 On the alleged disability onset date, plaintiff was 42 years old, which is defined as a younger individual. (A.R. 18; citing 20 C.F.R. § 404.1563.) 2 1 plaintiff s husband John Maidlow, vocational expert Corrine J. Porter, 2 and medical expert Dr. David Glassmire,3 a psychologist, also testified. 3 On December 7, 2009, the ALJ denied plaintiff s claim (A.R. 10-19), and 4 the Appeals Council subsequently denied plaintiff s request for review 5 of the ALJ s decision (A.R. 1-3). 6 action. That decision is now at issue in this 7 SUMMARY OF ADMINISTRATIVE DECISION 8 9 10 The ALJ found that plaintiff has not engaged in substantial gainful 11 activity since June 13, 2004, the alleged onset date of her disability. 12 (A.R. 12.) 13 impairments: 14 disorder NOS; disorders of muscle, ligament, and fascia; sprains and 15 strains; and epilepsy. 16 plaintiff does not have an impairment or a combination of impairments 17 that meets or equals one of the listed impairments in 20 C.F.R. Part 18 404, 19 404.1526). The ALJ determined that plaintiff has the following severe Subpart major depressive disorder; bipolar disorder; psychotic P, Appendix (A.R. 12.) 1 (20 The ALJ also determined that C.F.R. §§ 404.1520(d), 404.1525, (A.R. 13.) 20 21 After reviewing the record, the ALJ determined that plaintiff has 22 the residual functional capacity ( RFC ) to perform sedentary to light 23 work as defined in 20 C.F.R. § 404.1567(b). 24 the ALJ determined that plaintiff is capable of: (A.R. 14.) Specifically, 25 26 3 27 28 There is a discrepancy in the record regarding the spelling of the name of the medical expert. (Compare A.R. 10, with A.R. 54.) For purposes of this memorandum opinion and order, the Court has adopted the spelling used by the ALJ in her decision 3 1 standing and/or walking for 2 hours, up to 30 minutes at one 2 time; sitting for 8 hours with normal breaks such as every 2 3 hours; lifting and/or carrying 10 pounds frequently and 20 4 pounds occasionally; with no climbing of ladders, working at 5 heights, or balancing; with no squatting, kneeling, crawling, 6 running, or jumping; with no operation of motorized equipment 7 or 8 repetitive tasks; with no public contact; with occasional 9 contact with coworkers or supervisors; with no hypervigilance; work around unprotected machinery; limited to simple and with no responsibility for the safety of others. 10 11 12 (Id.) 13 14 The ALJ concluded that plaintiff is unable to perform her past 15 relevant work. (A.R. 18.) However, having considered plaintiff s age, 16 education, work experience, RFC, and the testimony of the vocational 17 expert, the ALJ found that jobs exist in the national economy that 18 plaintiff could perform, including electronics worker, small products 19 assembler hospital products, and production inspector - eyeglasses. 20 (A.R. 18-19.) 21 been under a disability, as defined in the Social Security Act, from 22 June 13, 2004, through the date of her decision. Accordingly, the ALJ concluded that plaintiff has not (A.R. 19.) 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 27 decision to determine whether it is free from legal error and supported 28 by substantial evidence in the record as a whole. 4 Orn v. Astrue, 495 1 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 2 evidence as a reasonable mind might accept as adequate to support a 3 conclusion. 4 a mere scintilla but not necessarily a preponderance. 5 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 6 record can constitute substantial evidence, only those reasonably drawn 7 from the record will suffice. 8 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 9 10 Although this Court cannot substitute its discretion for that of 11 the Commissioner, the Court nonetheless must review the record as a 12 whole, weighing both the evidence that supports and the evidence that 13 detracts from the [Commissioner s] conclusion. 14 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 15 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 16 responsible for determining credibility, resolving conflicts in medical 17 testimony, and for resolving ambiguities. 18 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 19 The Court will uphold the Commissioner s decision when the evidence 20 21 is susceptible to more than one rational interpretation. 22 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 23 review only the reasons stated by the ALJ in his or her decision and 24 may not affirm the ALJ on a ground upon which he [or she] did not rely. 25 Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. 26 not reverse the Commissioner s decision if it is based on harmless 27 error, which exists only when it is clear from the record that an ALJ s 28 error was inconsequential to 5 the Burch v. However, the Court may ultimate The Court will nondisability 1 determination. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th 2 Cir. 2006)(quoting Stout v. Comm r, 454 F.3d 1050, 1055 (9th Cir. 3 2006)); see also Burch, 400 F.3d at 679. 4 5 DISCUSSION 6 7 Plaintiff claims that the ALJ failed to consider her moderate 8 limitations in concentration, persistence, or pace ( CPP ) properly. 9 (Joint Stipulation ( Joint Stip. ) at 3-6, 9-11.) Specifically, 10 plaintiff claims that the ALJ s RFC assessment and hypothetical to the 11 vocational expert, both of which included a restriction to simple 12 repetitive work, inadequately capture her limitations in CPP. 13 14 It is well established that an ALJ must include all of claimant s 15 restrictions in his or her RFC and in the hypothetical posed to the 16 vocational expert. 17 2009)(citing 20 C.F.R. §§ 404.1545, 416.945 and Bray v. Comm r of SSA, 18 554 F.3d 1219, 1228 (9th Cir. 2009)). 19 claimant adequately captures restrictions related to [CPP] where the 20 assessment is consistent with the restrictions identified in the medical 21 testimony. 22 1174 (9th Cir. 2008)); see also Bickford v. Astrue, 2010 WL 4220531, at 23 *11 (D. Or. Oct. 19, 2010)(finding that, so long as the ALJ s decision 24 is supported by medical evidence, a limitation to simple, repetitive 25 work can account for moderate difficulties in [CPP] ). Sabin v. Astrue, 337 Fed. Appx. 617, 620 (9th Cir. [A]n ALJ s assessment of a Id. (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 26 27 In Stubbs-Danielson, an examining physician opined that plaintiff 28 was moderately limited in her ability to perform at a consistent 6 1 pace without an unreasonable number and length of rest periods and 2 mildly limited in several other mental functioning areas. 3 at 1173. 4 plaintiff had a slow pace, both in thinking [and] actions and several 5 moderate 6 examining physician did not assess plaintiff s ability to perform work, 7 the state agency physician concluded [that plaintiff] retained the 8 ability to carry out simple tasks as evidenced by her ability to do 9 housework, shopping, work on hobbies, cooking and reading. 539 F.3d Similarly, a state agency reviewing physician opined that limitations in in other assessing mental areas. plaintiff s RFC, Id. the Although ALJ the Id. 10 Accordingly, translated 11 [plaintiff s] condition, including her pace and mental limitations, into 12 the only concrete restrictions available to him - [to wit, the state 13 agency physician s] recommended restriction to simple tasks. 14 1174. 15 testimony, the Ninth Circuit held that the ALJ s RFC assessment and 16 hypothetical, both of which included a restriction to simple tasks, 17 adequately captured plaintiff s deficiencies in CPP. Id. at Because the ALJ s assessment was consistent with the medical Id. at 1174-75. 18 19 Similarly, in Sabin, the ALJ found that plaintiff had moderate 20 limitations in CPP. 21 however, that the end result of [plaintiff s] moderate difficulties as 22 to [CPP] was that she could do simple and repetitive tasks on a 23 consistent basis. 24 consistent with the ALJ s conclusion, the Ninth Circuit found that the 25 ALJ s 26 limitation to simple, repetitive tasks on a consistent basis, adequately 27 captured 28 restrictions in CPP. RFC assessment the tasks 337 Fed. Appx. at 620-21. Id. at 621. and Because the medical record was hypothetical, plaintiff The ALJ determined, could Id. 7 both perform of which included notwithstanding a her 1 In support of her assertion that the ALJ committed error in failing 2 to specifically include plaintiff s deficiencies in CPP in the RFC 3 assessment and hypothetical to the vocational expert, plaintiff cites, 4 inter alia, Brink v. Comm r SSA, 343 Fed. Appx. 211 (9th Cir. 2009), and 5 Berjettel v. Astrue, 2010 WL 3056799 (D. Or. July 30, 2010) - cases in 6 which courts found that a restriction to simple, repetitive work 7 failed to capture plaintiff s deficiencies in CPP. 8 case, unlike the cases cited by plaintiff, and as detailed below, the 9 medical expert, upon whom the ALJ relied both in determining plaintiff s 10 RFC and crafting her hypothetical to the vocational expert, testified 11 that 12 restrictions - to wit, a restriction to simple, repetitive work. 13 Moreover and significantly, plaintiff does not allege, and the record 14 does not support, greater limitations stemming from plaintiff s CPP than 15 those found by the medical expert and adopted by the ALJ. 16 Astrue, 2011 WL 651886, at *5 (C.D. Cal. Feb. 10, 2011)(noting that a 17 limitation must be included in the RFC determination only where the 18 record provides substantial evidence of such limitations )(citing Brink, 19 343 Fed. Appx. at 212). 20 the ALJ erred in relying on the opinion of Dr. Glassmire regarding 21 plaintiff s ability to perform simple, repetitive tasks notwithstanding 22 her deficiencies in CPP. plaintiff s deficiencies in CPP resulted However, in this in specific work See Dupree v. In fact, plaintiff does not even allege that 23 24 Thus, in this case, as in Stubbs-Danielson and Sabin, the ALJ s RFC 25 assessment and subsequent hypothetical to the vocational expert are 26 consistent with the medical record and adequately capture plaintiff s 27 restrictions related to CPP. 28 impairments met or equaled Listings 12.03 and/or 12.04, the ALJ looked In evaluating whether plaintiff s mental 8 1 to the paragraph B criteria and concluded that plaintiff has no 2 restrictions 3 functioning and CPP, and no episodes of decompensation. (A.R. 13.) The 4 ALJ specifically noted, however, that the limitations identified in the 5 paragraph B criteria are not [an RFC] assessment but are used to rate 6 the severity of mental impairments at steps 2 and 3 of the sequential 7 evaluation process. 8 paragraph B findings, her RFC assessment for plaintiff requires a more 9 detailed assessment [- an assessment which entails] itemizing various 10 functions contained in the broad categories found in paragraph B and 11 reflect[ing] the degree of limitation [she] has found in the paragraph 12 B mental function analysis. in daily living, (Id.) moderate difficulties in social The ALJ explained that, in contrast to her (Id.) 13 14 In assessing plaintiff s RFC, the ALJ thoroughly reviewed 15 plaintiff s medical records. 16 Glassmire, a licensed and board-certified forensic psychologist, opined 17 that plaintiff has severe mental impairments that result in moderate 18 difficulties 19 performance of competitive renumerative work within the parameters as 20 found 21 plaintiff s medical record, Dr. Glassmire testified that plaintiff s 22 paragraph B criteria of moderate difficulties with social functioning 23 and CPP would result in work limitations, including limitations to 24 simple, 25 occasional 26 responsib[ility] for the safety of others. in herein. social (A.R. repetitive contact The ALJ noted that medical expert Dr. functioning 14.) tasks, with In no and CPP pertinent contact co-workers and but part, with the allow after for reviewing public, supervisors, the only and no (A.R. 69.) 27 28 The ALJ also considered the opinions of Romualdo R. Rodriguez, 9 1 M.D., a psychiatrist, and Kevin Gregg, M.D., a state agency reviewing 2 physician, both of whom found that plaintiff did not have any 3 mental impairments. 4 Charles R. Smith, M.D., a specialist in neurology, found plaintiff s 5 mental status and CT scan of the brain to be normal. 6 Although the ALJ recognized that [u]pdated psychiatric records lend 7 some additional support to [plaintiff s] mental allegations, the ALJ 8 noted that there are no documented signs or findings that demonstrate 9 disabling limitations, satisf[y] the durational requirement of the (A.R. 15.) severe Additionally, the ALJ noted that (A.R. 16, 353-54.) 10 Act, or require greater limitations than those found herein. 4 11 17.) 12 medication and treatment, and that the ongoing objective evidence does 13 not comport with a preclusion from competitive remunerative work. 14 (Id.) (A.R. The ALJ further noted that plaintiff s condition has responded to 15 16 Upon review of plaintiff s medical record, the ALJ agree[d] with 17 medical expert [Dr. Glassmire] that [plaintiff s] condition does not 18 preclude regular and continuing work. 19 assessing plaintiff s RFC, the ALJ translated her paragraph B findings, 20 including her finding that plaintiff has moderate limitations in CPP, 21 into the only concrete restriction reflected in the record - to wit, 22 Dr. 23 repetitive tasks, with no public contact, only occasional contact with 24 co-workers and supervisors, and no responsibility for the safety of 25 others. 26 determined that the end result of plaintiff s moderate difficulties in Glassmire s finding that plaintiff (A.R. 17.) was Accordingly, in restricted to simple, In other words, based on the evidence of record, the ALJ 27 4 28 Additionally, plaintiff does not contest the ALJ s finding that plaintiff was less than credible. 10 1 CPP was that plaintiff was limited to simple, repetitive tasks. 2 Sabin, 337 Fed. Appx. at 621 (finding the ALJ properly assessed medical 3 evidence in determining that despite moderate limitation difficulties as 4 to 5 consistent basis); see also Howard v. Massanari, 255 F.3d 577, 582 (8th 6 Cir. 2001)(finding that a limitation of often having deficiencies of 7 CPP, which was interpreted by a doctor into a functional capacity 8 assessment of being able to sustain sufficient concentration and 9 attention to perform at least simple, repetitive, and routine cognitive CPP, claimant without could severe perform simple restriction of and repetitive function, was tasks See on a 10 activity adequately 11 captured in a hypothetical for someone who is capable of doing simple, 12 repetitive, routine tasks ) 13 14 Accordingly, the ALJ s RFC assessment and hypothetical question 15 posed to the vocational expert -- both of which included a restriction 16 to simple, repetitive tasks -- are consistent with the medical record 17 and adequately capture the tasks plaintiff can perform despite her 18 difficulties with CPP. 19 in failing to specifically include plaintiff s deficiencies in CPP in 20 either her RFC assessment for plaintiff or her subsequent hypothetical 21 to the vocational expert. As such, the ALJ committed no reversible error 22 CONCLUSION 23 24 25 For the foregoing reasons, the Court finds that the Commissioner s 26 decision is supported by substantial evidence and is free from material 27 legal error. Neither reversal of the Commissioner s decision nor remand 28 is warranted. 11 1 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 2 the decision of the Commissioner of the Social Security Administration. 3 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 4 this Memorandum Opinion and Order and the Judgment on counsel for 5 plaintiff and for defendant. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: November 2, 2011 10 11 12 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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