Mary Helen Moralez v. Michael J Astrue, No. 5:2011cv00155 - Document 15 (C.D. Cal. 2011)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Oswald Parada. IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. (See document for specifics) (mrgo)

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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 MARY HELEN MORALEZ, ) Case No. EDCV 11-155-OP ) Plaintiff, ) v. ) MEMORANDUM OPINION; ORDER ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ) The Court1 now rules as follows with respect to the disputed issues listed in 17 18 19 20 21 the Joint Stipulation ( JS ).2 /// /// /// 22 23 1 25 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before 24 the United States Magistrate Judge in the current action. (ECF Nos. 7, 8.) As the Court advised the parties in its Case Management Order, the 26 decision in this case is made on the basis of the pleadings, the Administrative Record, and the Joint Stipulation filed by the parties. In accordance with Rule 27 12(c) of the Federal Rules of Civil Procedure, the Court has determined which 28 party is entitled to judgment under the standards set forth in 42 U.S.C. § 405(g). 1 1 I. 2 DISPUTED ISSUES 3 As reflected in the Joint Stipulation, the disputed issues which Plaintiff 4 raises as the grounds for reversal and/or remand are as follows: 5 1. 6 7 the opinion of the treating physician; 2. 8 9 Whether the Administrative Law Judge ( ALJ ) properly considered Whether the ALJ properly assessed Plaintiff s residual functional capacity ( RFC ); and 2. 10 Whether the ALJ posed a complete hypothetical to the vocational expert ( VE ). 11 (JS at 2-3.) 12 II. 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s decision 15 to determine whether the Commissioner s findings are supported by substantial 16 evidence and whether the proper legal standards were applied. DeLorme v. 17 Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means more 18 than a mere scintilla but less than a preponderance. Richardson v. Perales, 402 19 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Sec y of 20 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial 21 evidence is such relevant evidence as a reasonable mind might accept as adequate 22 to support a conclusion. Richardson, 402 U.S. at 401 (citation omitted). The 23 Court must review the record as a whole and consider adverse as well as 24 supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). 25 Where evidence is susceptible of more than one rational interpretation, the 26 Commissioner s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 27 1452 (9th Cir. 1984). 28 2 1 III. 2 DISCUSSION 3 A. The ALJ s Findings. 4 The ALJ found that Plaintiff has the severe impairments of bone fractures, 5 essential hypertension, affective mood disorder, and substance abuse in remission. 6 (Administrative Record ( AR ) at 21.) The ALJ concluded that Plaintiff s 7 treatment for a ventral incisional hernia was a non-severe impairment. (Id.) She 8 found that Plaintiff has the RFC to perform less than the full range of light work 9 with the following limitations: lifting and/or carrying twenty pounds occasionally 10 and ten pounds frequently; standing or walking two hours in an eight-hour 11 workday; sitting six hours in an eight-hour workday, with the opportunity to stand 12 and stretch each hour for one to three minutes; occasionally climb stairs or ramps 13 but not ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and 14 crawl; no exposure to dangerous machinery or unprotected heights; limited to 15 simple, repetitive tasks with no interaction with the public and only non-intense 16 interaction with co-workers and supervisors; no work requiring hypervigilance. 17 (Id. at 22.) 18 Relying on the testimony of the VE to determine the extent to which 19 Plaintiff s limitations eroded the unskilled light occupational base at all exertion 20 levels, the ALJ asked the VE whether jobs exist in the national economy for an 21 individual with Plaintiff s age, education, work experience, and RFC. (Id. at 25, 22 36-38.) Based on the testimony of the VE, the ALJ determined that Plaintiff could 23 perform the requirements of light work as an Assembler II (Dictionary of 24 Occupational Titles ( DOT ) 739.687-030); sedentary work as Optical Assembler 25 (DOT 713.687-030); and sedentary work as Assembler, Buttons and Notions 26 (DOT 734.687-018). (Id. at 25.) 27 / / / 28 3 1 B. The ALJ Properly Considered the Opinion of Plaintiff s Treating 2 Physician. 3 Plaintiff contends that the ALJ virtually ignored a significant report from 4 Plaintiff s treating physician, Dr. Lisa Schmid, and failed to provide specific and 5 legitimate reasons for her implicit rejection of that report. 6 Specifically, on July 26, 2006, Plaintiff presented for an intake evaluation at 7 the Riverside County Department of Mental Health, after attempting suicide on 8 July 3, 2006, by jumping off a thirty-foot high building. (Id. at 250.) Plaintiff was 9 also seen on August 9, 2006, and September 20, 2006. Then, on October 5, 2006, 10 Dr. Schmid signed a Narrative Report (Adult), consisting of a series of criteria, 11 with items to be circled if they apply to the case. (Id. at 252.) A DSM-IV3 12 diagnosis of Major Depression was indicated and the following criteria were 13 circled: concrete and ruminative thought; moderately impaired memory; severely 14 impaired judgment; evidence of insomnia, depression, isolation, and social 15 withdrawal. (Id.) The form indicated that Plaintiff did not show an ability to 16 maintain a sustained level of concentration, sustain repetitive tasks for an extended 17 period, or adapt to new or stressful situations. (Id.) Although she could interact 18 appropriately with family members and strangers, it was unknown whether she 19 could interact appropriately with co-workers or supervisors. (Id.) Plaintiff was 20 seen to have a pleasant attitude, and it was determined that she could manage her 21 own funds. (Id.) It was indicated that she could not complete a forty-hour work 22 week without decompensating and that her prognosis was guarded. (Id.) 23 Regarding Plaintiff s treatment at the Riverside County Department of 24 Mental Health, the ALJ indicated the following: 25 The intake evaluation at Riverside County Department of Medical 26 27 3 Diagnostic and Statistical Manual of Mental Disorders - DSM-IV-TR 369 28 (Am. Psych. Ass n ed., 4th ed. 2000) ( DSM-IV ) 4 1 Health, Blaine Street Clinic, conducted on July 26, 2006 indicated that 2 the claimant was depressed. She admitted she had pretended to fall from 3 a building when she actually had jumped in a suicide attempt. She 4 denied any auditory or visual hallucinations and said she had no 5 homicidal or suicidal ideation. She admitted to using methamphetamine 6 3 times a week for about a year but had stopped in June 2006. 7 (Id. at 23 (citation omitted).) The ALJ also generally discussed whether Plaintiff s 8 mental impairment met or medically equaled a listing, finding that Plaintiff had 9 only mild restriction in activities of daily living; moderate difficulty in social 10 functioning; moderate difficulty in concentration, persistence, or pace; and only 11 one to two episodes of decompensation of extended duration. (Id. at 21-22.) She 12 concluded that because Plaintiff did not have at least two marked limitations, or 13 one marked limitation and repeated episodes of decompensation, each of 14 extended duration, the paragraph B criteria required to meet or equal a listing were 15 not satisfied. (Id.) 16 Plaintiff claims that although the ALJ mentioned the intake evaluation from 17 the Riverside County Department of Mental Health, the ALJ completely ignored 18 the narrative report from Dr. Schmid, thereby implicitly rejecting the report. (JS 19 at 4-5.) Plaintiff claims that the ALJ s failure to state whether she accepted or 20 rejected the report, what weight she gave the report, if any, or what the specific 21 and legitimate reasons for rejecting the opinion of the treating physician, was 22 error. (Id. at 5.) Plaintiff argues that it is unfair to the plaintiff for the ALJ to 23 consider medical reports and findings that are not favorable to the plaintiff, while 24 ignoring significant findings that determine that plaintiff has severe limitations . . . 25 . (Id.) 26 It is well-established in the Ninth Circuit that a treating physician s opinions 27 are entitled to special weight, because a treating physician is employed to cure and 28 5 1 has a greater opportunity to know and observe the patient as an individual. 2 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). The treating 3 physician s opinion is not, however, necessarily conclusive as to either a physical 4 condition or the ultimate issue of disability. Magallanes v. Bowen, 881 F.2d 747, 5 751 (9th Cir. 1989). The weight given a treating physician s opinion depends on 6 whether it is supported by sufficient medical data and is consistent with other 7 evidence in the record. See 20 C.F.R. § 404.1527(d)(2). If the treating 8 physician s opinion is uncontroverted by another doctor, it may be rejected only 9 for clear and convincing reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1995); Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991). If the treating 11 physician s opinion is controverted, it may be rejected only if the ALJ makes 12 findings setting forth specific and legitimate reasons that are based on the 13 substantial evidence of record. Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 14 2002); Magallanes, 881 F.2d at 751; Winans v. Bowen, 853 F.2d 643, 647 (9th 15 Cir. 1987). 16 However, the Ninth Circuit also has held that [t]he ALJ need not accept the 17 opinion of any physician, including a treating physician, if that opinion is brief, 18 conclusory, and inadequately supported by clinical findings. Thomas, 278 F.3d 19 at 957; see also Matney ex rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 20 1992). A treating or examining physician s opinion based on the plaintiff s own 21 complaints may be disregarded if the plaintiff s complaints have been properly 22 discounted. Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 23 1999); see also Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997); Andrews 24 v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). Additionally, [w]here the opinion 25 of the claimant s treating physician is contradicted, and the opinion of a 26 nontreating source is based on independent clinical findings that differ from those 27 of the treating physician, the opinion of the nontreating source may itself be 28 6 1 substantial evidence; it is then solely the province of the ALJ to resolve the 2 conflict. Andrews, 53 F.3d at 1041; Magallanes, 881 F.2d at 751; Miller v. 3 Heckler, 770 F.2d 845, 849 (9th Cir. 1985). 4 Here, the ALJ gave considerable weight to the January 11, 2009, 5 psychiatric consultative evaluation by Sohini P. Parikh, M.D., a board-eligible 6 psychiatrist. (AR at 23-24, 433-39.) Dr. Parikh diagnosed Plaintiff with major 7 depression and ruled out bipolar disorder, depressive type. (Id. at 437.) She noted 8 that Plaintiff s mood was depressed and that she experienced feelings of 9 hopelessness, helplessness, anhedonia, and worthlessness. (Id. at 436.) She also 10 noted that Plaintiff evidenced no delusions, hallucinations, or phobias, and was 11 not preoccupied with suicidal or homicidal ideations. (Id. at 434, 436.) Dr. Parikh 12 examined Plaintiff and reviewed the medical records relating to Plaintiff s 2006 13 suicide attempt. (Id. at 434.) 14 The ALJ also gave great weight to the opinions of the medical expert, 15 David Glassmire, Ph.D., a clinical psychologist. (Id. at 24.) Dr. Glassmire 16 testified at the hearing and specifically described the form signed by Dr. Schmid 17 as a check box form that s completed generally for the purposes of disability 18 evaluation . . . (Id. at 43.) He reviewed that form and concluded that the 19 assessment had been made right around the time of Plaintiff s suicide attempt, 20 which he classified as an episode of decompensation. (Id. at 43-44.) He noted the 21 Riverside County Department of Mental Health records generally described 22 Plaintiff as exhibiting poor compliance with her medication, but that by December 23 21, 2006, two months after Dr. Schmid s report, it was noted that Plaintiff s 24 energy was okay, with a full range of affect, no psychotic symptoms, suicidal or 25 homicidal ideation, and, therefore, her mental status on that date was within 26 normal limits. (Id. at 44, 45-46.) Although Plaintiff had a few low Global 27 Assessment of Functioning scores around that time, Dr. Glassmire also linked 28 7 1 these scores to the episode of decompensation. (Id.) He noted that by January 31, 2 2007, shortly after the episode of decompensation, the treatment records stopped, 3 until Dr. Parikh s evaluation and comments in January 2009. (Id. at 44-45.) Dr. 4 Glassmire concluded that the record supported the severe impairments of major 5 depressive disorder and history of methamphetamine and marijuana abuse, in full, 6 sustained remission. (Id. at 42.) He opined that those impairments, together with 7 the episode of decompensation, would lead to some work based restrictions. (Id. 8 at 43.) He suggested limiting Plaintiff to simple, repetitive tasks, no interaction 9 with the public, and no tasks requiring hypervigilance. (Id.) 10 Preliminarily, the Court notes that Drs. Parikh and Glassmire, as well as the 11 ALJ, all appear to have concurred with Dr. Schmid s diagnosis of Major 12 Depression.4 As a result, the ALJ did not reject Dr. Schmid s opinion in this 13 regard. Moreover, although Plaintiff claims an onset date of June 5, 2006, her 14 Title XVI application date was April 21, 2008, and she must show she was 15 disabled at the time of her application. 20 C.F.R. § 416.335 (2010). Her suicide 16 attempt occurred almost eighteen months prior to her application and, as Dr. 17 Glassmire testified, there were no further mental health records until Dr. Parikh s 18 report in January 2009. Thus, while this 2006 episode provides some background 19 for Plaintiff s affective mood disorder, it does not support a finding of disability at 20 the time of the application, especially in light of the other evidence of record. 21 22 23 24 25 26 In contrast to Dr. Schmid s October 2006 report, Dr. Parikh s evaluation and report and Dr. Glassmire s testimony were more recent in time. The Ninth Circuit has found that medical reports that are most recent are more highly probative. See Osenbrock v. Apfel, 240 F.3d 1157, 1165 (9th Cir. 2001) (citing 4 The Court notes that although the ALJ used the term affective mood 27 disorder, the DSM-IV characterizes Major Depressive Disorder as a mood 28 disorder. DSM-IV 369. 8 1 Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)) (medical evaluations even 2 prepared several months before the hearing in a case where the claimant had a 3 worsening condition were not substantial evidence sufficient to rebut more recent 4 conclusions by a treating doctor). Thus, Dr. Schmid s 2006 check-box form, dated 5 almost eighteen months prior to the application date, is neither significant nor 6 probative. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 7 2003) (holding that the ALJ is not required to discuss evidence that is neither 8 significant nor probative ). 9 Even if there was error, it was harmless. Curry v. Sullivan, 925 F.2d 1127, 10 1131 (9th Cir. 1990) (harmless error rule applies to review of administrative 11 decisions regarding disability). The Ninth Circuit has held that an ALJ need not 12 recite a magical incantation expressly rejecting a physician s opinion. Rather, a 13 reviewing court is not deprived of [its] faculties for drawing specific and 14 legitimate inferences from the ALJ s opinion. Magallanes, 881 F.2d at 755. As 15 such, it is proper for a reviewing court to read an ALJ s discussion of one 16 physician and draw inferences relevant to other physicians if those inferences are 17 there to be drawn. Id. In the present case, the medical expert s testimony 18 regarding (1) Dr. Schmid s check box form, (2) Plaintiff s July 2006 episode of 19 decompensation as reflected in the treatment notes of the Riverside County 20 Department of Mental Health, and (3) the lack of additional mental health records 21 since 2006, as well as the ALJ s giving great weight to Dr. Glassmire s opinions, 22 all lead to a proper inference that the ALJ fully considered Dr. Schmid s record, 23 even though she did not specifically discuss it. Vincent ex rel. Vincent v. Heckler, 24 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ need not specifically mention every 25 piece of evidence). Moreover, as previously noted, the ALJ found that Plaintiff 26 had the severe impairment of affective mood disorder, a finding not inconsistent 27 with Dr. Schmid s diagnosis at that time. 28 9 1 Accordingly, the Court finds there was no error in the ALJ s failure to 2 specifically make mention of Dr. Schmid s October 2006 report. The Court 3 further finds that even if there was error, it was harmless. 4 C. The ALJ Properly Considered Plaintiff s RFC. 5 Plaintiff contends that it was error for the ALJ not to include Dr. Schmid s 6 limitations regarding Plaintiff s inability to obtain and/or sustain full-time 7 competitive employment in the ALJ s RFC, because the limitations set forth in Dr. 8 Schmid s report have significant vocational ramifications because the restriction 9 affects the plaintiff s ability to perform any daily work-related activity. (JS at 1210 13.) 11 12 13 14 15 16 17 18 19 20 determine the claimant s RFC after considering all of the relevant medical and other evidence in the record, including all medical opinion evidence. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), 416.945(a)(3), 416.946(c); see also Social Security Ruling ( SSR ) 96-8p. As previously discussed, an ALJ need only explain why significant probative evidence has been rejected, and Dr. Schmid s October 2006 check-box form, completed eighteen months prior to Plaintiff s filing of her application, and shortly after a significant isolated episode of decompensation, was neither significant nor probative. Accordingly, the Court finds that the ALJ s RFC determination was 21 22 23 In determining a claimant s disability status, an ALJ has a responsibility to consistent with the other evidence of record relied on by the ALJ, particularly the reports and testimony of Dr. Parikh and Dr. Glassmire. Thus, there was no error. 24 D. The ALJ Posed a Complete Hypothetical to the VE. 25 Plaintiff contends that the hypotheticals posed to the VE did not incorporate 26 Dr. Schmid s findings from the October 2006 form regarding Plaintiff s inability 27 to maintain a sustained level of concentration, sustain repetitive tasks for an 28 10 1 extended period, or complete a forty-hour work week without decompensating. 2 (JS at 16-17.) 3 In order for the testimony of a VE to be considered reliable, the 4 hypothetical posed must include all of the claimant s functional limitations, both 5 physical and mental supported by the record. Thomas, 278 F.3d at 956 (quoting 6 Flores v. Shalala, 49 F.3d 562, 570-71 (9th Cir. 1995)). Hypothetical questions 7 posed to a VE need not include all alleged limitations, but rather only those 8 limitations which the ALJ finds to exist. See, e.g., Magallanes, 881 F.2d at 9 756-57; Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988); Martinez v. 10 Heckler, 807 F.2d 771, 773-74 (9th Cir. 1986). As a result, an ALJ must propose 11 a hypothetical that is based on medical assumptions, supported by substantial 12 evidence in the record, that reflects the claimant s limitations. Osenbrock, 240 13 F.3d at 1163-64 (citing Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir. 1995)); see 14 also Andrews, 53 F.3d at 1043 (although the hypothetical may be based on 15 evidence which is disputed, the assumptions in the hypothetical must be supported 16 by the record). 17 As the Court concluded above, the record evidence, including the more 18 temporally relevant reports of Dr. Parikh and Dr. Gallsmire, did not support the 19 more extreme limitations and conclusion of Dr. Schmid, formed shortly after the 20 time that Plaintiff experienced an episode of decompensation. Accordingly, the 21 ALJ was not obligated to include those limitations in his hypothetical to the VE. 22 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) ( Because the ALJ 23 included all of the limitations that he found to exist, and because his findings were 24 supported by substantial evidence, the ALJ did not err in omitting the other 25 limitations that Rollins had claimed, but had failed to prove. ). 26 The ALJ gave great weight to Dr. Glassmire s opinions that Plaintiff had 27 mild restrictions in activities of daily living, moderate restrictions in maintaining 28 11 1 concentration, persistence, and pace, and only one or two episodes of 2 decompensation based on the July 2006 suicide attempt, and his conclusions that 3 Plaintiff would be limited to simple, repetitive tasks, no interaction with the 4 public, only non-intense interactions with co-workers and supervisors, and no 5 tasks requiring hypervigilance. (AR at 24, 43.) In her hypothetical to the VE, the 6 ALJ suggested limitations to simple, repetitive tasks, no interaction with the 7 public, only non-intense interaction with co-workers and supervisors, and no jobs 8 requiring hypervigilance. (Id. at 65.) Thus, her hypothetical tracked Dr. 9 Glassmire s restrictions. 10 Because the ALJ adopted Dr. Glassmire s opinions, and because the 11 hypothetical to the VE was sufficient, the ALJ appropriately relied on the VE s 12 testimony. Bayliss v. Barnhart, 427 F.3d 1211, 1217-18 (9th Cir. 2005). In short, 13 the Court finds that the ALJ presented a complete hypothetical question to the VE. 14 Thus, there was no error. 15 IV. 16 ORDER 17 18 19 20 Based on the foregoing, IT THEREFORE IS ORDERED that Judgment be entered affirming the decision of the Commissioner, and dismissing this action with prejudice. 21 22 Dated: August 31, 2011 23 ______________________________ HONORABLE OSWALD PARADA United States Magistrate Judge 24 25 26 27 28 12

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