Mark Dominguez v. Michael J Astrue, No. 5:2011cv00725 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See Memorandum for details. (hr)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARK DOMINGUEZ, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. EDCV 11-725 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On May 16, 2011, plaintiff Mark Dominguez ( plaintiff ) filed a Complaint 20 21 22 23 seeking review of the Commissioner of Social Security s denial of plaintiff s applications for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; June 14, 2011 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On July 27, 2007, plaintiff filed applications for Supplemental Security 7 Income benefits and Disability Insurance Benefits. (Administrative Record 8 ( AR ) 10, 130, 138). Plaintiff asserted that he became disabled on November 30, 9 2006, due to depression and psychotic features. (AR 151-52). The ALJ examined 10 the medical record and heard testimony from plaintiff (who was represented by 11 counsel) and a vocational expert on May 11, 2009. (AR 22-69). 12 On August 24, 2009, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 18). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: hepatitis C virus, 15 obesity, hypertension, and a depressive disorder (AR 12); (2) plaintiff s 16 impairments, considered singly or in combination, did not meet or medically equal 17 one of the listed impairments (AR 12-13); (3) plaintiff retained the residual 18 functional capacity to perform medium work (20 C.F.R. §§ 404.1567(c), 19 416.967(c))) with certain additional limitations2 (AR 14); (4) plaintiff could 20 21 1 The harmless error rule applies to the review of administrative decisions regarding 22 disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social 23 Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of 24 application of harmless error standard in social security cases). 25 26 27 28 2 The ALJ determined that plaintiff (i) could perform medium work; (ii) could frequently climb ramps and stairs but could not climb ladders, ropes or scaffolds; (iii) could frequently balance, bend, stoop, crouch, and kneel; (iv) should not work at unprotected heights or around dangerous, moving machinery; (v) could perform moderately detailed, complex tasks that do not involve working with the general public; (vi) could not perform jobs that are high-quota, (continued...) 2 1 perform his past relevant work as a stock clerk (AR 18); and (5) plaintiff s 2 allegations regarding his limitations were not credible to the extent they were 3 inconsistent with the ALJ s residual functional capacity assessment. (AR 14). 4 The Appeals Council denied plaintiff s application for review. (AR 1). 5 III. APPLICABLE LEGAL STANDARDS 6 A. 7 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 8 unable to engage in any substantial gainful activity by reason of a medically 9 determinable physical or mental impairment which can be expected to result in 10 death or which has lasted or can be expected to last for a continuous period of at 11 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 12 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 13 performing the work claimant previously performed and incapable of performing 14 any other substantial gainful employment that exists in the national economy. 15 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 16 § 423(d)(2)(A)). 17 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 18 sequential evaluation process: 19 (1) 20 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 21 (2) Is the claimant s alleged impairment sufficiently severe to limit 22 claimant s ability to work? If not, the claimant is not disabled. 23 If so, proceed to step three. 24 /// 25 26 2 (...continued) 27 production oriented (e.g., assembly line); (vii) could have only occasional, nonintense interaction with supervisors and co-workers; and (viii) could not be involved with safety operations or be in 28 charge of the safety of others. (AR 14). 3 1 (3) Does the claimant s impairment, or combination of 2 impairments, meet or equal an impairment listed in 20 C.F.R. 3 Part 404, Subpart P, Appendix 1? If so, the claimant is 4 disabled. If not, proceed to step four. 5 (4) Does the claimant possess the residual functional capacity to 6 perform claimant s past relevant work? If so, the claimant is 7 not disabled. If not, proceed to step five. 8 (5) 9 Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 10 experience, allow claimant to adjust to other work that exists in 11 significant numbers in the national economy? If so, the 12 claimant is not disabled. If not, the claimant is disabled. 13 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 14 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 15 The claimant has the burden of proof at steps one through four, and the 16 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 17 F.3d 949, 954 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 18 (claimant carries initial burden of proving disability). 19 B. 20 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 21 benefits only if it is not supported by substantial evidence or if it is based on legal 22 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 23 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 24 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 25 mind might accept as adequate to support a conclusion. Richardson v. Perales, 26 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 27 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 28 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 4 1 To determine whether substantial evidence supports a finding, a court must 2 consider the record as a whole, weighing both evidence that supports and 3 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 4 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 5 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 6 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 7 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 8 IV. DISCUSSION 9 In short, plaintiff contends that the ALJ failed adequately to evaluate the 10 medical evidence, and that, consequently, the ALJ s decision was not supported by 11 substantial evidence. (Plaintiff s Motion at 2-17). More specifically, plaintiff 12 argues that: (1) the ALJ failed adequately to consider the opinion of a state13 agency reviewing psychiatrist that plaintiff was limited to performing only simple 14 repetitive tasks; (2) the ALJ erroneously failed to include in his residual functional 15 capacity assessment or in the hypothetical question posed to the vocational expert 16 the state-agency psychiatrist s opinion that plaintiff was limited to performing 17 simple repetitive tasks; and (3) as a result, the ALJ erred at step five in finding that 18 plaintiff could perform his past relevant work as a stock clerk because the mental 19 demands of such job are inconsistent with a limitation to simple, repetitive tasks. 20 (Plaintiff s Motion at 2-17). 21 The Court concludes that a reversal or remand on these grounds is not 22 warranted. 23 A. 24 In Social Security cases, courts employ a hierarchy of deference to medical Pertinent Law 25 opinions depending on the nature of the services provided. Courts distinguish 26 among the opinions of three types of physicians: those who treat the claimant 27 ( treating physicians ) and two categories of nontreating physicians, namely 28 those who examine but do not treat the claimant ( examining physicians ) and 5 1 those who neither examine nor treat the claimant ( nonexamining physicians ). 2 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 3 treating physician s opinion is entitled to more weight than an examining 4 physician s opinion, and an examining physician s opinion is entitled to more 5 weight than a nonexamining physician s opinion.3 See id. 6 The Commissioner may reject the opinion of a nonexamining physician by 7 reference to specific evidence in the medical record. Sousa v. Callahan, 143 F.3d 8 1240, 1244 (9th Cir. 1998). However, while not bound by findings made by 9 State agency or other program physicians and psychologists, [the ALJ] may not 10 ignore these opinions and must explain the weight given to the opinions in their 11 decisions. SSR 96-6p; see also 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) 12 ( State agency medical and psychological consultants and other program 13 physicians and psychologists are highly qualified physicians and psychologists 14 who are also experts in Social Security disability evaluation. Therefore, 15 administrative law judges must consider findings of State agency medical and 16 psychological consultants or other program physicians or psychologists as opinion 17 evidence. . . . ); Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) ( An 18 ALJ is required to consider as opinion evidence the findings of state agency 19 medical consultants; the ALJ is also required to explain in his decision the weight 20 given to such opinions. ).4 21 /// 22 /// 23 24 3 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to 25 draw bright line distinguishing treating physicians from non-treating physicians; relationship is 26 better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 27 4 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 28 2007. See U.S. Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a). 6 1 B. 2 The report of a May 12, 2006 mental status evaluation of plaintiff noted that Pertinent Facts 3 plaintiff was alert and oriented in all four spheres, plaintiff had some difficulty 4 with concentration, but plaintiff had no other cognitive deficits. (AR 338). 5 The report of an August 27, 2006 Adult Psychiatric Evaluation of plaintiff 6 noted a mental status evaluation for plaintiff that was within normal limits. (AR 7 328-29). 8 On September 25, 2007, Dr. H. Skopec, a state-agency reviewing 9 psychiatrist, completed a Psychiatric Review Technique form in which he opined 10 that plaintiff had (i) mild restriction of activities of daily living; (ii) moderate 11 difficulties in maintaining social functioning; (iii) moderate difficulties in 12 maintaining concentration, persistence or pace; and (iv) no repeated episodes of 13 decompensation of extended duration. (AR 283, 291). In a Case Analysis form 14 also dated September 25, 2007, Dr. Skopec opined, based on his review of the 15 administrative record, that plaintiff retained the mental residual functional 16 capacity to perform at least [simple repetitive tasks]. (AR 295). 17 In his decision, the ALJ noted the following with respect to Dr. Skopec s 18 September 25, 2007 opinions: 19 State Agency review psychiatrists concluded that [plaintiff] had a 20 severe affective disorder but could perform simple, repetitive, 21 nonpublic tasks. [Plaintiff] would have mild limitation in activities of 22 daily living, moderate difficulty maintaining social functioning, 23 moderate difficulty maintaining concentration, persistence or pace 24 and no repeated episodes of decompensation, each of extended 25 duration. . . . 26 (AR 17) (citing Exhibits 5F-6F [AR 283-95]). 27 /// 28 /// 7 1 C. 2 First, although plaintiff asserts that Dr. Skopec limited plaintiff to Discussion 3 performing only [] simple repetitive tasks (Plaintiff s Motion at 4) (emphasis 4 added), such an assertion is belied by the record. In the September 25, 2007 Case 5 Analysis Dr. Skopec opined that plaintiff retained the mental residual functional 6 capacity to do at least [simple repetitive tasks]. (AR 295) (emphasis added). 7 Second, substantial evidence supports the ALJ s assessment that plaintiff 8 retained the mental residual functional capacity to perform moderately detailed, 9 complex tasks. See Magallanes v. Bowen, 881 F.2d 747, 751, 755 (9th Cir. 1989) 10 (court may draw specific and legitimate inferences from ALJ s opinion). Again, 11 Dr. Skopec opined that plaintiff could do at least simple repetitive tasks. (AR 12 295). As the ALJ also noted, the record contains mental status evaluations of 13 plaintiff which, apart from some difficulty with concentration, were within normal 14 limits. (AR 17) (citing Exhibit 10F at 15, 24 [AR 329, 338]). While plaintiff 15 suggests that such evidence supports greater mental limitations, this Court cannot 16 second-guess the ALJ s reasonable determination that it does not. See Lewis v. 17 Apfel, 236 F.3d 503, 509 (9th Cir. 2001) (citation omitted). It was sole province 18 of the ALJ to resolve any conflict or ambiguities in the properly supported medical 19 evidence. Id.; Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation 20 omitted). 21 Finally, since the ALJ s determination that plaintiff retained the mental 22 ability to perform moderately detailed, complex tasks is supported by substantial 23 evidence, the ALJ did not err in omitting a limitation to simple repetitive tasks 24 from his residual functional capacity assessment and the hypothetical question 25 posed to the vocational expert, and consequently, plaintiff fails to demonstrate that 26 ALJ erred at step five in finding that plaintiff could perform his past relevant work 27 as a stock clerk. 28 /// 8 1 Accordingly, the Court concludes that a reversal or remand is not warranted 2 on any of plaintiff s grounds. 3 V. CONCLUSION 4 For the foregoing reasons, the decision of the Commissioner of Social 5 Security is affirmed. 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 DATED: January 26, 2012 8 9 10 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
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