(SS)Hinojos v. Commissioner of Social Security, No. 1:2011cv01530 - Document 18 (E.D. Cal. 2012)
Court Description: ORDER DENYING Plaintiff's Appeal From the Administrative Decision of the Commissioner of Social Security signed by Magistrate Judge Sheila K. Oberto on 12/28/2012. CASE CLOSED. (Jessen, A)
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(SS)Hinojos v. Commissioner of Social Security Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 RUBEN GARCIA HINOJOS, 11 12 13 14 15 16 17 ) ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) ) Defendant. ) ) _____________________________________ ) 1:11-cv-01530-SKO ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Docs. 1, 12) 18 19 BACKGROUND 20 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the 21 "Commissioner" or "Defendant") denying his application for supplemental security income ("SSI") 22 pursuant to XVI of the Social Security Act. 42 U.S.C. §§ 401 et seq. The matter is currently before 23 the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable 24 Sheila K. Oberto, United States Magistrate Judge.1 25 26 27 28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. (Docs. 5, 10.) Dockets.Justia.com 1 FACTUAL BACKGROUND 2 Plaintiff was born in 1967 and previously performed janitorial work. (Administrative Record 3 ("AR") 27, 42.) Plaintiff filed the current application for SSI on May 18, 2007. (AR 27, 188.) 4 Plaintiff asserts his ability to work is precluded by hepatitis C, mental problems including 5 depression, and pain in both knees. (AR 193.) 6 A. Medical Evidence2 7 On May 1, 2007, Plaintiff was examined for complaints of depression and social anxiety by 8 Archana Banerjee, M.D. (AR 267-69.) Plaintiff reported that he had experienced feelings of 9 depression over the last few years which was gradually worsening and had motivated him to seek 10 treatment. (AR 267.) He reported feeling sad most of the time, lacking motivation, and isolating 11 himself from family members and friends. (AR 267.) He stated he was lacking energy, experiencing 12 insomnia, lacking concentration, suffering from poor memory, and feeling hopeless, worthless, and 13 anxious. (AR 267.) Plaintiff reported past suicidal ideation, but denied feeling suicidal at the time 14 of the examination. (AR 267.) Plaintiff also stated that he had abused alcohol and heroin in the past, 15 but that he had been sober/clean since 1998. (AR 267.) Plaintiff reported that his brother's wife and 16 three children had been killed in a fire in 1994, and that he had not been working for the three years 17 prior to the examination due to his subsequent depression. (AR 267.) Dr. Banerjee diagnosed 18 Plaintiff with major depressive disorder, moderate with no psychosis, and a social anxiety disorder. 19 Plaintiff was assigned a Global Assessment of Functioning ("GAF") score of 45, and was prescribed 20 Celexa for depression and Hydroxyzene for insomnia.3 (AR 268.) 21 On October 28, 2007, Plaintiff underwent a comprehensive psychiatric evaluation by an 22 agency compensation examiner, Soad Khalifa, M.D. (AR 277-79.) Dr. Khalifa reviewed Dr. 23 Banerjee's treating records. (AR 277.) Plaintiff reported depressive and anxiety symptoms, low 24 25 2 26 27 28 Plaintiff has not challenged the ALJ's decision related to his physical impairments; thus, only evidence related to Plaintiff's mental conditions has been summarized herein. 3 According to the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, ("DSM-IV), a GAF score is the clinician's judgment of the individual's overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See DSM-IV, at 32. A GAF score between 41 and 50 represents "serious symptoms" or "any serious impairment in social, occupational, or school functioning." Id. at 34. 2 1 energy, difficulty sleeping, and nervousness. (AR 277.) Plaintiff also indicated that he felt nervous 2 around people. (AR 277.) Plaintiff was living with his parents, but he was isolating himself in his 3 own room. (AR 277.) He reported grief over the death of his sister-in-law and his four nephews 4 who died in a house fire. (AR 277.) Plaintiff denied any suicidal ideation, but noted that he had 5 used heroin. (AR 277.) He last worked in 2002 as a janitor, a position he had held for two years.4 6 (AR 278.) Plaintiff stated that he had been on methadone since 1997, and had a legal history that 7 included three charges of driving under the influence of heroin and alcohol. (AR 278.) 8 On examination, Dr. Khalifa noted that Plaintiff's concentration was impaired, but his 9 persistence and pace were good. (AR 278.) Plaintiff's mood was described as dysphoric, and his 10 affect was congruent. (AR 278.) Plaintiff's memory was found to be intact, and his fund of 11 knowledge was "fair." (AR 279.) Dr. Khalifa diagnosed Plaintiff with dysthymic disorder, and 12 assigned Plaintiff a GAF score of 60. (AR 279.) Dr. Khalifa opined that Plaintiff should be able to 13 understand, carry out, and remember simple instructions. (AR 279.) He noted that Plaintiff would 14 have some restrictions with daily activities and social functioning because of his depressive 15 symptoms and nervousness around people. (AR 279.) Dr. Khalifa indicated that Plaintiff has 16 limited social skills, isolative behavior, and low energy. (AR 279.) He noted that Plaintiff might 17 benefit from changing anti-depressants, as well as supportive and grief therapy. (AR 279.) 18 State agency reviewing physician, Evangeline Murillo, M.D., reviewed Plaintiff's records in 19 November 2007; on November 21, 2007, she completed a Mental Residual Functional Capacity 20 Assessment as well as a Psychiatric Review Technique form. (AR 284-97.) Dr. Murillo opined that 21 Plaintiff was moderately limited in the ability to understand, remember and carry out detailed 22 instructions and in the ability to work in coordination with or in proximity to others without being 23 distracted by them. (AR 284.) Dr. Murillo also checked a box indicating that Plaintiff's ability to 24 interact appropriately with the general public was moderately limited. (AR 285.) In all other areas 25 of functioning, Dr. Murillo checked boxes indicating that Plaintiff was "not significantly limited." 26 (AR 284-85.) Dr. Murillo concluded that Plaintiff was able to perform simple repetitive tasks on 27 a sustained basis and could complete an eight-hour workday. (AR 285.) However, she noted that 28 4 It was later clarified that Plaintiff's work as a janitor was performed in 2001. (AR 31.) 3 1 Plaintiff could not work in close proximity to others, but could adapt to changes in a work setting. 2 (AR 285.) 3 On July 18, 2008, state-agency physician Archimedes Garcia, M.D., reviewed Plaintiff's 4 records and affirmed Dr. Murillo's opinion, agreeing that Plaintiff was able to perform simple, 5 repetitive or routine tasks, but was to avoid working closely with peers. (AR 336.) 6 Progress notes between October and November 2008 from Tulare County Health & Human 7 Services Agency ("Tulare County Mental Health") indicate that Plaintiff was seen on a recurring 8 basis for major depressive disorder. (AR 432.) He reported ongoing thoughts of helplessness and 9 isolation from family members, as well as difficulties sleeping due to breathing difficulties, which 10 caused him to feel fatigued throughout the day with increasing impairments in his daily living and 11 family-interpersonal relationships. (AR 432-41.) 12 A December 17, 2008, Tulare County Mental Health progress note indicates that Plaintiff 13 was medication compliant and that Plaintiff denied any adverse effects from his prescribed 14 medication. (AR 466.) Plaintiff reported sleeping and eating well with no current episodes of 15 depressive thoughts or thoughts of suicide. (AR 466.) 16 In February 2009, Tulare County Mental Health records show that Plaintiff was seen for 17 continuing mental health issues. (AR 450-51.) A "Strengths/Needs Assessment Annual Update" 18 form indicates that Plaintiff had continued to participate in psychiatric treatment, had remained 19 medication compliant, and had noticed a decrease in auditory hallucinations and rapid thoughts. 20 (AR 451.) However, the form also states that Plaintiff continued to struggle with reducing the 21 intensity and frequency of his depression and he often struggled with concerns about his housing 22 situations and wanting to live with his wife and children after being apart from them for eight years. 23 (AR 451.) In terms of Plaintiff's medical needs, the form indicates that Plaintiff continued to report 24 symptoms of major depression including a depressed mood for more days than not, difficulties 25 sleeping, fatigue, anxiety, and some feelings of hopelessness and self isolation. (AR 451.) The form 26 states that these symptoms impair Plaintiff's interpersonal relationships and his ability to seek and 27 obtain employment, which in turn results in financial barriers. (AR 451.) 28 4 1 On February 18, 2009, Plaintiff was seen at Tulare County Mental Health. (AR 464.) 2 Plaintiff reported that he sometimes felt unfocused, but that he was eating well and sleeping four to 3 six hours per night, with occasional episodes of depressive feelings, but no suicidal or homicidal 4 ideation. (AR 464.) Plaintiff was noted to be medication compliant and that the medication was 5 effective at that time. (AR 464.) 6 On March 9, 2009, Plaintiff saw Dr. Banerjee for "medication follow up." (AR 460.) 7 Plaintiff reported sleeping difficulties and feeling nervous "from being off Methadone." (AR 460.) 8 Plaintiff stated he was very anxious, with body aches, and that he frequently secluded himself. 9 (AR 460.) Plaintiff was noted to be clean and neat, making good eye contact, and he was dressed 10 appropriately. (AR 460.) He was noted to be medication compliant, and no medication side effects 11 were reported; however, Plaintiff did state that he believed his medication was ineffective. 12 (AR 460.) 13 On April 15, 2009, Plaintiff was again seen at Tulare County Mental Health. (AR 457.) 14 Plaintiff denied any possible side effects from medication at that time, but reported frequent episodes 15 of insomnia and depression. (AR 457.) Plaintiff denied any active thoughts of suicidal or homicidal 16 ideation. (AR 457.) 17 On July 16, 2009, Plaintiff underwent a psychiatric evaluation by Pedro Eva, M.D. 18 (AR 528.) Dr. Eva reported that Plaintiff was not forthcoming with information during the 19 examination, and he had to be prompted to answer questions. (AR 528.) Plaintiff reported to Dr. 20 Eva that he was depressed and that he spends time at home doing nothing except sitting in bed, 21 watching television, and sleeping. (AR 528.) He denied any suicidal ideation, but he reported being 22 "off" his medication for about three to four months prior to the exam because he was unable to see 23 Dr. Banarjee. (AR 528.) Plaintiff also reported that he had been unable to afford medication or 24 methadone, and had been using heroin for about three months until three weeks before the exam 25 when he "got back on the program." (AR 528.) Dr. Eva observed that Plaintiff was slow to answer 26 questions and appeared depressed, but maintained good eye contact; Plaintiff's speech was slow and 27 monotonous. (AR 529.) Dr. Eva diagnosed Plaintiff with major depressive disorder, moderate 28 5 1 without psychosis. (AR 529.) Dr. Eva assigned Plaintiff a GAF score of 50, but expressly indicated 2 that "[i]t should be noted that he has been off medication for about four months." (AR 529.) 3 On April 9, 2010, Richard Nunes, M.D., completed a Mental Residual Functional Capacity 4 Assessment form. (AR 638-40.) Dr. Nunes completed the checkbox form by marking the boxes 5 indicating that Plaintiff was moderately limited in his ability to (1) "remember locations and work- 6 like procedures"; (2) understand and remember detailed instructions; (3) carry out detailed 7 instructions; (4) maintain socially appropriate behavior and adhere to basic standards of neatness and 8 cleanliness; and (5) respond appropriately to changes in the work setting. (AR 638-39.) Dr. Nunes 9 indicated that Plaintiff was "markedly limited" in his ability to (1) maintain attention and 10 concentration for extended periods; (2) perform activities within a schedule, maintain regular 11 attendance, and be punctual with customary tolerances; (3) work in coordination with or proximity 12 to others without being distracted by them; (4) complete a normal workday and workweek without 13 interruptions from psychologically based symptoms and perform at a constant pace without 14 unreasonable number and length of rest periods; (5) interact appropriately with the general public; 15 (6) accept instructions and respond appropriately to criticism from supervisors; (7) be aware of 16 normal hazards and take appropriate precautions; (8) travel in unfamiliar places or use public 17 transportation; and (9) set realistic goals or make plans independently of others. (AR 638-39.) 18 Dr. Nunes reported that Plaintiff "has significant problems interacting with others due to his 19 intense anxiety when in groups of people." (AR 640.) Dr. Nunes assigned Plaintiff a GAF score of 20 49, and indicated that while Plaintiff's depression had "resolved partially with medication," his 21 anxiety continued to be a significant problem. (AR 643.) Dr. Nunes also opined that Plaintiff had 22 marked restrictions of activities of daily living, maintaining concentration, persistence, or pace, and 23 had extreme limitation in maintaining social functioning. (AR 645.) Dr. Nunes further indicated 24 that Plaintiff had suffered three episodes of decompensation, each of extended duration. (AR 645.) 25 B. Administrative Proceedings 26 The Commissioner denied Plaintiff's application initially and again on reconsideration. (AR 27 61-86; 90-94.) Consequently, on August 18, 2008, Plaintiff requested a hearing before an 28 6 1 Administrative Law Judge ("ALJ").5 (AR 96.) A hearing was held June 20, 2010, before ALJ 2 Sharon L. Madsen. (AR 23-50.) 3 1. 4 Plaintiff testified at the June 20, 2010, hearing through the assistance of counsel. (AR 23- 5 50.) Plaintiff indicated that he was currently living at his mother's house, and he received food 6 stamps and General Relief. (AR 28.) He completed the 11th grade, but dropped out of high school 7 after turning 18. (AR 29.) He reported last being incarcerated in 1994. (AR 29.) Plaintiff's Testimony 8 In 2001, Plaintiff worked for the Cutler-Orosi Unified School District as a janitor through 9 a work-study program. (AR 31.) In relation to Plaintiff's depression, he stated he has trouble being 10 around other people. (AR 36.) However, Plaintiff reported that being around family, or visiting his 11 children or grandchildren was "okay." (AR 36.) His mind is always racing, and he has difficulty 12 concentrating. (AR 36-37.) Plaintiff takes Xanax for his anxiety and reported it does help "a little." 13 (AR 38.) 14 Plaintiff reported that he is able to perform his own personal grooming needs and that he does 15 some housework, including cleaning his room. (AR 30.) He is able to make simple food items for 16 himself, such as a sandwich; he does not do any shopping and generally isolates himself in his room. 17 (AR 30.) He had once enjoyed working with computers but now has no desire to do so. (AR 31.) 18 In a typical day, Plaintiff stays in his room watching television; once in a while he goes out to get 19 the mail or talk with his case worker. (AR 31.) 20 Plaintiff testified that he has not taken heroin since 1998, and he stopped drinking alcohol 21 somewhere between 1994 and 1996. (AR 38.) He reported continuing in a methadone treatment 22 program. (AR 38-39.) He sees a counselor monthly and receives his Methadone from the Bart clinic 23 once a week. (AR 39.) 24 Plaintiff also testified that the medication prescribed for his mental conditions were not 25 working at all, and they cause him to feel drowsy and fatigued. (AR 40.) As a result, Plaintiff takes 26 three naps a day lasting for about an hour to an hour and a half. (AR 40.) Plaintiff's difficulty 27 28 5 The Table of Contents indicates that Plaintiff's request for a hearing before an ALJ was made on August 22, 2008, but the form requesting the hearing is dated August 18, 2008. 7 1 concentrating precludes him from focusing on one thing for more than 20 minutes. (AR 41.) Three 2 to four times a week Plaintiff experiences really "down" days where he does not do much; these days 3 are usually triggered by thoughts of family. (AR 41.) 4 2. 5 A vocational expert ("VE") also testified at the hearing. (AR 42-49.) The ALJ posed several 6 hypothetical scenarios to the VE and inquired whether, in each scenario, such a hypothetical person 7 could perform work. First, the ALJ hypothesized a person of the same age, education, and work 8 background as Plaintiff who had no exertional limitations but was restricted to simple, routine tasks 9 and only occasional contact with the public, co-workers, and supervisors. (AR 42.) The ALJ 10 clarified that, as it pertains to co-workers and supervisors, the limitation would mean that such a 11 person could work in the same building, but the hypothetical person would not be working "side by 12 side" with co-workers and supervisors. (AR 42.) The VE testified there was work that such a 13 hypothetical person could perform including that of commercial cleaner, laborer/landscape, and 14 lumber handler. (AR 43.) Vocational Expert's Testimony 15 The ALJ posed a second hypothetical, asking the VE again to assume a person with the same 16 age, education, and work history as Plaintiff. The ALJ hypothesized the same limitations, but was 17 only able to lift 50 pounds occasionally and 25 pounds frequently. (AR 43.) The VE testified that 18 a person limited in this way would be able to perform work as an industrial/sweeper/cleaner, as a 19 landscape specialist, and as a hand packer. (AR 43.) 20 In a third hypothetical, the ALJ hypothesized the same limitations as the first hypothetical, 21 but added an exertional limitation of only being able to lift and carry 20 pounds occasionally and 10 22 pounds frequently. (AR 43.) The VE testified that such a hypothetical person could perform work 23 as a price marker, an assembler, and a production assembler. (AR 43-44.) 24 In a fourth hypothetical, the ALJ ask the VE to consider a person with the same limitations 25 as posed in the third hypothetical, but with an additional need to take two-to four-hour breaks of 26 thirty minutes per day, and would need to miss work at least four days a month. (AR 44.) The VE 27 testified that such a hypothetical person would not be able to perform any work with such 28 limitations. (AR 44.) 8 1 Plaintiff's representative posed a hypothetical to the VE that involved a person who was 2 moderately limited in the ability to (1) understand, remember, and carry out detailed instructions; 3 (2) work in coordination with or proximity to others without being distracted by them; and 4 (3) interact appropriately with the public. The representative clarified that the use of the words 5 "moderately limited" in the hypothetical denoted experiencing the limitation for up to one-third of 6 an eight-hour workday. (AR 44.) The hypothetical person would also be limited to lifting 20 pounds 7 occasionally and 10 pounds frequently. (AR 44.) The VE testified that such a hypothetical person 8 would be able to perform work as a vending machine attendant, a library page, and a copy clerk. 9 (AR 45-46.) 10 The representative posed a second hypothetical assuming a person of the same age, 11 education, and having the same work history as Plaintiff who also had marked restrictions of 12 activities of daily living; extreme difficulties in maintaining social functioning; and marked 13 difficulties in maintaining concentration, persistence, or pace. (AR 46.) The representative clarified 14 that, as used in the hypothetical, "marked limitation" was to be considered one that "may arise when 15 several activities or functions are impaired or even when only one is impaired so long as the degree 16 of limitation is such as to seriously interfere with the ability to function independently, appropriately, 17 and effectively. " (AR 47.) The VE testified that such a person could perform no work. (AR 47.) 18 In a third hypothetical posed by the representative, the VE was asked to consider a person 19 who was exactly like the second hypothetical person but who was also "markedly limited" in the 20 ability to: (1) maintain attention and concentration for extended periods; (2) work in coordination 21 with or in proximity to others without being distracted by them; (3) complete a normal workday and 22 workweek without interruptions from psychologically-based symptoms; and (4) perform tasks at a 23 consistent pace without an unreasonable number and length of rest periods. Using the same 24 definition of "marked limitation" from the second hypothetical, the VE testified that such a person 25 would not be able to perform any work. (AR 47.) 26 In a fourth and final hypothetical, the VE was asked by Plaintiff's representative to consider 27 a person who was markedly limited in the ability to: (1) perform activities within a schedule, 28 maintain regular attendance, and be punctual with customary allowances; and (2) complete a normal 9 1 workday and workweek without interruptions from psychologically based symptoms. (AR 48.) The 2 VE testified that a person with those limitations could not perform any work. (AR 48.) 3 3. 4 On August 13, 2010, the ALJ issued a decision that found Plaintiff not disabled from May 5 18, 2007, through the date of the decision. (AR 10-17.) Specifically, the ALJ found that Plaintiff 6 (1) has not engaged in substantial gainful activity since May 18, 2007; (2) has four severe 7 impairments: major depressive disorder, social anxiety disorder, obesity, and mild degenerative joint 8 disease of the hips; (3) does not have an impairment or combination of impairments that meets or 9 medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) has 10 a Residual Functional Capacity ("RFC")6 to lift and carry 50 pounds occasionally and 25 pounds 11 frequently; is able sit, stand, and walk for six hours in an eight-hour workday, and can perform 12 simple, routine tasks with occasional contact with the public, co-workers, and supervisors; (5) has 13 no past relevant work; and (6) can perform jobs existing in significant numbers in the national 14 economy. (AR 10-17.) The ALJ's Decision 15 On October 1, 2010, Plaintiff sought review of this decision before the Appeals Council. 16 (AR 6.) The Appeals Council denied review on July 18, 2011. (AR 1-5.) Therefore, the ALJ's 17 decision became the final decision of the Commissioner. 20 C.F.R. § 416.1481. 18 C. Plaintiff's Contentions on Appeal 19 On September 9, 2011, Plaintiff filed a complaint before this Court seeking review of the 20 ALJ's decision. Plaintiff seeks a reversal of the final decision of the Commissioner asserting that 21 the ALJ failed to properly consider the opinion of Dr. Nunes and erroneously found Plaintiff's lay 22 statements not credible. (Doc. 12.) 23 24 25 26 27 28 6 RFC is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an individual’s medically determinable impairment or combination of impairments. Id. "In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and 'the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006). 10 1 SCOPE OF REVIEW 2 The ALJ's decision denying benefits "will be disturbed only if that decision is not supported 3 by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 4 1998). In reviewing the Commissioner's decision, the Court may not substitute its judgment for that 5 of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996). Instead, the Court must 6 determine whether the Commissioner applied the proper legal standards and whether substantial 7 evidence exists in the record to support the Commissioner's findings. See Lewis v. Astrue, 498 F.3d 8 909, 911 (9th Cir. 2007). 9 "Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v. 10 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such 11 relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 12 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 13 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both the 14 evidence that supports and the evidence that detracts from the Commissioner's conclusion, and may 15 not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v. Astrue, 16 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted). 17 APPLICABLE LAW 18 An individual is considered disabled for purposes of disability benefits if he or she is unable 19 to engage in any substantial, gainful activity by reason of any medically determinable physical or 20 mental impairment that can be expected to result in death or that has lasted, or can be expected to 21 last, for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A), 22 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or 23 impairments must result from anatomical, physiological, or psychological abnormalities that are 24 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of 25 such severity that the claimant is not only unable to do his previous work, but cannot, considering 26 his age, education, and work experience, engage in any other kind of substantial, gainful work that 27 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D). 28 11 1 The regulations provide that the ALJ must undertake a specific five-step sequential analysis 2 in the process of evaluating a disability. In the First Step, the ALJ must determine whether the 3 claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). 4 If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment 5 or a combination of impairments significantly limiting her from performing basic work activities. 6 Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the 7 claimant has a severe impairment or combination of impairments that meets or equals the 8 requirements of the Listing of Impairments ("Listing"), 20 C.F.R. 404, Subpart P, App. 1. Id. 9 §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant 10 has sufficient RFC despite the impairment or various limitations to perform her past work. Id. 11 §§ 404.1520(f), 416.920(f). If not, in the Fifth Step, the burden shifts to the Commissioner to show 12 that the claimant can perform other work that exists in significant numbers in the national economy. 13 Id. §§ 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in 14 the sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098- 15 99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920. 16 17 DISCUSSION A. The Weight of the Medical Evidence 18 1. 19 The medical opinions of three types of medical sources are recognized in Social Security 20 cases: "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat 21 the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (non- 22 examining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally, a treating 23 physician's opinion should be given more weight than opinions of doctors who did not treat the 24 claimant, because treating physicians are employed to cure and, therefore, have a greater opportunity 25 to know and observe the claimant. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007); Smolen v. 26 Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). Opinions given by examining physicians are, in turn, 27 generally given greater weight than the opinion of a non-examining physician. Pitzer v. Sullivan, 28 908 F.2d 502, 506 (9th Cir. 1990); Gallant v. Heckler, 750 F.2d 1450 (9th Cir. 1984). Where an Legal Standard 12 1 examining physician's opinion is uncontradicted by another doctor, the Commissioner must provide 2 "clear and convincing" reasons for rejecting the examining physician's ultimate conclusions. Lester, 3 81 F.3d at 830. 4 Despite the presumption of special weight afforded to treating or examining physicians' 5 opinions, an ALJ may give less weight to an examining physician's opinion that conflicts with the 6 medical evidence, if the ALJ provides specific and legitimate reasons for discounting the opinion. 7 See id. at 830-31 ("[T]he opinion of an examining doctor, even if contradicted by another doctor, can 8 only be rejected for specific and legitimate reasons that are supported by substantial evidence in the 9 record."). The ALJ can meet this burden by setting forth a detailed and thorough summary of the 10 facts and conflicting clinical evidence, stating his interpretation thereof, and making findings. 11 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). A non-examining physician's opinion 12 alone, with nothing more, is not sufficient evidence to justify the rejection of an examining 13 physician's opinion. Lester, 81 F.3d at 831 (citing Pitzer, 908 F.2d at 506 n. 4; Gallant, 753 F.2d 14 at 1456). However, the ALJ can reject the opinion of an examining physician based on the testimony 15 of a non-examining medical advisor and on substantial evidence in the record. See, e.g., Magallanes 16 v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989); Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 17 1995); Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir 1995). 18 2. 19 Plaintiff challenges the ALJ's assessment of the medical evidence relevant to Plaintiff's 20 mental functioning. The ALJ determined that Plaintiff's mental impairments limited him to simple, 21 routine tasks with only occasional contact with the public, co-workers, and supervisors. (AR 13.) 22 In making this RFC assessment, the ALJ considered medical records and opinions from Drs. Khalifa, 23 Eva, Murillo, Garcia, and Nunes as well as Plaintiff's statements describing his symptoms and their 24 severity. (AR 12-16.) In weighing Dr. Nunes' opinion that Plaintiff was markedly to extremely 25 limited in most areas of functioning, the ALJ gave little weight to this opinion. (AR 16.) 26 Specifically, the ALJ reasoned that Dr. Nunes opined that Plaintiff's limitations became effective in 27 January 2007, but Dr. Nunes had only been treating Plaintiff for the three months prior to Dr. Nunes' 28 April 2010 opinion. (AR. 16.) Further, the ALJ found it "significant that no treating or attending The ALJ's Assessment of Dr. Nunes' Opinion 13 1 physicians imposed significant functional limitations upon the claimant until he requested his doctor 2 to complete a residual functional capacity questionnaire in April 2010." (AR 16.) 3 a. Plaintiff's Argument 4 Plaintiff asserts that the ALJ's reasoning that no other treating or attending physicians 5 imposed such significant functional limitations is incorrect. (Doc. 12, p. 12.) Plaintiff argues that 6 Dr. Eva assigned Plaintiff a GAF score of 50, which is almost the same as the GAF score of 49 that 7 Dr. Nunes assigned in April 2010. (Doc. 12, p. 12.) According to Plaintiff, both of these GAF 8 scores reflect serious symptoms with serious impairments. Plaintiff thus contends that the ALJ's 9 conclusion that no other treating physician found Plaintiff as limited as Dr. Nunes is incorrect and 10 11 not supported by substantial evidence in the record. (Doc. 12, p. 12.) b. The Commissioner's Argument 12 The Commissioner argues that the ALJ properly assessed Dr. Nunes' opinion. (Doc. 16, 13 7:22-11:5.) Specifically, the Commissioner notes that Plaintiff did not dispute the ALJ's finding that 14 the limited length of the treating relationship between Plaintiff and Dr. Nunes detracts from Dr. 15 Nunes' opinion, and therefore Plaintiff has conceded that this reasoning constitutes legally sufficient 16 grounds to assign less weight to the opinion. As to the similarity between the GAF scores assigned 17 by Dr. Nunes and Dr. Eva, the Commissioner asserts that the GAF score assigned by Dr. Eva must 18 be viewed in the context of the assessment, i.e., the GAF score was assigned three weeks after a 19 three-month period of heroin abuse. (AR 528.) Dr. Eva also noted that, at the time of the GAF 20 score, Plaintiff had been off medication for his mental conditions for approximately four months. 21 (AR 529.) Given this context, the GAF score assigned by Dr. Nunes at a time when Plaintiff was 22 taking medication and had experienced a positive response to medication, is not supported by Dr. 23 Eva's GAF score. (Doc. 16, 8:20-9:7.) 24 The Commissioner also argues that the GAF score assessed by Dr. Nunes was "not actually 25 a medical source opinion because it was not prepared for any of the purposes of a medical opinion 26 as defined by the Commissioner's regulations." (Doc. 16, 8:8-10.) The Commissioner cites 27 20 C.F.R. § 416.927(a)(2) which provides that "[m]edical opinions are statements from physician 28 and psychologists or other acceptable medical sources that reflect judgments about the nature and 14 1 severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still 2 do despite impairment(s), and your physical or mental restrictions." 3 Finally, the Commissioner contends that the findings made by Dr. Nunes conflict with not 4 only the state-agency non-examining physicians, but also Dr. Khalifa, an examining physician, and 5 Dr. Banerjee, Plaintiff's treating physician. As such, the ALJ's decision to give Dr. Nunes' opinion 6 less weight is supported by substantial evidence in the record. 7 c. Analysis 8 As noted above, a GAF score is the "clinician's judgment of the individual's overall level of 9 function." DSM IV at 32. While the GAF score does not provide detailed information,7 it is 10 nonetheless a statement that reflects a physician's judgment about the nature or severity of a patient's 11 current condition. Thus, a GAF score assigned by a physician is a medical opinion about the level 12 of the patient's functioning at that time. However, the ALJ is not required to give any GAF score 13 controlling weight. See Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ("While 14 a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to 15 the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, 16 does not make the RFC inaccurate."); see also Baker v. Astrue, No. CV 08-3199-MLG, 2009 WL 17 279085, at *3 (C.D. Cal. Feb. 4, 2009) ("In evaluating the severity of a claimant's mental 18 impairments, a GAF score may help to guide the ALJ's determination, but an ALJ is not bound to 19 consider it."). Because a GAF score provides no discussion of the symptoms assessed to assign the 20 score, and generally reflects a patient's current functioning (as opposed to long-term functioning), 21 a GAF score may not have much probative value for purposes of assessing a claimant's ability to 22 work. See, e.g., Ramos v. Barnahrt, 513 F. Supp. 2d 249, 261 (E.D. Pa. 2007) ("Clinicians use a 23 GAF scale to identify an individual['s] overall level of functioning, and a lower score may indicate 24 problems that do not necessarily relate to the ability to hold a job.") (internal quotation marks and 25 citations omitted). 26 27 28 7 See Petree v. Astrue, 260 F. App'x 33, 42 (10th Cir. 2007) (unpublished disposition) ("[A] low GAF score does not alone determine disability, but is instead a piece of evidence to be considered with the rest of the record."). 15 1 Plaintiff notes that the GAF score Dr. Eva assigned to Plaintiff is similar to the score assigned 2 by Dr. Nunes. Plaintiff contends the similarity of two GAF scores undercuts the ALJ's reasons for 3 rejecting Dr. Nunes' opinion – i.e., that no other treating or attending physician imposed significant 4 functional limitations as those imposed by Dr. Nunes. However, a GAF score does not reflect 5 functional limitations per se; rather, it is a way to quantify the level of symptom-severity at a 6 particular time. Moreover, a GAF score does not provide any information about what particular 7 symptoms contributed to the scoring assessment. Thus, similar GAF scores do not necessarily 8 translate to similar symptoms or impairments, particularly when the two assessments compared are 9 temporally attenuated. Moreover, Dr. Eva's GAF score was assessed at a time when Plaintiff was 10 both non-compliant with his depression medication and had also been using heroin in the months 11 prior to the examination. (AR 528 (Plaintiff reported to Dr. Eva that "[h]e abused heroin until about 12 three weeks ago. He is currently on a methadone program").) The Commissioner correctly notes 13 that the context of Dr. Eva's GAF score makes it a less reliable indicator of Plaintiff's functioning 14 over the long-term, and does not necessarily support the findings of Dr. Nunes, even though both 15 doctors assigned a similar GAF score to Plaintiff. 16 Further, as the Commissioner argues, reviewing the medical record as a whole bears out the 17 ALJ's consideration of Dr. Nunes' opinion. Dr. Kahlifa, the state-agency examining physician, 18 described Plaintiff as having "mildly depressive symptoms." (AR 279.) Likewise, in reviewing the 19 medical records, Dr. Murillo determined that Plaintiff's symptoms did not prevent him from 20 completing simple, repetitive tasks on a sustained basis, but noted that Plaintiff could not work in 21 close proximity to others. (AR 285.) In light of this, the GAF score assigned by Dr. Nunes, coupled 22 with the marked and extreme limitations imposed, are not consistent with the generally moderate to 23 mild symptoms and limitations noted by Dr. Kahlifa and confirmed by Dr. Murillo. In sum, the GAF 24 score assigned by Dr. Eva does not invalidate the ALJ's reasoning that the extreme limitations 25 imposed by Dr. Nunes were inconsistent with the other opinions of record regarding Plaintiff's level 26 of functioning. 27 Moreover, the ALJ also determined that Dr. Nunes' opinion was entitled to less weight 28 because he had only treated Plaintiff once a month over three months. The ALJ noted that, although 16 1 Dr. Nunes opined Plaintiff's limitations "became effective" as of January 12, 2007, he had only been 2 treating Plaintiff since 2010. (AR 645.) It is not clear how Dr. Nunes concluded the limitations he 3 imposed had been at that level of severity since 2007. Thus, because of the short length of the 4 treating relationship and the lack of treatment history prior to 2010, the ALJ gave the opinion less 5 weight. The ALJ provided legally sufficient grounds, supported by substantial evidence in the 6 record, to give less weight to Dr. Nunes' opinion. 7 B. The ALJ Gave Legally Sufficient Reasons to Find Plaintiff's Statements Not Credible 8 Plaintiff argues generally that the ALJ offered no clear and convincing reasons to reject 9 Plaintiff's credibility because the medical record supports Plaintiff's statements about the severity 10 of his mental condition, particularly the reports of Drs. Eva and Nunes. 11 As the Ninth Circuit has explained: 12 15 The ALJ may consider many factors in weighing a claimant's credibility, including (1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities. If the ALJ's finding is supported by substantial evidence, the court may not engage in second-guessing. 16 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (citations and internal quotation marks 17 omitted); see also Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1226-27 (9th Cir. 2009); 18 20 C.F.R. §§ 404.1529, 416.929. Other factors the ALJ may consider include a claimant's work 19 record and testimony from physicians and third parties concerning the nature, severity, and effect of 20 the symptoms of which he complains. Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997). 21 The ALJ found that, while Plaintiff's medically determinable impairments could reasonably 22 be expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, 23 persistence, and limiting effects of these symptoms were not credible to the extent Plaintiff alleged 24 symptoms more severe than those reflected by the RFC assessment. (AR 15.) The ALJ noted that 25 Plaintiff had a history of incarceration, substance abuse, and a minimal work history, which all 26 detracted from his credibility. (AR 15.) Specifically, the ALJ noted an inconsistency in Plaintiff's 27 statements regarding his substance abuse history. (AR 15.) Moreover, although Plaintiff had alleged 28 various side effects from his use of medications, the medical records do not corroborate these 13 14 17 1 allegations. (AR 15.) Rather, according to the ALJ, the treatment notes indicate the medications 2 were effective and Plaintiff denied medication side effects on several occasions. (AR 15.) 3 In considering the ALJ's rationale, it must be noted that a mere history of past incarceration 4 is not a clear and convincing reason to reject Plaintiff's testimony as not credible. For example, in 5 Buck v. Astrue, the ALJ found the claimant not credible because he had been incarcerated in the past. 6 No. 3:10-cv-05519-KLS, 2011 WL 2600505, at *11 (W.D. Wash. June 28, 2011). In rejecting this 7 as a clear and convincing rationale to discredit the claimant, the court reasoned that "the mere fact 8 that a claimant has been incarcerated or has a criminal history alone is not a sufficient basis upon 9 which to base an adverse credibility determination, given that such reveals nothing about the 10 claimant's honesty or lack thereof." Id. This reasoning is convincing. Here, Plaintiff stated that he 11 had been incarcerated four times due to drug use, which has little bearing on his veracity. The ALJ 12 did not attribute any portion of Plaintiff's criminal history as probative of whether Plaintiff was 13 honest or truthful. 14 As to Plaintiff's substance abuse history, while a lack of candor regarding substance abuse 15 may constitute a clear and convincing reason to reject lay statements (see Thomas v. Barnhart, 16 278 F.3d 947, 959 (9th Cir. 2002) (upholding credibility determination where claimant presented 17 conflicting information about her drug and alcohol use)), there must be more than a mere history of 18 substance abuse to discredit a plaintiff's testimony (see Woodsum v. Astrue, 711 F. Supp. 2d 1239, 19 1262 (W.D. Wash. 2010) ("discounting plaintiff's credibility because of her substance abuse . . . 20 history was improper, given that it bears little relevance to plaintiff's tendency to tell the truth")). 21 Here, the ALJ noted that Plaintiff had contrarily alleged that he had been clean and sober since 1998 22 as it related to heroin use, but he reported to Dr. Eva in July 2009 that he was unable to afford 23 Methadone and was therefore using heroin for about three months prior the examination. (AR 15, 24 528.) Such an inconsistency in testimony regarding Plaintiff's substance abuse history is a legally 25 sufficient grounds to discredit his lay statements. Thomas, 278 F.3d at 959. 26 Further, a minimal work history coupled with inconsistent statements regarding medication 27 side effects also constitute legally sufficient grounds to discredit Plaintiff's testimony. A minimal 28 work history is a legitimate factor for the ALJ to consider in relationship to Plaintiff's overall 18 1 credibility. See Thomas, 278 F.3d at 959 (poor job history reflecting years of unemployment before 2 alleged onset of disability is a clear and convincing reason to discredit the plaintiff). 3 Here, Plaintiff has a very minimal work history, even prior to his alleged disability onset date 4 of 2002. (AR 15, 186.) The ALJ properly considered this factor in making the credibility 5 determination. Id. Further, the ALJ also considered inconsistent statements made by Plaintiff 6 regarding medication side effects. (AR 15.) Specifically, Plaintiff testified in the hearing that he 7 experienced medication side effects, but the medical records indicate that Plaintiff denied medication 8 side effects. (Compare AR 40 (testifying to medication side-effect) with AR 445, 457, 460, 462, 464 9 (denying medication side-effects to physicians/counselors). This too was a legitimate factor for the 10 ALJ to consider. 11 Although a mere history of incarceration was not an adequate ground to discredit Plaintiff, 12 the ALJ provided other clear and convincing reasons supported by substantial evidence to reject 13 Plaintiff's lay statements. "So long as there remains 'substantial evidence supporting the ALJ's 14 conclusions on credibility' and the error 'does not negate the validity of the ALJ's ultimate credibility 15 conclusion,' such [error] is deemed harmless." Carmichael v. Comm'r of Soc. Sec. Admin., 553 F.3d 16 1155, 1162 (9th Cir. 2008) (quoting Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 17 Cir. 2004)). Thus, any error on the part of the ALJ by considering one improper credibility factor 18 is harmless, and the ALJ's credibility determination is legally sufficient. 19 CONCLUSION 20 Based on the foregoing, the Court finds that the ALJ's decision is supported by substantial 21 evidence in the record as a whole and is based on proper legal standards. Accordingly, the Court 22 DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. 23 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Michael J. Astrue, 24 Commissioner of Social Security, and against Plaintiff Ruben Garcia Hinojos. 25 26 27 IT IS SO ORDERED. Dated: December 28, 2012 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 19
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