Edward Munoz v. Michael J Astrue, No. 2:2011cv02607 - Document 16 (C.D. Cal. 2011)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal, IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner. See order for details. (jy)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EDWARD MUNOZ, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 11-02607 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Edward Munoz ( Plaintiff ) brings this action seeking to overturn 22 the decision of the Commissioner of the Social Security Administration 23 (hereinafter 24 applications for Social Security Income benefits ( SSI ) and Disability 25 Insurance Benefits ( DIB ). 26 U.S.C. § 636©, to the jurisdiction of the undersigned United States 27 Magistrate Judge. 28 Agency is AFFIRMED. the Commissioner or the Agency ) denying his The parties consented, pursuant to 28 For the reasons stated below, the decision of the 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff applied for SSI and DIB on September 25, 2007 alleging 5 a disability onset date of June 1, 2005. (Administrative Record ( AR ) 6 75-77). 7 SSI on February 5, 2008, (AR 51), and denied reconsideration on June 18, 8 2008. 9 held on January 8, 2009 before an Administrative Law Judge ( ALJ ), (AR The Agency denied Plaintiff s initial application for DIB and (AR 57). Plaintiff then requested a hearing, (AR 64), which was 10 69), where Plaintiff appeared with counsel and testified. 11 42). 12 Appeals Council denied Plaintiff s request for review of the ALJ s 13 decision on February 8, 2011, (AR 1), making the ALJ s decision the 14 final decision of the Agency. On February 25, 2009, the ALJ denied benefits. (AR 25, 28- (AR 11-24). The Plaintiff then filed the instant action. 15 16 III. 17 FACTUAL BACKGROUND 18 19 Plaintiff was 47 years old at the time of his alleged disability 20 onset date. (AR 75). He can speak, understand, and write in English. 21 (AR 90). 22 as garden and perform woodworking. Additionally, Plaintiff can dress and bathe himself as well (AR 262). 23 24 A. Plaintiff s Medical History 25 26 Plaintiff has a history of high blood pressure, anemia, hepatitis 27 C, as well as cirrhosis secondary to alcohol use for 20 years. (AR 192, 28 2 1 253-54, 261, 296, 434). Additionally, Plaintiff has been treated for 2 hepatitis A, cataract in his right eye, and a bullet wound in his elbow. 3 (Id.). Plaintiff has a long history of heroin, marijuana and alcohol 4 abuse. (AR 192-93, 196, 211, 249, 253, 254, 262, 264, 277, 300, 457). 5 6 The majority of Plaintiff s medical records derive from visits to 7 LAC-USC Medical Center from June 2007 to July 2009. 8 324, 9 psychological treatment from Dr. Rongey. 419-510). During that time, Plaintiff (AR 183-244, 289frequently sought On March 13, 2008, Dr. Rongey 10 noted Plaintiff s increased forgetfulness and slight asterixis, and 11 recommended lactulose for treatment. 12 Rongey opined that Plaintiff s problems with forgetfulness may be 13 secondary to long standing alcohol abuse or . . . sleep disturbances. 14 (AR 300, 466). On November 6, 2008, Dr. Rongey noted improved mentation 15 after starting lactulose. (AR 308, 473). Subsequently, Dr. (AR 296, 462). 16 17 On April 4, 2009, Dr. Rongey noted that Plaintiff had a recent 18 lapse in sobriety noting that Plaintiff began to drink alcohol again, 19 and began using vicodin and two weeks ago used Marijuana. 20 Plaintiff further resumed use of injecting heroin. (Id.). Dr. Rongey 21 also noted that Plaintiff s March tox screen returned positive for 22 opiates [and] amphetamines. 23 again noted improved mentation with lactulose and noted that Plaintiff 24 has been clean since March 2009 except for Vicodin for arm pain. 25 450). (Id.) 26 27 28 3 (AR 457). During a follow up visit, Dr. Chan (AR 1 B. Psychiatric Examinations 2 3 On January 7, 2008, Dr. Rosa Colonna, a consultative clinical 4 psychologist, conducted a complete psychological evaluation. (AR 260- 5 65). 6 illness. 7 alcohol 8 examination and heroin two years ago. (AR 262). Based on test results 9 and clinical data, Dr. Colonna diagnosed Plaintiff with polysubstance 10 dependence in remission from self-reporting, personality disorder with 11 antisocial traits, and assessed Plaintiff with a GAF score of 60. 12 264). 13 ability appears to be low average. 14 would be able to understand, remember and carry out short, simplistic 15 instructions without difficulty and be able to make simplistic work- 16 related decisions without special supervision. 17 she concluded that Plaintiff would be able to interact appropriately 18 with supervisors, coworkers and peers and appear[s] able to manage 19 finances on his own. (Id.). Dr. Colonna recommended a sober lifestyle 20 free of drug use. Plaintiff confided that he did not have a prior history of mental (AR 261). and stopped Plaintiff also stated that he used heroin and using alcohol several months prior to the (AR Dr. Colonna also noted that Plaintiff s overall cognitive (Id.). Specifically, Plaintiff (Id.). Additionally, (Id.). 21 22 On January 29, 2008, Dr. Elizabeth Harrison, completed a 23 Psychiatric Review Technique report. (AR 271). Dr. Harrison determined 24 that Plaintiff had a polysubstance abuse disorder in remission. 25 277). 26 social functioning and daily activities, and moderate limitations in 27 maintaining concentration, persistence, or pace without any episodes of (AR Further, she asserted that Plaintiff had mild limitations in 28 4 1 decompensation. (AR 279). 2 limitation in his ability to understand and perform simple instructions, 3 and he could work without special supervision. 4 Harrison asserted that Plaintiff was not significantly limited in social 5 interactions 6 appropriately to changes in the work setting. related to According to Dr. Harrison, Plaintiff had no work, and that (AR 282). Plaintiff Further, Dr. could respond (AR 283). 7 8 C. Vocational Expert s Testimony 9 10 Ms. Jane Halle, a vocational expert, testified at Plaintiff s 2009 11 hearing. (AR 42-45). 12 situated to Plaintiff who is limited to light work and prevented from 13 performing work requiring binocular vision would not be able to perform 14 Plaintiff s past relevant work. 15 that 16 restrictions, and that there were available unskilled jobs in the local 17 and national economy. 18 would be very minimal adjustment in learning how to perform these 19 jobs. such a person Ms. Halle testified that a person similarly could (AR 43-44). perform (AR 44). However, she confirmed unskilled work given those Moreover, Ms. Halle asserted there (AR 45). 20 21 D. Plaintiff s Testimony 22 23 At the 2009 hearing, Plaintiff testified that he worked for Roger 24 Floyd doing air conditioning and refrigeration repair for many years. 25 (AR 30). 26 tight spaces. 27 caretaker for a friend in 2006. He frequently carried 100 pound bags of cement and worked in (AR 30-31). Subsequently, Plaintiff took a job as a (AR 29). 28 5 He lives in his own house, 1 but his mom and girlfriend prepare his meals and clean for him. (AR 2 32). 3 but testified he is no longer using heroin. 4 Plaintiff confirmed that he also abused alcohol. 5 why he could no longer work, Plaintiff asserted that he started slowing 6 down and then [get] real sleepy and lazy on the job. . . . (AR 34-35). 7 Further, Plaintiff claimed he cannot stand too long without swelling of 8 his ankles. (AR 35). According to Plaintiff, he is constantly fatigued 9 because of his hepatitis C condition. (AR 37). Plaintiff asserted that 10 he takes medication for forgetfulness , and that his vision is impaired 11 in his right eye from a cataract. Plaintiff confirmed that he had abused heroin as recent as 2007 (AR 33). Additionally, (AR 34). When asked (AR 41). 12 13 14 IV. 15 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 16 17 To qualify for disability benefits, a claimant must demonstrate a 18 medically determinable physical or mental impairment that prevents her 19 from engaging in substantial gainful activity1 and that is expected to 20 result in death or to last for a continuous period of at least twelve 21 months. 22 42 U.S.C. § 423(d)(1)(A)). 23 incapable of performing the work she previously performed and incapable 24 of performing any other substantial gainful employment that exists in Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing The impairment must render the claimant 25 26 1 Substantial gainful activity means work that involves doing 27 significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. § 416.910. 28 6 1 the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 2 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 3 4 5 To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. § 416.920. The steps are: 6 7 (1) Is the claimant presently engaged in substantial gainful 8 activity? 9 If not, proceed to step two. 10 (2) Is the If so, the claimant is found not disabled. claimant s impairment 11 claimant is found not disabled. 12 severe? If not, the three. 13 (3) Does the claimant s If so, proceed to step impairment meet or equal the 14 requirements of any impairment listed at 20 C.F.R. Part 15 404, Subpart P, Appendix 1? 16 found disabled. 17 (4) If so, the claimant is If not, proceed to step four. Is the claimant capable of performing h[er] past work? 18 If so, the claimant is found not disabled. 19 proceed to step five. 20 (5) Is the claimant able to do any other work? 21 claimant is found disabled. 22 If not, If not, the If so, the claimant is found not disabled. 23 24 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 25 949, 953-54 (9th Cir. 2001); 20 C.F.R. § 416.920(b)-(g)(1). 26 27 28 7 1 The claimant has the burden of proof at steps one through four, and 2 the Commissioner has the burden of proof at step five. Bustamante, 262 3 F.3d at 953-54. 4 establishing an inability to perform the past work, the Commissioner 5 must show that the claimant can perform some other work that exists in 6 significant numbers in the national economy, taking into account the 7 claimant s RFC, age, education and work experience. 8 at 1100; 20 C.F.R. § 416.920(g)(1). 9 testimony of a vocational expert or by reference to the Medical- 10 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 11 Appendix 2 (commonly known as the Grids ). 12 F.3d 1157, 1162 (9th Cir. 2001). 13 (strength-related) 14 inapplicable and the ALJ must take the testimony of a vocational expert. 15 Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). If, at step four, the claimant meets her burden of and Tackett, 180 F.3d The Commissioner may do so by the Osenbrock v. Apfel, 240 When a claimant has both exertional nonexertional limitations, 16 Grids are V. 17 the THE ALJ S DECISION 18 19 The ALJ employed the five-step sequential evaluation process and 20 concluded that Plaintiff was not disabled. 21 the ALJ determined that Plaintiff had not engaged in substantial gainful 22 activity since June 1, 2005. 23 Plaintiff had liver disease (alcoholic cirrhosis), possible hiatal 24 hernia, hypertension, a systolic ejection heart murmur, viral hepatitis 25 A and C, obesity (being 70 inches tall and weighing 222 pounds), 26 subjective complaints of decreased visual acuity in the right eye, and (AR 16). 27 28 8 (AR 14-24). At step one, At step two, the ALJ found that 1 polysubstance abuse (alcohol, opioid, cannabis, heroin, etc.) reportedly 2 in remission. (Id.). 3 4 However, the ALJ determined that Plaintiff s mental impairment 5 does not cause more than minimal limitations in the [Plaintiff s] 6 ability to perform basic mental work activities and is therefore non- 7 severe. 8 evaluating mental disorders pointed to a finding of non-severe. (Id.). 9 According to the ALJ, Plaintiff had only mild limitations in daily 10 living, social functioning, and concentration, and had no episodes of 11 decompensation. (AR 17). Specifically, the four functional areas for (Id.). 12 13 At step three, the ALJ determined that Plaintiff did not have an 14 impairment that meets or equals a listed impairment. (Id.). At step 15 four, the ALJ found that Plaintiff could perform light work other than 16 work requiring binocular vision. (AR 19). 17 18 Ultimately, the ALJ determined that Plaintiff could not perform any 19 of his past relevant work. (Id.). However at step five, he found that 20 [c]onsidering the claimant s age, education, work experience, and 21 residual functional capacity, there are jobs that exist in significant 22 numbers in the national economy that claimant can perform. 23 The ALJ relied on a vocational expert s ( VE ) testimony which confirmed 24 that an individual with claimant s age, education, work experience, and 25 residual functional capacity . . . would be able to perform the 26 requirements of representative occupations such as Ticket Taker . . . 27 28 9 (AR 23). 1 Floor Worker . . . and Basket Filler. (Id.). 2 determined that Plaintiff was not disabled. Accordingly, the ALJ (Id.). 3 4 VI. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner s decision to deny benefits. The court may set aside the 9 Commissioner s decision when the ALJ s findings are based on legal error 10 or are not supported by substantial evidence in the record as a whole. 11 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 12 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 13 14 Substantial evidence is more than a scintilla, but less than a 15 preponderance. 16 which a reasonable person might accept as adequate to support a 17 conclusion. 18 a finding, the court must consider the record as a whole, weighing 19 both 20 [Commissioner s] conclusion. Aukland, 257 F.3d at 1035 (quoting Penny 21 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 22 reasonably support either affirming or reversing that conclusion, the 23 court may not substitute its judgment for that of the Commissioner. 24 Reddick, 157 F.3d at 720-21. evidence Reddick, 157 F.3d at 720. Id. It is relevant evidence To determine whether substantial evidence supports that supports and evidence 25 26 27 28 10 that detracts from the If the evidence can 1 VII. 2 DISCUSSION 3 4 5 A. The ALJ Did Not Err By Finding That Plaintiff Did Not Have A NonSevere Mental Impairment 6 7 Plaintiff argues that the ALJ erred by finding that Plaintiff's 8 mental impairment was non-severe. (Memorandum in Support of Plaintiff s 9 Complaint ( Complaint Memo. ) at 5). This Court disagrees. 10 11 Where there is evidence of a mental impairment that allegedly 12 prevents the plaintiff from working, the Agency has supplemented the 13 five-step sequential evaluation process with additional regulations.2 14 Maier v. Comm r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 15 1998)(citing 20 C.F.R. § 416.920a)(per curiam). 16 determine the presence or absence of certain medical findings relevant 17 to the plaintiff s ability to work. 18 Second, when the plaintiff establishes these medical findings, the ALJ 19 must rate the degree of functional loss resulting from the impairment 20 by considering four areas of function: (a) activities of daily living; 21 (b) social functioning; (c) concentration, persistence, or pace; and (d) 22 episodes of decompensation. 23 after rating the degree of loss, the ALJ must determine whether the 24 claimant has a severe mental impairment. 25 2 First, the ALJ must 20 C.F.R. § 416.920a(b)(1). 20 C.F.R. § 416.920a(c)(2)-(4). Third, 20 C.F.R. § 416.920a(d). These additional steps are intended to assist the ALJ in determining the severity of mental impairments at steps two and three. 26 The mental RFC assessment used at steps four and five of the evaluation 27 process, on the other hand, require a more detailed assessment. Social Security Ruling 96-8P, 1996 WL 374184 at * 4. 28 11 1 Fourth, when a mental impairment is found to be severe, the ALJ must 2 determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart 3 P, Appendix 1. 4 not met, the ALJ must then assess the plaintiff s RFC, and the ALJ s 5 decision must incorporate the pertinent findings and conclusions 6 regarding the plaintiff s mental impairment, including a specific 7 finding as to the degree of limitation in each of the functional areas 8 described in [§ 416.920a(c)(3)]. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is 20 C.F.R. § 416.920a(d)(3), (e)(2). 9 10 1. The ALJ Did Not Err In Finding That Plaintiff Did Not Have A 11 Medically Determinable Mental Impairment of An Organic 12 Mental, Borderline Intellectual Functioning and Antisocial 13 Traits Disorder 14 15 The ALJ determined that Plaintiff only had a medically determinable 16 mental impairment of polysubstance abuse (alcohol, opiod, cannabis, 17 heroin, etc.), reportedly in remission, which the ALJ subsequently found 18 to be non-severe. 19 failed to find that he also suffered mental impairments of either an 20 organic mental disorder or a personality disorder. (See Complaint Memo. 21 at 5-8). 22 contentions. (AR 17). However, Plaintiff argues that the ALJ The Court finds the record fails to support Plaintiff's 23 24 To satisfy step two's requirement of a severe impairment, the 25 claimant must prove the existence of a physical or mental impairment by 26 providing medical evidence consisting of signs, symptoms, and laboratory 27 findings. 20 C.F.R. § 404.908; see also Ukolov v. Barnhart, 420 F.3d 28 12 1 1002, 1005 (9th Cir. 2005) (noting that the existence of a medically 2 determinable physical or mental impairment may only be established with 3 objective medical findings) (citing Social Security Ruling 96-4p, 1996 4 WL 374187 at *1-2). 5 6 Here, the ALJ properly rejected State Agency s reviewing 7 psychiatrist Dr. Harrison s assessment that Plaintiff had an organic 8 mental disorder because the finding was based on the I.Q. scores by Dr. 9 Colonna, yet Dr. Colonna did not diagnose Plaintiff with any kind of 10 organic mental disorder. (AR 18, 264). 11 when it conflicts with the medical evidence. 12 427 F.3d 1211, 1218 (9th Cir. 1993) (stating that inconsistency with 13 medical evidence was a germane reason for rejecting certain testimony). 14 The ALJ also went further and rejected Dr. Colonna s opinion because it 15 was a one-time evaluation and Plaintiff was not entirely credible and 16 was still actively abusing polysubstances at least a few months before 17 Dr. Colonna s evaluation. 18 as other medical evidence in the record, indicate that Plaintiff stopped 19 using alcohol and/or heroin just a few months prior to the examination. 20 (AR 193, 196, 211, 262). 21 assessment of an organic mental disorder was not sufficiently supported 22 by objective medical evidence in the record, the ALJ properly rejected 23 it. 24 (9th Cir. 1999) (A nonexamining physician's opinion can constitute 25 substantial evidence if it is supported by other evidence in the 26 record.). (AR 18). An ALJ may reject testimony See Bayliss v. Barnhart, Dr. Colonna s own notes, as well Thus, because the State Agency psychiatrist s See, e.g., Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 600 27 28 13 1 Next, the ALJ also rejected Dr. Harrison s assessment that 2 Plaintiff suffered from "borderline intellectual functioning" or "BIF". 3 (AR 18, 281). The ALJ reasoned that Dr. Harrison s assessment was based 4 on speculation in that [Dr. Harrison] noted that [Plaintiff] appears 5 to have borderline intellectual functioning. 6 that evidence is inconsistent, conflicting, or ambiguous, it is the 7 responsibility of the ALJ to resolve any conflicts and ambiguity. 8 Morgan, 169 F.3d at 603. 9 ambiguous medical opinions, the Court must defer to the ALJ's decision. (Id.). To the extent Because the ALJ has authority to interpret 10 Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993). Here, the ALJ's 11 interpretation was reasonable particularly because there was no other 12 objective evidence in the record indicating that Plaintiff suffered from 13 borderline intellectual functioning. 14 15 Finally, the ALJ rejected Dr. Colonna and Dr. Harrison s diagnosis 16 of a personality disorder for several reasons. (AR 18). The ALJ 17 rejected 18 Traits because the doctor based her diagnosis on Plaintiff s self- 19 reported subjective history. 20 credible based on his drug abuse and inconsistent reports of when he 21 last used drugs. 22 credible, the ALJ properly rejected Dr. Colonna s findings which largely 23 depended on Plaintiff's own self-reported symptoms. 24 F.2d 25 credibility, ALJ properly discredited treating physician's opinion based 26 on plaintiff's subjective symptoms). 27 State Agency psychiatrist s assessment of a personality disorder because Dr. Colonna's diagnosis of Personality Disorder, Antisocial 597, 605 (AR 21). (9th Cir. The ALJ previously found Plaintiff not Because the ALJ found Plaintiff not 1989) 28 14 (having Fair v. Bowen, 885 discounted plaintiff's Further, the ALJ rejected the 1 Dr. Harrison related the personality 2 polysubstance abuse, i.e., 3 "personality disorder" to be a "substance addiction disorder," so there 4 was no separate personality disorder finding. 5 the ALJ rejected Dr. Colonna and the State Agency psychiatrist s 6 diagnosis because it was not supported by objective medical evidence in 7 the record. 8 longitudinal documentary record to substantiate such a diagnosis and 9 there is no mention [of] any findings to support the diagnosis. Dr. disorder Harrison to [Plaintiff s] considered Plaintiff's (AR 18, 277). Finally, Specifically, the ALJ noted that the record contains no (AR 10 18). Indeed, Dr. Colonna s own notes suggest a contrary finding, i.e., 11 Dr. Colonna opines that Plaintiff is socially appropriate with this 12 examiner. 13 coworkers and peers. 14 856 (9th Cir. 2005) (an ALJ can reject a treating physician's assessment 15 of limitations when the physician's clinical notes and other recorded 16 observations 17 assessment). He would be able to interact appropriately with supervisors, (AR 264); Rollins v. Massanari, 261 F.3d 853, regarding Plaintiff's capabilities the conclusions were contradict the 18 19 In sum, ALJ s supported by substantial 20 evidence. Accordingly, the ALJ properly determined that Plaintiff did 21 not mental 22 intellectual functioning or antisocial traits disorder. have impairments of 23 24 25 26 27 28 15 an organic mental, borderline 2. 1 The ALJ Properly Found That Plaintiff s Medically 2 Determinable Impairment Of Polysubstance Abuse, In Remission 3 Was Not Severe 4 5 The ALJ found that Plaintiff had a medically determinable mental 6 impairment of polysubstance abuse (alcohol, opiod, cannbis, heroin, 7 etc.), reportedly in remission, but that it did not cause more than 8 minimal limitation in the [Plaintiff s] ability to perform basic mental 9 work activities and is therefore non-severe. (AR 17). However, the 10 Plaintiff contends that the ALJ erred in finding his mental impairment 11 was not severe. (Complaint Mem. at 5-8). 12 13 In determining that Plaintiff s mental impairment was not severe, 14 the ALJ properly followed 15 the regulations for evaluating mental impairments as follows: 16 17 The ALJ first found that Plaintiff s mental impairment caused only 18 mild restriction in his activities of daily living, citing to State 19 Agency psychiatrists opinions (Drs. Harrison and Morris) that Plaintiff 20 had only a mild restriction in this particular functional area. (AR 17, 21 279, 287). 22 Plaintiff s presentation and demonstrated abilities for consultative, 23 examiners and treating sources, and [Plaintiff s] presentation at the 24 hearing. 25 constituted substantial evidence supporting the ALJ's decision because 26 they were consistent with the opinion of examining psychiatrist Dr. 27 Colonna, as well as the other medical evidence in the record. The ALJ found their conclusions to be consistent with (AR 17). Thus, the State Agency psychiatrists opinions 28 16 See 1 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that 2 opinions of nontreating or nonexamining doctors may serve as substantial 3 evidence when consistent with independent clinical findings or other 4 evidence in the record); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 5 Cir. 1995) ( reports of the nonexamining advisor need not be discounted 6 and may serve as substantial evidence when they are supported by other 7 evidence in the record and are consistent with it ). 8 9 The ALJ also similarly and properly found that Plaintiff s social 10 functioning was only mildly restricted because it was supported by the 11 State Agency psychiatrists, as well as examining psychologist Dr. 12 Colonna. (AR 17, 264, 279). 13 14 The ALJ found that Plaintiff only had mild difficulties with 15 concentration, persistence and pace. 16 State 17 difficulties in this particular functional area because it was not 18 substantiated by Dr. Colonna s findings or opinion. (Id.). 19 Dr. attention 20 concentration span are mildly diminished. 21 physician's opinion is generally afforded more weight than a non- 22 examining physician's opinion. 23 Cir. 2007) (citation omitted). Further, the ALJ was entitled to resolve 24 conflicting medical evidence at his discretion. 25 v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989) ( The ALJ is responsible for 26 . . . resolving conflicts in medical testimony. ). Agency Colonna psychiatrists specifically (AR 17). opinion found that that The ALJ rejected the Plaintiff Plaintiff s (AR 262). had moderate Indeed, and An examining Orn v. Astrue, 495 F.3d 625, 631 (9th 27 28 17 See, e.g., Magallanes Thus, substantial 1 evidence supports the ALJ s finding that Plaintiff only had mild 2 difficulties with concentration, persistence and pace. 3 4 Finally, the ALJ properly found that Plaintiff had experienced no 5 episodes of decompensation of an extended duration. The ALJ based his 6 conclusion on the uncontroverted State Agency psychiatrists opinions 7 and the lack of longitudinal medical evidence to substantiate any such 8 episodes. (AR 17). 9 10 Thus, the ALJ properly found Plaintiff s mental impairment of 11 polysubstance abuse in remission non-severe because he supported his 12 findings by reference to the medical records and adequately addressed 13 the steps of the Secretary s regulations governing mental impairments. 14 15 Moreover, the ALJ properly determined that Plaintiff s mental 16 impairment did not cause more than a minimal limitation in Plaintiff s 17 ability 18 extensively discussed Plaintiff s mental impairment at Step 4 of the 19 analysis finding that Plaintiff s mental impairment resulted in no 20 work-related limitations. 21 rejected Dr. Colonna s opinion that Plaintiff had only mild inability 22 to understand, remember, and carry out detailed instructions because 23 Dr. 24 [Plaintiff] who is not entirely credible and who had only recently 25 stop[ed] using illicit drugs. 26 Colonna s opinion noting that Plaintiff s treating physicians (Drs. 27 Roberto and Rongey from LAC-USC Medical Center) reports indicated that to do Colonna s basic work finding was activities. (Id.). (AR 21). Here, the ALJ In support of his finding, the ALJ based on (Id.). 28 18 a one-time examination of The ALJ also rejected Dr. 1 by November 2008, Plaintiff reported that his medication improved his 2 mentation, and that Plaintiff had no cognitive barriers to learning. 3 (AR 293, 296). 4 ALJ failed to consider Dr. Rongey s opinion (Complaint Mem. at 6-7), the 5 ALJ considered and properly rejected Dr. Rogney s opinion that Plaintiff 6 suffered from increased forgetfulness because Plaintiff s more recent 7 medical records from Dr. Rongey indicated that Plaintiff s medication 8 improved his mentation. 9 Colonna s 10 progress 11 significant concerns regarding the [Plaintiff s] cognitive functioning. 12 (AR 21-22). 13 opined that Plaintiff had no cognitive barriers to learning as of 14 November 2008. (AR 293). Thus, the ALJ properly rejected Dr. Colonna s 15 opinion with several specific and legitimate reasons. Lester v. Chater, 16 81 F.3d 821, 830-31 (9th Cir. 1996); Tommasetti v. Astrue, 533 F.3d 17 1035, 1041 (9th Cir. 2008) (holding the rejection of a medical opinion 18 was proper where the ALJ discussed in detail how the opinion was 19 inconsistent with the plaintiff's medical history). Moreover, contrary to Plaintiff s contention that the opinion notes because from (AR 21). there treating Finally, the ALJ rejected Dr. was sources nothing to in the show that longitudinal they had any Indeed, as noted above Plaintiff s treating physician 20 21 B. Even Assuming The ALJ Erred By Finding That Plaintiff Had A NonSevere Mental Impairment, Any Error Was Harmless 22 23 24 First, even assuming the ALJ erred at step two by determining that 25 Plaintiff s impairment was non-severe, any error was harmless because, 26 as 27 limitations, as demonstrated in the record, when the ALJ assessed discussed above, the ALJ accounted 28 19 for Plaintiff's mental 1 Plaintiff's RFC. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) 2 (holding that when an ALJ accounts for resulting limitations later in 3 the sequential evaluation process, any error in finding the impairment 4 non-severe at step two is harmless). 5 6 Next, had the ALJ included the most restrictive limitations based 7 on Drs. Colonna and Harrison s finding that Plaintiff should be limited 8 to simple work, it would not have impacted the validity of the ALJ s 9 ultimate decision. Carmickle v. Comm r of Soc. Sec. Admin., 533 F.3d 10 1155, 1162 (9th Cir. 2008) (determining that errors that do not impact 11 the validity of the ALJ s ultimate decision are harmless.); see also 12 Stout v. Comm r of Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir. 2005) 13 (holding that 14 ultimate disability conclusion. ). an error is harmless if it is irrelevant to the ALJ s 15 16 Although the ALJ did not ultimately impose any mental limitations 17 in Plaintiff s RFC and did not impose any mental limitations in his 18 hypothetical to the vocational expert, the ALJ asked the VE if, based 19 on the hypothetical, there would be any unskilled work this individual 20 could perform. 21 meet the hypothetical profile in the light work range would be light 22 unskilled. (AR 44). The VE testified that Plaintiff could perform the 23 job of ticket taker, DOT 344.667-010, light unskilled work SVP 2; floor 24 worker, DOT 739.687-098, light unskilled work SVP1; and basket filler, 25 DOT 529.687-010, light unskilled work SVP 1. (AR 43-44). The VE responded that the jobs that would 26 27 28 20 (Id.). 1 Unskilled work requires little or no judgment to do simple duties 2 that can be 3 404.1568(a); see also SSR 85-15, 1985 WL 56857 ( The basic mental 4 demands 5 abilities 6 instructions; to respond appropriately to supervision, coworkers, and 7 usual work situations; and to deal with changes in a routine work 8 setting. ). 9 RFC restricted to simple tasks. See Hackett v. Barnhart, 395 F.3d 1168, 10 1176 (10th Cir. 2005) (level two reasoning consistent with limitation 11 to simple and routine tasks); Lara v. Astrue, 305 Fed. App'x 324, 326 12 (9th Cir. 2008) (someone able to perform simple, repetitive tasks is 13 capable of doing work requiring more rigor and sophistication beyond 14 reasoning level one). of learned in competitive, . . . to a short period remunerative, understand, of time. unskilled carry out, 20 work and C.F.R. include remember § the simple Further, reasoning level two is also compatible with an 15 16 Thus, the record supports the ALJ s finding that Plaintiff could 17 perform unskilled work at either the reasoning level of one or two. 18 Specifically, Dr. Colonna determined that Plaintiff would be able to 19 understand, remember and carry out, simplistic instructions without 20 difficulty and be able to make simplistic work-related decisions 21 without special supervision. 22 that 23 supervisors, coworkers and peers. 24 concluded that Plaintiff had only mild limitations in social functioning 25 and daily activities without any episodes of decompensation. 26 While Dr. Harrison opined that Plaintiff had moderate limitations in 27 maintaining concentration, (id.), Dr. Rogney noted that Plaintiff s 28 mentation improved after starting lactulose. Plaintiff would be (AR 264). able 21 to Dr. Colonna also concluded interact (Id.). appropriately with Moreover, Dr. Harrison (AR 296). (AR 279). Plaintiff also 1 testified that he experienced improvement after taking medication for 2 his forgetfulness. 3 that Plaintiff could respond appropriately to changes in the work 4 environment. 5 finding that if he accepted the more liberal opinions of the State 6 Agency consultative psychiatrists and found that [Plaintiff] is also 7 limited to simple, which is unskilled, work, the ultimate outcome in 8 this 9 identified unskilled work in her testimony that [Plaintiff] remains able 10 case (AR 41). (AR 283). would remain Additionally, Dr. Harrison concluded Therefore, the record supports the ALJ s the same, because the vocational expert to perform. (AR 22); Carmickle, 533 F.3d at 1162. 11 12 Furthermore, additional records submitted to the Appeals Council 13 are mostly duplicative of records already submitted to the ALJ relating 14 to treatment from Dr. Rogney. 15 merely highlight Dr. Rogney s concern over Plaintiff s continued drug 16 use, (AR 457), or repeat the same diagnosis or information already 17 presented to the ALJ. 18 that 19 disability determination remains valid. Accordingly, the Court AFFIRMS 20 the ALJ s determination. Plaintiff could (See, e.g., AR 308, 473). New records Because these records do not impact the finding perform unskilled 21 22 23 24 25 26 27 28 22 jobs, the ALJ s ultimate 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),3 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner. 7 the Court serve copies of this Order and the Judgment on counsel for 8 both parties. IT IS FURTHER ORDERED that the Clerk of 9 10 DATED: December 9, 2011 11 12 13 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 14 15 16 17 THIS MEMORANDUM IS NOT INTENDED FOR PUBLICATION NOR IS IT INTENDED 18 TO BE INCLUDED IN OR SUBMITTED TO ANY ONLINE SERVICE SUCH AS WESTLAW OR 19 LEXIS. 20 21 22 23 24 25 26 3 This sentence provides: The [district] court shall have power 27 to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of 28 Social Security, with or without remanding the cause for a rehearing. 23

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