John Rigby v. Michael J Astrue, No. 5:2009cv00846 - Document 14 (C.D. Cal. 2010)
Court Description: MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich. Accordingly, the Commissioner's decision is affirmed. See document for details. (yb)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 13 14 15 16 JOHN RIGBY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ____________________________________ ) Case No. EDCV 09-00846 AJW MEMORANDUM OF DECISION 17 18 Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the 19 Social Security Administration (the Commissioner ), denying plaintiff s application for disability insurance 20 benefits. The parties have filed a Joint Stipulation ( JS ) setting forth their contentions with respect to each 21 disputed issue. 22 Administrative Proceedings 23 The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. 24 [See JS 2]. In a written hearing decision that constitutes the Commissioner s final decision in this matter, 25 an Administrative Law Judge ( ALJ ) found that through December 31, 2007, plaintiff s date last insured, 26 plaintiff had no severe physical impairments, and a severe mental impairment in the form of an affective 27 mood disorder. [Administrative Record ( AR ) 8-17; JS 2]. The ALJ further found that plaintiff retained 28 the residual functional capacity ( RFC ) through his date last insured to perform work at all exertional 1 levels involving no more than simple, repetitive tasks with no public interaction. [AR 12]. The ALJ 2 concluded that plaintiff s RFC precluded performance of his past relevant work, but that plaintiff could 3 perform alternative jobs available in significant numbers in the national economy, such as the jobs of 4 production assembly worker and small products assembler. [JS 2; AR16-17]. 5 Standard of Review 6 The Commissioner s denial of benefits should be disturbed only if it is not supported by substantial 7 evidence or is based on legal error. Stout v. Comm r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 8 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). Substantial evidence means more than 9 a mere scintilla, but less than a preponderance. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 10 2005). It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 11 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is 12 required to review the record as a whole and to consider evidence detracting from the decision as well as 13 evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); 14 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). Where the evidence is susceptible to more than 15 one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld. 16 Thomas, 278 F.3d at 954 (citing Morgan v. Comm r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)). 17 Discussion 18 Medical opinion evidence 19 Plaintiff contends that the ALJ failed properly to evaluate the opinion of Dr. Divy Kikani, a 20 consultative physician, and therefore that the ALJ s RFC finding is defective. [See JS 5-12]. 21 Dr. Kikani, a board-eligible psychiatrist, evaluated plaintiff in July 2006. Plaintiff was 57 years 22 old at the time of the examination. Dr. Kikani elicited a history, reviewed medical records, and conducted 23 a mental status examination. [AR 160-163]. 24 Plaintiff told Dr. Kikani that he was in chronic pain due to prostate cancer, which plaintiff believed 25 had spread to his back.1 Dr. Kikani noted that plaintiff reported having symptoms of depression and anxiety 26 27 28 1 Plaintiff was diagnosed with prostate cancer in 2001. [See AR 12-13]. Rather than undergoing treatment at that time, plaintiff elected watchful waiting, with no cancer progression for several years. [AR 652]. The risks of metastatic spread of the disease were discussed with 2 1 for the past 5 to 7 years. Plaintiff said that he was not taking medication or undergoing treatment. His 2 primary care physician at the Veterans Administration ( VA ) Hospital had prescribed Paxil and Elavil in 3 the past, but plaintiff said he was not taking those medications. Dr. Kikani commented that plaintiff 4 indicated that he stopped taking those medications because they knocked him out. [AR 160]. 5 On mental status examination, plaintiff s grooming, appearance, and behavior were unremarkable. 6 Plaintiff s speech was normal. His thought processes were clear, coherent, and goal-directed. His thought 7 content reflected a preoccupation with despair, chronic pain, inability to work in his former capacity, and 8 inability to attend to his activities of daily living due to prostate cancer. Plaintiff reported having flashbacks 9 of the Vietnam War, but on specific questioning, plaintiff denied symptoms of thought disorder, 10 perceptual disturbances, prominent delusions, prominent manic symptoms, and any active suicidal or 11 homicidal ideation. [AR 162]. Plaintiff was oriented in all spheres. His recent and remote memory was 12 intact. His general fund of knowledge, abstracting ability, and judgment were fair. Plaintiff s insight into 13 his current psychiatric problems was impaired. [AR 162]. 14 Dr. Kikani s impression was mood disorder, currently depressed type, secondary to medical 15 condition, and rule out mood disorder, not otherwise specified. Dr. Kikani assigned plaintiff a Global 16 Assessment of Function ( GAF ) score of 55.2 [AR 162]. In a narrative assessment, Dr. Kikani said that 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff in February 2006. Shortly thereafter, plaintiff underwent diagnostic imaging, which was negative for metastatic disease. [See AR 13]. In January 2008, plaintiff began a course of radiation and hormone treatment. He tolerated the treatment well and was noted to be stable, doing well at a follow-up examination in April 2008. [See JS 5-6; AR 11-13, 649-656]. The ALJ found that plaintiff s prostate cancer treatment had been effective, and that there is no indication of cancer at this time. [AR 11]. Plaintiff does not challenge the ALJ s finding that his history of prostate cancer and cancer treatment did not amount to a severe physical impairment for any continuous twelve-month period. [See AR 11]. 2 The GAF score is a multiaxial assessment that reflects a clinician's subjective judgment of a patient s overall level of functioning by asking the clinician to rate two components: the severity of a patient's psychological symptoms, or the patient s psychological, social, and occupational functioning. The GAF score is the lower of the symptom severity score or the functioning severity score. A GAF score of 51-60 signifies moderate symptoms, such as flat affect or occasional panic attacks, or moderate difficulty in social, occupational, or school functioning, such as having few friends or conflicts with peers or co-workers. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition ( DSM-IV ) Multiaxial Assessment, 27-36 (rev. 2000)) . 3 1 plaintiff s symptoms are primarily and secondarily due to his medical condition and chronic pain 2 complaints. [AR 162-163]. Dr. Kikani concluded that plaintiff had mild to moderate impairment in social 3 functioning; activities of daily living; and concentration, persistence, and pace. Dr. Kikani added that 4 plaintiff may have mild to moderate difficulty remembering, understanding, and carrying out complex 5 instructions; persisting at normal work situations under customary work pressure; coping with changes in 6 routine work settings; and responding appropriately to usual work situations, attendance, and safety. [AR 7 163]. 8 supervisors, and the public. [AR 163]. He may be expected to show mild to moderate episodes of 9 emotional deterioration in normal work situations under customary work pressure. [AR 163]. Plaintiff had 10 no impairment in remembering, understanding, and carrying out simple instructions. [AR 163]. Overall, 11 Dr. Kikani found that plaintiff was mildly to moderately psychiatrically disabled from the underlying 12 psychiatric condition, which in Dr. Kikani s opinion was in reaction to, or secondary to, [the] underlying 13 medical condition. [AR 163]. Plaintiff s prognosis was fair under structured outpatient psychiatric 14 treatment, both with medications and psychotherapy. [AR 163]. Plaintiff does show mild to moderate difficulty responding appropriately to co-workers, 15 In general, [t]he opinions of treating doctors should be given more weight than the opinions of 16 doctors who do not treat the claimant. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007)(citing Reddick v. 17 Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see 20 C.F.R. ยงยง 404.1502, 404.1527(d)(2), 416.902, 18 416.927(d)(2). An examining physician s opinion, in turn, generally is afforded more weight than a non- 19 examining physician s opinion. Orn, 495 F.3d at 631; Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 20 1995). If contradicted by the opinion of another doctor, a treating or examining physician s opinion can be 21 rejected only for specific and legitimate reasons that are based on substantial evidence in the record. Batson 22 v. Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 23 1148-1149 (9th Cir. 2001); Lester, 81 F.3d at 830-831. The opinion of a nonexamining physician cannot 24 by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining 25 physician or a treating physician. Lester, 81 F.3d at 831. 26 The ALJ accurately summarized Dr. Kikani s report. [AR 13-14]. The ALJ found that plaintiff had 27 an affective mood disorder that limited him to simple, repetitive tasks with no public interaction. [AR 12- 28 15]. Plaintiff argues that the ALJ was required to articulate clear and convincing reasons for rejecting Dr. 4 1 Kikani s opinion. Plaintiff further contends that the ALJ erred in not distinguishing or somehow validly 2 discrediting Dr. Kikanis s GAF score of 55, and wrongly diminished its significance by saying that a GAF 3 score of 55 suggests only moderate symptoms or difficulty. [JS 7 (quoting AR 14)(italics added)]. 4 The ALJ articulated clear, convincing reasons for his evaluation of Dr. Kikani s opinion. He agreed 5 with Dr. Kikani s diagnosis of a mood disorder. Dr. Kikani concluded that plaintiff s mood disorder would 6 not prevent him from understanding, remembering, and performing simple instructions. The ALJ s finding 7 that plaintiff can perform simple, repetitive tasks is consistent with that aspect of Dr. Kikani s opinion. Dr. 8 Kikani also said that plaintiff does show mild to moderate difficulty responding to supervisors, coworkers, 9 and the public. The ALJ rationally precluded plaintiff from jobs requiring public contact. The ALJ did not 10 explain why he did not similarly restrict plaintiff s interaction with supervisors and coworkers. However, 11 it may be inferred that jobs involving simple, repetitive tasks do not require much interaction with other 12 employees. That inference is supported by job information in the Dictionary of Occupational Titles 13 ( DOT ) for the representative unskilled jobs identified by the vocational expert. [See AR 16, 36]. The DOT 14 states that the job of small products assembler ( DOT job number 706.684-022) and production assembly 15 worker (DOT job number 706.687-010) requires the functions of taking instructions and helping people, 16 but that those functions are not significant in either of those two jobs. See generally DOT, Parts of the 17 Occupational Definition, 1991 WL 645965 (4th ed. rev. 1991). 18 Dr. Kikani said that plaintiff may have the remaining mild to moderate functional limitations 19 described in his report. In other words, Dr. Kikani was equivocal as to whether plaintiff actually had those 20 remaining limitations, even in mild form. Based on the record as a whole, the ALJ justifiably concluded that 21 the remaining limitations described by Dr. Kikani did not limit plaintiff s RFC. Dr. Kikani described 22 plaintiff s depressive symptoms as primarily and secondarily due to his medical condition of suffering from 23 prostate cancer which he thinks has spread to his back. [AR 162]. The ALJ noted that plaintiff s fear that 24 his prostate cancer had spread and his complaints of chronic pain from prostate cancer were not significant 25 enough to motivate him to undergo treatment for several years following his initial cancer diagnosis, after 26 his examination by Dr. Kikani. [AR 11-15]. Cf. Burch, 400 F.3d at 681 (holding that the ALJ did not err 27 in discrediting the claimant's pain testimony where she did not seek treatment for a period of four months, 28 and observing that where the claimant's pain was not severe enough to motivate her to seek consistent 5 1 treatment, that is powerful evidence regarding the extent to which she was in pain ). When plaintiff agreed 2 to undergo diagnostic imaging in 2006, those tests showed no evidence of metastatis. Plaintiff subsequently 3 underwent successful prostate cancer treatment, which he tolerated well, with side effects he described as 4 not bothersome. [AR 11-14, 649-655]. Thus, the medical factors that plaintiff described as triggers of his 5 depressive symptoms were not very credible, or at most were transient problems that had resolved by the 6 time the ALJ issued his opinion. 7 The ALJ permissibly concluded that some of the subjective symptoms of depression that plaintiff 8 described to Dr. Kikani were not fully credible. For one thing, plaintiff had discontinued taking medication 9 his primary care physician had briefly prescribed for depression and never sought any other form of 10 psychiatric treatment. In addition, plaintiff told Dr. Kikani he had flashbacks of his military service in 11 Vietnam, but he did not report those flashbacks to his VA doctors. [See AR 15]. 12 Plaintiff s argument that the ALJ impermissibly rejected Dr. Kikani s GAF score lacks merit. The 13 GAF score is not an RFC assessment because it takes into account factors other than the patient s psychiatric 14 condition, such as occupational and social stressors. See Vargas v. Lambert, 159 F.3d 1161, 1164 (9th Cir. 15 1998)(describing a GAF score as a rough estimate of an individual's psychological, social, and 16 occupational functioning used to reflect the individual's need for treatment ). For that reason, the 17 moderate level of symptom severity or moderate difficulty in social, occupational, or school functioning 18 reflected in Dr. Kikani s GAF score of 55 is less probative than the function-by-function mental capacity 19 assessment that Dr. Kikani provided in his psychiatric examination report. The ALJ properly evaluated Dr. 20 Kikani s mental functional capacity assessment. Therefore, he did not err in failing to separately analyze 21 or discuss plaintiff s GAF score. Cf. Howard v. Comm r of Social Sec., 276 F.3d 235, 241 (6th Cir. 2002) 22 ( While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to 23 the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not 24 make the RFC inaccurate. ). 25 The ALJ provided clear and convincing reasons for his interpretation of Dr. Kikani s opinion. The 26 ALJ s RFC assessment is supported by substantial evidence in the record and reflects application of the 27 correct legal standards. 28 /// 6 Conclusion 1 2 For the reasons stated above, the Commissioner's decision is supported by substantial evidence and 3 is free of legal error. Accordingly, the Commissioner's decision is affirmed. 4 IT IS SO ORDERED. 5 6 7 8 January 21, 2010 _____________________________ ANDREW J. WISTRICH United States Magistrate Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7
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