Brenda Marcus v. Michael J. Astrue, No. 5:2009cv01289 - Document 19 (C.D. Cal. 2010)

Court Description: DECISION AND ORDER by Magistrate Judge Carla Woehrle, IT IS ORDERED that: 1. The decision of the Commissioner is AFFIRMED. 2. This action is DISMISSED WITH PREJUDICE. (SEE ORDER FOR FURTHER DETAILS) (lmh)

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Brenda Marcus v. Michael J. Astrue Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 BRENDA MARCUS, 13 Plaintiff, 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) No. EDCV 09-1289 CW DECISION AND ORDER 18 19 The parties have consented, under 28 U.S.C. § 636(c), to the 20 jurisdiction of the undersigned Magistrate Judge. Plaintiff seeks 21 review of the Commissioner s denial of disability benefits. As 22 discussed below, the court finds that judgment should be entered in 23 favor of Defendant, affirming the Commissioner s decision. 24 I. BACKGROUND 25 Plaintiff Brenda Marcus was born on October 7, 1960, and was 26 forty-eight years old at the time of her latest administrative 27 hearing. [Administrative Record ( AR ) 256, 326.] She has a high 28 1 Dockets.Justia.com 1 school education and past relevant work experience as an office 2 manager, paper salesperson and purchasing manager. [AR 57, 257.] 3 Plaintiff alleges disability on the basis of a seizure disorder, 4 depression, anxiety, and pain in her neck, back, hip and leg. [AR 258, 5 262.] 6 II. PRIOR PROCEEDINGS Plaintiff applied for supplemental security income ( SSI ) on 7 8 July 6, 2004, alleging disability since June 11, 2003. [AR 11.] After 9 the application was denied initially and upon reconsideration, 10 Plaintiff requested an administrative hearing, which was held on 11 November 15, 2006, before Administrative Law Judge ( ALJ ) F. Keith 12 Varni. [AR 253.] Plaintiff appeared with counsel and testified. [AR 13 254.] The ALJ denied benefits in a decision filed on December 18, 14 2006. [AR 8.] When the Appeals Council denied review on March 24, 15 2007, the ALJ s decision became the Commissioner s final decision. [AR 16 3.] 17 Plaintiff filed a complaint in the district court on June 6, 2007 18 (Case No. EDCV 07-597 CW). 19 decision and order remanding the matter for further administrative 20 proceedings. 21 On March 10, 2008, the court issued a A second administrative hearing was held on January 6, 2009, 22 before the same ALJ. [AR 324.] 23 Plaintiff, and testimony was taken from vocational expert Joseph 24 Mooney. [AR 326.] 25 4, 2009. [AR 275.] 26 Plaintiff s counsel appeared without The ALJ denied benefits in a decision dated March The present complaint was lodged on July 7, 2009, and filed on 27 July 15, 2009. On January 13, 2010, Defendant filed an Answer and 28 Plaintiff s Administrative Record ( AR ). 2 On March 15, 2010, the 1 parties filed their Joint Stipulation ( JS ) identifying matters not 2 in dispute, issues in dispute, the positions of the parties, and the 3 relief sought by each party. 4 submission without oral argument. 5 6 III. This matter has been taken under STANDARD OF REVIEW Under 42 U.S.C. § 405(g), a district court may review the 7 Commissioner s decision to deny benefits. The Commissioner s (or 8 ALJ s) findings and decision should be upheld if they are free of 9 legal error and supported by substantial evidence. However, if the 10 court determines that a finding is based on legal error or is not 11 supported by substantial evidence in the record, the court may reject 12 the finding and set aside the decision to deny benefits. 13 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. 14 Halter, 242 F.3d 1144, 1147 (9th Cir. 2001); Osenbrock v. Apfel, 240 15 F.3d 1157, 1162 (9th Cir. 16 1097 (9th Cir. 1999); Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 17 1998); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); Moncada 18 v. Chater, 60 F.3d 521, 523 (9th Cir. 1995)(per curiam). 19 See Aukland 2001); Tackett v. Apfel, 180 F.3d 1094, Substantial evidence is more than a scintilla, but less than a Reddick, 157 F.3d at 720. It is relevant evidence 20 preponderance. 21 which a reasonable person might accept as adequate to support a 22 conclusion. 23 a finding, a court must review the administrative record as a whole, 24 weighing both the evidence that supports and the evidence that 25 detracts from the Commissioner s conclusion. 26 can reasonably support either affirming or reversing, the reviewing 27 court may not substitute its judgment for that of the Commissioner. 28 Reddick, 157 F.3d at 720-721; see also Osenbrock, 240 F.3d at 1162. Id. To determine whether substantial evidence supports 3 Id. If the evidence IV. 1 DISCUSSION 2 A. THE FIVE-STEP EVALUATION 3 To be eligible for disability benefits a claimant must 4 demonstrate a medically determinable impairment which prevents the 5 claimant from engaging in substantial gainful activity and which is 6 expected to result in death or to last for a continuous period of at 7 least twelve months. 8 721; 42 U.S.C. § 423(d)(1)(A). 9 10 11 12 13 14 15 16 17 18 Tackett, 180 F.3d at 1098; Reddick, 157 F.3d at Disability claims are evaluated using a five-step test: Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two. Step two: Does the claimant have a severe impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claimant s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1? If so, the claimant is automatically determined disabled. If not, proceed to step four. Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five. Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 19 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995, as amended 20 April 9, 1996); see also Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 21 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Tackett, 180 F.3d at 1098-99; 20 22 C.F.R. § 404.1520, § 416.920. If a claimant is found disabled or 23 not disabled at any step, there is no need to complete further 24 steps. Tackett, 180 F.3d 1098; 20 C.F.R. § 404.1520. 25 Claimants have the burden of proof at steps one through four, 26 subject to the presumption that Social Security hearings are non27 adversarial, and to the Commissioner s affirmative duty to assist 28 4 1 claimants in fully developing the record even if they are represented 2 by counsel. 3 1288. 4 made, and the burden shifts to the Commissioner (at step five) to 5 prove that, considering residual functional capacity ( RFC )1, age, 6 education, and work experience, a claimant can perform other work 7 which is available in significant numbers. 8 1100; Reddick, 157 F.3d at 721; 20 C.F.R. § 404.1520, § 416.920. 9 10 Tackett, 180 F.3d at 1098 and n.3; Smolen, 80 F.3d at If this burden is met, a prima facie case of disability is B. Tackett, 180 F.3d at 1098, THE ALJ S EVALUATION IN PLAINTIFF S CASE Here, the ALJ found that Plaintiff had not engaged in substantial 11 gainful activity since her disability application date (step one); 12 that Plaintiff had severe impairments, namely a history of seizure 13 disorder, history of migraine, history of fibromyalgia, and history of 14 depression, anxiety, and panic disorder(step two); and that Plaintiff 15 did not have an impairment or combination of impairments that met or 16 equaled a listing (step three). 17 had an RFC for light work, except the work should consist of simple, 18 repetitive, and non-public tasks. [AR 281.] The vocational expert 19 testified that a person with Plaintiff s RFC could not perform 20 Plaintiff s past relevant work (step four). [AR 283.] 21 expert also testified that a person with Plaintiff s RFC could make a 22 vocational adjustment to other work existing in significant numbers, [AR 280.] The ALJ found Plaintiff The vocational 23 1 24 25 26 27 28 Residual functional capacity measures what a claimant can still do despite existing exertional (strength-related) and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155 n.s. 5-6 (9th Cir. 1989). Nonexertional limitations limit ability to work without directly limiting strength, and include mental, sensory, postural, manipulative, and environmental limitations. Penny v. Sullivan, 2 F.3d 953, 958 (9th Cir. 1993); Cooper, 800 F.2d at 1155 n.7; 20 C.F.R. § 404.1569a(c). Pain may be either an exertional or a nonexertional limitation. Penny, 2 F.3d at 959; Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985); 20 C.F.R. § 404.1569a(c). 5 1 including housekeeper, cleaner, and hand packager (step five). [AR 2 284.] 3 defined by the Social Security Act. [Id.] Accordingly, the ALJ found that Plaintiff was not disabled as 4 C. 5 The parties Joint Stipulation identifies the following disputed 6 issues: 7 1. ISSUES IN DISPUTE 8 9 order; 2. 10 11 3. 4. Whether the ALJ properly considered the consultative examiner s opinion; 5. 16 17 Whether the ALJ properly considered the state agency physician s opinion; 14 15 Whether the ALJ properly considered the state agency psychiatrist s findings; 12 13 Whether the ALJ complied with the district court s remand Whether the ALJ properly considered the Plaintiff s residual functional capacity; and 6. 18 Whether the ALJ posed a complete hypothetical question to the vocational expert. 19 [JS 3.] 20 D. 21 In Issue One, Plaintiff contends that the ALJ failed to comply ISSUE ONE: CONSIDERATION OF DR. BELEN S OPINION ON REMAND 22 with the court s decision and order issued on March 10, 2008, 23 directing remand for consideration of the opinion of Dr. Nenita Belen, 24 Plaintiff s treating psychiatrist. [JS 3-4.] 25 According to the record, Plaintiff received psychiatric treatment 26 from Dr. Belen, from July 2003 to July 2004. [AR 143, 156.] Upon a 27 mental status examination, Dr. Belen diagnosed Plaintiff with a 28 depressive order not otherwise specified, and ruled out major 6 1 depression recurrent. [AR 174.] Plaintiff was prescribed Effexor with 2 refills. [AR 156, 174.] 3 With regards to mental functioning, Plaintiff s treating 4 physicians did not assess any functional limitations specific to 5 Plaintiff s condition, except diagnosing a Global Assessment of 6 Functioning ( GAF ) score of 65.2 [AR 178.] 7 was provided. 8 No further description In the latest administrative decision, the ALJ considered the 9 opinion of Dr. Belen, and found that Plaintiff s depression, anxiety, 10 and panic disorder were severe impairments at step two of the five- 11 step evaluation. [AR 280.] 12 evaluation, and found that Plaintiff could perform light work 13 consisting of simple, repetitive, non-public tasks. [AR 281.] 14 Accordingly, the ALJ continued with the Plaintiff argues that the ALJ s evaluation of Dr. Belen s opinion 15 failed to comply with the court s order, because the ALJ failed to 16 specifically reference Dr. Belen s opinion in his decision. [JS 4.] 17 In his initial decision, the ALJ found that Plaintiff s mental health 18 problems were not severe. [AR 13.] The court determined that this 19 decision was in error due to the ALJ not having adequately considered 20 Dr. Belen s opinion. [AR 299.] In the latest decision, the ALJ 21 concluded that Plaintiff s depression, anxiety, and panic disorder 22 were severe impairments, but did not extensively reference Dr. Belen s 23 opinion. [AR 280.] 24 25 26 27 28 2 A GAF score represents a clinical evaluation of an individual s overall level of functioning. Scores in the range of 61 through 70 denote some mild symptoms, such as depressed mood or mild insomnia, or some difficulty in social, occupational, or school functioning, such as occasional truancy or theft within the household, but indicate that the subject is generally functioning pretty well and has some meaningful interpersonal relationships. 7 1 However, the ALJ s new finding of severity is accounted for and 2 paralleled by Dr. Belen s diagnosis. [AR 174, 178.] As such, the 3 court may reasonably infer that the ALJ complied with the remand order 4 by accounting for and relying on Dr. Belen s opinion. 5 Plaintiff seems to contend otherwise, the ALJ does not have to recite 6 the words, I considered Dr. Belen s opinion for the following 7 reasons. . . 8 the court can draw a reasonable inference from the ALJ s opinion. 9 Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). Although Such an incantation is not required where, as here, See Moreover, 10 Plaintiff fails to identify any aspect of Dr. Belen s opinion that the 11 ALJ failed to consider. As such, Plaintiff s claim is without merit. 12 E. 13 On November 4, 2004, Dr. Sarah L. Maze completed a neurological 14 evaluation of Plaintiff, who complained of head injury and seizures. 15 [AR 195-198.] Dr. Maze noted that Plaintiff was involved in a motor 16 vehicle accident twenty years ago, and that her current medications 17 consisted of Depakote, Effexor, Tylenol with codeine, and Fiornal. [AR 18 195-196.] 19 controlled on medication, and that she is able to lift, carry, stand, 20 sit, and walk without limitation, but is precluded from working at 21 heights, around dangerous machinery, and operating a motor vehicle. 22 [AR 198.] 23 discuss Dr. Maze s opinion, particularly since the ALJ did not specify 24 Plaintiff s environmental limitations. [JS 13.] 25 ISSUE FOUR: CONSIDERATION OF EXAMINER DR. MAZE S OPINION Dr. Maze concluded that Plaintiff s seizures were well Plaintiff argues that the ALJ failed to consider and The ALJ did not fail to consider Dr. Maze s opinion. The ALJ 26 found that Plaintiff could perform light work consisting of simple, 27 repetitive, non-public tasks [AR 281.] 28 capacity ( RFC ) is consistent with and encompasses the environmental 8 This residual functional 1 restrictions noted by Mr. Maze. 2 the ALJ as indicative of Plaintiff s ability to perform work in the 3 national economy housekeeper, cleaner, and hand packager requires 4 Plaintiff to work at heights, around dangerous machinery, or operate a 5 motor vehicle. 6 301.137-010 (housekeeper), 323.687-014 (cleaner), and 559.687-074 7 (hand packager). 8 considered Dr. Maze s opinion in determining Plaintiff s RFC, and 9 Plaintiff has stated no cause for remand on this ground. 10 11 F. Moreover, none of the jobs cited by See Dictionary of Occupational Titles ( DOT ) Sections Accordingly, it is reasonable to infer that the ALJ ISSUES TWO AND THREE: STATE AGENCY PHYSICIAN AND PSYCHIATRIST S FINDINGS 12 In Issue Two, Plaintiff contends that the ALJ improperly failed 13 to consider the evaluation completed by a state agency psychiatrist. 14 [JS 10-12.] 15 failing to consider the evaluation completed by a state agency 16 physician. [JS 12-14.] 17 In Issue Three, Plaintiff contends that the ALJ erred in On November 29, 2004, Dr. May, the state agency physician, 18 completed a Physical Residual Functional Capacity Assessment ( PRFCA ) 19 based on review of the record. [AR 203-210.] 20 Plaintiff should never engage in climbing or crawling, and can 21 occasionally perform activities that require balancing, stooping, 22 kneeling, and crouching. [AR 205.] In addition, Dr. May found that 23 Plaintiff should avoid unprotected heights, machinery, and driving 24 automotive equipment. [AR 207.] 25 Dr. May indicated that On December 9, 2004, Dr. Mallare, the state agency psychiatrist, 26 completed a Psychiatric Review Technique Form ( PRTF ) and a Mental 27 Residual Functional Capacity Assessment ( MRFC ) based on review of 28 the record. [AR 213-227, 228-231.] Dr. Mallare concluded that 9 1 Plaintiff was moderately limited in the following areas: the ability 2 to understand and remember very detailed instructions; the ability to 3 carry out detailed instruction; the ability to maintain attention and 4 concentration for extended periods; the ability to perform activities 5 within a schedule, maintain regular attendance, and be punctual; and 6 the ability to complete a normal workday and workweek without 7 interruptions while performing at a consistent pace. [AR 228-229.] 8 The evaluation indicated that Plaintiff was not significantly 9 limited in other listed areas of mental functioning. [Id.] The 10 evaluation concluded that Plaintiff had adequate memory, 11 concentration, and understanding to do simple, repetitive tasks in 12 an environment with others. [AR 230.] 13 Plaintiff argues that the ALJ committed reversible error by 14 failing to discuss or even mention the state agency doctors 15 findings that Plaintiff has postural and environmental limitations, 16 and is moderately limited in her ability to understand and remember 17 detailed instructions and in her ability to sustain concentration and 18 persistence. [JS 6-7, 10; AR 228.] 19 merit. 20 Petitioner s claims are without As to Issue Two, Dr. Mallare stated that Plaintiff is able to do 21 simple, repetitive tasks, the very words the ALJ uses in his 22 decision. [AR 230, 281.] 23 environmental limitations Dr. May indicated fit into the scope of 24 light work that the ALJ found within Plaintiff s capacity. [AR 281.] 25 Similar to Issues One and Four, the court may reasonably infer that 26 the ALJ took into consideration the state agency doctors opinions. 27 Accordingly, Issues Two and Three do not warrant reversal of the 28 Commissioner s decision. As to Issue Three, the postural and 10 1 2 3 G. ISSUES FIVE AND SIX: RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT AND COMPLETE HYPOTHETICAL QUESTION Finally, Plaintiff asserts in Issue Five that the ALJ did not 4 properly consider Plaintiff s RFC in light of the doctors opinions. 5 [JS 15-16.] Likewise, Plaintiff contends in Issue Six that the ALJ 6 failed to pose a complete hypothetical question to the vocational 7 expert based on Plaintiff s RFC, taking into account these opinions. 8 [JS 17-19.] 9 Plaintiff s claims are without merit. Upon remand, the ALJ found that Plaintiff s depression, anxiety, 10 and panic disorder were severe impairments. [AR 280.] 11 the ALJ continued with the five-step evaluation, and found that 12 Plaintiff had the residual functional capacity to perform light work, 13 except the work should consist of simple, repetitive, non-public 14 tasks. [AR 281.] 15 Accordingly, The ALJ held an administrative hearing on January 6, 2009, in 16 which he asked the vocational expert about an individual with 17 Plaintiff s vocational background, age, education, and work 18 experience, who was capable of performing light work. [AR 327.] In 19 addition, the ALJ asked the vocational expert to consider mental 20 limits, namely that the work should consist of only simple, routine, 21 repetitive, non-public tasks. [Id.] 22 Plaintiff argues that the ALJ erred in the RFC finding and 23 hypothetical question since he did not take into consideration the 24 opinions of Drs. Maze, May, and Mallare. [JS 16.] 25 discussed in Issues Two, Three, and Four, the ALJ did consider the 26 records of the three doctors, and issued a decision consistent with 27 their opinions. 28 work that should consist of only simple, routine, repetitive, non- However, as Hence, the ALJ did not err in finding an RFC of light 11 1 public tasks. Moreover, since the RFC is not in error, all of 2 Plaintiff s limitations were accounted for in the question the ALJ 3 posed to the vocational expert. 4 not warrant reversal of the Commissioner s decision. 5 V. Accordingly, Issues Five and Six do ORDERS 6 Accordingly, IT IS ORDERED that: 7 1. The decision of the Commissioner is AFFIRMED. 8 2. This action is DISMISSED WITH PREJUDICE. 9 3. The Clerk of the Court shall serve this Decision and Order 10 and the Judgment herein on all parties or counsel. 11 12 13 14 DATED: October 26, 2010 _______________________________ CARLA M. WOEHRLE United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12

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