Russell Wilson Jr v. Michael J. Astrue, No. 5:2009cv01765 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. (rp)
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Russell Wilson Jr v. Michael J. Astrue Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 RUSSELL WILSON, JR., ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the Social ) Security Administration, ) ) Defendant. ) ______________________________) NO. EDCV 09-1765 SS MEMORANDUM DECISION AND ORDER 17 18 I. 19 INTRODUCTION 20 21 Russell Wilson, Jr. (“Plaintiff”) brings this action seeking to 22 overturn the decision of the Commissioner of the Social Security 23 Administration (hereinafter the “Commissioner” or the “Agency”) denying 24 his application for Disability Insurance Benefits (“DIB”). The parties 25 consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the 26 undersigned United States Magistrate Judge. 27 below, the decision of the Commissioner is AFFIRMED. 28 \\ For the reasons stated Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 Plaintiff filed an application for Disability Insurance Benefits 5 (“DIB”) on May 1, 2006, alleging disability since March 31, 2006. 6 (Administrative Record (“AR”) 80-84). 7 denied 8 Plaintiff requested and was granted a hearing before Administrative Law 9 Judge (“ALJ”) Thomas P. Tielens on April 27, 2009. initially and upon Plaintiff’s application was reconsideration. (AR 27-30, 34-38). (AR 10). Claimant 10 was represented by counsel and testified on his own behalf. (AR 10). 11 His mother, Josephine Wilson, also appeared and testified at the 12 hearing. 13 for Plaintiff, testified at the hearing. (AR 10). On May 12, 2009, the 14 ALJ issued a decision denying benefits. 15 sought review of the ALJ’s decision before the Appeals Council. 16 6). 17 for review and the ALJ’s decision became final. 18 then filed the instant complaint on September 16, 2009. (AR 10). Additionally, Malcolm Brodzinsky, M.A., a witness (AR 10-19). Plaintiff then (AR 5- On July 25, 2009, the Appeals Council denied Plaintiff’s request (AR 1-3). Plaintiff 19 20 III. 21 FACTUAL BACKGROUND 22 23 Plaintiff was born on October 3, 1976 and was twenty-nine years old 24 on the alleged disability onset date. (AR 17, 80). Plaintiff completed 25 high school and has previous work experience as a truck driver, a 26 construction worker and laborer. 27 his disability began on March 31, 2006. 28 engaged in substantial gainful activity since his alleged onset of (AR 17, 139). 2 Plaintiff alleges that (AR 10). Plaintiff has not 1 disability, although he was incarcerated for portions of that time 2 period. (AR 12, Supplemental Administrative Record (“SAR”) 320-322). 3 4 The hearing before the ALJ was originally set for March 27, 2009. 5 On that date, Plaintiff’s attorney appeared and informed the ALJ that 6 Plaintiff was incarcerated and was unable to appear. 7 the hearing so that he could obtain testimony from Plaintiff. 8 23). The ALJ continued (AR 22- 9 10 Plaintiff testified that he performs household chores such as 11 vacuuming, cleaning up after a dog, recycling cans, and shopping. 12 324). 13 Plaintiff’s mother testified that Plaintiff has a number of chores 14 around the house, takes his medications at the proper dosage and time 15 and bathes independently. 16 Plaintiff can eat, dress and bathe independently, do household chores, 17 run errands, shop and cook. (AR 227). The ALJ found that Plaintiff had 18 only moderate restrictions. Plaintiff takes care of his personal needs. (SAR (SAR 325). A consultative psychiatrist reported that (AR 14). 19 20 A. Plaintiff’s Medical History 21 22 Plaintiff alleges a severe impairment of the inability to eat food 23 due to an attempted suicide by drinking Drano. 24 admitted to the hospital in May 2006 with a diagnosis of status-post 25 Drano ingestion. 26 surgery twice after drinking the Drano. 27 shows significant improvement within six months. (AR 12). By September (AR 56). (AR 12). He was The claimant underwent gastric bypass 28 3 (AR 12). The medical record 1 2006, Plaintiff’s eating had improved. (AR 12). At the hearing, the 2 only problem Plaintiff indicated was some weight loss. (AR 12). 3 4 Additionally, Plaintiff alleges mental impairments. (AR 13). In 5 May 2006, Gurmit Sekhon, M.D., reported his diagnostic impressions as 6 schizoaffective 7 paranoid type, and other substance abuse on axis one. 8 admitted 9 amphetamines. to the disorder, hospital (AR 170). depressed in 2006, type, rule Plaintiff out schizophrenia, (AR 162). tested positive When for He was discharged on April 19, 2006 with the 10 diagnoses of major depressive disorder, recurrent, with psychotic 11 features and amphetamine, marijuana, and alcohol abuse on axis one, with 12 a global assessment of functioning (“GAF”) of forty-five (serious 13 symptoms). 14 discharge (AR 159) and was reported as “doing well” and “maintaining 15 weight” by December 2006. 16 methamphetamine abuse. (AR 158). Plaintiff showed significant improvement on (AR 259). Plaintiff has a history of (AR 227; SAR 332-335). 17 18 B. Consultative Evaluation 19 20 In December 2006, Dr. Romeo Villar completed a medical source 21 statement at the request of Plaintiff’s attorney. (AR 295-296). 22 Villar opined that Plaintiff would not be able to maintain forty hours 23 of work per week on a sustained basis. 24 Villar provided no explanations or evidence in support of his opinion. 25 (AR 16). 26 Plaintiff as stating “I’m doing well.” 27 \\ 28 \\ (AR 295-296). Dr. However, Dr. By February 2007, Dr. Villar noted improvement and reported 4 (AR 274-5). 1 2 IV. 3 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 4 5 To qualify for disability benefits, a claimant must demonstrate 6 a medically-determinable physical or mental impairment that prevents him 7 from engaging in substantial gainful activity1 and that is expected to 8 result in death or to last for a continuous period of at least twelve 9 months. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 10 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant 11 incapable of performing the work he previously performed and incapable 12 of performing any other substantial gainful employment that exists in 13 the national economy. 14 1999) (citing 42 U.S.C. § 423(d)(2)(A)). Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 15 16 To decide if a claimant is entitled to benefits, an ALJ conducts 17 a five-step inquiry. 18 follows: 20 C.F.R. §§ 404.1520, 416.920. The steps are as 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? If so, the claimant is found not disabled. 22 If not, proceed to step two. 23 24 25 26 27 28 1 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 5 1 (2) Is the claimant’s impairment 2 claimant is found not disabled. 3 three. severe? If not, the If so, proceed to step 4 5 (3) Does the claimant’s impairment meet or equal one of a 6 list of specific impairments described in 20 C.F.R. Part 7 404, Subpart P, Appendix 1? 8 found disabled. If so, the claimant is If not, proceed to step four. 9 10 (4) Is the claimant capable of performing her past work? 11 so, the claimant is found not disabled. 12 to step five. If If not, proceed 13 14 (5) Is the claimant able to do any other work? 15 claimant is found disabled. 16 found not disabled. If not, the If so, the claimant is 17 18 Tackett, 180 F.3d at 1098-99; see also 20 C.F.R. §§ 404.1520(b)-(g)(1), 19 416.920(b)-(g)(1); Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th 20 Cir. 2001) (citations omitted). 21 22 The claimant has the burden of proof at steps one through four and 23 the Commissioner has the burden of proof at step five. Bustamante, 262 24 F.3d at 953-54. 25 establishing an inability to perform past work, the Commissioner must 26 show that the claimant can perform some other work that exists in 27 “significant numbers” in the national economy, taking into account the If, at step four, the claimant meets his burden of 28 6 1 claimant’s residual functional capacity (“RFC”),2 age, education and 2 work experience. 3 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 4 do so by the testimony of a VE or by reference to the Medical-Vocational 5 Guidelines appearing in 20 C.F.R. Part 404, Subpart P, Appendix 2 6 (commonly known as “the Grids”). 7 1162 (9th Cir. 2001). 8 related) and nonexertional limitations, the Grids are inapplicable and 9 the ALJ must take the testimony of a VE. 10 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner may Osenbrock v. Apfel, 240 F.3d 1157, When a claimant has both exertional (strength- Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000). 11 V. 12 THE ALJ’S DECISION 13 14 The ALJ employed the five-step sequential evaluation process and 15 concluded that Plaintiff was not disabled within the meaning of the 16 Social Security Act. 17 that Plaintiff had not engaged in substantial gainful activity since 18 March 31, 2006, the alleged onset date. 19 Plaintiff had the following severe impairments: schizoaffective disorder 20 and substance addiction disorder (methamphetamine/speed abuse). (Id.). 21 Plaintiff also alleged an impairment as a result of a gastrointestinal 22 (“GI”) problem created by his attempt at suicide by drinking Drano. (AR 23 12). 24 surgery, Plaintiff experienced significant improvement of this condition (AR 10-19). At the first step, the ALJ observed (AR 12). Next, he found that However, the ALJ found that after Plaintiff’s gastric bypass 25 26 27 28 2 Residual functional capacity is “the most [one] can still do despite [one’s] limitations” and represents an assessment “based on all the relevant evidence in [one’s] case record.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 7 1 and no impairment remained. (Id.). At the third step, the ALJ found 2 that the severe impairments at step two did not meet or medically equal 3 a listed impairment. (Id. at 12-13). 4 5 At step four, the ALJ found that Plaintiff has the RFC to perform 6 a full range of work at all exertional levels but with the following 7 non-exertional limitations: Plaintiff is limited to simple, repetitive 8 work and should avoid concentrated exposure to hazards like unprotected 9 heights and dangerous machinery. by Plaintiff’s (AR 14). psychological The RFC assessment is 10 supported 11 limitations on his ability to concentrate and handle complex tasks and 12 the limitation of avoidance of concentrated hazards (due to the side- 13 effects of medications). 14 Plaintiff was unable to perform his past relevant work. (AR 17). impairments, which impose However, the ALJ also found that (Id.). 15 16 Finally, at step five, and after consideration of the vocational 17 expert’s testimony, the ALJ concluded that based on Plaintiff’s RFC, 18 age, education and work experience, there were jobs that existed in 19 significant 20 perform. 21 disabled, as defined in the Social Security Act, at any time through the 22 date of the decision. numbers (AR 18). in the national economy that Plaintiff could Accordingly, the ALJ found that Plaintiff was not (AR 18). 23 VI. 24 STANDARD OF REVIEW 25 26 27 28 Under 42 U.S.C. § 405(g), a district Commissioner’s decision to deny benefits. 8 court may review the The court may set aside the 1 Commissioner’s decision when the ALJ’s findings are based on legal error 2 or are not supported by substantial evidence in the record as a whole. 3 Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. 4 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). 5 6 “Substantial evidence is more than a scintilla, but less than a 7 preponderance.” Reddick, 157 F.3d at 720. 8 which a reasonable person might accept as adequate to support a 9 conclusion.” Id. It is “relevant evidence To determine whether substantial evidence supports 10 a finding, the court must “‘consider the record as a whole, weighing 11 both 12 [Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny 13 v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 14 reasonably support either affirming or reversing that conclusion, the 15 court may not substitute its judgment for that of the Commissioner. 16 Reddick, 157 F.3d at 720-21. evidence that supports and evidence that detracts from the If the evidence can 17 18 VII. 19 DISCUSSION 20 21 Plaintiff contends the ALJ erred for a number of reasons. First, 22 he claims that the ALJ erred at step two by finding the claimant’s GI 23 impairments nonsevere. 24 contends that the ALJ did not fulfill his duty to develop the record 25 because he should have obtained “an updated opinion from a treating 26 physician or a report of a consultative medical examiner.” (Id. at 13). 27 Third, Plaintiff asserts that the ALJ improperly relied on the opinions 28 of Dr. Joel Ross, a non-examining state agency physician, and Dr. A.W. (Plaintiff’s Memo. at 7). 9 Second, Plaintiff 1 Lizarraras, a non-examining state agency consultant. 2 Fourth, Plaintiff contends that the ALJ’s RFC failed to include the 3 limitation that Plaintiff was limited to one-and-two-step instructions. 4 Finally, Plaintiff contends that the ALJ did not satisfy his duty to 5 develop the record because he did not update Plaintiff’s medical records 6 for the hearing. 7 below, the Court disagrees with all of Plaintiff’s contentions. (Plaintiff’s Memo. at 18). (Id. at 18). For the reasons discussed 8 9 10 A. The ALJ Properly Found That Plaintiff’s GI Impairments Were Not Severe Because They Improved Within Six Months Following Surgery 11 12 Plaintiff asserts that the medical evidence supports a finding that 13 Plaintiff’s GI impairments were severe. (Plaintiff’s Memo. at 12). 14 support of his contention, Plaintiff summarizes the medical records 15 provided by Arrowhead Regional Medical Center. 16 Plaintiff argues that the ALJ should have considered the ten-pound 17 lifting limitation imposed on Plaintiff when he was discharged from the 18 hospital on September 22, 2006 after his stomach bypass surgery and that 19 it was error for the ALJ to find that Plaintiff could perform work at 20 all exertional levels and two jobs calling for medium exertion. 21 Court disagrees. (Id.). In Specifically, This 22 23 24 1. Plaintiff’s Impairment Was Not Severe Because It Did Not Last Twelve Or More Months 25 26 The ALJ properly considered the medical evidence in the context of 27 the rules and regulations governing social security claims. 28 evaluation at step two is a de minimis test intended to weed out the 10 The 1 most minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-154, 2 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987); Edlund v. Massanari, 253 F.3d 3 1152, 1158 (9th Cir. 2001)(stating that the step two inquiry is a de 4 minimis screening device to dispose of groundless claims and quoting 5 Smolen, 80 F.3d at 1290). 6 the evidence establishes a slight abnormality that has no more than a 7 minimal effect on an individual’s ability to work.” 8 433 F.3d 683, 686 (9th Cir. 2005); Edlund v. Massanari, 253 F.3d 1152, 9 1158 (9th Cir. 2001)(the step-two inquiry is a de minimis screening 10 device to dispose of groundless claims)(quoting Smolen v Chater, 80 F.3d 11 1273, 1290 (9th Cir. 1996)). 12 a medically severe impairment or combination of impairments only when 13 his conclusion is ‘clearly established by medical evidence.’” Webb, 433 14 F.3d at 687. An ALJ may find an impairment not severe “if Webb v. Barnhart, “[A]n ALJ may find that a claimant lacks 15 16 As a preliminary matter, in order for an impairment to qualify as 17 severe, it must have lasted or must be expected to last for a continuous 18 period of at least twelve months. 19 plainly shows that Plaintiff’s condition improved within six months. 20 Plaintiff was hospitalized in April 2006 after he ingested Drano while 21 under the influence of amphetamines. 22 a series of procedures, including a gastric bypass in May 2006 (AR 182), 23 a upper endoscopy in August 2006 (AR 224) and another gastric procedure 24 in September 2006 (AR 269) due to the damage caused to his stomach by 25 drinking Drano. 26 (AR 181, 185, 261). 27 2006. 28 eat, dress and bathe independently, perform some household chores and 20 C.F.R. § 404.1509. (AR 181, 185, 261). (AR 156-157, 170). The evidence He underwent This damage included weight loss. Plaintiff also received followup care in September By October 2006, Plaintiff was “doing well” (AR 260) and could 11 1 errands, shop, cook, play video games and watch television. 2 228). 3 notes report that Plaintiff was “doing well,” “maintaining weight” and 4 eating two full meals and snacks daily. 5 not demonstrated that his GI impairment lasted or was expected to last 6 for at least twelve months. Plaintiff continued to improve. (AR 227- In December 2006, treatment (AR 259). Thus, Plaintiff has 7 8 2. The ALJ Was Not Required To Consider The Ten-Pound Limitation Because It Was a Post-Surgery Notation 9 10 11 Plaintiff underwent a surgical procedure on September 22, 2006 and 12 was discharged the same day with instructions to avoid bathing until his 13 wound healed, and to avoid heavy eating and heavy lifting. 14 The instruction to avoid heavy lifting was a post-surgical notation, not 15 a finding regarding a lasting condition or limitation. 16 Support of Defendant’s Answer (“Answer”) at 4, citing Regulation Section 17 404.1513(b) (defining medical reports), 20 C.F.R. § 404.1513(b) (2009), 18 20 C.F.R. § 404.1513(a)(2)(2009), 20 C.F.R. 404.15(a)(2) (2009), 20 19 C.F.R. 404.1513(b)(2009)). 20 the ten-pound lifting limitation in assessing Plaintiff’s RFC. (AR 268). (Memorandum in Thus, the ALJ was not required to consider 21 22 23 3. Even Assuming The ALJ Erred In Disregarding The Ten-Pound Limitation, This Would Be Harmless Error 24 25 Even if the ALJ had accorded greater weight to the post-surgery 26 notation restricting heavy lifting, the result would be the same. 27 the ALJ found Plaintiff’s lifting restriction to persist because of the 28 12 Had 1 GI surgery, it would only reduce Plaintiff’s RFC to medium work3 or add 2 a limited restriction. 3 the ten-pound limitation was harmless because the outcome would have 4 been the same. 5 1155, 1162 (9th Cir. 2008) (holding that an ALJ’s error in a Social 6 Security benefits hearing is harmless where it does not change the 7 outcome of the benefits determination); Curry v. Sullivan, 925 F.2d 8 1127, 1129 (9th Cir. 1990) (harmless error rule applies to review of 9 administrative decisions regarding disability). No remand is required. Accordingly, any error in failing to consider See Carmickle v. Comm’r, Social Sec. Admin., 533 F.3d 10 11 B. The ALJ Was Not Required To Obtain An Opinion From An Examining 12 Physician In Order To Fulfill His Duty To Fully And Fairly Develop 13 The Record 14 15 Plaintiff argues that the ALJ should have obtained an updated 16 opinion from a treating physician or a consultative internal medicine 17 examiner. 18 merit. 19 2006 opinion of a non-examining state agency physician” and should have 20 obtained an examining physician’s opinion pursuant to 20 C.F.R. § 21 404.1519a(b) (consultative examination may be obtained if indication of 22 changed condition likely to affect ability to work). 23 disagrees. (Plaintiff’s Memo. at 13-14). This contention is without Plaintiff contends that the ALJ erred by relying “only on the This Court 24 25 3 26 27 28 Medium work, as defined in 20 C.F.R. 404.1567(c) and 416.967(c), permits lifting and carrying 50 pounds occasionally and 25 pounds frequently, standing and walking with normal breaks for 6 hours out of an 8 hour day, and sitting with normal breaks for 6 hours out of an 8 hour day. 13 1 Plaintiff’s argument does not accurately reflect the requirements 2 of 20 C.F.R. § 404.1519a(b). The regulation states that before ordering 3 a consultative examination, the Commissioner will consider a number of 4 factors, including the existing medical evidence, interview forms and 5 claimant’s allegations. 6 consultative examination. Reed v. Masanari, 270 F.3d 838, 842 (9th Cir. 7 2001). Furthermore, the Commissioner need only seek additional evidence 8 or clarification from a treating physician when a medical report 9 contains a “conflict” or an “ambiguity” that must be resolved. 10 The ALJ has broad latitude in ordering a 20 C.F.R. § 416.912(e)(1). 11 12 Here, there were no conflicts or ambiguity that had to be resolved, 13 nor did the ALJ make such a finding. Therefore, the ALJ’s duty to 14 develop the record was not triggered. 15 947, 958 (9th Cir. 2002) (duty not triggered where the ALJ did not make 16 a finding that the medical report was inadequate to make a disability 17 determination); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 18 2001) (only ambiguous evidence, or the ALJ’s own finding that the record 19 is inadequate to allow for proper evaluation of the evidence, triggers 20 the ALJ’s duty to conduct an appropriate inquiry or gather additional 21 information). As indicated, the evidence clearly showed that Plaintiff 22 showed improvement in his symptoms by December 2006. 23 more than adequate to allow for the ALJ’s evaluation. See Thomas v. Barnhart, 278 F.3d The record was 24 25 Additionally, the ALJ did not “consider [Plaintiff’s] physical 26 impairments based only on the 2006 opinion of a non-examining state 27 agency physician,” as Plaintiff contends. 28 14 To the contrary, the ALJ 1 considered numerous medical records from several 2 incorporated many into his decision, including: sources and 3 4 (1) The records and opinion of state agency psychological consultant 5 H.M. Skopec, M.D. in assessing Plaintiff’s moderate restriction in 6 activities of daily living, mild difficulties in maintaining 7 social 8 concentration, persistence or pace and one or two episodes of 9 decompensation. 10 function, moderate (AR 13, difficulties 16-17 citing in maintaining 231-244). The ALJ considered and accorded “[g]reat weight” to Dr. Skopec’s opinion. 11 12 (2) The psychiatric evaluations of Jason H. Yang, M.D. in determining 13 Plaintiff’s activities of daily living and social functioning. 14 (AR 13, 16-17, citing AR 226-229). 15 16 (3) The opinion of Romeo Villar, M.D., who completed a medical source 17 statement at the request of Plaintiff’s attorney, in concluding 18 that Plaintiff was moderately limited in regards to concentration. 19 (AR 13, 16-17, citing AR 295-296). 20 21 (4) The reports of various doctors who observed Plaintiff when he was 22 admitted to the hospital in May 2006 with a diagnosis of status- 23 post Drano ingestion (AR 15, citing AR 155-180) and again in 24 December 25 maintaining weight.” (AR 16, citing AR 258-272). The of 2006 when Plaintiff was reported as “doing well, 26 27 28 (5) case analysis N.S. Haroun, M.D., a state agency psychologist, who observed Plaintiff on March 9, 2007 and affirmed 15 1 the findings of Dr. Skopec with regard to Plaintiff’s moderate 2 limitations. (AR 17, citing AR 287-288). 3 4 (6) The November 2006 case analysis of Joel Ross, M.D., who opined 5 that Plaintiff’s physical impairment caused by the ingestion of 6 Drano was expected to improve and to cause no limitations on 7 physical work capabilities beyond April 2007. 8 230). (AR 17, citing AR 9 10 (7) 11 The case analysis of Dr. A.W. Lizarraras, who confirmed Dr. Ross’s assessments. (AR 17, citing 289-290). 12 13 (8) Plaintiff’s own testimony and the testimony of his mother, 14 Josephine Wilson, in determining Plaintiff’s activities of daily 15 living and social functioning. (AR 13, 17). 16 17 The ALJ obtained and reviewed all the necessary medical records and 18 there is no ambiguity in the record. Thus, the ALJ was not required to 19 obtain any additional information in order to fulfill his duty to fully 20 and fairly develop the record. 21 22 23 C. The ALJ Did Not Err By Relying On The Opinions Of Dr. Ross And Dr. Lizarraras 24 25 Plaintiff contends that the ALJ improperly relied on the opinions 26 of Dr. Joel Ross and Dr. A.W. Lizarraras, both non-examining state 27 agency consultants. 28 had not reviewed “‘the vast majority of the entire medical evidence of Plaintiff argues that Dr. Ross and Dr. Lizarraras 16 1 record’ as is evident from their sketchy list of evidence in their 2 worksheet reports.” 3 neither Dr. Ross nor Dr. Lizarraras “gave any serious consideration to 4 the content of the records” and that their opinions should not be relied 5 upon. (Plaintiff’s Memo. at 15). (Id. at 16). Plaintiff asserts that This Court disagrees. 6 7 First, as agency physicians, Dr. Ross and Dr. Lizarraras qualify 8 as experts in social security disability evaluations. 9 416.927(f)(2)(I). 20 C.F.R. § The regulations state that the ALJs “must consider” 10 findings from an agency physician. 11 also states that the findings of fact made by an agency physician “must 12 be treated as expert opinion evidence” by the ALJ. 13 ignore these opinions.” 14 Social Security Rulings do not have the force of law, they are binding 15 on all components of the Social Security Administration and courts give 16 them 17 Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (holding that 18 although Social Security Rulings that are issued by the Commissioner of 19 Social Security to clarify implementing regulations and agency policies 20 do not have the force of law, reviewing courts will give them some 21 deference because they represent the Commissioner’s interpretations of 22 the agency’s regulations, unless they are inconsistent with statutes or 23 regulations). 24 opinions of Dr. Ross and Dr. Lizarraras. some deference. Id. Social Security Ruling 96-6p An ALJ “may not See SSR 96-6p, 1996 WL 374180, *1. See 20 C.F.R. § 402.35(b)(1); Although Holohan v. Accordingly, the ALJ was required to consider the 25 26 Secondly, a non-examining physician’s opinion may serve as 27 substantial evidence if it is not contradicted by other evidence. 28 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citations 17 1 omitted). Plaintiff has failed to demonstrate that the opinions of Dr. 2 Ross and Dr. Lizarraras were contradicted by other evidence. 3 has not shown how other treating source opinions conflict with the 4 opinions of Dr. Ross and Dr. Lizarraras, which conclude that Plaintiff’s 5 GI impairment was not severe. 6 opinions, the ALJ was entitled to rely on the opinions of Dr. Ross and 7 Dr. Lizarraras. Plaintiff Because there were no conflicting No remand is required for this claim. 8 9 D. Plaintiff’s Contention That The ALJ’s RFC Failed To Include The 10 Limitation That Plaintiff Was Limited To One-And-Two-Step 11 Instructions Is Without Merit 12 13 Plaintiff contends that the ALJ failed (Plaintiff’s Memo. at 18). to properly evaluate 14 Plaintiff’s RFC. Specifically, Plaintiff 15 contends that the ALJ erred in failing to include a limitation to one- 16 and-two-step instructions. 17 disagrees. (Plaintiff’s Memo. at 18). This Court 18 19 RFC is defined as what a claimant can still do despite existing 20 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 21 1152, 1155 n.5 (9th Cir. 1989). 22 “RFC is an assessment of an individual’s ability to do sustained work- 23 related physical and mental activities in a work setting on a regular 24 and continuing basis.” 25 1996). The ALJ found that Plaintiff had the RFC to perform a full range 26 of work at all exertional levels, but had the following nonexertional 27 limitations, i.e., that Plaintiff is limited to simple, repetitive work 28 and should avoid concentrated exposure to hazards like unprotected SSR 96-8p provides in relevant part: SSR 96-8p, 1996 WL 374184, at *1 (SSA July 2, 18 1 heights and dangerous machinery. 2 ALJ 3 contrary to Plaintiff’s contention. properly accounted for In making such a determination, the Plaintiff’s nonexertional limitations, 4 5 Initially, Plaintiff misstates Dr. Yang’s assessment concerning 6 Plaintiff’s ability to follow instructions. A review of the record 7 reveals that Dr. Yang merely states that Plaintiff is “able to follow 8 1- and 2- part instructions” (AR 229), not that Plaintiff is necessarily 9 limited to following one-and-two-part instructions. Dr. Yang’s overall 10 opinion does not suggest that he intended to limit Plaintiff to simple 11 instructions. 12 and complete [both] simple and complex tasks.” (AR 229). Dr. Yang also 13 opined that Plaintiff could tolerate the stress inherent in a work 14 environment, maintain regular attendance, work without supervision and 15 interact appropriately with others. 16 was cooperative and attentive, alert in all spheres, able to perform 17 simple calculations and 18 (AR 228). 19 homicidal or suicidal ideation or hallucinations. 20 reported to Dr. Yang that his medications were effective, that he 21 attended twelve-step meetings, performed household chores, shopped, 22 cooked, managed money, drove and played video games. 23 Plaintiff misconstrues Dr. Yang’s notation as to Plaintiff’s ability to 24 follow one-and-two-step instructions as an imposition of a limitation, 25 but a review of Dr. Yang’s entire opinion does not support Plaintiff’s 26 argument. Dr. Yang noted that Plaintiff can “adequately remember (AR 229). He noted that Plaintiff spell simple words and his memory was intact. Plaintiff presented no obsessions or delusions and denied 27 28 19 (AR 228). Plaintiff (AR 227-228). 1 The ALJ’s RFC finding is consistent with Dr. Yang’s overall 2 opinion. (AR 14, 229). Plaintiff is incorrect in assuming that the ALJ 3 rejected any so-called “one-and-two-step instructions limitation.” The 4 ALJ did not specifically reject this limitation and in fact, properly 5 considered it. 6 perform a full range of work at all exertional levels but included the 7 following non-exertional limitations, i.e., the ALJ limited Plaintiff 8 to simple, repetitive work and found that Plaintiff should avoid 9 concentrated exposure to hazards like unprotected heights and dangerous (AR 16). (AR 14). The ALJ found that Plaintiff has the RFC to 10 machinery. The ALJ limited Plaintiff to “simple, repetitive 11 tasks.” (AR 17). The ALJ’s RFC properly takes into account Plaintiff’s 12 limitations caused by his schizoaffective condition and substance 13 addiction disorder. 14 and testimony of Plaintiff and his mother, which established that he is 15 capable of daily activities consistent with the RFC. The ALJ properly considered the medical records 16 17 Plaintiff argues extensively that had the ALJ included the one-and- 18 two-step instructions “limitation,” Plaintiff’s RFC could not include 19 the capacity to work in either of the “other work” occupations cited by 20 the ALJ at step five, which include hand packer and small product 21 assembler. 22 require 23 Plaintiff alleges that including the limitation would reduce Plaintiff’s 24 ability to function at Reasoning Level one. 25 Plaintiff alleges that according to the DOT, the jobs of hand packer and 26 small product assembler both have a Reasoning Level of two, which is 27 inconsistent 28 (Plaintiff’s Memo. at 19). (Plaintiff’s Memo. at 19). the ability with a to function limitation at to Plaintiff argues that such jobs Reasoning Level two. (Id.). (Plaintiff’s Memo. at 19). one-and-two-step instructions. Reasoning Level two calls for a worker to 20 1 be able to “[a]pply commonsense understanding to carry out detailed but 2 uninvolved written or oral instructions. (Id., citing DOT Appendix C.). 3 4 As discussed, Dr. Yang’s entire opinion did not indicate a 5 limitation to one-and-two-step instructions. Instead, read in context 6 and with Dr. Yang’s other observations, jobs which required a Reasoning 7 Level Two could be performed by Plaintiff. 8 9 Assuming, arguendo, that Dr. Yang did limit Plaintiff to one-and- 10 two-step instructions and further assuming that the ALJ rejected the 11 limitation in error, any such error was harmless because inclusion of 12 the limitation would not change the ALJ’s RFC finding. 13 make a specific determination as to whether Plaintiff is capable of 14 performing work requiring a Reasoning Level of one or two, but his RFC 15 assessment does imply that Plaintiff is capable of performing work 16 requiring a Reasoning Level of at least two, which is consistent with 17 the jobs of hand packer and small product assembler. 18 incorrect in taking the word “detailed” in the DOT job description to 19 automatically indicate that the jobs at issue are inconsistent with Dr. 20 Yang’s one-and-two-step instructions limitation and Plaintiff’s RFC, 21 which “limits [Plaintiff] to simple, repetitive tasks, i.e., unskilled 22 work.” 23 and the DOT’s job descriptions to be explained. (AR 17). The ALJ did not Plaintiff is There was no deviation between the ALJ’s conclusions 24 25 Social Security regulations separate a claimant’s ability to 26 understand and remember things and to concentrate into just 27 two 28 ‘detailed’ or ‘complex’ instructions. categories: ‘short and 21 simple instructions’ and The DOT, on the other 1 hand, employs a much more graduated, measured and finely 2 tuned scale . . . 3 use of the term ‘simple’ with its use in the DOT would 4 necessarily mean that all jobs with a reasoning level of two 5 or higher are encapsulated within the regulations’ use of the 6 word ‘detail.’ . . . 7 two scales based on the serendipity that they happen to 8 employ the same word choice, a much more careful analysis is 9 required in comparing the claimant’s RFC with the DOT’s 10 To equate the Social Security regulations’ Instead of simply seeking to equate the reasoning scale. 11 12 Meissl v. Barnhart, 403 F. Supp. 2d 981, 984 (C.D. Cal. 2005) (citations 13 omitted). Plaintiff’s ability to follow one-and-two-step instructions, 14 but also complete simple and complex tasks, indicates a level of 15 reasoning sophistication above the most elementary of occupations found 16 at Reasoning Level one. 17 1168, 1176 (10th Cir. 2005) (Level two reasoning consistent with 18 limitation to simple and repetitive tasks); Lara v. Astrue, 305 Fed. 19 App’x 324, 326 (9th Cir. 2008) (someone able to perform simple, 20 repetitive tasks is capable of doing work requiring more rigor and 21 sophistication beyond Reasoning Level one). 22 and-two-step instructions limitation, the ALJ properly determined that 23 this 24 performing work requiring a Reasoning Level two. and Plaintiff’s Id.; see also Hackett v. Barnhart, 395 F.3d other limitations 25 26 27 28 22 Thus, even assuming a one- do not prevent him from 1 E. The ALJ Satisfied His Duty To Develop The Record 2 3 Lastly, Plaintiff contends again that the ALJ did not fulfill his 4 duty to develop the record because the hearing was over two years after 5 the most recent medical opinions. 6 Court disagrees. (Plaintiff’s Memo. at 26-27). This 7 8 A review of the record reveals that Plaintiff’s attorney never made 9 a request to supplement the record or for additional consultative 10 examinations. As Defendant points out, Plaintiff did not submit any 11 additional 12 represented by counsel. evidence to the Appeals Council, even though he was (Answer at 10, citing AR 1-35). 13 14 As already discussed, the ALJ’s duty to augment the existing record 15 was not triggered because the evidence was not ambiguous and the record 16 was not inadequate. 17 Section VIII.B above, the agency fully developed the record. 18 properly considered several medical records from different sources; all 19 consistently showed improvement in Plaintiff’s impairments. 20 the ALJ obtained and reviewed several medical records and there is no 21 ambiguity in this record. 22 further develop the record by obtaining additional records. 23 // 24 // 25 // 26 // 27 // 28 // Tonapetyan, 242 F.3d at 1150. As established in The ALJ Clearly, Thus, the ALJ did not have any duty to 23 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, and pursuant to sentence four of 42 5 U.S.C. § 405(g),4 IT IS ORDERED that judgment be entered AFFIRMING the 6 decision of the Commissioner and dismissing this action with prejudice. 7 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this 8 Order and the Judgment on counsel for both parties. 9 10 DATED: October 1, 2010. 11 ________/S/_________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 24
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