Patricia Murray v. Michael J Astrue, No. 5:2011cv00726 - Document 15 (C.D. Cal. 2012)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Margaret A. Nagle. IT IS ORDERED that Judgment shall be entered affirming the decision of the Commissioner of the Social Security Administration. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 PATRICIA MURRAY, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. EDCV 11-00726-MAN MEMORANDUM OPINION AND ORDER 17 18 Plaintiff filed a Complaint on May 16, 2011, seeking review of the 19 denial of plaintiff s application for supplemental security income 20 ( SSI ). 21 § 636(c), to proceed before the undersigned United States Magistrate 22 Judge. The parties filed a Joint Stipulation ( Joint Stip. ) on January 23 17, 24 Commissioner s decision and remanding this case for the payment of 25 benefits or, alternatively, for further administrative proceedings; and 26 the 27 alternatively, remanded for further administrative proceedings. 28 Stip. at 5-8.) On June 10, 2011, the parties consented, pursuant to 28 U.S.C. 2012, in which: Commissioner plaintiff requests that seeks his an order decision be reversing affirmed the or, (Joint The Court has taken the parties Joint Stipulation under 1 submission without oral argument. 2 3 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 4 5 On July 13, 2007, plaintiff filed an application for SSI. 6 (Administrative Record ( A.R. ) 9.) 7 8, 1961 (A.R. 99),1 claims to have been disabled since April 20, 2007 8 (A.R. 9), due to bipolar disorder, depression, anxiety, and non-cardiac 9 chest pain (A.R. 60, 65). 10 as a housekeeper. Plaintiff, who was born on October Plaintiff has past relevant work experience (A.R. 18.) 11 12 After the Commissioner denied plaintiff s claim initially and upon 13 reconsideration (A.R. 9, 60-70), plaintiff requested a hearing (A.R. 14 71). 15 appeared and testified at a hearing before Administrative Law Judge 16 Joseph D. Schloss (the ALJ ). (A.R. 9, 24-41.) 17 David A. Rinhart also testified. (Id.) 18 denied 19 subsequently denied plaintiff s request for review of the ALJ s decision 20 (A.R. 1-3). On June 29, 2009, plaintiff, who was represented by counsel, plaintiff s claim (A.R. Vocational expert On November 24, 2009, the ALJ 9-19), and the Appeals Council That decision is now at issue in this action. 21 SUMMARY OF ADMINISTRATIVE DECISION 22 23 24 The ALJ found that plaintiff has not engaged in substantial gainful 25 activity since July 13, 2007, her application date. 26 determined that plaintiff has the following (A.R. 11.) severe The ALJ impairments: 27 1 28 On the date the application was filed, plaintiff was 45 years old, which is defined as a younger individual. 20 C.F.R. § 416.963. 2 1 Bipolar Disorder, Depression, Post Traumatic Stress Syndrome, [and] S/P 2 Carpal Tunnel Syndrome. 3 does not have an impairment or a combination of impairments that meets 4 or medically equals one of the listed impairments in 20 C.F.R. Part 404, 5 Subpart P, Appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). 6 (A.R. 15.) (Id.) The ALJ also determined that plaintiff 7 8 After reviewing the record, the ALJ determined that plaintiff has 9 the residual functional capacity ( RFC ) to perform medium work, as 10 defined in 20 C.F.R. § 416.967(c), with the following exceptions: 11 [plaintiff] is able to frequently perform gross hand and fine motor 12 finger 13 understand, remember, and carryout [sic] detailed instructions and set 14 realistic goals or make plans independently of others. movements; and is moderately limited in her ability to (A.R. 16.) 15 16 The ALJ determined that plaintiff is capable of performing [her] 17 past relevant work as a housekeeper, because [t]his work does not 18 require 19 [plaintiff s RFC]. 20 plaintiff has not been under a disability, as defined in the Social 21 Security Act, since July 13, 2007, the date her SSI application was 22 filed. the performance of work-related (A.R. 18.) activities precluded by Accordingly, the ALJ concluded that (Id.) 23 24 STANDARD OF REVIEW 25 26 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner s 27 decision to determine whether it is free from legal error and supported 28 by substantial evidence in the record as a whole. 3 Orn v. Astrue, 495 1 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is such relevant 2 evidence as a reasonable mind might accept as adequate to support a 3 conclusion. 4 a mere scintilla but not necessarily a preponderance. 5 Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). 6 record can constitute substantial evidence, only those reasonably drawn 7 from the record will suffice. 8 1066 (9th Cir. 2006)(citation omitted). Id. (citation omitted). The evidence must be more than Connett v. While inferences from the Widmark v. Barnhart, 454 F.3d 1063, 9 10 Although this Court cannot substitute its discretion for that of 11 the Commissioner, the Court nonetheless must review the record as a 12 whole, weighing both the evidence that supports and the evidence that 13 detracts from the [Commissioner s] conclusion. 14 Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also 15 Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 16 responsible for determining credibility, resolving conflicts in medical 17 testimony, and for resolving ambiguities. 18 1035, 1039 (9th Cir. 1995). Desrosiers v. Sec y of The ALJ is Andrews v. Shalala, 53 F.3d 19 20 The Court will uphold the Commissioner s decision when the evidence 21 is susceptible to more than one rational interpretation. 22 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 23 review only the reasons stated by the ALJ in his decision and may not 24 affirm the ALJ on a ground upon which he did not rely. 25 at 630; see also Connett, 340 F.3d at 874. 26 the Commissioner s decision if it is based on harmless error, which 27 exists only when it is clear from the record that an ALJ s error was 28 inconsequential to the ultimate nondisability determination. Robbins 4 Burch v. However, the Court may Orn, 495 F.3d The Court will not reverse 1 v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. 2 Comm r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch, 400 F.3d 3 at 679. 4 5 DISCUSSION 6 7 Plaintiff claims that the ALJ did not properly consider the April 8 7, 2008 opinion of State agency physician Donald Williams, M.D. 9 Stip. at 3.) (Joint Specifically, plaintiff claims that the ALJ erred in 10 failing to include a number of impairments, in which plaintiff was 11 found to be not significantly limited, in his RFC assessment for 12 plaintiff. (Id. at 4-5.) 13 14 It is the responsibility of the ALJ to analyze evidence and resolve 15 conflicts in medical testimony. Magallanes v. Bowen, 881 F.2d 747, 750 16 (9th Cir. 1989). 17 assessing a social security claim, [g]enerally, a treating physician s 18 opinion carries more weight than an examining physician s, and an 19 examining physician s opinion carries more weight than a reviewing 20 physician s. 21 2001); 20 C.F.R. § 416.927(d). In the hierarchy of physician opinions considered in Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 22 23 In evaluating opinion evidence, an ALJ is required to consider the 24 opinions and findings of State agency medical consultants. 20 C.F.R. 25 § 416.927(f)(2)(i). 26 given controlling weight, the [ALJ] must explain in the decision the 27 weight given to the opinions of a State agency [consultant]. 20 C.F.R. 28 § 416.927(f)(2)(ii); see SSR 96-6p (1996), 1996 SSR LEXIS 3, at *5, 1996 Further, [u]nless a treating source s opinion is 5 1 WL 374180, at *2 (stating that an ALJ may not ignore the opinions of 2 State agency medical consultants and must explain the weight given to 3 the opinions in their decision ). 4 5 In determining a claimant s RFC, an ALJ will consider all the 6 relevant evidence in the record. 7 the ALJ will consider all claimant s medically determinable impairments, 8 including those that are not severe. 9 combination of impairments is not severe if it does not significantly 10 limit [claimant s] 11 activities. physical or 20 C.F.R. § 416.945(a). mental Id. In so doing, An impairment or ability to do basic work 20 C.F.R. § 416.921(a). 12 13 On April 7, 2008, Dr. Williams, a State agency medical consultant, 14 completed a nonexamining, consultative review of plaintiff s medical 15 record. 16 medically determinable impairment that does not precisely satisfy the 17 diagnostic criteria for the following listed disorders: 12.04 Affective 18 Disorder; 19 Disorder. 20 Williams opined that plaintiff has functional limitations, including: 21 mild restriction in activities of daily activities; mild difficulties in 22 maintaining social functioning; and moderate difficulties in maintaining 23 concentration, persistence, or pace.2 24 however, that plaintiff s symptoms are either reduced or eliminated when 25 she complies with her medication regime and avoids abusing substances. 26 (A.R. 361-65.) (A.R. 358-72.) 12.06 Dr. Williams determined that plaintiff has a Anxiety (A.R. 361-65.) Disorder; and 12.09 Substance Addiction Notwithstanding this determination, Dr. (A.R. 367.) Dr. Williams noted, 27 2 28 He also noted decompensation. (Id.) that plaintiff 6 has had no episodes of 1 As part of his consultative review, Dr. Williams completed a 2 Mental Residual Functional Capacity Assessment ( Assessment ) 3 plaintiff. 4 entitled Summary Conclusions, the evaluator is directed to record 5 summary conclusions derived from the evidence in file with respect to 6 the individual s capacity to sustain [each mental] activity over a 7 normal workday and workweek, on an ongoing basis. 8 Assessment instructs the evaluator, however, to record a [d]etailed 9 explanation of the degree of limitation for each [of the four categories 10 of mental functioning], as well as any other assessment information 11 [he/she] deem[s] appropriate, . . . in Section III (Functional Capacity 12 Assessment). The Assessment consists of three sections. of In Section I, (A.R. 370.) The (Id.) 13 14 Section II of the Assessment, entitled Remarks, is to be 15 completed by the evaluator when there is insufficient documentation to 16 perform an accurate functional capacity assessment. 17 Assuming there are no such deficiencies, the evaluator completes Section 18 III of the Assessment, entitled Functional Capacity Assessment. 19 it, the evaluator explains his or her summary conclusions in narrative 20 form. 21 Summary 22 omitted.) (A.R. 372.) Conclusion (A.R. 370-71.) In Section III is to be filled out only after the section has been completed. (Id.; emphasis 23 24 As explained in the Social Security Program Operations Manual 25 System ( POMS ),3 [t]he purpose of [S]ection I ( Summary Conclusion ) 26 27 28 3 The Ninth Circuit has recognized that while the POMS does not have the force of law, it is persuasive authority. Warre v. Comm r of SSA, 439 F.3d 1001, 1005 (9th Cir. 2006). 7 1 . . . is chiefly to have a worksheet to ensure that the [evaluator] has 2 considered each of these pertinent mental activities and the claimant s 3 . . . degree of limitation for sustaining these activities over a normal 4 workday and workweek on an ongoing, appropriate, and independent basis. 5 POMS DI 25020.010(B)(1). 6 the narrative written by the [evaluator] in [S]ection III ( Functional 7 Capacity Assessment ) that adjudicators are to use as the assessment of 8 RFC. 9 assessment in [S]ection III and decide what significance the elements 10 discussed in this RFC assessment have in terms of the [claimant] s 11 ability to meet the mental demands of past work or other work. 12 (emphasis in original). (Id.) Significantly, the POMS notes that [i]t is Accordingly, the [a]judicators must take the RFC Id. 13 14 In the Understanding and Memory portion of Section I, Dr. 15 Williams found plaintiff to be: Moderately Limited in her ability to 16 understand and remember detailed instructions; and Not Significantly 17 Limited in her ability to understand very short and simple instructions 18 and remember locations and work-like procedures. (A.R. 370.) 19 20 In the Sustained Concentration and Persistence portion of Section 21 I, Dr. Williams found plaintiff to be Moderately Limited in her 22 ability to carry out detailed instructions, and Not Significantly 23 Limited 24 instructions; sustain an ordinary routine without special supervision; 25 and perform activities within a schedule, maintain regular attendance, 26 and be punctual within customary tolerances. 27 plaintiff to have No Evidence of Limitation in her ability to: 28 maintain attention and concentration for extended periods; (2) work in in her ability to: carry 8 out very short (Id.) and simple He also found (1) 1 coordination with or proximity to others without being distracted by 2 them; (3) make simple work-related decisions; and (4) complete a normal 3 workday and workweek without interruptions from psychologically based 4 symptoms and to perform at a consistent pace without an unreasonable 5 number and length of rest periods. (A.R. 370-71.) 6 7 In the Social Interaction portion of Section I, Dr. Williams 8 found plaintiff to be Not Significantly Limited in her ability to: 9 ask simple questions or request assistance; maintain socially 10 appropriate behavior; and adhere to basic standards of neatness and 11 cleanliness. (A.R. 371.) Dr. Williams also found plaintiff to have No 12 Evidence of Limitation in her ability to: 13 the general public; accept instructions and respond appropriately to 14 criticism from supervisors; and get along with coworkers or peers 15 without distracting them or exhibiting behavioral extremes. interact appropriately with (Id.) 16 17 Finally, in the Adaptation portion of Section I, Dr. Williams 18 found plaintiff to be: 19 realistic 20 Significantly Limited in her ability to be aware of normal hazards and 21 take appropriate precautions, and to travel in unfamiliar places or use 22 public transportation. 23 plaintiff s ability to respond appropriately to changes in the work 24 setting. goals or Moderately Limited in her ability to set make plans independently of others; and Not He also found No Evidence of Limitation in (Id.) 25 26 After completing Section I and finding no deficiencies in Section 27 II, Dr. Williams completed Section III of the Assessment. 28 opined, inter alia, that plaintiff 9 can relate Dr. Williams adequately, keep 1 appointments, and perform unskilled work that involves working with the 2 public. (A.R. 372.) 3 4 Contrary to plaintiff s contention, the ALJ committed no reversible 5 error in considering the opinion of Dr. Williams. In his decision, the 6 ALJ specifically referred to Dr. Williams April 7, 2008 Assessment. 7 (A.R. 13, 18.) 8 plaintiff to be moderately limited in her ability to understand, 9 remember and carry out detailed instructions and set realistic goals or The ALJ noted, for example, that Dr. Williams found 10 make plans independently of others. 11 that Dr. Williams rated [plaintiff] as having restrictions and/or 12 limitations in the broad areas of functioning under the B criteria of 13 Listings 12.04 and 12.09 to include mild limitations in daily living 14 activities 15 concentration and no episodes of decompensation. 16 ALJ specifically noted that Dr. Williams did not find any evidence of 17 [plaintiff] having limitations in the area of responding appropriately 18 to supervision and co-workers and usual work situations or in dealing 19 with changes in routine work settings. and social (A.R. 13.) functioning but The ALJ also noted moderate limitations (Id.) in Further, the (Id.) 20 21 Although the ALJ clearly considered the opinion of Dr. Williams in 22 assessing plaintiff s RFC, he ultimately gave more considerable weight 23 to the conclusions reached by plaintiff s treating physician, Elizabeth 24 Leonard, M.D., after plaintiff bec[a]me clean and sober. 4 25 As noted in the ALJ s decision, beginning in March 2008, plaintiff s (A.R. 16.) 26 27 28 4 The ALJ also noted that he gave weight to the program consultant s functional assessment of plaintiff to the extent it was consistent with that of Dr. Leonard. (A.R. 16.) 10 1 symptoms began to improve as plaintiff became more compliant with her 2 medication regime and stayed sober from alcohol and drugs. 3 By April 30, 2008, plaintiff s thoughts were noted as logical and 4 [plaintiff] denied having acute depressive or anxious symptoms. 5 13.) 6 control; and, on April 9, 2009[,] Dr. Leonard noted that [plaintiff] s 7 symptoms were increasingly under control; [and her] appearance, affect, 8 moods, attention, and speech were entirely appropriate. 9 also added that there was no psychosis, no substance abuse . . . . (A.R. 11.) (A.R. On July 23, 2008, plaintiff s symptoms were increasingly under [Dr. Leonard] 10 (Id.) Accordingly, based on Dr. Leonard s later treatment records -- 11 records which reflect plaintiff s improved condition when she complied 12 with her medication regime and did not abuse substances in and following 13 March 2008 -- the ALJ determined that plaintiff has the RFC to perform 14 medium work but is moderately limited in her ability to understand, 15 remember, and carryout [sic] detailed instructions and set realistic 16 goals or make plans independently of others. 5 (A.R. 16.) 17 18 Plaintiff claims that the ALJ committed error by failing to include 19 in his assessment of plaintiff s RFC the above described areas in which 20 Dr. Williams found plaintiff to be Not Significantly Limited. 21 initial matter, the ALJ properly gave greater weight to records from 22 plaintiff s treating source, Dr. Leonard, in assessing plaintiff s RFC. 23 Dr. Leonard s treatment records -- which either postdate or do not 24 appear to have been considered by Dr. Williams -- reflect plaintiff s 25 improved condition after becoming sober and complying As an with her 26 27 5 28 The ALJ also found that plaintiff was able to frequently perform gross hand and fine motor finger movements. (A.R. 16.) 11 1 medication regime.6 2 committed error in failing to include in his assessment of plaintiff s 3 RFC the Section I areas of the Assessment in which Dr. Williams found 4 plaintiff to 5 harmless. In Section III of the Assessment -- the section which the 6 POMS directs the ALJ to use in assessing plaintiff s RFC -- Dr. Williams 7 specifically found that plaintiff was capable of performing unskilled 8 work with the public, notwithstanding her mental limitations. 9 and as noted by the ALJ,7 Dr. Williams finding is not inconsistent with 10 the ALJ s determination that plaintiff can perform her past relevant 11 work as a housekeeper. 12 error in his consideration of the opinion of Dr. Williams. 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// be Moreover, even assuming arguendo that the ALJ Not Significantly Limited, any such error was As such, Accordingly, the ALJ committed no reversible 22 23 6 24 Significantly, as noted supra, Dr. Williams found that plaintiff s symptoms were either reduced or eliminated when she complied with her medication regime and did not abuse substances. 25 7 26 27 28 In finding plaintiff capable of performing her past relevant work, the ALJ noted that plaintiff demonstrates the ability to work with supervision and others as co-workers and to deal with others in a changing work setting. (A.R. 18.) The ALJ specifically noted that [t]his pattern of behavior is also consistent with the findings of Dr. Williams . . . who found no limitations in th[is] specific area. (Id.) 12 1 CONCLUSION 2 3 For the foregoing reasons, the Court finds that the Commissioner s 4 decision is supported by substantial evidence and is free from material 5 legal error. Neither reversal of the Commissioner s decision nor remand 6 is warranted. 7 8 Accordingly, IT IS ORDERED that Judgment shall be entered affirming 9 the decision of the Commissioner of the Social Security Administration. 10 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 11 this Memorandum Opinion and Order and the Judgment on counsel for 12 plaintiff and for the Commissioner. 13 14 LET JUDGMENT BE ENTERED ACCORDINGLY. 15 16 DATED: February 8, 2012 17 18 19 MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 13

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