(SS) Plambeck v. Commissioner of Social Security, No. 1:2008cv01092 - Document 16 (E.D. Cal. 2009)
Court Description: DECISION and ORDER DENYING Plaintiff's Social Security Complaint; ORDER DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Mark Plambeck, signed by Magistrate Judge Sandra M. Snyder on 8/14/2009. CASE CLOSED. (Jessen, A)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 MARK PLAMBECK, 11 Plaintiff, v. 12 MICHAEL J. ASTRUE, 13 COMMISSIONER OF SOCIAL SECURITY, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01092-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF MARK PLAMBECK 16 17 Plaintiff is proceeding in forma pauperis and with counsel 18 with an action seeking judicial review of a final decision of the 19 Commissioner of Social Security (Commissioner) denying 20 Plaintiff s application of August 11, 2005, for Supplemental 21 Security Income benefits in which he had claimed to have been 22 disabled since January 1, 2004,1 due to anti-social, 23 schizophrenic, paranoid personality; depression; and anxiety. 24 (A.R. 331, 339.) The parties have consented to the jurisdiction 25 of the United States Magistrate Judge pursuant to 28 U.S.C. § 26 1 27 Originally Plaintiff identified January 1, 1991, as the date his disability commenced, but he subsequently amended the date. (A.R. 18, 340, 344.) 28 1 1 636(c)(1), and pursuant to the order of Judge Anthony W. Ishii 2 filed August 27, 2008, the matter has been assigned to the 3 Magistrate Judge to conduct all further proceedings in this case, 4 including entry of final judgment. 5 The decision under review is that of Social Security 6 Administration (SSA) Administrative Law Judge (ALJ) Christopher 7 Larsen, dated September 26, 2007 (A.R. 18-24), rendered after a 8 hearing held August 27, 2007, at which Plaintiff appeared and 9 testified with the assistance of counsel (A.R. 18, 524-55). The 10 Appeals Council denied Plaintiff s request for review on April 11 11, 2008 (A.R. 10-12), and thereafter Plaintiff filed his 12 complaint in this Court on July 25, 2008. Briefing commenced on 13 February 27, 2009, and was completed with the filing of 14 Plaintiff s reply on April 13, 2009. The matter has been 15 submitted without oral argument to the undersigned Magistrate 16 Judge. 17 I. Standard and Scope of Review 18 Congress has provided a limited scope of judicial review of 19 the Commissioner's decision to deny benefits under the Act. In 20 reviewing findings of fact with respect to such determinations, 21 the Court must determine whether the decision of the Commissioner 22 is supported by substantial evidence. 42 U.S.C. § 405(g). 23 Substantial evidence means "more than a mere scintilla," 24 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 25 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 26 (9th Cir. 1975). It is "such relevant evidence as a reasonable 27 mind might accept as adequate to support a conclusion." 28 2 1 Richardson, 402 U.S. at 401. The Court must consider the record 2 as a whole, weighing both the evidence that supports and the 3 evidence that detracts from the Commissioner's conclusion; it may 4 not simply isolate a portion of evidence that supports the 5 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 6 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 7 It is immaterial that the evidence would support a finding 8 contrary to that reached by the Commissioner; the determination 9 of the Commissioner as to a factual matter will stand if 10 supported by substantial evidence because it is the 11 Commissioner s job, and not the Court s, to resolve conflicts in 12 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 13 Cir. 1975). 14 In weighing the evidence and making findings, the 15 Commissioner must apply the proper legal standards. Burkhart v. 16 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 17 review the whole record and uphold the Commissioner's 18 determination that the claimant is not disabled if the 19 Commissioner applied the proper legal standards, and if the 20 Commissioner's findings are supported by substantial evidence. 21 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 22 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 23 the Court concludes that the ALJ did not use the proper legal 24 standard, the matter will be remanded to permit application of 25 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 26 Cir. 1987). 27 ///// 28 3 1 2 3 II. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 4 that she is unable to engage in substantial gainful activity due 5 to a medically determinable physical or mental impairment which 6 has lasted or can be expected to last for a continuous period of 7 not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A 8 claimant must demonstrate a physical or mental impairment of such 9 severity that the claimant is not only unable to do the 10 claimant s previous work, but cannot, considering age, education, 11 and work experience, engage in any other kind of substantial 12 gainful work which exists in the national economy. 42 U.S.C. 13 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 14 Cir. 1989). The burden of establishing a disability is initially 15 on the claimant, who must prove that the claimant is unable to 16 return to his or her former type of work; the burden then shifts 17 to the Commissioner to identify other jobs that the claimant is 18 capable of performing considering the claimant's residual 19 functional capacity, as well as her age, education and last 20 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 21 1273, 1275 (9th Cir. 1990). 22 The regulations provide that the ALJ must make specific 23 sequential determinations in the process of evaluating a 24 disability: 1) whether the applicant engaged in substantial 25 gainful activity since the alleged date of the onset of the 26 impairment, 2) whether solely on the basis of the medical 27 evidence the claimed impairment is severe, that is, of a 28 4 1 magnitude sufficient to limit significantly the individual s 2 physical or mental ability to do basic work activities; 3) 3 whether solely on the basis of medical evidence the impairment 4 equals or exceeds in severity certain impairments described in 5 Appendix I of the regulations; 4) whether the applicant has 6 sufficient residual functional capacity, defined as what an 7 individual can still do despite limitations, to perform the 8 applicant s past work; and 5) whether on the basis of the 9 applicant s age, education, work experience, and residual 10 functional capacity, the applicant can perform any other gainful 11 and substantial work within the economy. See 20 C.F.R. § 416.920. 12 13 B. Findings The ALJ found that Plaintiff had severe impairments of 14 depressive disorder, psychotic disorder, not otherwise specified, 15 and an antisocial disorder. (A.R. 20.) However, Plaintiff had no 16 impairment or combination thereof that met or medically equaled a 17 listed impairment, and he had a residual functional capacity 18 (RFC) to perform a full range of work at all exertional levels, 19 and could understand, remember, and carry out simple one-step or 20 two-step job instructions with limited contact with the general 21 public. (A.R. 21.) Although Plaintiff, who was born on August 15, 22 1957, and was forty-eight years old on the date he applied for 23 benefits, had no past relevant work, the ALJ considered the 24 testimony of a vocational expert (VE) and concluded that in light 25 of Plaintiff s high school education, work experience, residual 26 functional capacity, and ability to communicate in English, 27 Plaintiff could perform jobs that existed in significant numbers 28 5 1 in the national economy, including industrial cleaner, with 2 117,076 unskilled positions in California, and about nine times 3 as many in the United States, including sweeper-cleaner, DOT 4 389.683-010; laborer, with 55,436 jobs in California and about 5 nine times that many in the United States, including battery 6 stacker, DOT 727.687-030; and hand packer, with 16,073 jobs in 7 California and about nine times as many in the United States, 8 including hand packer, DOT 920.587018. (A.R. 23-24.) Thus, under 9 the framework of Medical-Vocational Guideline 204.00, Plaintiff 10 was not under a disability within the meaning of the Social 11 Security Act (Act) since August 11, 2005, the date he filed his 12 application. (A.R. 18.) 13 III. Treatment of State Agency Medical Consultant s Opinion 14 Plaintiff asserts that state agency medical consultant Dr. 15 A. Middleton, Ph.D., was the only doctor who diagnosed Plaintiff 16 with a personality disorder, and that the ALJ adopted that 17 diagnosis; however, the ALJ apparently failed to adopt Dr. 18 Middleton s opinion that Plaintiff had moderate impairments in 19 the ability to interact with the general public or to get along 20 with coworkers, supervisors, or peers without distracting them or 21 exhibiting behavioral extremes, and thus that Plaintiff had to 22 have only limited close contact with coworkers and the public. In 23 stating Plaintiff s RFC, the ALJ limited Plaintiff to limited 24 contact with the general public but did not impose a limit on his 25 contact with coworkers. Plaintiff argues that the ALJ failed to 26 state adequate reasons for discounting the state agency 27 physician s opinion, and specifically the limitation on contact 28 6 1 with coworkers, and further that the RFC found by the ALJ lacked 2 the support of substantial evidence because the limitations 3 adopted were imposed by a doctor who did not diagnose a 4 personality disorder. 5 6 A. Legal Standards An ALJ may disregard a treating physician s opinion that is 7 controverted by other opinions only by setting forth specific, 8 legitimate reasons for doing so that are based on substantial 9 evidence in the record. Rodriguez v. Bowen, 876 F.2d 759, 762 (9th 10 Cir. 1989). This burden is met by stating a detailed and thorough 11 summary of the facts and conflicting clinical evidence, stating 12 the interpretation of the evidence, and making findings. Cotton 13 v. Bowen, 799 F.2d 1403, 1408 (9th Cir 1986). However, if the 14 medical opinion of a claimant s treating physician is 15 uncontroverted, then an ALJ must present clear and convincing 16 specific reasons, supported by substantial evidence in the 17 record, for rejecting the uncontroverted medical opinion of a 18 claimant s treating physician. Holohan v. Massanari, 246 F.3d 19 1195, 1203 (9th Cir. 2001). A failure to set forth a reasoned 20 rationale for disregarding a particular treating physician s 21 findings is legal error. Cotton v. Bowen, 799 F.2d at 1408. 22 The medical opinion of a nontreating doctor may be relied 23 upon instead of that of a treating physician only if the ALJ 24 provides specific and legitimate reasons supported by substantial 25 evidence in the record. Holohan v. Massanari, 246 F.3d 1195, 1202 26 (9th Cir. 2001) (citing Lester v. Chater, 81 F.3d 821, 830 (9th 27 Cir. 1995)). The contradictory opinion of a nontreating but 28 7 1 examining physician constitutes substantial evidence, and may be 2 relied upon instead of that of a treating physician, where it is 3 based on independent clinical findings that differ from those of 4 the treating physician. Andrews v. Shalala, 53 F.3d 1035, 1041 5 (9th Cir. 1995). The opinion of a nontreating, nonexamining 6 physician can amount to substantial evidence as long as it is 7 supported by other evidence in the record, such as the opinions 8 of other examining and consulting physicians, which are in turn 9 based on independent clinical findings. Andrews v. Shalala, 53 10 F.3d at 1041. 11 With respect to disability determinations, various factors 12 are pertinent to evaluating expert opinions: 13 27 By rule, the Social Security Administration favors the opinion of a treating physician over non-treating physicians. See 20 C.F.R. § 404.1527. If a treating physician's opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record, [it will be given] controlling weight. Id. § 404.1527(d)(2). If a treating physician's opinion is not given controlling weight because it is not well-supported or because it is inconsistent with other substantial evidence in the record, the Administration considers specified factors in determining the weight it will be given. Those factors include the [l]ength of the treatment relationship and the frequency of examination by the treating physician; and the nature and extent of the treatment relationship between the patient and the treating physician. Id. § 404.1527(d)(2)(i)-(ii). Generally, the opinions of examining physicians are afforded more weight than those of non-examining physicians, and the opinions of examining non-treating physicians are afforded less weight than those of treating physicians. Id. § 404.1527(d)(1)-(2). Additional factors relevant to evaluating any medical opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence that supports the opinion and the quality of the explanation provided; the consistency of the medical opinion with the record as a whole; the specialty of the physician 28 8 14 15 16 17 18 19 20 21 22 23 24 25 26 1 2 3 providing the opinion; and [o]ther factors such as the degree of understanding a physician has of the Administration's disability programs and their evidentiary requirements and the degree of his or her familiarity with other information in the case record. Id. § 404.1527(d)(3)-(6). 4 Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 5 With respect to proceedings under Title XVI, the Court notes 6 that an identical regulation has been promulgated. See, 20 C.F.R. 7 § 416.927. 8 B. Background 9 The ALJ set forth a relatively detailed review of the 10 evidence concerning Plaintiff s mental impairments. 11 In identifying the severe impairments of Plaintiff, the ALJ 12 relied on various opinions. 13 In concluding that Plaintiff had a depressive disorder, the 14 ALJ relied on a parole evaluation performed on January 31, 2005, 15 by Hugh Jones, L.C.S.W., a psychiatric social worker at a parole 16 outpatient clinic which Plaintiff visited as a condition of his 17 parole. (A.R. 20, 422-23.) Jones ruled out schizophrenia (A.R. 18 422), but he opined that Plaintiff had a major depressive 19 disorder, recurrent, in partial remission; and polysubstance 20 dependence (Plaintiff had been arrested in 1986 for using crank, 21 and he had used cocaine, marijuana, speed, and heroin, and had 22 admitted that he had been using speed and cocaine just prior to 23 his arrest). (A.R. 422.) Jones also diagnosed antisocial 24 personality disorder with narcissistic traits with psycho-social 25 stressors of adjustment to non-prison environment and not 26 returning to criminal activity. (Id. at 422-23.) Jones noted that 27 28 9 1 Plaintiff had depressed mood; he claimed to have audio 2 hallucinations, but there was no evidence of them at the time of 3 the evaluation. Memory and cognition were intact, judgment and 4 insight were impaired, and Plaintiff was oriented with clear and 5 intact thought process. (Id.) Jones assigned a GAF of 68.2 6 In concluding that Plaintiff had a severe impairment of a 7 psychotic disorder, not otherwise specified, the ALJ relied on 8 the opinion of Dr. Ekram Michiel, a psychiatrist who evaluated 9 Plaintiff on October 7, 2005, in the course of a psychiatric 10 evaluation undertaken at the request of the DSS, and who had 11 previously evaluated Plaintiff in April 2003 for the department. 12 (A.R. 20, 426-29, 215-18.) Plaintiff complained of feeling sad 13 and hearing voices, which came and went; he did not listen to 14 them, but they tried to persuade him to do bad things. He also 15 stated he saw shadows and felt things touching him. (A.R. 426.) 16 He claimed not to tolerate people, who caused him to get nervous 17 and angry, to stay away from people, and to suffer disrupted 18 sleep because the shadows sometimes made him scared. (Id.) He had 19 no psychiatric hospitalization in his history and was under the 20 care of parole mental health, who prescribed his medication, 21 which included Bupropion, HCL, and Seroquel. (A.R. 426.) He 22 23 24 25 26 2 A GAF, or global assessment of functioning, is a report of a clinician s judgment of the individual s overall level of functioning that is used to plan treatment and to measure the impact of treatment as well as to predict its outcome. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders at 32 (4 th ed., text revision) (DSM-IVTR). A GAF of 68 indicates a person with some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but who is generally functioning pretty well and has some meaningful interpersonal relationships. Id. at 34. 27 28 10 1 graduated from high school and was imprisoned for twenty years, 2 last having been released in August 2005. He completed activities 3 of daily living on his own and attended Fresno City College three 4 days a week. 5 With respect to Dr. Michiel s mental status exam, 6 Plaintiff s attitude and behavior were normal; he was oriented in 7 intellectual functioning and could recall three out of three 8 objects in five minutes. His insight and judgment were intact, 9 his thought process was goal-directed, and there was no evidence 10 of any distraction or response to internal stimuli during the 11 interview. Plaintiff s mood was depressed and affect restricted. 12 (A.R. 428.) 13 On Axis I, Dr. Michiel diagnosed psychotic disorder, not 14 otherwise specified, and deferred diagnoses on Axis II, with 15 stressors being social condition; the GAF was 65. (A.R. 428.) 16 Dr. Michiel opined that Plaintiff was able to maintain 17 attention and concentration and to carry out one or two-step 18 simple job instructions but was unable to carry out technical 19 and/or complex instructions; he could relate and interact 20 appropriately with coworkers, supervisors, and the general 21 public. (A.R. 428.) 22 In concluding that Plaintiff had an antisocial disorder, the 23 ALJ cited to an opinion rendered in a clinical mental health 24 assessment performed by a Frederic W. Lee, L.M.F.T., on December 25 29, 2004, at First Step Outreach of the Turning Point from the 26 Fresno County Mental Health Plan, at a time when Plaintiff was 27 homeless. (A.R. 20, 496, 496-503.) Lee noted significant 28 11 1 impairment in living arrangement and social support due to 2 Plaintiff s homelessness and lack of a positive social support 3 system; Lee also noted significant impairment in daily activities 4 because Plaintiff lacked organized daily activities and 5 exercise. (A.R. 498.) Plaintiff complained of mild anger, 6 anxiety, and fatigue; moderate feelings of hopelessness, sleep 7 disturbance, and isolation or social withdrawal; and mild to 8 moderate hallucinations/delusions. (A.R. 498.) The plan was to 9 encourage Plaintiff to initiate and increase his social and 10 recreational activities with others within the treatment program 11 and the community, and to comply with all prescribed medications, 12 discontinue use of caffeinated products, and engage in a 13 medically approved exercise program. His prognosis was good. 14 (A.R. 498.) Lee noted appropriate affect, no hyperactivity or 15 traumatic stress, adequate cognitive performance, and good 16 health. (A.R. 496.) Plaintiff had a moderate to severe problem 17 with depression for over a year, anxiety, a slight to moderate 18 problem with hallucinations, and severe to extreme problems with 19 work and school, where he had been expelled or terminated and was 20 not employed, and with stealing, in which he had been involved 21 for some twenty years. He was not a danger to himself or others. 22 (A.R. 496.) Lee diagnosed Plaintiff with Axis I, major depressive 23 disorder with psychotic features, and Axis II, antisocial 24 personality disorder, with a then-current GAF of 53. (A.R. 496.)3 25 27 3 Dr. Xavier Lara, M.D., assessed Plaintiff on December 3, 2004 (A.R. 414), and concluded that at Axis I, Plaintiff had a mood disorder not otherwise specified, rule out dysthymic disorder, rule out bipolar disorder; on Axis II, Plaintiff had antisocial traits; current GAF was in the 80's. (A.R. 414.) Dr. Lara opined that Plaintiff needed to be involved in a rehabilitation program, and to continue with the parole doctor s instructions for medications. 28 12 26 1 The ALJ considered the severity of Plaintiff s mental 2 impairments in connection with determining that Plaintiff s 3 impairments did not meet or medically equal listed impairments, 4 namely, Listings 12.03 (schizophrenic, paranoid, and other 5 psychotic disorders), 12.04 (affective disorders), and 12.08 6 (personality disorders). (A.R. 20.) He specifically found that 7 Plaintiff was not restricted in activities of daily living based 8 on Plaintiff s own reports of a variety of daily activities. 9 (A.R. 20-21.) 10 The ALJ further found that Plaintiff had only mild 11 difficulties in social functioning. (A.R. 21.) The ALJ noted 12 Plaintiff s statements in his function reports of April 2006 and 13 August 2005, in which Plaintiff indicated he had problems getting 14 along with others and had an antisocial personality. (A.R. 21 15 [citing to A.R. 369, 391].) However, the ALJ noted substantial 16 evidence in the record that reflected that in mental status exams 17 that took place in and about March 2003, December 2004, and 18 January and October 2005, Plaintiff s GAF was stated to be 19 between 65 and 80. (A.R. 21, 414, 423, 425, 428, 497.) The ALJ 20 reasoned that according to the DSM-IV-TR, a GAF of 61 through 70 21 indicates only mild symptoms in social, occupational, or school 22 functioning, and a GAF of 71 to 80 indicates no more than a 23 slight impairment in social, occupational, or school functioning. 24 (A.R. 21.) 25 This is a correct observation. As noted above, a GAF of 61 26 through 70 indicates a person with some mild symptoms (e.g., 27 depressed mood and mild insomnia) or some difficulty in social, 28 13 1 occupational, or school functioning (e.g., occasional truancy, or 2 theft within the household), but who is generally functioning 3 pretty well and has some meaningful interpersonal relationships. 4 American Psychiatric Association, Diagnostic and Statistical 5 Manual of Mental Disorders at 34 (4th ed., text revision) (DSM-IV6 TR). Id. at 34. A GAF of 71 through 80 indicates that if symptoms 7 are present, they are transient and expectable reactions to 8 psycho-social stressors (e.g., difficulty concentrating after 9 family argument); and no more than slight impairment in social, 10 occupational, or school functioning (e.g., temporarily falling 11 behind in schoolwork). DSM-TR at 34. A GAF of 81 through 90 12 indicates absent or minimal symptoms (e.g., mild anxiety before 13 an exam), good functioning in all areas, interested and involved 14 in a wide range of activities, socially effective, generally 15 satisfied with life, and no more than everyday problems or 16 concerns (e.g., an occasional argument with family members). DSM17 TR at 34. 18 Finally, the ALJ concluded that with respect to 19 concentration, persistence, or pace, Plaintiff, who claimed an 20 inability to concentrate for more than an hour and one-half and 21 to have problems with concentration and memory, had mild 22 difficulties because he was taking eight units at Fresno City 23 College and was considered to be very intelligent and looking for 24 free handouts whenever available by his parole officer. ( 25 A.R. 21.) 26 The ALJ then specifically concluded that the paragraph B 27 criteria regarding severity were not satisfied because of the 28 14 1 absence of at least two marked limitations or one marked 2 limitation and repeated episodes of decompensation; he further 3 noted the opinions of Dr. Michiel in April 2003 and October 2005 4 to the effect that Plaintiff could maintain attention and 5 concentration sufficient to carry out one-step and two-step, 6 simple job instructions. (A.R. 21.) The ALJ continued: 7 8 9 10 11 12 13 The limitations identified in the paragraph B criteria are not a residual functional capacity assessment, but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p). Accordingly, I have translated the above B criteria findings into work-related functions in the residual functional capacity assessment below. 14 (A.R. 21.) 15 The ALJ s analysis of Plaintiff s RFC included a rejection 16 of Plaintiff s subjective complaints of inability to work because 17 of psychosis, dizziness, inability to read, poor memory, visual 18 hallucinations, lack of sleep with Elavil, suicidal thoughts, and 19 lack of motivation. (A.R. 22.) In the course of the analysis, the 20 ALJ detailed 1) the mild findings of the professional exam 21 undertaken at the parole outpatient clinic in March 2003 22 (slightly flat affect, depressed and anxious mood, poor eye 23 contact and arrogant attitude), the diagnosis previously noted, 24 and the GAF of 68 (A.R. 22, 424-25); 2) the referral in February 25 2006 of Plaintiff by Plaintiff s parole agent to Westcare 26 Rehabilitation for long-term residential drug and alcohol, 27 28 15 1 employment, and mental health counseling, and the following 2 discharge of Plaintiff from the program less than a month later 3 because Plaintiff was unable to attend school if he remained in 4 the program (A.R. 22, 505, 508-09); and 3) the opinion of Dr. 5 Michiel, the consulting, examining psychiatrist who had examined 6 Plaintiff in October 2005 as well as earlier in April 2003, to 7 the effect that Plaintiff, who claimed to be nervous and angry 8 around people, exhibited an essentially normal mental status exam 9 with the exception of a depressed mood and restricted affect with 10 reports of auditory and visual hallucinations, and had a 11 psychotic disorder, not otherwise specified, with a GAF of 65 12 (A.R. 22, 426-29, 215-18 (60 to 65 in 2003). Dr. Michiel 13 specifically found in April 2003 and October 2005 that Plaintiff 14 was able to maintain adequate attention and concentration and to 15 carry out one-step or two-step simple job instructions but not an 16 extensive variety of technical and/or complex instructions; 17 further, he was able to relate and interact appropriately with 18 coworkers, supervisors, and the general public. (A.R. 218, 428.) 19 The ALJ then concluded: 20 21 Weighing all the relevant factors, I find Mr. Plambeck s mental impairments are not as severe as he alleges for the reasons discussed above. 22 (A.R. 23.) The ALJ thus discounted the extent of Plaintiff s 23 claimed subjective limitations.4 24 25 26 27 28 4 The ALJ properly considered factors such as Plaintiff s activities, whether his treatment was conservative, and lack of medical findings. See A.R. at 16-17; Soc. Sec. Ruling 96-7p and 404.1525c(4)(1)(viii), 416.929(c)(4)(1)(vii); Smolen v. Chater, 1284 (9th Cir. 1996); Bunnell v. Sullivan, 947 F.2d at 346 (9th support of his findings concerning Plaintiff s credibility, the 16 daily objective 20 C.F.R. §§ 80 F.3d 1273, Cir. 1991). In ALJ 1 After addressing the severity of Plaintiff s impairments and 2 the evaluation of Plaintiff s subjective complaints, the ALJ s 3 decision concerning Plaintiff s RFC then continued with the 4 following concerning the opinion evidence: 5 6 7 8 9 10 11 As for the opinion evidence, the state-agency medical consultants concluded Mr. Plambeck is moderately limited in his ability to interact appropriately with the public and get along with coworkers or peers without distracting them (Exhibit B-7F, pp. 2-3). Consultative psychiatrist Dr. Michiel concluded Mr. Plambeck can maintain attention and concentration and carry out one or two step simple job instructions (Exhibit B-5F, p. 3). I give more weight to Dr. Michiel s medical opinion as an examining source. Furthermore, none of the social workers, psychiatrists, or psychologists who evaluated Mr. Plambeck precluded him from working because of his mental impairments. 12 (A.R. 23.) 13 14 C. Analysis The ALJ appropriately gave greater weight to the opinion of 15 an examining physician than to the state agency physicians with 16 respect to the extent of Plaintiff s ability to get along with 17 and interact appropriately with coworkers, peers, and the public. 18 Substantial evidence supports the ALJ s reasoning concerning 19 the functionality attributed to Plaintiff by the medical sources. 20 In the RFC assessment, Dr. Middleton found no functional 21 limitations in understanding and memory, sustained concentration 22 and persistence, social interaction, and adaptation, with the 23 exception of moderate limitations of the ability to interact 24 appropriately with the general public and of the ability to get 25 along with coworkers or peers without distracting them or 26 27 28 articulated clear and convincing reasons supported by substantial evidence. 17 1 exhibiting behavioral extremes. Dr. Middleton elaborated that 2 Plaintiff was capable of performing detailed directions; 3 Middleton stated without further explanation, Limited close 4 contact with coworkers and the public, and specified that 5 Plaintiff was capable of adapting to the usual changes of a work 6 setting. (A.R 458-60.) 7 On October 16, 2006, a psychiatric review technique 8 completed by A.R. Garcia revealed an assessment that Plaintiff 9 had impairments that were not severe, including schizophrenic, 10 paranoid and other psychotic disorders, and substance addiction 11 disorders. (A.R. 485.) 12 With respect to diagnoses, the ALJ here adverted to several 13 opinions, which were not identical. However, the ALJ adopted the 14 diagnoses of the treating sources, Jones and Lee, concerning 15 major depressive disorder and anti-social personality disorder, 16 respectively; he relied on Dr. Michiel with respect to a 17 psychotic disorder. (A.R. 20.) This did not constitute a 18 rejection of Dr. Michiel s opinion as to an anti-social or 19 personality disorder because Dr. Michiel did not make a contrary 20 diagnosis; he merely deferred diagnosis as to Axis II. (A.R. 428, 21 217.) No error is claimed with respect to this portion of the 22 decision. 23 The ALJ adverted to the opinion of the state agency medical 24 consultant, A. Middleton, Ph.D., expressed in the mental residual 25 functional capacity assessment of Plaintiff dated November 17, 26 2005. (A.R. 23, 458-60.) The ALJ then explained that less weight 27 was being put on the state agency consultants opinion of 28 18 1 moderate limitations because Dr. Michiel, the consulting 2 physician, had examined Plaintiff, and his opinion concerning 3 Plaintiff s various functionalities was consistent with those of 4 the social workers, psychiatrists, and psychologists who had 5 evaluated Plaintiff, none of whom had precluded Plaintiff from 6 working because of his mental impairments. (A.R. 23.) The ALJ 7 noted that Dr. Michiel had concluded that Plaintiff could 8 maintain attention and concentration. (A.R. 23.) The ALJ also 9 relied on the fact that Dr. Michiel was an examining source, 10 whereas the state agency physician had not examined Plaintiff. 11 (A.R. 23.) 12 The ALJ appropriately relied on Dr. Michiel s examination 13 and on the overall consistency of the evaluating sources s 14 opinions concerning Plaintiff s ability to work with Dr. 15 Michiel s opinion. Generally, the opinions of examining 16 physicians are afforded more weight than those of non-examining 17 physicians, and the opinions of examining non-treating physicians 18 are afforded less weight than those of treating physicians. Id. § 19 404.1527(d)(1)-(2). Additional factors relevant to evaluating any 20 medical opinion, not limited to the opinion of the treating 21 physician, include the amount of relevant evidence that supports 22 the opinion and the quality of the explanation provided; the 23 consistency of the medical opinion with the record as a whole; 24 the specialty of the physician providing the opinion; and 25 [o]ther factors such as the degree of understanding a physician 26 has of the Administration's disability programs and their 27 evidentiary requirements and the degree of his or her 28 19 1 familiarity with other information in the case record. 20 C.F.R. 2 sec. 416.927(d); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 3 Here, given the fact that the experts and evaluators were 4 operating in the field of treatment of mental illness, it is 5 reasonable in the special circumstances of this case to 6 anticipate that the professionals to whom the ALJ referred, 7 namely, social workers, psychiatrists, and psychologists, would 8 all naturally and logically have been expected to have been 9 concerned with Plaintiff s functionality and ability to work, and 10 they would have noted any limitation of Plaintiff s abilities had 11 it been observed. Thus, the absence of any opinion is a specific 12 and legitimate reason in the context of the present case. 13 The ALJ s reasoning concerning Plaintiff s subjective 14 complaints covered inconsistently mild findings during 15 examinations, Plaintiff s inconsistent daily activities of 16 studying at the community college level, and his choice of school 17 over counseling. It is significant that the inability to get 18 along with peers/coworkers, the matter that lies at the heart of 19 Plaintiff s argument, is contradicted by the factors so important 20 to the ALJ, including Plaintiff s success at school and the 21 relative unimportance of treatment for his mental impairments in 22 Plaintiff s plan of recovery or rehabilitation. 23 In summary, the Court concludes that the ALJ adverted to the 24 significant evidence and stated specific, legitimate reasons for 25 weighing the opinions in question. Substantial evidence supports 26 the ALJ s conclusions. 27 28 The fact that Dr. Michiel did not specifically diagnose an 20 1 antisocial personality or personality disorder does not undermine 2 the support that Dr. Michiel s opinion of Plaintiff s 3 functionality otherwise gives to the ALJ s conclusion concerning 4 Plaintiff s RFC. 5 First, as a general principle, it is not necessary to agree 6 with everything an expert witness says in order to hold that his 7 testimony contains substantial evidence, where the bases for the 8 opinion were supported by objective medical evidence. Magallanes 9 Bowen, 881 F.2d 747, 753 (9th Cir. 1989). 10 Further, the Court notes that Dr. Michiel did not rule out 11 an antisocial personality or personality disorder; rather, he 12 simply deferred diagnosis on Axis II. It does not appear that the 13 absence of an affirmative diagnosis by Dr. Michiel significantly 14 undercuts his opinion about Plaintiff s ability to interact 15 appropriately with others, including peers, coworkers, and the 16 public. Dr. Michiel examined Plaintiff twice. He took a detailed 17 history and reviewed medical records. (A.R. 426.) He performed a 18 complete mental status examination and recorded detailed findings 19 in his report, matters which the ALJ expressly found worthy of 20 great weight. 21 Further, it is noteworthy that Dr. Middleton s own 22 psychiatric review technique, dated the same day as his RFC 23 assessment, reflects that Dr. Middleton assessed and endorsed the 24 necessity of an RFC assessment based on various medical 25 categories, including schizophrenic, paranoid and other psychotic 26 disorders, and specifically, psychotic features and 27 deterioration, a medically determinable impairment of psychosis 28 21 1 not otherwise specified. (A.R. 461, 463.) Dr. Middleton did not 2 assess an affective disorder (A.R. 464), an anxiety-related 3 disorder (A.R. 466), or a personality disorder (A.R. 468). 4 Further, the functional limitations assessed revealed only mild 5 difficulties in maintaining social functioning and maintaining 6 concentration, persistence, or pace. (A.R. 471.) 7 In summary, the Court concludes that the ALJ stated legally 8 sufficient reasons, supported by substantial evidence, for 9 crediting the opinion of Dr. Michiel. 10 The Court is mindful of the fundamental limitation of 11 review operative in this case, namely, that this Court is limited 12 to reviewing the findings of the ALJ and to reviewing the 13 specific facts and reasons that the ALJ asserts. Connett v. 14 Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). With respect to 15 significant, probative evidence, such as an expert opinion, an 16 ALJ must explicitly reject the opinion and set forth specific 17 reasons of the requisite force for doing so. Nguyen v. Chater, 18 100 F.3d 1462, 1464 (9th Cir. 1996). The district court cannot 19 make findings for the ALJ. Id. A district court cannot affirm the 20 judgment of an agency on a ground the agency did not invoke in 21 making its decision. Pinto v. Massanari, 249 F.3d 840, 847-48 (9th 22 Cir. 2001). The authorities thus reflect the fundamental 23 principle that the ALJ s opinion must contain sufficient findings 24 to permit intelligent judicial review, particularly with respect 25 to significant probative evidence. Vincent v. Heckler, 739 F.2d 26 1393, 1395 (9th Cir. 1984). 27 28 Based on is review, the court concludes that the decision 22 1 before the Court adequately states the ALJ s reasoning with 2 respect to the pertinent opinions. 3 IV. Disposition 4 Based on the foregoing analysis, the Court concludes that 5 the ALJ s decision was supported by substantial evidence in the 6 record as a whole and was based on the application of correct 7 legal standards. 8 Accordingly, the Court AFFIRMS the administrative decision 9 of the Defendant Commissioner of Social Security and DENIES 10 Plaintiff s Social Security complaint. 11 The Clerk of the Court IS DIRECTED to enter judgment for 12 Defendant Michael J. Astrue, Commissioner of Social Security, 13 and against Plaintiff Mark Plambeck. 14 15 IT IS SO ORDERED. 16 Dated: icido3 17 August 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 23
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