(SS) Alvarez v. Commissioner of Social Security, No. 1:2008cv01205 - Document 16 (E.D. Cal. 2009)
Court Description: DECISION and ORDER DENYING Plaintiff's Social Security Complaint 2 ; ORDER DIRECTING the Entry of Judgment for Defendant Michael J. Astrue, Commissioner of Social Security, and Against Plaintiff Arturo Alvarez, signed by Magistrate Judge Sandra M. Snyder on 8/14/09: The administrative decision of the Defendant is AFFIRMED and Plaintiff's Social Security complaint is DENIED. (Hellings, J)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 ARTURO ALVAREZ, 10 Plaintiff, 11 v. 12 MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL 13 SECURITY, 14 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) 1:08-cv-01205-SMS DECISION AND ORDER DENYING PLAINTIFF S SOCIAL SECURITY COMPLAINT (DOC. 2) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF ARTURO ALVAREZ 16 Plaintiff is proceeding in forma pauperis and with counsel 17 with an action seeking judicial review of a final decision of the 18 Commissioner of Social Security (Commissioner) denying 19 Plaintiff s application of December 7, 2005, for Supplemental 20 Security Income (SSI) benefits in which he had claimed to have 21 been disabled since January 1, 2002, due to phobia, 22 schizophrenia, depression, anxiety, and chest pain. (A.R. 69, 9323 94, 112.) The parties have consented to the jurisdiction of the 24 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), 25 and pursuant to the order of Judge Lawrence J. O Neill filed 26 September 18, 2008, the matter has been assigned to the 27 Magistrate Judge to conduct all further proceedings in this case, 28 1 1 including entry of final judgment. 2 The decision under review is that of Social Security 3 Administration (SSA) Administrative Law Judge (ALJ) Bert C. 4 Hoffman, Jr., dated January 24, 2008 (A.R. 10-16), rendered after 5 a hearing held November 13, 2007, at which Plaintiff appeared and 6 testified with the assistance of counsel (A.R. 10, 241-76). The 7 Appeals Council denied Plaintiff s request for review on June 25, 8 2008 (A.R. 2-4), and thereafter Plaintiff filed his complaint in 9 this Court on August 13, 2008. Briefing commenced on April 1, 10 2009, and was completed with the filing of Plaintiff s reply on 11 May 12, 2009. The matter has been submitted without oral argument 12 to the undersigned Magistrate Judge. 13 I. Standard and Scope of Review 14 Congress has provided a limited scope of judicial review of 15 the Commissioner's decision to deny benefits under the Act. In 16 reviewing findings of fact with respect to such determinations, 17 the Court must determine whether the decision of the Commissioner 18 is supported by substantial evidence. 42 U.S.C. § 405(g). 19 Substantial evidence means "more than a mere scintilla," 20 Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a 21 preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 22 (9th Cir. 1975). It is "such relevant evidence as a reasonable 23 mind might accept as adequate to support a conclusion." 24 Richardson, 402 U.S. at 401. The Court must consider the record 25 as a whole, weighing both the evidence that supports and the 26 evidence that detracts from the Commissioner's conclusion; it may 27 not simply isolate a portion of evidence that supports the 28 decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2 1 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 2 It is immaterial that the evidence would support a finding 3 contrary to that reached by the Commissioner; the determination 4 of the Commissioner as to a factual matter will stand if 5 supported by substantial evidence because it is the 6 Commissioner s job, and not the Court s, to resolve conflicts in 7 the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th 8 Cir. 1975). 9 In weighing the evidence and making findings, the 10 Commissioner must apply the proper legal standards. Burkhart v. 11 Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must 12 review the whole record and uphold the Commissioner's 13 determination that the claimant is not disabled if the 14 Commissioner applied the proper legal standards, and if the 15 Commissioner's findings are supported by substantial evidence. 16 See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 17 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If 18 the Court concludes that the ALJ did not use the proper legal 19 standard, the matter will be remanded to permit application of 20 the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th 21 Cir. 1987). 22 23 24 II. Disability A. Legal Standards In order to qualify for benefits, a claimant must establish 25 that she is unable to engage in substantial gainful activity due 26 to a medically determinable physical or mental impairment which 27 has lasted or can be expected to last for a continuous period of 28 not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A 3 1 claimant must demonstrate a physical or mental impairment of such 2 severity that the claimant is not only unable to do the 3 claimant s previous work, but cannot, considering age, education, 4 and work experience, engage in any other kind of substantial 5 gainful work which exists in the national economy. 42 U.S.C. 6 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th 7 Cir. 1989). The burden of establishing a disability is initially 8 on the claimant, who must prove that the claimant is unable to 9 return to his or her former type of work; the burden then shifts 10 to the Commissioner to identify other jobs that the claimant is 11 capable of performing considering the claimant's residual 12 functional capacity, as well as her age, education and last 13 fifteen years of work experience. Terry v. Sullivan, 903 F.2d 14 1273, 1275 (9th Cir. 1990). 15 The regulations provide that the ALJ must make specific 16 sequential determinations in the process of evaluating a 17 disability: 1) whether the applicant engaged in substantial 18 gainful activity since the alleged date of the onset of the 19 impairment, 2) whether solely on the basis of the medical 20 evidence the claimed impairment is severe, that is, of a 21 magnitude sufficient to limit significantly the individual s 22 physical or mental ability to do basic work activities; 3) 23 whether solely on the basis of medical evidence the impairment 24 equals or exceeds in severity certain impairments described in 25 Appendix I of the regulations; 4) whether the applicant has 26 sufficient residual functional capacity, defined as what an 27 individual can still do despite limitations, to perform the 28 applicant s past work; and 5) whether on the basis of the 4 1 applicant s age, education, work experience, and residual 2 functional capacity, the applicant can perform any other gainful 3 and substantial work within the economy. See 20 C.F.R. § 416.920. 4 5 B. The ALJ s Findings Relying on the diagnoses of treating physician Dr. R. Ensom 6 of August 2007, the ALJ found that Plaintiff had serious 7 impairments of schizophrenia, paranoid type, and dysthymic 8 disorder that did not meet or medically equal a listed 9 impairment. (A.R. 12, 118.) Plaintiff had moderate restrictions 10 in activities of daily living, social functioning, and 11 concentration, persistence, or pace, and no episodes of 12 decompensation. Plaintiff had the residual functional capacity to 13 perform a full range of work at all exertional levels but with 14 nonexertional limitations of moderate limitation in 15 understanding, remembering, and carrying out detailed 16 instructions, but with the ability to perform at least simple, 17 repetitive tasks, relate adequately with other people, and adapt 18 adequately to work routines. (A.R. 12-15.) Plaintiff s 19 nonexertional limitations had little or no effect on the 20 occupational base of unskilled work, the basic mental demands of 21 which were to perform simple tasks, respond appropriately to 22 supervisors and coworkers, and deal with changes in a routine 23 work setting. Considering Plaintiff s age (twenty years old at 24 the time the application was filed), education (at least a high 25 school education), work experience (no past relevant work), and 26 RFC, Plaintiff could perform jobs that exist in significant 27 numbers in the national economy. (A.R. 15-16.) 28 /////// 5 1 2 3 III. Credibility Findings A. Legal Standards Unless there is affirmative evidence that the applicant is 4 malingering, then where the record includes objective medical 5 evidence establishing that the claimant suffers from an 6 impairment that could reasonably produce the symptoms of which 7 the applicant complains, an adverse credibility finding must be 8 based on clear and convincing reasons. Carmickle v. Commissioner, 9 Social Security Administration,, 533 F.3d 1155, 1160 (9th Cir. 10 2008). In Orn v. Astrue, 495 F.3d 625, 635 (9th Cir. 2007), the 11 Court summarized the appropriate factors or reasons considered in 12 determining credibility: 13 14 15 16 17 18 19 20 21 22 23 24 Social Security Administration rulings specify the proper bases for rejection of a claimant's testimony. See S.S.R. 02-1p (Cum. Ed.2002), available at Policy Interpretation Ruling Titles II and XVI: Evaluation of Obesity, 67 Fed.Reg. 57,859-02 (Sept. 12, 2002); S.S.R. 96-7p (Cum. Ed.1996), available at 61 Fed.Reg. 34,483-01 (July 2, 1996). An ALJ's decision to reject a claimant's testimony cannot be supported by reasons that do not comport with the agency's rules. See 67 Fed.Reg. at 57860 ( Although Social Security Rulings do not have the same force and effect as the statute or regulations, they are binding on all components of the Social Security Administration, ... and are to be relied upon as precedents in adjudicating cases. ); see Daniels v. Apfel, 154 F.3d 1129, 1131 (10th Cir.1998) (concluding that ALJ's decision at step three of the disability determination was contrary to agency regulations and rulings and therefore warranted remand). Factors that a claimant's credibility include reputation for truthfulness, inconsistencies in testimony or between testimony and conduct, daily activities, and unexplained, or inadequately explained, failure to seek treatment or follow a prescribed course of treatment. Fair, 885 F.2d at 603; see also Thomas, 278 F.3d at 958-59. 25 B. Analysis 26 The ALJ referred to the opinions of Plaintiff s mother and 27 sibling as well as to Plaintiff s testimony regarding his 28 6 1 markedly limiting mental symptoms, problems with interacting 2 appropriately with others, and persistent nervousness. (A.R. 14.) 3 Plaintiff had testified that he did not like seeing people; 4 suffered depression twice a week that was precipitated by the 5 behavior of his twin brother, who was anti-social and who 6 interacted violently with Plaintiff s mother; the depression 7 caused Plaintiff to cry weekly, lose interest in activities, and 8 be nervous, but it was improved by Plaintiff s doing things such 9 as biking or using the computer. Plaintiff had taken medications, 10 Abilify and Lexapro, for two years,1 and he found that the Abilify 11 eliminated the auditory hallucinations concerning Plaintiff s 12 dead father but caused drowsiness and mood swings, so he took it 13 at night. (A.R. 248, 252, 256-57, 260, 263-64, 271, 273.) 14 15 1. Inconsistency of Medical Evidence The ALJ reviewed the medical evidence and reasoned that the 16 opinions of state agency medical consultants in May 2006 and 17 January 2007 showed only moderate limitations concerning detailed 18 instructions with a retained capacity to perform simple, 19 repetitive tasks, relate adequately to others, and adapt 20 adequately to work routines. (A.R. 14.) The ALJ noted that the 21 earlier, more severe symptoms had been experienced by Plaintiff 22 before he began taking the new medications and continued to take 23 them consistently. (Id. at 14-15.) 24 Although the inconsistency of objective findings with 25 1 26 27 28 Plaintiff previously had been prescribed Paxil, but he had stopped taking it for months before July 2005, when Plaintiff was found inside a neighbor s house without permission; Plaintiff had entered when he reported that he had heard voices inviting him to enter. (A.R. 271.) Plaintiff s medications were adjusted to the two present medications at the time of Plaintiff s brief commitment pursuant to Welf. & Inst. Code sec. 5150 and aftercare in July 2005. (Id.) 7 1 subjective claims may not be the sole reason for rejecting 2 subjective complaints of pain, Light v. Chater, 119 F.3d 789, 792 3 (9th Cir. 1997), it is one factor which may be considered with 4 others, Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); 5 Morgan v. Commissioner 169 F.3d 595, 600 (9th Cir. 1999). Further, 6 it is appropriate to consider the inconsistency of a documented 7 improvement with claims of continuing, unabated symptoms. Morgan 8 v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999). 9 As will be dismissed in more detail in connection with the 10 opinion evidence, substantial evidence supported the ALJ s 11 conclusion that the medical evidence showed marked improvement 12 after Plaintiff began consistently taking medications after the 13 incident in 2005. 14 15 2. Inconsistency in Plaintiff s Statements The ALJ relied on Plaintiff s having made inconsistent 16 statements, recorded in treatment records, concerning Plaintiff s 17 history of substance abuse. (A.R. 14-15.) The record supports the 18 ALJ s observations. In July 2005, it was reported that there was 19 no history of drug or alcohol abuse (A.R. 204), and Plaintiff 20 specifically denied alcohol or drug use (A.R. 205, 207). 21 Medication services progress notes from September 2005 reflect 22 that Plaintiff reported that he used no drugs or alcohol. (A.R. 23 159.) The report of the internal medicine consultant of the exam 24 from January 2006 reflects that Plaintiff stated that he did not 25 smoke tobacco, drink alcohol, or use illicit drugs. (A.R. 170.) 26 However, in contrast, a medication progress note from August 2005 27 reflected that he admitted to his doctor that he used marijuana 28 occasionally and had last used it three months previously. The 8 1 diagnostic impression in the note included cannabis abuse. (A.R. 2 167.) Further, another note from August 2005 reflected that 3 Plaintiff s service was transferred from youth service with a 4 diagnosis that included a history of alcohol abuse. (A.R. 165.) 5 Plaintiff admitted that he had relapsed during rehabilitation 6 Inconsistent statements are matters generally considered in 7 evaluating credibility and are properly factored in evaluating 8 the credibility of a claimant with respect to subjective 9 complaints. In rejecting testimony regarding subjective symptoms, 10 permissible grounds include a reputation for dishonesty, 11 conflicts or inconsistencies between the claimant s testimony and 12 his conduct or work record, or internal contradictions in the 13 testimony; and testimony from physicians and third parties 14 concerning the nature, severity, and effect of the symptoms of 15 which the claimant complains. Moisa v. Barnhart, 367 F.3d 882, 16 885 (9th Cir. 2004); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th 17 Cir. 2002). The ALJ may consider whether the Plaintiff s 18 testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 19 1090 (9th Cir. 1999). 20 The Court concludes that the ALJ s reasoning concerning 21 Plaintiff s inconsistent statements was clear and convincing in 22 force and was supported by substantial evidence. 23 24 3. Activities of Daily Living A claimant s ability to engage in activities of daily living 25 to the extent that he or she spends a substantial part of his day 26 engaged in pursuits involving the performance of functions that 27 are transferable to the work setting is relevant; a specific 28 finding as to this fact may be sufficient to discredit a 9 1 claimant s allegations. Morgan v. Commissioner of Social Sec. 2 Admin., 169 F.3d 595, 600 (9th Cir. 1999); Thomas v. Barnhart, 278 3 F.3d 947, 959 (9th Cir. 2002). For example, in Thomas v. Barnhart, 4 278 F.3d 947, 959 (9th Cir. 2002), the claimant s ability to 5 perform various household chores such as cooking, laundry, 6 washing dishes, and shopping, was considered as inconsistent with 7 the claimant s subjective complaints and as a basis for a finding 8 that she lacked candor with respect to her descriptions of her 9 pain. 10 Here, the ALJ stated the following: 11 At the November 2007 hearing, moreover, the claimant testified that his regular activities include running, assisting with household vacuuming and shopping chores, bike riding, using the computer, and playing pool with a friend. He also testified that he occasionally goes to the movies and restaurants. Thus, at a minimum, the claimant s daily activities seem inconsistent with an allegation of markedly limiting impairments. Also notable, the inconsistencies in the claimant s allegations regarding his history of substance abuse, as indicated above, do not enhance his credibility, nor does his history of poor compliance with his prescribed medication. 12 13 14 15 16 17 (A.R. 15.) 18 Substantial evidence supports the ALJ s reasoning concerning 19 Plaintiff s daily activities. Plaintiff testified that in the 20 past six months he had lost significant weight by running, and he 21 ran forty-five minutes per day, four to five days per week; he 22 also swept, vacuumed, helped around the house, helped his mother 23 look after his anti-social twin brother, carried groceries, 24 shopped a couple of times a week, rode his bike with friends, 25 played pool weekly with friends, and went on the computer to play 26 games or go on the internet. (A.R. 245-47, 260-61, 266-67.) He 27 could concentrate on the computer for one hour, but he would then 28 10 1 need a break of an hour. (A.R. 272.) He had taken public 2 transportation when he completed a semester at city college and 3 had passed with special tutoring. (A.R. 252-55.) 4 The pertinent record largely consists of Plaintiff s own 5 testimony, which fairly reflects that Plaintiff regularly left 6 the house, navigated the neighborhood and city, and engaged in 7 tasks that ranged from simple and repetitive tasks to activities 8 involving greater concentration, focus, memory, and attention to 9 pace than simple and repetitive tasks. These activities are 10 inconsistent with claims of mental impairment so severe that 11 appropriate interaction with others and attention to and ability 12 to complete tasks are foreclosed. Further, the record supports 13 the ALJ s observation that there was no medical evidence 14 supporting a finding that Plaintiff suffered any significant 15 physical impairment. 16 The Court concludes that it was with the support of 17 substantial evidence that the ALJ reasoned that Plaintiff s 18 activities of daily living were inconsistent with claims of 19 inability to perform simple, repetitive tasks. It is further 20 concluded that considering the circumstances of this case, the 21 ALJ s reasoning was clear and convincing. 22 Plaintiff complains that because Plaintiff suffers from a 23 mental impairment, it was inappropriate for the ALJ to have 24 chastised Plaintiff for his history of poor compliance with 25 medication. (A.R. 15.) 26 Assuming for the purpose of analysis that this reasoning was 27 inappropriate in the instant case, where only some of the 28 specific reasons stated by an ALJ for rejecting an applicant s 11 1 credibility are legally sufficient or supported by the record, 2 but others are not, the Court must consider whether the ALJ s 3 reliance on invalid reasons was harmless error. Batson v. 4 Commissioner of Social Security administration, 359 F.3d 1190, 5 1195-97 (9th Cir. 2004). Such errors are harmless and do not 6 warrant reversal where there remains substantial evidence 7 supporting the ALJ s conclusions on credibility, and the error 8 does not negate the validity of the ALJ s ultimate credibility 9 conclusions. Carmickle v. Commissioner, Social Security 10 Administration, 533 F.3d 1155, 1162 (9th Cir. 2008). The relevant 11 inquiry is not whether the ALJ would have made a different 12 decision absent any error, but rather whether the ALJ s decision 13 remains legally valid despite such error. Id. 14 Here, as the foregoing analysis demonstrates, there were 15 other independent, clear, and convincing reasons supporting the 16 ALJ s conclusion concerning Plaintiff s credibility. Any error 17 concerning Plaintiff s noncompliance with medication would not 18 negate the validity of the ALJ s ultimate credibility conclusions 19 or render them legally invalid. 20 Accordingly, the Court concludes that the ALJ cited clear 21 and convincing reasons for rejecting Plaintiff s subjective 22 complaints, and that the ALJ s reasons were properly supported by 23 the record and sufficiently specific to allow this Court to 24 conclude that the ALJ rejected the claimant's testimony on 25 permissible grounds and did not arbitrarily discredit Plaintiff s 26 testimony. 27 /////// 28 IV. Lay Opinion 12 1 The ALJ adverted to Plaintiff s mother s statement of 2 December 2005, describing markedly limiting symptoms of 3 nervousness and problems with interacting appropriately with 4 others. (A.R. 14, 99-106.) Plaintiff s mother described Plaintiff 5 as not engaging in conversation, needing to be reminded to take 6 medication, nervous, able to help with some chores for an hour a 7 week and to count change and play video games, but unable to walk 8 for four blocks before needing to rest for ten minutes, and able 9 to pay attention for only three minutes. She also indicated that 10 he rarely went out. (A.R. 99-106.)2 11 The ALJ also noted the statement of Plaintiff s brother of 12 October 2007 to the effect that Plaintiff continued to have 13 persistent hallucinations, notwithstanding Plaintiff s use of 14 medications, and that his medications altered his personality 15 (A.R. 14, 83). 16 Plaintiff asserts that the ALJ erred in not addressing his 17 sister s statement. Defendant does not address this issue or 18 offer any explanation for failing to address it. 19 The record contains a statement from a Diana Alvarez (A.R. 20 83), which appears to be the document mistakenly referred to by 21 the ALJ during his evaluation of Plaintiff s subjective 22 complaints; the ALJ referred to a statement from his brother. 23 (A.R. 14.) The ALJ referred to Exhibit 1F/35. (A.R. 14.) 24 Although the Commissioner has not seen fit to mark or index the 25 exhibits by number and letter in the record submitted to this 26 27 28 2 The Court notes that Plaintiff s mother also reported that Plaintiff got along well with authority figures and worried easily, and the only unusual behavior referred to involved the auditory hallucinations that Plaintiff used to experience [b]efore taking medication. (A.R. 104-05.) 13 1 Court3, the Court infers that Exhibit 1F/35 is indeed A.R. 83, 2 which bears an isolated page number of 35, without reference to 3 1F or other indicia of the identity of the exhibit, and which is 4 not the only page with a 35" on it in the record, but which out 5 of the pages with a 35" on them seems to bear the closest 6 correspondence to what the ALJ and the parties are talking about 7 in connection with this issue. 8 The record does not contain a separate statement from a 9 brother of Plaintiff. The ALJ s description of the substance of 10 the statement was consistent with the substance of the sister s 11 letter, which detailed Plaintiff s pre-medication episode of 12 entering a neighbor s house and having to go to a mental 13 hospital, and asserted that upon being medicated Plaintiff was no 14 longer outgoing, did not initiate conversation, sometimes gave 15 senseless replies in conversation, and gained weight and slept a 16 lot. (A.R. 83, 14.) Under the circumstances, the Court concludes 17 that the ALJ made a mistake when he was referring to the gender 18 of Plaintiff s sibling. However, even considering the 19 inadequately prepared record before this Court, it may be 20 concluded with reasonable certainty that the ALJ did intend to 21 refer to the sister s letter when he referred to the letter of a 22 brother of Plaintiff. 23 As to the legal sufficiency of the ALJ s reasoning with 24 respect to the mother s and sister s opinions, the ALJ reviewed 25 the medical evidence and contrasted Plaintiff s symptoms and 26 27 28 3 The Court notes that the Commissioner s cavalier treatment of the medical evidence in the list of exhibits as MEDICAL EVIDENCE, without further breakdown, with a reference to over 120 pages of undifferentiated medical data, and the lack of any exhibit numbers on the pages of the records themselves, have caused the unnecessary expenditure of judicial resources as well as delay. 14 1 signs upon examination before and after he had achieved 2 compliance with his medications and any substance abuse had 3 ceased; further, he noted Plaintiff s inconsistent daily 4 activities. (A.R. 14-15.) The ALJ pointed out the absence of 5 medical evidence that Plaintiff suffered physical limitations. 6 (A.R. 15.) 7 Lay witnesses, such as friends or family members in a 8 position to observe a claimant s symptoms and daily activities, 9 are competent to testify to a claimant s condition; the 10 Commissioner will consider observations by non-medical sources as 11 to how an impairment affects a claimant s ability to work. 12 Dodrill v. Shalala, 12 F.3d 915, 918-19 (9th Cir. 1993). An ALJ 13 cannot discount testimony from lay witnesses without articulating 14 specific reasons for doing so that are germane to each witness. 15 Id. at 919. 16 Here, the ALJ relied on the inconsistency of the medical 17 record of examinations subsequent to Plaintiff s regularly taking 18 his medications, which generally reflected reports from Plaintiff 19 of milder symptoms as well as minimal or normal clinical 20 findings. He also referred to the absence of medical evidence of 21 physical limitations, citing to the report of internal medicine 22 consulting examiner Dr. Steven Stoltz, who in January 2006 found 23 no objective evidence for any ongoing medical disorders that 24 should place any limits on activities. (A.R. 173, 169-74.) 25 It is appropriate for an ALJ to rely on medical evidence in 26 rejecting inconsistent testimony. Lewis v. Apfel, 236 F.3d 503, 27 511-12 (9th Cir. 2001) (noting the propriety of rejecting family 28 members testimony in part because of inconsistency with medical 15 1 history generally alluded to in the decision); Thomas v. 2 Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). 3 In summary, the Court concludes that the ALJ stated germane 4 reasons, supported by substantial evidence in the record, for 5 rejecting the lay sources assertions concerning Plaintiff s 6 functionality. 7 V. Residual Functional Capacity 8 Plaintiff challenges the sufficiency of the evidence to 9 support the ALJ s finding concerning Plaintiff s RFC, arguing 10 that the opinions of the state agency medical consultants relied 11 on by the ALJ were inconsistent with the ALJ s conclusions; the 12 ALJ s RFC was inconsistent with the ALJ s own findings; and the 13 ALJ should have re-contacted Plaintiff s treating physician, Dr. 14 Ensom, for clarification or further explanation of his opinions 15 before relying on the state agency physicians. 16 The ALJ adopted the opinion of two state agency medical 17 consultants. (A.R. 14.) G. K. Ikawa, M.D., a state agency 18 physician, opined in May 2006 that Plaintiff s limitations were 19 mild in the areas of daily living, social functioning, and 20 concentration, persistence, or pace as a result of schizophrenic 21 and affective disorders; Plaintiff was rated as being moderately 22 limited in the ability to understand, remember, and carry out 23 detailed instructions but otherwise was not significantly 24 limited; further, he was able to sustain simple, repetitive 25 tasks, and to relate adequately with other people and adapt 26 adequately to work routines. (A.R. 185, 189-91, 175-92.) Dr. 27 Ikawa s opinion was affirmed by another state agency doctor, 28 Allen Middleton, Ph.D., in January 2007. (A.R. 175.) 16 1 The ALJ reasoned that the opinions were essentially well- 2 supported by the record. (A.R. 14.) 3 It is established that factors relevant to evaluating any 4 medical opinion include the amount of relevant evidence that 5 supports the opinion and the quality of the explanation provided; 6 the consistency of the medical opinion with the record as a 7 whole; the specialty of the physician providing the opinion; and 8 [o]ther factors such as the degree of understanding a physician 9 has of the Administration's disability programs and their 10 evidentiary requirements and the degree of his or her 11 familiarity with other information in the case record. 20 C.F.R. 12 § 416.927; Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). 13 Further, the opinion of a nontreating, nonexamining 14 physician can amount to substantial evidence as long as it is 15 supported by other evidence in the record, such as the opinions 16 of other examining and consulting physicians, which are in turn 17 based on independent clinical findings. Andrews v. Shalala, 53 18 F.3d 1035, 1041 (9th Cir. 1995). 19 Here, a brief review of the medical record reveals that it 20 is consistent with and supportive of the opinions of the state 21 agency consultants. The ALJ stated specific, legitimate reasons 22 for the handling of the opinion evidence and conclusions relating 23 to Plaintiff s RFC. 24 Plaintiff received mental health treatment as a child before 25 2004 and as an adult beginning in July 2005. Plaintiff was 26 discharged from children s mental health in October 2004 based on 27 improved social functioning and Plaintiff s choice to engage in 28 school work and classes in place of treatment follow-up. (A.R. 17 1 218, 211-14.) 2 After being off medication for many months, Plaintiff was 3 admitted for treatment pursuant to Cal. Welf. & Inst. Code sec. 4 5150 in mid-July 2005 because he had heard voices inviting him in 5 to the home of a neighbor, where he was found in the middle of 6 the night. (A.R. 120-131, 204.) After being diagnosed with 7 schizophrenia and depression, he was released with a prescription 8 for Risperdal. 9 Notes of follow-up treatment at the Community Behavioral 10 Health Center in mid-July 2005 reflect that Plaintiff was 11 internally preoccupied but denied hallucinations; his symptoms 12 were reduced with compliance with new medications, which included 13 Abilify instead of Risperdal, and Effexor. Plaintiff s GAF was 14 45. (A.R. 194 95, 202-204.) Plaintiff was discharged with a GAF 15 of 65. (A.R. 194-95.) In August 2005, Plaintiff reported feeling 16 very good with the medications with no side-effects; he was calm 17 and cooperative, with no delusional thinking; the mental status 18 exam revealed normal responses except for restricted affect. 19 (A.R. 167.) 20 Plaintiff s improved condition continued throughout 2005 and 21 2006. Plaintiff was doing well, hallucinations had subsided, 22 sleep was good, the medications worked fine except for some 23 sleepiness in the daytime that was addressed with a lower dosage, 24 and the mental status exams were largely normal. (A.R. 154-158, 25 152-53, 145-46, 149.) On July 18, 2006, Dr. Ensom wrote a letter 26 stating that he had been treating Plaintiff for schizophrenia and 27 secondary depression, and that the prognosis for improvement in 28 function was poor. (A.R. 151.) 18 1 In 2007, periodic examinations by Dr. Ensom and continued 2 treatment in the form of medication reflected continuing 3 stability, with mental status exams reflecting average and normal 4 responses, improved depression, and an absence of side-effects. 5 Dr. Ensom assessed a GAF of 40 on a visit in January 2007, and of 6 45 on visits in April and July 2007. (A.R. 133-35.) 7 The state agency physicians had the benefit of the 8 longitudinal record of Plaintiff s treatment after the episode in 9 2005. The independent findings of Plaintiff s treating sources 10 constituted legally sufficient evidence to support the conclusion 11 of the state agency medical consultants, which were consistent 12 with the pertinent medical evidence of record. 13 That Dr. Ensom assessed global assessments of functioning 14 (GAF) that reflected low levels of functioning is not 15 determinative. First, the Court notes that the ALJ expressly 16 relied on the overall record and not any specific formulation by 17 Dr. Ensom. Further, neither SSA regulations nor governing case 18 law requires an ALJ to take a GAF score into consideration in 19 determining the extent of disability. See Howard v. Commissioner 20 of Social Security, 276 F.3d 235, 241 (6th Cir. 2002); Trinchere 21 v.Astrue, 2008 WL 4395283, *6 (C.D.Cal. Sept. 3, 2008). 22 Further, the fact that some moderate limitations were found 23 in the mental residual functional capacity assessment does not 24 preclude the RFC assigned by the ALJ. A moderate difficulty in 25 concentration, persistence, or pace has been held to be 26 consistent with the ability to perform simple, repetitive tasks 27 where there is specific evidence of the ability of the claimant 28 to perform such tasks despite the assessed limitations. See, 19 1 Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 2 Here, the moderate limitation with respect to detailed 3 instructions was addressed by the specific finding of ability to 4 perform simple, repetitive tasks, and to adapt and get along in 5 the work place. 6 VI. Development of the Medical Record 7 Plaintiff argues that the ALJ s determination of Plaintiff s 8 RFC cannot stand because the ALJ failed to perform his duty to 9 develop the medical record, and, specifically, to re-contact 10 Plaintiff s treating source, Dr. Ensom, to obtain his opinion 11 concerning Plaintiff s RFC. 12 The duty to develop the record arises where the record 13 before the ALJ is ambiguous or inadequate to allow for proper 14 evaluation of the evidence. 20 C.F.R. §§ 404.1512(e) and 15 416.912(e); Mayes v. Massanari, 262 F.3d 963, 968 (9th Cir. 2001). 16 It is true that there was not an opinion from Plaintiff s 17 treating source as to his ability to work. However, the record 18 contained the opinions of the state agency physicians and what 19 appears to be Plaintiff s complete treatment records. The 20 evidence supported the ALJ s findings and did not present an 21 ambiguity or inadequacy. Because it is the plaintiff s burden to 22 present evidence of disability, the mere absence of a report from 23 a treating physician does not give rise to a duty to develop the 24 record; rather, that duty is triggered only where there is an 25 inadequacy or ambiguity. Bayliss v.Barnhart, 427 F.3d 1211, 1217 26 (9th Cir. 2005). Here, the ALJ found, with the support of the 27 record, that Plaintiff had not established that he was disabled. 28 Further, the Court notes that at the hearing, the ALJ asked 20 1 Plaintiff s attorney if he wanted to add any other evidence to 2 the record, and he responded in the negative. (A.R. 243.) 3 VII. Disposition 4 In summary, based on the foregoing, 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 Arturo Alvarez. 14 IT IS SO ORDERED. 15 Dated: icido3 16 August 14, 2009 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 21
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