-RBB Hernandez Olivera v. Astrue, No. 3:2009cv01558 - Document 15 (S.D. Cal. 2010)

Court Description: REPORT AND RECOMMENDATIONS for Order denying 12 Plaintiff's MOTION for Extension of Time to File motion for summary judgment MOTION for Summary Judgment filed by Carlos Hernandez Olivera, and granting 14 Defendant's Cross MOTION for Summary Judgment and In Opposition to Plaintiff's Motion for Summary Judgment filed by Michael J Astrue. Objections to R&R due by 12/14/2010 and Replies due by 1/4/2011. Signed by Magistrate Judge Ruben B. Brooks on 11/22/10.(All non-registered users served via U.S. Mail Service)(lmt) (av1).

Download PDF

-RBB Hernandez Olivera v. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 Civil No. 09cv1558 JLS (RBB) CARLOS HERNANDEZ OLIVERA, ) ) Plaintiff, ) ) ) ) v. ) ) ) ) MICHAEL J. ASTRUE, Commissioner ) of Social Security, ) ) ) Defendant. ) ) REPORT AND RECOMMENDATION DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [ECF NO. 12] AND GRANTING DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT [ECF NO. 14] 19 20 I. PROCEDURAL BACKGROUND 21 On February 21, 2006, Plaintiff, Carlos Hernandez Olivera 22 (“Olivera”), filed an application for disability insurance benefits 23 (“DIB”) claiming a disability onset date of December 11, 2002. 24 (Admin. R. Attach. #2, 26, ECF No. 9.) 25 initially, and the denial was upheld by the Social Security 26 Administration (“SSA”) after reconsideration. 27 Attach. #3, 80-81.) 28 Judge Edward Steinman on February 5, 2009. His claim was denied (Id. at 26; id. A hearing was held before Administrative Law 1 (Id. at Attach. #2, 26, 09cv1558 JLS (RBB) Dockets.Justia.com 1 37-79.) 2 Olivera was not disabled. 3 became final when the Appeals Council upheld the ALJ’s decision on 4 May 14, 2009. 5 He issued a written decision on February 19, 2009, finding (Id. at 36.) The denial of benefits (Id. at 1-3.) On July 17, 2009, Plaintiff filed a Complaint for Judicial 6 Review & Remedy on Administrative Decision Under the Social 7 Security Act against Michael J. Astrue, Defendant Commissioner of 8 Social Security, challenging the denial of Plaintiff’s claim for 9 disability insurance benefits [ECF No. 1]. Defendant filed an 10 Answer on February 2, 2010 [ECF No. 7] and filed the Administrative 11 Record the same day [ECF No. 9]. 12 Deadline for Filing Pretrial Motions [ECF No. 10], but Plaintiff’s 13 Motion for Summary Judgement was not timely filed. 14 Show Cause why the Court should not recommend that the Complaint be 15 dismissed for failure to prosecute was issued on June 14, 2010 [ECF 16 No. 11]. 17 21, 2010, by filing a Motion to Extend Time to File Motion for 18 Summary Judgment along with a Motion for Summary Judgment [ECF No. 19 12]. 20 vacated the Order, granted Plaintiff’s request for an extension of 21 time, and set a hearing date for the Motion for Summary Judgment 22 [ECF No. 13]. 23 The Court issued an Order Setting An Order to Plaintiff responded to the Order to Show Cause on June Defendant did not reply to the Order to Show Cause; the Court On July 19, 2010, Defendant’s Opposition to Plaintiff’s Motion 24 for Summary Judgment and Defendant’s Cross-Motion for Summary 25 Judgment were filed as a single document [ECF No. 14]. 26 The Court finds this matter is suitable for decision without 27 oral argument pursuant to Civil Local Rule 7.1(d)(1). 28 Civ. L.R. 7.1(d)(1). S.D. Cal. For the reasons set forth below, the Court 2 09cv1558 JLS (RBB) 1 recommends DENYING Plaintiff’s Motion for Summary Judgment [ECF No. 2 12] and GRANTING Defendant’s Cross-Motion for Summary Judgment [ECF 3 No. 14]. 4 II. 5 MEDICAL EVIDENCE The majority of the medical evidence regarding Olivera’s 6 mental condition was part of his workers’ compensation case. 7 April 19, 2004, Psychiatrist Stephen Singer issued a Medical-Legal 8 Evaluation of Olivera, who he had examined on January 23, 2004.1 9 (Admin. R. Attach. #8, 587-97, ECF No. 9.) On The doctor conducted a 10 mental status exam and found Plaintiff to be pleasant, cooperative, 11 and appropriately dressed and groomed. 12 observed that “[Olivera’s] mood was mildly depressed and while his 13 affect was appropriate and consistent with his mood it was slightly 14 flattened.” 15 cognition as “grossly intact for attention, concentration, 16 language, short and long term memory.” 17 suffer from any thought disturbances or perception disorders. 18 (Id.) 19 (Id. at 591.) (Id. at 590.) Dr. Singer The doctor described Plaintiff’s (Id.) Dr. Singer ruled out certain diagnoses: Olivera did not (1) depression, 20 major, single, mild to moderate; (2) adjustment disorder with 21 depression; and (3) posttraumatic stress disorder, mild. 22 594.) 23 suffered from sexual dysfunction and premature ejaculation. 24 The psychiatrist gave Plaintiff a global assessment of functioning 25 (“GAF”) score of sixty to sixty-five. (Id. at But he found that Olivera had a compression fracture and (Id.) (Id.) Dr. Singer concluded 26 27 28 1 Although Plaintiff filed this suit as “Carlos Hernandez Olivera,” many of the medical records identify him as “Carlos Hernandez.” For the sake of consistency, the Court has identified the Plaintiff as “Olivera” rather than “Hernandez.” 3 09cv1558 JLS (RBB) 1 that “[w]hile [Olivera] has some mild depressive symptoms, these 2 are not of a degree that would interfere with his being able to 3 engage in vocational rehabilitation.” 4 have a disability that would interfere with his ability to engage 5 in these activities and no permanent partial disability is 6 anticipated.” 7 (Id. at 596.) “He does not (Id.) On October 12, 2004, almost nine months after Dr. Singer 8 examined Plaintiff, Dr. Robert Zink prepared a Report of 9 Psychological Testing of Olivera. (Id. Attach. #7, 523-30.) The 10 doctor noted that Plaintiff “achieved borderline to low average 11 scores” in the Wechsler Adult Intelligence Scale. 12 Olivera’s “Bender memory was 5-1/2 items, which [was] in the 13 approximate average range for this test of visual memory.” 14 525.) 15 may overstate his symptoms, but he had “underlying dependent 16 personality factors with avoidant features.” 17 “suggest[ed] generalized anxiety, somatoform features, depression, 18 and possible Post Traumatic Stress features.” 19 depression and negativistic features were both ruled out. 20 Several Beck inventories showed moderate to severe levels of 21 anxiety, severe perceptions of depression, and moderate levels of 22 pessimism about his future. 23 (Id. at 524-25.) (Id. at A Millon Clinical Multiaxial Inventory showed that Plaintiff (Id.) The test also (Id.) Long term (Id.) (Id. at 528.) Dr. Zink also evaluated Olivera’s work functions. (Id.) He 24 found that Plaintiff’s “[c]oncentration [did] not appear 25 significantly impaired . . . . [h]owever considering the degree of 26 emotional distress, he may still experience occasional 27 concentration impairment during escalations of the emotional 28 distress.” (Id. at 528-29.) The doctor found that Olivera’s 4 09cv1558 JLS (RBB) 1 memory was not impaired, but his visual and scanning speed was “a 2 little lower than one would expect . . . and this may be [a] result 3 of momentary mental concentration impairment.” 4 Additionally, Plaintiff’s IQ functioning was also “a little lower 5 then what would be expected . . . .” 6 that there was likely a mental impairment, but he deferred the 7 question of whether it presented a disability to Dr. Brickman, the 8 principal examiner. 9 (Id.) (Id. at 529.) Dr. Zink concluded (Id.) On October 27, 2004, Dr. Brickman, a psychiatrist, completed 10 his Agreed Medical/Legal Evaluation in Psychiatry of Olivera. 11 at 532-45.) 12 of his illness. 13 medical evidence including doctor visits, psychological tests, and 14 mental status examinations. 15 concluded that Plaintiff suffered from (1) major depressive 16 disorder, single episode, moderate; (2) pain disorder associated 17 with psychological factors and a general medical condition; (3) 18 panic disorder without agoraphobia; and (4) premature ejaculation. 19 (Id. at 543.) 20 partially psychiatrically disabled and required appropriate 21 psychiatric treatment. 22 worsened since Dr. Singer’s April 19, 2004 report, there was 23 insufficient evidence to find Plaintiff temporarily, totally 24 psychiatrically disabled. 25 [d]epression is such that, for the moment, I doubt that he could 26 participate adequately with [v]ocational [r]ehabilitation.” 27 at 545.) (Id. He noted Plaintiff’s chief complaints and the history (Id. at 535-37.) The doctor also reviewed the (Id. at 537-43.) Dr. Brickman He explained that Olivera remained temporarily, (Id. at 544.) (Id.) Although his symptoms had Dr. Brickman stated, “[Olivera’s] (Id. 28 5 09cv1558 JLS (RBB) 1 Plaintiff saw Dr. Louis Fontana, a psychiatrist, for an 2 initial psychiatric consultation on December 17, 2004. 3 314.) 4 at 318.) 5 not exaggerate or embellish his comments during the interview. 6 (Id.) 7 speaking about his financial situation. 8 [was] of normal tone and meter[,]” and his “[t]hought processes 9 [were] logical and goal-directed.” (Id. at The doctor performed a mental status exam on Olivera. (Id. Plaintiff made good eye contact, was cooperative, and did His mood was dysphoric. (Id.) He was sad and cried while (Id.) (Id.) Olivera’s “[s]peech The doctor found no 10 evidence of hallucinations or delusions, and Plaintiff denied 11 having suicidal thoughts. 12 functioning, “[Olivera] [was] oriented in all spheres.” 13 “[i]mmediate, recent and remote memory appear[ed] intact[,]” and 14 his knowledge, judgment, and insight were all adequate. 15 (Id.) With regard to his intellectual (Id.) His (Id.) Dr. Fontana diagnosed Plaintiff with multiple psychological 16 disorders: 17 moderate; (2) pain disorder associated with both psychological 18 factors and a general medical condition; (3) panic disorder without 19 agoraphobia; (4) post-traumatic stress disorder, chronic, mild; (5) 20 male erectile disorder; and (6) premature ejaculation. 21 319-20.) 22 performed by Dr. Zink revealed dependant and avoidant personality 23 factors. 24 in that [Olivera] would be unable to participate currently in 25 vocational rehabilitation secondary to his psychiatric symptoms.” 26 (Id.) 27 partially psychiatrically disabled. (1) major depressive disorder, single episode, (Id. at The doctor also noted that the psychological testing (Id. at 320.) Dr. Fontana “agree[d] with Dr. Brickman, The doctor concluded that Plaintiff was temporarily, (Id.) 28 6 09cv1558 JLS (RBB) 1 Olivera was seen by Dr. Fontana on December 31, 2004, January 2 21, February 3, March 3, April 14, June 9, July 8 and 29, August 3 19, September 23, and November 18, 2005. 4 Throughout his treatment, the doctor’s diagnosis of Olivera did not 5 change. 6 the doctor explicitly found Olivera was temporarily, partially 7 disabled, Dr. Fontana referred to Dr. Brickman’s agreed medical 8 evaluation to describe Plaintiff’s psychological disability status. 9 (Id. at 303-13, 321.) 10 (Id.) (Id. at 303-13.) Except for the meetings in December 2004, in which On May 23, 2005, Dr. Roberto Netter evaluated Olivera and 11 completed a psychological consultation report on June 15, 2005. 12 (Id. Attach. #8, 554-68.) 13 and asked him about his current physical and psychological 14 symptoms, his injury, other sources of stress, and his personal 15 history. 16 The doctor reviewed Olivera’s records (Id. at 554-63.) Then, the psychologist conducted a mental status evaluation. 17 (Id. at 563-66.) 18 slightly limited eye contact, and his face alternated between being 19 passively expressionless and openly dysphoric with profuse tears.” 20 (Id. at 563-64.) 21 mood was “dysphoric.” 22 no signs of perceptual impairment or thought disorder, but “[h]is 23 thought processes were slow.” 24 displayed good judgment, had an average level of intelligence and a 25 low-average level of socio-cultural sophistication. 26 Olivera’s insight into his psychological difficulties and 27 functioning was limited, and “[h]is memory was slightly impaired, 28 in association with psychomotor retardation.” The doctor noted that Olivera “maintained Plaintiff was polite and cooperative, but his (Id. at 564.) (Id.) 7 Olivera was alert and showed He was properly oriented, (Id.) (Id.) Plaintiff was 09cv1558 JLS (RBB) 1 a reliable historian with “signs of minor distortions favoring his 2 own perspective noted . . . .” (Id.) 3 Dr. Netter performed some psychological testing on Plaintiff 4 and found that he had “slight-to-moderate self-perceived anxiety, 5 depression, and hopelessness; contrasting with moderate-to-severe 6 anxiety and moderate depression when self-report[ed] . . . .” 7 at 564-65.) 8 disorder, adjustment disorder with depressed mood, pain disorder 9 associated with both psychological factors and a general medical (Id. Olivera was diagnosed with posttraumatic stress 10 condition, and psychological factors affecting a medical condition 11 including hypertension and elevated cholesterol. 12 The doctor noted psychological stressors including dealing with the 13 workers’ compensation system and related economic hardships. 14 Plaintiff was given a GAF score of fifty and was found temporarily, 15 partially psychiatrically disabled. 16 explained, “At this time, [Olivera] is precluded from engaging in 17 work that would lead to increased psychologically-mediated 18 exacerbated physical pain, for such will lead to increased anxiety 19 and depression, and maintenance of this vicious cycle.” 20 567.) 21 (Id. at 565.) (Id. at 565-66.) (Id.) Dr. Netter (Id. at On October 3, 2005, Dr. Netter prepared a psychological 22 treatment report for Olivera. 23 that Plaintiff still exhibited pain behaviors, he had predominately 24 neutral facial expressions with occasional unresponsiveness, he 25 felt constricted, his mood was guardedly depressed and anxious, his 26 speech was low in amplitude and modulated, and the content of his 27 thought was limited and reflected marked helplessness. 28 610.) (Id. at 607-12.) The doctor found (Id. at Olivera’s eye contact was slightly limited, which was an 8 09cv1558 JLS (RBB) 1 improvement. 2 in association with psychomotor retardation was slightly impaired, 3 which was also an improvement. 4 anxiety and depression. (Id.) His thought process was slow, and his memory (Id.) He had slight-to-moderate (Id.) 5 The doctor diagnosed Plaintiff with posttraumatic stress 6 disorder, major depressive disorder, pain disorder associated with 7 psychological factors and a general medical condition, and 8 psychological factors affecting a medical condition including 9 hypertension and elevated cholesterol. (Id.) Olivera was given a 10 GAF score of fifty and found to be temporarily, partially 11 psychiatrically disabled. 12 (Id. at 610-11.) On June 17, 2006, Dr. Romulado Rodriguez, a psychiatrist, 13 performed a complete psychiatric evaluation of Plaintiff. 14 Attach. #7, 355-61.) 15 observations of Olivera’s appearance, thought process, speech, 16 mood, and intellect as well as a memory test, concentration and 17 calculation exercise, and the doctor inquired into Plaintiff’s 18 knowledge of current events, meaning of proverbs, ability to 19 explain similarities between different objects and his judgment. 20 (Id. at 358-59.) 21 disorder and noted that “[p]sychosocial stressors over the past 22 year [were] [m]inimal.” 23 GAF score at seventy and concluded that he had no functional 24 limitations. (Id. at 360.) 25 (Id. The mental status exam included the doctor’s Dr. Rodriguez diagnosed Plaintiff with dysthmic (Id. at 559-60.) He assessed Olivera’s On June 26, 2006, a psychiatric review technique form was 26 completed by Disability Evaluation Analyst Jamias and approved by 27 Dr. Amado. 28 affective disorder that was not severe. (Id. at 363-74.) Plaintiff was found to have an 9 (Id. at 363, 374.) 09cv1558 JLS (RBB) 1 Specifically, Plaintiff had dysthymic disorder. 2 Plaintiff was found to have mild restrictions on daily living, mild 3 difficulty in maintaining social functioning, and mild difficulties 4 in maintaining concentration, persistence, and pace. 5 (Id. at 366.) (Id. at 371.) On August 14, 2006, Dr. Singer examined Olivera and reported 6 on the initial psychiatric evaluation on September 29, 2006. 7 Attach. #8, 617-21.) 8 neatly dressed. 9 not show psychomotor retardation or agitation or any eccentricities (Id. Plaintiff was pleasant, cooperative, and (Id. at 620.) The doctor noted that Olivera “did 10 of behavior.” 11 affect was appropriate and consistent with his mood. 12 no thought disturbances in form or content, and no disorder of 13 perception. 14 concentration, language, short and long term memory.” 15 Singer diagnosed Plaintiff with depression, major, single, 16 moderate, and panic disorder. 17 of fifty to sixty and explained that he had “significant depression 18 with recurrence of symptoms after discontinuation of his medication 19 even though he has continued to consult with Dr. Netter.” 20 Dr. Singer performed employee work status evaluations on June 5, 21 August 14, and September 15, 2006. 22 doctor indicated that Plaintiff should remain off of work. 23 (Id.) (Id.) He appeared worried and anxious, but his He had (Id.) “[C]ognition was grossly intact for attention, (Id.) (Id.) Dr. He gave Olivera a GAF score (Id.) (Id. at 622-23, 625.) The (Id.) Dr. Zink prepared a report of psychological retesting on 24 October 11, 2006. 25 to average scores on several subtests from the Wechsler Adult 26 Intelligence Scale III, and “[t]his was a mild improvement over the 27 scores of October 2004 . . . .” 28 subtest indicated Plaintiff had no “substantial loss of mental (Id. at 629-35.) Olivera received low average (Id. at 631.) 10 The digit symbol 09cv1558 JLS (RBB) 1 concentration ability at the time he completed the test.” 2 Olivera had no signs of organic dysfunction. 3 Clinical Multiaxial Inventory produced results similar to those 4 from 2004 and showed that Plaintiff may overstate some of his 5 symptoms and he likely had “dependant, avoidant, and socially 6 withdrawn personality characteristics.” 7 to 2006, Olivera’s self-reporting of anxiety increased from 8 moderate to severe, but his depression level decreased from severe 9 to moderate, and his hopelessness score also decreased from 10 moderate to mild. 11 (Id.) (Id.) A Millon (Id. at 632.) From 2004 (Id. at 634.) Dr. Zink ruled out posttraumatic stress disorder but found 12 “significant residual anxious, depressive, and somatoform 13 features.” 14 withdrawn personality factors [were also] suggested by the Millon.” 15 (Id.) 16 Plaintiff’s concentration was not substantially impaired, but he 17 may still experience occasional impairment during emotional 18 distress; (2) his memory was unimpaired; (3) Olivera’s visual 19 scanning/speed was not substantially impaired; and (4) Plaintiff’s 20 IQ functioning was in the low average to average range. 21 (Id. at 635.) “Dependent, avoidant, and socially With regard to work functions, the doctor found that (1) (Id.) On October 31, 2006, Dr. Brickman wrote an agreed medical 22 reevaluation in psychiatry for Olivera. 23 Plaintiff’s subjective factors of disability included “pessimism, 24 demoralization, [and] minor avoidant characteristics.” 25 662.) 26 disorder that was in partial remission; (2) major depressive 27 disorder, single episode, work related; and (3) pain disorder 28 associated with both psychological factors and a general medical (Id. at 656-65.) (Id. at The doctor diagnosed Olivera with (1) posttraumatic stress 11 09cv1558 JLS (RBB) 1 condition, chronic. 2 stationary and had a GAF score of 63.5. 3 (Id. at 659-61.) Plaintiff was permanent and (Id. at 661.) Dr. Brickman completed a psychiatric disability impairment 4 form and evaluated limitations on Olivera’s work functioning. 5 at 664-65.) 6 or varied tasks, relate to other people beyond giving and receiving 7 instruction, and accept and carry out responsibility for direction, 8 control and planning were all slightly limited. 9 abilities to influence other people and to maintain a work pace (Id. He found that Plaintiff’s abilities to perform complex (Id.) Plaintiff’s 10 appropriate to a given work load were very slightly limited. 11 Olivera had minimal limitations on his abilities to comprehend and 12 follow instruction, perform simple and repetitive tasks, and make 13 generalizations, evaluations, or decisions without immediate 14 supervision. 15 (Id.) (Id.) The doctor concluded, “I do not believe that [Olivera], on the 16 basis of a work-related, purely Psychiatric Disability, is 17 currently incapable of returning to his usual and customary 18 occupation . . . .” 19 Brickman found that Plaintiff was no longer temporarily disabed. 20 21 22 23 24 25 26 (Id. at 662 (emphasis in original).) Dr. There is no indication that [Olivera] was ever Temporarily Totally Psychiatrically Disabled over the years; onset of Temporary Partial Psychiatric Disability (Major Depressive Disorder/PostTraumatic Stress Disorder/Adjustment Disorder/Sexual Dysfunction) occurred (formally, supported by records) at the time of [Olivera’s] first evaluation by Dr. Singer, the Treating Psychiatrist, on January 23, 2004. Applicant’s Temporary Partial Psychiatric Disability is now at an end. (Id. at 661.) 27 Dr. D. J. Williams reviewed a psychiatric case summary of 28 Plaintiff on April 25, 2007, and affirmed the initial decision that 12 09cv1558 JLS (RBB) 1 Olivera did not suffer from a severe mental impairment. 2 Attach. #7, 398.) 3 Social Security disability benefits was December 31, 2007. 4 Attach. #2, 27.) 5 (Id. The last day that Plaintiff was eligible for (Id. On February 3, 2009, two days before the administrative 6 hearing, Dr. Jaga Glassman, a psychiatrist, conducted a psychiatric 7 disability evaluation of the Plaintiff. 8 The doctor reviewed Olivera’s history and considered his current 9 medications and daily activities. (Id. Attach. #8, 682-89.) (Id. at 683-86.) He found 10 Olivera “well-engaged with the examiner, making and maintaining 11 good eye contact.” 12 apathetic, preoccupied, and “considerably depressed-appearing.” 13 (Id.) 14 anxiety during the interview; generally, his mood was “sour, sad, 15 with low energy and somewhat low motivation.” 16 Plaintiff did not display psychotic symptoms, and his “responses 17 were coherent, relevant, and goal-directed . . . .” 18 able to follow all instructions without difficulty.” 19 doctor found that Olivera had “low-average to borderline 20 intellectual functioning.” 21 (Id. at 686.) Plaintiff had low energy, was He showed some variation in affect, and no significant (Id. at 687.) (Id.) “He was (Id.) The (Id.) Dr. Glassman diagnosed Plaintiff with (1) pain disorder with 22 medical and psychological factors; (2) major depression, moderate, 23 ongoing; (3) anxiety disorder, not otherwise specified; and (4) 24 possible panic disorder with phobic avoidance. 25 found “possible borderline intellectual functioning” and assigned 26 Olivera a GAF score of fifty. 27 will be difficult for this man to be able to return to productive, 28 full-time work, given his combination of problems. . . . (Id.) 13 (Id. at 689.) He Dr. Glassman concluded, “It His 09cv1558 JLS (RBB) 1 ongoing depression and anxiety is likely to impair his capacity to 2 retrain successfully in a nonphysical type of employment.” 3 4 (Id.) III. THE ADMINISTRATIVE HEARING On February 5, 2009, the administrative hearing was held 5 before ALJ Steinman. 6 attorney, Mr. Jackson, were present. 7 testimony from Olivera; Dr. Gurvey, a medical expert; and Dr. 8 Jesko, a vocational expert. 9 (Id. Attach. #2, 39.) (Id.) Olivera and his Judge Steinman heard (Id.) At the hearing, Plaintiff testified that he could not work due 10 to his back injury and psychiatric problems. 11 Steinman questioned Olivera about his back condition and pain. 12 (Id. at 42-47.) 13 limitations caused by his back problems and pain. 14 (Id. at 42.) Judge Plaintiff’s attorney also questioned him about (Id. at 47.) The administrative law judge asked Dr. Gurvey about Olivera’s 15 back injury and whether Plaintiff had any physical limitations as a 16 result. 17 “could occasionally lift and carry 20 pounds, frequently lift and 18 carry 10 pounds. 19 hours with the usual breaks. 20 regard to push/pull.” 21 “[p]osturally [Plaintiff] should not climb ladders, scaffolds, or 22 ropes.” 23 other restrictions. 24 audiovisually . . . .” 25 questioned the medical expert regarding Olivera’s physical 26 limitations. 27 28 (Id. at 48-50.) (Id.) The medical expert testified that Olivera He could sit, stand, and walk six out of eight There would be no restriction with (Id. at 49.) The doctor stated that Olivera could occasionally crawl and he had “[n]o Manipulative, environmentally, or (Id. at 50.) Plaintiff’s attorney also (Id. at 50-53.) The ALJ presented several hypothetical questions to the vocational expert, Dr. Jesko. (Id. at 54-62.) 14 The judge’s first 09cv1558 JLS (RBB) 1 hypothetical included certain physical limitations due to 2 degenerative disc disease. 3 hypothetical added the psychiatric diagnosis of dysthmic disorder 4 (depression) and a GAF score of seventy. 5 third hypothetical, the judge added more physical limitations and 6 asked the vocational expert to give examples of jobs that would be 7 available to that individual. 8 individual could be a garment folder, small parts assembler, or a 9 gluer. 10 (Id. at 54.) (Id.) Judge Steinman’s second (Id. at 55.) With a Dr. Jesko testified that the (Id. at 55-56.) Judge Steinman posed another hypothetical and added the 11 minimal and slight mental limitations from Dr. Brickman’s 12 psychiatric evaluation of Olivera from 2006. 13 vocational expert explained that the jobs she previously identified 14 were “simple and repetitive[,] one and two step” positions, so they 15 were not affected by the additional mental limitations. 16 58.) 17 (Id. at 57.) The (Id. at The administrative law judge presented another hypothetical to 18 Dr. Jesko that included certain physical limitations. 19 Judge Steinman then stated, “I’m going to give him the benefit of 20 the doubt. 21 (Id.) 22 general public and coworkers.” 23 testified that the individual would be able to perform the three 24 jobs she previously identified. 25 (Id. at 59.) Let’s just limit him to simple repetitive [tasks].” He also added the restrictions of limited contact with the (Id. at 60.) The vocational expert (Id.) Next, Olivera’s attorney questioned the vocational expert. 26 (Id. at 62-79.) 27 Plaintiff a GAF score of fifty and asked, “Would it be fair to 28 extrapolate those restrictions to a GAF score of 50 . . . ?” Attorney Jackson noted that Dr. Glassman gave 15 (Id. 09cv1558 JLS (RBB) 1 at 67.) 2 [her] expertise[,]” and the question would be better answered by a 3 psychologist or psychiatrist. 4 The vocational expert explained that it “would be beyond (Id.) Plaintiff’s counsel next posed a hypothetical using Dr. 5 Netter’s report dated May 23, 2005. 6 interjected and read a portion of the report. 7 expected Mr. [Olivera] will not be able to return to his customary 8 work duties secondary to residual symptoms of post-traumatic stress 9 disorder.” (Id. at 70.) (Id. at 67-71.) The judge “It’s reasonably The report continued, “At this time, he’s 10 precluded from engaging in work that would lead to increased 11 psychologically mediated exacerbated physical pain for such would 12 lead to increased anxiety and depression and maintenance of this 13 vicious cycle.” 14 difficult to answer the hypothetical because pain is subjective. 15 (Id.) 16 that would exacerbate his pain. 17 using Olivera’s testimony regarding his physical limitations. 18 at 70-71.) 19 would not be able to perform any work under those circumstances. 20 (Id.) The vocational expert responded that it was She asked that the hypothetical include the level of work (Id.) Judge Steinman suggested (Id. The vocational expert responded that the individual 21 22 (Id.) IV. THE ALJ’S DECISION After considering the record, ALJ Steinman concluded that 23 Olivera suffered from two severe impairments: 24 disease, status post-fracture of the L1 vertebrae, and depression. 25 (Id. at 27.) degenerative disc He also made the following relevant findings: 26 27 28 Louis A. Fontana, M.D., reported on December 17, 2004, that the claimant was seen for a psychiatric consultive examination. The claimant complained of back pain with radiation to his buttocks and at time to his feet, as well as 16 09cv1558 JLS (RBB) 1 2 3 4 5 6 7 8 9 10 11 12 sexual problems and nightmares of his fall. He began having flashbacks and panic symptoms. After examination, the claimant was diagnosed with single episode, moderate major depressive disorder; pain disorder associated with both psychological and a general medical condition; panic disorder without agoraphobia; chronic, mild posttraumatic stress disorder (“PTSD”), and erectile disorder. At the request of the California Department of Social Services, the claimant was seen by Romualdo R. Rodriguez, M.D., for a clinical psychiatric consultive examination. Dr. Rodriguez reported on June 17, 2006, that the claimant stated he had not been able to work since his accident or look for jobs due to his back pain. He complained of developing depression and he had settled his worker’s compensation case in 2002 for $20,000. After examination, the claimant was diagnosed with dysthymic disorder and a Global Assessment of Functioning (“GAF”) of 70 indicating some mild symptoms or some difficulty in social, occupational, or school functioning. 13 14 15 16 17 18 19 20 21 22 23 Jaga N. Glassman, M.D., reported on February 3, 2009, that the claimant was seen at the request of the California Department of Social Services for a psychiatric disability evaluation. The claimant stated that it had been a while since he had seen a doctor. The claimant complained of low back pain and depression and that his thought processes were not clear. He stated that he could not stay in one position long and that activity aggravated his pain. He was not in any kind of psychiatric or mental health treatment and no history of psychiatric hospitalizations or suicide attempts. He only had over the counter medications for pain. On examination, he was depressed appearing. The claimant was diagnosed with pain disorder with medical and psychological factors, ongoing moderate major depression, anxiety disorder not otherwise specified, possible panic disorder with phobic avoidance, possible borderline intellectual functioning, and a GAF of 50. 24 25 26 The undersigned took into consideration all the claimant’s other diagnosed conditions and finds that there is minimal clinical evidence to corroborate or support any finding of significant vocational impact related [to] them. 27 28 4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one 17 09cv1558 JLS (RBB) 1 2 3 4 5 6 7 8 9 10 11 12 of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526). . . . . The claimant’s mental impairment did not meet or medically equal the criteria of listing 12.04. In making this finding, the undersigned has considered whether the “paragraph B” criteria were satisfied. To satisfy the “paragraph B” criteria, the mental impairment must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. A marked limitation means more than moderate but less than extreme. Repeated episodes of decompensation, each of extended duration, means three episodes within 1 year, or an average of once every 4 months, each lasting for at least 2 weeks. 13 14 15 16 17 18 . . . Dr. Rodriguez reported on June 17, 2006, that the claimant is able to dress and undress himself, drive a car, run errands, go to the store, cook, participate in household chores, go for walks, watch television, handle cash, and pay bills. Dr. Glassman reported on February 3, 2009, that the claimant is able to perform his self grooming, help with household chores, wash dishes, pick up, go grocery shopping, help his wife at the Laundromat, rake leaves, go for walks, and watch television. 19 20 21 22 23 In social functioning, the claimant had mild difficulties. The claimant reported that he lived with his wife and child, talked over the telephone with people and met them socially, and went to church. Dr. Fontana reported on December 17, 2004, that the claimant lived with his wife and two children. . . . Dr. Glassman reported on February 3, 2009, that the claimant was married and worked with his wife in daily activities. 24 25 26 27 28 With regard to concentration, persistence or pace, the claimant had moderate difficulties. His cognitive ability and memory are intact and the medical reports indicate that he functions at a higher level that would allow him to do basic work activity. The undersigned notes that the claimant went into great detail answering his adult function report and disability report. This is indicative of an ability to maintain an acceptable 18 09cv1558 JLS (RBB) 1 level of concentration to perform at least simple tasks. 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As for episodes of decompensation, the claimant had experienced no episodes of decompensation, which have been of extended duration. Because the claimant’s mental impairment did not cause at least two “marked” limitations or one “marked” limitation and “repeated” episodes of decompensation, each of extended duration, the “paragraph B” criteria were not satisfied. The undersigned has also considered whether the “paragraph C” criteria were satisfied. In this case, the evidence fails to establish the presence of the “paragraph C” criteria. There are no extended episodes of decompensation and the claimant is not expected to decompensate with an increase in mental demands. Moreover, he does not need to live in a highly structured living arrangement. . . . . 5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he is not able to climb ladders, ropes, or scaffolds; can occasionally crawl; and is limited to nonpublic, simple, repetitive work that requires limited contact with coworkers. . . . . In terms of the claimant’s alleged disabling impairments, the record fails to document any objective clinical findings establishing that the claimant was not able to perform work in light of the reports of the treating and examining practitioners and the findings made on examination. . . . Dr. Fontana reported on December 17, 2004, that . . . . [claimant’s] thought processes were logical and goal directed and there was no evidence of hallucinations or delusions. He was oriented in all spheres and his immediate, recent, and remote memory was intact. Dr. Rodriguez reported on June 17, 2006, that the claimant was coherent and organized and there was no tangentiality or loosening of associations. He was relevant and nondelusional. He denied any 19 09cv1558 JLS (RBB) 1 2 3 4 auditory or visual hallucinations. He was alert and oriented in all spheres. . . . Dr. Glassman reported on February 3, 2009, that the claimant stated that he could perform a very simple job that was not physically demanding and would allow him to change position frequently. He had no evidence of anxiety and was able to follow instructions. 5 . . . . 6 7 8 9 10 11 As for the opinion evidence, Robert Netter, Ph.D., reported on June 15, 2005, that the claimant had a GAF of 50. On September 26, 2006, Stephen F. Signer, reported that the claimant had a GAF of 50-60. Dr. Brickman reported on October 31, 2006, that the claimant had a GAF of 63.5. Pursuant to 20 CFR § 404.1527 and Social Security Ruling 96.2p, the undersigned assigns significant weight to this opinion, as it is well-supported by the medical evidence finding that the claimant has moderate mental impairment symptoms. 12 13 14 15 16 17 18 19 20 21 22 23 24 Chris S. Pallia, M.D., reported on February 14, 2003, through August 6, 2003, that the claimant was totally temporarily disabled. . . . Louis A. Fontana, M.D., reported on December 17, 2004, that the claimant was temporarily partially psychiatrically disabled. J. Brand Brickman, M.D., reported on October 12, 2004, that the claimant was temporarily partially psychiatrically disabled. A treating physician’s medical opinion, on the issue of the nature and severity of impairment, is entitled to special significance; and, when supported by objective medical evidence and consistent with otherwise substantial evidence of record, entitled to controlling weight. However, statements that a claimant is ‘disabled’, ‘unable to work’ can or cannot perform a past job, meets a listing or the like are not medical opinions but are administrative findings dispositive of a case, requiring familiarity with the Regulations and legal standards set forth therein and in the Dictionary of Occupational Titles. Such issues are reserved to he Commissioner. Furthermore, the record fails [to] support the doctor’s opinion that claimant is incapable of all work. 25 . . . . 26 27 28 On October 12, 2004, Robert Zink, Ph.D., reported testing revealed that the claimant was not significantly impaired in concentration, had unimpaired memory, a little lower that one would 20 09cv1558 JLS (RBB) 1 expect visual scanning/speed and borderline to low average IQ functioning. 2 3 4 Dr. Brickman and Dr. Zink reported on October 11, 2006, that the claimant did not appear to have substantially impaired concentration or visual scanning/speed, unimpaired memory, and IQ functioning in the low average to average range. 5 6 7 8 9 10 Pursuant to 20 CFR § 404.1527, the undersigned assigns significant weight to these examining doctor’s opinions, as they are wellsupported by the medical evidence, including the claimant’s medical history and clinical and objective signs and findings as well as detailed treatment notes, which provides a reasonable basis for claimant’s chronic symptoms and resulting limitations. Moreover, their opinions are not inconsistent with other substantial evidence of record. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Dr. Rodriguez reported on June 17, 2006, that the claimant had a GAF of 70 and was stable on his psychiatric medications. He was found to have no mental functional limitations. Dr. Glassman reported on February 3, 2009, that the claimant had a GAF of 50 and that it would be difficult for him to return to productive full time work given his combination of problems and it would be difficult for him to return to strenuous, physical labor. His ongoing depression and anxiety was likely to impair his ability to retrain successfully in a nonphysical type of employment. He had limited intellectual functioning that further impaired his capacity for flexibility and adaptability and creative change. The undersigned, per SSR 96-6p considered these options because they were based upon a thorough review of the evidence and familiarity with Social Security Rules and Regulations and legal standards set forth therein. Although the state agency consultant opined that the claimant had first no mental limitations and then disabling mental impairments, the claimant’s medical condition indicates moderate limitations. Moreover, these doctors did not have the opportunity to listen to the sworn testimony of the claimant or to observe the claimant’s demeanor. . . . . A Psychiatric Review Technique dated June 26, 2006, by H. Amando, M.D., a State psychiatric 21 09cv1558 JLS (RBB) 1 2 3 4 5 6 7 8 consultant, found that the objective medical evidence supported a finding that the claimant had medically determinable dysthymic disorder that was not severe. The undersigned . . . considered this opinion because it was based upon a thorough review of the evidence and familiarity with Social Security Rules and Regulations and legal standards set forth therein. Although the state agency consultant opined that the claimant did not have a severe mental impairment, the claimant’s medical condition indicates severe mental limitations. Moreover, this doctor did not have an opportunity to review to [sic] the additional medical evidence submitted after their evaluations or to listen to he sworn testimony of the claimant or to observe claimant’s demeanor. 9 . . . . 10 11 12 13 10. Through the dated last insured, considering the claimant’s age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed. 14 15 16 . . . . 11. The claimant was not under a disability, as defined in the Social Security Act, at any time from December 11, 2002, the alleged onset date, through December 31, 2007, the date last insured. 17 (Id. Attach. #2, 27-36 (citations omitted).) 18 Based on all of the above, Judge Steinman held that Olivera 19 was not entitled to disability insurance benefits from December 20 11, 2002, through December 31, 2007, the date he was last insured. 21 (Id. at 36.) 22 V. STANDARD OF REVIEW 23 A. Generally 24 To qualify for disability benefits under the Social Security 25 Act, an applicant must show two things: (1) He or she suffers 26 from a medically determinable impairment that can be expected to 27 last for a continuous period of twelve months or more, or would 28 result in death; and (2) the impairment renders the applicant K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 22 09cv1558 JLS (RBB) 1 incapable of performing the work that he or she previously 2 performed or any other substantially gainful employment that 3 exists in the national economy. 4 (2)(A) (West Supp. 2010). 5 requirements to be classified as “disabled.” 6 See 42 U.S.C.A. §§ 423(d)(1)(A), An applicant must meet both Id. Sections 205(g) and 1631(c)(3) of the Social Security Act 7 allow applicants whose claims have been denied by the SSA to seek 8 judicial review of the Commissioner’s final agency decision. 9 U.S.C.A. §§ 405(g), 1383(c)(3) (West Supp. 2010). 42 The Court 10 should affirm the decision unless “it is based upon legal error or 11 is not supported by substantial evidence.” 12 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 13 161 F.3d 599, 601 (9th Cir. 1999)). Bayliss v. Barnhart, 14 “Substantial evidence is such relevant evidence as a 15 reasonable mind might accept as adequate to support [the ALJ’s] 16 conclusion[,]” considering the record as a whole. 17 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Richardson v. 18 Perales, 402 U.S. 389, 401 (1971)). 19 scintilla but less than a preponderance’” of the evidence. 20 Bayliss, 427 F.3d at 1214 n.1 (quoting Tidwell, 161 F.3d at 601). 21 “‘[T]he court must consider both evidence that supports and the 22 evidence that detracts from the ALJ’s conclusion . . . .’” 23 v. Barnhart, 314 F.3d 359, 366-67 (9th Cir. 2002) (quoting Jones 24 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). 25 Webb v. It means “‘more than a mere Frost To determine whether a claimant is “disabled,” the Social 26 Security regulations use a five-step process outlined in 20 C.F.R. 27 § 404.1520 (2010). 28 “not disabled” at any step, there is no need to proceed further. If an applicant is found to be “disabled” or K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 23 09cv1558 JLS (RBB) 1 Ukolov v. Barnhart, 420 F.3d 1002, 1003 (9th Cir. 2005) (quoting 2 Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974 (9th 3 Cir. 2000)). 4 developing a record, the applicant bears the burden of proof 5 during the first four steps. 6 1098 & n.3 (9th Cir. 1999). 7 however, the burden shifts to the Commissioner. 8 steps for evaluating a claim are as follows: 9 10 11 12 Although the ALJ must assist the applicant in Tackett v. Apfel, 180 F.3d 1094, If the fifth step is reached, Id. at 1098. The Step 1. Is the claimant presently working in a substantially gainful activity? If so, then the claimant is “not disabled” within the meaning of the Social Security Act and is not entitled to disability insurance benefits. If the claimant is not working in a substantially gainful activity, then the claimant’s case cannot be resolved at step one and the evaluation proceeds to step two. 13 14 15 16 17 18 19 20 Step 2. Is the claimant’s impairment severe? If not, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant’s impairment is severe, then the claimant’s case cannot be resolved at step two and the evaluation proceeds to step three. Step 3. Does the impairment “meet or equal” one of a list of specific impairments described in the regulations? If so, the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant’s impairment neither meets nor equals one of the impairments listed in the regulations, then the claimant’s case cannot be resolved at step three and the evaluation proceeds to step four. 21 22 23 24 Step 4. Is the claimant able to do any work that he or she has done in the past? If so, then the claimant is “not disabled” and is not entitled to disability insurance benefits. If the claimant cannot do any work he or she did in the past, then the claimant’s case cannot be resolved at step four and the evaluation proceeds to the fifth and final step. 25 26 27 28 Step 5. Is the claimant able to do any other work? If not, then the claimant is “disabled” and therefore entitled to disability insurance benefits. If the claimant is able to do other work, then the Commissioner must establish that there are a significant number of jobs in the national economy that claimant can do. There are two ways for the Commissioner to meet the K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 24 09cv1558 JLS (RBB) 1 2 3 4 5 burden of showing that there is other work in “significant numbers” in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2. If the Commissioner meets this burden, the claimant is “not disabled” and therefore not entitled to disability insurance benefits. If the Commissioner cannot meet this burden, then the claimant is “disabled” and therefore entitled to disability benefits. 6 Id. at 1098-99 (footnotes and citations omitted); see also 7 Bustamante v. Massanari, 262 F.3d 949, 954 (9th Cir. 2001) (giving 8 an abbreviated version of the five steps). 9 Section 405(g) permits this Court to enter a judgment 10 affirming, modifying, or reversing the Commissioner’s decision. 11 42 U.S.C.A. § 405(g). The matter may also be remanded to the 12 Social Security Administration for further proceedings. Id. 13 After a case is remanded and an additional hearing is held, the 14 Commissioner may modify or affirm the original findings of fact or 15 the decision. Id. 16 “If the evidence can reasonably support either affirming or 17 reversing the Secretary’s conclusion, the court may not substitute 18 its judgment for that of the Secretary.” Flaten v. Sec’y Health & 19 Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Instead, it 20 must uphold the denial of benefits if the evidence is susceptible 21 to more than one rational interpretation, one of which supports 22 the ALJ’s decision. Burch v. Barnhart, 400 F.3d 676, 679 (9th 23 Cir. 2005). 24 B. For Treating and Examining Physicians 25 According to 20 C.F.R. § 404.1527(d), a treating physician’s 26 opinion must be accorded controlling weight if it is “well27 supported by medically acceptable clinical and laboratory 28 diagnostic techniques and . . . not inconsistent with the other K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 25 09cv1558 JLS (RBB) 1 substantial evidence in [the] case record . . . .” 2 404.1527(d)(2) (2010). 3 given controlling weight, the following factors are applied to 4 determine what weight to give the opinion: 5 treatment relationship and the frequency of examination, (2) the 6 nature and extent of the treatment relationship, (3) the 7 supportability of the opinion, (4) the consistency of the opinion 8 with the record as a whole, (5) the specialization of the treating 9 physician, and (6) any other factors brought to the attention of 20 C.F.R. § If the treating physician’s opinion is not (1) the length of the 10 the ALJ which tend to support or contradict the opinion. 11 404.1527(d)(2)(I)-(ii), (d)(3)-(6). 12 Id. § Opinions of treating physicians may only be rejected under 13 certain circumstances. 14 359 F.3d 1190, 1195 (9th Cir. 2004). 15 Circuit] distinguish among the opinions of three types of 16 physicians: 17 physicians); (2) those who examine but do not treat the claimant 18 (examining physicians); and (3) those who neither examine nor 19 treat the claimant (nonexamining physicians).” 20 81 F.3d 821, 830 (9th Cir. 1995). 21 See Batson v. Comm’r of Soc. Sec. Admin., “Cases in [the Ninth (1) those who treat the claimant (treating Lester v. Chater, The standard for determining whether an ALJ properly rejected 22 the opinion of a treating physician varies. 23 doctor’s opinion is not contradicted by another physician, the ALJ 24 must give clear and convincing reasons for rejecting it. 25 v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also Spelatz 26 v. Astrue, 321 F. App’x 689, 692 (9th Cir. 2009); Lester, 81 F.3d 27 at 830. If the treating Thomas 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 26 09cv1558 JLS (RBB) 1 On the other hand, if the treating physician’s opinion is 2 contradicted, “[t]he ALJ must give specific, legitimate reasons 3 for disregarding the opinion of the treating physician.’” 4 359 F.3d at 1195 (quoting Matney v. Sullivan, 981 F.2d 1016, 1019 5 (9th Cir. 1992); see also Lingenfelter v. Astrue, 504 F.3d 1028, 6 1042 (9th Cir. 2007). 7 conclusory, brief, and unsupported by . . . objective medical 8 findings.” 9 Batson, An ALJ may discredit opinions “that are Batson, 359 F.3d at 1195. “The opinion of an examining physician is, in turn, entitled 10 to greater weight than the opinion of a nonexamining physician.” 11 Lester v. Chater, 81 F.3d at 830 (citing Pitzer v. Sullivan, 908 12 F.2d 502, 506 (9th Cir. 1990); Gallant v. Heckler, 753 F.2d 1450, 13 1454 (9th Cir. 1984)). 14 physicians, if the examining doctor’s opinion is not contradicted, 15 the ALJ must give clear and convincing reasons for rejecting it. 16 Lester, 81 F.3d at 830. 17 even if contradicted by another doctor, can only be rejected for 18 specific and legitimate reasons that are supported by substantial 19 evidence in the record.” 20 Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995)). Similar to the standard for treating “[T]he opinion of an examining doctor, Id. at 830-31 (citing Andrews v. 21 C. 22 “[T]he findings of a nontreating, nonexamining physician can For Nontreating and Nonexamining Physicians 23 amount to substantial evidence, so long as other evidence in the 24 record supports those findings.” 25 522 (9th Cir. 1996). 26 “supported by other evidence in the record and [be] consistent 27 with it.” Saelee v. Chater, 94 F.3d 520, The nonexamining physician’s opinion must be Morgan, 169 F.3d at 600. 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 27 09cv1558 JLS (RBB) 1 VI. 2 A. 3 DISCUSSION Whether the ALJ’s Decision is Free From Legal Error and Based on Substantial Evidence 4 The thrust of Plaintiff’s Motion for Summary Judgment is that 5 the ALJ erred by failing to properly consider Drs. Fontana, 6 Netter, and Brickman’s opinions that Olivera was temporarily, 7 partially psychiatrically disabled for workers’ compensation 8 purposes. 9 (Pl.’s Mot. Summ. J. 5, ECF No. 12.) Defendant asserts that “whether a Workers’ Compensation 10 doctor believes a claimant is ‘temporarily’ and only ‘partially’ 11 disabled due to a psychiatric impairment is not particularly 12 probative evidence in the context of a Social Security disability 13 case where a claimant has to prove that he cannot perform any job 14 for at least 12 months.” 15 Mem. P. & A. 8 (citation and emphasis omitted), ECF No. 14.) 16 1. 17 (Def.’s Cross-Mot. Summ. J. Attach. #1 Analyses for Workers’ Compensation and Social Security Benefits 18 Social Security and workers’ compensation claims are not the 19 same. 20 573, 576 (9th Cir. 1988). 21 evaluate a doctor’s opinions in the proper context. 22 cf. Mejia-Raigoza v. Astrue, Case No. 1:09cv0441 DLB, 2010 WL 23 1797245, at *7 (E.D. Cal. May 3, 2010) (explaining that an ALJ is 24 not required to translate workers’ compensation terminology to a 25 social security setting). 26 Social Security disability scheme are measured quite differently 27 [from the categories under California’s workers’ compensation 28 program].” See Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d An administrative law judge should See id.; but “The categories of work under the See Desrosiers, 846 F.2d at 576. K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 28 09cv1558 JLS (RBB) 1 Findings made in a workers’ compensation case are not 2 conclusive in a Social Security case. 3 F.3d 540, 543-44 (9th Cir. 1996)(citing Desrosiers, 846 F.2d at 4 576). 5 opinion merely because it was issued in the context of a workers’ 6 compensation action.” 7 at *7 (citing Lester v. Chater, 81 F.3d at 832; Booth v. Barnhart, 8 181 F. Supp. 2d at 1105). 9 See Macri v. Chater, 93 “Nonetheless, an ALJ may not ignore a doctor’s medical Mejia-Raigoza v. Astrue, 2010 WL 1797245, Here, on October 27, 2004, Dr. Brickman found that Olivera 10 was temporarily, partially psychiatrically disabled as stated in 11 his Agreed Medical/Legal Evaluation in Psychiatry made in 12 connection with Plaintiff’s workers’ compensation claim. 13 R. Attach. #7, 532, 544, ECF No. 9.) 14 Fontana concluded his initial consultation with Olivera and found 15 Plaintiff was temporarily, partially psychiatrically disabled as 16 part of his workers’ compensation analysis. 17 On May 23, 2005, Dr. Netter performed a psychological consultation 18 as part of Olivera’s workers’ compensation case and stated that 19 Plaintiff was temporarily, partially psychiatrically disabled. 20 (Id. at 554, 566.) 21 temporarily, partially psychiatrically disabled on October 3, 22 2005, in the psychological treatment report regarding Olivera’s 23 workers’ compensation case. 24 (Admin. On December 17, 2004, Dr. (Id. at 314, 321.) Dr. Netter again reported that Plaintiff was (Id. at 607, 611.) Administrative Law Judge Steinman addressed Drs. Fontana and 25 Brickman’s findings that Olivera was temporarily, partially 26 psychiatrically disabled. 27 stated: 28 (Id. Attach. #2, 32.) Judge Steinman A treating physician’s medical opinion, on the issue of the nature and severity of an impairment, K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 29 09cv1558 JLS (RBB) 1 is entitled to special significance; and, when supported by objective medical evidence and consistent with otherwise substantial evidence of record, entitled to controlling weight. However, statements that a claimant is ‘disabled’, ‘unable to work’ can or cannot perform a past job, meets a listing or the like are not medical opinions but are administrative findings dispositive of a case, requiring familiarity with the Regulations and legal standards set forth therein and in the Dictionary of Occupational Titles. Such issues are reserved to the Commissioner. Furthermore, the record fails [to] support the doctor’s opinion that claimant is incapable of all work. 2 3 4 5 6 7 8 The judge did not discuss Dr. Netter’s opinion that (Id.) 9 Plaintiff was temporarily, partially psychiatrically disabled. 10 But ALJ Steinman properly observed there is a difference between a 11 disability finding in the workers’ compensation context and one 12 made when deciding eligibility for Social Security benefits. See 13 Desrosiers, 846 F.2d at 576. A finding that Plaintiff was 14 temporarily, partially psychiatrically disabled for workers’ 15 compensation purposes, is not conclusive here. See Macri, 93 F.3d 16 at 543-44 (citing Desrosiers, 846 F.2d at 576). ALJ Steinman 17 properly recognized the distinction between Olivera’s prior 18 workers’ compensation case and a claim for disability insurance 19 benefits. Still, the ALJ’s decision must be free of legal error 20 and supported by substantial evidence. 21 2. Plaintiff’s Mental Limitations 22 Administrative Judge Steinman explained why Olivera’s mental 23 impairments did not meet or equal any medical listing. 24 25 26 27 28 To satisfy the ‘paragraph B’ criteria, the mental impairment must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. A marked limitation means more than moderate but less than extreme. K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 30 09cv1558 JLS (RBB) 1 2 (Admin. R. Attach. #2, 28.) The ALJ found that Olivera had mild restriction in his 3 activities of daily living. 4 Rodriguez’s June 17, 2006 report, which stated “that the claimant 5 is able to dress and undress himself, drive a car, run errands, go 6 to the store, cook, participate in household chores, go for walks, 7 watch television, handle cash, and pay bills.” 8 also cited Dr. Glassman’s more recent report, dated February 3, 9 2009, which noted “that the claimant is able to perform his self (Id. at 29.) He cited Dr. (Id.) The judge 10 grooming, help with household chores, wash dishes, pick up, go 11 grocery shopping, help his wife at the Laundromat, rake leaves, go 12 for walks, and watch television.” 13 (Id.) The administrative law judge found that Olivera had mild 14 difficulties in social functioning. 15 that he lived with his wife and child, talked over the telephone 16 with people and met them socially, and went to church.” 17 The ALJ noted Dr. Fontana’s report, dated December 17, 2004, 18 disclosed “that the claimant lived with his wife and two 19 children.” 20 “that the claimant was married and worked with his wife in daily 21 activities.” (Id.) 22 (Id.) (Id.) “[Plaintiff] reported (Id.) Dr. Glassman’s February 3, 2009 report stated Judge Steinman determined that Olivera had moderate 23 difficulties with concentration, persistence, and pace. 24 “His cognitive ability and memory are intact and the medical 25 reports indicate that he functions at a higher level that would 26 allow him to do basic work activity.” 27 observed “that the claimant went into great detail answering his 28 adult function report and disability report. K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 31 (Id.) (Id.) ALJ Steinman This is indicative 09cv1558 JLS (RBB) 1 of an ability to maintain an acceptable level of concentration to 2 perform at least simple tasks.” 3 that Olivera “had experienced no episodes of decompensation, which 4 have been of extended duration.” 5 evidence to support his finding that Olivera did not have a mental 6 impairment which met or equaled any medical listing. 7 29.) 8 his assessment. 9 (Id.) (Id.) Finally, the judge noted Judge Steinman identified (Id. at 28- He identified reports, findings, and testimony to support (Id.) Olivera asserts that “[t]he ALJ ignored the opinions of Drs. 10 Fontana, Netter, Brickman and Glassman.” 11 (emphasis added), ECF No. 12.) 12 Steinman’s decision reveals that he considered the doctors’ 13 opinions. 14 a case in which the administrative law judge omitted discussion of 15 certain doctors altogether. 16 afforded the doctors’ opinions insufficient weight. 17 (Pl.’s Mot. Summ. J. 5 Even a cursory review of Judge (Admin. R. Attach. #2, 29-33, ECF No. 9.) This is not Olivera’s contention is that the ALJ Plaintiff faults Judge Steinman for not giving adequate 18 weight to the opinions of Drs. Fontana and Netter, and for 19 “failing to provide adequate reasons for his obvious rejection of 20 these opinions.” 21 administrative law judge found that Plaintiff was “limited to 22 nonpublic, simple, repetitive work that requires limited contact 23 with coworkers.” 24 does not explain what restrictions he believes are appropriate 25 after Drs. Fontana, Netter, Brickman, and Glassman’s opinions are 26 afforded more weight. 27 Commissioner’s denial of benefits should be set aside for legal 28 error and as unsupported by substantial evidence. (Pl’s Mot. Summ. J. 6, ECF No. 12.) The (Admin. R. Attach. #2, 30, ECF No. 9.) Olivera Plaintiff appears to contend that the K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 32 (Pl’s Mot. 09cv1558 JLS (RBB) 1 Summ. J. 5, ECF No. 12); see Mayes v. Massanari, 276 F.3d 453, 2 458-59 (9th Cir. 2001). 3 supports the ALJ’s mental capacity finding. 4 Summ. J. Attach. #1 Mem. P. & A. 3, ECF No. 14.) 5 3. 6 Defendant urges that substantial evidence (Def’s Cross-Mot. Treating and Examining Physicians Judge Steinman summarized his reasons for concluding that 7 Olivera did not suffer from a mental disability. 8 claimant’s alleged disabling [mental] impairments, the record 9 fails to document any objective clinical findings establishing 10 that the claimant was not able to perform work in light of the 11 reports of the treating and examining practitioners and the 12 findings made on examination.” 13 9.) 14 the record from Plaintiff’s treating and examining doctors. 15 16 support Olivera’s claim of total mental disability. Dr. Fontana reported on December 17, 2004, that . . . [claimant’s] thought processes were logical and goal directed and there was no evidence of hallucinations or delusions. He was oriented in all spheres and his immediate, recent, and remote memory was intact. Dr. Rodriguez reported on June 17, 2006, that the claimant was coherent and organized and there was no tangentiality or loosening of associations. He was relevant and nondelusional. He denied any auditory or visual hallucinations. He was alert and oriented in all spheres. . . . Dr. Glassman reported on February 3, 2009, that the claimant stated that he could perform a very simple job that was not physically demanding and would allow him to change position frequently. He had no evidence of anxiety and was able to follow instructions. 19 20 21 22 23 24 25 28 (Id.) He identified the specific reports and findings that did not 18 27 (Admin. R. Attach. #2, 31, ECF No. The ALJ explained that his decision was based on evidence in 17 26 “In terms of the (Id.) Judge Steinman cited reports of the treating physician, Dr. Fontana, dated December 17, 2004, and reports of examining K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 33 09cv1558 JLS (RBB) 1 physicians, Dr. Rodriguez, dated June 16, 2006, and Dr. Glassman, 2 dated February 3, 2009. 3 findings in these reports that Olivera was well oriented, had 4 intact memory, showed no evidence of loosening associations, and 5 believed he could perform simple work showed that the objective 6 medical evidence did not substantiate mental limitations to the 7 extent asserted by Olivera. 8 doctors’ opinions in these reports. 9 records that undermine Plaintiff’s claim of mental disability 10 identifies substantial evidence supporting the ALJ’s decision. 11 a. 12 (Id.) The ALJ concluded that the (Id.) Judge Steinman credits the This description of the Dr. Fontana Plaintiff argues that “[t]he ALJ failed to comply with 20 13 C.F.R. § 416.927 by failing to accord adequate weight to the 14 opinion of the Mr. Olivera’s [sic] treating psychiatrist and 15 treating psychologist, Dr. Fontana and Dr. Netter, and by failing 16 to provide adequate reasons for his obvious rejection of these 17 opinions.” 18 contends that the opinions of these treating physicians deserve 19 controlling weight, and “[e]ven if the ALJ does not find that a 20 treating physician’s opinion is entitled to controlling weight, he 21 or she must consider the factors set forth in 20 C.F.R. § 22 404.1527(d) in evaluating any medical source opinion.” 23 6.) 24 examination, nature and extent of the treatment relationship, 25 support of opinion afforded by medical evidence, consistency of 26 opinion with the record as a whole, and specialization of the 27 treating physician.” (Pl.’s Mot. Summ. J. 5-6, ECF No. 12.) Olivera (Id. at Those factors include “length of treatment, frequency of (Id. (citation omitted)). 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 34 09cv1558 JLS (RBB) 1 Defendant’s argues that “[t]he ALJ acknowledged that 2 Plaintiff had been treated by psychiatrist Louis A. Fontana, M.D., 3 in the context of his Workers’ Compensation claim.” 4 Cross-Mot. Summ. J. Attach. #1 Mem. P. & A. 6 (citation omitted), 5 ECF No. 14.) 6 December 2004, Dr. Fontana found that, during an hour and a half 7 interview, Plaintiff’s thought processes were logical and goal 8 directed, he was fully oriented and had intact immediate, recent 9 and remote memory.” 10 (Def.’s Defendant continues, “The ALJ noted that, in (Id. at 6-7 (citation omitted).) Judge Steinman considered Dr. Fontana’s opinion that Olivera 11 was temporarily, partially psychiatrically disabled for workers’ 12 compensation purposes and gave it “special significance” but held 13 that “the record fails to support the doctor’s opinion that the 14 claimant is incapable of all work.” 15 ECF No. 9.) 16 individual was disabled is not a medical opinion; that 17 determination is reserved to the Commissioner. 18 discussed above, state disability guidelines for workers’ 19 compensation purposes are not determinative in Social Security 20 cases. 21 576). 22 (Admin. R. Attach. #2, 32, The ALJ explained that a doctor’s statement that an (Id.) As Macri, 93 F.3d at 543-44 (citing Desrosiers, 846 F.2d at Judge Steinman held that “the record fails to document any 23 objective clinical findings that [Olivera] was not able to perform 24 work . . . . 25 administrative law judge considered tests performed by Dr. Zink on 26 October 12, 2004, that showed Olivera’s concentration was not 27 significantly impaired, his memory was not impaired, his visual 28 scanning/speed was a little lower than expected, and his (Admin. R. Attach. #2, 31, ECF No. 9.) K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 35 The 09cv1558 JLS (RBB) 1 intelligence was borderline to low average. 2 reviewed October 11, 2006 reports by doctors Brickman and Zink 3 that Olivera’s concentration and visual scanning/speed was not 4 substantially impaired, his memory was unimpaired, and his 5 intelligence was low average to average. 6 (Id. at 33.) The ALJ (Id.) Judge Steinman gave Dr. Fontana’s opinion special 7 significance but noted the difference between a disability finding 8 for workers’ compensation purposes and Social Security benefits; 9 he also found that the objective medical evidence did not support 10 the level of disability claimed by Plaintiff. 11 legitimate reasons for disregarding Dr. Fontana’s conclusions. 12 Batson, 359 F.3d at 1195. 13 substantial evidence. 14 b. These are specific, The ALJ’s decision was supported by Dr. Glassman 15 Plaintiff states that “Dr. Glassman opined that it would be 16 difficult for Mr. Olivera to return to productive full time work 17 given his combination of problems and it would be difficult for 18 him to return to strenuous, physical labor.” 19 7, ECF No. 12.) 20 score of fifty and found depression and anxiety would make it 21 unlikely that Olivera could retrain to a nonphysical employment. 22 (Id.) 23 intellectual functioning. 24 error for the ALJ to ignore the opinion of Dr. Glassman.” 25 (Pl.’s Mot. Summ. J. Plaintiff notes that Dr. Glassman gave him a GAF Olivera was further impaired because he had limited (Id.) Plaintiff concludes, “It was (Id.) Defendant explains that the administrative law judge 26 “acknowledged that, in February 2009, Plaintiff was evaluated by 27 Jaga N. Glassman, M.D.” 28 Mem. P. & A. 5 (citation omitted), ECF No. 14.) K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd (Def.’s Cross-Mot. Summ. J. Attach. #1 36 Defendant noted 09cv1558 JLS (RBB) 1 that “Dr. Glassman’s evaluation was done more than two years after 2 Plaintiff was last insured for [disability insurance benefits].” 3 (Id.) 4 Olivera to perform full-time work, the doctor also “found 5 Plaintiff was able to care for himself, help with household 6 chores, wash dishes, do some ‘picking up,’ grocery shop, help his 7 wife at the Laundromat, rake leaves and go for walks.” 8 (citation omitted).) 9 to perform a very simple job, he had not been to the doctor in a Although Dr. Glassman found that it would be difficult for (Id. Olivera told Glassman that he might be able 10 while, and he stopped taking medications because they were too 11 expensive but he failed to seek assistance from “County mental 12 health services.” 13 contends that the ALJ’s decision is supported by substantial 14 evidence. 15 (Id.) For all of these reasons, Defendant (Id.) Dr. Glassman did not examine Olivera until well after the 16 last date he was eligible for disability benefits. 17 Attach. #2, 27, 31, ECF No. 9.) 18 request of the California Department of Social Services for a 19 psychiatric disability evaluation.” 20 noted Dr. Glassman’s conclusions. 21 could perform a very simple job that was not physically demanding 22 and would allow him to change position frequently. 23 evidence of anxiety and was able to follow instructions.” 24 31.) 25 26 27 28 (Admin. R. The doctor saw Plaintiff “at the (Id. at 28.) Judge Steinman “[T]he claimant stated that he He had no (Id. at The ALJ discussed Dr. Glassman’s report: Dr. Glassman reported on February 3, 2009, that the claimant had a GAF of 50 and that it would be difficult for him to return to productive full time work given his combination of problems and it would be difficult for him to return to strenuous, physical labor. His ongoing depression and anxiety was likely to impair his ability to retrain successfully in a nonphysical type of K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 37 09cv1558 JLS (RBB) 1 2 3 4 employment. He had limited intellectual functioning that further impaired his capacity for flexibility and adaptability and creative change. (Id. at 33)(citation omitted).) The ALJ concluded his discussion of the experts by stating 5 that he considered “these opinions because based on a thorough 6 review of the evidence and familiarity with Social Security Rules 7 and Regulations and legal standards set forth therein.” 8 The judge added, “Although the state agency consultants opined 9 that the claimant had first no mental limitations and then (Id.) 10 disabling mental impairments, the claimant’s medical condition 11 indicates moderate limitations. 12 have the opportunity to listen to the sworn testimony of the 13 claimant or to observe the claimant’s demeanor.” Moreover, these doctors did not (Id.) 14 The administrative law judge credited Dr. Glassman’s February 15 3, 2009 report and findings, even though it was prepared after the 16 disability period. 17 Glassman’s GAF assessment and conclusion that it would be 18 “difficult” for Olivera to return to work, or his finding that 19 Plaintiff had “limited intellectual functioning.” 20 assessment alone cannot establish disability. 21 Comm’r Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). 22 Steinman found “minimal clinical evidence to corroborate or 23 support any finding of significant vocational impact related [to 24 Olivera’s other diagnosed conditions.] 25 The ALJ did not give significant weight to Dr. (Id.) A GAF See Morgan v. Judge The law does not “require the ALJ to evaluate in writing 26 every piece of testimony and evidence submitted.” 27 Heckler, 760 F.2d 160, 166 (7th Cir. 1985). 28 “minimal level of articulation by the ALJ as to his assessment of K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 38 Zalewski v. Courts only require a 09cv1558 JLS (RBB) 1 the evidence . . . .” 2 gave specific, legitimate reasons for failing to give all aspects 3 of Dr. Glassman’s consultative medical evaluation significant 4 weight. 5 Steinman ignored Dr. Glassman’s opinion is plainly incorrect. 6 (See Pl’s Mot. Summ. J. 7.) 9 Judge Steinman met this threshold. See Batson, 359 F.3d at 1195. 7 8 Id. c. He The contention that Judge Dr. Netter Plaintiff argues that “[t]he ALJ failed to comply with 20 C.F.R. § 416.927 by failing to accord adequate weight to the 10 opinion of . . . Mr. Olivera’s treating psychiatrist and treating 11 psychologist, Dr. Fontana and Dr. Netter, and by failing to 12 provide adequate reasons for his obvious rejection of these 13 opinions.” 14 (Id. at 5-6.) Defendant states, “The ALJ acknowledged that Roberto Netter, 15 Ph.D., had assessed a GAF score of 50.” 16 J. Attach. #1 Mem. P. & A. 7, ECF No. 14.) 17 that “[t]he ALJ did not address Dr. Netter’s findings in further 18 detail.” 19 finding that Olivera could not return to his past work is not in 20 dispute. 21 Olivera should not engage in work that would lead to increased 22 psychologically-mediated pain or increased anxiety or depression 23 is consistent with the administrative law judge’s decision. 24 “The ALJ’s limiting Plaintiff to simple, repetitive work that had 25 little contact with co-workers adequately accounts for these 26 limitations; thus, any error this court might attribute to he 27 ALJ’s treatment of Dr. Netter’s opinion is harmless.” 28 (citation omitted).) (Id. (citation omitted).) (Id.) (Def.’s Cross-Mot. Summ. Defendant concedes He explains that Dr. Netter’s Defendant asserts that the doctor’s opinion that K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 39 (Id.) (Id. 09cv1558 JLS (RBB) 1 In his decision, ALJ Steinman stated, “As for the opinion 2 evidence, Robert Netter, Ph.D., reported on June 15, 2005, that 3 the claimant had a GAF of 50.” 4 (citation omitted), ECF No. 9.) 5 F. Signer, reported that the claimant had a GAF of 50-60. 6 Brickman reported on October 31, 2006, that the claimant had a GAF 7 of 63.5.” 8 judge concluded, “Pursuant to 20 CFR § 404.1527 and Social 9 Security Ruling 96-2p, the undersigned assigns significant weight (Admin. R. Attach. #2, 32 “On September 26, 2006, Stephen (Id. (citations omitted).) Dr. The administrative law 10 to [Dr. Brickman’s] opinion, as it is well-supported by the 11 medical evidence finding that the claimant has moderate mental 12 impairment symptoms.” 13 (Id.) The ALJ considered Dr. Netter’s opinion but assigned it less 14 weight than Dr. Brickman’s. 15 reasons for discounting Dr. Netter’s opinion regarding the GAF 16 score, other than his finding that Dr. Brickman’s opinion was 17 well-supported by the evidence. 18 an agreed medical evaluation of Olivera and issued his report on 19 October 27, 2004, and then again two years later, on October 31, 20 2006. Judge Steinman did not give any (Id.) Dr. Brickman had conducted (Id. Attach. #7, 532; Attach. #8, 656, 663.) 21 As discussed above, if the treating physician’s opinion is 22 contradicted, “[t]he ALJ must give specific, legitimate reasons 23 for disregarding the opinion of the treating physician.’” 24 (quoting Matney, 981 F.2d at 1019); see also Lingenfelter, 504 25 F.3d at, 1042. 26 Netter’s GAF assessment. 27 psychologist’s opinion alone does not set forth adequate “specific 28 [and] legitimate reasons for disregarding the opinion of the Id. The ALJ failed to do so with regard to Dr. K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd The judge’s preference for a different 40 09cv1558 JLS (RBB) 1 treating physician.’” 2 this is harmless error. 3 Mem. P. & A. 7 (citing Ukolov v. Barnhart, 420 F.3d 1002, 1006 n.6 4 (9th Cir. 2005), ECF No. 14.) 5 Batson, 359 F.3d at 1195. Defendant argues (Def.’s Cross-Mot. Summ. J. Attach. #1 “[T]he Commissioner has determined that the GAF scale ‘does 6 not have a direct correlation to the severity requirements in [the 7 Social Security Administration’s] mental disorders listings.’” 8 Esquer v. Astrue, No. 08cv636BTM(AJB), 2009 U.S. Dist. LEXIS 9 121583, at *11 (S.D. Cal. Dec. 31, 2009 (citing 65 Fed. Reg. 10 50,746, 50,765 (Aug. 21, 2000)). 11 indicates serious symptoms (e.g. suicidal ideation, severe 12 obsessional rituals, frequent shoplifting) or any serious 13 impairment in social, occupational, or school functioning (e.g., 14 no friends, unable to keep a job).” 15 Admin., 169 F.3d at 598 n.1. 16 severity of symptoms or functional impairments, GAF . . . scores 17 of 51 to 60 represent ‘moderate’, [and] scores of 61 to 70 18 represent ‘mild[]’ . . . . ” 19 2010 U.S. Dist. LEXIS 59697, at 33 n.3 (E.D. Mo. June 16, 2010). 20 “A GAF between 41 and 50 Morgan v. Comm’r Soc. Sec. “Expressed in terms of degree of Hemp v. Astrue, No. 2:09cv34MLM, On June 15, 2005, Dr. Netter assigned Olivera a “current” GAF 21 score of fifty and found that he was temporarily, partially 22 psychiatrically disabled for workers’ compensation purposes. 23 (Admin. R. Attach. #8, 565-66, 568.) 24 “Need for Vocational Rehabilitation & Work Restrictions.” 25 567.) 26 27 28 Dr. Netter discussed the (Id. at It is reasonable to expect that Mr. [Olivera] will not be able to return to his customary duties, secondary to residual symptoms of Posttraumatic Stress Disorder. At this time, he is precluded from engaging in work that would lead to increased K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 41 09cv1558 JLS (RBB) 1 psychologically-mediated exacerbated physical pain, for such will lead to increased anxiety and depression, and maintenance of this vicious cycle . . . . 2 3 . . . . 4 At this time it is anticipated that treatment goals will be reached with approximately 18 combined individual and group treatment sessions. 5 6 7 (Id.) 8 partially disabled is not inconsistent with the administrative law 9 judge’s 2009 decision that Plaintiff was capable of simple, 10 11 Dr. Netter’s 2005 finding that Olivera was temporarily, repetitive work and could have limited contact with coworkers. “While a GAF score may be of considerable help to the ALJ in 12 formulating the RFC [residual functional capacity], it is not 13 essential to the RFC’s accuracy. 14 reference the GAF score in the RFC, standing alone, does not make 15 the RFC inaccurate.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 16 241 (6th Cir. 2002). Thus, it was harmless error for the ALJ to 17 fail to explain his reasons for discrediting Dr. Netter’s GAF 18 assessment because that opinion did not establish mental 19 disability or affect the result in this case. 20 F.3d at 1006 n.6. 21 placed on Olivera do not conflict with Dr. Netter’s statement that 22 Plaintiff should not perform work that would increase his anxiety, 23 depression, or mentally-induced pain, because the jobs identified 24 by the ALJ fit within Olivera’s residual functional capacity. Thus, the ALJ’s failure to See Ukolov, 420 The mental limitations that Judge Steinman 25 A court must uphold the denial of benefits if the evidence is 26 susceptible to more than one rational interpretation, one of which 27 supports the ALJ’s decision. Burch, 400 F.3d at 679. Dr. 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 42 09cv1558 JLS (RBB) 1 Netter’s description of workplace options for Plaintiff is 2 consistent with the ALJ’s decision. 3 ALJ Steinman failed to provide specific and legitimate 4 reasons for preferring Dr. Brickman’s GAF assessment over Dr. 5 Netter’s and omitting Dr. Netter’s findings that Olivera was 6 temporarily, partially psychiatrically disabled for workers’ 7 compensation purposes, but any error was harmless. 8 9 d. Dr. Brickman Plaintiff argues that Dr. Brickman found Olivera was 10 temporarily, partially psychiatrically disabled for two years due 11 to (1) posttraumatic stress disorder, (2) adjustment disorder with 12 depressed mood, (3) pain disorder associated with both 13 psychological factors and a general medical condition, and (4) 14 anxiety disorder. 15 incumbent on the ALJ to weigh these opinions in his decision.” 16 (Id. at 6-7.) 17 (Pl.’s Mot. Summ. J. 6, ECF No. 12.) “It was Defendant argues that the administrative law judge properly 18 evaluated Dr. Brickman’s opinion. 19 Attach. #1 Mem. P. & A. 6, ECF No. 14.) 20 Brickman, M.D., assessed a GAF score of 63.5 in October 2006, 21 which is consistent with only moderate symptoms, not disabling 22 symptoms.” 23 that, also in October 2006, Dr. Brickman opined that Plaintiff did 24 not appear to have substantially impaired concentration and his 25 memory was unimpaired.” 26 (Def.’s Cross-Mot. Summ. J. (Id. (citations omitted).) “The ALJ noted J. Brand “The ALJ further noted (Id. (citation omitted).) The administrative law judge observed that “Dr. Brickman 27 reported on October 31, 2006, that the claimant had a GAF of 28 63.5.” (Admin. R. Attach. #2, 32, ECF No. 9.) K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 43 The ALJ concluded, 09cv1558 JLS (RBB) 1 “Pursuant to 20 CFR § 404.1527 and Social Security Ruling 96-2p, 2 the undersigned assigns significant weight to [Dr. Brickman’s] 3 opinion [of Olivera’s GAF score], as it is well-supported by the 4 medical evidence finding that the claimant has moderate mental 5 impairment symptoms.” 6 Dr. Brickman’s conclusions significant weight. 7 (Id.) Judge Steinman gave this aspect of In his decision, ALJ Steinman explains that “Dr. Brickman and 8 Dr. Zink reported on October 11, 2006, that the claimant did not 9 appear to have substantially impaired concentration or visual 10 scanning/speed, unimpaired memory, and IQ functioning in the low 11 average to average range.” 12 reasons for giving these opinions significant weight: 13 (Id. at 33.) The judge stated his Pursuant to 20 CFR § 404.1527, the undersigned assigns significant weight to these examining doctor’s opinions, as they are wellsupported by the medical evidence, including the claimant’s medical history and clinical and objective signs and findings as well as detailed treatment notes, which provides a reasonable basis for claimant’s chronic symptoms and resulting limitations. Moreover, their opinions are not inconsistent with other substantial evidence of record. 14 15 16 17 18 19 (Id.) 20 Plaintiff’s argument that Dr. Brickman was not afforded 21 sufficient weight appears to focus on the doctor’s 2004 report. 22 (Compare Pl’s Not. Summ. J. 6-7, ECF No. 12, with Admin. R. 23 Attach. #7, 543-44, ECF No. 9.) The ALJ deferred to opinions 24 contained in Dr. Brickman’s 2006 report. In 2004, The doctor 25 stated that Olivera was temporarily, partially psychiatrically 26 disabled and required psychiatric treatment. (Admin. R. Attach. 27 #7, 544, ECF No. 9.) In 2006, he noted that Plaintiff had 28 “received considerable benefit from his contacts with Dr. Netter . K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 44 09cv1558 JLS (RBB) 1 . . .” 2 condition. 3 a work-related, purely Psychiatric Disability, is currently 4 incapable of returning to his usual and customary occupation . . . 5 .” 6 Attach. #2, 32-33.) 7 Brickman’s 2006 opinion more weight. (Id.) 8 9 (Id. at 639.) Dr. Brickman discussed Olivera’s mental “I do not believe that Mr. [Olivera], on the basis of The ALJ discussed the 2004 and 2006 reports. 4. (Id. Judge Steinman did not err by affording Dr. Other Disabling Conditions Plaintiff also argues that “the ALJ failed to consider all of 10 Mr. Olivera’s disabling conditions.” 11 No. 9.) 12 to find Olivera suffered from depression and not (1) posttraumatic 13 stress disorder, (2) adjustment disorder with depressed mood, (3) 14 pain disorder associated with both psychological factors and a 15 general medical condition, (4) anxiety disorder, (5) panic 16 disorder with phobic avoidance, and (6) borderline intellectual 17 functioning. 18 conditions had minimal clinical evidence to corroborate them was 19 insufficient, and the ALJ should have considered them in 20 combination. 21 (Pl.’s Mot. Summ. J. 7, ECF Plaintiff contends that it was error for Judge Steinman (Id.) He states that the judge’s finding that these (Id.) Defendant argues that Plaintiff has failed to show he was 22 disabled due to “other psychiatric conditions that were diagnosed 23 at one time or another.” 24 Mem. P. & A. 9 (citation omitted), ECF No. 14.) 25 that none of those other conditions were disabling “as the 26 Commissioner has never found Plaintiff to be disabled and 27 Plaintiff cannot overcome that fact by characterizing diagnoses as 28 ‘disabling.’” (Def.’s Cross-Mot. Summ. J. Attach. #1 (Id. (citation omitted).) K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 45 Defendant alleges Also, “a diagnosis is 09cv1558 JLS (RBB) 1 not evidence of disability.” 2 Plaintiff fails to explain what additional limitations the ALJ 3 might have assessed based on any of the diagnoses to which he 4 refers.” 5 (Id. (citation omitted).) “Finally, (Id.) “[A] claimant carries the initial burden of proving a 6 disability.” 7 v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989).) 8 prove their disability with medical opinions, defined as 9 “statements from physicians and psychologists or other acceptable Burch v. Barnhart, 400 F.3d at 683 (citing Swenson Claimants may 10 medical sources.” 11 2008). 12 a claimant’s impairments or compare them to any listing in an 13 equivalency determination, unless the claimant presents evidence 14 in an effort to establish equivalence.” 15 (citing Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001).) 16 20 C.F.R. §§ 404.1527(a), 416.927(a) (West “An ALJ is not required to discuss the combined effects of Burch, 400 F.3d at 683 Here, Olivera faults Judge Steinman for failing to consider 17 the combined effects of posttraumatic stress disorder, adjustment 18 disorder with depressed mood, pain disorder associated with both 19 psychological factors and a general medical condition, anxiety 20 disorder, panic disorder with phobic avoidance, and borderline 21 intellectual functioning, but he does not identify which medical 22 listing he believes these multiple diagnoses meet or equal. 23 Plaintiff’s initial burden to prove his alleged disability. 24 Burch, 400 F.3d at 683. 25 fragmentize the effects of Olivera’s diagnoses is insufficient. 26 Id. 27 28 It is Merely asserting the ALJ should not have The ALJ must consider whether the combination of impairments is the medical equivalence of a listed impairment. K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 46 Lester v. 09cv1558 JLS (RBB) 1 Chater, 81 F.3d at 829. 2 Olivera did not have an impairment or combination of impairments 3 that met or medically equaled a listed impairment. 4 Attach. #2, 28, ECF No. 9.) 5 difficulties and limitations. 6 is required to offer a theory as to how the combined effect of 7 [his] impairments equal a listed impairment.” 8 CV09-3050-PK 2010 U.S. Dist. LEXIS 83077, at *58 (D. Or. Aug. 12, 9 2010)(citing Lewis v. Apfel, 236 F.3d at 514). Here, Judge Steinman concluded that (Admin. R. The ALJ discussed the Plaintiff’s (Id. at 28-30.) “The complainant Coley v. Astrue, Olivera has not 10 “pointed to evidence that shows that his combined impairments 11 equal a listed impairment.” 12 satisfied his duty to support his conclusion that the combined 13 effect of [Olivera’s] impairments did not meet or equal a listed 14 impairment by providing an in depth analysis of the medical 15 record.” 16 *59. 17 to consider the combined effects of Olivera’s other diagnoses is 18 without merit. “The ALJ Coley, CV09-3050-PK, 2010 U.S. Dist. LEXIS 83077, at The claim that the administrative law judge erred in failing 19 20 Lewis, 236 F.3d at 514. VII. CONCLUSION AND RECOMMENDATION “The decision of the Commissioner must be upheld if it is 21 supported by substantial evidence and if the Commissioner applied 22 the correct legal standards.” 23 341 F.3d 1006, 1011 (9th Cir. 2003) (citing Pagter v. Massanari, 24 250 F.3d 1255, 1258 (9th Cir. 2001)). 25 not supported by substantial evidence, remand or reversal is 26 appropriate. 27 1984). Howard ex rel. Wolff v. Barnhart, If the AlJ’s decision is Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir. 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 47 09cv1558 JLS (RBB) 1 For the reasons stated above, the Court recommends DENYING 2 Plaintiff’s Motion for Summary Judgment [ECF No. 12], and GRANTING 3 Defendant’s Cross-Motion for Summary Judgment [ECF No. 14]. 4 This Report and Recommendation will be submitted to the 5 United States District Court Judge assigned to this case, pursuant 6 to the provisions of 28 U.S.C. § 636(b)(1). 7 written objections with the Court and serve a copy on all parties 8 on or before December 14, 2010. 9 “Objections to Report and Recommendation.” Any party may file The document should be captioned Any reply to the 10 objections shall be served and filed on or before January 4, 2011. 11 The parties are advised that failure to file objections within the 12 specified time may waive the right to appeal the district court’s 13 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 14 15 DATED: November 22, 2010 Ruben B. Brooks United States Magistrate Judge 16 cc: 17 Judge Sammartino All Parties 18 19 20 21 22 23 24 25 26 27 28 K:\COMMON\BROOKS\CASES\SOCSEC\OLIVERA1558\R&Rv3.wpd 48 09cv1558 JLS (RBB)

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.