Cynthia Mellor v. Jo Anne B Barnhart

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 1 of 9 Page ID #:48 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIF...

0 Downloads 13 Views
Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 1 of 9 Page ID #:48

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

CYNTHIA MELLOR,

) ) Plaintiff, ) ) v. ) ) JO ANNE B. BARNHART, ) COMMISSIONER, SOCIAL SECURITY ) ADMINISTRATION, ) ) Defendant. ) ) )

NO. ED CV 05-668-CT OPINION AND ORDER

17

For the reasons set forth below, it is ordered that judgment be

18

entered in favor of defendant Commissioner of Social Security (“the

19

Commissioner”) because the Commissioner’s decision is supported by

20

substantial evidence and is free from material legal error.

21

SUMMARY OF PROCEEDINGS

22

On July 29, 2005, plaintiff, Cynthia Mellor (“plaintiff”), filed a

23

complaint seeking judicial review of the denial of benefits by the

24

Commissioner pursuant to the Social Security Act (“the Act”). On August

25

24, 2005, the parties filed a consent to proceed before the magistrate

26

judge.

27

authorities in support of remand or reversal.

28

On November 4, 2005, plaintiff filed a brief with points and On December 5, 2005, the

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 2 of 9 Page ID #:49

1

Commissioner filed a brief in opposition to the relief requested in the

2

complaint.

3

SUMMARY OF ADMINISTRATIVE RECORD

4

1.

5

On July 7, 2003, plaintiff filed an application for disability

6

insurance benefits, alleging disability since May 2001 due to chronic

7

vertigo, TMJ, migraines, face, jaw and neck pain, inflamation and

8

infection of eustacian tube.

9

initially and upon reconsideration.

10

Proceedings

(TR 64, 69 ).1

The application was denied

(TR 37, 42).

On April 26, 2004, plaintiff filed a request for a hearing before

11

an administrative law judge (“ALJ”).

12

plaintiff, represented by an attorney, appeared and testified before an

13

ALJ. (TR 296-331). The ALJ also considered vocational expert (“VE”) and

14

medical expert (“ME”) testimony.

15

decision that plaintiff was not disabled, as defined by the Act because

16

she can perform a significant range of low-stress light work that

17

requires simple instructions, does not demand public contact or more

18

than minimal contact with supervisors and co-workers.

19

was not eligible for benefits.

20

plaintiff filed a request with the Social Security Appeals Council to

21

review the ALJ’s decision.

22

denied.

23

decision of the Commissioner.

24

review in this court.

(TR 4).

(TR 47).

On February 1, 2005,

On April 8, 2005, the ALJ issued a

(TR 11-17).

(TR 7).

Thus, plaintiff

On April 18, 2005,

On June 7, 2005, the request was

Accordingly, the ALJ’s decision stands as the final Plaintiff subsequently sought judicial

25 26 27 28

1

“TR” refers to the transcript of the record of administrative proceedings in this case and will be followed by the relevant page number(s) of the transcript. 2

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 3 of 9 Page ID #:50

1

2.

2

The ALJ’s decision is attached as an exhibit to this opinion and

3

Summary Of The Evidence

order and materially summarizes the evidence in the case.

4

PLAINTIFF'S CONTENTIONS

5

Plaintiff contends the ALJ erred by failing to:

6

1.

Properly consider the opinion of a treating psychiatrist;

7

2.

Properly consider lay witness testimony from plaintiff’s mother;

8 9

and, 3.

Pose a complete hypothetical to the VE.

10

STANDARD OF REVIEW

11

Under 42 U.S.C. §405(g), this court reviews the Commissioner's

12

decision to determine if: (1) the Commissioner's findings are supported

13

by substantial evidence; and, (2) the Commissioner used proper legal

14

standards.

15

Substantial evidence means "more than a mere scintilla," Richardson v.

16

Perales, 402 U.S. 389, 401 (1971), but less than a preponderance.

17

Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997).

Macri

v.

Chater,

93

F.3d

540,

543

(9th

Cir.

1996).

18

When the evidence can reasonably support either affirming or

19

reversing the Commissioner’s conclusion, however, the Court may not

20

substitute its judgment for that of the Commissioner.

21

Secretary of Health and Human Services, 44 F.3d 1453, 1457 (9th Cir.

22

1995).

23

Commissioner’s

24

rehearing.”

The court has the authority to affirm, modify, or reverse the decision

“with

or

without

42 U.S.C. §405(g).

25 26 27 28

Flaten v.

3

remanding

the

cause

for

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 4 of 9 Page ID #:51

1

DISCUSSION

2

1.

3

A person is "disabled" for the purpose of receiving social security

4

benefits if he or she is unable to "engage in any substantial gainful

5

activity by reason of any medically determinable physical or mental

6

impairment which can be expected to result in death or which has lasted

7

or can be expected to last for a continuous period of not less than 12

8

months."

9

The Sequential Evaluation

42 U.S.C. §423(d)(1)(A).

The Commissioner has established a five-step sequential evaluation

10

for determining whether a person is disabled.

11

whether the person is engaged in "substantial gainful activity." If so,

12

benefits are denied.

13

First, it is determined

Second, if the person is not so engaged, it is determined whether

14

the

person

has

a

medically

severe

impairment

15

impairments.

16

combination of impairments, benefits are denied.

or

combination

of

If the person does not have a severe impairment or

17

Third, if the person has a severe impairment, it is determined

18

whether the impairment meets or equals one of a number of "listed

19

impairments." If the impairment meets or equals a "listed impairment,"

20

the person is conclusively presumed to be disabled.

21

Fourth,

if

the

impairment

does

not

meet

or

equal

a

"listed

22

impairment," it is determined whether the impairment prevents the person

23

from performing past relevant work.

24

relevant work, benefits are denied.

If the person can perform past

25

Fifth, if the person cannot perform past relevant work, the burden

26

shifts to the Commissioner to show that the person is able to perform

27

other kinds of work.

28

The person is entitled to benefits only if the 4

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 5 of 9 Page ID #:52

1

person is unable to perform other work.

2

Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).

3

2.

4 5

20 C.F.R. §§404.1520, 416.920;

Issues A.

Plaintiff

Treating Psychiatrist contends

that

the

ALJ

failed

to

provide

legally

6

sufficient reasons for rejecting the opinion of William G. Smith, a

7

treating psychiatrist, who opined that plaintiff’s bipolar disorder

8

renders her unable to work.

9

A treating physician’s opinion generally is entitled to great See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995)

10

weight.

11

(citation omitted). “The treating physician’s opinion is not, however,

12

necessarily conclusive as to either a physical condition or the ultimate

13

issue of disability.” Andrews v. Shalala, 53 at 1041 (citing Magallanes

14

v. Bowen, 881 F.2d at 751).

15

opinion depends on whether it is supported by sufficient medical data

16

and is consistent with other evidence in the record.

17

404.1527, 416.927.

The weight given a treating physician’s

See 20 C.F.R. §§

18

The record in this case reveals that in October 2004 plaintiff

19

sought a verification of physical or mental disability from Dr. Smith

20

for an unrelated food stamp program.

21

indicating plaintiff is mentally unfit for gainful employment he wrote

22

“at times her disorder is controlled by medication.”

23

(TR 275).

According to the record, plaintiff saw Dr. Smith and others at the

24

Riverside County Department of Health.

25

noted “have only seen this patient once.

26

274).

27 28

After checking a box

5

On March 31, 2004, Dr. Smith No hospitalizations.”

(TR

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 6 of 9 Page ID #:53

1

While plaintiff was “clear minded and responsive” at the time of

2

her appointment on March 31, 2005, the record from the Riverside County

3

Department of Mental Health also indicates “recent substance abuse” on

4

April 21, 2004.

5

medication to plaintiff between March 31, 2004 and December 15, 2004.

6

Dr. Smith’s notes indicate that by December 15, 2004, plaintiff’s

7

response to medication is “fairly good.”

8 9

(TR 282). The record reflects that Dr. Smith prescribed

(TR 278).

First, plaintiff’s contention that the ALJ did not discuss Dr. Smith’s opinion of disability is belied by the record.

While the ALJ

10

did not specifically mention Dr. Smith by name, her opinion states that

11

plaintiff was treated at the Riverside County Department of Mental

12

Health in 2004 where she was diagnosed with bipolar disorder and treated

13

with medication and therapy and evidences the ALJ’s consideration of the

14

records in connection with that treatment.

(TR 12).

15

Second, the ALJ did find plaintiff has a severe mental impairment

16

which limited her to low-stress work that requires simple instructions

17

and does not demand contact with the public or more than minimal contact

18

with supervisors and co-workers. This is consistent with the opinion of

19

the ME, a psychiatrist, who reviewed plaintiff’s medical records and

20

testified at the hearing (TR 310-15).

21

Smith’s

22

controlled by medication and that by the end of her treatment her

23

response to medication was “fairly good.”

24

that his review of the medical records showed that plaintiff is “stable

25

with medications.”

opinion

that

plaintiff’s

(TR 313).

26 27 28

6

It is also consistent with Dr.

bipolar

disorder

is,

at

times,

Moreover, the ME testified

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 7 of 9 Page ID #:54

1

Third,

the

testimony

of

the

psychiatric

medical

expert,

who

2

reviewed the record evidence, was consistent with the ALJ’s findings.

3

(TR 311-12).

4

Fourth, to the extent, if any, a plaintiff’s substance abuse is a

5

material contributing factor to her disability, she is not entitled to

6

benefits.

7 8

42 U.S.C. § 423(d)(2).

The ALJ’s consideration of Dr. Smith’s opinion is supported by substantial evidence and free from material legal error.

9

B.

10

Testimony of Plaintiff’s Mother

Plaintiff also asserts that the ALJ erred by failing to properly

11

consider

12

sufficient reasons for rejecting that testimony.

13

with the ALJ’s summary of plaintiff’s mother’s written statement, to

14

wit:

15 16 17

the

testimony

of

plaintiff’s

mother

without

providing

Plaintiff disagrees

[plaintiff’s] mother reports [plaintiff] is able to perform a wide variety of self-care duties; mentions slight cognitive problems not corroborated by the evidence, but her statements do not suggest that [plaintiff] cannot work consistent with the residual functional capacity set forth above. (TR 14).

18

“[D]escriptions by friends and family members in a position to

19

observe [plaintiff's] symptoms and daily activities have routinely been

20

treated as competent evidence.”

21

(9th Cir. 1987); see also Crane v. Shalala, 76 F.3d 251, 254 (1996).

22

ALJ may not discount witness reports solely because they were procured

23

by plaintiff.

24

Secretary, Dept. of Health & Human Servs., 839 F. Supp. 1415, 1426 (D.

25

Or. 1993)).

26

lay witness, she must give reasons that are germane to that witness.

Sprague v. Bowen, 812 F.2d 1226, 1232

Crane v. Shalala, 76 F.3d at 254 (citing Ratto v.

Rather, if the ALJ wishes to discount the testimony of a

27 28

The

7

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 8 of 9 Page ID #:55

1

Crane v. Shalala, 76 F.3d at 254 (citing Dodrill v. Shalala, 12 F.3d

2

915, 919 (9th Cir. 1993)).

3

Plaintiff’s contention is belied by the record.

Here, the ALJ

4

considered the function report submitted by plaintiff’s mother. (TR 97-

5

110).2

6

reflect difficulties with, for example, pace and concentration, the ALJ

7

accurately summarized the report and considered it.

8

report also reflects that plaintiff shops, visits friends, helps friends

9

with children, helps a wheelchair bound woman with light housework,

10

gardens, regularly goes to real estate meetings, is smart and recently

11

graduated from MTI College with a 4.0 GPA.

12 13

While plaintiff correctly observes that portions of the report

(Id.)

The ALJ’s consideration of plaintiff’s mother’s function report is free from material legal error and supported by substantial evidence.

14

C.

15 16

Moreover, this

Vocational Expert Testimony

Plaintiff argues that the ALJ erred because his hypothetical to the VE did not completely incorporate plaintiff’s mother’s testimony.

17

For an ALJ’s hypothetical to a VE to be valid, it must include all

18

of a plaintiff’s limitations. Thomas v. Barnhart, 278 F.3d 947, 956 (9th

19

Cir. 2002). However, it need not include limitations not supported by

20

objective medical evidence when plaintiff is found not credible. Id. at

21

959.

22

mild limitations on activities of daily living, moderate limitations on

23

ability to get along with the public, mild limitations on concentration,

24

persistence and pace, can do simple repetitive tasks, but should avoid

25

contact

Here, the ALJ’s hypothetical included the following limitations:

with

the

public,

minimal

contact

with

co-workers

26 2

27 28

This report is not under oath and plaintiff’s mother did not testify at the hearing.

8

and

Case 5:05-cv-00668-CT Document 17 Filed 12/16/05 Page 9 of 9 Page ID #:56

1

supervisors, light exertional level limitation, need to avoid heights,

2

no ladders, no ramps and limited to occasional bending, occasional

3

stooping and occasional looking up.

4 5

(TR 327-28).

The ALJ’s hypothetical was supported by substantial evidence and free from material legal error.

6

CONCLUSION

7

A plaintiff who can still perform work in the national economy,

8

even with a severe impairment or impairments, is not disabled as that

9

term is defined by the Act.

See generally Baxter v. Sullivan, 923 F.2d

10

1391, 1395 (9th Cir. 1991). Furthermore, if the evidence can reasonably

11

support either affirming or reversing the Commissioner’s conclusion, the

12

court may not substitute its judgment for that of the Commissioner.

13

Flaten v. Secretary of Health and Human Services, 44 F.3d at 1457.

14

DATED: December 16, 2005

15 16 17

/ S / CAROLYN TURCHIN UNITED STATES MAGISTRATE JUDGE

18 19 20 21 22 23 24 25 26 27 28

9

English