Opinion
No. CV 08-2837-RC.
August 20, 2009
OPINION AND ORDER
Plaintiff Hortensia C. Freeman filed a complaint on May 8, 2008, seeking review of the Commissioner's decision denying her applications for disability benefits, and on October 22, 2008, the Commissioner answered the complaint. The parties filed a joint stipulation on December 5, 2 008.
BACKGROUND I
On February 2, 2006, plaintiff applied for disability benefits under Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI of the Act, claiming an inability to work since March 23, 2005, due to severe headaches, dizziness, hypertension, and right leg problems. Certified Administrative Record ("A.R.") 108-16, 148. The plaintiff's applications were initially denied on August 30, 2006. A.R. 53-57. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Ariel L. Sotolongo ("the ALJ") on November 1, 2007. A.R. 25-51, 62-63. On January 15, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 8-20. The plaintiff appealed this decision to the Appeals Council, which denied review on March 28, 2008. A.R. 3-7.
II
The plaintiff, who was born on February 11, 1956, is currently 53 years old. A.R. 29, 108, 113. She has a college degree, and previously worked as a bus driver. A.R. 29, 135-42, 148-50, 176.
DISCUSSION III
The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying disability benefits to plaintiff to determine whether the Commissioner's findings are supported by substantial evidence and whether he used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). "In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 128 S. Ct. 1068 (2008); Vasquez, 572 F.3d at 591.
The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting her from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform her past work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g).
Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since her alleged onset date of March 23, 2005. (Step One). The ALJ then found plaintiff "has the following severe impairments: uterine fibroids and bleeding; right leg strain; hypertension and obesity"; however, she does not have a severe mental impairment (Step Two). The ALJ then found plaintiff does not have an impairment or combination of impairments that meets or equals a Listing. (Step Three). The ALJ next determined plaintiff is unable to perform her past relevant work. (Step Four). Finally, the ALJ determined plaintiff can perform a significant number of jobs in the national economy; therefore, she is not disabled. (Step Five).
IV
"`In Social Security cases, the ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (citation omitted); Widmark v. Barnhart, 454 F.3d 1063, 1068 (9th Cir. 2006). This duty exists regardless of whether the claimant is represented by counsel, Celaya v. Halter, 332 F.3d 1177, 1183 (9th Cir. 2003); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001), and it is "heightened where the claimant may be mentally ill and thus unable to protect her own interests." Tonapetyan, 242 F.3d at 1150. "Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to `conduct an appropriate inquiry.'" Tonapetyan, 242 F.3d at 1150 (citations omitted); Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005).
Here, plaintiff contends the ALJ did not fairly develop the record because he failed to request a consultative psychiatric examination of plaintiff. However, the Commissioner "`has broad latitude in ordering a consultative examination[,]'" Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (quoting Diaz v. Sec'y of Health Human Servs., 898 F.2d 774, 778 (10th Cir. 1990)), which is required only "when such an evaluation is necessary for [the ALJ] to make an informed decision." Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001); Holladay v. Bowen, 848 F.2d 1206, 1209 (11th Cir. 1988). In other words, for a consultative examination to be required, there must be "some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision." Hawkins v. Chater, 113 F.3d 1162, 1167 (10th Cir. 1997).
The plaintiff contends a psychiatric consultative examination was required because at one time she complained she was "suffering from depression because of [her] pain." A.R. 168. However, a claimant's "[i]solated and unsupported comments . . . are insufficient" to require a consultative examination. Hawkins, 113 F.3d at 1167. Moreover, plaintiff did not claim she had a mental impairment when applying for disability benefits, A.R. 108-16, 148, nor did she claim any mental health problems during the administrative hearing. A.R. 25-51. In fact, no treating or examining physician has diagnosed plaintiff with depression, and the evidence before the ALJ did not suggest plaintiff has a disabling mental impairment. Therefore, the ALJ did not fail to develop the record by not obtaining a consultative psychiatric examination of plaintiff.Hawkins, 113 F.3d at 1165; Diaz, 898 F.2d at 778.
Indeed, at the administrative hearing, plaintiff's attorney described plaintiff's disability claim as follows:
Basically, the [plaintiff's] past work involved work as a bus driver. She injured her right foot, ankle, [and] leg in doing that kind of work. She also has low back pain. She has a couple of other problems too. She's scheduled for a hysterectomy coming up here in another couple [of] months. She has hypertension [and] digestive problems referred to as [gastroesophageal reflux disease]. So, she has other problems, but her main problem is what's been referred to as regional pain complex or complex regional pain syndrome I should say in the right leg and low back or spinal column disorder. She is due for a spinal cord stimulator to be placed soon, and basically those impairments result in pain, fatigue, swelling, difficulty sleeping at night, and keep her from being able to sustain even sedentary work.
A.R. 28.
Plaintiff points to absolutely no medical evidence supporting her claim of depression, and the record does not show any mental health care after March 23, 2005, the date of plaintiff's alleged onset of disability.
The plaintiff also claims the ALJ failed to properly develop the record regarding the pain medications she was prescribed at Southern California Pain Management Center ("SCPMC"), which "make[] [her] groggy and sleepy during the day[,]" A.R. 30, and because the ALJ did not obtain updated medical records from SCPMC. Jt. Stip. at 8:13-9:15, 11:22-12:19, 13:18-20. However, these claims are without merit since the ALJ specifically left the administrative record open for plaintiff to obtain updated records from SCPMC, A.R. 50-51, but she failed to do so. Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1999).
The most recent medical record from SCPMC, dated March 2, 2006, states plaintiff "has been off medications for about 1 year[.]" A.R. 177.
The ALJ, however, rejected plaintiff's claim of side effects from the medications she used to take, finding it was not credible since it was not supported by the record. A.R. 18. Since plaintiff has not challenged the ALJ's adverse credibility determination, this finding provides a sufficient basis to reject plaintiff's testimony regarding the side effects from her medications. See Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (ALJ properly rejected claimant's alleged side effects, including dizziness and difficulties in concentration, based on a finding plaintiff lacked credibility). Therefore, any possible error stemming from the ALJ not discussing the medications was harmless.
V
When there is a colorable claim of a mental impairment, agency regulations require the ALJ to rate as being either none, mild, moderate, marked, or extreme the claimant's functional limitations in the areas of daily activities, social functioning, and concentration, persistence or pace and also rate as either none, one or two, three, or four or more the claimant's episodes of decompensation, and such ratings must be included in the ALJ's written decision. Behn v. Barnhart, 463 F. Supp. 2d 1043, 1047 (C.D. Cal. 2006); 20 C.F.R. §§ 404.1520a(c)(3-4), (e)(2), 416.920a(c)(3-4), (e)(2). A claim is "colorable" if it is not "wholly insubstantial, immaterial, or frivolous." Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir. 2001) (citations omitted), cert. denied, 537 U.S. 818 (2002);Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987); Behn, 463 F. Supp. 2d at 1047. Here, as set forth above, there is no competent evidence showing that plaintiff, since her alleged onset date of March 23, 2005, has a mental impairment that affects her ability to perform basic work activities. Thus, plaintiff's claim of a mental impairment is not colorable, and the ALJ did not improperly assess her mental condition. Salerno v. Astrue, 266 Fed. Appx. 570, 573 (9th Cir. 2008) (Unpublished Disposition).
The Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing colorable mental impairments. Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914 (9th Cir. 1998) (per curiam). First, the ALJ must determine the presence or absence of certain medical findings relevant to the ability to work. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Second, when the claimant establishes these medical findings, the ALJ must rate the degree of functional loss resulting from the impairment by considering four areas of function: (a) activities of daily living; (b) social functioning; (c) concentration, persistence, or pace; and (d) episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(2-4), 416.920a(c)(2-4). Third, after rating the degree of loss, the ALJ must determine whether the claimant has a severe mental impairment. 20 C.F.R. §§ 404.1520a(d), 416.920a(d). Fourth, when a mental impairment is found to be severe, the ALJ must determine if it meets or equals a Listing. 20 C.F.R. §§ 404.1520a(d)(2), 416.920a(d)(2). Finally, if a Listing is not met, the ALJ must then make a residual functional capacity assessment, and the ALJ's decision "must incorporate the pertinent findings and conclusions" regarding plaintiff's mental impairment, including "a specific finding as to the degree of limitation in each of the functional areas described in [§§ 404.1520a(c)(3), 416.920a(c)(3)]." 20 C.F.R. §§ 404.1520a(d)(3), (e)(2), 416.920a(d)(3), (e)(2).
See Fed.R.App.P. 32.1(a); Ninth Circuit Rule 36-3(b).