Opinion
No. CV-10-0362-CI
05-21-2012
ERIKA M. HERRERA, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross-Motions for Summary Judgment. (ECF No. 14, 16.) Attorney Jeffrey Schwab represents Erika Herrera (Plaintiff); Special Assistant United States Attorney Gerald J. Hill represents the Commissioner of Social Security (Defendant). The parties have consented to proceed before a magistrate judge. (ECF No. 6.) After reviewing the administrative record and briefs filed by the parties, the court DENIES Plaintiff's Motion for Summary Judgment, and directs entry of judgment for Defendant.
JURISDICTION
Plaintiff protectively filed for disability insurance benefits (DIB) and Supplemental Security Income (SSI) on August 21, 2007. (Tr. 11, 141.) She alleged disability due to generalized anxiety disorder, panic disorder without agoraphobia, major depressive disorder and bereavement, with an onset of January 7, 2005. (Tr. 145.) Her claim was denied initially and on reconsideration. Plaintiff requested a hearing before an administrative law judge (ALJ), which was held in Wenatchee, Washington, on October 22, 2009. ALJ Christopher H. Juge presided by video conference from Metairie, Louisiana. (Tr. 11, 28-51.) Plaintiff, who was represented by counsel, and vocational expert Daniel R. McKinney appeared in person and testified. The ALJ denied benefits on January 14, 2010, and the Appeals Council denied review. (Tr. 28-51, 1-4.) The instant matter is before this court pursuant to 42 U.S.C. § 405(g).
STANDARD OF REVIEW
In Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001), the court set out the standard of review:
The decision of the Commissioner may be reversed only if it is not supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another way, substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Morgan v. Commissioner of Social Sec. Admin. 169 F.3d 595, 599 (9th Cir. 1999).
The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The ALJ's determinations of law are reviewed de novo, although deference is owed to a reasonable construction of the applicable statutes. McNatt v. Apfel, 201 F.3d 1084, 1087 (9th Cir. 2000).
It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). If there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or non-disability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
SEQUENTIAL PROCESS
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). In steps one through four, the burden of proof rests upon the claimant to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971). This burden is met once a claimant establishes that a medically determinable physical or mental impairment prevents her from engaging in her previous occupation. 20 C.F.R. §§ 404.1520(a), 416.920(a). "This requires the presentation of 'complete and detailed objective medical reports of his condition from licensed medical processionals.'" Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999)(citation omitted).
If a claimant cannot do her past relevant work, the ALJ proceeds to step five, and the burden shifts to the Commissioner to show that (1) the claimant can make an adjustment to other work; and (2) specific jobs exist in the national economy which claimant can perform. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Kail v. Heckler, 722 F.2d 1496, 1497-98 (9th Cir. 1984). If no jobs exist that a claimant can perform, she is disabled and eligible for benefits.
STATEMENT OF THE CASE
The facts of the case are set forth in detail in the transcript of proceedings and are briefly summarized here. At the time of the hearing, Plaintiff was 35 years old. (Tr. 30.) She reported she got good grades in school, quit in the eleventh grade and obtained a GED at the age of 20. (Tr. 241.) She had past work experience as a care-giver and a cashier. Plaintiff reported she was married, but her husband had been deported to El Salvador in 2002. (Tr. 242.) She reported she became involved in substance abuse after her husband was deported. (Tr. 244-46.) Plaintiff's children were removed from her custody in 2004 due to her methamphetamine addiction and adopted in 2005. (Tr. 238, 34-35.) At the time of the hearing, Plaintiff was living with her mother in a house. (Tr. 32.) She testified she last worked in January 2005. (Tr. 31, 35.) She stated she could no longer work because her medication made her sleep all the time, her vision was impaired, and she did not get along with people. (Tr. 31, 33, 40.)
ADMINISTRATIVE DECISION
The ALJ found Plaintiff met the insured status requirements for DIB purposes through December 31, 2009. (Tr. 13.) At step one of the sequential evaluation process, he found Plaintiff had not engaged in substantial gainful activity since January 7, 2005, the alleged onset date. (Id.) At step two, he found Plaintiff had severe impairments of "anxiety related disorders and affective disorders." (Id.) The ALJ noted Plaintiff's diagnoses included anxiety disorder, panic disorder without agoraphobia, major depressive disorder and substance abuse/dependency. (Id.) The ALJ found Plaintiff's alleged diagnosis of glaucoma was not confirmed by medical evidence and, therefore, was not a medically determinable impairment. (Tr. 14.) At step three, the ALJ found Plaintiff's impairments or combination of impairments did not meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Listings). Specifically, he considered Listings 12.04 (Affective Disorders) and 12.06 (Anxiety Related Disorders). (Id.)
At step four, the ALJ determined Plaintiff could perform the full range of work at all exertional levels. However, her residual functional capacity (RFC) included the following non-exertional limitations: "working away from the general public; only superficial contact with co-workers and supervisors; extra time to learn new routines and may need assistance with development of work related goals." (Tr. 15.) After summarizing the medical record and Plaintiff's statements, the ALJ found Plaintiff's allegations regarding her limitations were not credible to the extent they were inconsistent with the final RFC determination. (Tr. 16-20.) Based on the RFC assessed and the VE's testimony, the ALJ found Plaintiff could perform her past relevant work as a care-giver. (Tr. 19.) In alternative findings, the ALJ proceeded to step five and found there were other jobs in significant numbers Plaintiff could perform, including assembly occupations and hand-packer/packager occupations. (Tr. 22.) The ALJ concluded Plaintiff had not been disabled since the alleged onset date and ineligible for benefits under the Social Security Act. (Tr. 22-23.)
ISSUES
The question is whether the ALJ's decision is supported by substantial evidence and free of legal error. Plaintiff argues the ALJ erred (1) at step three when he evaluated the medical evidence and failed to obtain medical expert opinion regarding equivalence, and (2) at step five when he relied on VE testimony based on an incomplete hypothetical. (ECF No. 15.) Defendant responds the Commissioner's decision is supported by substantial evidence and free of legal error. (ECF No. 17.)
DISCUSSION
A. Step Three: Equivalence
The Commissioner has a list of impairments (Listings) to describe various illnesses and abnormalities, categorized by the various body systems, that are considered severe enough to prevent substantial gainful activity "regardless of age, education or work experience." 20 C.F.R. § 404.1525; Sullivan v. Zebley, 493 U.S. 521, 529-30 (1990). At step three, it is a claimant's burden to present objective medical evidence proving he or she meets or equals an identified Listing. Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995). To show she meets a Listing, the claimant must establish that she meets each criteria of the listed impairment relevant to her claim. Sullivan, 493 U.S. at 531. If a claimant's impairments do not meet the Listing exactly, a finding of "disabled" may be appropriate if her impairments in combination "equal" a Listing. To prove that she "equals" a Listing, "a claimant must establish symptoms, signs and laboratory findings 'at least equal in severity and duration' to the characteristics of a relevant listed impairment." Tackett, 180 F.3d at 1099 (quoting 20 C.F.R. § 404.1526). "A claimant cannot qualify for benefits under the "equivalence" step by showing that the overall functional impact of his unlisted impairment or combination of impairments is as severe as that of a listed impairment." Zebley, 493 U.S. at 531. The "functional impact of impairments in combination," regardless of their severity, cannot justify a finding of equivalence. Id. at 532.
Evidence of significant objective medical findings, along with the presentation of a cogent argument, must be presented to raise presumption of disability at step three. See, e.g., Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990). Absent significant medical evidence of the requisite criteria and a plausible theory, the ALJ is not required to explain why equivalency is not established. Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990)(ALJ's detailed statement of evidence established factual basis for step three finding).
Plaintiff contends the ALJ erred by not calling a medical expert to give an updated opinion regarding Plaintiff's impairments in combination. She argues improperly rejected opinions in a 2004 report by examining psychologists Virginia Phillips, Ph.D., and David Phillips, Ph.D., in combination with other medical evidence "at least suggests equivalency level mental impairment. (ECF No. 15 at 4-5; Tr. 238-50.)
Where, as here, an examining medical source opinion is contradicted, the ALJ must give "specific" and "legitimate" reasons for rejecting that opinion. Lester v. Chater, 81 F.3d, 821, 830-31 (9th Cir. 1995). The ALJ specifically rejected the Drs. Phillips' opinions that Plaintiff was disabled due to mental problems because they were based on one examination in July 2004, when Plaintiff reported she was actively using methamphetamine. (Tr. 20, 249.) Social Security disability benefits are precluded if drug or alcohol abuse/addiction are a contributing factor to claimed disability. Parra v. Astrue, 481 F.3d 742 (9th Cir. 2007)(claimant has burden to prove drug addiction is not a factor material to disability). In addition, the ALJ gave the evaluation little weight because it predated Plaintiff's alleged onset date and was, therefore, of little relevance in these proceedings. (Id.) This is also a specific and legitimate reason to reject an examining medical source opinion. Martinez v. Heckler, 807 F.2d 771 (9th Cir. 1986).
As noted by Plaintiff in her briefing, Drs. Phillips' evaluation is based on the functional limitations of Plaintiff's mental impairments. (ECF No. 15 at 4-5.) The functional impact of impairments, even in combination, is not a basis for equivalence. Zebley, 493 U.S. at 532.
Plaintiff's argument that Global Assessment of Functioning (GAF) scores in evidence submitted after her onset date reflects a decline in her condition and may support a finding of equivalence is misplaced. (ECF No. 15 at 5-7.) The GAF scale is a common tool for tracking and evaluating the overall psychological functioning of a patient and is used to determine an individual's need for treatment. Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998). As evidenced by Plaintiff's scores, a GAF score can fluctuate depending on the current circumstances. For example, immediately after a suicide gesture with alcohol and prescription drugs, Plaintiff was given a GAF score of 35, reflecting a serious need for treatment. The evaluator noted she was "disturbed," but not a chronically mental ill person. (Tr. 537-42.) Because a GAF score measures situational functioning in the context of treatment design, the Commissioner has declined explicitly to endorse the GAF scale for use in the Social Security disability programs. He has directed that GAF scores have no direct correlation to the severity requirements of the mental disorder listing. See 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000).
Finally, neither the 2004 psychological evaluation nor evidence submitted after the alleged date of onset supports a finding that the severity of limitations described by Drs. Phillips persisted for at least twelve months. Therefore, their opinions alone are not substantial evidence to meet the duration requirement for a finding of disability. 20 C.F.R. §§ 404.1509, 416.909. In fact, Drs. Phillips specifically opined Plaintiff could consider vocational training and job placement if she completed substance abuse treatment and sought help for her mental problems, including therapy and medication. (Tr. 249.)
Because medical source opinions from Drs. Phillips were rejected properly, Plaintiff's step three argument is not supported by substantial evidence. Further, Plaintiff neither identifies a specific Listing that may be equaled nor identifies relevant objective medical evidence that could arguably establish the severity required to meet or equal a Listing. Because Plaintiff fails to present a tenable theory to support a step three finding, the ALJ was not obligated to obtain medical expert testimony or explain further his step three conclusions. Gonzalez, 914 F.2d 1197 at 1201; see also Young v. Sullivan, 911 F.2d 180, 185 n.2 (9th Cir. 1990)(no legal error where ALJ interpreted credited evidence of impairments in combination differently than claimant); Key v. Heckler, 754 F.2d 1545, 1549 n.2 (9th Cir.1985)(medical evidence in its entirety did not establish findings sufficient to meet or equal Listing). The ALJ did not err in his step three findings.
B. Step Four: RFC Assessment
Plaintiff also argues the ALJ's reliance on RFC findings by reviewing psychologists Patricia Kraft, Ph.D., and Sean Mee, Ph.D., is not supported by substantial evidence. (ECF No. 15 at 6-7.) The record shows Dr. Kraft reviewed the record on October 11, 2007, and determined Plaintiff's mental impairments were not disabling. She specifically noted Plaintiff's improvement when she was on antidepressants and during periods of drug and alcohol abstinence. (Tr. 335.) Dr. Kraft assessed mild to moderate work-related functional limitations and specifically noted Plaintiff's need to work away from the general public. (Tr. 339.) In February 2008, Dr. Mee considered evidence submitted later and affirmed Dr. Kraft's findings (Tr. 323-39, 347.)
In his discussion of this evidence, the ALJ noted medical evidence was received after the completion of Dr. Kraft's assessment. (Tr. 21.) He reasonably gave her assessment significant weight, but only to the extent it was "consistent with the residual functional capacity finding herein," which was based on the entire record. (Tr. 21, 15-21.) He then found Dr. Kraft's opinions (as affirmed by Dr. Mee) were substantiated by the entire record, including records received after her assessment was affirmed. (Id.)
The weight given to the agency psychologists's findings is supported by the ALJ's summary of the evidence. The ALJ referenced records from Plaintiff's treatment providers in 2009 (treating physician, Kristen Callison, M.D., nurse practitioner Andrea Howey, and mental health therapist John Laughlin) that show Plaintiff improved with regular counseling and medication and symptoms worsened due to alcohol abuse and non-compliance with medication. (See, e.g. , Tr. 18, 391-94, 400, 422-23; cf. , 402, 405.) Impairments that can be controlled with treatment and medication are not disabling. Warre v. Commissioner of Social Sec., 439 F.3d 1001, 1007 (9th Cir. 2006). The ALJ's thorough evaluation of the medical record and conclusions reflect a reasonable interpretation of the record in its entirety. Where, as here, the ALJ's findings are supported by substantial evidence, they are conclusive. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).
C. Hypothetical Questions at Step Five
Plaintiff next argues the hypothetical relied upon by the VE and ultimately by the ALJ in his step five findings does not reflect the limitations assessed by Drs. Phillips or limitations presented by her representative at the hearing. (ECF No. 15 at 7-8.) The ALJ may rely on vocational expert testimony if the hypothetical presented to the expert includes all functional limitations supported by the record and found credible by the ALJ. Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). An ALJ is not obliged to accept the limitations presented by Plaintiff's representative. Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th 2001); Martinez v. Heckler, 807 F.2d 771, 773 (9th Cir. 1986). It is the province of the ALJ to make a final determination regarding Plaintiff's RFC and disability. The Regulations are clear that no special significance is given to a medical opinion regarding these issues. 20 C.F.R §§ 404.1527(d), 416.927(d).
As discussed above, the ALJ gave specific and legitimate reasons for rejecting the Phillips' opinions regarding Plaintiff's limitations. Therefore, the ALJ was not obliged to include them in his final RFC or hypothetical to the VE. In propounding the hypothetical, the ALJ properly considered the record in its entirety, including Plaintiff's episodic declines due to substance abuse and non-compliance with mental health treatment recommendations. (Tr. 19.) He reasonably relied on clinic notes from Plaintiff's treatment providers when he concluded severe symptoms caused by alcohol and drug abuse did not persist for a single 12-month period, and when compliant with treatment, Plaintiff's symptoms were controlled and mild. (Tr. 20.) The ALJ did not err in relying on VE testimony that Plaintiff could perform other jobs in the national economy.
CONCLUSION
The ALJ did not err at step three or step five. His findings and conclusions are supported by substantial evidence and free of legal error. Accordingly,
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment (ECF No. 14) is DENIED;
2. Defendant's Motion for Summary Judgment (ECF No. 16) is GRANTED;
The District Court Executive is directed to file this Order and provide a copy to counsel for Plaintiff and Defendant. The file shall be closed and judgment entered for Defendant.
CYNTHIA IMBROGNO
UNITED STATES MAGISTRATE JUDGE