Opinion
Case No. ED CV 07-793-PJW.
February 25, 2009
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff asks the Court to reverse the Agency's decision and award benefits or, in the alternative, to remand the case to the Agency for further proceedings. Because the Agency's decision that Plaintiff was not disabled is supported by substantial evidence, it is affirmed.
On March 28, 2003, Plaintiff filed an application for SSI, alleging an inability to work as of January 1, 1999, due to depression, nerve damage to her back, asthma, chronic bronchitis, hearing loss, and being at risk for congestive heart failure. (Administrative Record ("AR") 96, 98-101, 109.) Following denials of her claim at the initial and reconsideration levels (AR 61-64, 70-74), Plaintiff requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 20-42, 75.) On November 12, 2004, the ALJ issued a decision, denying Plaintiff's application for SSI. (AR 7-16.) Plaintiff requested review by the Appeals Council, which was denied. (AR 3-5.) She then filed an appeal in this court. On August 25, 2006, the Court reversed the ALJ's decision and remanded the case to the Agency with instructions to address the testimony of Plaintiff's sister-in-law. (AR 322-32.)
This was Plaintiff's second application for SSI. The first, raising the same claims and alleging the same onset date, was denied by the Agency in March 2002. (AR 52-58.) Thereafter, the Appeals Council declined review. (AR 46-48.) Plaintiff sought review of that decision in this court. On January 20, 2006, the Court affirmed the Agency's decision. Pelayo v. Barnhart, CV 04-966. The Court notes that, as a result, the Agency's finding that Plaintiff was not disabled at any time prior to March 18, 2002, is res judicata in this pending action.
On February 23, 2007, following remand, the ALJ held another hearing. (AR 373-89.) On March 19, 2007, he issued a decision, again denying Plaintiff's claim for benefits. (AR 290-300.)
Plaintiff filed the instant action on July 5, 2007. She claims that the ALJ erred when he: 1) failed to consider a psychiatric evaluation that was completed by her treating psychiatrist; 2) found that she could perform jobs that were inconsistent with the opinion of the State Agency physician; and 3) failed to pose a complete hypothetical question to the vocational expert. (Joint Stip. at 15-17.) For the following reasons, the Court concludes that these claims are without merit.
In August 2006, Plaintiff went to a mental health clinic operated by San Bernardino County, complaining of mood swings, depression, and stress. (AR 339.) She was initially screened by an individual by the name of Tony Angelo, described in the medical records as a "clinician." (AR 339-46.) She was also seen by another health care provider, a psychologist by the name of Swindle, and, perhaps, one other medical care provider. (AR 337-38, 342.) Three weeks later, on September 14, 2006, she returned to the clinic and was seen by William Lawrence, M.D. (AR 335.) There are no other records from the clinic subsequent to that date.
Plaintiff complains that the ALJ failed to properly consider the mental health records from the clinic. (Joint Stip. at 3-6.) She focuses particularly on a mental health assessment, which she claims was performed in August 2007, by a health care provider who Plaintiff describes as her "treating physician." (Joint Stip. at 3.) This provider found that Plaintiff was suffering from depression and was anxious. (AR 337-38.) He or she found that Plaintiff had a Global Assessment of Functioning ("GAF") score of 45. (AR 338.) Plaintiff contends that this assessment by her treating doctor established that she was impaired as of August 2007, and that the ALJ failed to take it into consideration.
Plaintiff is unable to provide the name or title of this "treating doctor" because the signature is illegible and, it would appear, she was seen by this person only once. (Joint Stip. at 3.)
The GAF score reports a "clinician's judgment of the individual's overall level of functioning," which is used in "planning treatment and measuring its impact, and in predicting outcome." American Psychiatric Association, Diagnostic Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (hereinafter "DSM-IV-TR"), p. 34 (4th ed. 2005). A GAF of 41-50 indicates "[s]erious symptoms ( e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning ( e.g., no friends, unable to keep a job)." Id.
Plaintiff's argument fails for several reasons. First, the assessment was performed in August 2006, not August 2007. Though the date entered on the assessment form says that it was completed on August 21, 2007, (AR 337-38), that was obviously a mistake. The form was included with records Plaintiff's counsel sent to the Agency by fax on December 11, 2006. The time/date-stamp on the bottom of all 14 pages of the medical records shows that they were sent on that date. (AR 334-47.) The cover sheet from Plaintiff's counsel's office that accompanied the records also indicates that the records were sent on that date. (AR 334.) Thus, there is no way that the assessment could have been performed in August 2007. In fact, a perfunctory review of the documents, which were assembled in reverse chronological order, shows that Plaintiff went to the clinic on August 21, 2006, and, after having been screened by clinician Angelo, was seen by another health care provider — the unidentified "treating physician" — who filled out the form that day. (AR 334-47.)
The fact that the assessment was performed in August 2006, instead of August 2007, renders it almost irrelevant in this case. Three weeks after this assessment was completed, Plaintiff went back to the clinic and met with Dr. Lawrence, who found that Plaintiff was, essentially, asymptomatic and stable on the medications that had been prescribed to her by the doctors at the clinic. (AR 335 (noting Plaintiff was "alert, cooperative, [oriented to person, place, time, and situation], calm, happy, full appropriate affect, denies [suicide ideation] or [homicide ideation], no [auditory hallucinations], fair insight, fair judgment, goal directed thinking, not pressured").) (Plaintiff, apparently, never returned to the clinic for further treatment.)
Clearly, Dr. Lawrence's glowing assessment three weeks after Plaintiff was initially assessed at the clinic and placed on medication establishes that any psychiatric impairment that was noted on August 21, 2006, did not preclude her from working for 12 months, the relevant period under the regulations. Thus, the ALJ's failure to specifically explain why he did not rely on that opinion does not mandate reversal, and, therefore, this claim is denied.
The Agency's argument that the ALJ was not required to set forth his reasons for rejecting the treating physician's opinion is rejected. In the Agency's view, the ALJ was only required to set forth a detailed summary of the facts and conflicting evidence — along with his interpretation of them — and make findings, citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The language from Magallenes is dicta. The Ninth Circuit has repeatedly held that an ALJ must set forth specific and legitimate reasons for rejecting a treating physician's opinion and that those reasons must be supported by substantial evidence in the record. See, e.g., Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); and Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (holding an ALJ may not reject the opinion of a treating physician "without providing specific and legitimate reasons supported by substantial evidence in the record") (citation and internal quotation marks omitted).
Plaintiff next argues that the ALJ erred in finding that she could perform jobs that involved simple, routine, repetitive, non-public tasks. She contends that such jobs were precluded by the State Agency physician, Dr. K. Gregg, who concluded that Plaintiff had moderate limitations in thinking and reasoning. (Joint Stip. at 8, 11.) This claim, too, is without merit.
As an initial matter, the Court notes that the fact that the jobs identified by the ALJ were incompatible with the limitations urged by the State Agency doctor is immaterial. Rather, the relevant issue is whether the jobs were inconsistent with the ALJ's residual functional capacity assessment. To the extent that Plaintiff alleges that there was a conflict between Dr. Gregg's opinion and the ALJ's mental residual functional capacity determination, her argument is unavailing.
As to the merits of her claim that the ALJ's findings regarding the jobs she could perform were inconsistent with the evidence, the Court finds that Plaintiff has not established that the ALJ erred. On July 17, 2003, Dr. Gregg completed a Mental Residual Functional Capacity Assessment form in which he opined that Plaintiff was moderately limited in her ability to understand, remember, and carry out detailed instructions, and in her ability to interact appropriately with the general public. (AR 180-81.) He concluded, however, that Plaintiff could perform simple, repetitive tasks with adequate pace and persistence but should not work with the public. (AR 179, 182.) Thus, the ALJ's finding that Plaintiff could perform simple, routine, repetitive, non-public tasks was wholly consistent with Dr. Gregg's opinion.
In his November 2004 decision, the ALJ relied on Dr. Gregg's opinion in concluding that Plaintiff had the mental capacity to perform simple, routine, repetitive, non-public tasks. (AR 13, 15, 179-87.)
Further, the ALJ's conclusion that Plaintiff could perform these jobs was supported by the record. The ALJ called a vocational expert who testified that, based on Plaintiff's residual functional capacity, she could perform three categories of jobs: simple assembler, table worker, and packager. (AR 381-83.) Included within each category were several jobs that the vocational expert opined Plaintiff could perform. (AR 382-86 (DOT §§ 706.684-022 (small products assembler), 706.684-030 (atomizer assembler), 920.587-018 (hand packager), 920.685-078 (machine packager).) All but one of these jobs required reasoning level two. Reasoning level two requires a worker to be able to:
The work of a table worker requires reasoning level one. DOT § 739.687-182. Reasoning level one requires the worker to "[a]pply commonsense understanding to carry out simple one- or two-step instructions" and to "[d]eal with standardized situations with occasional or no variables in or from these situations encountered on the job." Id.
Apply commonsense understanding to carry out detailed but uninvolved written or oral instructions. Deal with problems involving a few concrete variables in or from standardized situations.See e.g. DOT § 706.684-022.
The ability to perform simple, routine, repetitive, non-public tasks — as Plaintiff is able to do — is consistent with reasoning level two. See Hackett v. Barnhart, 395 F.3d 1168, 1176 (10th Cir. 2005) (stating that reasoning level two appears more consistent with the capacity to perform "simple and routine work tasks"); Meissl v. Barnhart, 403 F. Supp. 2d 981, 983-85 (C.D. Cal. 2005) (holding that reasoning level two jobs are consistent with the ALJ's limitation to simple, repetitive tasks); Flaherty v. Halter, 182 F. Supp. 2d 824, 850 (D. Minn. 2001) (holding that DOT's reasoning level two requirement did not conflict with the ALJ's limitation to "simple, routine, repetitive, concrete, tangible tasks"). The requirement that Plaintiff be able to carry out instructions that are "detailed but uninvolved" does not change the analysis, as Plaintiff argues in her brief. See Meissl, 403 F. Supp. 2d at 985 ("Although the DOT definition does state that the job requires the understanding to carry out detailed instructions, it specifically caveats that the instructions would be uninvolved — that is, not a high level of reasoning.") (citing Flaherty, 182 F. Supp. 2d at 850). As such, the ALJ properly relied on the vocational expert's testimony in concluding that Plaintiff could perform these jobs. Further, for these same reasons, Plaintiff's contention that the vocational expert strayed from the DOT without providing an adequate explanation is rejected.
Lastly, Plaintiff complains that the ALJ failed to pose a complete hypothetical question to the vocational expert because he did not include the limitations found by Plaintiff's purported treating physician in the August 21, 2007 assessment. (Joint Stip. at 15-16.) As explained above, there was no August 21, 2007 assessment by a treating doctor. The assessment she focuses on was performed in August 2006, and, three weeks later, another doctor at the same facility found that all of Plaintiff's complaints had been resolved. As such, the ALJ did not err in failing to include in the hypothetical question to the vocational expert the limitations noted by the doctor in August 2006. See Magallanes, 881 F.2d at 756-57 (holding ALJ need only include limitations that are supported by substantial evidence in the record).
For the reasons set forth above, the Agency's decision is affirmed and the case is dismissed with prejudice.
IT IS SO ORDERED.