Annabel Abreo v. Jo Anne B. Barnhart

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 1 of 23 Page ID #:61 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFO...

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Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 1 of 23 Page ID #:61

1 2 3 4 5 6 7

UNITED STATES DISTRICT COURT

8

CENTRAL DISTRICT OF CALIFORNIA

9 10

ANNABEL ABREO, Plaintiff,

11

v.

12 13 14

) ) ) ) ) ) ) ) ) ) ) )

MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.

15

No. EDCV 06-00771 (SS) MEMORANDUM DECISION AND ORDER

16 17 Plaintiff Annabel Abreo (“Plaintiff”) brings this action seeking to 18 overturn the decision of the Commissioner of the Social Security 19 Administration

(hereinafter

the

“Commissioner”

or

the

“Agency”)

20 terminating her Supplemental Security Income (“SSI”) benefits.

This

21 matter is before the Court on the parties’ Joint Stipulation (“Jt. 22 Stip.”) filed on April 3, 2007.

For the reasons stated below, the

23 decision of the Commissioner is AFFIRMED. 24 \\ 25 \\ 26 \\ 27 \\ 28

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 2 of 23 Page ID #:62

1

PROCEDURAL HISTORY

2 3

In March 1988, the Commissioner determined that Plaintiff was

4

disabled due to a severe mental impairment, paranoid schizophrenia.

5

(Administrative Record (“AR”) 13, 47).

6

continuing disability review, the Commissioner found that Plaintiff

7

continued to be disabled and that she met the medical listing 12.03,

8

i.e., schizophrenic, paranoid, and other psychotic disorders.

9

On March 30, 2004, after a second continuing disability review, the

10

Commissioner found that Plaintiff’s health had improved and that she was

11

no longer disabled.

On September 20, 2000, after a

(AR 25).

(AR 96).

12 13

On July 21, 2004, Plaintiff filed an appeal for reconsideration of

14

disability review.

15

Officer determined that Plaintiff was no longer disabled.

16

Plaintiff received a pre-hearing conference (January 14, 2005) and two

17

hearing dates (May 11, 2005 & November 8, 2005) before Administrative

18

Law Judge (“ALJ”) John W. Belcher.

19

2006, ALJ Belcher issued a decision finding that Plaintiff’s mental

20

health had improved and that her eligibility for SSI benefits ended

21

effective March 1, 2004. (AR 13-21). The Appeals Council denied review

22

and the ALJ’s decision became the final decision of the Commissioner.

23

(AR 3-5).

(AR 90).

On August 11, 2004, a Disability Hearing

(AR 293, 305, 319).

(AR 78-85).

On April 6,

Plaintiff initiated the instant action on July 19, 2006.

24 25

FACTUAL BACKGROUND

26 27 28

Plaintiff was born on March 6, 1967, and was thirty-eight years old at the time of the hearings.

(See AR 67). 2

She completed high school

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 3 of 23 Page ID #:63

1

and “beauty” college.

(AR 311).

Plaintiff did not work in the fifteen

2

years prior to the hearings.

3

disability finding, Plaintiff suffered from substance abuse problems.

4

(See e.g., AR 80, (noting that in 2000, Plaintiff had a provisional

5

diagnosis of possible psychoative substance induced psychotic disorder

6

due to a history of drug abuse); AR 68 (Plaintiff reporting to Dr.

7

Kikani that she was an “ex-drug addict” but is now sober); AR 332

8

(Plaintiff’s sister reported that initial disability finding was likely

9

related to drug use)).

(See AR 347).

At the time of her original

10 11

A.

Relevant Medical History

12 13

Plaintiff’s mother reported that Plaintiff did not receive any

14

treatment for her mental impairments between 1988 and 2004.

(See AR

15

317).

16

reported that Plaintiff saw a doctor in the Los Angeles area once

17

between 1988 and 2000.

18

could not be provided.

However, during the 2000 continuing disability review, it was

The doctor’s name, address, and phone number (AR 53).

19 20

In the course of the Commissioner’s 2000 continuing disability

21

review, Dr. Divy J. Kikani performed a psychiatric evaluation of

22

Plaintiff. (AR 67-71). Dr. Kikani diagnosed Plaintiff with “psychotic

23

disorder, not otherwise specified; rule out major depressive disorder,

24

with psychotic features; [and] rule out psychoactive substance induced

25

organic mood disorder versus psychoactive substance induced psychotic

26

disorder.”

27

psychoactive mixed substance abuse, including alcohol and marijuana in

28

the past.

(AR 69).

He stated his Secondary Diagnosis as: “history of

She is currently on diet pills.” 3

(AR 69).

He assessed

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 4 of 23 Page ID #:64

1

Plaintiff to have a Global Assessment of Functioning (“GAF”) score of

2

fifty.1

(Id.).

3 4

Dr. Kikani determined that Plaintiff “show[ed] moderate impairment

5

in ability to interact normally with co-workers, supervisors and public

6

and moderate impairment in ability to attend to the usual work situation

7

and ability to cope with routine changes at work.

8

expected to show moderate episodes of emotional deterioration at the

9

normal work situation[.]”

(AR 70).

[Plaintiff] may be

Dr. Kikani also found that

10

Plaintiff should not handle her own finances.

(Id.).

Dr. Kikani

11

recommended that Plaintiff receive psychological testing to evaluate her

12

psychiatric symptoms. (Id.).

13

be subjected to alcohol and drug testing to determine whether substance

14

abuse continues to contribute to her psychiatric symptoms.

He also suggested that Plaintiff should

(Id.).

15 16

In the course of the Commissioner’s 2004 continuing disability

17

review,

Dr.

Kikani

18

Plaintiff.

19

Axis I diagnosis.

performed

(AR 187-90).

another

psychiatric

evaluation

of

Dr. Kikani determined that Plaintiff had no

(AR 189).

He noted that Plaintiff denied any current

20 21 22 23 24 25 26 27 28

1

A Global Assessment of Functioning score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereafter, “DSM IV”). A rating of 41-50 on the GAF scale 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).” See DSM IV, at 34. 4

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 5 of 23 Page ID #:65

1

substance abuse.

(AR 189-90).

2

GAF score of sixty.2

He also assessed that Plaintiff had a

(AR 189).

3 4

Dr. Kikani noted that Plaintiff “[was] devoid of any prominent

5

symptoms

of

psychosis,

6

prominent mood disorder.”

7

not show any restriction or impairment in her daily activities or social

8

functioning.

9

concentration, persistence, and pace were not impaired.

(AR

thought

190).

disorder,

(AR 189).

Dr.

perceptual

disturbances,

He also found that Plaintiff did

Kikani

mentioned

that

Plaintiff’s (Id.).

Dr.

10

Kikani observed that there was a “sharp contrast in psychiatric and

11

mental status evaluation between 9/5/2000 and the evaluation date of

12

2/3/04[.]”

(Id.).

13 14

In January 2005, consultative examiner, Dr. Adam Cash, conducted a

15

psychological evaluation of Plaintiff. (AR 213-17). Dr. Cash could not

16

state a diagnosis for Plaintiff.

17

questionable validity of her psychological tests, it was likely that

18

Plaintiff was “at the very least exaggerat[ing] her deficits.”

(AR 217).

He found that due to the

(Id.).

19 20

In 2004, after the disability hearing officer denied Plaintiff’s

21

request for reconsideration and found that Plaintiff was no longer

22

disabled, Plaintiff sought psychiatric treatment.

23

2004, Plaintiff began receiving psychiatric treatment from Dr. Maria

Beginning in October

24 25 26 27

2

A rating of 51-60 on the GAF scale indicates “[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).” See DSM IV, at 34.

28 5

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 6 of 23 Page ID #:66

1

Salanga at the Vista Community Counseling Center of the County of San

2

Bernardino Department of Behavioral Health.

3

evaluation noted that Plaintiff suffered from schizophrenia, had a

4

history of substance abuse, and had a GAF score of forty-five. (AR 249-

5

50).

6

milligrams of Paxil.

7

Salanga report that Plaintiff is not suffering any side effects from the

8

medication.

9

Plaintiff is “feeling better,” “fine,” or “continuing to do well.” (See

10

Dr.

Salanga

prescribed

ten

(AR 239).

(AR 241).

(See AR 251).

milligrams

of

Her initial

Abilify

and

ten

The most recent notations from Dr.

Each of Plaintiff’s visit summaries notes that

e.g., AR 241-42, 244-48, 280-83).

11 12

B.

Plaintiff’s Testimony

13 Plaintiff testified that she sought therapy in late 2004 because

14 15

she was hearing voices.

(AR 329-30).

However, she reports that once

16

she began taking the prescribed medication, the voices stopped.

17

329).

18

prior to seeking treatment and that she did not hear voices while she

19

was abusing drugs.

20

had a substance abuse problem.

21

identify the date that she last used illegal drugs, Plaintiff’s answer

22

was inaudible.

23

not suffer from medication side effects.

24

stated that she believes that she “could work” and her sister reported

25

that Plaintiff wants to work.

26

\\

27

\\

28

\\

(AR

Plaintiff testified that she only heard voices for three months

(AR 331-32).

(Id.).

She also reported that she no longer

(AR 333).

When Plaintiff was asked to

In addition, Plaintiff testified that she did

(AR 333-34).

6

(AR 329).

Plaintiff also

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 7 of 23 Page ID #:67

THE EVALUATION OF DISABILITY

1 2 3

A.

The Initial Five-Step Evaluation

4 5 6 7 8 9 10 11 12 13 14

To qualify for disability benefits, a claimant must demonstrate

a

medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity3 and that is expected to result in death or to last for a continuous period of at least twelve months.

Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 1998) (citing 42

U.S.C. § 423(d)(1)(A)).

The impairment must render the claimant

incapable of performing the work he previously performed and incapable of performing any other substantial gainful employment that exists in the national economy.

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir.

1999) (citing 42 U.S.C. § 423(d)(2)(A)).

15 16 17

To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry.

20 C.F.R. §§ 404.1520, 416.920.

The steps are:

18 19

(1)

activity? If so, the claimant is found not disabled. If

20

not, proceed to step two.

21 22

(2)

Is

the

claimant’s

impairment

claimant is found not disabled.

23

severe?

If

not,

the

If so, proceed to step

three.

24 25

Is the claimant presently engaged in substantial gainful

(3)

Does the claimant’s impairment meet or equal one of a

26 27 28

3

Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 7

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 8 of 23 Page ID #:68

list of specific impairments described in 20 C.F.R. Part

1

404, Subpart P, Appendix 1? If so, the claimant is found

2

disabled.

3 (4)

4

Is the claimant capable of performing his past work?

5

If not, proceed to step four.

If so, the claimant is found not disabled.

If not, proceed to step five.

6 (5)

7

Is the claimant able to do any other work? the

8

claimant

is

found

disabled.

If

If not, so,

the

claimant is found not disabled.

9 10 11 12 13

Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949,

953-54

(9th

Cir.

2001)

(citations

omitted);

20

C.F.R.

§§

404.1520(b)-(g)(1) & 416.920(b)-(g)(1).

14 15 16 17 18 19 20 21 22 23 24 25

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. F.3d at 953-54.

Bustamante, 262

If, at step four, the claimant meets his burden of

establishing an inability to perform past work, the Commissioner must show that the claimant can perform some other work that exists in “significant numbers” in the national economy, taking into account the claimant’s residual functional capacity (“RFC”),4 age, education, and work experience.

Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at

721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

The Commissioner may

do so by the testimony of a vocational expert or by reference to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart

26 27 28

4

Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 8

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 9 of 23 Page ID #:69

1 2 3 4 5

P, Appendix 2 (commonly known as “the Grids”). F.3d 1157, 1162 (9th Cir. 2001). (strength-related)

and

Osenbrock v. Apfel, 240

When a claimant has both exertional

nonexertional

limitations,

the

Grids

are

inapplicable and the ALJ must take the testimony of a vocational expert. Moore v. Apfel, 216 F.3d 864, 869 (9th Cir. 2000).

6 7

B.

The Seven-Step Re-Evaluation

8 9 10

In determining whether to discontinue disability benefits, the Commissioner applies the following sequential evaluation.

11 12

(1)

(2)

(3)

(4)

(5)

or

equals

a

or

combination

listing,

of

disability

If the claimant does not meet or equal a listing, the ALJ will

If so, the ALJ will determine whether the improvement is

If no medical improvement related to a claimant’s ability to

If there has been medical improvement related to ability to work,

22

the

impairments,

23

ALJ in

will

determine

combination

are

whether

all

“severe,”

the and

current if

not,

disability ends.

24 (6)

If the claimant meets the “severity” criteria, the ALJ will determine the current RFC, and if the claimant is able to do

26

past work, disability ends.

27 28

meets

impairment

work has occurred, disability continues.

20

25

an

related to ability to work (i.e., to RFC).

18

21

that

has

determine whether medical improvement has occurred.

16

19

claimant

continues.

14

17

the

impairments

13

15

If

(7)

If the claimant remains unable to do past work, the ALJ will 9

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 10 of 23 Page ID #:70

determine whether the claimant can do other work. If claimant

1

cannot do other, disability continues.

2 3 4 5 6 7 8 9 10

20 C.F.R. § 416.994(b)(5).

Once a claimant is found disabled, a

presumption of continuing disability arises. Bellamy v. Sec’y of Health & Human Serv., 755 F.2d 1380, 1381 (9th Cir. 1985). Disability benefits cannot be terminated unless substantial evidence demonstrates medical improvement in the claimant’s impairment so that the claimant is able to engage in substantial gainful activity.

See 42 U.S.C. § 423(f); Murray

v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983).

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

To

determine

whether

medical

improvement

has

occurred,

the

Commissioner (or ALJ) compares the claimant’s current condition with the condition

at

a

comparison

416.994(b)(1)(vii).

point

in

the

past.

See

20

C.F.R.

§

The comparison point date (“CPD”) is the date of

the most recent favorable medical determination (i.e., the date claimant was first found to be disabled). (b)(2)(i).

See 20 C.F.R. § 416.994(b)(1)(i) &

The ALJ must compare the claimant’s condition at the CPD to

claimant’s present condition to determine whether there was has been improvement.

Id.

Whether there has been medical improvement is

determined by a comparison of prior and current medical evidence which must show that there have been improvements in the symptoms, signs, and laboratory findings associated with the claimant’s impairment.

Id.

If

no medical improvement has occurred, the claimant’s disability does not cease.

20 C.F.R. § 416.991(b).

26 27 28

If medical improvement has occurred, the ALJ must determine whether the medical improvement is related to the claimant’s ability to work. 10

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 11 of 23 Page ID #:71

1 2 3 4 5 6

Id.

To do so, the ALJ must compare the claimant’s current RFC with the

RFC at the time of the most recent favorable decision. 416.994(b)(1)(vii).

20 C.F.R. §

If the Commissioner finds medical improvement that

is related to claimant’s ability to work, the next step is to determine whether

the

claimant’s

impairments

substantial gainful activity.

may,

nonetheless,

preclude

20 C.F.R. § 416.994(b)(1)(v).

7 THE ALJ’S DECISION

8 9

The ALJ determined that Plaintiff was no longer eligible to receive

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

supplemental security income benefits.

(AR 20).

The ALJ noted that

Plaintiff’s original mental disability finding could have been affected by Plaintiff’s prior substance abuse.

(AR 17).

The ALJ then found that

Plaintiff’s current mental impairments did not meet any impairment described in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(AR 18, 20).

The ALJ assessed that Plaintiff’s mental health had improved since the time of the last favorable decision, September 2000.

(See AR 18).

The

ALJ found that Plaintiff had the RFC to perform work in the “light” exertional capacity.

(AR 18, 20).

Although Plaintiff had no past

relevant work (AR 19), the ALJ determined that Plaintiff had the RFC to preform other jobs that exist in significant numbers in the economy. (Id.). 1, 2004.

The ALJ held that Plaintiff was no longer disabled as of March (AR 20).

\\ \\ \\ \\ \\ 11

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 12 of 23 Page ID #:72

STANDARD OF REVIEW

1 2 Under

3 4 5 6 7 8

42

U.S.C.

§

405(g),

a

district

Commissioner’s decision to deny benefits.

court

may

review

the

The court may set aside the

Commissioner’s decision when the ALJ’s findings are based on legal error or are not supported by substantial evidence in the record as a whole. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

9 “Substantial evidence is more than a scintilla, but less than a

10 11 12 13 14 15 16 17 18 19 20

preponderance.” which

a

Reddick, 157 F.3d at 720.

reasonable

conclusion.”

Id.

person

might

accept

It is “relevant evidence as

adequate

to

support

a

To determine whether substantial evidence supports a

finding, the court must “‘consider the record as a whole, weighing both evidence

that

supports

and

evidence

that

detracts

from

the

[Commissioner’s] conclusion.’” Aukland, 257 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)).

If the evidence can

reasonably support either affirming or reversing that conclusion, the court may not substitute its judgment for that of the Commissioner. Reddick, 157 F.3d at 720-21.

21 DISCUSSION

22 23 24 25 26 27 28

Plaintiff contends that the Commissioner’s decision should be overturned for numerous reasons. First, she claims that the ALJ did not properly consider the psychiatric evaluation by Dr. Salanga. (Jt. Stip. at 3-5).

Second, she asserts that the ALJ failed to appropriately

consider the treating therapists’ opinions of functional status. 12

(Jt.

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 13 of 23 Page ID #:73

1 2 3 4 5 6 7 8

Stip. at 9-10).

Third, Plaintiff claims that the ALJ did not properly

consider the 2004 evaluation by Dr. Kikani.

(Jt. Stip. at 11-12).

Fourth, she asserts that the ALJ misstated the evidence in the record. (Jt. Stip. at 13-14).

Finally, Plaintiff complains that the ALJ failed

to properly consider the type, dosage, effectiveness, and side effects of Plaintiff’s medications.

(Jt. Stip. at 15-18).

The Court disagrees

with Plaintiff’s contentions and instead finds that the ALJ’s decision should be affirmed.

9 10 11

A.

Plaintiff’s Claims That The ALJ Improperly Considered The Treating And Examining Psychiatrists’ Opinions Do Not Warrant Remand

12 13 14 15 16 17 18 19

Plaintiff

complains

that

the

ALJ

improperly

considered

Salanga’s November 3, 2004 psychiatric evaluation of Plaintiff.

Dr. (Jt.

Stip. at 3). Plaintiff argues that the ALJ only “peripherally refers to Dr. Salanga’s reports and ongoing treatment.”

(Jt. Stip. at 4).

Also,

Plaintiff contends that the ALJ did not indicate whether he accepted or rejected Dr. Kikani’s 2004 report.

(Jt. Stip. at 11-12).

asserts that these allege errors warrant remand.

Plaintiff

The Court disagrees.

20 21 22 23 24 25 26 27 28

Although the treating physician’s opinion is entitled to great deference, it is “not necessarily conclusive as to either the physical condition or the ultimate issue of disability.”

Morgan v. Comm’r of

Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999).

If the treating

doctor’s opinion is not contradicted by another doctor, it may be rejected

only

for

“clear

and

convincing”

substantial evidence in the record.

reasons

supported

by

Lester v. Chater, 81 F.3d 821, 830

(9th Cir. 1995) (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th 13

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 14 of 23 Page ID #:74

1 2 3 4 5 6 7 8 9 10 11

Cir. 1991)). Even when the treating doctor’s opinion is contradicted by the opinion of another doctor, the ALJ may properly reject the treating doctor’s

opinion

by

providing

“‘specific

and

legitimate

reasons’

supported by substantial evidence in the record for so doing.” (citing Murray, 722 F.2d at 502).

Id.

Like the opinion of a treating

doctor, the opinion of an examining doctor, even if contradicted by another doctor, can only be rejected for specific and legitimate reasons Id. at 830-

that are supported by substantial evidence in the record. 31.

The ALJ can meet this burden by setting forth a detailed and

thorough

summary

of

the

facts

and

conflicting

clinical

evidence.

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

12 13 14 15 16 17 18 19 20 21 22

Where

the

opinion

of

the

claimant’s

treating

physician

is

contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician,

the

opinion

substantial evidence. 1995).

of

the

nontreating

source

may

itself

be

Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir.

“It is then solely the province of the ALJ to resolve the

conflict.”

Id.

When presented with conflicting medical opinions, the

ALJ must determine credibility and resolve the conflict.

Batson v.

Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Matney).

23 24 25

1.

The

ALJ

Properly

Considered

Dr.

Salanga’s

Evaluation

Of

Plaintiff

26 27 28

Here, the ALJ’s decision contains a detailed and through summary of all of the medical evidence documented in the record. 14

(AR 13-15, 17-

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 15 of 23 Page ID #:75

1 2 3 4 5 6 7 8

18).

Moreover, the ALJ noted that Dr. Salanga diagnosed Plaintiff with

paranoid schizophrenia. (AR 17). The ALJ determined, however, that Dr. Salanga subsequently reported that Plaintiff was doing well on her medication, had no psychotic symptoms, and no medication side-effects. (AR 17; see also AR 241-42, 244-48, 280-83).

As such, it is not clear

that the ALJ rejected Dr. Salanga’s opinion.

It appears that he

considered all of Dr. Salanga’s findings as a whole rather than focusing on her initial evaluation of Plaintiff.

9 Even if the ALJ’s decision could be construed as rejecting Dr.

10 11 12 13 14 15 16 17 18 19 20

Salanga’s initial evaluation, there was no error. Dr. Salanga’s initial evaluation was clearly contradicted by Dr. Kikani’s February 2004 psychiatric evaluation.

Dr. Salanga found that Plaintiff had an Axis I

diagnosis of paranoid schizophrenia (AR 250) while Dr. Kikani found that Plaintiff had no Axis I diagnosis.

(AR 189).

Also, Dr. Salanga

assessed that Plaintiff had a GAF score of forty-five (AR 292) and Dr. Kikani assessed that Plaintiff had a GAF score of sixty.

(AR 189).

As

Dr. Salanga’s opinion was contradicted by an examining psychiatrist, the ALJ need only provide specific and legitimate reasons for rejecting her opinion.

Lester, 81 F.3d at 830 (citation omitted).

21 The ALJ found that Plaintiff showed improvement in her condition in

22 23 24 25 26 27 28

a very short period of time.

(AR 17).

from November 2004 through January 2006. Four

months

after

beginning

Dr. Salanga’s records ranged (AR 241-42, 244-48, 280-92).

treatment,

Dr.

Salanga

noted

that

“[Plaintiff] reports doing fine. Depression is reduced. No suicidal or homicidal thoughts. (AR 244).

No [illegible] or prominent psychotic symptoms.”

Subsequent notations report that Plaintiff was “feeling 15

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 16 of 23 Page ID #:76

1 2 3 4 5 6 7 8 9 10 11 12

better,” “fine,” or “continuing to do well.” 83).

(AR 241-42, 244-48, 280-

The ALJ also observed that Plaintiff had not received any

psychiatric or psychological treatment prior to October 2004.

(AR 17).

He noted that Plaintiff testified that she heard voices only three months before seeking psychological treatment and that she had not previously heard voices. (Id.). In addition, the ALJ observed that Dr. Salanga’s assessment was based on the Plaintiff’s subjective complaints as opposed to the definitive testing that Dr. Cash conducted.

(AR 19).

The ALJ found that Plaintiff was not “fully credible.”

As such,

(Id.).

any assessment based solely on her subjective complaints would also not be reliable. The ALJ therefore provided specific and legitimate reasons for rejecting Dr. Salanga’s initial evaluation.

13 In sum, the ALJ’s opinion does not expressly reject Dr. Salanga’s

14 15 16 17 18

initial evaluation of Plaintiff.

Moreover, to the extent that the ALJ

opinion could be construed as rejecting Dr. Salanga’s opinion, he provided specific and legitimate reasons for doing so.

Accordingly,

Plaintiff’s claim does not warrant remand.

19 2.

20

The ALJ Properly Considered Dr. Kikani’s 2004 Evaluation Of Plaintiff

21 22

Plaintiff complains that the ALJ did not accept or reject Dr.

23 24 25 26 27 28

Kikani’s observations that Plaintiff had some difficulty relating to people in the work setting and that she required further testing. claim regarding Dr. Kikani’s 2004 report is meritless. \\ \\ 16

Her

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 17 of 23 Page ID #:77

The ALJ’s decision discussed Dr. Kikani’s 2004 report in detail.

1 2 3 4 5 6 7 8 9 10 11

(See AR 14, 17).

He included Dr. Kikani’s observation that Plaintiff

had difficulty relating to people in his assessment of Plaintiff’s RFC. (See

AR

18).

Moreover,

the

ALJ

obtained

evaluation from Dr. Cash in January 2005.

another

psychological

(AR 213-17).

Dr. Cash

reviewed Dr. Kikani’s 2004 report and conducted further psychological testing.

(See AR 214).

As such, the Court finds that the ALJ

appropriately considered Dr. Kikani’s 2004 report.

It is evident that

the ALJ did not reject Dr. Kikani’s opinion but, instead, accepted and acted on Dr. Kikani’s recommendations.

Accordingly, Plaintiff’s claim

does not warrant remand.

12 13 14

B.

Plaintiff’s Claim That The ALJ Failed To Discuss The Treating Therapists’ Opinions Does Not Warrant Remand

15 16 17 18 19 20 21 22 23 24

Plaintiff asserts that the ALJ’s failure to discuss the opinions of Soojin

Kim,

M.F.T.,

Anthony

L.M.F.T., was a legal error.

Akalemeaku,

B.S.,

and

(Jt. Stip. at 9-10).

Ruth

Maloney,

Specifically,

Plaintiff alleges that the ALJ should have considered Soojim Kim’s Care Necessity Questionnaire (AR 291-92), Antony Akalemeaku’s notations regarding

a

group

therapy

session

“interdisciplinary notes” (AR 251).

(AR

243),

and

Ruth

(Jt. Stip. at 9).

Maloney’s Plaintiff

contends that the ALJ was obligated to consider the therapists’ opinions and his failure to do so requires remand.

This Court disagrees.

25 26 27

Because therapists are “other sources” pursuant to 20 C.F.R. section 404.1513(d), an ALJ is entitled to accord them “less weight than

28 17

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 18 of 23 Page ID #:78

1 2

opinions from acceptable medical sources.”

Gomez v. Chater, 74 F.3d

967, 970-71 (9th Cir. 1996).5

3 4 5 6 7 8 9 10 11 12 13

Although

the

ALJ

did

not

explicitly

discuss

or

reject

each

therapists’ assessment, the ALJ’s failure to address every single item in the administrative record does not constitute legal error. need not expressly discuss all of the evidence presented.

An ALJ

Howard ex

rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and developing the record, the ALJ does not need to ‘discuss every piece of evidence.’”) (quoting Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) and citing Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)).

Further, an ALJ is not required to

discuss evidence that is neither significant nor probative.

Id.

14 15 16 17 18 19 20 21 22 23 24

Here, the therapists’ opinions were largely cumulative of Dr. Salanga’s assessments.

Also, Soojin Kim’s Care Necessity Questionnaire

was not a substantive assessment that would have added to the ALJ’s understanding of Plaintiff’s condition. (AR 291). Anthony Akalemeaku’s notes are not probative of whether Plaintiff is disabled.

They make

very general observations of Plaintiff’s participation in group therapy and offer the opinion of a non-medical staff person on whether Plaintiff could benefit from the therapy.

(See AR 243).

opinions are neither significant nor probative.

As such, the therapists’ Accordingly, the Court

reject’s Plaintiff’s contentions regarding the therapists’ records.

25 26 27 28

5

The Court notes that a therapist whose work is supervised by a physician may constitute an acceptable medical source. See Gomez, 74 F.3d at 971. However, the Plaintiff reports that the therapists in question are not acceptable medical sources. (See Jt. Stip. at 9). 18

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 19 of 23 Page ID #:79

In addition, the ALJ need not accept any opinion, if that opinion

1 2 3 4 5 6 7 8 9 10 11 12 13

is brief, conclusory, and inadequately supported by clinical findings. See Batson, 359 F.3d at 1195 (rejecting a treating physician’s opinion, in part, because it was “conclusory in the form of a check list” and “lack[ed] substantive medical findings to support [the] conclusion.”); Tonapetyan v. Comm’r of Soc. Sec., 242 F.3d 1144, 1149 (9th Cir. 2001) (an ALJ may discredit treating physicians’ opinions that are conclusory, brief, and unsupported by the record as a whole).

Here, Soojin Kim’s

Care Necessity Questionnaire is a check-off report used to determine whether a patient is qualified for Medi-Cal benefits.

(See AR 291).

It

does not indicate that substantial clinical findings were made or relied upon.

(See id.).

As such, the ALJ was not required to address the

questionnaire.

14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Even if the ALJ erred in failing to discuss the therapists’ opinions, any error was harmless. The therapists’ assessments and notes were cumulative of Dr. Salanga’s opinions.

Soojin Kim’s Care Necessity

Questionnaire evaluated Plaintiff as suffering from “schizophrenia, paranoid type” and having a GAF score of forty-five.

(AR 291).

The ALJ

made a specific reference to Dr. Salanga’s diagnosis of paranoid schizophrenia and her assessment that Plaintiff’s GAF score was fortyfive in his discussion of the medical evidence.

(AR 17).

Ruth

Maloney’s assessment notes also conveyed the same concerns that Dr. Salanga

detailed

in

her

records.

(AR

251).

Moreover,

Anthony

Akalemeaku’s group therapy notes are not probative of whether Plaintiff was disabled.

(AR 243).

The ALJ throughly discussed Dr. Salanga’s

initial assessment of Plaintiff and her subsequent notes showing marked improvement in Plaintiff’s condition. 19

(AR 17-19).

As the therapists’

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 20 of 23 Page ID #:80

1 2 3 4

records and opinions were cumulative of Dr. Salanga’s assessments, the ALJ essentially addressed the observations in the therapists’ opinions. Even if the therapists’ opinions were fully credited, a reasonable ALJ would have reached the same decision.

5 In sum, the ALJ did not err by failing to evaluate the therapists’

6 7 8 9

opinions discussed above. the error was harmless.

To the extent that the ALJ may have erred,

Plaintiff is therefore not entitled to remand

on this claim.

10 11 12

C.

Plaintiff’s Claim That The ALJ Misstated The Evidence Of Record Does Not Warrant Remand

13 14 15 16 17 18 19 20

Plaintiff complains that the ALJ misstated the evidence when he noted that “[Plaintiff]” did not undertake medical treatment until after the January 14, 2005 hearing; so that her improvement took place after a comparatively short time.

[AR 17].”

(Jt. Stip. at 13-14).

Plaintiff

claims that this error warrants remand because it is clear that the ALJ overlooked important medical evidence in the file between October 2004 and January 2005.

(Jt. Stip. at 14).

The Court disagrees.

21 22 23 24 25 26 27 28

The ALJ erred in misstating the start date of Plaintiff’s medical treatment.

(See AR 15).

Nonetheless, the was harmless error as the

outcome would have been the same had the error not occurred.

See Curry

v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (harmless error rule applies to review of administrative decisions regarding disability); Booz v. Sec’y of Health and Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984) (same).

The ALJ was obviously aware that Plaintiff was 20

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 21 of 23 Page ID #:81

1 2 3 4 5 6 7

receiving medical treatment as of October 2004. Dr.

Soltz

noted

Dr.

Salanga

diagnosed

schizophrenia on October 12, 2004.

(AR 17).

The ALJ reports that

Plaintiff

with

paranoid

Also, Plaintiff testified

that she began hearing voices three months before she sought treatment. (AR 331).

The ALJ’s decision notes that Plaintiff never heard voices

before July 2004.

(AR 17).

As such, the ALJ must have been aware that

her treatment began as of October 2004.

8 As discussed above, the ALJ obviously considered the evidence of

9 10 11 12 13 14 15 16 17 18

medical treatment beginning in October 2004.

Moreover, the ALJ’s point

that Plaintiff’s condition improved in a “comparatively short time” is not an error.

Plaintiff began treatment in October 2004.

She reported

that she stopped hearing voices within three days of beginning her medication.

(AR 330).

By March 2005, merely five months after

beginning treatment, Dr. Salanga had made very positive notations regarding Plaintiff’s condition and improvement.

(See AR 244).

As

such, the ALJ’s mistake in stating the start date of Plaintiff’s treatment was harmless and does not warrant remand.

19 20 21

D.

Plaintiff’s

Claim

Regarding

Medication

Side-Effects

Does

Not

Warrant Remand

22 23 24 25 26 27 28

Plaintiff also contends that the ALJ erred by not considering the side effects of Abilify and Paxil on Plaintiff.

(Jt. Stip. at 15-18).

In support of her argument, Plaintiff cites that her dosage had recently been reduced and the medical expert testified that such a reduction “often indicates they might be having some side effects . . .” Stip. at 16 (quoting AR 325)).

(Jt.

Plaintiff also notes that she testified 21

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1 2 3 4 5 6

that she seems to be moving in “slow motion,” that the medical expert mentioned that Ambilify and Paxil is “strong medicine,” and that the medical expert commented that not many people become accustomed to antipsychotics.

(Jt. Stip. at 16 (quoting AR 335-36)).

Plaintiff then

lists the various side-effects that people have when taking Abilify and Paxil.

(Jt. Stip. at 17).

Plaintiff’s claim is not persuasive.

7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23

The

“type,

dosage,

effectiveness,

and

side

effects”

of

any

medication taken by the claimant to alleviate his or her pain or other symptoms are factors relevant to a disability determination and should be considered by the ALJ.

20 C.F.R. § 404.1529(c)(3)(iv); see also

Social Security Ruling (“SSR”) 96-8p, available at, 1996 WL 374184; SSR 96-7p, available at, 1996 WL 374186.

However, a claimant bears the

burden of proving that an impairment, including a medication’s side effects, is disabling.

Miller v. Heckler, 770 F.2d 845, 849 (9th Cir.

1985) (claimant failed to meet burden of proving that an impairment is disabling where he produced no clinical evidence showing that his prescription narcotic use impaired his ability to work); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (upholding the ALJ’s rejection of the plaintiff’s statements that her medications affected her concentration and made her dizzy where no objective evidence was put forth and the ALJ properly found her testimony was generally not credible).

Plaintiff has not met her burden in this case.

24 25 26 27 28

The record does not contain any references to side effects caused by Plaintiff’s medications.

Plaintiff’s testified that she did not

suffer from any side effects from the medication but that it made her “quiet.”

(See AR 330).

Moreover, Plaintiff’s medical records report 22

Case 5:06-cv-00771-SS Document 16 Filed 10/01/07 Page 23 of 23 Page ID #:83

1 2 3 4 5 6 7

that she was not suffering from medication side effects. 244-48, 280-83).

(AR 241-42,

Accordingly, Plaintiff has failed to put forth

clinical evidence showing Abilify or Paxil affected her ability to sustain employment.

See Miller, 770 F.2d at 849.

The Court concludes

that the ALJ properly considered the limited evidence in the record regarding the side effects of Abilify and Paxil.

Therefore, remand is

not warranted.

8 CONCLUSION

9 10 11 12 13 14 15

Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice.

IT IS FURTHER ORDERED that the Clerk of the

Court serve copies of this Order and the Judgment herein on counsel for both parties.

16 17

DATED: October 1, 2007.

18 /S/

19

______________________________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE

20 21 22 23 24 25 26 27 28 23