James Thompson v. Jo Anne B Barnhart

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 1 of 13 Page ID #:49 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CAL...

0 Downloads 8 Views
Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 1 of 13 Page ID #:49

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

JAMES THOMPSON,

) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, ) Commissioner of the ) Social Security Administration, ) ) Defendant. ) ___________________________________)

NO. EDCV 06-0368-MAN MEMORANDUM OPINION AND ORDER

17 18

Plaintiff filed a complaint on April 11, 2006, seeking review of

19

the denial by the Social Security Commissioner (“Commissioner”) of

20

Plaintiff’s claim for Supplemental Security Income payments (“SSI”).1

21

On

22

undersigned United States Magistrate Judge, pursuant to 28 U.S.C. §

23

636(c).

24

which:

25

and directing the payment of benefits or, alternatively, remanding the

April

28,

2006,

the

parties

consented

to

proceed

before

the

The parties filed a Joint Stipulation on December 19, 2006, in Plaintiff seeks an order reversing the Commissioner’s decision

26 27 28

1

Security place of action. Security

Michael J. Astrue became the Commissioner of the Social Administration on February 12, 2007, and is substituted in former Commissioner Joanne B. Barnhart as the Defendant in this (See Fed. R. Civ. P. 25(d)(1); Section 205(g) of the Social Act, last sentence, 42 U.S.C. § 405(g).)

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 2 of 13 Page ID #:50

1

case for a new hearing; and Defendant requests that the Commissioner’s

2

decision

3

Stipulation under submission without oral argument.

be

affirmed.

The

Court

has

taken

the

parties’

Joint

4 5

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

6 7

Plaintiff

filed

his

application

for

SSI

on

June

8

(Administrative Record (“A.R.”) 35-37.)

9

disabled since May 30, 2001, due to depression and paranoia.

10

13.)

11

loader/unloader.

12,

2001.

Plaintiff claims to have been (A.R. 35,

He has past relevant work experience as a warehouse worker and (A.R. 13, 251.)

12 13

The Commissioner denied Plaintiff’s claim for benefits initially

14

and upon reconsideration.

15

Plaintiff, who was represented by counsel, testified at a hearing before

16

Administrative Law Judge (“ALJ”) Ellen Koldewey. (A.R. 222-45.) On May

17

29, 2003, the ALJ denied Plaintiff’s SSI claim, and the Appeals Council

18

subsequently

19

decision.

denied

(A.R. 25-28, 30-33.)

Plaintiff’s

request

for

On August 22, 2002,

review

of

the

ALJ’s

(A.R. 12-15, 4-6.)

20 21

Plaintiff sought review of that decision in this Court.

22

November 23, 2004, the Court reversed the Commissioner’s decision and

23

remanded the case.

24

substantial evidence did not support the ALJ’s finding that Plaintiff

25

did not have a “severe” mental impairment in the absence of substance

26

abuse.

27

the ALJ must thoroughly and accurately state [Plaintiff’s treating

28

physicians’] records and provide specific and legitimate reasons, if

(A.R. 271.)

(A.R. 259-77.)

On

Specifically, the Court found that

In addition, the Court directed that, “on remand,

2

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 3 of 13 Page ID #:51

1

they exist, before rejecting them in favor of the opinions of Dr. Smith

2

and Dr. Taylor, the examining psychologists.”

(A.R. 274-75.)

3 4

On June 23, 2005, Plaintiff, who was represented by counsel,

5

appeared at a hearing before ALJ David Ganly, who closed the hearing for

6

further clarification from the Appeals Council.

7

October 14, 2005, the ALJ conducted a supplemental hearing. Plaintiff’s

8

counsel was present, but Plaintiff was not.2

9

23, 2006, the ALJ denied Plaintiff’s request for SSI.3

(A.R. 308-14.)

(A.R. 315-41.)

On

On January

(A.R. 249-52.)

10 11

SUMMARY OF ADMINISTRATIVE DECISION

12 13

On January 23, 2006, the ALJ found that Plaintiff had not engaged

14

in substantial gainful activity since his alleged disability onset date

15

of May 30, 2001.

16

a severe impairment, consisting of an adjustment disorder with depressed

(A.R. 251, 35.)

The ALJ then found that Plaintiff had

17 18 19 20 2

21 22 23 24 25 26 27 28

At this hearing, Plaintiff’s counsel agreed to proceed with the hearing in Plaintiff’s absence. (A.R. 317.) 3

Although the record does not contain evidence of presentment to or a decision by the Appeals Council, the parties do not raise this as an issue. This Court assumes a final decision of the Commissioner was made and undertakes judicial review of the matter through the Commissioner’s waiver or otherwise. 42 U.S.C. § 405(g)-(h). See also, e.g., Bowen v. City of New York, 476 U.S. 467, 483, 106 S. Ct. 2022 (1986)(Secretary has the discretion to waive the exhaustion requirement, but courts can waive the exhaustion requirement in cases in which “a claimant’s interest in having a particular issue resolved promptly is so great that deference to the agency’s judgment is inappropriate”; citations omitted); Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987)(exhaustion requirement may be waived by the Secretary or by the courts). 3

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 4 of 13 Page ID #:52

1

mood and dysthymia.4

2

to have an impairment that met or medically equaled one of the listed

3

impairments in Appendix 1, Subpart P, Regulation No. 4.

4

addition, the ALJ noted that “[Plaintiff] was not present at the hearing

5

and his credibility was not assessed.”

(A.R. 15, 251.)

However, Plaintiff was not found

(Id.)

In

(Id.)

6 7

In

support

of

his

findings

regarding

Plaintiff’s

residual

8

functional capacity (“RFC”), the ALJ weighed the relevant evidence.

9

(A.R. 250-51.)

He noted that the San Bernardino County Department of

10

Behavioral Health records indicate “routine outpatient treatment for a

11

depressive

12

Christensen, Ph.D., diagnosed Plaintiff with “schizoaffective disorder,

13

bipolar type.”

14

Brown diagnosed Plaintiff with “major depressive disorder, severe with

15

psychotic

16

psychological consultative examiner Clifford Taylor, Ph.D., diagnosed

17

Plaintiff with anxiety.

18

health

19

treatment.”

disorder.”

(A.R. 182, 250.)

features.”5

crisis

(A.R.

(A.R.

250.)

On

2,

2001,

David

On June 26, 2002, social worker Monica

204,

250.)

(A.R. 250, 216.)

requiring

November

inpatient

On

November

4,

2002,

No records evidence a “mental

hospitalization

or

intensive

(A.R. 250.)

20 21 22 4

23 24 25 26 27 28

This was in accord with the Court’s initial remand, which found that “the records from Plaintiff’s treating physicians at San Bernardino County and the Cedar House Rehabilitation Center demonstrate that Plaintiff’s mental health problems in the absence of his substance abuse meet the de minimis standard for ‘severity’ under the Social Security regulations.” (A.R. 274.) 5

Brown’s opinion is not accorded the weight of an “acceptable medical source.” See 20 C.F.R. §§ 404.1513(a)(1), 416.913(a)(1)(a decision regarding a claimant’s medically determinable impairments should be based upon a determination made by an “acceptable medical source,” such as a licensed physician). 4

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 5 of 13 Page ID #:53

1

The ALJ discussed the results of Dr. Christensen’s mental status

2

examination

3

Plaintiff displayed organized speech and thought processes, intact

4

memory, poor insight, and no delusions.

5

reported difficulty concentrating, and that he was paranoid around

6

people.

conducted

on

November

2,

2002.

(A.R.

250,

(A.R. 250, 180.)

175-82.)

He also

(A.R. 250, 180, 176.)

7 8 9

The

ALJ

Perrotti.

then

considered

(A.R. 250.)

the

testimony

of

medical

expert

Dr.

Dr. Perrotti disagreed with the diagnosis of

10

schizoaffective

11

appointments with mental health professionals and had a girlfriend.

12

(Id.) Schizoaffective patients are typically withdrawn, and Plaintiff’s

13

functioning was “not apparently disrupted.”

14

further

15

supported

16

Plaintiff’s

17

Plaintiff’s psychotic features –- his report that “people are talking

18

about me” –- were consistent with methamphetamine withdrawal.6

19

Plaintiff’s then current medications were appropriate for a psychotic

20

disorder, but also for treating withdrawal symptoms.

found by

disorder,

no

basis

clinical complaints.

because

for

or

the

Plaintiff

anxiety

objective (Id.)

(Id.)

able

but,

Perrotti

to

maintain

The medical expert

diagnosis,

findings

Dr.

was

which

rather,

also

was

not

only

testified

by

that

(Id.)

(A.R. 250-51.)

21 22

Regarding

the

severity

of

Plaintiff’s

mental

impairment,

Dr.

23

Perrotti testified that Plaintiff “would have mild restriction in

24

activities of daily living, moderate difficulty maintaining social

25

functioning,

26

persistence, or pace.” (A.R. 251.) He further testified that Plaintiff

and

moderate

difficulty

maintaining

concentration,

27 6

28

abuse.

The administrative record documents Plaintiff’s former drug (See, e.g., A.R. 56, 71, 84). 5

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 6 of 13 Page ID #:54

1

could “perform moderately complex tasks consisting of five steps or

2

less.

3

(Id.)

He could not perform face-paced [sic] work or multiple tasks.”

4 5

The ALJ stated that Dr. Perrotti’s testimony was highly probative,

6

consistent with the objective medical evidence, and that there was no

7

convincing reason to reject his opinion.

8

following

9

unrestricted.

RFC

assessment:

(A.R. 251.)

“Physically,

The ALJ made the

[Plaintiff’s

RFC]

is

Mentally, [Plaintiff] can perform tasks consisting of

10

five

11

interacting with the general public.”7

12

found

13

performance of work-related activities precluded by his RFC.

14

Accordingly, the ALJ found that Plaintiff is not “disabled” within the

15

meaning of the Social Security Act.

steps

or

that

less,

no

Plaintiff’s

multitasking

past

relevant

or

fast-paced

(A.R. 252.) work

did

work,

and

no

The ALJ further not

require

the (Id.)

(Id.)

16 17

STANDARD OF REVIEW

18 19

This

Court

reviews

the

Commissioner’s

decision

to

determine

20

whether it is free from legal error and supported by substantial

21

evidence.

22

Commissioner’s decision must stand if it is supported by substantial

23

evidence and applies the appropriate legal standards. Saelee v. Chater,

24

94 F.3d 520, 521 (9th Cir. 1996).

25

mere scintilla but less than a preponderance -- it is such relevant

26

evidence that a reasonable mind might accept as adequate to support the

Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).

The

Substantial evidence is “more than a

27 7

28

This action does not contest the physical limitation finding, and addresses only the finding regarding mental limitations. 6

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 7 of 13 Page ID #:55

1

conclusion.”

Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995).

2 3

Although this Court cannot substitute its discretion for that of

4

the Commissioner, this Court nonetheless must review the record as a

5

whole, “weighing both the evidence that supports and the evidence that

6

detracts from the [Commissioner’s] conclusion.” Desrosiers v. Sec’y. of

7

Health and Human Serv., 846 F.2d 573, 576 (9th Cir. 1988); see also

8

Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

9

responsible for determining credibility, resolving conflicts in medical

“The ALJ is

10

testimony, and for resolving ambiguities.”

11

1035,

12

Commissioner’s decision if it is supported by substantial evidence and

13

free from legal error, even when the record reasonably supports more

14

than one rational interpretation of the evidence.

15

Morgan v. Comm’r. of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.

16

1999); Flaten v. Secretary, 44 F.3d 1453, 1457 (9th Cir. 1995).

1039-40

(9th

Cir.

1995).

This

Andrews v. Shalala, 53 F.3d Court

must

uphold

the

Id. at 1041; see also

17 18

DISCUSSION

19 20

Plaintiff alleges two errors.

First, Plaintiff contends that the

21

ALJ failed to render proper credibility findings.

22

contends

23

statements.

that

the

ALJ

failed

to

consider

Second, Plaintiff

properly

lay

witness

(Joint Stip. at 2.)

24 25 26

A.

Plaintiff’s Credibility Is Not Critical To The Determination Of This Claim.

27 28

An ALJ is required to make credibility findings when the claimant’s 7

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 8 of 13 Page ID #:56

1

credibility is critical to the determination of a claim.

2

Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Lewin v. Shweiker, 654

3

F.2d 631, 635 (9th Cir. 1981).

4

consistent with the ALJ’s ultimate conclusions, his credibility is not

5

critical in this case, and the ALJ was not required to make credibility

6

findings.

Albalos v.

Because Plaintiff’s statements are

7 8

In his Daily Activities Questionnaire, Plaintiff answered the

9

request, “Please explain how your condition keeps you from working,” by

10

stating, “I get nervous around people.”

11

questionnaire, Plaintiff described problems with concentration, stating,

12

“My mind wanders,” and, “I lose focus sometimes.”

13

questioning by ALJ Koldeway, Plaintiff described why he quit his most

14

recent job, which involved “doing filing and stuff.”

15

Plaintiff stated, “I just couldn’t handle like the new faces coming in,

16

and I got like – it’s hard to explain, kind of like frustrated and

17

irritated.”

18

follows:

(A.R. 231.)

(A.R. 56.)

(Id.)

In the same

In response to

(A.R. 230.)

The ALJ questioned Plaintiff further, as

19 20

Q. [T]ell me why at least you can’t support yourself enough to

21

live independently?

22

A. To go out and honestly and get a job –

23

Q. Uh-huh.

24

A. – and work 40 hours a week for somebody, I just haven’t

25

been able to bring myself to have that kind of responsibility

26

without getting – I trip a lot of [sic] what people think of

27

me, you know. And then I start thinking I’m not living up or

28

working to their expectations and I give up. 8

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 9 of 13 Page ID #:57

1

(A.R. 233.)

2

severity of his impairment prevents him from performing substantial

3

gainful activity.8 Nor do any of Plaintiff’s numerous medical evaluators

4

state that Plaintiff is unable to work.

Nowhere in his testimony does Plaintiff state that the

5 6

Plaintiff’s subjective complaints regarding the severity of his

7

impairment are consistent with the ALJ’s findings.

8

Plaintiff’s RFC is physically “unrestricted. Mentally, the claimant can

9

perform tasks consisting of five steps or less, no multitasking or fast-

The ALJ found that

10

paced work, and no interacting with the general public.”

11

This matches the substance of Plaintiff’s statements.

12

to physical disability.

13

he has trouble concentrating, difficulty with new people, and concern

14

about what others think of him –- are in accord with the ALJ’s finding

15

that he is capable of uncomplicated job-tasks in a relatively static

16

social environment, not involving interaction with the general public.

(A.R. 1-341.)

(A.R. 252.)

He made no claim

His alleged limitations –- that

17 18

Plaintiff relies on two cases -- Bunnell v. Sullivan, 947 F.2d 341

19

(9th Cir. 1991), and Lester v. Chater, 81 F.3d 821 (9th Cir. 1995) –-

20

to support his argument that a finding regarding Plaintiff’s credibility

21

was required.

22

clarify the standard for evaluating subjective pain testimony in Social

23

Security disability cases.

In Bunnell, a Ninth Circuit en banc panel sought to

947 F.2d at 342.

Two claims were resolved

24 8

25 26 27 28

Claimant asserts in his application for SSI benefits, “I have a disability.” (A.R. 35.) Certainly, all claimants implicitly assert that the severity of their impairment prevents them from working. Therefore, any denial of benefits could be construed as finding this implicit assertion not credible. However, specific credibility findings are required only when an ALJ rejects a claim based on claimant’s articulated subjective complaints regarding the severity of an impairment. See infra. 9

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 10 of 13 Page ID #:58

1

in Bunnell; each involved a claimant who testified to disabling pain.

2

Id. at 342-43.9

3

testimony regarding allegedly disabling pain was not supported by

4

medical evidence and, therefore, was not credible.

5

analysis, the Ninth Circuit held that:

In each claim, an ALJ had found that the claimant’s

Id.

Rejecting this

6 7

[O]nce the claimant produces objective medical evidence of an

8

underlying

9

claimant's subjective complaints based solely on a lack of

10

objective medical evidence to fully corroborate the alleged

11

severity of pain. . . .

12

find

13

credible, the adjudicator must specifically make findings

14

which support this conclusion. . . .

the

impairment,

claimant's

an

adjudicator

may

not

reject

a

Further, although an adjudicator may allegations

of

severity

to

be

not

15 16

These findings, properly supported by the record, must be

17

sufficiently specific to allow a reviewing court to conclude

18

the

19

permissible grounds and did not “arbitrarily discredit a

20

claimant's testimony regarding pain.” . . .

21

previously recognized, a reviewing court should not be forced

22

to speculate as to the grounds for an adjudicator's rejection

23

of a claimant's allegations of disabling pain. . . .

adjudicator

rejected

the

claimant's

testimony

on

As we have

24 25

947 F.2d at 345-46 (citations omitted).

26 9

27 28

One claimant suffered “‘back pain all day and all night,’” which prevented her from sitting “‘for prolonged periods’ or being in a ‘stationary position for more than 15 to 20 minutes.’” Bunnell, 947 F.2d at 343. 10

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 11 of 13 Page ID #:59

1

Similarly, in Lester, the claimant alleged that the ALJ erred in

2

rejecting his testimony concerning his allegedly disabling pain.

3

F.3d at 833.

4

his daily activities.

5

the claimant’s testimony . . . to be exaggerated, not credible, and not

6

supported by credible medical evidence.”

7

reversed, concluding that when subjective pain testimony forms the basis

8

of a benefits claim, the ALJ may reject the testimony only after

9

identifying “what testimony is not credible and what evidence undermines

10

81

Lester testified that severe pain significantly impacted Id.

The ALJ’s written decision stated, “I find

the claimant’s complaint.”

Id.

The Ninth Circuit

Id. at 834.

11 12

These cases are inapposite here.

Unlike in Lester and Bunnell,

13

Plaintiff did not assert disabling pain before either of the two ALJs

14

who considered his claim.

15

the ALJ did not discredit Plaintiff’s testimony at all. (A.R. 249-252.)

16

In fact, in the decision now at issue, the ALJ wrote twice that “[t]he

17

claimant was not present at the hearing and his credibility was not

18

assessed.”

(A.R. 222-245.)

Moreover, and critically,

(A.R. 250, 251.)

19 20

The ALJ described with sufficient specificity his reasons for

21

denying Plaintiff’s claim, making clear that his decision was based on

22

substantial evidence in the record and was not arbitrary.

(A.R. 249-

23

51.)

statements

24

regarding his mental limitations.

The ALJ’s ultimate conclusion that

25

Plaintiff

not

26

credibility finding.

27

and/or statements was not a pre-requisite for the denial of benefits.

28

Therefore,

The

ALJ’s

was

the

RFC

not

finding

disabled

accommodated

does

rest

Plaintiff’s

on

an

implicit

adverse

Put otherwise, disbelief of Plaintiff’s testimony

ALJ’s

failure

to 11

discuss

and

render

an

express

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 12 of 13 Page ID #:60

1

credibility finding regarding Plaintiff’s testimony and statements in

2

the post-remand decision was not reversible error.

3 4 5

B.

Mr. Ratliff’s Statements Are Cumulative, And Even If Fully Considered, Would Not Alter A Reasonable ALJ’s Ultimate Conclusion.

6 7

Plaintiff next contends that the ALJ failed to assess properly the

8

statements made in a Daily Activities Questionnaire by Sean Ratliff,

9

Plaintiff’s friend.

Plaintiff points to statements by Mr. Ratliff

10

describing Plaintiff as “antisocial,” and commenting that he has “an

11

attention problem, and loses interest fast,” and “sometimes is slow at

12

what he does and needs to be reminded.”

13

essentially repeat Plaintiff’s testimony.

14

had difficulty interacting with new people at his filing job.

15

231.) He also described difficulty concentrating or paying attention to

16

any one task.

17

assertions do not undermine the ALJ’s ultimate conclusion regarding

18

Plaintiff’s RFC, for they are consistent with the limitations found by

19

the ALJ.

(A.R. 62.)10

(Id.; see also A.R. 56.)

These statements

Plaintiff testified that he (A.R.

As discussed above, these

20 21

If there was any error in the ALJ’s failure to acknowledge Mr.

22

Ratliff’s statements, it was harmless, as the Court can confidently

23

conclude that no reasonable ALJ considering this case would have reached

24

a different conclusion had he or she expressly considered and addressed

25 10

26 27 28

Plaintiff also asserts that Mr. Ratliff “wrote that her [sic] social activities have changed, ‘Dramatically.’ [A.R. 402.]” (Joint Stip., p. 7). The Court is unable to locate and assess any such statement. Mr. Ratliff did not write the word “dramatically” anywhere in his Daily Activities Questionnaire filled out on behalf of Plaintiff. (A.R. 58-63.) Further, the record ends at page 341. 12

Case 5:06-cv-00368-MAN Document 16 Filed 09/28/07 Page 13 of 13 Page ID #:61

1

Mr. Ratliff’s cumulative statements.

2

F.3d 1050, 1056 (9th Cir. 2006)(when an ALJ fails to discuss competent

3

lay testimony, a reviewing court cannot find harmless error “unless it

4

can confidently conclude that no reasonable ALJ, when fully crediting

5

the

6

determination”).

7

the ALJ’s failure to address Mr. Ratliff’s statements.

testimony,

could

have

See Stout v. Commissioner, 454

reached

a

different

disability

Accordingly, the Court finds no reversible error in

8 9

CONCLUSION

10 11

For all of the foregoing reasons, the Court finds that neither

12

reversal of the ALJ’s decision nor remand is warranted. Accordingly, IT

13

IS ORDERED that Judgment shall be entered affirming the decision of the

14

Commissioner of the Social Security Administration.

15 16

IT IS FURTHER ORDERED that the Clerk of the Court shall serve

17

copies of this Memorandum Opinion and Order and the Judgment on counsel

18

for Plaintiff and for Defendant.

19 20

LET JUDGMENT BE ENTERED ACCORDINGLY.

21 22

DATED: September 28, 2007

23 24 25

/s/ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE

26 27 28 13

English