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Tanner v. Astrue


February 13, 2009


The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge


(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the consultative psychiatrist's evaluation ("CE");

2. Whether the ALJ properly considered the severity of Plaintiff's mental impairment;

3. Whether the ALJ properly explained why Plaintiff's impairments did not meet or equal a Listing; and

4. Whether the ALJ posed a complete hypothetical question to the vocational expert.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.


On August 7, 2004, at the request of the Department of Social Services, Plaintiff received a complete psychiatric CE from Dr. Parikh. (AR 145-151.) Dr. Parikh's conclusions are primarily set forth in that part of his report under the heading "Assessment." (AR 150.) As set forth therein, Dr. Parikh assessed the following:

"At this time, from a psychiatric standpoint, [Plaintiff] might have some impairment in the ability to reason and make social, occupational, and personal adjustments.

From a psychiatric standpoint, [Plaintiff] is able to understand, carryout [sic], and remember simple instructions. [Plaintiff] can follow complex instructions. [Plaintiff] could not interact appropriately with co-workers because of his paranoia. [Plaintiff] should be able to respond appropriately to the usual work settings in such matters as attendance and would not have a hard time adjusting to changes in the work routine." (Id.)

Plaintiff's assessment of error is that the ALJ essentially disregarded these relevant portions of Dr. Parikh's evaluation. (JS at 3, citing AR 17.) In particular, Plaintiff believes the ALJ erred by failing to mention his impaired ability to reason and make social, occupational and personal adjustments, or his inability in interact appropriately with co-workers because of his paranoia.

The ALJ functional assessment was that Plaintiff "has adequate memory, understanding and concentration to perform simple repetitive tasks with minimal contact with supervisors and the public." (AR 23.)

The ALJ's analysis, in fact, does incorporate Dr. Parikh's findings. Dr. Parikh's limitations on Plaintiff's ability to interact appropriately with co-workers because of his paranoia were incorporated into the ALJ's residual functional capacity ("RFC") assessment that Plaintiff may have only minimal contact with supervisors and the public. Similarly, Dr. Parikh's statement that Plaintiff should be able to respond appropriately to the usual work settings regarding attendance and that he would not have a hard time adjusting to changes in the work routine is also incorporated in the ALJ's mental RFC findings. (Id.)

Finally (although the Court will discuss the particular ramifications of this issue later), the ALJ posed a hypothetical question to the vocational expert ("VE") which was consistent with the opinion of Dr. Parikh. (Ar 773-774.) In particular, the ALJ indicated a hypothetical individual who would have only brief, superficial contacts with co-workers, supervisors and the public. (Id.)

Essentially, the Court fails to understand Plaintiff's argument that the ALJ did not account for Dr. Parikh's findings, in that the exact opposite would appear to be true. For that reason, Plaintiff's first issue has no merit.


When Plaintiff was incarcerated in the California Department of Corrections ("CDC"), he was evaluated by Dr. Ebrahim, a psychiatrist with CDC. This occurred on May 5, 2005. (AR 552.) As Plaintiff acknowledges, Dr. Ebrahim noted that he was not compliant with his medication and had therefore deteriorated. (JS at 7, AR 552.) Plaintiff complains that the ALJ failed to account for Dr. Ebrahim's findings, although the ALJ clearly did refer to Dr. Ebrahim's report, noting that Plaintiff had exhibited paranoia and agitation because he had not been taking his medication. (AR 19.)

Again, the Court fails to appreciate Plaintiff's concern that the ALJ failed to properly evaluate Dr. Ebrahim's treatment note. The opposite is true. The ALJ correctly summarized Dr. Ebrahim's conclusion that Plaintiff had deteriorated mentally because he was not at that time compliant with his medications. Prior to May 5, 2005, CDC notes indicate that Plaintiff's mental condition had improved, and that he was stable on medications. (AR 652, 669, 711, 715, 717.) There is nothing in Dr. Ebrahim's conclusion in this one treatment note that constitutes an opinion that Plaintiff had a disabling condition for the requisite 12-month period. (See 20 C.F.R. §416.909 (2008).)

For the above reasons, Plaintiff's second issue has no merit.


In his decision, the ALJ made certain determinations as to Plaintiff's severe impairments. (AR 23, Finding 2.) The ALJ also found that these medically determinable severe impairments do not meet or medically equal one of the Listing of impairments set forth in Appendix I, subpart P, Regulation 4. (Id., Finding 3.) Plaintiff complains that this is error, because the ALJ failed to offer any analysis as to why Plaintiff's severe impairments do not meet or equal a listed impairment. Plaintiff cites Marcia v. Sullivan, 900 F.2d 172 (9th Cir. 1990) in support of his proposition that the ALJ must review the medical evidence in comparison with the requirements of applicable Listings. Plaintiff has failed to identify any Listing which he believes is applicable here, as to whether he assertedly meets or equals such a Listing.

Social Security Regulations establish a five-step sequential process to determine whether a claimant is disabled within the meaning of the Social Security Act. See 20 C.F.R. §404.1520. It is undisputed that the burden of proof is on the claimant at Steps One to Four, while at Step Five, the burden shifts to the Commissioner. See, Id, and Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). The second step in the sequential evaluation process is a determination of whether a claimant has severe impairments, and at the third step, it must be determined whether a claimant meets or equals one of the listed impairments set forth in the regulations. (Id.)

Placing the burden of proof on a claimant at Step Three of the sequential evaluation process has ramifications which undermine Plaintiff's argument in this case. This very issue was recently discussed in a case from the Northern District of California, Linsky v. Astrue, 2008 WL 2128143 (N.D. Cal. 2008). The extensive discussion of this issue by Judge Illston bears repeating. In her Opinion, she states the following:

"It is the claimant who has the burden of proving that her impairment or combination of impairments meets or equals the listing. See 20 C.F.R. §404.1520(a)(4)(iii). To meet a listed impairment, plaintiff has the burden of showing that she meets each and every element described in the listing. See 20 C.F.R. §404.1525(d); Sullivan v. Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990). Plaintiff twice failed to meet this burden. In her original complaint and in her opposition to defendant's cross motion for summary judgment, plaintiff simply lists her impairments and refers to Dr. Kim's opinion in the hope that this Court will fill in the gaps as to how her impairments meet the listing. Plaintiff does not list the requirements of the 12.04 listing or explain how the ALJ erred. Arguing that she met this burden by way of Dr. Kim through an implied opinion is simply unreasonable. Plaintiff failed to articulate her argument and meet her burden.

Furthermore, the Court rejects plaintiff's argument that the ALJ's analysis was in error because he did not compare plaintiff's impairments to requirements of the listing. Not only was it her burden to undertake such a comparison and present a clear argument, but the Ninth Circuit has held that an ALJ's failure to consider equivalence is not error when the plaintiff did not offer any theory as to how her impairments combined equaled a listing impairment. See Lewis v. Apfel, 236 F.3d 503, 514 (9th Cir. 2001); Gonzalez v. Sullivan, 914 F.2d 1197, 1201 (9th Cir. 1990) (rejecting the claimant's argument that the ALJ was required to state why claimant failed to satisfy every different section of the listing of impairments); see also Burch v. Barnhart, 400 F.3d 676 at 683 (9th Cir. 2005) (explaining that an ALJ is not required to discuss the combined effects of a claimant's impairments or compare them to any listing in an equivalency determination unless the claimant presents evidence in an effort to establish equivalence)." (2008 WL 2128143 at *5.)

In Linsky, the plaintiff at least identified a listed impairment. Here, no such identification has been made.

Further, Plaintiff makes too much of the decision in Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001) to support his position. In Lewis, the appellate court reviewed the ALJ's discussion of the evidence, and found that the claimant's failure to be in compliance with his prescribed medications undermined any possible conclusion that he met the applicable Listing, which required that the claimant be compliant with medications in order to meet the Listing.

What is important in order to establish the adequacy of an administrative decision, and further, to enable the Court to undertake review of that decision, is whether the ALJ undertook an adequate and correct evaluation of the evidence in the record, and if the decision is supported by substantial evidence.

The burden also rests with the claimant to prove that he or she equals a Listing. See Bowen v. Yuckert, 482 U.S. 137, 146 (1987). Again, Plaintiff has failed to identify any Listings which he assertedly meets, or how a combination of his severe impairments equals the requirements of any particular Listing. The burden is not on the ALJ to somehow fathom what Listing might be applicable, nor is it the Court's burden to examine the severe impairments identified in the decision and independently determine if any Listing is met or equaled.

Because Plaintiff has failed in his burden of proof, the Court determines that his third issue has no merit.


Plaintiff's final issue is that the ALJ's hypothetical question to the VE was inadequate. (See JS at 17, citing AR at 773-774.) Plaintiff primarily argues that the incompleteness of the ALJ's hypothetical is evidenced by his failure to include certain portions of Dr. Parikh's evaluation, as referenced in his first issue. (Id.)

Because the Court has already determined that the ALJ did in fact adopt and incorporate the essential elements of Dr. Parikh's evaluation, the hypothetical question was not inadequate or incomplete. (See Embry v. Bowen, 849 F.2d 418, 423 (9th Cir. 1988).)

The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice.



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