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McConahy v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 15, 2009

DAMION L. MCCONAHY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On April 24, 2008, plaintiff Damion L. McConahy ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; April 25, 2008 Case Management Order, ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On March 31, 2005, plaintiff filed an application for Security Income benefits, asserting he became disabled on July 12, 1992. (AR 21). The ALJ examined the medical record and heard testimony from plaintiff, who was represented by counsel, and a vocational expert on March 8, 2007. (AR 259-75).

On April 23, 2007, the ALJ determined that plaintiff was not disabled through the date of the decision. (AR 21-26). Specifically, the ALJ found:

(1) plaintiff suffered from the following severe impairments: Status post gunshot wound to the left hip and chronic mechanical back pain (AR 22); (2) plaintiff suffered from a nonsevere depressive disorder (AR 22); (3) plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments (AR 22); (4) plaintiff retained the residual functional capacity to perform sedentary work, could lift/carry up to 10 pounds, and could "do posturals," but was "restricted by mild limitations in attention, concentration, understanding, and memory" (AR 23, 25); (5) plaintiff could not perform his past relevant work (AR 24); (6) plaintiff could perform other work that exists in significant numbers in the national economy (AR 25); and (7) plaintiff's allegations regarding his limitations were not entirely credible. (AR 23).

The Appeals Council denied plaintiff's application for review. (AR 8-10).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that he is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (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)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).

The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). 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) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).

IV. FACTS

A. Plaintiff's Statements/Testimony Regarding His Mental Condition

In an undated function report, plaintiff stated, inter alia, that he: (i) had "bad dreams at night" and "[woke] up scared" (AR 60); (ii) did not follow written instructions very well (AR 64); (iii) was a "little better" at following spoken instructions; (iv) did not handle stress or changes in routine very well (AR 65); and (v) "[did not] like to be around people" and "like[d] to be alone" (AR 65). However, in the same report, plaintiff indicated that his illness, injuries and condition did not affect his memory, his ability to complete tasks, his concentration, his understanding, his ability to follow instructions, and his ability to get along with others. (AR 64).*fn2

At the hearing, plaintiff testified: He suffered from constant pain from his back impairments. (AR 265-69). He had been diagnosed with dyslexia in fourth grade, and was taking antidepressants because he was short-tempered due to pain and his other medications. (AR 270). In response to the ALJ's question asking plaintiff why he could not work, plaintiff responded: "Because the pain and then the medication I'm on I can't focus and sitting down for long periods of time just -- the pain and focusing issue." (AR 267).

B. Psychiatric Evaluation

On August 19, 2005, Dr. Ernest Bagner, a consulting psychiatrist, performed a complete psychiatric evaluation of plaintiff. (AR 235-38).

Plaintiff told Dr. Bagner: He had "mood swings, anger, [and] anxiety." (AR 235). He experienced "nervousness, feelings of helplessness and hopelessness and difficulty with memory." (AR 235). He suffered from "auditory hallucinations of his name being called," and had experienced suicidal ideations in the past." (AR 235). He had difficulty falling and staying asleep. (AR 235). He had "experienced fluctuations in weight and appetite" but no other "depressive symptoms." (AR 235). He was able to: (i) dress and bathe himself; (ii) do household chores; (iii) manage money; and (iv) get around in a car. (AR 236). He reported having a good relationship with his family. (AR 236). He felt depressed. (AR 236).

Dr. Bagner noted that plaintiff had no history of psychiatric treatment, and was not then seeing a psychiatrist or counselor. (AR 236, 238).

Dr. Bagner opined: (i) plaintiff's speech was "intact and coherent," but mildly decreased in rate, rhythm and volume (AR 237); (ii) his thought processes were "tight," with "no flight of thought, looseness of association, thought blocking or distractibility" (AR 237); (iii) he appeared to have average intelligence; (iv) he was "alert and oriented to person and place" (AR 237); and (v) he appeared to have "normal reality contact" with no evidence of auditory or visual hallucinations, or paranoid or grandiose delusions during the interview (AR 237).

Dr. Bagner diagnosed plaintiff with "mood disorder, not otherwise specified," and "borderline intellectual functioning." (AR 237). He assigned*fn3 plaintiff a current global assessment of functioning ("GAF") score of 72/100.*fn4

(AR 237).

In terms of a functional assessment, Dr. Bagner opined that plaintiff would have: (i) zero to mild limitations interacting with supervisors, peers and the public, and in maintaining concentration and attention and completing simple tasks; (ii) mild limitations completing complex tasks and completing a normal workweek without interruption; and (iii) mild to moderate limitations handling normal stresses at work. (AR 238).

Dr. Bagner also stated that with psychiatric treatment plaintiff "should be significantly better in less than six months." (AR 238).

C. The Vocational Expert

At the administrative hearing, the ALJ posed the following question to the vocational expert:

Please assume I find a person who's 31 years old, has a limited education. Further assume I find they can do sedentary work.

They're further limited to frequent climbing, balancing, stooping, kneeling, crouching, crawling, they have a mild limitation on attention, concentration, understanding and memory. (AR 272). The vocational expert opined that a person with the foregoing characteristics (i.e., plaintiff), could perform unskilled, sedentary jobs like "assembly" (e.g. "button and notion assembler") and production laborer (e.g., "jewelry stringer"), each existing in significant numbers in the local and national economies. (AR 273).

D. The ALJ's Assessment of Plaintiff's Mental Condition

As noted above, the ALJ determined that plaintiff had a "nonsevere depressive disorder," and found that plaintiff did not have a severe mental impairment. (AR 22).

With respect to plaintiff's alleged mental condition, the ALJ found plaintiff to be only "partially credible." (AR 24). The ALJ stated that plaintiff's alleged mental limitations were "not supported by the treating record." (AR 23). He noted that the record contained "no doctor reports of hallucinations, delusions, paranoia, irritability or any inability to understand treatment programs," and discounted plaintiff's complaints because of his lack of any ongoing psychiatric treatment and his inability to give more than "vague descriptions" of his symptoms. (AR 23, 24).

With respect to Dr. Bagner's examination, the ALJ essentially determined that it revealed no psychological limitations on plaintiff's functioning. (AR 24). The ALJ pointed out that plaintiff displayed "no cognitive deficits and no thought intrusions during [the] formal examination, that he "attended and concentrated well" and that he "performed simple mathematics and showed no significant memory deficits." (AR 24). The ALJ noted that although plaintiff claimed to be distant toward people, he told Dr. Bagner that his "relationships with family members were good" and that his activities of daily living included visiting with friends. (AR 23). The ALJ also pointed out that the GAF score assigned to plaintiff by Dr. Bagner (72/100) represented "a nonsevere level." (AR 236).

Although the ALJ recognized that plaintiff's chronic pain, stiffness and other daily limitations "could reasonably cause stress and anxiety," he determined that plaintiff nonetheless remained "capable of doing unskilled jobs where concentration and attention [were] not important factors[,]" noting that unskilled jobs are generally jobs working with objects and are repetitive in nature and do not require extensive contact with people." (AR 24).

Thus, the ALJ concluded that plaintiff could perform only sedentary work, with additional non-exertional limitations due to depression, which consisted of "mild limitations in attention, concentration, understanding, and memory." (AR 25). This determination ruled out plaintiff's past work at step four, but left plaintiff with the residual functional capacity to workin the sedentary, unskilled positions about which the vocational expert testified. (AR 25).

V. DISCUSSION

A. The ALJ's Step Two Determination Is Supported by Substantial Evidence and Is Free from Material Error

Plaintiff contends that the ALJ erroneously failed to find that plaintiff's "borderline intellectual functioning" constituted a severe impairment. (Plaintiff's Motion at 4-5). This Court concludes that the ALJ did not err, let alone materially err, in concluding that plaintiff did not suffer from a severe mental impairment based upon Dr. Bagner's assessment that plaintiff had borderline intellectual functioning.

Step two is "a de minimis screening device [used] to dispose of groundless claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Applying the normal standard of review to the requirements of step two, a court must determine whether an ALJ had substantial evidence to find that the medical evidence clearly established that the claimant did not have a medically severe impairment or combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (citation omitted).

An impairment is severe if it significantly limits one's ability to perform basic work activities. 20 C.F.R. § 416.920(c). An impairment is "non-severe" if it does not significantly limit one's physical or mental ability to do basic work activities. 20 C.F.R. § 416.921(a). Basic work activities are the "abilities and aptitudes necessary to do most jobs," such as (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling; (2) the capacity for seeing, hearing, and speaking; (3) understanding, carrying out, and remembering simple instructions; (3) the use of judgment; (5) responding appropriately to supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work setting. 20 C.F.R. § 416.921(b). An impairment or a combination of impairments may be found not medically severe only if evidence clearly establishes a slight abnormality that has no more than minimal effect on an individual's ability to work. Webb, 433 F.3d at 687.

First, although Dr. Bagner diagnosed plaintiff with borderline intellectual functioning, he also (i) opined that plaintiff appeared to have average intelligence; (ii) assigned him a GAF score consistent with no more than a slight impairment in occupational functioning; and (iii) opined that plaintiff had zero to mild limitations maintaining concentration and attention and completing simple tasks and only mild limitations completing complex tasks and completing a normal workweek without interruption. Dr. Bagner thus effectively concluded that*fn5 plaintiff's borderline intellectual functioning did not significantly limit his ability to perform basis work activities. Moreover, plaintiff, in responding to the ALJ's question at the administrative hearing about why he could not work, did not testify that his alleged "borderline intellectual functioning" impaired his ability to work. Contrary to the facts involved in the non-binding cases upon which plaintiff relies, the facts in the instant case do not warrant a conclusion that the ALJ erred in failing to equate Dr. Bagner's "borderline intellectual functioning" diagnosis with the existence of a severe impairment. Rather, the record reflects that the ALJ had substantial evidence to find that the medical evidence clearly established that plaintiff did not have a medically severe mental impairment despite the diagnosis of borderline intelligence.

Second, even if the facts here and the cases cited by plaintiff mandated a finding that the "borderline intellectual functioning" diagnosis equated to the existence of a severe mental impairment, the ALJ's failure to so find here was harmless. Despite the step two determination, the ALJ clearly and expressly considered Dr. Bagner's opinions regarding plaintiff's mental condition in later steps of the sequential analysis and in making his residual functional capacity assessment. As noted above, Dr. Bagner apparently held the view that plaintiff's intellectual functioning had no more than a minimal effect on plaintiff's ability to work. Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (consultative examiner's opinion on its own constituted substantial evidence, because it rested on independent examination of claimant).

B. The ALJ Did Not Materially Err in Failing Expressly to Include a Stress Limitation in the Residual Functional Capacity Assessment

Plaintiff contends that the ALJ erred in failing to include in the residual functional assessment, Dr. Bagler's "stress limitation," i.e., Dr. Bagler's assessment that plaintiff had mild to moderate limitations handling normal stresses at work. (AR 238). This Court disagrees.

As noted above, the ALJ expressly recognized that plaintiff's chronic pain, stiffness and other daily limitations "could reasonably cause stress and anxiety," and considered such fact in limiting plaintiff only to unskilled jobs which by their nature, are generally repetitive, involve working with objects, and do not require extensive contact with people. In light of the foregoing, it is reasonable to infer from the ALJ's decision that he concluded that unskilled jobs are not stressful or are only minimally stressful, and thus, that he accounted for the stress limitation by limiting plaintiff to unskilled jobs.

C. The ALJ Did Not Materially Err at Step Five

To the extent plaintiff contends that the ALJ's determination at step five is faulty because the ALJ did not include a stress limitation in plaintiff's residual functional capacity assessment, this Court disagrees. As discussed above, it can reasonably be inferred from the ALJ's decision that he accounted for the stress limitation by limiting plaintiff to unskilled jobs. Given that fact, and the fact that the vocational expert likewise limited plaintiff to unskilled jobs, this Court concludes that the ALJ's step five determination is supported by substantial evidence and is free from material error. See Tackett, 180 F.3d at 1101*fn6 (vocational expert's testimony may constitute substantial evidence of a claimant's ability to perform work which exists in significant numbers in the national economy when ALJ poses a hypothetical question that accurately describes all of the limitations and restrictions of the claimant that are supported by the record).

VI. CONCLUSION

For the foregoing reasons, the decision of the Commissioner of Social Security is AFFIRMED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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