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Zamorano v. Astrue


June 15, 2009


The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge


Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed his present application for SSI benefits on December 6, 2004.*fn1 [JS 2]. Plaintiff alleged that he became disabled on December 20, 2003, the day after issuance of the prior, final administrative decision finding him "not disabled." [JS 2; Administrative Record ("AR") 11-12].

In a written hearing decision that constitutes the final decision of the Commissioner in this case, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a depressive disorder, not otherwise specified ("NOS"), and a dependent personality disorder. [AR 14]. The ALJ further found that plaintiff's impairments left him with a residual functional capacity ("RFC") for work at any exertional level, with non-exertional impairments restricting him to moderately complex tasks with four to five steps in a habituated work setting that is object oriented. The claimant is precluded from safety operations and aggressive supervision. His environment should be low stress with no high production quota work or rapid assembly line work. His work environment should not have significant changes from day to day. [AR 14]. At step four of the sequential evaluation, the ALJ determined that plaintiff's RFC did not preclude him from performing his past relevant work as a "yard person and as a carpet cleaner." [AR 21]. Alternatively, the ALJ found, at step five of the sequential evaluation, that plaintiff can perform other jobs that exist in significant numbers in the national economy. [See AR 21]. The ALJ concluded that plaintiff was not disabled from December 20, 2003 through the date of his decision.

Statement of Disputed Issues

The disputed issues are whether the ALJ properly considered (1) the state agency physician's findings regarding plaintiff's moderate limitations; (2) the treating clinician's opinions regarding plaintiff's severe dysfunction rating; and (3) the type, dosage, and side effects of plaintiff's prescribed medications; and (4) whether the ALJ posed a complete hypothetical question to the vocational expert. [JS 2-3].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r, Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Social Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Presumption of continuing non-disability As a preliminary matter, the ALJ properly invoked the doctrine of res judicata with respect to the period through December 19, 2003, the date of the prior, final administrative decision denying benefits. [AR 11-12]. See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) (holding that res judicata barred reconsideration of claim for period with respect to which a final determination had already been made); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (noting that the principles of res judicata apply to administrative decisions). A final, binding determination of non-disability also gives rise to a presumption that the claimant continued to be able to work after the date of that determination. See Lester, 81 F.3d at 827; Lyle v. Sec'y of Health & Human Srvs., 700 F.2d 566, 567 (9th Cir. 1983). The presumption of continuing non-disability may be overcome by a showing of "changed circumstances," by new facts establishing a previously unlitigated impairment, or where the claimant's unrepresented status has resulted in an inadequate record. See Lester, 81 F.3d at 827-828; Chavez, 844 F.2d at 693.

State Agency Physician's Findings

Plaintiff contends that the ALJ misstated, and failed properly to consider, a nonexamining state agency physician's findings that plaintiff is moderately limited in certain work-related mental functional abilities. [See JS 3-7].

Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001); Lester, 81 F.3d at 830-831.

A nonexamining physician does not have the opportunity to conduct an independent examination and does not have a treatment relationship with the claimant, and therefore a nonexamining source opinion ordinarily carries less weight than that of an examining or treating physician. Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995)(explaining that more weight is given to the opinions of treating and examining physicians because they have a greater opportunity to know and observe the patient as an individual). Standing alone, the opinion of a nonexamining physician cannot constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Morgan, 169 F.3d at 602; Lester, 81 F.3d at 831-823. When supported by other evidence in the record, however, the opinion of a nonexamining physician may serve as substantial evidence. Andrews, 53 F.3d at 1041; Magallanes v. Bowen, 881 F.2d 747, 752 (9th Cir. 1989).

In a June 15, 2005 mental residual functional capacity assessment, a nonexamining state agency psychiatrist rated plaintiff as "moderately limited" in his ability to understand, remember, and carry out detailed instructions, and interact appropriately with the general public. [AR 251-252]. Plaintiff was "not significantly limited" in the seventeen remaining functional abilities listed on the form. The state agency psychiatrist concluded that plaintiff could sustain simple repetitive tasks and can relate appropriately to superiors and co-workers, but not to the general public. [AR 253].

The ALJ did not err in adopting the conflicting opinion of Dr. Glassmire, a medical expert who testified during the hearing before the ALJ. Because Dr. Glassmire and the state agency physician were both nonexamining sources, the ALJ was entitled resolve the conflict between those conflicting opinions. In making his determination that plaintiff has the RFC to perform such work, the ALJ carefully considered all the evidence, including plaintiff's testimony about his daily activities, the medical expert testimony, medical records from Arrowhead Regional Medical Center and the San Bernardino County Department of Behavioral Health ("County Behavioral Health"), the consultative psychiatric examination by Dr. De Silva, the evaluation by Dr. Khin, examination notes by Ms. Rosales and Ms. Clinch, a questionnaire completed by plaintiff's father, and two state agency reviewing psychiatrists' opinions. [AR 14-20].

Although Dr. Glassmire did not examine plaintiff, his opinion is substantial evidence since it is supported by, and consistent with, other evidence in the record. [AR 14-15, 372-374]. See Morgan, 169 F.3d at 600 ("Opinions of a nonexamining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it."). The ALJ permissibly concluded that Dr. Glassmire's opinion was consistent with the evidence as a whole. For example, the ALJ pointed out that plaintiff had admitted on at least one occasion to exaggerating his symptoms of depression, and that although plaintiff claimed to have "great difficulty" leaving home, he regularly attended appointments, attended community college classes, visited friends, and worked in his father's carpet cleaning business. [AR 17, 19, 235, 317]. Plaintiff testified that had begun a 9-month course to become a massage therapist, which entailed attending classes at United Education Institute five hours per day, four days per week, with a few additional hours per week for homework. Previously, he had attended a community college, taking classes in life drawing and aviation classes for a pilot's license. He also said that he worked for his father in a carpet-cleaning business a dozen or so times a month, earning about $150 in total. [AR 14-15, 359-360, 364-365]. The ALJ also noted that medical records from Arrowhead Regional Medical Center show plaintiff has no severe physical impairments. [AR 15, 288-293]. Finally, the ALJ noted that the state agency physician, who had also reviewed plaintiff's file, initially concluded that plaintiff's condition was not severe and that he had no limitations in activities of daily living and no episodes of decompensation. [AR 19, 212-225]. [AR 14-20].

Since the opinions of the nonexamining physicians conflicted, the ALJ did not err when, after considering the state agency findings, he chose instead to adopt the opinion of Dr. Glassmire.

Social worker's opinion

Plaintiff contends that the ALJ erred in failing to consider a "severe dysfunction rating" by Diane Waters, M.S.W., a County Behavioral Health social worker, as well as her observation that plaintiff complained "that he cannot maintain a job." [JS 7-8].

Evidence from an "acceptable medical source" is required to establish the existence of a "medically determinable impairment," that is, an impairment that can serve as the basis for a finding of severity or disability. See 20 C.F.R. §§404.1513(a), 416.913(a). Unlike a licensed physician or psychologist, a social worker is not an "acceptable medical source" whose findings can establish the existence of a medically determinable impairment. A social worker falls into the category of "other sources." See 20 C.F.R. §§ 404.1513(d), 416.913(d). The ALJ "may also use" information in the record from "other sources" "to show the severity" (but not the existence) of a claimant's medically determinable impairments and how those impairments affect the ability to work 20 C.F.R. §§ 404.1513(d), 416.913(d). The ALJ, however, is not required to give that information the same weight as information from an acceptable medical source. See Gomez v. Chater, 74 F.3d 967, 970-971 (9th Cir.) (explaining that opinions from "other sources" may be given less weight than those from "acceptable medical sources" under the governing regulations), cert. denied, 519 U.S. 881 (1996); see also SSR 06-03p.

Ms. Waters conducted a clinical assessment of plaintiff on December 10, 2001. [AR 193-197]. Plaintiff, aged 30, stated that he lived with his parents and siblings. He said that he was "unable to work." [AR 193]. He complained of a depressed mood, isolation, insomnia, low energy, and feelings of worthlessness and guilt. He reported an incident when he became angry with his family's demands and broke some things in the house, but denied having other similar outbursts. [AR 193].

Ms. Waters noted plaintiff's responses to questions regarding his medical history, his employment history, any cultural or sexual issues of concern, and his mental state. [AR 196]. In assessing plaintiff's mental status, Ms. Waters found that plaintiff was fully oriented and of average intellectual functioning. [AR 196]. Plaintiff's insight was poor; when asked about his biggest difficulty, plaintiff responded, "I don't know." [AR 196]. Plaintiff reported that he was always angry as a child, but said he was not angry at present. He sometimes was nervous. [AR 196]. Ms. Waters found that plaintiff did not have any current health conditions that would place him at special risk, and that he was not a suicide risk. [AR 197]. In explaining why she concluded that plaintiff had a "severe" dysfunction, Ms. Waters wrote, "Client states he has been unable to maintain a job." [AR 197].

Although the ALJ did not identify Ms. Waters by name, he reviewed and summarized in some detail the County Behavioral Health treatment records, including findings similar to those of Ms. Waters made by other County Behavioral Health clinicians. [AR 15-17]. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (stating that "in 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)). Ms. Waters indicated that her finding that plaintiff had a "severe" dysfunction was based primarily, if not solely, on plaintiff's subjective assertion that he was unable to maintain a job. Accordingly, the ALJ was not required to accept Ms. Waters's opinion because she is not an acceptable medical source, and she did not support her conclusion with anything other than plaintiff's subjective self-assessment.

Plaintiff's reliance on Benton ex rel. Benton v. Barnhart, 331 F.3d 1030 (9th Cir. 1996) is misplaced. Plaintiff cites Benton to support the contention that Ms. Waters's evaluation qualified as the opinion of a treating source. [See JS 7]. Benton held that under certain circumstances, a doctor who supervises a treatment team can qualify as a "treating source" even if the supervising doctor saw the claimant only once. Benton, 331 F.3d at 1040-1041. There is no indication that Ms. Waters's December 2001 assessment can be attributed to a supervising physician who qualifies as a treating source, or that her opinion otherwise should be deemed a treating source opinion under Benton. Accordingly, the ALJ did not error in failing specifically to discuss Ms. Waters's assessment in his opinion.

Type, Dosage, and Side Effects of Prescribed Medications

Plaintiff contends that the ALJ did not properly consider treatment reports from Harry Khin, M.D., regarding the type, dosage, and side effects of plaintiff's prescribed medications between May 2005 and January 2006. [JS 10-14].

Dr. Khin was County Behavioral Health psychiatrist who prescribed antidepressant medications for plaintiff in 2005 and 2006. [AR 295-354]. Plaintiff points out that after starting plaintiff on Cymbalta, Wellbutrin, and Lamictal, he increased the dosage of each of those medications. Dr. Khin "increased the prescribed dosage of Cymbalta to 60 [milligrams]" in May 2005. [JS 10]. While that dosage may have been an increase from plaintiff's starting dosage of Cymbalta in February 2005, Dr. Khin's medication log indicates that plaintiff was maintained on the 60 milligram dosage through the last date on the medication log, May 16, 2006. [AR 294-297]. Dr. Khin increased plaintiff's prescribed dosage of Wellbutrin from 100 milligrams in August 2005, when that medication was added, to 300 milligrams in October 2005, and plaintiff then was maintained on the higher dosage. [AR 294-296]. Dr. Khin noted that he gave plaintiff a "starter package" for the drug Lamictal on November 29, 2005, increased the dosage of Lamictal to 100 milligrams on January 24, 2006, and then maintained plaintiff on that dosage. [AR 294-295].

The ALJ must consider all factors that might have a "significant impact on an individual's ability to work," including any side effects from medication. Erickson v. Shalala, 9 F.3d 813, 817-818 (9th Cir. 1993)(quoting Varney v. Sec'y of Health & Human Srvs., 846 F.2d 581, 585 (9th Cir. 1988), relief modified, 859 F.2d 1396 (1988)). Plaintiff, however, has not met his burden to show that the use of medications prevented him from performing his past relevant work. Dr. Khin's notations about plaintiff's medications say nothing about side effects or plaintiff's functional abilities while on prescribed medications. There is no evidence in the record of medication side effects that affected plaintiff's ability to work to a degree greater than reflected in the ALJ's RFC assessment. Dr. Khin's progress notes give no indication of any significant change in plaintiff's level of functioning on the dates his medication dosage was increased. [See AR 269, 273, 327]. Plaintiff fails to provide any evidence to support the inference that his increased medication dosages show that his condition was materially deteriorating or was disabling. When asked by his attorney during the hearing whether his symptoms "have gotten worse over time, better over time, or about the same in the last three years compared to before," plaintiff testified, "I think I've gotten a little bit better." [AR 365].

The ALJ discussed evidence concerning plaintiff's medication usage and pointed to evidence that plaintiff responded well to his prescribed medications, such as indications that his symptoms of depression increased when he was out of medication. [AR 19, 176]. For these reasons, plaintiff's contention that the ALJ erred in evaluating the type, dosage, and side effects of plaintiff's prescription medication lacks merit.

Hypothetical Question

Plaintiff contends that the ALJ posed an incomplete hypothetical question to the vocational expert because it omitted the moderate limitations described by the nonexamining state agency physician. [See JS 14-17].

Hypothetical questions posed to the vocational expert must accurately describe all of the limitations and restrictions of claimant that are supported by the record. Tackett v. Apfel, 180 F.3d 1094, 1101 (9th Cir. 1999); Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If an ALJ's hypothetical question does not reflect all of the claimant's limitations that are supported by the record, the vocational expert's testimony does not constitute substantial evidence supporting a finding that the claimant can perform alternative jobs in the national economy. Matthews, 10 F.3d at 681; Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988).

For the reasons described above, the ALJ did not commit legal error in evaluating the nonexamining state agency physician's findings, the social worker's opinion, or the evidence regarding medication prescribed by Dr. Khin. Therefore, the omission from the ALJ's hypothetical question of the findings and conclusions of those sources was not error.


The Commissioner's decision is supported by substantial evidence and is free of legal error. Accordingly, the Commissioner's decision is affirmed.


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