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Mastro v. Astrue

June 29, 2009

RHONDA MASTRO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION

I. PROCEEDINGS

This matter is before the Court for review of the Decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. § 400 et seq. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. 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 plaintiff and the defendant have filed their pleadings, the defendant has filed the certified transcript of record, and the parties have filed a Joint Stipulation. After reviewing the matter, the Court concludes that the Decision of the Commissioner should be reversed and remanded.

II. BACKGROUND

On May 26, 2006, plaintiff Rhonda Mastro filed an application for SSI, alleging disability beginning August 4, 1984, due to attention deficit hyperactivity disorder, bipolar disorder, heart murmur, and asthma. (AR 10, 76-78). Plaintiff's application was denied initially on October 17, 2006, and again denied upon reconsideration on April 6, 2007. (AR 56-68). Thereafter, on May 17, 2007, plaintiff filed a timely written request for hearing to review the denial of her application for SSI, and was afforded a hearing before an Administrative Law Judge ("ALJ") on May 8, 2008. The ALJ issued an unfavorable Decision on June 26, 2008 (AR 8-17). The ALJ found that plaintiff has not been under a disability within the meaning of the Social Security Act. The ALJ also found that plaintiff's multiple limitations did not preclude her from performing light work as defined in 20 C.F.R. 416.967(b), except that plaintiff is limited to routine, repetitive, entry level work and working with things rather than people.

On July 16, 2008, plaintiff filed a Request for Review of the Hearing Decision. The Appeals Council denied review of the decision on July 24, 2008 (AR 1-3). This action followed.

Plaintiff makes six challenges to the ALJ's determination. Plaintiff alleges that the ALJ erred by failing: (1) to properly consider the State Agency physician Dr. K. D. Gregg's findings regarding plaintiff's multiple limitations; (2) to properly consider the consultative examining physician's opinion regarding plaintiff's moderate limitations; (3) to properly consider the consultative examining physician's opinion regarding plaintiff's mental impairments and GAF score of 45; (4) to properly consider the lay witness testimony of plaintiff's mother, Jo Mastro; (5) to pose a complete hypothetical question to the vocational expert; (6) to properly consider the type, dosage, and side effects of plaintiff's prescribed medications. Each of plaintiff's contentions will be addressed in turn.

III. DISCUSSION

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence must be more than a mere scintilla, but not necessarily a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). This Court cannot disturb the Commissioner's findings if those finding are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

A person is "disabled" for the purpose of receiving benefits if the person is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The plaintiff has the burden of establishing a prima facie case of disability. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992) (citing Galant v. Heckler, 753 F.2d 1452).

The Commissioner has established a five-step sequential evaluation for determining whether a person is disabled. First, it is determined whether the person is engaged in "substantial gainful activity." If so, disability benefits are denied. Second, if the person is not so engaged, it is determined whether the person has a medically severe impairment or combination of impairments. If the person does not have a severe impairment, it is determined whether the impairment meets or equals one of a number of "listed impairments." If the impairments meet or equal a "listed impairment," the person is conclusively presumed to be disabled. Fourth, if the impairment does not meet or equal the "listed impairments," it is determined whether the impairment prevents the person from performing past relevant work. If the person can perform past relevant work, benefits are denied. Fifth, if the person cannot perform past relevant work, the burden shifts to the Commissioner to show that the person is able to perform other kinds of work. 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).

ISSUE NO. 1: The ALJ properly considered the State Agency physician Dr. K. D. Gregg's findings regarding plaintiff's multiple limitations.

Plaintiff contends that the ALJ ignored without explanation State Agency physician, Dr. K. D. Gregg's findings on plaintiff's Mental Residual Functional Capacity ("MRFC"). Plaintiff argues that the ALJ rejected those findings without providing legally sufficient reasons. The ALJ stated the medical consultant for the State Agency, Dr. Gregg, asserted that plaintiff "is able to understand, remember and carry out simple tasks; she can maintain adequate persistence and pace over the course of an 8 hour day/ 40 hour week; she can avoid normal hazards in the workplace. She can interact appropriately with supervisors and co-workers. She should avoid work with the public." (AR 15, 189). Plaintiff further contends Dr. Gregg, in his MRFC assessment, reported that plaintiff has multiple moderate limitations in her ability to understand and remember detailed instructions. However, plaintiff does not recognize that Dr. Gregg also reported plaintiff is not significantly limited in her ability to remember locations and work-like procedures and to understand and remember very short and simple instructions. Furthermore, plaintiff argues Dr. Gregg reported plaintiff is moderately limited in her ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances, sustain an ordinary routine without special supervision, and interact appropriately with the general public. (AR 187-88). Plaintiff fails to mention that Dr. Gregg also found plaintiff to be not significantly limited in her ability to carry out very short and simple instructions, to make simple work-related decisions, to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. Dr. Gregg also reported that plaintiff is not significantly limited in her ability to ask simple questions, to maintain socially appropriate behavior, and to be aware of normal hazards and to take appropriate precautions. See id.

In response, defendant argues that the ALJ did credit Dr. Gregg's findings of mild restriction because the ALJ adopted Dr. Gregg's determination that plaintiff had mild difficulties with daily activities and moderate difficulties with social functioning and concentration, persistence, and pace with no repeated episodes of decompensation (AR 10, 15, 184). Defendant further contends that this determination fully ...


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