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Plambeck v. Astrue

August 14, 2009

MARK PLAMBECK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF MARK PLAMBECK

Plaintiff is proceeding in forma pauperis and with counsel with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application of August 11, 2005, for Supplemental Security Income benefits in which he had claimed to have been disabled since January 1, 2004,*fn1 due to anti-social, schizophrenic, paranoid personality; depression; and anxiety. (A.R. 331, 339.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Anthony W. Ishii filed August 27, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Christopher Larsen, dated September 26, 2007 (A.R. 18-24), rendered after a hearing held August 27, 2007, at which Plaintiff appeared and testified with the assistance of counsel (A.R. 18, 524-55). The Appeals Council denied Plaintiff's request for review on April 11, 2008 (A.R. 10-12), and thereafter Plaintiff filed his complaint in this Court on July 25, 2008. Briefing commenced on February 27, 2009, and was completed with the filing of Plaintiff's reply on April 13, 2009. The matter has been submitted without oral argument to the undersigned Magistrate Judge.

I. Standard and Scope of Review

Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."

Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).

In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).

II. Disability

A. Legal Standards

In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities; 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations; 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work; and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy. See 20 C.F.R. § 416.920.

B. Findings

The ALJ found that Plaintiff had severe impairments of depressive disorder, psychotic disorder, not otherwise specified, and an antisocial disorder. (A.R. 20.) However, Plaintiff had no impairment or combination thereof that met or medically equaled a listed impairment, and he had a residual functional capacity (RFC) to perform a full range of work at all exertional levels, and could understand, remember, and carry out simple one-step or two-step job instructions with limited contact with the general public. (A.R. 21.) Although Plaintiff, who was born on August 15, 1957, and was forty-eight years old on the date he applied for benefits, had no past relevant work, the ALJ considered the testimony of a vocational expert (VE) and concluded that in light of Plaintiff's high school education, work experience, residual functional capacity, and ability to communicate in English, Plaintiff could perform jobs that existed in significant numbers in the national economy, including industrial cleaner, with 117,076 unskilled positions in California, and about nine times as many in the United States, including sweeper-cleaner, DOT 389.683-010; laborer, with 55,436 jobs in California and about nine times that many in the United States, including battery stacker, DOT 727.687-030; and hand packer, with 16,073 jobs in California and about nine times as many in the United States, including hand packer, DOT 920.587018. (A.R. 23-24.) Thus, under the framework of Medical-Vocational Guideline 204.00, Plaintiff was not under a disability within the meaning of the Social Security Act (Act) since August 11, 2005, the date he filed his application. (A.R. 18.)

III. Treatment of State Agency Medical Consultant's Opinion

Plaintiff asserts that state agency medical consultant Dr. A. Middleton, Ph.D., was the only doctor who diagnosed Plaintiff with a personality disorder, and that the ALJ adopted that diagnosis; however, the ALJ apparently failed to adopt Dr. Middleton's opinion that Plaintiff had moderate impairments in the ability to interact with the general public or to get along with co-workers, supervisors, or peers without distracting them or exhibiting behavioral extremes, and thus that Plaintiff had to have only limited close contact with co-workers and the public. In stating Plaintiff's RFC, the ALJ limited Plaintiff to limited contact with the general public but did not impose a limit on his contact with co-workers. Plaintiff argues that the ALJ failed to state adequate reasons for discounting the state agency physician's opinion, and specifically the limitation on contact with co-workers, and further that the RFC found by the ALJ lacked the support of substantial evidence because the limitations adopted were imposed by a doctor who did not diagnose a personality disorder.

A. Legal Standards

An ALJ may disregard a treating physician's opinion that is controverted by other opinions only by setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record. Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989). This burden is met by stating a detailed and thorough summary of the facts and conflicting clinical evidence, stating the interpretation of the evidence, and making findings. Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir 1986). However, if the medical opinion of a claimant's treating physician is uncontroverted, then an ALJ must present clear and convincing specific reasons, supported by substantial evidence in the record, for rejecting the uncontroverted medical opinion of a claimant's treating physician. Holohan v. Massanari, 246 F.3d 1195, 1203 (9th Cir. 2001). A failure to set forth a reasoned rationale for disregarding a particular treating physician's findings is legal error. Cotton v. Bowen, 799 F.2d at 1408.

The medical opinion of a nontreating doctor may be relied upon instead of that of a treating physician only if the ALJ provides specific and legitimate reasons supported by substantial evidence in the record. Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) (citing Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995)). The contradictory opinion of a nontreating but examining physician constitutes substantial evidence, and may be relied upon instead of that of a treating physician, where it is based on independent clinical findings that differ from those of the treating physician. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The opinion of a nontreating, nonexamining physician can amount to substantial evidence as long as it is supported ...


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