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Franklin v. Astrue

January 21, 2010


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 mental residual functioning capacity completed by the treating psychiatrist;

2. Whether the ALJ properly considered the lay witness' statements; and 3. Whether the ALJ posed a complete hypothetical question to the vocational expert. (JS at 2.)

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.


In her first issue, Plaintiff asserts that Syan Kunam, M.D. completed a Work Capacity Evaluation (Mental) form on December 6, 2008 (AR 338-339);*fn1 however, this evaluation was not mentioned by the ALJ in his decision. (JS at 3, et seq.)

The check-off form identifies moderate limitations in three areas of mental functioning; marked limitations in nine areas; and extreme limitations in five areas. There is no indication of any foundational clinical or objective testing, or any other basis for the opinion. Nevertheless, it was relevant evidence, and the issue for the Court is whether or not it is subject to harmless error analysis pursuant to Stout v. Commissioner, 454 F.3d 1050 (9th Cir. 2006)("... a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination." (454 F.3d at 1056).)

The ALJ determined that Plaintiff has severe impairments of major depressive disorder, anxiety disorder, and a history of methamphetamine abuse in remission. (AR 55.) In making his determination, the ALJ relied upon the assessment of the medical examiner ("ME"), Dr. Glassmire, who testified telephonically at the hearing. (AR 13-19.) Dr. Glassmire indicated that he based his assessment upon review of various psychiatric treatment records. Thus, he reviewed the records from Dr. Wells of Inland Psychiatric Treatment Center (see AR 17, 245-256); Gary Bell, a marriage and family therapist (AR 17, 270-274); and, finally, treatment records from Inland Psychiatric Group, Plaintiff's current treatment facility (AR 18, 275-278). Significantly, as the ALJ extensively discussed in his decision, these records support Dr. Glassmire's opinion. The ALJ assessed that Plaintiff's non-exertional limitations restrict her to simple, repetitive tasks; a preclusion from working with the public; occasional, non-intense contact with co-workers and supervisors; a preclusion from tasks that require hyper-vigilance or fast-paced work. (AR 56.)

Significantly, none of the psychiatric assessments of the Plaintiff, including those of Dr. Wells, her treating psychiatrist at Inland Psychiatric Group after Dr. Kunaman, made assessments of Plaintiff's functional mental restrictions which were anywhere near as severe as those of Dr. Kunaman. None of the psychiatric assessments except that of Dr. Kunaman reflect marked or extreme limitations in any areas. Indeed, Dr. Kunaman's evaluation is nothing more than a "check-the-box" form, without any indication of an objective or clinical basis, something which is highly disfavored in Social Security litigation. See Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004). Further, since it is contradicted by all of the other evidence of treating psychiatrists,*fn2 it is more than apparent that the ALJ's omission of any discussion of Dr. Kunaman's form was harmless error, since it clearly is inconsistent in the extreme with the other psychiatric opinions, and therefore, would likely have had no effect on the ALJ's determination. The ALJ was entitled to rely upon the opinion of Dr. Glassmire, who had considered all of the relevant psychiatric records. Dr. Glassmire's opinion was consistent with the weight of the objective evidence. Dr. Kunaman's was not.

For the foregoing reasons, the Court finds no error in the ALJ's failure to discuss Dr. ...

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