The opinion of the court was delivered by: Gary S. Austin 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
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 applications of September 24, 2004, and November 4, 2004, made pursuant to Titles II and XVI of the Social Security Act, for Supplemental Security Income (SSI) benefits and Disability Insurance benefits (DIB), in which she alleged that she had been disabled since December 31, 2002, due to bipolar condition and depression; Plaintiff later requested a closed period of disability from December 31, 2002, through September 28, 2005. (A.R. 15, 94-95, 97-98, 326-28.) 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 Lawrence J. O'Neill filed on November 3, 2008, the matter has been assigned to the Magistrate Judge to conduct all further proceedings in this case, including the entry of final judgment.
The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Richard A. Say, dated March 22, 2008 (A.R. 15-27), rendered after a video hearing held on February 22, 2008,*fn1 at which Plaintiff appeared by video and testified with the assistance of an attorney representative. A vocational expert (VE) also testified. (A.R. 15, 348-70.)
The Appeals Council denied Plaintiff's request for review of the ALJ's decision on June 10, 2008 (A.R. 5-7), and thereafter Plaintiff filed the complaint in this Court on August 4, 2008. Briefing commenced on June 12, 2009, and was completed with the filing of Plaintiff's reply brief on September 18, 2009. The matter has been submitted without oral argument to the Magistrate Judge.
This Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 1383(c)(3) and 405(g), which provide that an applicant suffering an adverse final determination of the Commissioner of Social Security with respect to disability or SSI benefits after a hearing may obtain judicial review by initiating a civil action in the district court within sixty days of the mailing of the notice of decision. Plaintiff timely filed her complaint on August 4, 2008, less than sixty days after the mailing of the notice of decision on or about June 10, 2008.
II. 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).
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. §§ 416(i), 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, 20 C.F.R. § 404.1520;*fn2 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, 20 C.F.R. § 404.1520(c); 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, 20 C.F.R. § 404.1520(d); 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, 20 C.F.R. §§ 404.1520(e), 404.1545(a); 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, 20 C.F.R. § 404.1520(f).
With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.
The ALJ found that Plaintiff last met the insured status requirements of the Social Security Act on December 31, 2007. (A.R. 17.)
The ALJ found that Plaintiff had the severe impairment of depression, but Plaintiff's alleged personality disorder, post-traumatic stress disorder (PTSD), bipolar disorder, and amphetamine-induced psychotic disorder were not severe medically determinable impairments because they did not endure for the required continuous, twelve-month period. (A.R. 19-20.) Plaintiff had no impairment or combination thereof that met or medically equaled a listed impairment. (A.R. 20.) Plaintiff had no exertional limitations and could perform at least a full range of medium exertion level activities with non-exertional limitations of understanding, remembering, and carrying out only simple, routine tasks; having only superficial contact with the public and with only a few co-workers; and working with, independently of, but not in direct cooperation with, her co-workers. (A.R. 20-25.) Plaintiff could not perform her past relevant work as an administrative assistant or clerk, but because she was a younger individual with a high school education and ability to communicate in English, and considering her residual functional capacity (RFC) and work experience, there were jobs that existed in significant numbers in the national economy, including assembly worker, production inspector, and checker. (A.R. 25-26.) Accordingly, Plaintiff was not disabled at any time from the alleged date of onset of December 31, 2002, through March 22, 2008, the date of decision. (A.R. 27.)
C. Plaintiff's Contentions
Plaintiff argues that at step two, the ALJ failed to apply legally correct standards and engaged in improper analysis of the severity of Plaintiff's PTSD and bipolar disorder by finding that they had not been shown to have existed for the requisite duration. Plaintiff argues that because the ALJ considered those conditions to have been the product of drug use, the ALJ's analysis ran afoul of the holding in Bustamante v. Massanari, 262
F.3d 949, 954-55 (9th Cir. 2001), which precludes application at step two of 20 C.F.R. §§ 404.1535(a), 416.935(a), relating to whether or not drug addiction or alcoholism contributed to a disability.
With respect to step four of the sequential analysis and the formulation of Plaintiff's RFC, Plaintiff argues 1) the ALJ failed to state clear and convincing reasons for rejecting Plaintiff's testimony concerning her subjective complaints; 2) the ALJ failed to state specific, germane reasons for rejecting the testimony of Plaintiff's mother and stepfather concerning Plaintiff's limited attention and concentration; and 3) the ALJ failed adequately to explain the weight he gave to the opinion of state agency psychiatrist Gene Kester, M.D., and for rejecting Dr. Kester's limitations, which Plaintiff argues would preclude employment as demonstrated by the vocational expert's testimony.
Plaintiff contends that at step five of the sequential analysis, the Commissioner's conclusion that jobs were available was not supported by substantial evidence because the hypothetical question propounded to the VE was incomplete due to its omission of an adequate reference to Plaintiff's deficits in attention and concentration.
From December 2, 2003, through December 5, 2003, Plaintiff was hospitalized at the Stanislaus Behavioral Health Center (SBHC) of the Stanislaus County Department of Mental Health, where Plaintiff was transferred after police had taken her to a hospital for exhibiting psychotic symptoms, including making a 911 call because she believed she was being pursued by people who had attached a bomb to her car. (A.R. 159-90, 159, 187.) Plaintiff reported that for two months she had not taken the medications she took for her mental illness; she then denied being mentally ill or having been medicated, which her ex-husband confirmed, but she reported that she had used amphetamine that previous night. (A.R. 159, 187.) Her blood tested positive for amphetamine (A.R. 189), but she "was unable" to provide information regarding the frequency and extent of her drug use (A.R. 188). Upon admission, the diagnosis was psychotic disorder, not otherwise specified, amphetamine abuse, with diagnosis on Axis II deferred, and a global assessment of functioning (GAF) of 30. (A.R. 187.) Plaintiff believed that neighbors had stolen significant sums from her, but there were no hallucinations; memory and concentration were intact, intellect was average, and insight and judgment were poor. (A.R. 188.) Upon discharge, she was alert, oriented, talkative, very cooperative, and exhibited no confusion, disorientation, psychosis, depression, or suicidal, homicidal, or violent behavior; she did not need any more evaluation of medication. (A.R. 190.) The diagnosis at discharge was substance-induced mood disorder, poly-substance dependence; personality disorder, not otherwise specified; with a GAF of 65. (Id.) Medications for various infections were prescribed. (A.R. 189.)
Plaintiff was hospitalized as a result of bronchitis and an allergic reaction to medication in the middle of December 2003. (A.R. 191-231, 197, 202, 216, 219.)
On July 11, 2004, Plaintiff visited the emergency room of Doctors Medical Center for family stress, crying, and multiple somatic complaints. (A.R. 232-47.) The impression was acute and chronic depression. (A.R. 234.) Plaintiff drove herself to the SBHC, where Plaintiff was admitted and then discharged on July 13, 2004. Plaintiff was confused, poorly groomed, and disorganized, and she asserted that her twelve-year-old son had been stolen. She was described as highly driven, grandiose, psychotic, labile, and pressured, as well as delusional about having been harassed. (Id., 239, 244-45.) It was stated that her urine drug screen was negative (A. R. 244), but it was also noted that she refused urine for urine toxicology and urinalysis tests (A.R. 246). Plaintiff related a history of cocaine abuse without use in sixteen years, and a history of alcohol dependence and a DUI, but she said she last drank in April 2004. (A.R. 245.) It was noted on discharge that her behavior was highly driven and very impulsive with very broad gesturing and constant fidgeting; her manner was cooperative, but she refused medication; her insight and judgment were grossly impaired. Her mood was irritable and dysphoric with a labile affect; her thought process was tangential at best, with content centered about her delusions and often loose with pressured speech that was overly loud and emphatic. (A.R. 245-46.) However, it was also noted that by the date of discharge, Plaintiff's mood and affect improved, her thought processes were more organized, her mood stable and less anxious, no agitation or distressed behaviors were observed, and insight and judgment as well as coping skills for stressors were better. Her condition was stable to be discharged from the inpatient unit. No medications were prescribed, but Plaintiff was to follow up with services. (A.R. 246.)
In the discharge summary, Tomonori Fukui, M.D., stated that the diagnosis upon admission was bipolar I disorder, most recent episode mixed, severe, with psychotic features, and history of poly-substance dependence; diagnosis on Axis II was deferred; and the GAF was 30. (A.R. 244, 247.) The diagnosis on discharge was adjustment disorder, not otherwise specified, possible brief psychotic disorder, and past history of poly-substance dependence, with diagnosis on Axis II deferred, and a GAF of 56. (Id. at 244.)
On September 23, 2004, Sandy Birdlebough, Ph.D., A.R.N.P., evaluated Plaintiff on a "crisis psych eval slot" after Plaintiff had contact with Acute Care. (A.R. 249-52, 274.) Plaintiff reported three prior admissions to SBHC for evaluation and some outpatient counseling for depression, but she had never been on any medications. She cared for her five-year-old daughter, who had undergone five open-heart surgeries. Plaintiff's speech was rapid, her ideation was somewhat paranoid and grandiose, and her thoughts were scattered and yet logical. Plaintiff reported poor sleep and appetite. She exhibited intact long-term and short-term memory (although scattered thoughts made it difficult to tell at times), above-average intellect, and poor judgment; she could do simple calculations but had some difficulty concentrating. (A.R. 250-51.) Dr. Birdlebough's impression was that Plaintiff had been fairly high functioning up until losing her job in December 2003 and losing her son. She appeared to be quite manic and probably had been "prodromally manic" for the last several years, channeling all her energy into caring for a child born with cardiac anomalies. (A.R. 251.) The diagnosis was bipolar disorder, not otherwise specified---provisional diagnosis; diagnosis deferred on Axis II; and the GAF was 42. Plaintiff agreed to take medication and was given Abilify, with instructions to return in one week for follow-up. (A.R. 251.)
On September 29, 2004, Dr. Birdlebough noted some lessening of symptoms with less grandiosity and pressured speech; Abilify was continued, and Lamictal was started. (A.R. 275.) Zoloft was the subject of a consent form for depression medication in late October 2004. (A.R. 278.)
In November 2004, Plaintiff reported to Yvana Iovino, M.D., and Nicolae Oprescu, M.D., at the Yakima Valley Farmworkers Clinic, that she was doing well, felt better after having started treatment, had no significant complaints, and would like to go back to school to go into nursing. Her medications included Zoloft, Lamictal, and Abilify; Dr. Oprescu noted that her bipolar disorder was apparently under control on multiple medicines. (A.R. 254-56.)
In December 2004, Plaintiff attended group therapy twice. (A.R. 281-82.) Dr. Birdlebough's progress note for December 29, 2004, stated that Plaintiff was doing well on current medications with the only side-effect being some daytime drowsiness; moods were stable; and she slept well, had no thoughts of self-harm, and had no abnormal movements or complaints of stiffness. She was "stable on current meds with good mood and sleep." (A.R. 283.)
On January 5, 2005, Dr. Birdlebough reported that Plaintiff had shown marked improvement in all areas, including affect, concentration, memory, and overall functioning, since beginning medication. She had also gained insight into the importance of being on medication; she was sharing childcare and household duties with her mother. The prognosis was good as long as Plaintiff continued her medication and counseling. (A.R. 252.)
On January 5, 2005, state agency consultant Gene Kester, M.D., completed a mental functional capacity assessment covering July 2004 to the date of reporting, as well as a psychiatric review technique. (A.R. 305-307, 308-21.) In the technique, Dr. Kester concluded that an RFC assessment was necessary with respect to Plaintiff's affective disorder, specifically, bipolar I disorder. (A.R. 308, 311.) In part III of the technique, entitled "RATING OF FUNCTIONAL LIMITATIONS," and with respect to the "B" criteria, Dr. Kester assessed mild restriction of activities of daily living, and moderate difficulties in maintaining social functioning and maintaining concentration, persistence, or pace. (A.R. 318.) Dr. Kester concluded that Plaintiff was moderately limited in the ability to carry out detailed instructions, maintain attention and concentration for extended periods, work in coordination with or proximity to others without being distracted by them, and interact appropriately with the general public. (A.R. 305-07.) With respect to understanding and memory, Plaintiff exhibited no significant impairment of memory even when in a hypomanic state. With respect to sustained concentration and persistence, she had somewhat limited concentration but could carry out routine tasks on a routine, daily basis. She might be distracted by excess stimulation until further stabilized on medications, and she would work best with a limited number of co-workers, performing relatively independent tasks; however, she could persist throughout a daily/weekly schedule. With respect to social interaction, she might have superficial contact with the public. As to adaptation, she could travel, plan, avoid hazards, and adapt to routine changes; she was intelligent and had a good work history before her illness. (A.R. 307.)
Plaintiff experienced symptoms of near-syncope in January 2005 that were treated with Propranolol. (A.R. 258.) Plaintiff attended another group therapy session and completed her ...