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Adams v. Astrue

March 1, 2010


The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge



Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her applications for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred in failing to: 1) properly consider the state agency psychiatrist's opinion; 2) pose a complete hypothetical question to the vocational expert; 3) properly consider lay witness testimony; and 4) develop the record. (Joint Stip. at 3-5, 7-9, 10-13, 15-19.) Because the Agency's decision that Plaintiff was not disabled within the meaning of the Social Security Act is supported by substantial evidence, it is affirmed.


Plaintiff applied for DIB and SSI on November 2, 2006, alleging that she had been unable to work since July 1, 2006, because of Asperger's Syndrome and agoraphobia. (Administrative Record ("AR") 118, 137, 169.) The Agency denied the application initially and on reconsideration. (AR 54-58, 62-66.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 68, 108-115.) Plaintiff appeared with counsel and testified at a hearing on June 6, 2008. (AR 20-49.) On August 7, 2008, the ALJ issued a decision denying benefits. (AR 5-15.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) Plaintiff then commenced the instant action.


1. The State Agency Reviewing Psychiatrist's Opinion

In her first claim of error, Plaintiff contends that the ALJ erred in failing to properly consider an opinion of Dr. H.C. Amado, a state agency reviewing physician. (Joint Stip. at 3-5.) Plaintiff argues that the ALJ was required to consider Dr. Amado's findings and to give those findings some weight, unless the ALJ specifically chose to reject them. (Joint Stip. at 3, 5.) For the following reasons, this claim is rejected.

ALJ's are required to consider the opinions of non-examining, consulting doctors. 20 C.F.R. §§ 404.1527(f)(1), (2); 416.927(f)(1), (2); Social Security Ruling 96-6p; see also Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (suggesting that a non-examining doctor's opinion is entitled to at least some weight). Dr Amado was a consulting doctor. He never examined or treated Plaintiff. Instead, he reviewed the records of the doctors who had examined or treated Plaintiff and offered his opinion based on those reports.

Dr. Amado's opinion was contained in two check-the-box forms. The first was a Psychiatric Review Technique form in which he opined that Plaintiff had a medically-determinable anxiety disorder, not otherwise specified, and Asperger Syndrome. (AR 241-53.) He rated Plaintiff's degree of limitation as "moderate" for social functioning, concentration, persistence, and pace, and "mild" for activities of daily living. (AR 249.) He found that there was no evidence of repeated episodes of decompensation. (AR 249.)

In the "Consultant's Notes" section of the form, Dr. Amado reported that Plaintiff had been previously diagnosed with "developmental autism variant as well as agoraphobia," but had never received treatment. (AR 251.) He noted that the consultative psychiatric examiner had made "fairly benign" findings, including a Global Assessment Functioning ("GAF") score of 70, and concluded:

It appears overall that available [evidence of record] supports the presence of a psych[iatric medically determinable impairment] which would not preclude the ability to sustain at least unskilled work activity, in a low-stress environment away from the general public. A less restricted determination could result if claimant were to avail herself of psychotherapy and/or medications for depression/anxiety, which could likely improve her quality of life. Mental allegations are seen to be partially supported within the available [medical evidence of record] at this time. (AR 251.)

The second from he completed was a Mental Residual Functional Capacity Assessment form. (AR 238-40.) In the "Summary Conclusions" portion of that form, Dr. Amado opined that Plaintiff would be "moderately" limited in her ability to carry out detailed instructions, maintain attention and concentration for extended periods, interact appropriately with the general public, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers and peers, respond appropriately to changes in the work setting, travel to unfamiliar places or use public transportation, set realistic goals, and make plans independently of others. (AR 238-39.) In the "Functional Capacity Assessment" portion of the form, Dr. Amado explained the bases for these opinions, directing the reader to "Please see CNN and 2506 IV." (AR 240.) "CNN" apparently refers to the "Case Analysis" prepared by the state agency, which concluded that Plaintiff would be restricted to simple, repetitive, non-public work. (AR 253.) The term "2506 IV" appears to refer to the Psychiatric Review Technique form, designated form 2506, discussed above. (AR 241-52.)

In his decision, the ALJ found at step two that Plaintiff's mental impairment resulted in mild restrictions in activities of daily living and moderate difficulties in social functioning, concentration, persistence, and pace. (AR 11.) Clearly, these findings were taken from Dr. Amado. (AR 249.) The ALJ then found that Plaintiff's residual functional capacity would restrict her ...

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