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Gregory v. Astrue

March 19, 2010

TRACY GREGORY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Andrew J. Wistrich United States Magistrate Judge

MEMORANDUM OF DECISION

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the "Commissioner"), denying plaintiff's application for disability insurance benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [See JS 2]. Plaintiff alleges that she became disabled on March 23, 2004 due to asthma and breathing problems, depression, and anxiety. [JS 3; Administrative Record ("AR") 46-47]. In a written hearing decision that constitutes the Commissioner's final decision in this case, an Administrative Law Judge ("ALJ") concluded that plaintiff was not disabled because she retained the residual functional capacity ("RFC") to perform her skilled, light past relevant work as a medical assistant. [JS 2; AR 32-35]. In the alternative, based on the testimony of a vocational expert and Rules 202.21 and 201.28 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 (the "grids"), the ALJ found that plaintiff's RFC did not preclude her from performing unskilled sedentary or light jobs that exist in significant numbers in the national economy. [AR 35].

Standard of Review

The Commissioner's denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm'r Social Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). "Substantial evidence" means "more than a mere scintilla, but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas, 278 F.3d at 954 (citing Morgan v. Comm'r of Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).

Discussion

Medical Opinion Evidence

Plaintiff contends that the ALJ erred in finding that plaintiff had no more than mild mental functional limitations that did not constitute a severe mental impairment. Specifically, plaintiff argues that the ALJ improperly rejected the opinions of a workers' compensation treating psychiatrist, Dr. Friedman, and two examining physicians, Dr. Brawer and Dr. Zodkevitch, in favor of the conflicting opinion of another examining psychiatrist, Dr. Greils. [See JS 8-31].

In her statements to doctors and testimony, plaintiff alleged that she stopped working as a medical assistant in a Kaiser Permanente sigmoidoscopy clinic due to respiratory problems, and that she was diagnosed with "asthma, probably exacerbated by exposure to Cidex" (glutaraldehyde), a chemical solvent used in a machine for sterilizing medical equipment that plaintiff routinely used and maintained as part of her job duties. She alleged that she developed anxiety and depression due to her concerns about her past exposure to Cidex and phobias about possible present or future exposure to other chemical irritants. [See AR 18-22, 46-47, 370, 405-408, 462-464, 501, 564-565].

At step two of the sequential evaluation procedure, the ALJ found that plaintiff had no severe mental impairment. [AR 14]. Although a finding of no severe mental impairment ordinarily disposes of the issue of any mental functional limitations, the ALJ returned to the question of the existence and severity of a mental impairment when she assessed plaintiff's RFC at step four. The ALJ analyzed the evidence of record in detail and ultimately found that plaintiff had only mild mental functional limitations that no more than minimally affected her ability to perform basic work activities. [AR 22-30]. Accordingly, any error in the ALJ's severity finding at step two was harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007)(holding that where the ALJ failed to consider the claimant's bursitis at step two, any error was harmless because he extensively considered that impairment at step four)(citing Stout, 454 F.3d at 1054)(recognizing that harmless error applies in the social security context)).

Dr. Friedman

David L. Friedman, M.D., evaluated plaintiff in connection with her workers' compensation examination case in June 2004 and July 2005. Plaintiff was seen by other providers in his office for medication management and group therapy from July 2005 through November 2005. [AR 249-268, 271-274, 276-292]. During his initial evaluation in June 2004, Dr. Friedman elicited a history, reviewed available medical records, administered psychological testing, and conducted a mental status examination. [AR 276-294]. Dr. Friedman diagnosed plaintiff with anxiety disorder, not otherwise specified ("NOS"). He explained that plaintiff had developed "a mixed picture of anxiety and depression, best characterized as Anxiety Disorder NOS", as an "emotional response to concerns over the extent and impact of pulmonary problems created by" plaintiff's vocational exposure to Cidex. [AR 277, 290]. Dr. Friedman concluded that plaintiff had been temporarily disabled since March 23, 2004, when she stopped working due to pulmonary problems, and that her temporary total disability would last three to six months, or until her physical condition stabilized. [AR 290-291]. He recommended cognitive behavioral therapy and medication. [AR 291]. Plaintiff was prescribed Prozac and responded "as expected." [AR 275].

Dr. Friedman issued a supplemental report in November 2004 stating that plaintiff remained psychiatrically temporarily totally disabled and "will remain so ...


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