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Jackson v. Astrue

April 28, 2010

KIMBERLY R. JACKSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he failed to: 1) consider a treating psychiatrist's diagnosis of bipolar disorder; 2) discuss a medication progress note reporting that Plaintiff was "suicidal" and had auditory hallucinations; 3) find that Plaintiff's mental impairment was severe; and 4) properly consider lay witness testimony. (Joint Stip. at 3-4, 7-8, 9-10, 11-13.) Because the Agency's decision that Plaintiff was not disabled is supported by substantial evidence, it is affirmed.

II. SUMMARY OF PROCEEDINGS

Plaintiff applied for SSI on October 23, 2006, alleging that she had been unable to work since August 15, 2006 because of asthma, a birth defect in her left arm, hepatitis C, high blood pressure, and back pain. (Administrative Record ("AR") 53, 134.) The Agency denied the application initially and on reconsideration. (AR 41, 42, 53-63.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 64-66.) Plaintiff appeared with counsel and testified at the hearing on September 19, 2008. (AR 5-40.) On November 24, 2008, the ALJ issued a decision denying benefits. (AR 43-52.) Plaintiff appealed to the Appeals Council, which denied review. (AR 1-4.) Plaintiff then commenced the instant action.

III. DISCUSSION

1. The ALJ Properly Accounted For Dr. Adeyamo's December 22, 2005 Progress Note

In her first claim of error, Plaintiff contends that the ALJ erred by failing to consider her treating psychiatrist's December 22, 2005 "opinion," set forth in a progress note. (Joint Stip. at 3-4.) In that note, Dr. Oluwafemi Adeyamo diagnosed Plaintiff with "(1) methamphetamine dependence in early full remission; (2) major depressive [disorder] recurrent, moderate severity (by history) with psychotic features; and (3) [rule out] bipolar disorder with psychotic features." (AR 207.) Dr. Adeyamo also noted "Cluster B traits (antisocial personality & borderline personality traits)." (AR 207.)

Dr. Adeyamo rated Plaintiff's Global Assessment of Functioning ("GAF") at 60.*fn1 (AR 207.)

Plaintiff argues that the ALJ failed to mention this opinion in his decision and contends that this means that the ALJ must have rejected it, without providing legally sufficient reasons for doing so. (Joint Stip. at 3-4.) For the following reasons, the Court disagrees.

In his decision, the ALJ found that Plaintiff's mental impairment did not meet or equal Listings 12.04 or 12.09. (AR 48.) He referenced Dr. Adeyamo's December 22, 2005 note, pointing out that Plaintiff had been receiving psychiatric treatment for depression since 2005 and had a history of polysubstance abuse in long-term, sustained remission. Indeed, the ALJ specifically noted that the GAF score of 60 assessed by Dr. Adeyamo indicated a "marginally moderate degree of limitation." (AR 48.)

Nevertheless, the ALJ found that Plaintiff's psychiatric treatment had been "routine with no indication of any significant changes." (AR 48.) Additionally, he noted Plaintiff's testimony that her medication helped with auditory hallucinations and that she did not think her mental impairment kept her from working. (AR 49-50.) The ALJ agreed with the state agency reviewing psychiatrists, who opined that Plaintiff had a mild to moderate depressive disorder that would moderately limit her ability to carry out detailed instructions and to maintain attention and concentration for extended periods. (AR 48, 228, 230, 233.) Consequently, the ALJ found that Plaintiff's mental impairment would limit her to simple, repetitive tasks, but that it would not prevent her from working. (AR 49, 51.)

The Court rejects Plaintiff's argument that the ALJ's failure to expressly discuss Dr. Adeyamo's diagnosis of "bipolar disorder with psychotic features; cluster B traits (Antisocial Personality) and Borderline Personality Traits" was reversible error. (Joint Stip. at 6-7.) Though, in general, the opinion of a treating doctor is entitled to deference over the opinions of non-treating doctors, Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007), the ALJ was not required to expressly accept or reject Dr. Adeyamo's notation "rule out bipolar disorder" because that notation, by itself, was not a finding that she suffered from bipolar disorder. Instead, it was a plan to explore the possibility of whether she did. See, e.g., Simpson v. Comm'r, Soc. Sec. Admin., 2001 WL 213762, at *7-8 (D. Or. Feb. 8, 2001) (rejecting argument that "rule-out" diagnosis is equivalent to provisional or presumptive diagnosis, and holding that there was "no error in failing to find a severe impairment on the basis of" such rule-out diagnoses); see also Langford v. Astrue, 2008 WL 2073951, at *3 n.5 (E.D. Cal. May 14, 2008) ("Rule-out diagnoses merely indicate that additional testing or observation are required in order to establish the true diagnosis."). Thus, because neither Dr. Adeyamo or any other doctor diagnosed Plaintiff with bipolar disorder, the ALJ was not required to explain why he was not deferring to Dr. Adeyamo or why he was not finding that Plaintiff had bipolar disorder. See Meanel v. Apfel, 172 F.3d 1111, 1113-14 (9th Cir. 1999) (holding that ALJ need not provide "clear and convincing reasons" where no conflict exists between treating doctor's opinion and ALJ's decision).

Nor was the ALJ obligated to address every line of Dr. Adeyamo's progress notes. The record establishes that the ALJ considered all of the evidence in this case, the evidence that supported his decision and the evidence that did not support his decision, and, therefore, any failure by the ALJ to address the December 2005 note in more detail does not require remand or reversal. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (holding that ALJ's failure to ...


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