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Barrera v. Astrue

June 22, 2010

JOSE BARRERA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMM. SOCIAL SECURITY ADMINISTRATION, DEFENDANT,



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff's application for Supplemental Security Income under Title XVI of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. 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. Plaintiff and defendant have filed their pleadings (Plaintiff's Brief with Points and Authorities in Support of Remand or Reversal; Defendant's Brief with Points and Authorities), and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.

BACKGROUND

On February 22, 2002, plaintiff filed a prior application for Supplemental Security Income. (AR 10). On February 14, 2005, that application was denied by an ALJ. Id. In that decision, the plaintiff was found to have a severe mental impairment consisting of a history of drug and alcohol abuse. Id. Also, plaintiff was found to have no physical impairment, he could perform work at any exertional level, and that he could perform work involving simple, routine, repetitive, and nonpublic tasks. Id.

On May 9, 2007, plaintiff Jose Barrera filed a second application for Supplemental Security Income, alleging an inability to work since February 1, 2002 due to schizophrenia. (Administrative Record ["AR"] 118-29). On May 28, 2009, an Administrative Law Judge ("ALJ") determined that plaintiff was not disabled within the meaning of the Social Security Act. (AR 5-15). Following the Appeals Council's denial of plaintiff's request for a review of the hearing decision (AR 1-3), plaintiff filed an action in this Court.

Plaintiff makes three challenges to the ALJ's Decision denying benefits. Plaintiff alleges that the ALJ erred in (1) rejecting a treating psychiatrist's opinion; (2) misinterpreting a Global Assessment of Functioning ("GAF") rating; and (3) failing to develop the record by not asking whether the plaintiff received Notice and if so, his reasons for not attending the psychiatric consultative evaluation appointments.

For the reasons discussed below, the Court concludes that the decision of the Commissioner should be affirmed.

DISCUSSION

I. THE ALJ DID NOT ERR IN NOT ADOPTING TO DR. CHATSUTHIPHAN'S OCTOBER 2006 EVALUATION

On February 22, 2002, plaintiff filed a previous application for Supplemental Security Income disability benefits. (AR 10). Plaintiff's application was initially denied, and on reconsideration was denied by an ALJ on February 14, 2005. Id.

Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for disregarding a treating psychiatrist's 2006 opinion (Dr. Chatsuthiphan) regarding the diagnoses and the seriousness of plaintiff's symptoms and mental impairment on a certain date, October 11, 2006. (AR 174-5)

On June 14, 2007, plaintiff received routine outpatient treatment for a schizoaffective disorder, bipolar type by a treating psychiatrist*fn1 at the San Bernardino County Department of Behavioral Health. (AR 13, 168). On September 8, 2008, plaintiff was diagnosed with a psychotic disorder and received treatment at Phoenix Community Counseling by Dr. Imelda Alfonso. (AR 13, 216-24).

"The [plaintiff], in order to overcome the presumption of continuing non-disability arising from the first administrative law judge's findings of non-disability, must prove 'changed circumstances' indicating a greater disability." Chavez v. Brown, 844 F.2d 691, 693 (9th Cir. 1988). Also, the opinions of treating psychiatrists are entitled to special weight because the treating psychiatrists are hired to cure and have a better opportunity to know and observe plaintiff as an individual. See Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). "To reject the uncontroverted opinion of.plaintiff's [psychiatrists], the [ALJ] must present clear and convincing reasons for doing so." Id.; Montijo v. Sec'y of Health & Human Servs., 729 F.2d 599, 601 (9th Cir. 1984). The weight given to a treating psychiatrist's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. 20 C.F.R. §§ 404.1527, 416. 927 (2004). "The ALJ need not accept the opinion of any [psychiatrist], including [the] treating [psychiatrists], if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

Plaintiff did not overcome the presumption of continuing non-disability from the first ALJ's decision dated February 14, 2005. The record is void of any deterioration of the plaintiff's health from a functional view point, since the prior adverse ALJ decision (see AR 10). The plaintiff continues to have a severe impairment of drug and alcohol abuse as shown by inconsistencies between plaintiff's testimony on March 23, 2009 that he had not used drugs or alcohol in two years, and records from Phoenix Community Counseling dated September 8, 2008 indicating use of drug and alcohol use at least as of August 2008, and some marijuana use within that time period (see AR 12, 216-24); the June 14, 2007 mental status examination by a psychiatrist at the San Bernardino County Department of Behavioral Health who stated that plaintiff's memory was intact and that he was oriented in all four spheres (see AR 13, 169); and the September 8, 2008 mental status examination by Dr. Imelda Alfonso at Phoenix Community Counseling who stated that ...


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