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Thompson v. Astrue


July 27, 2010


The opinion of the court was delivered by: Alicia G. Rosenberg United States Magistrate Judge


Christopher Thompson filed this action on July 1, 2009. Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on July 23 and 31, 2009. (Dkt. Nos. 8 & 10.) On January 5, 2010, the parties filed a Joint Stipulation ("JS") that addressed the disputed issues. The Court has taken the matter under submission without oral argument.

Having reviewed the entire file, the Court affirms the decision of the Commissioner.


On September 3, 2004, Thompson filed an application for Supplemental Security Income benefits alleging a disability onset date of June 16, 2004. Administrative Record ("AR") 18, 232-33. The application was denied initially and upon reconsideration. AR 18, 153, 160. An Administrative Law Judge ("ALJ") conducted a hearing on January 24, 2007, at which Thompson and a vocational expert ("VE") testified. AR 70-89. On March 1, 2007, the ALJ issued a decision denying benefits. AR 18, 131-41. On July 23, 2007, the Appeals Council granted Thompson's request for review, vacated the decision of the ALJ, and remanded. AR 190-92. On April 8, 2008, a different ALJ conducted a hearing at which Thompson and a VE testified. AR 90-113. On December 31, 2008, the ALJ issued a decision denying benefits. AR 15-34. The Appeals Council denied Thompson's request for review on May 19, 2009. AR 7-9. This action followed.


Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to deny benefits. The decision will be disturbed only if it is not supported by substantial evidence, or if it is based upon the application of improper legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992).

"Substantial evidence" means "more than a mere scintilla but less than a preponderance -- it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion." Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner's decision, the Court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the Court must defer to the Commissioner's decision. Moncada, 60 F.3d at 523.


A. Disability

A person qualifies as disabled, and thereby eligible for such benefits, "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." Barnhart v. Thomas, 540 U.S. 20, 21-22, 124 S.Ct. 376, 157 L.Ed. 2d 333 (2003).

B. The ALJ's Findings

Thompson has the following severe combination of impairments: "adhesive capsulitis of the left shoulder, degenerative joint disease of the lumbar spine . . . and substance abuse disorder."*fn1 AR 22. Thompson does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments. Id.

Thompson has the residual functional capacity ("RFC") to perform light work limited to "simple, routine, repetitive tasks." AR 23. Thompson has no past relevant work. AR 32. Jobs involving unskilled light work exist in significant numbers in the national economy that Thompson can perform. AR 33-34.

C. Compliance with the Appeals Council's Remand Order

Thompson argues that the ALJ failed to comply with the terms of the Appeals Council's July 23, 2007 remand order to obtain, if available, treatment records from Dr. Tong, who opined in September 2006 that Thompson was completely disabled due to schizophrenia. JS 3 (citing AR 191-92, 360). According to Thompson, the ALJ's rejection of Dr. Tong's opinion, in part on the ground that Thompson had not produced his treatment records, was an improper attempt "to shift the burden of developing the record" because pursuant to the Appeals Council's order, the ALJ, not Thompson, was required to obtain those records. JS 4; AR 32.

Thompson's argument that the ALJ failed to comply with the Appeals Council's remand order is misdirected. After the Appeals Council remanded the matter (AR 191-92), the ALJ issued a new hearing decision in December 2008. AR 18-34. The Appeals Council denied Thompson's request for review of that decision.*fn2 AR 7-9. The ALJ's decision became the final decision of the Commissioner subject to judicial review. See 42 U.S.C. § 405(g); Tyler, 305 Fed. Appx. at 332 ("The district court properly declined to evaluate whether the ALJ's second decision satisfied the demands of the Appeals Council's remand . . . .

[F]ederal courts only have jurisdiction to review the final decisions of administrative agencies. When the Appeals Council denied review of the ALJ's second decision, it made that decision final, and declined to find that the ALJ had not complied with its remand instructions.") Accordingly, the Court's role is to determine whether the ALJ's final decision is supported by substantial evidence (see Moncada, 60 F.3d at 523), not whether the ALJ complied with the Appeals Council's remand order.

Construing Thompson's argument as a claim that the ALJ failed to develop the record, the claim still fails. In its remand order, the Appeals Council directed the ALJ to obtain additional evidence concerning Thompson's medical claims, including, "if available, Dr. Tong's treatment notes, treatment notes from the sources listed in B83, and a consultative psychiatric examination with medical source statements about what the claimant can still do despite the impairment." AR 191-92.

Pursuant to the remand order, on June 6, 2008, the ALJ obtained Thompson's medical records from Kern Medical Center, which included the County of Kern Family Medicine Center where Dr. Tong practiced. AR 360, 398-624. The records forwarded by Kern Medical Center did not include treatment notes from Dr. Tong. The ALJ gave "little weight" to Dr. Tong's opinion because "[t]here is little indication that Dr. Tong is a psychiatrist" and because Thompson "has not submitted treatment records from Dr. Tong to support this diagnosis." AR 32. Contrary to Thompson's argument that the ALJ improperly attempted to "shift the burden" of developing the record, the ALJ requested and received hundreds of pages of medical records from the medical center where Dr. Tong practiced. There is no evidence that treatment notes from Dr. Tong exist. At the hearing, Thompson did not indicate Dr. Tong had any treatment notes, much less bring them to the ALJ's attention, or object to the absence of Dr. Tong's treatment notes from the record. AR 92-112. Nor did Thompson supplement the record with Dr. Tong's treatment notes following the hearing, even though the ALJ agreed to hold the record open for thirty days so that Thompson could obtain additional medical evidence. AR 112. The ALJ's determination that Dr. Tong's two-sentence opinion merited "little weight" is supported by substantial evidence. AR 32, 360; see, e.g., Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (an "ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings").

The ALJ made no finding that the evidence was ambiguous or that the record was inadequate to allow for proper evaluation. See Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) ("An ALJ's duty to develop the record further is triggered only when there is ambiguous evidence or when the record is inadequate to allow for proper evaluation of the evidence."). In addition to obtaining additional medical records, the ALJ also obtained a psychiatric consultative examination by psychiatrist Dr. Linda Smith. AR 375-87. The ALJ did not err.

D. Severity of Thompson's Mental Impairment*fn3

Thompson argues the ALJ improperly determined at step two that his mental impairment did not meet the criteria to be classified as "severe." JS 14.

At step two of the sequential analysis, the claimant bears the burden of demonstrating a severe, medically determinable impairment that meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii); Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 107 S.Ct. 2287, 96 L.Ed. 2d 119 (1987). To satisfy the duration requirement, the severe impairment must have lasted or be expected to last for a continuous period of not less than 12 months. Id. at 140.

Your impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by your statement of symptoms. 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. "[T]he impairment must be one that 'significantly limits your physical or mental ability to do basic work activities.'"*fn4 Yuckert, 482 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); Smolen v. Chater, 80 F.3d at 1273, 1290 (9th Cir. 1996) ("[A]n impairment is not severe if it does not significantly limit [the claimant's] physical ability to do basic work activities.") (citation and quotation marks omitted).

"An impairment or combination of impairments may be found 'not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual's ability to work.'" Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005) (emphasis in original, citation omitted). Step two is "a de minimis screening device [used] to dispose of groundless claims" and the ALJ's finding must be "clearly established by medical evidence." Id. at 687 (citations and quotations omitted). "[T]he ALJ must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone was sufficiently severe." Smolen, 80 F.3d at 1290. The ALJ is also "required to consider the claimant's subjective symptoms, such as pain or fatigue, in determining severity." Id. The Commissioner does not consider age, education, and work experience. 20 C.F.R. § 404.1520(c).

At step two, the ALJ did not find that Thompson had a severe mental impairment.*fn5 AR 22; see supra n.1. Even assuming without deciding that omission of a mental impairment constituted legal error at step two, such error was harmless. Burch v. Barnhart, 400 F.3d 676, 682 (9th Cir. 2005). Any prejudice to Thompson could occur only at step five because all other steps were decided in his favor. Id. The RFC assessment takes into account limitations imposed by all impairments, even those that are not severe. Id. at 683.

E. Consultative Psychiatric Examiner's Opinion

The ALJ limited Thompson to "simple, routine, repetitive tasks." AR 23. Thompson argues the ALJ improperly rejected the opinion of examining psychiatrist Dr. Kalman regarding his mental RFC.*fn6 JS 9. Thompson contends the ALJ's reasons for giving greater weight to the opinion of Dr. Smith, who examined him at the request of the state agency, than to the opinion of Dr. Kalman, who examined him at the request of his lawyer, were legally insufficient. Id. (citing AR 27-29 & 32).

An ALJ may reject an uncontradicted examining physician's medical opinion based on "clear and convincing reasons." Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Lester, 81 F.3d at 830-31). When an examining physician's opinion is contradicted, "it may be rejected for 'specific and legitimate reasons that are supported by substantial evidence in the record.'" Id. at 1164 (citation omitted). An examining physician's opinion constitutes substantial evidence when it is based on independent clinical findings. Id.

"When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict." Thomas, 278 F.3d at 956-57 (citation and quotation marks omitted). "The ALJ is likewise responsible for resolving ambiguities." Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The Court must uphold the ALJ's decision when the evidence is susceptible to more than one rational interpretation. Id.

In a psychiatric evaluation dated March 30, 2008, Dr. Kalman did not make a diagnosis. He stated rule out schizoaffective disorder and rule out alcohol abuse. AR 391. Dr. Kalman reported that Thompson's responses were delayed, his memory was impaired, he had impaired attention and concentration, his mood was depressed, his affect was blunted, and his thought processes were "significant for poverty of ideas" and marked by vague, halting speech. AR 390-91. Thompson reported to Dr. Kalman that he does not get along with his family and has no friends. AR 391. On a typical day, "I'm tore up. I can't buy nothing. I can't eat well. No money. I'm very depressed." Id. For the last two years, he had auditory hallucinations telling him to kill himself. Id.

Dr. Kalman found that Thompson had mild limitations in his ability to remember locations and work-like procedures; understand, remember and carry out short and simple (one- or two-step) repetitive instructions or tasks; perform activities within a schedule, maintain regular attendance and be punctual; interact appropriately with the public; get along with co-workers; and maintain socially appropriate behavior. AR 394-96. Thompson had moderate limitations in his ability to understand, remember and carry out detailed instructions; maintain attention and concentration for extended periods; sustain an ordinary routine without supervision; make simple work-related decisions; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number of rest periods; and accept instructions and respond appropriately to criticism from supervisors. AR 395-96. Thompson's condition was not expected to improve significantly in the next twelve months. AR 392, 397.

Dr. Smith, an examining physician, saw Thompson on October 2, 2007, and diagnosed alcohol abuse, possibly abstaining. AR 382. Dr. Smith found no evidence of any other Axis I disorder and did not believe Thompson was impaired in his ability to work "if he gave fair effort." Id. With respect to auditory hallucinations, Dr. Smith found that Thompson was unable to provide any details about what he hears. AR 377. She then fabricated details that are not typical for true hallucinations, and he responded positively. AR 377, 380. Dr. Smith opined that "the pattern is very typical for lay persons who are attempting to stage psychosis." AR 382. As to symptoms on Thompson's questionnaire, such as suicidal thoughts or anxiety, Thompson stated that the symptoms were resolved with medication. AR 376, 382. Thompson's thought processes were coherent and organized. AR 380.

Dr. Smith determined that Thompson was not impaired in his ability to: understand, remember or complete simple commands; understand, remember or complete complex commands; interact appropriately with supervisors, co-workers or the public; comply with job rules such as safety and attendance; respond to changes in the normal workplace setting; and maintain persistence and pace in a normal workplace setting. AR 383.

After a lengthy discussion of the medical evidence pertaining to Thompson's mental limitations (AR 26-32), including the findings of Dr. Kalman and Dr. Smith, the ALJ concluded:

The undersigned gives greater weight to the opinion of Dr. Smith than to the opinion of Dr. Kalman. She asked the claimant much more detailed questions about his symptoms than Dr. Kalman did. Given the claimant's lack of mental health treatment, Dr. Smith's observations of the claimant's reluctance to answer question[s], Dr. Smith's observations of fabricated details and near misses in arithmetic calculations, and Dr. Kalman's opinion that the claimant's limitations may be due to a diagnosis of alcohol abuse, the undersigned finds that the claimant has not established the existence of a severe mental impairment.

AR 32.

Dr. Smith and Dr. Kalman were examining psychiatrists whose respective opinions were based on independent clinical findings arising from in-person examinations of Thompson. AR 375-97. As such, both opinions constitute "substantial evidence." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining doctor's opinion constitutes substantial evidence when it rests on his own independent examination of the claimant).

Although Thompson argues the ALJ's reasons for giving greater weight to Dr. Smith were not "legally sufficient," Thompson does not address any of the ALJ's reasons. JS 9.

As the ALJ explained, Dr. Smith's examination included questions that were much more detailed than Dr. Kalman's, particularly regarding Thompson's complaints of auditory and visual hallucinations. AR 32. Dr. Smith asked Thompson to describe his auditory hallucinations and followed up with specific questions about whether the voices came from inside or outside his head, whether the voices woke him up, and whether they were accompanied by feelings of dizziness. AR 377. Dr. Smith also asked Thompson to describe his visual hallucinations. Id. Dr. Smith found that Thompson's responses were "typical for lay persons who are attempting to stage psychosis." AR 382; see AR 377. In contrast, Dr. Kalman's report accepts Thompson's stated hallucinations at face value and provides no indication that Dr. Kalman asked probing questions. AR 389, 391.

The ALJ's determination that the treating records were "consistent with Dr. Smith's report that the claimant could not tell her what the voices said" is supported by substantial evidence. AR 31. Thompson sought treatment at Kern Medical Center Emergency Department approximately fifty times between July 2005 and September 2007. AR 24, 398-624. On July 14, 2007, a physician evaluation/assessment form noted that Thompson "reports feeling 'super depressed' but affect not congruent." AR 478. A psychiatric history completed on the same day notes: "[Patient] came in for abdominal pain. Then reports he hears voices telling him to kill himself. [Patient] states he needs something to eat, he is homeless and is trying to get SSI and has been denied a couple of times. [Patient] kept requesting food instead of answering questions. [History] of poly sub[stance] abuse (currently denies), malingering, depression." AR 476. Four days later, Thompson reported a history of occasional auditory hallucinations, but said he was "unsure of what voices tell him. 'It just whistle[s], I am unsure of what the voices say.'" AR 469. Another record states that despite a reported history of schizophrenia, diagnosis of Thompson's mental state is tentative due to the need to rule out malingering.*fn7 AR 481.

The ALJ also properly relied on the inconsistency between Thompson's near misses on arithmetic calculations before Dr. Smith and Dr. Kalman. When Dr. Smith asked Thompson to subtract ten minus three, his answer was six. Dr. Smith found that this "was not a credible answer." AR 381. By contrast, as the ALJ noted, Thompson was able to calculate that "he would receive 80 cents change from $1.00 if he bought two oranges at 10 cents each" when asked to do calculations by Dr. Kalman. AR 31, 390. The ALJ concluded that Thompson's answers showed "variability of effort, supporting Dr. Smith's opinion that the claimant made mistakes typical for someone trying to stage a poor memory." AR 31, 381.

The ALJ gave specific and legitimate reasons, supported by substantial evidence, for giving greater weight to Dr. Smith's opinion. The ALJ did not err.

F. Incomplete Hypothetical

Thompson argues the ALJ's hypothetical was incomplete because it failed to reflect all of his limitations, particularly his "multiple mental limitations." JS 18 (citing AR 109).

The ALJ's hypothetical to the VE at AR 109 concerned Thompson's ability to perform his past relevant work. The ALJ, however, found that Thompson did not have any past relevant work. AR 32-33. The ALJ proceeded to step five of the sequential evaluation and did not rely on the VE's testimony. Therefore, Thompson's argument is moot.

G. Medical Vocational Guidelines

At step five, the ALJ found that Thompson was capable of performing unskilled light work and determined that jobs exist in significant numbers in the national economy that Thompson can perform. AR 33-34. The ALJ did not, however, identify specific jobs falling into that category. Id. Thompson argues the ALJ therefore failed to properly develop the record. JS 20.

At step five of the sequential analysis, the Commissioner bears the burden of demonstrating that there is other work in significant numbers in the national economy that the claimant can do. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). If the Commissioner satisfies this burden, the claimant is not disabled and not entitled to disability benefits. If the Commissioner cannot meet this burden, the claimant is "disabled" and entitled to disability benefits. Id.

"There are two ways for the Commissioner to meet the burden of showing that there is other work in 'significant numbers' in the national economy that claimant can do: (1) by the testimony of a vocational expert, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, subpt. P, app. 2." Id. "Where a claimant suffers only exertional limitations, the ALJ must consult the grids. Where a claimant suffers only non-exertional limitations, the grids are inappropriate, and the ALJ must rely on other evidence. Where a claimant suffers from both exertional and non-exertional limitations, the ALJ must consult the grids first." Id. at 1115 (citations omitted).

The ALJ determined that Thompson was capable of performing light,*fn8 unskilled work. AR 23, 33. "Unskilled work" is "work which needs little or no judgment to do simple duties that can be learned on the job in a short period of time." 20 C.F.R. § 416.968(a). In addition, "[t]he basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, co-workers, and usual work situations; and to deal with changes in a routine work setting. A substantial loss of ability to meet any of these basic work-related activities would severely limit the potential occupational base." SSR 85-15; AR 33.

The ALJ determined that Thompson was a "younger individual" when the application was filed, changed age category to "closely approaching advanced age" on January 30, 2006, had a high school education, and had no transferable job skills. AR 33. A finding of "not disabled" would be directed under Rule 202.20 and Rule 202.13 if Thompson had the ability to perform the full range of light work. Id. Finding that Thompson was able to perform unskilled light work and "[a]additional limitations have little or no effect on the occupational base of unskilled light work," the ALJ determined that Thompson was not disabled. AR 33-34. The grid rules are premised on the availability of jobs at the unskilled level. 20 C.F.R. § 404, Subpart P, App. 2, § 202.00(a)-(b). Thompson has not identified any error in the ALJ's analysis.


IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.

IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel.

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