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Bailey v. Astrue


August 24, 2010


The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge


Plaintiff Keith Bailey filed a complaint on August 5, 2009, seeking review of the Commissioner's decision denying his applications for disability benefits. On December 22, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on February 8, 2010.


On May 4, 2006, plaintiff, who was born on March 26, 1979, applied for disability benefits under both Title II of the Social Security Act ("Act"), 42 U.S.C. § 423, and the Supplemental Security Income program ("SSI") of Title XVI of the Act, claiming an inability to work since April 1, 2002, due to testicular pain and mental problems. A.R. 61-68, 88. The plaintiff's applications were initially denied on September 29, 2006, and were again denied on March 16, 2007, following reconsideration. A.R. 41-56. The plaintiff then requested an administrative hearing, which was held before Administrative Law Judge Thomas J. Gaye ("the ALJ") on January 16, 2009. A.R. 18-40, 59. On February 10, 2009, the ALJ issued a decision finding plaintiff is not disabled. A.R. 6-17. The plaintiff appealed this decision to the Appeals Council, which denied review on June 9, 2009. A.R. 1-4.



The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the decision denying plaintiff disability benefits to determine if his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009); Vernoff v. Astrue, 568 F.3d 1102, 1105 (9th Cir. 2009). "In determining whether the Commissioner's findings are supported by substantial evidence, [this Court] must review the administrative record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001). "Where the evidence can reasonably support either affirming or reversing the decision, [this Court] may not substitute [its] judgment for that of the Commissioner." Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008); Vasquez, 572 F.3d at 591.

The claimant is "disabled" for the purpose of receiving benefits under the Act if he is unable to engage in any substantial gainful activity due to an impairment which has lasted, or is expected to last, for a continuous period of at least twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1505(a), 416.905(a). "The claimant bears the burden of establishing a prima facie case of disability." Roberts v. Shalala, 66 F.3d 179, 182 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); Smolen v. Chater, 80 F.3d 1273, 1289 (9th Cir. 1996).

The Commissioner has promulgated regulations establishing a five-step sequential evaluation process for the ALJ to follow in a disability case. 20 C.F.R. §§ 404.1520, 416.920. In the First Step, the ALJ must determine whether the claimant is currently engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant has a severe impairment or combination of impairments significantly limiting him from performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ must determine whether the claimant has an impairment or combination of impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. § 404, Subpart P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must determine whether the claimant has sufficient residual functional capacity despite the impairment or various limitations to perform his past work. 20 C.F.R. §§ 404.1520(f), 416.920(f). If not, in Step Five, the burden shifts to the Commissioner to show the claimant can perform other work that exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(g), 416.920(g). Moreover, where there is evidence of a mental impairment that may prevent a claimant from working, the Commissioner has supplemented the five-step sequential evaluation process with additional regulations addressing mental impairments.*fn1 Maier v. Comm'r of the Soc. Sec. Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam).

Applying the five-step sequential evaluation process, the ALJ found plaintiff has not engaged in substantial gainful activity since his alleged onset date. (Step One). The ALJ then found plaintiff has the following severe impairments: "epididymitis, dysthymic disorder, depressive disorder not otherwise specified and substance abuse"*fn2 (Step Two); however, he does not have an impairment or combination of impairments that meets or equals a listed impairment. (Step Three). The ALJ next determined plaintiff is capable of performing his past relevant work as a laborer and house cleaner; therefore, he is not disabled. (Step Four).


A claimant's residual functional capacity ("RFC") is what he can still do despite his physical, mental, non-exertional, and other limitations. Mayes v. Massanari, 276 F.3d 453, 460 (9th Cir. 2001); Valentine v. Comm'r, Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). Here, the ALJ found plaintiff has the RFC to perform limited medium work,*fn3 as follows: consider the opinion of Dr. Allison, a nonexamining psychiatrist, and lay witness testimony.

A. Nonexamining Physician's Opinion

On April 21, 2005, plaintiff was seen at the Riverside County Department of Mental Health ("DMH") by a licensed clinical social worker, John Lane, LCSW, A.R. 251-54, and plaintiff contends the ALJ erred in not considering Mr. Lane's opinion. Jt. Stip. at 10:26-12:21, 16:25-17:5. However, since J. Allison, M.D., subsequently, on May 21, 2005, co-signed Mr. Lane's assessment, this Court considers the assessment to be Dr. Allison's,*fn4 rather than Mr. Lane's, who, as a social worker, "is not considered an 'acceptable medical source[]' under the regulations." Turner v. Comm'r, Soc. Sec., __ F.3d __, 2010 WL 2991383, *4 (9th Cir. (Or.)). Accordingly, the record shows that Dr. Allison, a nonexamining physician, diagnosed plaintiff as having an unspecified mood disorder and an unspecified psychotic disorder, rule out major depression with psychotic features, cannabis dependency, amphetamine abuse and antisocial personality disorder, and determined plaintiff's Global Assessment of Functioning ("GAF") was 50.*fn5 A.R. 251-54. When Mr. Lane interviewed plaintiff, plaintiff complained of chronic pain in his groin, which caused him to be depressed and to have moderate suicidal ideations. A.R. 252. Plaintiff also reported that he "hear[d] voices on & off" since he was 21 years old "telling him to hurt [him]self[,]" and he had paranoid ideations. Id. Plaintiff's appearance, orientation, attention/ concentration, psychomotor skills, speech and thought content were intact, his memory was intact, his judgment and insight were fair, his mood was depressed, he was labile, his intelligence was below average, and he did not have a grave disability. A.R. 253.

"The Commissioner may reject the opinions of a nonexamining physician by reference to specific evidence in the medical record." Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998). Here, however, the ALJ did not reject Dr. Allison's opinions, but instead incorporated them into his assessment of plaintiff. A.R. 14-15. Nevertheless, plaintiff contends the ALJ's assessment is not supported by substantial evidence.*fn6 There is no merit to plaintiff's claim. Simply put, "[t]he mere diagnosis of an impairment . . . is not sufficient to sustain a finding of disability." Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990); see also Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 1993) ("The mere existence of an impairment is insufficient proof of a disability."); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (per curiam) ("The mere diagnosis of [an ailment] . . . says nothing about the severity of the condition.").

Further, to the extent plaintiff contends the ALJ erred in not properly considering plaintiff's GAF score, plaintiff is incorrect.

An ALJ is not required to give controlling weight to a treating physician's GAF score -- let alone a nonexamining physician's GAF score. See, e.g., Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) ("While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC's accuracy. Thus, the ALJ's failure to reference the GAF score in the RFC, standing alone, does not make the RFC inaccurate."); Petree v. Astrue, 260 Fed. Appx. 33, 42 (10th Cir. 2007) (Unpublished Disposition) ("[A] low GAF score does not alone determine disability, but is instead a piece of evidence to be considered with the rest of the record."). Moreover, since the ALJ did consider Dr. Allison's opinions, including the GAF score, as part of his overall assessment of plaintiff, A.R. 14-15, there was no error. Valentine, 574 F.3d at 691; Chavez v. Astrue, 699 F. Supp. 2d 1125, 1135 (C.D. Cal. 2009). To the contrary, the ALJ's assessment of plaintiff's mental limitations was supported by substantial evidence, including the opinions of examining psychiatrist Romualdo R. Rodriguez, M.D., A.R. 362-68, medical expert David Glassmire, M.D., A.R. 22-25, and nonexamining psychiatrist K.D. Gregg, M.D. A.R. 370-80; see also Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician's medical report based on independent examination of claimant constitutes substantial evidence to support ALJ's disability determination).

B. Lay Witness Testimony

"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001); Valentine, 574 F.3d at 694. Thus, third party statements are competent evidence, and "an important source of information about a claimant's impairments[.]" Regennitter v. Comm'r of the Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999); Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 975 (9th Cir. 2000); see also Smolen, 80 F.3d at 1289 ("[T]estimony from lay witnesses who see the claimant every day is of particular value. . . .").

Plaintiff contends the ALJ erred in rejecting the third-party reports of his girlfriend, Tylena Ramirez, and another friend, Shanna Ramirez.*fn7 Jt. Stip. at 6:18-9:6, 10:13-22. On July 17, 2006, Tylena completed a report about plaintiff, indicating he is able to take care of himself, but he does not sleep very much because he has groin pain, he cannot stand long enough to cook or shop and he does not do chores because of his injury; rather, he watches television all day everyday and talks on the phone or visits with people about 3 times a week.

A.R. 97-104. Tylena also noted plaintiff cannot lift any weight or play any sports, walking hurts him, he cannot walk more than a couple of steps before having to stop and rest, and he needs a cane. A.R. 102-03. Furthermore, Tylena indicated plaintiff is able to pay attention all day, gets along well with authority figures, handles changes in routine very well, and has no unusual behavior or fear, but he does not understand written instructions and does not handle stress well. Id.

On February 18, 2007, Shanna completed a report about plaintiff, stating she sees him about three times a week, and he is in pain and mostly just stays inside and watches television or plays video games. A.R. 131-38. Shanna also noted plaintiff cannot lift things because it causes him pain, he cannot stand, walk, talk or climb for long periods of time, he uses a cane, and his memory is bad; however, he can pay attention unless his pain is very bad. A.R. 133, 137. Shanna further indicated that because of his pain, it is hard for plaintiff to get dressed or use the bathroom, he does not cook or do household chores, and he experiences pain when the water hits his side while he is bathing, so plaintiff will not bathe for weeks. A.R. 134-36. Finally, Shanna also stated plaintiff gets along fine with authority figures, but does not handle stress well. A.R. 137.

To the extent the statements of Tylena and Shanna conflict with the ALJ's RFC assessment, the ALJ rejected the statements as unsupported by the record. A.R. 15. The ALJ also found that although Tylena and Shanna "reported that [plaintiff's] activities were limited, Dr. Rodriguez noted that [plaintiff] stated that he was able to perform some household chores, do yard and gardening work, cook, go to the store, run errands, care for his personal hygiene, watch television, read and leave home alone." Id. Since the ALJ's findings are supported by substantial evidence in the record, see, e.g., A.R. 353-58, 362-68, 382-86, the ALJ provided germane reasons for rejecting Tylena's and Shanna's opinions. Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008); Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005).


"At Step Four, claimants have the burden of showing that they can no longer perform their past relevant work." Pinto v. Massanari, 249 F.3d 840, 845 (9th Cir. 2001); Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). "To determine whether a claimant has the [RFC] to perform his past relevant work, the [ALJ] must ascertain the demands of the claimant's former work and then compare the demands with his present capacity." Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986); Marcia v. Sullivan, 900 F.2d 172, 177 n.6 (9th Cir. 1990). "This requires specific findings as to the claimant's [RFC], the physical and mental demands of the past relevant work, and the relation of the residual functional capacity to the past work." Pinto, 249 F.3d at 845.

Here, the ALJ found plaintiff can perform his past relevant work as a laborer and house cleaner. A.R. 16. However, plaintiff contends this finding is not supported by substantial evidence because the ALJ did not make specific findings regarding the mental and physical demands of plaintiff's past relevant work. Jt. Stip. at 2:28-5:9, 6:12-17. The plaintiff is incorrect. Vocational expert Troy Scott testified at the administrative hearing that an individual of plaintiff's age, education, RFC, and past work experience could perform plaintiff's former work as a laborer and house cleaner. A.R. 38-39. Plaintiff has not identified any errors in this testimony, which, as the ALJ found, is consistent with the Dictionary of Occupational Titles ("DOT"),*fn8 A.R. 16; see U.S. Dep't of Labor, Dictionary of Occupational Titles, 248, 947 (4th ed. 1991), and the vocational expert's testimony constitutes substantial evidence to support the ALJ's Step Four determination that plaintiff can perform his past relevant work.*fn9 Roberts, 66 F.3d at 184; Tylitzki v. Shalala, 999 F.2d 1411, 1415 (9th Cir. 1993); see also Fleming v. Astrue, 274 Fed. Appx. 571, 573 (9th Cir. 2008) ("The ALJ appropriately relied on the Dictionary of Occupational Titles . . . to determine that [claimant] could perform [his] past relevant work as it is generally performed in the national economy."). Therefore, plaintiff has not met his burden of proving he is unable to perform his past relevant work. Sanchez v. Secretary of Health & Human Servs., 812 F.2d 509, 511 (9th Cir. 1987).


IT IS ORDERED that: (1) plaintiff's request for relief is denied; and (2) the Commissioner's decision is affirmed, and Judgment shall be entered in favor of defendant.

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