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Cameron v. Astrue

September 15, 2010


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


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 supplemental security income benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

Plaintiff filed her SSI benefits application on April 26, 2006. She alleged that she had been disabled since April 15, 2006 due to back and knee problems, neck and back pain, migraines, endometriosis, and hip problems. [JS 2; Administrative Record ("AR") 76-82, 89-93]. In a written hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") concluded that plaintiff was not disabled. [AR 9-16]. The ALJ found that plaintiff had the following impairments that were severe in combination: osteoarthritis of the knees with history of surgeries, lumbar degenerative disc disease, plantar fasciitis, heel spurs, and obesity. [AR 11]. The ALJ determined, however, that plaintiff retained the residual functional capacity ("RFC") to perform light work with only occasional postural activities, no extreme cold, and no exposure to unprotected heights or dangerous machinery. [AR 13]. The ALJ concluded that plaintiff was not disabled because her RFC did not preclude her from performing her past relevant work as a telemarketer.*fn1 [JS 2; AR 12-15].

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. Social 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 Social Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999)).


Treating Psychologist

Plaintiff contends that: (1) the ALJ erred in disregarding the opinion of her treating psychologist, C.R. Shipley, Ph.D.; and (2) based on Dr. Shipley's opinion, the ALJ erred in finding no severe mental impairment. [See JS 3-8].

Where the opinion of a treating or examining physician is uncontroverted, the ALJ must provide clear and convincing reasons, supported by substantial evidence in the record, for rejecting it. If contradicted by that of another doctor, a treating or examining source opinion may be rejected for specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of Social Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetyan v. Halter, 242 F.3d 1144, 1148-49 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995).

Dr. Shipley completed a mental disorder questionnaire form in November 2004 stating that plaintiff had diagnoses of major depressive disorder and generalized anxiety disorder. [AR 196-200]. He noted that he had seen plaintiff twice a month between January 2003 and September 2004. The record also contained Dr. Shipley's progress notes. [AR 201-210]. Dr. Shipley opined that plaintiff had depressive symptoms associated with chronic pain, including sleep disturbances and problems with attention and concentration. Dr. Shipley said that plaintiff did not have a thought disorder, could follow simple instructions, and was able to perform activities of daily living. He opined that plaintiff's prognosis was "poor." [AR 198-200].

The ALJ found that plaintiff had no severe mental impairment. The ALJ did not mention, or give reasons for rejecting, Dr. Shipley's opinion. The ALJ remarked that there were no mental health treatment notes corroborating plaintiff's complaints of anxiety and depression.. The ALJ relied on the consultative psychiatric evaluation performed by Linda Smith, M.D., who diagnosed anxiety order not otherwise specified ("NOS") and depressive disorder NOS. [AR 347-352]. Dr. Smith concluded that plaintiff was not impaired or was at most mildly impaired in her mental work-related functional abilities. [AR 351-352].

The ALJ did not err in failing to give reasons for rejecting Dr. Shipley's opinion. Plaintiff's last visit to Dr. Shipley was on September 7, 2004. [AR 200-201]. Plaintiff's mental condition did not prevent her from working while she was under Dr. Shipley's care or at any time prior to April 2006. Specifically, plaintiff was paid by a government agency to work four hours a day, seven days a week, as an in-home caregiver for her disabled son from November 1996 or 1997 until April 2006. [See AR 94-95,102, 143-144].

Plaintiff asked to withdrew her request for a hearing on her prior benefits application in February 2006 because she was performing substantial gainful activity (and therefore was not disabled). The ALJ dismissed the hearing request, resulting in a final, binding determination that plaintiff was not disabled through December 9, 2004, the reconsideration denial date. [See AR 80-90]. Thus, plaintiff was adjudicated "not disabled" after the period she saw Dr. Shipley for mental health treatment. When plaintiff filed her present application, she alleged that she became disabled on April 15, 2006, the date she stopped working as an in-home caregiver. [AR 76]. About eighteen months had elapsed since she stopped seeing Dr. Shipley and had been found ...

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