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Ortiz v. Astrue

September 17, 2010

FRANCISCA ORTIZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Francisca Ortiz seeks judicial review of the Social Security Commissioner's denial of her application for Supplemental Security Income ("SSI") benefits. For the reasons stated below, the decision of the Commissioner is affirmed and the action is dismissed with prejudice.

I. Facts and Procedural Background

Plaintiff was born on October 4, 1953. She has a sixth grade education and has work experience as a housekeeper, commercial cleaner and kitchen helper. (Administrative Record ("AR") 21, 76, 142, 146.) Plaintiff filed an application for SSI benefits on September 30, 2005, alleging disability as of May 1, 2005, due to osteoarthritis and affective mood disorder. (AR 12, 76.)

Plaintiff's application was denied initially and upon reconsideration. (AR 77-82.) An administrative hearing was held February 11, 2008, before Administrative Law Judge ("ALJ") Kevin M. McCormick. (AR 51-75.) On October 11, 2008, ALJ Philip J. Simon convened a supplemental hearing. Plaintiff, represented by a non-attorney representative, testified, as did a medical expert and a vocational expert. (AR 24-50.)

ALJ Simon issued an unfavorable decision on November 4, 2008. (AR 9-23.) The ALJ found that Plaintiff suffered from the following severe impairments: a major depressive disorder, post-traumatic stress disorder, alcohol abuse, obesity, shoulder pain, moderate degenerative joint disease of the knees, and spurring and degenerative disc disease at multiple levels of the lumbar spine. (AR 15.) The ALJ further found that Plaintiff's impairments did not meet the requirements of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) It was determined that Plaintiff was unable to perform her past relevant work but that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including dryer attendant, furniture cleaner, and assembler. (AR 21-23.) The ALJ concluded that Plaintiff was not disabled as defined in the Social Security Act. (Id.)

The Appeals Council denied review on January 5, 2010. (AR 1-4.) Plaintiff commenced this action on March 1, 2010, and on September 14, 2010, the parties filed a joint stipulation ("Joint Stp.") of disputed facts and issues. Plaintiff contends: (1) the Appeals Council failed to properly consider additional evidence regarding Plaintiff's mental limitations and (2) the ALJ failed to properly develop the record. (Joint Stp. 2.) Plaintiff asks the Court to reverse and order an award of benefits or, in the alternative, to remand for further proceedings. (Joint Stp. 12.) The Commissioner requests that the ALJ's decision be affirmed. (Joint Stp. 13.)

II. Standard of Review

Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The Commissioner's decision must be upheld unless "the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole." Tackett v. Apfel, 180 F.3d 1094 (9th Cir. 1999); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means more than a scintilla, but less than a preponderance; it is evidence that a reasonable person might accept as adequate to support a conclusion. Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)(citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports a finding, the reviewing 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. 1996). "If the evidence can support either affirming or reversing the ALJ's conclusion," the court "may not substitute its judgment for that of the ALJ." Robbins, 466 F.3d at 882.

III. Discussion

A. The Appeals Council Properly Reviewed the Evidence

Plaintiff contends that the Appeals Council failed to properly review newly submitted evidence regarding Plaintiff's mental limitations. (Joint Stp. 3.) In a "Medical Source Statement of Ability to Do Work-Related Activities," dated October 23, 2008, Plaintiff's psychiatrist, Dr. Victor Cheang, found significant limitations in Plaintiff's ability to do various work-related activities. (AR 345-46.) Plaintiff contends that this report "supports the severity of Plaintiff's mental impairment and the impact the mental limitations have on her ability to perform work-related activities." (Joint Stp. 6.)

Pursuant to 20 CFR § 404.970(b), the Appeals Council shall consider new and material evidence "if it relates to the period on or before the date of the administrative law judge hearing decision [and if it] finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence of record." In this case, the Appeals Council reviewed the new evidence in conformity with the regulations and found that it did not provide any reason to overturn the ALJ's decision. (AR 1-2.)

Dr. Cheang's two-page medical opinion, a "check the box" form, is conclusory and provides no clinical support or objective findings to support the identified limitations. (AR 345-46.) See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (an ALJ need not accord weight to unexplained "check-off reports"). Also, Dr. Cheang's opinion was not accompanied by a description of functional limitations caused by Plaintiff's mental impairment. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995) (finding no error where ...


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