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Smith v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 22, 2010

ROBIN SMITH, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge

MEMORANDUM OPINION

I. SUMMARY

On September 16, 2009, plaintiff Robin Smith ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have consented to proceed before a United States Magistrate Judge.

This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; September 22, 2009 Case Management Order ¶ 5.

Based on the record as a whole and the applicable law, the decision of the Commissioner is AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn1

II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

On January 20, 2005, plaintiff filed an application for Supplemental Security Income benefits. (Administrative Record ("AR") 524-26).*fn2 Plaintiff asserted that she became disabled on February 1, 1995, due to diabetes, arthritis, and depression. (AR 161). On March 21, 2007, the ALJ conducted a hearing ("Pre-Remand Hearing") and heard testimony from plaintiff, who was represented by counsel. (AR 409-18). On April 6, 2007, the ALJ found that plaintiff was not disabled ("Pre-Remand Decision") (AR 12-17), and the Appeals Council denied review. (AR 5-7). On July 7, 2008, this Court remanded the case for further proceedings ("Remand Order"). (AR 481-92).

Following the remand, the ALJ conducted a hearing on February 26, 2009 ("Post-Remand Hearing"), at which he heard testimony from plaintiff, who was represented by counsel, and a vocational expert. (AR 430-45). On May 11, 2009, the ALJ determined that plaintiff was not disabled through the date of the decision ("Post-Remand Decision"). (AR 422-29). Specifically, the ALJ found:

(1) plaintiff suffered from the severe impairments of "insulin-dependent diabetes mellitus and a history of deep vein thrombosis with continued use of Coumadin" (AR 424); (2) plaintiff's impairments, considered singly or in combination, did not meet or medically equal one of the listed impairments (AR 426); (3) plaintiff retained the residual functional capacity to perform medium work with certain restrictions (AR 426);*fn3 and (4) plaintiff was capable of performing her past relevant work. (AR 428). The Appeals Council did not review the ALJ's decision, and the Post-Remand Decision became the final decision of the Commissioner. See 20 C.F.R. § 416.1484(d).

III. APPLICABLE LEGAL STANDARDS

A. Sequential Evaluation Process

To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:

(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.

(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).

B. Standard of Review

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).

To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).

IV. DISCUSSION

A. The ALJ Did Not Err by Failing to Discuss Evidence Identified in the Court's Remand Order

Plaintiff places great emphasis on the ALJ's failure to address specifically three pieces of evidence identified in the Court's Remand Order: (1) a January 2, 2003 treating physician's opinion (Plaintiff's Motion at 3-4); (2) a May 18, 1999 state agency physician's opinion (Plaintiff's Motion at 5); and (3) an October 4, 1999 lay witness statement of plaintiff's son (Plaintiff's Motion at 5-6). Plaintiff urges that the ALJ failed to comply with the Court's Remand Order by not discussing this evidence. (Plaintiff's Motion at 4-6). However, consideration of this evidence was not the basis for the Court's Remand Order. Instead, the Court noted that it was an issue "the ALJ may wish to consider on remand." (Remand Order at 11 n.9). The ALJ's failure to explicitly consider this evidence therefore does not violate the Court's Remand Order.

The evidence in dispute dates from May 1999 to January 2003. Plaintiff previously applied for Supplemental Security Income benefits in 1998, 1999, and 2003. These applications were all denied at the administrative level and plaintiff did not seek judicial review. (AR 157-58; see Defendant's Motion at 3 n.3). As the Court previously noted, a prior determination that a claimant is not disabled creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). The claimant can overcome this presumption by proving "changed circumstances" indicating a greater disability. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). In this case, the ALJ did "not incorporate[] the prior decisions and has instead declined, at least in part, to give such prior decisions preclusive effect as to the current period in issue." As a result, the Court questioned whether the ALJ was obligated to consider the evidence at issue. (Remand Order at 11 n.9). Neither party has addressed this issue directly. The Court therefore applies general principles to evaluate the ALJ's handling of the evidence identified in the Court's Remand Order.*fn4

An ALJ is not required to discuss every piece of evidence in the record. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (citations omitted). An ALJ must provide an explanation only when he rejects "significant probative evidence." See Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (citation omitted). Here, the evidence in dispute precedes by two to five years the period for which plaintiff could be eligible for benefits. Because Supplemental Security Income payments are not retroactive, the relevant time period for plaintiff's current application begins on plaintiff's filing date of January 20, 2005. See 42 U.S.C. § 1382(c)(7); 20 C.F.R. § 416.501. Despite the interval between the disputed evidence and the current filing date, plaintiff has not articulated how any of the evidence at issue is significant or probative of her current ability to perform substantial gainful activity. (See Plaintiff's Motion at 3-6). The ALJ therefore was not required to discuss this evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988) (ALJ correctly rejected evidence predating the relevant time period). Nonetheless, the Court has analyzed each piece of evidence and determined that even if the ALJ erred by failing to address this evidence, any such error was harmless.

1. Treating Physician's Opinion

Plaintiff faults the ALJ for failing to discuss a letter by Dr. Edwin Pasuhuk dated January 2, 2003. (Plaintiff's Motion at 3-4). The letter reads, in its entirety, as follows:

This 43 y/o female patient keeps medical records at this clinic since March 1999. Her diagnoses include: Diabetes Mellitus, Dyslipidemia, and recurrent UTI.

This patient's Diabetes has been slowly deteriorating.

She is now becoming insulin dependent. Prognosis for this patient is guarded at this time. (AR 187). The ALJ's failure to discuss this brief letter is utterly inconsequential. The letter describes none of plaintiff's functional abilities and discusses no supporting evidence for any of its conclusions. Moreover, the ALJ determined that plaintiff has the severe impairment of "insulin-dependent diabetes mellitus" (AR 424), even though Dr. Pasuhuk wrote that plaintiff was merely "becoming insulin dependent" in 1999. This underscores that the ALJ's Post-Remand Decision accounted for plaintiff's current health rather than her condition years before she filed her application. The ALJ's error in failing to discuss Dr. Pasuhuk's letter, "if any indeed existed, was inconsequential to the ultimate non-disability determination" and therefore harmless. See Stout, 454 F.3d at 1044.

2. State Agency Physician's Opinion

Plaintiff next argues that the ALJ erred by failing to discuss a State agency physician's physical residual functional capacity assessment dated May 18, 1999. (Plaintiff's Motion at 5). Among other things, the State agency physician opined that plaintiff had not established any exertional or manipulative limitations; plaintiff should avoid hazards such as dangerous machinery and heights; plaintiff could balance only occasionally; and plaintiff had limited depth perception. (AR 317-24). The State agency physician also noted that plaintiff had "credibility issues" and concluded that the medical evidence of record "fails to support her claim of disability to the extent that she portrays." (AR 323). Even if the ALJ fully credited the State agency physician's 1999 opinion it would not compel the conclusion that plaintiff is disabled. Any error in failing to discuss this opinion was therefore harmless.

3. Lay Witness Statement

Plaintiff contends that the ALJ's failure to discuss a third party Daily Activities Questionnaire form completed by her son, Kenneth Newson, on October 24, 1999, constitutes reversible error. (Plaintiff's Motion at 5-6). Among other things, Mr. Newson wrote that plaintiff spends a typical day doing "nothing"; she cannot sleep at night; she has difficulty with breathing and standing too long; she does not cook; she has no difficulties getting along with family, friends, co-workers, or others; she "forget[s] how to spell words and gets children's names mixed up"; and she is unable to finish "when she tries to help with chores." (AR 119-24). Mr. Newson's statements are consistent with plaintiff's own allegations about her subjective limitations. (Compare AR 119-24 with AR 161, 413-15, 436-37, 439-41). Because the ALJ rejected plaintiff's credibility (AR 426-27) -- a finding that plaintiff does not challenge -- "it follows that the ALJ also gave germane reasons" for rejecting Mr. Newson's statements. See Valentine v. Commissioner, Social Security Administration, 574 F.3d 685, 694 (9th Cir. 2009). Any error in failing to discuss Mr. Newson's 1999 statements was harmless.

B. The ALJ Did Not Err by Failing to Discuss Psychiatric Evidence from 1999

Plaintiff argues that the ALJ erred by failing properly to consider the 1999 opinion of a consultative psychiatric examiner, Dr. Diane DeSilva (AR 590-93), and the 1999 mental residual functional capacity assessment of a State agency physician, Dr. H. N. Hurwitz (AR 339-41). (Plaintiff's Motion at 6-9). This evidence predates plaintiff's current application by more than five years. As with the evidence identified in the Court's Remand Order and discussed above, plaintiff has not demonstrated that this psychiatric evidence is significant or probative of her current ability to perform substantial gainful activity. (See Plaintiff's Motion at 6-9). The ALJ therefore was not required to discuss this evidence. See Burkhart, 856 F.2d at 1340 n.1.

Moreover, substantial evidence supports the ALJ's conclusion that plaintiff lacks a severe mental impairment or any mental functional limitations. The ALJ ordered two consultative psychiatric examinations since plaintiff filed her present application, one in April 2005 (AR 346-52) and the other in December 2008 (AR 590-93). The ALJ discussed these examinations in detail and concluded that plaintiff does not have a severe mental impairment. (AR 425). In addition, as noted above, plaintiff did not challenge the ALJ's rejection of the credibility of her complaints, including her psychiatric complaints. The ALJ found that "[t]here is absolutely no longitudinal history of psychiatric/psychological care or counseling and no use of psychotropic medications"; there is "no credibly established inability to engage in the superficial contact required by the majority of work places or in the ability to handle the normal stresses associated in unskilled work"; and "[t]here is no documented withdrawal behavior, lack of concentration, persistence or pace and certainly none shown in the mental status examinations of the two psychiatric consultative examiners." (AR 425 (citing Exhibits B13F, B295 [AR 346-52, 590-93]); see AR 426-27 (ALJ rejected plaintiff's complaints of "depression, poor memory and concentration, being nervous around people, and fatigue")). In light of the more recent evidence supporting the ALJ's conclusion that plaintiff lacks a severe mental impairment or mental functional limitations, any error in failing to discuss psychiatric evidence from 1999 was harmless.

C. The ALJ Did Not Err by Failing to Discuss a State Agency Physician's 2005 Mental Residual Functional Capacity Assessment

Plaintiff also contends that the ALJ erred by "ignor[ing] without explanation" a State agency physician's mental residual functional capacity assessment dated April 26, 2005 (AR 367-69). (Plaintiff's Motion at 9-10). Plaintiff's argument lacks merit. As discussed above, substantial evidence supports the ALJ's assessment of the examining psychiatrists' opinions, and plaintiff did not challenge the ALJ's decision to reject the credibility of her mental complaints. Moreover, the State agency physician wrote that he "agree[d] with [the] ALJ's [Pre-Remand D]ecision." (AR 369). The ALJ's Pre-Remand Decision (dated twenty days before the physician's assessment) concluded that plaintiff did not have a severe mental impairment or any mental functional limitations. (AR 14-16). Therefore, even if the ALJ fully credited the physician's assessment, it would not have affected his conclusion that plaintiff was not disabled. Any error in failing to discuss this assessment was therefore harmless.

D. The ALJ Posed a Complete Hypothetical Question to the Vocational Expert

Plaintiff contends that the ALJ failed to pose a complete hypothetical to the vocational expert. (Plaintiff's Motion at 8-9). This argument fails because it is entirely derivative of plaintiff's arguments, rejected above, that the ALJ erred by failing to consider the 1999 opinions of a State agency physician and a consultative psychiatric examiner. (See id.; See supra Parts IV.A.2, IV.B). "Hypothetical questions posed to the vocational expert must set out all the limitations and restrictions of the particular claimant," Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988) (emphasis in original; citation omitted), but they need not include limitations not supported by substantial evidence in the record. Osenbrock v. Apfel, 240 F.3d 1157, 1163-64 (9th Cir. 2001).

As discussed above, the ALJ did not err by failing to discuss or accept the 1999 opinions of a State agency physician or of Dr. DeSilva. The ALJ was not required to include in his hypothetical question to the vocational expert limitations that were not part of the ALJ's findings. The ALJ's hypothetical properly included "all of the limitations that the ALJ found credible and supported by substantial evidence in the record." Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). Accordingly, a remand or reversal is not warranted on this basis.

E. Substantial Evidence Supports the ALJ's Decision that Plaintiff Is Capable of Performing Her Past Relevant Work

Finally, plaintiff argues that the ALJ erred in determining that plaintiff is capable of performing her past relevant work as a teacher's aide, hostess/greeter, or child care provider. (Plaintiff's Motion at 10-11). The Court disagrees.

To determine whether a claimant can perform her past relevant work, the ALJ must ascertain the demands of the claimant's former work and then compare the demands with her present functional capacity. Villa v. Heckler, 797 F.2d 794, 797-98 (9th Cir. 1986). Here, plaintiff essentially argues that the ALJ erred in determining her residual functional capacity because he "fail[ed] to consider the significant moderate mental limitations and the... restriction to performing two step commands involving simple instruction as opined by the State agency physicians" whose opinions the ALJ disregarded. (Plaintiff's Motion at 10 (citing AR 339, 367-69)). As the Court has concluded that the ALJ did not err by failing to discuss or adopt these opinions (see supra Parts IV.B, IV.C), the ALJ therefore was not required to include in plaintiff's residual functional capacity the limitations found by these physicians. See Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175-76 (9th Cir. 2008). The ALJ properly relied on his determination of plaintiff's residual functional capacity, the vocational expert's testimony, and the Dictionary of Occupational Titles in making his step four determination. (AR 428-29). A reversal or remand on this basis is not warranted.

V. CONCLUSION

For the foregoing reasons, the decision of the Commissioner of Social Security is affirmed.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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