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Narcisco Robert Espinoza v. Michael J. Astrue

January 19, 2011


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 disability insurance benefits and 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 his applications for benefits on September 13, 2007, alleging disability since January 1, 2007 due to bipolar disorder, sleep disturbance, anxiety, neuropathy of the left leg, and migraines. [JS 1-2]. In an August 3, 2009 hearing decision that constitutes the Commissioner's final decision in this matter, an administrative law judge ("ALJ") found that plaintiff had severe impairments consisting of a mood disorder and history of substance abuse. [Administrative Record ("AR") 16]. Based on the testimony of a vocational expert, the ALJ concluded that plaintiff retained the residual functional capacity ("RFC") to perform work available in significant numbers in the national economy. [AR 17].

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)).


Nonexamining physician

Plaintiff contends that the ALJ's decision is erroneous and is not based on substantial evidence because the ALJ made inconsistent findings with respect to the nonexamining source medical opinion and improperly rejected part of that opinion. [See JS 2-11].

On November 29, 2007, state agency medical consultant Judith McGee, Ph.D. completed a Psychiatric Review Technique ("PRT") form [AR 189-199] and a Mental Residual Functional Capacity Assessment. [AR 200-202]. Dr. McGee provided the only medical opinion regarding plaintiff's mental functional capacity in the record.

On the PRT form, Dr. McGee found that plaintiff had an affective disorder, specifically, bipolar disorder. [AR 189, 192]. For purposes of applying the criteria in the Listing of Disorders, Dr. McGee indicated that plaintiff had moderate restrictions of daily living; moderate difficulties in maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and no repeated, extended episodes of decompensation. [AR 197]. On the PRT form, Dr. McGee briefly summarized the medical evidence of record on which her conclusions were based. [See AR 199].

On the mental RFC assessment form, a "check the box" form for rating plaintiff's work-related mental functional abilities, Dr. McGee indicated that plaintiff was "not significantly limited" in the ability to remember locations and work-like procedures; understand and remember very short and simple instructions; carry out very short and simple instructions; perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances; sustain an ordinary routine without special supervision; make simple work-related decisions; respond appropriately to changes in the work setting; be aware of normal hazards and take appropriate precautions; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. [AR 200-201].

Dr. McGee indicated that plaintiff was "moderately limited" in the ability to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; complete a normal workday and workweek without interruptions from psychologically based symptoms; perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; ask simple questions or request assistance; accept instructions from, and respond appropriately to, criticism from supervisors; get along with co-workers or peers without distracting them or exhibiting behavioral extremes; maintain socially appropriate behavior and adhere to basic standards of neatness and cleanliness. [AR 201]. Under "Remarks," Dr. McGee added, "Claimant retains the ability to understand and remember simple instructions. Limited social interaction is indicated." [AR 201].

During the hearing, the ALJ posed a hypothetical question to the vocational expert concerning a person who matched plaintiff's vocational profile and retained the RFC for work at all exertional levels that was routine, repetitive, entry-level, minimally stressful, required no contact with the public, and required only superficial interpersonal contact with co-workers and supervisors. [AR 35]. The vocational expert testified that such a person could perform the unskilled jobs of warehouse worker, cleaner, and hand packer. [AR 36-37]. Plaintiff's counsel then asked the vocational expert if "a company would be likely to keep [a person] on as a worker" if that person was moderately limited in all ten of the areas indicated by Dr. McGee. [AR 37-38]. The vocational expert responded: "To be honest, I get concerned ...

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