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Sharon Green v. Michael J. Astrue

July 15, 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 applications for disability insurance benefits and supplemental security income ("SSI") benefits. The parties have filed a Joint Stipulation ("JS") setting forth their contentions with respect to each disputed issue.

Administrative Proceedings

The parties are familiar with the procedural facts, which are summarized in the Joint Stipulation. [JS 2-3]. In a February 4, 2009 written hearing decision that constitutes the Commissioner's final decision in this case, an administrative law judge (the "ALJ") found that plaintiff had a severe impairment consisting of an anxiety disorder. [JS 2; Administrative Record ("AR") 11]. The ALJ further found that plaintiff retained the residual functional capacity ("RFC") for work at all exertional levels, and that she had non-exertional limitations restricting her to "entry level work" with "things rather than people." [AR 13]. The ALJ concluded that plaintiff's RFC precluded her from performing her past relevant work as a school bus driver and fast food worker. Relying on a vocational expert's testimony, the ALJ also found that plaintiff could perform unskilled jobs identified by the vocational expert that exist in significant numbers in the national economy. [AR 14-15]. Accordingly, the ALJ concluded that plaintiff was not disabled through the date of his decision.*fn1

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


Treating psychiatrist's opinion

Plaintiff contends that the ALJ erroneously failed to mention her treating psychiatrist, Ochuko G. Diamreyan, M.D., or to discuss Dr. Diamreyan's findings. [JS 5-6].

Where a treating doctor's opinion is not contradicted by that of another doctor, it may be rejected only for "clear and convincing" reasons. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating physician's opinion is contradicted by that of another doctor, the ALJ may not reject that opinion without providing specific, legitimate reasons, supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

On March 6, 2007, Dr. Diamreyan completed an "Initial Psychiatry Evaluation" report and a "Psychiatric Progress Note." [AR 197-202]. Plaintiff complained of a 4-year history of anxiety and depression, panic attacks, paranoia, mood swings, and variable sleep and interest levels. [AR 199]. She reported taking Paxil (paroxetine) and said she was seeing a therapist, Gabriele E. Roberts, a licensed marriage and family therapist. [AR 197; see AR 177-194].

Dr. Diamreyan noted that plaintiff exhibited anxiety, depressed mood, and irritability. She was cooperative and interactive. [AR 199, 202]. Dr. Diamreyan's mental status examination findings indicate that plaintiff had "fair" ability in some areas, such as insight, judgment, impulse control, memory, and attention. [AR 199]. Her speech, perception, thought process, and thought content were not impaired. Plaintiff reported being under "a lot of stress [-] daughter." [AR 199, 202]. Dr. Diamreyan assigned plaintiff a current and past year Global Assessment of Function ("GAF") score of 40. [AR 200].*fn2 Dr. Diamreyan gave plaintiff a diagnosis of panic disorder without agoraphobia (DSM-IV code 300.01) and described her prognosis as "guarded." [AR 200]. He continued plaintiff on Paxil and added Effexor (venlafaxine), which, like Paxil, is indicated for treatment of depression, panic disorder, and anxiety.*fn3 The record contains no other treatment reports from Dr. Diamreyan.

The treatment reports from plaintiff's therapist, Ms. Roberts, indicate that she treated plaintiff from 2003 until 2007. [AR 190]. Ms. Roberts diagnosed panic disorder with agoraphobia, depressive disorder not otherwise specified, and personality disorder not otherwise specified. [AR 189, 194]. She assigned plaintiff a GAF score of 49 or 50, indicating serious symptoms, such as suicidal ideation, severe obsessional rituals, frequent shoplifting, or any serious impairment in social, occupational, or school functioning.

In January 2007, Ms. Roberts completed a "Mental Disorder Questionnaire Form" indicating that plaintiff felt "weak" and "fatigued" after a panic attack and reported some difficulty interacting with others, but that she also reported the ability to perform routine daily activities. Asked to evaluate plaintiff's adaptation to work or work-like situations, Ms. Roberts said that plaintiff's "personality disorder may ...

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