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Richard Garcia v. Michael Astrue

September 23, 2011


The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge Ggh:009


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is GRANTED IN PART, the Commissioner's Cross Motion for Summary Judgment is DENIED IN PART, and this matter is remanded to the Commissioner for payment of SSI benefits, and judgment with respect to payment of SSI benefits only is entered for the plaintiff pursuant to sentence four of 42 U.S.C. § 405(g).


Plaintiff, born November 21, 1964, applied on July 21, 2004 for disability benefits. (Tr. at 14, 31, 57, 61, 247.) Plaintiff alleged he was unable to work due to bipolar disorder, anxiety and depression. (Tr. at 66.)*fn1 In denying plaintiff's application for benefits on July 27, 2009, ALJ James Mitchell made the following findings:*fn2

1. The claimant met the insured status requirements of the Social Security Act through September 30, 2001.

2. The claimant has not engaged in substantial gainful activity since August 5, 1997, the alleged onset date (CFR 404.1571 et seq., and 416.971 et seq).

3. Through the date last insured, there were no medical signs or laboratory findings to substantiate the existence of a medically determinable impairment (20 CFR 404.1520(c)).

4. The claimant was not under a disability, as defined in the Social Security Act, at any time from August 5, 1997, the alleged onset date, through September 30, 2001, the date last insured (20 CFR 404.1520(c)).

5. With regard to the claimant's Supplemental Security Income application, the claimant has the following severe impairments: osteoarthritis of the right thumb; partial thickness rotator cuff tear of the right shoulder; depression and anxiety (20 CFR 416.920(c)).

6. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.925 and 416.926).

7. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except he is slightly limited in the ability to pay attention, concentrate, understand and remember. Vision and hearing are unlimited. He is slightly limited in overhead, side and front reaching with the right dominant upper extremity, with slightly defined as 6 hours or less each shift. He is slightly limited in fine and gross manipulation with the right dominant upper extremity. He is slightly limited in the ability to perform simple, repetitive tasks. He can have unlimited contact with the public, requiring occasional supervision, and while bearing a slight to moderate degree of pain.

8. The claimant is unable to perform any past relevant work

(20 CFR 404.1565 and 416.965).

9. The claimant was born on November 21, 1964 and was 32 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. (20 CFR 404.1563 and 416.963).

10. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).

11. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

12. Considering the claimant's age, education work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569a, 419.969, and 41.969a).

13. The claimant has not been under a disability, as defined in the Social Security Act, from August 5, 1997 through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(Tr. at 16-18, 31-32.)

In summary, the ALJ found that there were no medical signs or laboratory findings for the existence of a medically determinable impairment through the date plaintiff was last insured (2001) to be substantiated. As to plaintiff's SSI application, while the ALJ found osteoarthritis of right thumb, right shoulder partial thickness rotator cuff tear and depression and anxiety to be severe impairments, he did not find plaintiff's claims of low back pain, asthma and dizziness to be supported as medically determined impairments. Despite the impairments he did find, the ALJ determined that the record described only mild restriction in daily living activities, mild difficulties in social functioning being maintained, and moderate difficulties in plaintiff's ability to maintain concentration, persistence and pace. (Tr. at 17-18). Plaintiff argues that his severe impairments, bipolar disorder, ADHD, partial thickness rotator cuff tear and osteorarthritis of his right thumb, limit his ability to function at any exertional level on the sustained basis necessary for continuous or full-time employment. Plaintiff's MSJ*fn3 (docket #20), p. 4. NO ENTITLEMENT TO DIB

The courts own review of the record confirms the ALJ's finding as to the question of Social Security Disability Insurance Benefits. As noted, plaintiff was last insured through September 30, 2001. (Tr. at 17, 80). As the ALJ stated, "there is no medical evidence dated prior to July 22, 2003, nearly two years after his date last insured." (Tr. at 17). The file reflects that, as the ALJ observed, plaintiff initially sought psychiatric treatment on June 15, 2004, and although plaintiff reported that his shoulder and thumb impairments began prior to 2001, plaintiff has not provided adequate support for this claim. (Tr. at 17, 194-195). "The claimant has the burden of proving that he became disabled prior to the expiration of his disability insured status." Macri v. Chater, 93 F.3d 540, 543 (1996). Plaintiff has failed to meet this burden and plaintiff's Motion for Summary judgment is DENIED with respect to Title II DIB payments.


Plaintiff has raised the following issues: A. Whether the ALJ failed to credit the treating opinion of Drs. Saleem and Hidalgo; the examining opinions of Drs. Thurstone*fn4 and Johnson; and the non-examining opinions of the state agency physicians without a legitimate basis for doing so; B. Whether the ALJ failed to properly credit the testimony of the VE in response to questions which accurately reflected plaintiff's functional limitations; C. Whether the ALJ failed to ask the VE whether his testimony was consistent with the Dictionary of Occupational Titles (DOT) and therefore was not justified in relying upon his testimony. LEGAL STANDARDS

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).


A. Whether the ALJ failed, without a legitimate basis, to credit the treating opinion of Drs. Saleem and Hidalgo; the examining opinions of Drs. Thurstone and Johnson; and the non-examining opinions of the state agency physicians

Plaintiff contends that the ALJ rejected the medical opinion in the record of every physician -- treating, examining, and non-examining -- instead relying on his own "undocumented medical 'expertise'" in combination with "his personal observations at the hearing." MSJ,*fn5 p. 21. Plaintiff points out that the ALJ "opined that 'his observations of the claimant at the hearing were that he had no observable mental or physical difficulties." Id., citing Tr. at 31. Citing Perminter v. Heckler, plaintiff argues that in the Ninth Circuit, an ALJ's reliance on personal observations at a hearing has been condemned as "sit and squirm" jurisprudence. 765 F.2d 870, 872 (9th Cir. 1985). The Ninth Circuit determined that benefits cannot be denied based on an ALJ's observation when a claimant's "statements to the contrary...are supported by objective evidence." Id., at 872, citing Coats v. Heckler, 733 F.2d 1338, 1341 (9th Cir.1984).

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).*fn6 Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996).

To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons. Lester , 81 F.3d at 831.*fn7 In contrast, a contradicted opinion of a treating or examining professional may be rejected for "specific and legitimate" reasons. Lester, 81 F.3d at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir. 2001),*fn8 except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

Treating Opinions of Drs. Saleem and Hidalgo Plaintiff notes the initial psychiatric report by Dr. Hala Saleem, one of plaintiff's two treating psychiatrists,*fn9 dated June 15, 2004, wherein plaintiff reported anxiety, difficulty concentrating and socializing, that he got into arguments. (Tr. 194). He reported that he was taking Prozac and Klonopin. (Id.) Dr. Saleem's Axis I diagnoses was to rule out Bipolar Disorder NOS and an Axis V GAF of 60. (Tr. at 195). As noted below, with respect to the GAF of 45 at which plaintiff was assessed by the examining psychiatrist some eight months later, the ALJ cited the later GAF as "contradicted" by the treating psychiatrist's GAF of 60 assessment. (Tr. at 21). A particular GAF score is only of limited assistance, however.

As a global reference intended to aid in treatment, 'a GAF score does not itself necessarily reveal a particular type of limitation and is not an assessment of a claimant's ability to work.' Stokes v. Astrue, No. 8:08-cv-1657-T23HTS, 2009 WL 2216785, at *7 (M.D.Fla. July 23, 2009) (citations omitted). Indeed, 'GAF scores are of very limited usefulness due to their failure to translate into concrete functional limitations.' Id.; see Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed.Reg. 50746, 50764-65 (Aug. 21, 2000) ("The GAF scale ... does not have a direct correlation to the severity requirements in our mental disorders listings.").

Hernandez v. Astrue, 2010 WL 234954 (D. Ariz. 2010). A GAF score is merely a snapshot in time. Mann v. Astrue, 2009 WL 2246350 (C.D. Cal. 2009). "While a GAF score may be of considerable help to the ALJ in formulating the RFC, it is not essential to the RFC's accuracy." Howard v. Commissioner of Social Sec., 276 F.3d 235, 241 (6th Cir. 2002). GAF scores do not dispositively assess a plaintiff's ability to work. However, multiple GAFs assessed over a period of time, conducted by the same or different examiner, are more instructive than the singular snapshot in obtaining a picture of the mental/emotional limitations.

The ALJ correctly stated the following with respect to the June 15, 2004, initial psychiatric ...

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