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Monique Debbs v. Michael J. Astrue

November 13, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI, respectively, of the Social Security Act ("Act").*fn1 In her motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") erred by: (1) improperly evaluating the opinions from the treating and examining sources; (2) failing to find that plaintiff's impairments in combination meet or equal the criteria of one or more listed impairments; and (3) improperly determining plaintiff's residual functional capacity ("RFC"). (Pl.'s Mot. for Summ. J. at 15-29, Dkt. No. 15.) Additionally, plaintiff argues that the Social Security Administration's Appeals Council erred by failing to remand the case based on the additional medical evidence submitted to the Appeals Council after the ALJ's decision. (Id. at 16.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (Dkt. No. 16.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


A. Procedural Background

Plaintiff filed an application for DIB on June 19, 2007, and an application for SSI on June 28, 2007, alleging a disability onset date of December 28, 2006, in both applications. (Administrative Transcript ("AT") 17, 102-12.) The Social Security Administration denied both claims, initially on February 1, 2008, and upon reconsideration on October 2, 2008. (AT 17.) On November 10, 2008, plaintiff filed a request for a hearing before an ALJ, which was conducted on September 8, 2009. (Id.) Plaintiff, who was represented by counsel, was the only person to give testimony at the hearing. (AT 31-47.)

In a decision dated December 30, 2009, the ALJ determined that plaintiff was not disabled, for purposes of the Act, from December 28, 2006, through the date of the ALJ's decision.*fn3 (AT 17-26.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-3.) This action for judicial review ensued.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since December 28, 2006, the alleged onset date. (AT 19.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: depression, bipolar disorder, and schizophrenia. (Id.) At step three, the ALJ determined that plaintiff's impairments, whether considered alone or in combination, did not meet or medically equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). (AT 19-20.)

"a medically determinable physical or mental impairment." 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R. §§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

The ALJ further determined that plaintiff had the RFC to "perform a full range of work at all exertional levels," but that she also had non-exertional limitations that limited her to performing "simple unskilled work and detailed work." (AT 21.) In making this determination, the ALJ considered an RFC assessment of plaintiff conducted by Dr. John Onate, plaintiff's treating primary care provider, but accorded "little weight" to Dr. Onate's opinion. (AT 24-25.) Instead, the ALJ gave substantial weight to the opinions of two consultative examining psychologists, Drs. Lisa Perrine and Silvia Torrez, which the ALJ found to contradict Dr. Onate's more severe assessment. (AT 25.)

At step four, the ALJ found that plaintiff was capable of performing her past work as a fast food restaurant worker and telemarketer given her RFC. (AT 22, 25.) In addition, the ALJ determined that, given plaintiff's "age, education, work experience, and [RFC]," there were other jobs that exist in significant numbers in the national economy that plaintiff could also perform. (AT 25.)


The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards under 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Copeland v. Bowen, 861 F.2d 536, 538 (9th Cir. 1988) (citing Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 575-76 (9th Cir. 1988)). Substantial evidence means more than a mere scintilla of evidence, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996) (citing Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975)). "It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ's conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the ALJ's decision simply by isolating a specific quantum of supporting evidence. Id.; see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a finding of either disability or non-disability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).


A. Whether The ALJ Improperly Evaluated The Opinion Evidence Concerning Plaintiff's Mental Health Impairments Plaintiff argues that the ALJ erred by giving "little weight" to the opinion of Dr. Onate, plaintiff's primary care treating physician, and instead relying on the opinions of two consultative examining psychologists, Drs. Perrine and Torrez, to determine that plaintiff was not disabled. (Pl.'s Mot. for Summ. J. 26-29.) Defendant asserts that the ALJ properly evaluated these opinions as he did, because Dr. Onate's assessment "was inconsistent with all of the other opinions in the record" and "with Plaintiff's treatment records which indicated that her symptoms were generally fair or better and controlled by medication." (Def.'s Cross-Mot. for Summ. J. 8.)

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, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 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 830-31. 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, 1157 (9th Cir. 2001),*fn4 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, 1114 (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.

Here, the ALJ accorded "little weight" to Dr. Onate's August 24, 2009 opinion that plaintiff has a fair-to-poor ability to perform work-related activities in a regular work setting due to her mental impairments. (AT 24-25, 380.) The ALJ's stated reasons for giving this opinion "little weight" were:

[Dr. Onate's] findings are not consistent with the record and there are no objective findings to support his assessment. During consultative examination, claimant's GAF was assessed as 60, denoting mild to moderate symptoms. Her statements during examinations that she goes to the store daily, is able to take public transportation, would like to go to school and enjoys crossword puzzles and watching television programs do not support the restrictive limitations assessed by Dr. Onate. Further, during evaluation, Dr. Perrine opined that due to malingering, the test results were of questionable validity and did not reflect the claimant's true level of functioning. Dr. Torrez stated that the claimant does not appear to be suffering from a major mental disorder and appears to function adequately.

(AT 25.) In essence, the ALJ found that Dr. Onate's opinion was contradicted by the examining psychologists' opinions and the weight of the treatment records, which ordinarily constitute substantial evidence for an ALJ to reject or accord diminished weight to a treating provider's opinion. See Andrews, 53 F.3d at 1041 (citing Magallanes, 881 F.2d at 751, 755) ("Where the opinion of the claimant's treating physician is contradicted, and the opinion of a nontreating source is based on independent clinical findings that differ from those of the treating physician, the opinion of the nontreating source may itself be substantial evidence; it is then solely the province of the ALJ to resolve the conflict").

Nevertheless, plaintiff contends that the ALJ improperly relied on the opinions of Drs. Perrine and Torrez in reaching his determination that plaintiff is not disabled, because these opinions, for various reasons, do not constitute substantial evidence. (Pl.'s Mot. for Summ. J. 26-29.) Plaintiff's argument is not well taken.

1. Dr. Perrine's Opinion

On January 11, 2008, plaintiff underwent a consultative mental health evaluation by psychologist Dr. Perrine. (AT 270-74.) During this evaluation, Dr. Perrine interviewed plaintiff, reviewed plaintiff's prior treatment records, and performed a battery of tests to assess plaintiff's general mental status, ...

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