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Tamiko Jones v. Michael J. Astrue

January 10, 2013


The opinion of the court was delivered by: David T. Bristow United States Magistrate Judge



Plaintiff filed a Complaint ("Complaint") on January 27, 2012, seeking review of the Commissioner's denial of her applications for Disability Insurance Benefits and Supplemental Security Income. In accordance with the Magistrate Judge's Case Management Order, the parties filed a Joint Stipulation ("Jt. Stip.") on September 27, 2012. Thus, this matter now is ready for decision.*fn1


As reflected in the Joint Stipulation, the disputed issues here are as follows:

1. Whether the Administrative Law Judge ("ALJ") failed to properly consider the opinions of plaintiff's treating psychiatrist Maria T. Salanga, M.D. ("Dr. Salanga") and examining psychiatrist Sohini P. Parikh, M.D. ("Dr. Parikh"). (Jt. Stip. 4-14.)

2. Whether the ALJ properly considered plaintiff's obesity. (Jt. Stip. 14-20.)

3. Whether the ALJ failed to pose a complete hypothetical to the vocational expert ("VE"). (Jt. Stip. 20-23.)

4. Whether the ALJ properly determined plaintiff could perform her past relevant work as a greeter. (Jt. Stip. 23-28.)

5. Whether the ALJ properly considered the lay witness statements of plaintiff's sister, Madhu Flanigan ("Ms. Flanigan"), her mother, Doris Somerville ("Ms. Somerville"), her landlord, Rebecca Wicks ("Ms. Wicks"), and her friend, Erica Haynes ("Ms. Haynes"). (Jt. Stip. 28-33.)


I. Reversal is warranted for consideration of Dr. Salanga's and Dr. Parikh's opinions.

Plaintiff argues that "the ALJ did not provide specific and legitimate reasons supported by substantial evidence for giving little weight" to the opinions of Dr. Salanga and Dr. Parikh. (Jt. Stip. 9.)

In evaluating medical opinions, the Ninth Circuit distinguishes among three types of physicians: (1) Treating physicians (who examine and treat), (2) examining physicians (who examine but do not treat), and (3) non-examining physicians (who neither examine nor treat). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). In general, more weight should be given to the opinion of a treating physician than to a non-treating physician, and more weight to the opinion of an examining physician than to a non-examining physician. Id. Although a treating physician's opinion is entitled to special weight, McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (as amended), "[t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability." Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). The weight given to a treating physician's opinion depends on whether it is supported by sufficient medical data and is consistent with other evidence in the record. See 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). When a treating or examining physician's opinion is not contradicted by another physician, it may only be rejected for "clear and convincing" reasons. Lester, 81 F.3d at 830. Where, as in this case, the treating physician's opinion is contradicted, it may not be rejected without "specific and legitimate reasons" supported by substantial evidence in the record. Id. at 830-31; see also Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008).

Between October 2001 and May 2009, Dr. Salanga treated plaintiff for her mental impairments at the San Bernardino County Department of Behavioral Health through the Vista Community Counseling ("VCC") program, with some break in treatment roughly between the years of 2004 and 2006. (See AR 265-299, AR 361-436, AR 466, AR 660-724, AR 1120, AR 1280-1321.) Through VCC, plaintiff also received treatment from other mental health professionals, including therapists and psychologists. (Id.)

On December 16, 2002, Dr. Salanga completed a Work Capacity Evaluation form, indicating plaintiff suffers from "marked" or "extreme" limitations in her ability to perform work-related activities on a day-to-day basis. (See AR 437-38.) On November 20, 2003, Dr. Salanga completed a Psychiatric Impairment Questionnaire, diagnosing plaintiff with major depressive disorder, assessing plaintiff with a Global Assessment of Functioning ("GAF") score of 45, and indicating her prognosis was "poor." (AR 466-73.) Again, Dr. Salanga indicated plaintiff suffers from moderate to marked limitations in her mental functioning and ability to sustain work-like activities. (Id.) On August 7, 2009, Dr. Salanga completed a second Psychiatric Impairment Questionnaire form, diagnosing plaintiff with major depressive disorder, "recurrent, severe with psychotic features," assessing a GAF score of 50, and indicating her prognosis was "guarded." (AR 1120-27.) For a third time, Dr. Salanga noted plaintiff would have moderate to marked limitations in her ability to perform work-like functions. (Id.)

On January 12, 2005, Dr. Parikh performed a complete psychiatric evaluation of plaintiff. (AR 551-57.) Dr. Parikh's evaluation included a review of plaintiff's VCC records from 2002 through 2004 and a mental status examination. (Id.) Dr. Parikh diagnosed plaintiff with major depression with psychotic features and assessed a GAF score of "55 to 60." (Id.) Dr. Parikh opined plaintiff "is able to understand, carryout, and remember simple instruction[,] . . . can follow complex instructions[, but] . . . could not interact appropriately with co-workers." (AR 556.) Dr. Parikh further concluded plaintiff "could not respond appropriately to the usual work settings in such matters as attendance and would have a hard time adjusting to changes in the work routine because of psychosis." (Id.)

In his decision, the ALJ gave "little weight to the conclusions of [Dr. Salanga], as her own examination findings or the medical record taken as a whole does not support her conclusions." (AR 1142.) The ALJ noted that plaintiff "has sought treatment on a monthly to quarterly basis only and this was for medication refill and review" and "has not been psychiatrically hospitalized." (AR 1142-43.) He concluded that it "would appear that the mild symptoms were successfully controlled with medication and not disabling." (AR 1143.)

With respect to Dr. Parikh's opinion, the ALJ found it "is of minimal value as the consultative examiner's examination results are not consistent with his conclusions." (AR 1143.) The ALJ further stated:

[Plaintiff] had almost no objective symptoms. Despite allegations that she could not focus she had good recall on the memory portion of the mental status examination. [Plaintiff] was coherent, oriented and had adequate intellectual functioning. Her report of hearing voices is inconsistent with prior reports that she did not hear voices or have hallucinations. The functional assessment of Dr. Parikh is completely inconsistent with the assessment of a [GAF] score of between 55 and 60. ...

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