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Christopher Gonzalez v. Carolyn W. Colvin

April 24, 2013

CHRISTOPHER GONZALEZ,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, GRANTING DEFENDANT'S CROSS- MOTION FOR SUMMARY JUDGMENT, AND DIRECTING ENTRY OF JUDGMENT IN FAVOR OF DEFENDANT (Docs. 19-20, 24)

Christopher Gonzalez ("Plaintiff") asserts he is entitled to supplemental security income under Title XVI of the Social Security Act, and seeks judicial review of the decision denying his application for benefits. For the reasons set forth below, the administrative decision is AFFIRMED; Plaintiff's motion for summary judgment (Docs. 19-20) is DENIED; and Defendant's cross-motion for summary judgment (Doc. 24) is GRANTED.

PROCEDURAL HISTORY*fn1

Plaintiff filed an application for supplemental security income on March 31, 2008, alleging disability since his birth on March 31, 1990. AR at 72-78. The Social Security Administration denied his claim initially and upon reconsideration. Id. at 20-31. After requesting a hearing, Plaintiff testified before an administrative law judge ("ALJ") on May 27, 2010. Id. at 12, 17. The ALJ determined 2 Plaintiff was not disabled under the Social Security Act, and issued an order denying benefits on July 3 16, 2010. Id. at 12-19. Plaintiff requested review by the Appeals Council of Social Security, which 4 found no reason to review the ALJ's decision and the request for review on November 10, 2011. Id. at 5 5-7. Therefore, the ALJ's determination became the decision of the Commissioner of Social Security 6 ("Commissioner"). 7

Plaintiff initiated this action on January 2, 2012, seeking review of the Commissioner's

8 decision. (Doc. 1). On December 4, 2012, Plaintiff filed a motion for summary judgment, asserting 9 the ALJ erred in finding he did not meet or medically equal the requirements of Listing 12.05(c), failing to credit the opinion of his treating physician, and evaluating credibility of his testimony and that of a third party. (Docs. 19-20). In addition, Plaintiff contends the ALJ "failed to credit the testimony of the vocational expert . . . in response to the hypothetical which accurately reflected [his] limitations." (Doc. 20 at 16). On February 1, 2013, Defendant filed a cross-motion for summary judgment, asserting the ALJ's decision is supported by substantial evidence and free of legal error. (Doc. 24). Plaintiff did not file a reply brief.

STANDARD OF REVIEW

District courts have a limited scope of judicial review for disability claims after a decision by the Commissioner to deny benefits under the Social Security Act. When reviewing findings of fact, such as whether a claimant was disabled, the Court must determine whether the Commissioner's decision is supported by substantial evidence or is based on legal error. 42 U.S.C. § 405(g). The ALJ's determination that the claimant is not disabled must be upheld by the Court if the proper legal standards were applied and the findings are supported by substantial evidence. See Sanchez v. Sec'y of Health & Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)). The record as a whole must be considered, because "[t]he court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion." Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).

DISABILITY BENEFITS

To qualify for benefits under the Social Security Act, Plaintiff must establish he is unable to 3 engage in substantial gainful activity due to a medically determinable physical or mental impairment 4 that has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. 5

§ 1382c(a)(3)(A). An individual shall be considered to have a disability only if: 6

his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B). The burden of proof is on a claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). Once a claimant establishes a prima facie case of disability, the burden shifts to the Commissioner to prove the claimant is able to engage in other substantial gainful employment. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th Cir. 1984).

DETERMINATION OF DISABILITY

To achieve uniform decisions, the Commissioner established a sequential five-step process for evaluating a claimant's alleged disability. 20 C.F.R. §§ 416.920 (a)-(f). The process requires the ALJ to determine whether Plaintiff (1) engaged in substantial gainful activity during the period of alleged disability, (2) had medically determinable severe impairments (3) that met or equaled one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1; and whether Plaintiff (4) had the residual functional capacity to perform to past relevant work or (5) the ability to perform other work existing in significant numbers at the state and national level. Id. The ALJ must consider objective medical evidence and opinion (hearing) testimony. 20 C.F.R. §§ 416.927, 416.929.

A. Relevant Medical Evidence

On February 16, 2005, Dr. Stanley Littleworth conducted a psychological evaluation to determine Plaintiff's "current intellectual and adaptive abilities." AR at 236-43. At the time, Plaintiff was enrolled in ninth grade special education classes, and his reading skills were at the fourth grade level. Id. at 237. Dr. Littleworth noted Plaintiff had prior intelligence tests in 2000 and 2003 when he was in elementary school and middle school. Id. at 238-39. He observed Plaintiff was "quite verbal" and was "emitting almost a continual pattern of speech." Id. at 241. In addition, he believed Plaintiff 2

"answer[ed] simple questions appropriately and in a reciprocal manner." Id. Dr. Littleworth opined, 3

Christopher is able to follow simple directions including test directions. His pencil grasp is awkward and he demonstrates slow visual-motor speed. Christopher was cooperative, and seemed to perceive the testing as a challenge for him to do his best. His attention and concentration skills were within normal limits, with the exception of one or two lapses in concentration when he seemed distracted by his own conversation.

Id. Dr. Littleworth administered the Wechsler Intelligence Scale for Children-Third Edition test, and 8 found Plaintiff had "a Verbal IQ of 76 (borderline range; 5th percentile), a Performance IQ of 70 9

(borderline range; 2nd percentile), and a Full Scale IQ of 73 (borderline range; 3rd percentile)." Id.

Dr. Steven Swanson performed a psychological evaluation on July 3, 2008. AR at 350-57. He reviewed Plaintiff's medical and school history, and noted Plaintiff "was a slow learner but graduated from high school" with "a certificate of completion rather than a high school diploma." Id. at 351. Also, Dr. Swanson noted Plaintiff was "independently able to complete all activities of daily living," although he did not have a driver's license. Id. at 351-52. Plaintiff told Dr. Swanson that he participated in sports while in high school-including football, wrestling, and track-and "enjoy[ed] going to the mall, spending time with friends, working out at the gym, throwing a football, and playing video games." Id. at 352.

Testing Plaintiff's memory, Dr. Swanson found Plaintiff's "[s]hort-term, recent, and remote memories were within normal limits based upon memory of three words (with and without time delay), what the claimant had for dinner the night before, what school he attended in the third grade, [and] the names of previous U.S. presidents." AR at 352-53. Dr. Swanson administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS-III"), and determined Plaintiff had a Verbal IQ of 83, a Performance IQ of 77 and a Full Scale IQ of 78. Id. at 353. According to Dr. Swanson, Plaintiff "maintained satisfactory attention and concentration throughout the testing and the results [were] . . . a valid representation of his current functioning." Id. He concluded Plaintiff was "able to maintain concentration or relate appropriately to others in a job setting." Id. at 356. Further, Dr. Swanson opined Plaintiff was able "to understand, carry out, and remember simple instructions," as well as "respond appropriately to usual work situations, such as attendance, safety, and the like." Id.

On July 22, 2008, Dr. Harvey Biala completed a psychiatric review technique form and mental

2 residual functional capacity assessment. AR at 358-73. Dr. Biala determined Plaintiff was "not 3 significantly" limited in his ability to remember locations and work-like procedures; to understand, 4 remember, and carry out very short and simple instructions; to maintain attention and concentration for 5 extended periods; to sustain an ordinary routine without special supervision; to make simple work-6 related decisions; and to perform activities within a schedule, maintain regular attendance, and be 7 punctual within customary tolerances. Id. at 358. He opined Plaintiff was "not significantly limited" 8 in all areas of social interaction and adaptation, but had "mild" limitation in social functioning. Id. at 9

359, 371. Dr. Biala believed Plaintiff was "moderately limited" with his ability to understand, remember, and carry out detailed instructions. Id. at 358. Dr. Biala concluded Plaintiff's cognition was "intact for simple tasks" and his concentration, persistence, and pace was "sufficient for 2 hour intervals, 8 hour day and 40 hour week." Id. at 360. In addition, Dr. Biala found Plaintiff had "no problems in [activities of daily living] or social skills," was "[s]ocially available for superficial contacts" and able to "adapt to workplace stressors." Id. at 360, 373.

On March 19, 2009, Dr. Marena Vea reviewed Plaintiff's medical record and agreed with the assessment that Plaintiff was able to perform simple, repetitive tasks. AR at 376.

Dr. Kamlesh Sandhu completed a medical source statement on March 25, 2010. AR at 490-91. Dr. Sandhu noted: "I have only seen this patient one time-on 1/27/10 for a medication follow up visit." Id. at 490 (emphasis in original). Dr. Sandhu noted: "it would appear he'd have difficulty remembering and carrying out technical and/or complex job instructions." Id. Dr. Sandhu believed it was difficult to assess Plaintiff's ability to deal with the public, because Plaintiff "was able to interact one on one . . . in [the] office setting. Id. (emphasis in original). Further, Dr. Sandhu noted she was unable to assess Plaintiff's ability to understand, remember and carry out simple one-or-two step job instructions; to maintain concentration and attention for two hour increments; and to handle his own funds. Id. at 490-91. Dr. Sandhu opined Plaintiff had "chronic problems that will not resolve," but believed Plaintiff's "ADHD symptoms . improved with medication." Id. at 491.

Dr. Sandhu provided a second medical source statement on June 3, 2010. AR at 513-14. She noted it was "[d]ifficult to assess fully" Plaintiff's abilities. Id. at 513. She noted Plaintiff "appears to have some trouble answering complex questions and has a concrete thinking style." Id. Given these 2 facts, Dr. Sandhu believed Plaintiff "likely would have difficulty relating well with others." Id. Also, 3 due to "difficulty with communication [and] concrete thinking style," Dr. Sandhu believed Plaintiff 4

"would likely not be able to work a full 8 hour day to day job." Id. She opined Plaintiff had a "poor 5 prognosis for developmental disorder/ mental retardation." Id. at 514. According to Dr. Sandhu, 6

Plaintiff was "doing fairly well with his attention and behavior." Id.

B. Hearing Testimony

The ALJ held an administrative hearing on May 27, 2010. AR at 519. Plaintiff and his mother, Lucia Rodriquez, testified regarding Plaintiff's abilities and limitations. In addition, Cheryl Chandler, a vocational expert, offered ...


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