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Rosales v. Colvin

United States District Court, Central District of California, Eastern Division

January 28, 2015

VICTOR MARTINEZ ROSALES, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM DECISION AND ORDER

STEPHEN J. HILLMAN UNITED, STATES MAGISTRATE JUDGE.

This matter is before the Court for review of the decision by the Commissioner of Social Security denying plaintiff’s applications for Disability Insurance Benefits and Supplemental Security Income. Pursuant to 28 U.S.C. § 636(c), the parties have consented that the case may be handled by the undersigned. The action arises under 42 U.S.C. § 405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The plaintiff and the defendant have filed their pleadings (Plaintiff’s Brief in Support of Complaint [“Plaintiff’s Brief”]; Memorandum in Opposition to Plaintiff’s Complaint; Plaintiff’s Statement of No Reply), and the defendant has filed the certified transcript of record. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.

I. BACKGROUND

On January 31, 2011, plaintiff Victor Martinez Rosales, Jr. filed applications for period of disability or Disability Insurance Benefits and for Supplemental Security Income, alleging an inability to work since September 1, 2009. (See 1 Administrative Record [“AR”] 173-88). On November 2, 2012 (following a hearing on September 6, 2012, see 1 AR 29-64), an Administrative Law Judge (“ALJ”) determined that plaintiff had the following severe impairments -- “rotator cuff tendonapathy with impingement syndrome on the left shoulder; right shoulder impingement; and depressive disorder” --but found that plaintiff was not disabled within the meaning of the Social Security Act. (See 1 AR 10-21).

Following the Appeals Council’s denial of plaintiff’s request for a review of the hearing decision (see 1 AR 1-3), plaintiff filed this action in this Court.

Plaintiff makes three challenges to the ALJ’s Decision. Plaintiff alleges that the ALJ erred in: (1) failing to properly consider the relevant medical evidence of record in assessing plaintiff’s residual functional capacity; (2) failing to properly assess plaintiff’s and plaintiff’s mother’s credibility; and (3) failing to properly consider the vocational expert’s testimony. After reviewing the matter, the Court concludes that the decision of the Commissioner should be affirmed.

II. DISCUSSION

ISSUE NO. 1:

Plaintiff contends that the ALJ erred in assessing plaintiff’s mental residual functional capacity (“RFC”).[1] Defendant asserts that the ALJ properly determined plaintiff’s mental RFC.

The ALJ found that plaintiff had the ability to perform light work[2] with some physical restrictions. With respect to plaintiff’s mental impairment, the ALJ found that plaintiff could sustain concentration, attention, persistence and pace in at least two-hour blocks of time; could perform complex and detailed tasks; could not do jobs with fast-paced production requirements or assembly line work; could respond and interact appropriately with supervisors; could have frequent contact with co-workers; and could not deal with the general public. (See AR 14).

Plaintiff contends that his worsening mental condition was shown by his Global Assessment of Functioning (“GAF”) scores assessed by doctors at the Veterans Administration Hospital (see Plaintiff’s Brief at 4, citing to 1 AR 354 [On April 13, 2010, plaintiff received a GAF score of 45], 1 AR 441 [On May 14, 2010, plaintiff received a GAF score of 60], 2 AR 530 [On October 6, 2010, plaintiff received a GAF score of 60], 2 AR 799 [On March 30, 2011, plaintiff received a GAF score of 48], 2 AR 864 [On May 31, 2011, plaintiff received a GAF score of 45], 2 AR 924 [On August 26, 2011, plaintiff received a GAF score of 50], 2 AR 907 [On September 25, 2011, plaintiff received a GAF score of 25], 2 AR 976, 979 [On September 26, 2011, plaintiff received GAF scores of 35 and 28], 2 AR 1005 [On December 27, 2011, plaintiff received a GAF score of 50], and 2 AR 991 [On January 24, 2012, plaintiff received a GAF score of 65].[3] However, the ALJ was not required to find a more restrictive mental RFC based solely on plaintiff’s GAF scores. See Deck v. Colvin, 2014 WL 7388792, *1 (9th Cir.)(“. . . [T]he [GAF] score is used for treatment purposes and not for rating a person’s ability to work.”); McFarland v. Astrue, 288 Fed.App. 357, *1 (9th Cir. 2008)(“The Commissioner has determined the GAF scale ‘does not have a direct correlation to the severity requirements in [the Social Security Administration’s mental disorders listings.’”); 65 Fed.Reg. 50746, 50764-65 (August 21, 2000).

Moreover, the ALJ’s decision to give little weight to plaintiff’s GAF scores in the forties because they were “generally assessed during periods of continued drug and medical non-compliance” and because “the record clearly shows that with sobriety and medication adherence, the claimant’s mental functioning is stable, with GAF scores in the the 50's and 60's, denoting mild symptoms or difficulty functioning” (see AR 19) was supported by the medical record. (See 1 AR 354-55 [On April 13, 2010 (when plaintiff’s GAF score was 45), plaintiff was found to be in early remission of his dependence for methamphetamine, alcohol abuse and marijuana abuse, and plaintiff was starting on a trial of Zoloft and Depakote]; 1 AR 441 [On May 14, 2010 (when plaintiff’s GAF score was 60), plaintiff was found to have benefitted from Depakote with respect to his anger/impulse control, and plaintiff reported to abstain from alcohol); 2 AR 530 [On October 6, 2010 (when plaintiff received a GAF score of 60), the plan was for plaintiff to continue with psychotropic medications]; 2 AR 797-99 [On March 30, 2011 (when plaintiff received a GAF score of 48), plaintiff reported he had taken himself off all medications, but he was restarted on his psychotropic medications]; 2 AR 864 [On May 31, 2011 (when plaintiff received a GAF score of 45), plaintiff admitted to nightly marijuana usage]; 2 AR 906-07 [On September 25, 2011 (when plaintiff received a GAF score of 25), plaintiff was assessed with substance induced mood disorder, and was found to be dependent on methamphetamine, THC and alcohol]; 2 AR 1002-05 [On December 27, 2011 (when plaintiff received a GAF score of 50), plaintiff reported to be compliant with his treatment regime, plaintiff’s anger and violence were noted to have improved, and the plan was to continue with his psychotropic medications]; and 2 AR 989-91 [On January 24, 2012 (when plaintiff received a GAF score of 65), plaintiff reported to be compliant with his treatment regime, and the plan was to continue with his psychotropic medications]).

To the extent that plaintiff contends that the ALJ erred in finding that plaintiff could interact with supervisors without limitations and could have frequent contact with co-workers, based on the progress note of an April 26, 2012 incident in which during a fight plaintiff’s brother hit plaintiff on the head with a metal object, which resulted in plaintiff suffering lacerations and needing stitches (see Plaintiff’s Brief at 4-5, citing 2 AR 1027), there is nothing in the note about plaintiff’s fight with his brother that undermines the ALJ’s determination that plaintiff could interact with supervisors without limitations and could have frequent contacts with co-workers. There is no indication in that progress note that the fight was relevant to plaintiff’s mental condition. See Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995)(“The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities”); see also Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)(“[I]n interpreting the evidence and developing the record, the ALJ does not need to ‘discuss every piece of evidence.’”). Indeed, when plaintiff testified at the administrative hearing about the fight with his brother, who plaintiff said was schizophrenic (see 1 AR 31), plaintiff portrayed it as a incident related to his brother’s violence rather than as indicative of plaintiff having problems interacting with others. (See 1 AR 37, 52-53). Moreover, as noted by the ALJ (see 1 AR 18), a progress note on April 18, 2012, approximately one week before plaintiff’s fight with his brother, reflected that plaintiff’s depression was noted as stable. (See 2 AR 1033).

ISSUE NO. 2:

Plaintiff asserts that the ALJ failed to properly assess plaintiff’s and his mother’s credibility. Defendant asserts that the ALJ properly found that plaintiff was not fully credible. Defendant further asserts that the ALJ properly found that plaintiff’s mother was only partially credible, and alternatively ...


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