Pelletier v. Astrue

Filing 23

ORDER Defendant's decision denying disability insurance benefits and supplemental security income (Tr. 16-27) is affirmed. The Clerk is directed to terminate this action. Signed by Judge David G Campbell on 1/18/12. (TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Marcel Ralph Pelletier,
Plaintiff,

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ORDER

vs.

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No. CV11-0815-PHX-DGC

Michael J. Astrue, Commissioner of Social
Security Administration,

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Defendant.

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Plaintiff Marcel Ralph Pelletier filed an application for disability insurance

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benefits under Title II of the Social Security Act on May 12, 2007. Tr. 16. He filed an

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application for supplemental security income under Title XVI of the Social Security Act

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on May 22, 2007. Id. In both applications, Plaintiff alleged a disability onset date of

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March 15, 2007. Id. The applications were denied initially on October 18, 2007, and

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upon reconsideration on June 12, 2008. Id. A hearing before an administrative law judge

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(“ALJ”) was held on October 7, 2009. Tr. 32-54. The ALJ issued his decision on

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December 18, 2009, finding that Plaintiff was not disabled for purposes of receiving

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disability insurance benefits and supplemental security income because he could perform

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work that existed in significant numbers. Tr. 27. This decision became Defendant’s final

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decision when the Appeals Council denied review. Tr. 1-3. Plaintiff commenced this

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action for judicial review pursuant to 42 U.S.C. § 405(g). For the reasons that follow, the

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Court will affirm Defendant’s decision.

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I.

Background.

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A.

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Plaintiff originally ruptured his right knee quadriceps tendon in July or August

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2005 and underwent surgical knee repair shortly thereafter. Tr. 367. His knee became

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infected and required hospitalization in October 2005.

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Plaintiff received surgery to drain his infected right knee and remove loose hardware

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from his right patella. Tr. 286. A January 2007 x-ray revealed “multiple patellar defects,

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presumably related to prior internal fixation hardware,” with fracture of the patella and

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surrounding soft tissue swelling and effusion. Tr. 305. The infection persisted, and

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Physical Impairments.

Tr. 352-53.

In May 2006,

Plaintiff received surgery in April 2007 to remove the patella. Tr. 314-15.

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In August 2007, a state agency physician, Dr. M. Desai, opined that Plaintiff could

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perform a range of medium work that allowed occasional use of the right lower

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extremity; occasional climbing of ramps and stairs, balancing, crouching, and crawling;

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frequent stooping, no kneeling or climbing ladders, ropes, and scaffolds; and avoiding

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hazards. Tr. 377-83. An examination in September 2007 showed that Plaintiff was

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limping and experiencing tenderness in his right knee, but that he had no deformity or

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effusion. Tr. 416. He had a good range of motion with normal strength. Tr. 417. His

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neurological examination was normal. Id.

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Dr. Fernando DeCastro, Plaintiff’s primary care physician, referred him to the

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Pain Center of Arizona, where he was initially evaluated by Dr. Ramoun D. Jones on

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September 5, 2007.

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(Tr. 432) and received a muscle relaxant through Dr. DeCastro (Tr. 441, 766).

Tr. 428-33.

Plaintiff was placed on narcotic pain medication

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A November 2007 x-ray and bone scan with Dr. Gregory Sirounian showed

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arthritis of the knee and moderate to severe degenerative changes, making Plaintiff a

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candidate for knee replacement surgery. Tr. 413, 415. Plaintiff had surgery for a right

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knee replacement on February 25, 2008. Tr. 551-53. After surgery, x-rays of Plaintiff’s

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right knee showed no problems. Tr. 506-07. He experienced some stiffness. Tr. 506.

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He reported that his knee pain was much better than prior to surgery, but he continued to
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use narcotic medication. Id.

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In June 2008, a nonexamining state agency physician, Dr. Thomas Glodek,

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completed a residual functional capacity (“RFC”) assessment form, in which he rated

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Plaintiff’s work ability at the light exertional level. Tr. 517-20. He opined that Plaintiff

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could perform a light range of work that allowed for occasionally climbing ramps and

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stairs; frequently stooping, balancing, crouching, kneeling, and crawling; never climbing

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ladders, ropes, and scaffolds; and avoiding hazards. Id.

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On July 7, 2008, Dr. DeCastro completed a RFC assessment. Tr. 560-61. He

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rated Plaintiff’s pain at “moderately severe,” which “seriously affects ability to function.”

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Tr. 560. Dr. DeCastro found that Plaintiff’s pain could reasonably be expected to result

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from objective clinical or diagnostic findings. Id. He marked that Plaintiff’s pain

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frequently interfered with attention and concentration, and constantly resulted in failure

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to complete tasks in a timely manner. Id. at 560-61. At Plaintiff’s hearing, the vocational

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expert testified that these limitations would preclude the ability to sustain work. Tr. 53.

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Plaintiff had a follow-up visit with Dr. Sirounian in February 2009. At the time,

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his right knee was reportedly doing better, though he experienced continued pain and

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stiffness. Tr. 602. He was ambulatory and full weight bearing. Id. X-rays of his right

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knee showed that the knee replacement components were well fixed and without

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problems; x-rays of his left knee showed moderate degenerative changes. Id. Plaintiff

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underwent a series of joint fluid injections to his left knee. Tr. 596-601.

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On July 6, 2009, Plaintiff saw Dr. DeCastro to check his weight.

Tr. 710.

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Plaintiff has a medical history of morbid obesity and has been dieting, walking, and doing

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acquatic exercises. Id.

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B.

Mental Impairments.

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In June 2007, Plaintiff was diagnosed with depressive and anxiety disorders at

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Jewish Family and Children’s Services. Tr. 481. He was assessed a global assessment

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functioning (“GAF”) rating of 60, which indicates moderate limitations but is at the top

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of the GAF scores for the moderate range. Id. The GAF scale ranges from 1 to 100 and
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reflects a person’s overall psychological, social, and occupational functioning.

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Morgan v. Comm’r of Soc. Sec., 169 F.3d 595, 598 n.1; Vargas v. Lambert, 159 F.3d

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1161, 1164 n.2 (9th Cir. 1998). A GAF score of 41 to 50 indicates severe symptoms or

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severe difficulty in functioning and a GAF score of 51 to 60 indicates moderate

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symptoms or moderate difficulty in functioning.

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Campbell prescribed antidepressants for Plaintiff. Tr. 481.

See id.

See

Nurse practitioner Gayle

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In August 2007, Plaintiff was examined by Dr. Marc Strickland. Tr. 389-94. Dr.

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Strickland reviewed Plaintiff’s history and performed a mental status examination. He

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diagnosed major depression and assessed a GAF rating of 63. Tr. 393. Dr. Strickland

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observed that “the likelihood of recovery at this time is poor because of inability for him

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to work due to his medical condition.” Id. He concluded, “I do not feel [Plaintiff] could

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perform work activities on a consistent basis or complete a normal workday and

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workweek, both due to his physical condition as well as his psychiatric condition.

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Furthermore, the stress encountered in a competitive work environment may deepen his

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depression.” Id.

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capacities, such as carrying out short and simple job instructions, responding

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appropriately to supervision, and getting along with coworkers. Tr. 384-87. He assessed

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moderate limitations in activities such as maintaining attention and concentration for

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extended periods, performing activities within a schedule, maintaining regular attendance

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and punctuality, sustaining an ordinary schedule without special supervision, working in

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proximity to others without being distracted by them, and completing a normal work

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week without interruptions from psychologically-based symptoms. Tr. 385-86. The

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vocational expert at Plaintiff’s hearing testified that the cumulative effect of the moderate

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limitations would preclude work on a sustained basis. Tr. 52.

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Dr. Strickland found that Plaintiff had mild limitations in some

In October 2007, a nonexamining psychologist, Dr. Charles Lawrence, rated

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Plaintiff’s mental impairments as not severe.

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Dr. Strickland’s opinion that Plaintiff could not work due to his physical condition as

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well as his psychological condition would be given “limited weight” because “Dr.
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Tr. 396.

Dr. Lawrence noted that

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Strickland did not perform a physical exam, nor would he appear qualified to do so, and

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he should not be assessing limitations based upon physical conditions.” Tr. 408.
C.

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ALJ Hearing.

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At his October 7, 2009 hearing, Plaintiff testified that he stopped work in 2007

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because his “kneecap shattered and the infection set in again, and was coming and oozing

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out, and I went to the doctor and they took me off from work, and then I got a letter that I

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was terminated because of my disability.” Tr. 40. The vocational expert, Dr. Mitchell,

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classified Plaintiff’s past relevant work and responded to a hypothetical question from the

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ALJ that mirrored Dr. Glodek’s assessment. See Tr. 516-23. Dr. Mitchell testified that

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Plaintiff could perform a job as a security guard at the light exertional level. Tr. 51. On

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cross examination by Plaintiff’s attorney, Dr. Mitchell testified that the cumulative effect

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of the psychological limitations assessed by Dr. Strickland would preclude sustained

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work. Tr. 52. Dr. Mitchell also testified that the physical limitations assessed by Dr.

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DeCastro would preclude sustained work. Tr. 53.

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II.

Standard of Review.

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Defendant’s decision to deny benefits will be vacated “only if it is not supported

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by substantial evidence or is based on legal error.” Robbins v. Soc. Sec. Admin.,

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466 F.3d 880, 882 (9th Cir. 2006). “‘Substantial evidence’ means more than a mere

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scintilla, but less than a preponderance, i.e., such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.” Id. To determine whether substantial

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evidence supports Defendant’s decision, the Court must review the administrative record

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as a whole, weighing both the evidence that supports the decision and the evidence that

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detracts from it. Reddick v. Charter, 157 F.3d 715, 720 (9th Cir. 1998). If there is

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sufficient evidence to support Defendant’s determination, the Court cannot substitute its

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own determination. See Young v. Sullivan, 911 F.2d 180, 184 (9th Cir. 1990).

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III.

Analysis.

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Plaintiff claims that the ALJ erred by (1) rejecting the assessment of the treating

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physician, Dr. DeCastro, (2) rejecting the assessment of the examining psychologist,
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Dr. Strickland, (3) rejecting Plaintiff’s symptom testimony, and (4) finding Plaintiff’s

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mental impairments “nonsevere.” Doc. 16, at 1-2. Plaintiff asks the Court to exercise its

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discretion to remand for a determination of disability benefits. Id. at 2.

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A.

The ALJ did not err by rejecting Dr. DeCastro’s pain assessment.

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Dr. DeCastro was Plaintiff’s treating physician.

He rated Plaintiff’s pain at

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“moderately severe,” which “seriously affects ability to function.” Tr. 560. He opined

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that Plaintiff’s pain would frequently interfere with attention and concentration, and that

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Plaintiff would constantly experience deficiencies of concentration, persistence, or pace

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resulting in failure to complete tasks in a timely manner. Tr. 561. Dr. Mitchell, the

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vocational expert at Plaintiff’s hearing, testified that the limitations noted by

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Dr. DeCastro in his July 2008 RFC assessment would prevent Plaintiff from sustaining

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work. Tr. 53. The ALJ considered Dr. DeCastro’s RFC assessment. Tr. 24. The ALJ

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gave Dr. DeCastro’s opinion “little weight as it appears to be based primarily on

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subjective complaints and is not supported by clinical signs, diagnostic examinations and

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other evidence[.]” Tr. 25.

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The opinions of treating physicians are given greater weight than the opinions of

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non-treating physicians. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996). An ALJ is

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not bound to accept a treating physician’s opinion; however, “[w]here the treating

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doctor’s opinion is not contradicted by another doctor, it may be rejected only for ‘clear

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and convincing’ reasons.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Where

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there is conflicting medical evidence, the ALJ must state specific and legitimate reasons

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supported by substantial evidence in the record. Orn v. Astrue, 495 F.3d 625, 632

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(9th Cir. 2007). The ALJ can meet this burden by setting out a detailed and thorough

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summary of the facts and conflicting clinical evidence, stating his own interpretation

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thereof, and making findings. Reddick, 157 F.3d at 725 (citing Magallanes v. Bowen,

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881 F.2d 747, 751 (9th Cir. 1989)).

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standard should apply “because the ALJ did not rely on any substantial evidence that

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contradicted the treating physician’s assessment.” Doc. 16, at 19. Plaintiff correctly

Plaintiff argues that the clear and convincing

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notes that the opinion of a nonexamining physician cannot by itself constitute substantial

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evidence that justifies the rejection of an examining or treating physician. Ryan v.

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Comm’r of Soc. Sec’y, 528 F.3d 1194, 1202 (9th Cir. 2008). The ALJ did rely in part on

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the opinion of Dr. Glodek, a nonexamining physician, that Plaintiff could perform

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physical activity at the light exertional level. Tr. 24. But he also comprehensively

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discussed medical evidence in the record that conflicted with Dr. DeCastro’s assessment,

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and therefore only needed to state specific and legitimate reasons for discounting Dr.

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DeCastro’s opinion.

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The ALJ noted that Dr. DeCastro’s opinion “appears to be based primarily on

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subjective complaints[.]” Tr. 25. Dr. DeCastro did not assess Plaintiff’s ability to do

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work-related physical activities and left much of the form blank.

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explained, “I do not do functional capacity evaluation.” Tr. 557. The ALJ need not

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accept the opinion of any physician, including a treating physician, if that opinion is

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“brief, conclusory, and inadequately supported by clinical findings.”

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Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Given that Dr. DeCastro did not perform a

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physical functional capacity evaluation, the ALJ reasonably inferred that the pain

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functional capacity assessment was based on Plaintiff’s subjective complaints.

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Batson v. Comm’r of Soc. Sec’y, 359 F.3d 1190, 1195 (9th Cir. 2004) (permitting an ALJ

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to give minimal weight to a treating physician’s opinion when it was based on subjective

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complaints without supportive objective evidence).

Tr. 557-59.

He

Thomas v.

See

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The ALJ cited clinical evidence that contradicted Dr. DeCastro’s assessment.

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Specifically, the ALJ considered a June 2008 treatment note following Plaintiff’s right

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knee surgery, which reported that the knee appeared “well-healed with no focal

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tenderness,” “minimal soft tissue swelling and no effusion or deformity,” and “no sign of

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anterior, posterior, varus, or valgus instability[.]”

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treatment note entered after Dr. DeCastro’s evaluation, Dr. Sirounian reported that the

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Plaintiff still had some pain and stiffness, but that he “was ambulatory and full weight

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bearing,” and that he now alleged that his left knee was starting to hurt him more than the
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Tr. 23-24.

In a February 2009

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right knee, though he had not yet sought specific treatment for the left knee. Tr. 24.

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“The [Plaintiff] denied locking and instability and the pain was essentially with weight

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bearing activities, and not much pain at rest.” Id.

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The ALJ discussed the facts and medical evidence in detail, provided his own

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interpretation of the evidence – that Dr. DeCastro’s opinion was inconsistent with the

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medical record – and made findings accordingly. See Reddick, 157 F.3d at 725. The

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Court concludes that the ALJ met his burden of providing specific and legitimate reasons

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for discounting Dr. DeCastro’s assessment.
B.

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The ALJ did not err by rejecting Dr. Strickland’s psychological

assessment.

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Dr. Strickland, Plaintiff’s examining psychologist, opined that Plaintiff could not

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perform work activities on a consistent basis or complete a normal workday and

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workweek “both due to his physical condition as well as his psychiatric condition.”

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Tr. 393. Dr. Mitchell, the vocational expert, testified that the cumulative effect of the

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moderate limitations assessed by Dr. Strickland would preclude sustained work. Tr. 52.

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Plaintiff argues that the ALJ erred by rejecting Dr. Strickland’s assessment. Doc. 16,

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at 23.

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1.

Plaintiff’s GAF Scores.

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First, Plaintiff argues that the ALJ should not have consulted medical texts outside

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the record and should not have treated the GAF scores as predictors of ability to work

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because they were not assessed in a work setting. Doc. 16, at 24. Plaintiff does not cite

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any evidence in the record indicating that the ALJ did either of these things, nor does the

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Court’s review of the ALJ’s opinion reveal support for either of Plaintiff’s assertions.

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The ALJ did not consider Plaintiff’s GAF scores in isolation, but rather considered

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Plaintiff’s entire mental health treatment record. Examinations indicated that Plaintiff

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was fully oriented and that his memory appeared normal. See, e.g., Tr. 447, 452, 772.

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Plaintiff had no problems with grooming, dressing, and hygiene, and was able to take

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care of his girlfriend’s children and household pets. Tr. 155-57. He could prepare simple
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meals, perform light chores, drive, shop, and manage his own finances. Id. He attended

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weekly club meetings, socialized, and attended appointments. Tr. 158. He did not have

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difficulty paying attention or following instructions. Tr. 159. Dr. Strickland noted that

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Plaintiff had linear and goal-directed thoughts, did not exhibit looseness of association,

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denied auditory or visual hallucinations, appeared to have intact recent memory, could

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think abstractly, and appeared to have good judgment. Id. Dr. Strickland noticed that

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Plaintiff’s past memory appeared somewhat suspect in that he recalled one out of three

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recent presidents, but could recite his phone number and birthday from memory. Id.

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Dr. Strickland diagnosed Plaintiff with a GAF scale score of 63, which indicates only

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mild symptoms or mild difficulty in social or occupational functioning. Tr. 19-20.

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Plaintiff’s mental health treatment record showed that he was generally assessed with a

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GAF scale score of 60. Tr. 20.

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The Court concludes that the ALJ properly gave little weight to Dr. Strickland’s

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opinion after finding it inconsistent with Plaintiff’s GAF scores and overall mental health

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treatment record. See Thomas v. Barnhart, 278 F.3d at 956-57 (an ALJ need not accept a

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treating doctor’s opinion that is unsupported by clinical findings).

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2.

Dr. Strickland’s Qualifications.

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Second, Plaintiff argues that the ALJ misread Dr. Strickland’s statement that

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Plaintiff could not perform work activities on a consistent basis or complete a normal

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workday and workweek “both due to his physical condition as well as his psychiatric

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condition.” Doc. 16, at 25; Tr. 393. The ALJ found that “Dr. Strickland’s qualification

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and specialty to make an assessment with regard to physical limits is unclear and this

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particular assessment is not given any weight.” Tr. 25. Plaintiff concedes that, as a

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psychologist, Dr. Strickland was not qualified to opine as to the effects of Plaintiff’s

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physical condition. Doc. 16, at 25. Plaintiff argues instead that the intended meaning of

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Dr. Strickland’s statement was that Plaintiff’s psychiatric impairments were intertwined

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with his physical impairments. Id.

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This Circuit has made clear that courts “must uphold the ALJ’s decision where the
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evidence is susceptible to more than one rational interpretation.” Andrews v. Shalala, 53

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F.3d 1035, 1039 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.

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1989)).

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statement. The ALJ properly discounted Dr. Strickland’s opinion because he was not

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qualified to make an assessment of Plaintiff’s physical condition.

The Court therefore defers to the ALJ’s interpretation of Dr. Strickland’s

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C.

The ALJ did not err by rejecting Plaintiff’s symptom testimony.

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The ALJ found that Plaintiff’s medically determinable impairments could

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reasonably be expected to cause his alleged symptoms, but that his statements concerning

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the intensity, persistence, and limiting effects of those symptoms were not credible.

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Tr. 22. Once Plaintiff produces objective medical evidence of an underlying impairment,

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the ALJ may not reject his subjective complaints based solely on lack of objective

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medical evidence to fully corroborate the alleged severity of the pain. Moisa v. Barnhart,

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367 F.3d 882, 884 (9th Cir. 2004). If the ALJ finds that Plaintiff’s pain testimony is not

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credible, the ALJ must make findings that support this conclusion, and the findings must

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be sufficiently specific to allow a reviewing court to conclude that the ALJ rejected the

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Plaintiff’s testimony on permissible grounds and did not arbitrarily discredit Plaintiff’s

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testimony. Id. “If there is no affirmative evidence that [Plaintiff] is malingering, the ALJ

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must provide clear and convincing reasons for rejecting [Plaintiff’s] testimony regarding

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the severity of symptoms.” Id. Plaintiff argues that the ALJ simply discussed the

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medical evidence without specifying how those findings contradicted Plaintiff’s

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testimony, and thus failed to meet the clear and convincing standard. Doc. 16, at 27.

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The ALJ considered evidence from Plaintiff’s treatment record, diagnostic

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examinations, and clinical signs that contradict his testimony. The treatment record

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indicates that after Plaintiff’s February 2008 right knee replacement surgery, he

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experienced some stiffness but that the pain was much better than prior to surgery.

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Tr. 22. Plaintiff still required his usual pain medications, but denied problems with the

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surgical incision and was ambulatory with no specific complaints. Id. Plaintiff then

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alleged that his left knee began to hurt him more than his right knee, and received
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injections on the left knee as well as medication that was effective in alleviating the pain

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symptoms.

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surgery was largely successful. His knee components were well-positioned and fixed

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without any evidence of problems after the surgery. Tr. 23. Clinical signs showed that

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Plaintiff appeared healthy and experienced no acute distress. Id. The right hip was

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normal, and the right knee had moderate to severe tenderness, but no swelling. Id.

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Although Plaintiff testified that he had back problems and was treated for back pain,

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Plaintiff’s spine appeared normal and had a full range of motion. Id. The record does not

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contain objective evidence of any severe back impairment beyond Plaintiff’s subjective

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complaints. Tr. 22. Additionally, Plaintiff’s daily activities are inconsistent with his pain

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testimony. He has no problems with grooming, dressing, and hygiene, and is able to

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prepare simple meals, perform light chores, and attend motorcycle club meetings and

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appointments. Tr. 24.

Id.

Diagnostic examinations revealed that Plaintiff’s knee replacement

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The Court concludes that the ALJ has stated clear and convincing reasons for

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finding Plaintiff not credible with respect to his statements regarding the intensity,

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persistence, and limiting effects of his symptoms. The Court is satisfied that the ALJ has

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provided sufficiently specific reasons showing that Plaintiff’s testimony was rejected on

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permissible grounds and was not arbitrarily discredited.

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D.

The ALJ did not err by finding Plaintiff’s mental impairments

“nonsevere.”

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Plaintiff claims that the ALJ erred by finding that Plaintiff’s mental impairments

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were “nonsevere” because Plaintiff’s mental impairments surpass a de minimus threshold.

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Tr. 16, at 28. Plaintiff argues that a GAF score of 60 reflects moderate, not nonsevere,

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limitations. Id.

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The ALJ assessed four function areas in determining that Plaintiff’s mental

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impairments were nonsevere: activities of daily living; social functioning; concentration,

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persistence, or pace; and episodes of decompensation. 20 C.F.R. § 404.1520a(c)(3).

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In daily living, the ALJ found that Plaintiff has no limitation. Tr. 19. He has no
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problem with grooming, dressing, and hygiene, and is able to take care of his girlfriend’s

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children and household pets. Id. He is able to prepare simple meals, perform light

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chores, drive a vehicle, shop, and manage finances. Id.

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In social functioning, the ALJ likewise found that Plaintiff has no limitation. Id.

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He lives with his girlfriend and her children, attends motorcycle club meetings once a

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week, socializes with others, and attends appointments. Id.

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In concentration, persistence, or pace, the ALJ found that Plaintiff has mild

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limitations. Id. In so finding, the ALJ noted that Plaintiff does not need reminders to

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take care of personal needs and grooming, or to take medication. Id. He does not have

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problems paying attention and can follow written and oral instructions, but cannot handle

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stress or changes to routine well. Id.

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In episodes of decompensation, the ALJ found that Plaintiff has experienced no
episodes of decompensation which have been of extended duration. Tr. 20.

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The ALJ then concluded that because Plaintiff’s medically determinable mental

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impairment causes no more than “mild” limitations in any of the first three functional

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areas and no episodes of decompensation in the fourth area, the mental impairment is

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nonsevere. Id. Because there is substantial evidence supporting the ALJ’s finding, the

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Court will not substitute its own determination.

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IT IS ORDERED:

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1.

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Defendant’s

decision

denying

disability

supplemental security income (Tr. 16-27) is affirmed.

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2.

The Clerk is directed to terminate this action.

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Dated this 18th day of January, 2012.

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insurance

benefits

and