Ronnie Jackson v. Michael J. Astrue

Filing 18

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The ALJ's assessment of Dr. Dudley's opinions does not warrant a remand or reversal. The decision of the Commissioner of Social Security is affirmed. See memorandum for details. (hr)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. SUMMARY On March 30, 2009, Ronnie Jackson ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's application for benefits. The parties have filed a consent to proceed before a United States Magistrate Judge. This matter is before the Court on the parties' cross motions for summary judgment, respectively ("Plaintiff's Motion") and ("Defendant's Motion"). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; March 31, 2009 Case Management Order ¶ 5. /// v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ RONNIE JACKSON, Plaintiff, ) Case No. CV 09-2089 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

1

Based on the record as a whole and the applicable law, the decision of the

2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ("ALJ") are supported by substantial evidence and are free from material error.1 4 II. 5 6 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION On October 26, 2005, plaintiff protectively filed an application for

7 Supplemental Security Income (SSI) benefits. (Administrative Record ("AR") 468 52). Plaintiff asserted that he became disabled in June 1993, due to bleeding 9 ulcers, a head injury, back problems, asthma/bronchial problems, manic 10 depression, a poor memory/forgetfulness, poor eyesight and diabetes. (AR 61, 11 64). The ALJ examined the medical record and heard testimony from plaintiff, 12 who was represented by counsel, on September 5, 2007. (AR 197-207). 13 On December 20, 2007, the ALJ determined that plaintiff was not disabled 14 through the date of the decision. (AR 21-26). Specifically, the ALJ found: 15 (1) plaintiff has had the following medically determinable impairments: diabetes, 16 a depressive disorder, and borderline intellectual functioning (AR 23); and 17 (2) plaintiff has not had an impairment or combination of impairments that has 18 significantly limited (or is expected to significantly limit) the ability to perform 19 basic work-related activities for 12 consecutive months and therefore has not had a 20 severe impairment or combination of impairments (AR 24). 21 23 /// 24 /// 25 26 27 28
The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2
1

The Appeals Council denied plaintiff's application for review on February

22 13, 2009. (AR 5-7).

1 III. 2 3

APPLICABLE LEGAL STANDARDS A. Sequential Evaluation Process To qualify for disability benefits, a claimant must show that he is unable to

4 engage in any substantial gainful activity by reason of a medically determinable 5 physical or mental impairment which can be expected to result in death or which 6 has lasted or can be expected to last for a continuous period of at least twelve 7 months.2 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. 8 § 423(d)(1)(A)). The impairment must render the claimant incapable of 9 performing the work he previously performed and incapable of performing any 10 other substantial gainful employment that exists in the national economy. Tackett 11 v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 12 14 15 16 17 18 19 20 21 22 23 /// 24 25 26 27 28
The requirement that an impairment must have lasted or must be expected to last for a continuous period of at least 12 months is referred to as the "duration requirement." 20 C.F.R. § 416.909. To be "sufficiently severe," the medically determinable impairment or combination of impairments must, among other things, meet the duration requirement. 20 C.F.R. § 416.920(a)(4)(ii). See supra note 2. 3
3 2

In assessing whether a claimant is disabled, an ALJ is to follow a five-step (1) (2) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. Is the claimant's alleged impairment sufficiently severe to limit his ability to work? If not, the claimant is not disabled. If so, proceed to step three.3 (3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.

13 sequential evaluation process:

1 2 3 4 5 6 7 8

(4)

Does the claimant possess the residual functional capacity to perform his past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

(5)

Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow him to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.

9 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 10 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 11 The claimant has the burden of proof at steps one through four, and the 12 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 13 F.3d 949, 953-54 (citing Tackett); see also Burch, 400 F.3d at 679 (claimant 14 carries initial burden of proving disability). 15 16 B. Standard of Review Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

17 benefits only if it is not supported by substantial evidence or if it is based on legal 18 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 19 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 20 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable 21 mind might accept as adequate to support a conclusion." Richardson v. Perales, 22 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 23 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 24 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 25 To determine whether substantial evidence supports a finding, a court must 26 "`consider the record as a whole, weighing both evidence that supports and 27 evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. 28 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d
4

1 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 2 or reversing the ALJ's conclusion, a court may not substitute its judgment for that 3 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 5 C. Step Two of the Sequential Evaluation Process Step two is "a de minimis screening device [used] to dispose of groundless

6 claims." Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Applying the 7 normal standard of review to the requirements of step two, a court must determine 8 whether an ALJ had substantial evidence to find that the medical evidence clearly 9 established that the claimant did not have a medically severe impairment or 10 combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) 11 (citation omitted). 12 An impairment is severe if it meets the duration requirement and 13 significantly limits one's ability to perform basic work activities. 20 C.F.R. 14 §§ 416.920(a)(4)(ii) 416.920(c). An impairment is "non-severe" if it does not 15 meet the duration requirement and/or does not significantly limit one's physical or 16 mental ability to do basic work activities. 20 C.F.R. § 416.921(a). Basic work 17 activities are the "abilities and aptitudes necessary to do most jobs," such as 18 (1) physical functions like walking, standing, sitting, lifting, pushing, pulling, 19 reaching, carrying, and handling; (2) the capacity for seeing, hearing, and 20 speaking; (3) understanding, carrying out, and remembering simple instructions; 21 (4) the use of judgment; (5) responding appropriately to supervision, co-workers, 22 and usual work situations; and (6) dealing with changes in a routine work setting. 23 20 C.F.R. § 416.921(b). 24 IV. 25 26 27 PERTINENT FACTS A. Pertinent Medical Evidence 1. Medical Records

The record contains medical records from a Los Angeles County

28 Department of Mental Health facility, Augustus Hawkins, for the period of April
5

1 22, 2005 to September 7, 2005.4 (AR 161-75). As detailed below, the records 2 reflect that plaintiff visited such facility twice during the foregoing time period. 3 An initial assessment form dated April 22, 2005, and signed by clinical 4 psychologist, Dr. Karen Levine, reflects the following: Plaintiff presented with 5 complaints of the need to relieve stress, insomnia, and memory problems he had 6 reportedly suffered from for many years, possibly subsequent to a head injury. 7 (AR 162). He reported that he had been hospitalized in 1978 and/or 1981 after 8 PCP/alcohol-related incidents and could not work. (AR 162). Plaintiff was not 9 then on any medication but had reportedly taken psychotropic medications in the 10 late 1970s in the hospital. (AR 163). Dr. Levine initially diagnosed plaintiff with 11 diabetes and a psychotic disorder, not otherwise specified, and assigned him a 12 Global Assessment Functioning ("GAF") score of 55.5 13 Treatment notes for April 22, 2005 report some of the same information 14 reflected on the initial assessment form and further reflect the following: Plaintiff 15 reportedly heard voices and saw "a black hole." (AR 174). The voices told him to 16 pull out his teeth with his pliers, which he had done. (AR 175). He had been 17 diagnosed with manic depression in 1993. (AR 174). He also complained of 18 decreased appetite and ability to concentrate. (AR 175). He wanted to apply for 19 /// 20 21
4

22 administrative hearing that he visited the facility on a monthly basis and had last visited it two 23 weeks before the hearing. (AR 202). 24 25 26 27 28
A GAF score is the clinician's judgment of the individual's overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed. 2000) (hereinafter "DSM IV"). A GAF of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." DSM IV at 34. 6
5

As discussed in Part IIIB, infra, plaintiff testified at the September 5, 2007

1 SSI, however was told by the therapist that they could not help him with obtaining 2 SSI until he had been in treatment for 9-12 months. (AR 175). 3 Treatment notes for May 9, 2005, reflect the following: Plaintiff presented 4 ten (10) minutes late, agitated because his bus had broken down and he had not 5 wanted to be late. (AR 170). He stated that he had not been sleeping well and was 6 very upset because his granddaughter had been burned in a scalding bath and he 7 had spent every night of the last few weeks at her hospital bedside. (AR 170). He 8 was distressed over his daughter's attitude toward his granddaughter's injury. (AR 9 170). He had the urge to pull his teeth out with pliers. (AR 170). He was 10 otherwise lucid and pleasant. (AR 170). The therapist asked plaintiff to come in 11 on Friday, May 13, 2005, for a medical evaluation in light of his urge to pull out 12 his teeth. (AR 170). A follow-up appointment was scheduled. (AR 170). 13 15 17 Treatment notes dated May 25, 2005, reflect that plaintiff was a no show Treatment notes dated June 1, 2005, reflect that plaintiff was a no show. Treatment notes from Dr. Levine dated September 7, 2005, reflect that 14 and did not call. (AR 170). 16 (AR 173). 18 plaintiff's case was closed as plaintiff had not appeared at therapy and follow-up 19 appointments scheduled for May 25, 2005 and June 1, 2005, and that the last 20 contact with him had been on May 9, 2005. The discharge summary report 21 reflects that plaintiff had been diagnosed with a psychotic disorder, not otherwise 22 specified, alcohol dependence in remission, a head injury, and diabetes. (AR 172). 23 24 2. Consultative Examiners' Reports On January 13, 2006, consultative examining physician, Dr. Sean To,

25 generated a summary report of an independent internal medicine evaluation of 26 plaintiff conducted on the same date. (AR 122-27). As to plaintiff's mental 27 status, Dr. To reported: "[Plaintiff] is oriented to time, place, person and purpose. 28 ///
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1 Memory appears to be intact, as the [plaintiff] is able to recall relevant data 2 pertaining to the current medical condition." (AR 125). 3 On January 19, 2006, consultative examining physician, Dr. Steven I. 4 Brawer, generated a summary report of a psychological evaluation of plaintiff 5 performed on the same date. (AR 130-35). Plaintiff reported to Dr. Brawer that 6 he was mildly depressed, secondary to his medical condition, stating that he "ha[s] 7 chronic pain and [] get[s] into arguments for no reason." (AR 131). Plaintiff 8 reported no psychiatric hospitalizations and indicated that he had not received 9 outpatient psychiatric care or psychotherapy. (AR 131). Plaintiff denied ever 10 having experienced any unusual perceptual phenomena. (AR 132). Dr. Brawer 11 noted no signs of perceptual disturbance or misinterpretations of consensual 12 reality. (AR 132). Plaintiff demonstrated an adequate attention span for 13 answering interview questions and following test instructions, and during 14 performance tasks, was able to sustain concentration and work without distraction 15 for spans of up to two minutes at a time. (AR 132). Based upon the results of 16 tests performed by Dr. Brawer and the clinical data, Dr. Brawer opined that: 17 (1) given the report of occasional depressed mood, sadness over losses, and 18 irritability, plaintiff had a depressive disorder, secondary to his general medical 19 condition; (2) plaintiff's intellectual functioning was estimated to be in the 20 Borderline Range, based upon tests which reflected that he had an IQ of 74. (AR 21 134). In terms of functionality, Dr. Brawer opined: 22 23 24 25 26 27 28 Based on test results and behavioral presentation, the claimant would be able to learn a simple, repetitive task but would have difficulty performing detailed, varied or complex tasks. His ability to sustain attention and concentration for extended periods of time may be mildly diminished, due to emotional and cognitive factors. During testing, the claimant demonstrated adequate-to-mildly diminished attention, concentration, persistence and pace in completing tasks.
8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22

From a psychological point of view, the claimant displays symptoms of depression and chronic pain complaints that may result in mild impairment to effectively manage customary work stresses and persist for a regular workday. Given his reported work history and current activities of daily living, the claimant seems capable of following a routine and organizing himself for basic tasks. However, given his dysphoria and somatic complaints, the claimant may have difficulty sustaining stamina and motivation. The appropriate medical specialist should evaluate the extent of any physical limitation upon work functioning. The claimant would be able to work independently. Given his report of irritability and proneness to interpersonal conflict, the claimant may have mild limitations in sustaining cooperative relationships with coworkers and supervisors. He may function most optimally in a semi-isolated work setting. The claimant relates in an appropriate manner with supportive authority figures, as demonstrated by his behavior with this evaluator. The claimant appears capable for the self-management of funds, given test results and self-report of ADL's. 3. Non-Examining Consultant Reports

20 (AR 134-35). On April 4, 2006, non-examining medical consultant Dr. C.H. Dudley,

23 completed a Psychiatric Review Technique Form. (AR 144-57). In response to a 24 question which called for "medical disposition" and included as possible 25 responses that (i) the claimant did not have a medically determinable impairment; 26 (ii) the claimant did not have a severe impairment; (iii) the claimant had a severe 27 impairment which was not expected to last 12 months; and (iv) a residual 28 functional capacity assessment was necessary, Dr. Dudley indicated that a residual
9

1 functional capacity assessment was necessary.6 (AR 144). In terms of functional 2 limitations, Dr. Dudley opined that plaintiff had mild restrictions of activities of 3 daily living, mild difficulties in maintaining social functioning, mild difficulties in 4 maintaining concentration, persistence, or pace, and noted that there was 5 insufficient evidence to assess whether plaintiff had suffered episodes of 6 decompensation of extended duration. (AR 154). Dr. Dudley further noted in 7 summary, that plaintiff retained adequate cognitive ability for simple tasks, cross8 referencing a Mental Residual Functional Capacity Assessment ("MRFC 9 Assessment"). (AR 156). 10 On April 4, 2006, non-examining medical consultant Dr. Dudley completed 11 an MRFC Assessment which reflects that plaintiff was moderately limited in his 12 ability to understand, remember, and carry out detailed instructions but otherwise 13 was not significantly limited in understanding and memory, sustained 14 concentration and persistence, social interaction, and adaptation. (AR 137-39). 15 Dr. Dudley elaborated as follow: 16 17 18 19 20 21 22 24 /// 25 26
6

Claimant retains ability to understand, remember and follow simple instructions, moderate difficulty with detailed, complex tasks, able to maintain adequate concentration, persistence and pace doing simple tasks, complete normal workday/workweek without significant interruptions from psych based symptoms, interact appropriately with supervisors, co-workers and the public, adapt to requirements of normal workplace.

23 (AR 139).

27 sequential evaluation process, i.e., after an assessment has been made that an impairment is 28 sufficiently severe at step two to proceed with the sequential evaluation process. See 20 C.F.R.
§ 416.920(e). 10

A residual functional capacity assessment is typically performed at step four of the

1 2

B.

Administrative Hearing

At the September 5, 2007 administrative hearing, plaintiff testified: The

3 primary problem that has kept him from working the last couple of years was his 4 inability to concentrate. (AR 201). He had received mental health treatment two 5 weeks before the hearing at Augustus Hawkins. (AR 201). He had been there 6 every month. (AR 201). 7 The ALJ then advised plaintiff's counsel that the record ended in 2005 and 8 that the only recent record was a January 2006 consultative examination, and 9 inquired whether counsel had updated records. (AR 201). Counsel indicated that 10 he had provided all records received based upon a July 2007 request. (AR 202). 11 The ALJ noted that if, as plaintiff had testified, he had been seeing someone at 12 Augustus Hawkins on a monthly basis, there should be some record or treating 13 source opinion that would be relevant. (AR 202). The ALJ advised plaintiff's 14 counsel that he would give counsel thirty (30) days to provide updated records, 15 and that if such records were not provided, the ALJ would make a decision based 16 on what was then before the ALJ. (AR 202). 17 Plaintiff went on to testify: He had pulled out his teeth with pliers because 18 voices commanded him to do so and he feared he would "end up down in [an 19 unknown] hole" if he did not do what the voices told him. (AR 202-03). 20 The ALJ then advised plaintiff's counsel that, as far as pursuing the 21 foregoing line of questioning regarding plaintiff's hearing of voices, the ALJ 22 "[saw] the level of severity," but that the April 2005 Augustus Hawkins records, 23 noted that they could not help plaintiff get disability benefits relating to his 24 complaints of hearing voices unless he remained in treatment from nine (9) to 25 twelve (12) months. (AR 204). The ALJ indicated that this way why the ALJ 26 wanted to see the longitudinal record. (AR 204). Plaintiff's counsel 27 acknowledged the ALJ's comments, reaffirming that he had thirty (30) days to 28 provide the updated Augustus Hawkins records, and indicated that he would try to
11

1 get such records. (AR 204). The ALJ further explained that absent such records, 2 all the ALJ had to rely upon was the consultative psychologist who had opined 3 that plaintiff had only mild limitations. (AR 204). The ALJ again emphasized the 4 need for plaintiff's counsel to obtain the updated records from Augustus Hawkins. 5 (AR 204). The ALJ went so far as to state that plaintiff would be provided with an 6 envelope addressed to the ALJ that plaintiff could then give to Augustus Hawkins 7 to send the ALJ plaintiff's updated records. (AR 205). The ALJ explained to 8 plaintiff that plaintiff should try to get the records to the ALJ by using the 9 envelope and that plaintiff's counsel would also try to get the records, so that there 10 were two ways the ALJ could get the records. (AR 205). The ALJ emphasized 11 multiple times how important it was for the ALJ to get such records and that if the 12 ALJ did not get those records, the ALJ had no choice in the case as without 13 medical evidence, the ALJ could not "help [plaintiff] out." (AR 205-07). 14 15 C. The ALJ's Decision Relative to Plaintiff's Mental Impairments As noted above, the ALJ determined that plaintiff has not had an

16 impairment or combination of impairments that has significantly limited (or is 17 expected to significantly limit) the ability to perform basic work-related activities 18 for twelve (12) consecutive months, and therefore found that plaintiff has not had 19 a severe impairment or combination of impairments. (AR 24). In discussing 20 plaintiff's mental limitations, the ALJ noted that although plaintiff had been asked 21 at the administrative hearing to provide updated mental health treatment records, 22 none had been provided. (AR 25). 23 As to plaintiff's mental impairments, the ALJ acknowledged that Dr. 24 Brawer diagnosed plaintiff with a depressive disorder and borderline intellectual 25 functioning. (AR 23) (citing Exhibit 3F/5 [AR 134 ­ Dr. Brawer's report]). She 26 noted that the record otherwise documented only fleeting mental health treatment 27 in 2005 and that such treatment did not document persistent symptoms and 28 ///
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1 treatment consistent with the duration requirement. (AR 23) (citing Exhibit 7F 2 [AR 161-75 ­ Augustus Hawkins records]); See supra notes 2, 3. 3 The ALJ discussed the opinions of Drs. Dudley and Brawer regarding any 4 functional limitations arising from plaintiff's mental impairments. (AR 25). The 5 ALJ noted that Dr. Dudley (referred to as a State Agency psychiatrist) had opined 6 that plaintiff had no significant limitation in performing work-related functions 7 except for moderate impairment with respect to understanding, remembering, and 8 carrying out detailed instructions, and that Dr. Brawer described plaintiff's mental 9 residual functional capacity in comparable terms . (AR 25) (citing Exhibit 4F/1 10 [AR 137-39 ­ Dr. Dudley's MRFC Assessment] and Exhibit 3F/5-6 [AR 134-35 ­ 11 Dr. Brawer's report]). 12 In accordance with regulations governing an ALJ's determination of the 13 severity of a claimant's mental impairment, the ALJ expressly addressed plaintiff's 14 degree of limitation in the following four areas: (1) activities of daily living; 15 (2) social functioning; (3) concentration, persistence, or pace; and (4) episodes of 16 decompensation.7 See 20 C.F.R. §§ 416.920a(c)-(d). (AR 26). The ALJ 17 determined, consistent with Dr. Dudley's opinions, that plaintiff suffered from 18 mild limitations in the first three functional areas. (AR 26). As to the fourth 19 functional area, the ALJ determined that plaintiff had experienced no episodes of 20 decompensation. (AR 26). The ALJ concluded that because plaintiff's medically 21 determinable mental impairments have caused plaintiff no more than mild 22 limitations in any of the first three areas, and no limitations in the fourth area, his 23 mental impairments were nonsevere. (AR 26) (citing 20 C.F.R. § 416.920a(d)(1)); 24 See supra note 7. 25 26
7

27 mental impairment is generally not severe, unless there is evidence indicating a more than 28 minimal limitation in the ability to perform basic work activities. See 20 C.F.R. § 416.920a(c)(d). 13

If the degree of limitation in these four areas is determined to be "mild," a plaintiff's

1 V. 2 3 4 5

DISCUSSION A. The ALJ's Determination That Plaintiff Did Not Suffer from a Severe Mental Impairment Does Not Warrant a Reversal or Remand Plaintiff contends that the ALJ's step two determination that plaintiff does

6 not suffer from a severe impairment is erroneous and is not supported by 7 substantial evidence because (1) Dr. Brawer diagnosed plaintiff with "borderline 8 intellectual functioning" which, in and of itself, constitutes a severe mental 9 impairment; and (2) the ALJ ignored Dr. Dudley's assessment that plaintiff 10 suffered from a severe mental impairment ­ an assessment implicit in Dr. Dudley's 11 failure to check a box indicating that plaintiff's impairment was non-severe and 12 his determination that a residual functional capacity assessment was necessary. 13 This Court concludes that substantial evidence in the record supports the 14 ALJ's determination that plaintiff did not suffer from a severe mental impairment 15 and that the ALJ did not materially err in her assessment of Dr. Dudley's opinion. 16 17 18 1. Substantial Evidence Supports the ALJ's Assessment That Plaintiff Did Not Suffer from a Severe Mental Impairment Plaintiff contends that the ALJ's assessment that plaintiff did not suffer

19 from a severe mental impairment at step two of the sequential evaluation process 20 is not supported by substantial evidence. This Court disagrees. 21 First, this Court rejects plaintiff's contention that borderline intellectual 22 functioning is per se a severe impairment. The cases upon which plaintiff relies to 23 suggest otherwise are not binding upon this Court and are, in any event factually 24 distinguishable. Here, Dr. Brawer, the physician who diagnosed plaintiff with 25 borderline intellectual functioning, opined that plaintiff could perform simple, 26 repetitive tasks, that his ability to sustain attention and concentration for extended 27 periods of time was only mildly diminished, that plaintiff had demonstrated 28 adequate-to-mildly diminished attention, concentration, persistence and pace in
14

1 completing tasks, that he had only a mild impairment to effectively manage 2 customary work stresses and to persist for a regular workday, that plaintiff seemed 3 capable of following a routine and organizing himself for basic tasks, that he 4 would be able to work independently, that he might have mild limitations in 5 sustaining cooperative relationships with coworkers and supervisors, but related in 6 an appropriate manner with supportive authority figures, and that he appeared 7 capable of managing funds. (AR 134-35). Dr. Brawer thus effectively concluded 8 that plaintiff's borderline intellectual functioning did not significantly limit his 9 ability to perform basis work activities. Tonapetyan v. Halter, 242 F.3d 1144, 10 1149 (9th Cir. 2001) (consultative examiner's opinion on its own constituted 11 substantial evidence, because it rested on independent examination of claimant). 12 This Court finds no error in the ALJ's determination that plaintiff's borderline 13 intellectual functioning, by itself, or when combined with plaintiff's other 14 impairments did not constitute a severe impairment as such a conclusion is 15 supported by Dr. Brawer's opinion which constitutes substantial evidence. 16 Second, plaintiff points to no medical evidence in the record and this Court 17 sees no medical evidence to satisfy the duration requirement, i.e., to establish that 18 plaintiff's mental impairments lasted or could be expected to last for a continuous 19 period of at least twelve months ­ a prerequisite to being a "severe" impairment at 20 step two of the sequential evaluation process. Accordingly, even if the evidence 21 established that plaintiff's mental impairments rendered him unable to perform 22 basic work activities at some point in time, the ALJ properly concluded that 23 plaintiff failed to meet his burden at step two because the record is bereft of any 24 evidence to satisfy the duration requirement. 25 As the ALJ had substantial evidence to find that the medical evidence 26 clearly established that plaintiff did not have a medically severe impairment or 27 combination of impairments, a remand or reversal on such basis is not appropriate. 28 ///
15

1 2 3

2.

The ALJ Did Not Materially Err in Her Assessment of Dr. Dudley's Opinions

Plaintiff contends that ALJ erred in her assessment of Dr. Dudley's opinion

4 because Dr. Dudley implicitly determined that plaintiff suffered from a severe 5 mental impairment by virtue of Dr. Dudley's failure to check a box indicating that 6 plaintiff's impairment was non-severe and Dr. Dudley's determination that a 7 residual functional capacity assessment was necessary. 8 First, the Court disagrees with plaintiff's contention that the above9 described omission and conduct of Dr. Dudley necessarily implies that he found 10 that plaintiff suffered from a severe impairment. While the inference drawn by 11 plaintiff is one inference that could be drawn from Dr. Dudley's actions and 12 omissions, it is also reasonable to infer that Dr. Dudley (i) believed the evidence to 13 be insufficient to make a definitive assessment regarding the severity or non14 severity of plaintiff's mental impairments due to the lack of evidence regarding 15 whether plaintiff had suffered episodes of decompensation of extended duration; 16 and (ii) viewed the preparation of an MRFC Assessment to be necessary in light of 17 his uncertainty in this regard. (AR 154 [Dr. Dudley opining that evidence 18 insufficient to assess whether plaintiff suffered from episodes of decompensation 19 of extended duration]). As the evidence reasonably supports either of the 20 foregoing inferences, and as the latter inference supports the ALJ's determination 21 that plaintiff does not suffer from a mental impairment of sufficient severity and 22 duration to qualify as a severe impairment under step two of the sequential 23 evaluation process, this Court cannot find that the ALJ erred in her assessment of 24 Dr. Dudley's opinions. See Robbins, 466 F.3d at 882 (if evidence can reasonably 25 support either affirming or reversing the ALJ's conclusion, court may not 26 substitute its judgment for that of the ALJ). 27 Second, even assuming the only inference to be drawn from Dr. Dudley's 28 actions and omissions is that he determined that plaintiff suffered from a severe
16

1 impairment, any error by the ALJ in silently disregarding such ultimate step two 2 determination was harmless as the ALJ considered and adopted Dr. Dudley's 3 underlying opinions indicative of plaintiff's mental ability to perform basic work 4 activities ­ an ability which renders plaintiff's impairments non-severe. As noted 5 above, Dr. Dudley opined that plaintiff had no more than mild limitations in 6 activities of daily living, social functioning, and concentration, persistence and 7 pace. (AR 154). Dr. Dudley also essentially opined in the MRFC Assessment that 8 plaintiff had no significant limitations in his mental ability to perform basis work 9 activities. Dr. Dudley's underlying opinions point to a conclusion that plaintiff 10 could perform basic work activities and did not suffer from a severe impairment. 11 See 20 C.F.R. §§ 416.920a(c)(4), 416.920a(d)(1), 416.921(b). 12 14 VI. 15 17 19 20 21 22 23 24 25 26 27 28
17

Accordingly, the ALJ's assessment of Dr. Dudley's opinions does not CONCLUSION For the foregoing reasons, the decision of the Commissioner of Social LET JUDGMENT BE ENTERED ACCORDINGLY. _______________/s/__________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE

13 warrant a remand or reversal.

16 Security is affirmed. 18 DATED: May 25, 2010