Wanda M Miles v. Michael J Astrue

Filing 19

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 WANDA M. MILES, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, COMMISSIONER ) OF SOCIAL SECURITY, ) ) Defendant. ) ___________________________________) NO. CV 11-8564-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a Complaint on October 20, 2011, seeking review 21 of the Commissioner’s denial of benefits. The parties filed a 22 “Consent to Proceed Before a United States Magistrate Judge” on 23 November 10, 2011. 24 25 Plaintiff filed a “Motion for Summary Judgment” on April 2, 2012. 26 Defendant filed a “Motion for Summary Judgment” on 27 May 2, 2012. 28 without oral argument. The Court has taken both motions under submission See L.R. 7-15; “Order,” filed October 21, 1 2011. 2 3 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 4 5 Plaintiff filed an application for benefits on August 28, 2007, 6 alleging disability beginning February 19, 2002 (Administrative Record 7 (“A.R.”) 119-25). 8 identified the “illnesses, injuries, or conditions that limit [her] 9 ability to work” as “chronic pain in both legs, knees and feet” (A.R. In an accompanying “Disability Report,” Plaintiff 10 129). Later in the administrative process, Plaintiff added that she 11 had been “in a car accident Dec. 3, 2007 and was later diagnosed with 12 fibromyalgia, neck, hand and arm tremors” (A.R. 170). 13 by a consultative psychiatrist in June of 2008, Plaintiff denied she 14 had any mental illness, denied receiving any type of mental health 15 treatment, and reported no limitations in functioning due to any 16 mental problem (A.R. 666-69). 17 Administrative Law Judge (“ALJ”), Plaintiff complained only of alleged 18 pain, fibromyalgia, loss of control of her body, dizziness, blackouts, 19 headaches, seizures, hearing deficits, and incontinence (A.R. 42-53). 20 Thus, neither before nor during the administrative hearing did 21 Plaintiff ever claim to have any mental impairment. When examined In a subsequent hearing before an 22 23 Not surprisingly, the evidence before the ALJ of any significant 24 mental impairment was essentially nonexistent. 25 psychiatrist gave no mental diagnosis, stating that “[w]hile the 26 claimant does have complaints of depression, they are not out of the 27 context of psychosocial medical stressors she is experiencing, and she 28 does not meet diagnostic criteria for an Axis I diagnosis. 2 The consultative As such, 1 she has no symptoms of a major mental illness that would impair her 2 ability to tolerate the stress inherent in the work environment, 3 maintain regular attendance, or work without supervision” (A.R. 669). 4 Although Plaintiff at one point listed “trazodone” as an 5 “antidepressant medication” (A.R. 173), she reportedly was “not 6 currently taking any psychiatric medications” as of June of 2008 (A.R. 7 667). 8 medically determinable mental impairment as of July of 2008 (A.R. 9 670). A non-examining physician reviewed the record and found no In a note dated March 24, 2009, Dr. F.L. Irwin assessed 10 “anxiety/depression,” along with “chronic neck pain . . . cervical 11 degenerative disc disease . . . cervical disc protrusion . . . 12 cervical facet dysfunction . . . chronic pain syndrome . . . [and] 13 fibromyalgia” (A.R. 789). 14 regarding any functional limitation, did not prescribe any medication 15 or treatment for “anxiety/depression,” and in fact refused to 16 prescribe the narcotics that Plaintiff requested (A.R. 789). Dr. Irwin did not offer an opinion 17 18 On June 16, 2009, the ALJ issued a decision finding Plaintiff not 19 disabled (A.R. 31-36). This decision, which did not find any severe 20 mental impairment, eventually became the final decision of the 21 Administration (Id.; see A.R. 1). 22 23 Plaintiff challenges this decision, arguing that the decision 24 should have “use[d] the psychiatric review technique” in evaluating 25 and assessing a possible mental impairment. 26 argument, Plaintiff cites 20 C.F.R. sections 404.1520a, 416.920a and 27 Keyser v. Commissioner, 648 F.3d 721 (9th Cir. 2011) (“Keyser”). 28 /// 3 In support of her 1 Plaintiff’s challenge relies largely on evidence that was not 2 available to the ALJ. Following the ALJ’s adverse decision, Plaintiff 3 submitted to the Appeals Council for the first time over 600 pages of 4 additional materials, including some new evidence of alleged mental 5 problems (A.R. 4-5). 6 after the ALJ’s decision, reflects that Plaintiff underwent an 7 “initial assessment” in February of 2010, which diagnosed a “mood 8 disorder” (A.R. 833). 9 and the prescribing of medication for depression (A.R. 837). This new evidence, dated more than eight months Records dated later in 2010 mention depression None of 10 the newly-submitted documents appear to contain any medical opinion 11 concerning Plaintiff’s mental health condition during the relevant 12 time frame (February 19, 2002 - June 16, 2009). 13 documents appear to contain any medical opinion concerning any 14 functional limitation assertedly resulting from Plaintiff’s supposed 15 “mood disorder” or “depression,” although one of the documents did 16 rate Plaintiff’s GAF at 50 as of February 12, 2010 (A.R. 833). Nor do these 17 18 19 The Appeals Council considered the newly-submitted evidence, but denied review (A.R. 1-3). 20 21 STANDARD OF REVIEW 22 23 Under 42 U.S.C. section 405(g), this Court reviews the 24 Administration’s decision to determine if: (1) the Administration’s 25 findings are supported by substantial evidence; and (2) the 26 Administration used correct legal standards. 27 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 28 499 F.3d 1071, 1074 (9th Cir. 2007). 4 See Carmickle v. Substantial evidence is “such 1 relevant evidence as a reasonable mind might accept as adequate to 2 support a conclusion.” 3 (1971) (citation and quotations omitted); see also Widmark v. 4 Barnhart, 454 F.3d 1063, 1067 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 5 6 Where, as here, the Appeals Council considered additional 7 material but denied review, the additional material becomes part of 8 the Administrative Record for purposes of the Court’s analysis. 9 Harman v. Apfel, 211 F.3d 1172, 1179-80 (9th Cir.), cert. denied, 531 See 10 U.S. 1038 (2000) (reviewing court properly may consider materials 11 submitted to the Appeals Council when the Appeals Council addressed 12 the materials in denying review); Ramirez v. Shalala, 8 F.3d 1449, 13 1452 (9th Cir. 1993) (“although the Appeals Council declined to review 14 the decision of the ALJ, it reached this ruling after considering the 15 case on the merits; examining the entire record, including the 16 additional material; and concluding that the ALJ’s decision was proper 17 and that the additional material failed to provide a basis for 18 changing the hearing decision. 19 appeal both the ALJ’s decision and the additional material submitted 20 to the Appeals Council”) (citations and quotations omitted); Penny v. 21 Sullivan, 2 F.3d 953, 957 n.7 (9th Cir. 1993) (“the Appeals Council 22 considered this information and it became part of the record we are 23 required to review as a whole”); see generally 20 C.F.R. §§ 24 404.970(b), 416.1470(b). 25 /// 26 /// 27 /// 28 /// For these reasons, we consider on 5 DISCUSSION 1 2 3 When a claimant makes a “colorable claim of mental impairment,” 4 20 C.F.R. sections 404.1520a and 416.920a require that the ALJ either 5 complete a Psychiatric Review Technique Form and append the Form to 6 the decision, or incorporate the Technique Form’s mode of analysis 7 into the findings and conclusions of the decision. 8 This rule has no application to the present case, however, because 9 Plaintiff never made a “colorable claim of mental impairment.” Keyser at 726. 10 11 Plaintiff failed to make a “colorable claim of mental impairment” 12 to the ALJ. Indeed, Plaintiff then presented no claim of mental 13 impairment at all, expressly denying any mental illness, impairment, 14 or treatment. 15 issue. 16 2, 2011) (no Keyser error where the ALJ did not receive any medical 17 evidence of a medically determinable mental impairment). The ALJ cannot be faulted for failing to address a non- See Bowman v. Astrue, 2011 WL 3323383, at *2 (C.D. Cal. Aug. 18 19 20 Plaintiff also failed to make a “colorable claim of mental impairment” to the Appeals Council.1 The scant evidence of a mental 21 22 23 24 25 26 27 28 1 The Court assumes, arguendo, that Keyser and sections 404.1520a and 416.920a apply with equal force to claims made to the Appeals Council on evidence submitted to the Appeals Council for the first time. But see Gomez v. Chater, 74 F.3d 967, 972 (9th Cir.), cert. denied, 519 U.S. 81 (1996) (“The Appeals Council [was] not required to make any particular evidentiary finding” when rejecting newly submitted evidence from a vocational expert); see also Taylor v. Commissioner, 659 F.3d 1228, 1232 (9th Cir. 2011) (appearing to extend the Gomez holding to medical opinion submitted for the first time to the Appeals Council); Miller v. Apfel, 244 F.3d 1, 4 n.2 (1st Cir. 2001), cert. denied, 534 U.S. 1085 (2002) (continued...) 6 1 impairment presented for the first time to the Appeals Council 2 postdated the relevant time frame by more than eight months, did not 3 purport to opine regarding Plaintiff’s condition during the relevant 4 time period, and did not reflect any functional limitation. 5 The facts of the present case are dramatically different from the 6 7 facts in Keyser. 8 physicians’ opinions that mental illnesses (including bipolar 9 disorder, paranoid and schizotypal personality traits, severe In Keyser, the ALJ had disregarded treating 10 depression and generalized anxiety disorder) significantly impacted 11 the claimant’s ability to work in a variety of respects. 12 at 723-24, 726. 13 facts in Sanchez v. Secretary, 812 F.2d 509, 511 (9th Cir. 1987) 14 (“Sanchez”). 15 evaluations prepared after the Administration’s final decision to 16 indicate “at most, mental deterioration after the hearing, which would 17 be material to a new application, but not probative of [the 18 claimant’s] condition at the hearing. 19 not significantly at issue at the hearing [before the ALJ]. 20 reported some loss of concentration, depression and anxiety as a 21 /// 22 /// 23 /// 24 /// See Keyser The facts of the present case are more akin to the In Sanchez, the Ninth Circuit deemed psychological Sanchez’s mental condition was He 25 26 1 27 28 (...continued) (observing that circuit courts are divided with respect to the proper scope of judicial review when the Appeals Council considers new evidence but denies further administrative review). 7 1 result of his back condition.” Id. at 511-12.2 2 3 In sum, the rule of Keyser does not require this Court to discern 4 harmful error on the facts of the present case. 5 decision is supported by substantial evidence and is free from 6 material legal error. 7 alleged error materially affected the disability analysis. 8 v. Astrue, 640 F.3d 881, 888 (9th Cir. 2011) (discussing general 9 harmless error standard applicable in social security disability 10 The administrative There is no substantial likelihood that any See McLeod cases). 11 12 CONCLUSION 13 14 For all of the reasons discussed herein, Plaintiff’s motion for 15 summary judgment is denied and Defendant’s motion for summary judgment 16 is granted. 17 18 LET JUDGMENT BE ENTERED ACCORDINGLY. 19 20 DATED: May 8, 2012. 21 22 _____________/S/________________ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 25 26 2 27 28 The Sanchez decision appears to have addressed evidence submitted to the court rather than to the Appeals Council. Nevertheless, the factual parallel is instructive with regard to the late-submitted evidence’s lack of probity. 8

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