Dixon v. Astrue

Filing 14

ORDER by Judge Samuel Conti denying 7 Plaintiff's Motion for Summary Judgment; granting 11 Defendant's Motion for Summary Judgment (sclc1, COURT STAFF) (Filed on 9/22/2008)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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) ) LATORA DIXON, ) ) Plaintiff, ) ) v. ) ) MICHAEL J. ASTRUE, Commissioner of ) Social Security Administration, ) ) Defendant. ) ) )

No. 07-2122 SC ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

I.

INTRODUCTION This matter is before the Court on cross-motions for summary

judgment filed by the plaintiff Latora Dixon ("Plaintiff" or "Claimant") and the defendant Michael J. Astrue ("Defendant"). Docket Nos. 7, 11. Plaintiff submitted a Reply. Docket No. 12.

Plaintiff seeks review and reversal of the Social Security Commissioner's final decision denying her claim for Supplemental Security Income benefits. For the reasons set forth below, the

Court DENIES Plaintiff's Motion for Summary Judgment and GRANTS Defendant's Cross-Motion for Summary Judgment.

II.

BACKGROUND A. Procedural Background

Plaintiff first filed an application for SSI benefits on March 19, 2003, claiming disability with an onset date of March 8, 1998. Administrative Record ("AR") at 114. That application was

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initially denied, and the denial was upheld on rehearing and on review by the Appeals Council. Id. at 32-35, 40-43, 60-61.

Claimant filed a second application for SSI benefits on June 21, 2004, which was denied. See id. at 63-67, 71-75, 118-121. The hearing was held before Id. at 17.

Claimant then requested a hearing.

the Administrative Law Judge ("ALJ") on July 11, 2005.

Claimant testified in person at the hearing, as did a vocational expert. Id. Claimant was represented by counsel at the hearing.

The ALJ concluded that Claimant is not disabled within the meaning of the Social Security Act, and is therefore not eligible to receive SSI benefits. See id. at 14-25. The Appeals Council Claimant then

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denied Claimant's subsequent request for review.

brought this suit seeking judicial review of that final adverse determination. B. See Compl., Docket No. 1.

Factual Background AR

Plaintiff was born in May 1983, and is now 25 years old. at 18, 114. education. She has no work experience and a fifth grade Id. at 18, 127-131, 135-36. As a basis for her

application for benefits, Plaintiff claims she has a learning disability and cannot read or write well, making it impossible for her to perform any job duties. See id. at 132-33.

Claimant underwent multiple psychological and neurological examinations, the findings from which were in the record before the ALJ. The first evaluation was conducted by Dr. Sokley Khoi, Id. at 19, 217-20. Dr. Khoi administered

Ph.D., in June 2003.

several tests, including the Wechsler Adult Intelligence Scale-III (WAIS-III), Wechsler Memory Scale-III (WMS-3), Bender-Gestalt 2

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Test, and the Rey 15-Item Memory Test-II.

Id. at 217.

Dr. Khoi

concluded that the WAIS-III and Bender-Gestalt Test results were invalid because the Claimant appeared to be malingering: The claimant was noted to engage in many behaviors suggestive of malingering. She made bizarre, careless, and sloppy drawings on the Bender-Gestalt Test, thus this task was discontinued. The claimant was noted to miss obviously correct answers. For example, when asked to count to ten, the claimant stated, "One, two, four, five, seven, eight, ten." However, please note that the claimant was able to correctly identify the numbers on the Digit Symbol-Coding subtest of the WAIS-III. When asked what is the day that comes after Saturday, the claimant stated, "Tuesday." When asked what is the shape of a ball, the claimant stated, "Square." Due to the claimant's poor effort, the following test results are considered invalid. Id. at 218. Dr. Khoi reached the same conclusion with respect to

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the Rey 15-Item Memory Test-II: Clinical observation and the claimant's pattern of performance on the tests administered suggested inadequate motivation and effort. Therefore, today's test results are considered invalid. The claimant's performance on the Rey 15-Item Memory Test-II was consistent with malingering. Based on clinical presentation, the claimant appears to be functioning within the high borderline to low average range of intellectual ability. Of note, the claimant may have cognitive problems due to limited educational history, but due to her blatant malingering it is difficult to accurately ascertain her cognitive functioning. Id. at 219. In November 2003, Dr. Thomas Hardey, Ph.D., evaluated Claimant and performed a similar battery of tests, adding the Benton Visual Retention Test and Trail Making Test. 226-29. Id. at 20,

Dr. Hardey reached similar conclusions to Dr. Khoi, 3

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finding that none of the test results were valid because Claimant was malingering during every exam. See id. at 228.

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Results of this evaluation raised questions regarding this applicant's credibility. Clinical observation indicated that this applicant has no functional limitations in daily activities, social functioning, or difficulties with concentration, persistence, or pace. There are no episodes of emotional deterioration in work-like situations. She was observed to have average ability to understand, carry out, and remember simple and complex instructions. She is capable of responding appropriately to coworkers, supervisors, and the public. She can respond appropriately to usual work situations including attendance and safety issues, and is able to deal with changes in a routine work setting. There were no limitations evident due to any emotional impairment. This individual is not considered capable of handling funds in her own best interest, given her poor cooperation with this CE. Id. at 229. Finally, Dr. Laura Catlin, Psy.D., evaluated claimant in October 2004. Id. at 240-246. Dr. Catlin performed the WAIS-III,

the Wide Range Achievement Test-3 (WRAT-III), the Rey 15 - Memory Test for Malingering, and the Brief Symptom Inventory (BSI). at 240. Unlike Dr. Khoi and Dr. Hardey, Dr. Catlin did not Id.

include in her report Claimant's actual performance on the Rey 15 Memory Test, but did indicate that Claimant "was negative for malingering." Id. at 243. Because Dr. Catlin found no indication Dr.

of malingering, she was able to produce valid test results.

Catlin found that Claimant's Verbal IQ to be 63, her Performance IQ to be 62, and her Full-Scale IQ to be 59, placing claimant in the extremely low to borderline range of intellectual functioning. Id. at 242. According to Dr. Catlin, claimant's WAIS-III and 4

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WRAT-III results "indicate a learning disability in Reading, Spelling, and Math." findings as follows: Ms. Dixon seems to exhibit a profound learning disability and cannot read or write. She only completed school until the sixth grade because of her inability to do the work. Ms. Dixon struggled greatly on all the tests measures and scored far below average on all the subtests. Her difficulties in school are most likely the combination of a learning disability, a low I.Q., an inadequate and incomplete education, and mental health difficulties. Id. at 244. Based on the examination, Dr. Catlin diagnosed Id. at 243. Dr. Catlin summarized her

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Claimant with learning disorders and with a major depressive disorder. Id. at 243.

III. LEGAL STANDARD To qualify for disability benefits, a claimant must show that he or she is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months . . . ." 42 U.S.C. § 423(d)(1)(A). In

making this determination, "an ALJ conducts a five step inquiry." Lewis v. Apfel, 236 F.3d 503, 508 (9th Cir. 2001) (citing 20 C.F.R. §§ 404.1520 & 416.920). The ALJ first considers whether the claimant is engaged in substantial gainful activity; if not, the ALJ asks in the second step whether the claimant has a severe impairment (i.e., one that significantly affects his or her ability to function); if so, the ALJ asks in the third step whether the claimant's 5

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condition meets or equals one of those outlined in the Listing of Impairments in Appendix 1 of the Regulations [20 C.F.R. §§ 404.1520(d) & 416.920(d)]; if not, then in the fourth step the ALJ asks whether the claimant can perform in his or her past relevant work; if not, finally, the ALJ in the fifth step asks whether the claimant can perform other jobs that exist in substantial numbers in the national economy. 20 C.F.R. §§ 404.1520(b)404.1520(f)(1) & 416.920(b)-416.920(f)(1). Id. Courts may set aside a decision of the ALJ if it is not supported by substantial evidence. 42 U.S.C. § 405(g); Holohan v. "Substantial

Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001).

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evidence" is the relevant evidence which a reasonable person might accept as adequate to support the ALJ's conclusion. Chater, 157 F.3d 715, 720 (9th Cir. 1998). Reddick v.

In order to be

"substantial," the evidence must amount to "more than a scintilla," but need not rise to the level of a preponderance. Holohan, 246 F.3d at 1201. Where the evidence could reasonably

support either affirming or reversing the ALJ's decision, a court may not substitute its judgment for the ALJ's decision. Id.

IV.

DISCUSSION Claimant raises numerous challenges to the ALJ's ruling.

First, Claimant asserts that the ALJ improperly rejected Dr. Catlin's conclusions. Second, Claimant asserts that the ALJ's

failure to seek the assistance of a medical advisor was a violation of Due Process. Third, Claimant asserts that the ALJ's

unfavorable decision is not supported by substantial evidence. Fourth, Claimant asserts that she is entitled to a finding of 6

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disability as a matter of law.

Finally, Claimant asserts that the

ALJ committed legal error by departing from the guidelines in the Dictionary of Occupational titles without adequate justification. The Court addresses each in turn. A. The Record Provides Specific And Legitimate Reasons For Rejecting Dr. Catlin's Opinion Claimant argues that Dr. Catlin's report contained the only valid test results and that the ALJ had no legitimate basis for rejecting Dr. Catlin's conclusions based on those results. Claimant bases this assertion on the notion that Dr. Catlin's opinion is uncontradicted in the record. "[T]he Commissioner must

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provide clear and convincing reasons for rejecting the uncontradicted opinion of an examining physician." Lester v.

Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as Amended Apr. 19, 1996). However, where the examining physician's opinion has been

contradicted, the ALJ may reject that opinion for "specific and legitimate reasons that are supported by substantial evidence in the record." Id. at 830-31. First, the

Claimant's position is flawed in two ways.

premise that Dr. Catlin's opinion is uncontradicted is wrong. While Dr. Khoi and Dr. Hardey concluded that the results of the I.Q. tests they conducted were invalid due to Claimant's malingering, they still reached conclusions about Claimant's behavior and mental capacity based on their interaction with her during clinical examinations. Dr. Khoi concluded that, "Based on

clinical presentation, the claimant appears to be functioning within the high borderline to low average range of intellectual 7

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ability."

AR at 219.

He also noted that Claimant suffered no

impairment to a number of abilities relevant to adequate functioning in the workplace, such as following simple instructions, performing repetitive tasks requiring only one or two steps, and interacting appropriately with coworkers and supervisors. Id. at 219-220. Similarly, Dr. Hardey found that

Claimant's "ability to reason or to make occupational or personal judgments was not impaired." Id. at 226. Dr. Hardey also noted

that Claimant's "[i]nsight and judgment appeared to be in the normal range" and that her "[f]unctional levels of intellectual and memory ability were in the average range." Id. As noted

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above, Dr. Hardey questioned Claimant's credibility, but not her ability to "understand, carry out, and remember simple and complex instructions." Id. at 229. While Dr. Catlin's test results may

have been the only such results available, it cannot be said that her ultimate conclusions about Claimant's ability to work were uncontradicted. The second flaw in Claimant's challenge is that it ignores a portion of the ALJ's reasoning. In her brief, Claimant asserts

that the ALJ identified only three reasons for rejecting Dr. Catlin's opinion: 1) the lack of detail regarding malingering; 2)

that Dr. Catlin has not reviewed the Social Security reports regarding Claimant; and 3) that Dr. Catlin reached her diagnosis of depression based only on the one interview. Mot. at 11. This The

understates the ALJ's consideration of Dr. Catlin's opinion.

ALJ found that Dr. Catlin's test results were suspect in light of Dr. Khoi's and Dr. Hardey's findings and that, even if valid, the 8

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test results did not support Dr. Catlin's diagnosis.

AR at 21-22.

The ALJ also considered other evidence in the record, such as Claimant never seeking treatment for her purported depression and her independence from others in taking care of her personal needs. Id. at 22. The ALJ also considered his own evaluation of Id. ("I

Claimant's credibility when she testified at the hearing.

am not persuaded by the claimant's statements regarding her limitations. providers."). She has provided inconsistent statements to various During the hearing, the ALJ stated that he could

not properly evaluate Dr. Catlin's conclusions without the underlying data, and Claimant's counsel essentially conceded the point. See id. at 301-02.

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Dr. Catlin's diagnosis was contradicted by the conclusions of the other physicians who examined Claimant. As such, the ALJ need

only provide "specific and legitimate reasons," supported by the record, for rejecting her opinion. The Court finds that the ALJ

satisfied this requirement, so the rejection of Dr. Catlin's opinion was proper. B. The Failure To Seek A Medical Advisor Is Immaterial

Claimant next argues that the ALJ violated Social Security Ruling 96-6p by refusing to consult with a medical advisor. Mot. at 16-17. See

When resolving the conflicts between Dr. Catlin's

opinion and those of Dr. Khoi and Dr. Hardey, Claimant's attorney suggested that the ALJ might benefit from having an additional expert testify to offer background information about the various tests the examining physicians performed. found that unnecessary. Id. at 296-97. 9 See AR at 296. The ALJ

Counsel then suggested

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that results from a fourth exam, which were now missing, might be relevant. Id. The ALJ said he could not consider that report Id. at 19 n.1, 300. That Ruling

because it was not before him.

Claimant's reliance on SSR 96-6p is misplaced.

clarifies the circumstances under which the ALJ must seek an updated medical opinion. One condition requiring an updated

report is "[w]hen additional medical evidence is received that in the opinion of the administrative law judge or the Appeals Council may change the State agency medical or psychological consultant's finding that the impairment(s) is not equivalent in severity to any impairment in the Listing of Impairments." SSR 96-6p.

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Nothing in the record suggests that the ALJ here was of the opinion that new medical evidence would change any of the consulting examiners' conclusions. As such, the obligation to To

seek an updated opinion under this Ruling was never triggered.

the contrary, the ALJ found no need to consult with an additional expert, and was able to interpret Dr. Khoi's and Dr. Hardey's conclusions without assistance. Id. at 297. Claimant also cites

Markle v. Barnhart, 324 F.3d 182, 187 (3d Cir. 2003), in which the circuit court held that the ALJ had improperly rejected an examining physician's report. In that case, however, there "was

no expert opinion of a psychologist or medical person to contradict" the examining physician's report. Id. As discussed

above, the ALJ here had two expert reports from examining physicians contradicting Dr. Catlin's report, so Markle is inapplicable. /// 10

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C.

The Unfavorable Decision Was Supported By Substantial Evidence

Claimant also asserts that the ALJ's conclusion was not adequately supported by the record, and that Claimant is legally entitled to a finding of disability pursuant to Listing 12.05(B). See Mot. at 15-16, 18. Both of these positions rely on the notion

that the ALJ improperly rejected Dr. Catlin's report and relied on his own judgment without support. As discussed above, supra

section IV.A, the ALJ properly discounted Dr. Catlin's conclusions based on the record before him, including the reports of Dr. Khoi and Dr. Hardey which contradicted Dr. Catlin's opinion. Claimant is correct that, where the evidence shows she meets the requirements of Listing 12.05, her claim must be granted. This is elementary at most, however, since comparison between the Claimant's alleged impairments and the Listing is one part of the ALJ's five-part inquiry. See Lewis, 236 F.3d at 508; AR at 18 The evidence here does not show

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(citing 20 C.F.R. § 416.920(a)). that she meets Listing 12.05.

Contrary to Claimant's assertion,

the record is replete with evidence a reasonable person might find adequate to support the ALJ's ruling that Claimant did not meet the requirements of the Listing. See Reddick, 157 F.3d at 720.

Claimant also argues that the Court should consider a followup report prepared by Dr. Catlin after the ALJ's decision. See Mot. at 12-13; Reply at 4-6. The second report was apparently

intended to address the ALJ's concerns and reasons for rejecting her original opinion. The additional evidence includes raw data

from the tests Dr. Catlin performed, including the Rey 15 - Memory 11

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Test for Malingering, as well as other details of her original examination of Claimant and a subsequent reevaluation. 288-89. See AR at

The parties dispute whether or not the Court should The Court need not reach that question,

consider this evidence.1

however, as the supplemental report would not change the outcome. At most, the supplemental report strengthens Claimant's position. It does nothing to diminish the substantial evidence in the record supporting the ALJ's decision. The two expert opinions

contradicting Dr. Catlin's report remain on the record, as do the ALJ's credibility determinations and various other evidentiary failings in Claimant's case. reverse the ALJ's decision. D. On such a record, the Court cannot See Holohan, 246 F.3d at 1202.

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The Vocational Expert's Testimony Did Not Conflict With the Dictionary of Occupational Titles

Claimant's remaining argument is that the ALJ committed error by not inquiring about reasons for the inconsistencies between the vocational expert's ("VE") testimony and the Dictionary of Occupational Titles ("DOT"). See Mot. at 6-9. "When there is an

apparent unresolved conflict between VE or VS [vocational specialist] evidence and the DOT, the adjudicator must elicit a reasonable explanation for the conflict before relying on the VE or VS evidence to support a determination or decision about Defendant argues that under 42 U.S.C. § 405(g), Claimant must show that the evidence is material and that Claimant had good cause for failing to present the evidence earlier. Claimant argues that the evidence was offered to the Appeals Council, which should have reviewed it under 20 C.F.R. §404.970(b) because it "relates to the period on or before the date of the administrative law judge hearing decision," and that judicial review encompasses the complete record before the Appeals Council. 12
1

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whether the claimant is disabled."

SSR 00-4p.

In such a

situation, the ALJ has an affirmative obligation to inquire about the inconsistency on the record. See id.; see also Massachi v.

Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007) (ALJ may not "rely on a vocational expert's testimony regarding the requirements of a particular job without first inquiring whether the testimony conflicts with the [DOT]"). Claimant argues that the VE's testimony here conflicted with the DOT and that the ALJ expressly refused to inquire about this issue on the record. Claimant is wrong on both counts. First,

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the VE's testimony did not conflict with the DOT.

Upon questions

from both Claimant's counsel and the ALJ, the VE stated that his opinion about certain jobs was different from the DOT, but not inconsistent with it. See AR at 341-43. The VE identified two

jobs that he thought Claimant would be able to perform, both of which have a Language Development skill level of 1 in the DOT. Id. at 334-39. The "reading" aspect of Language Development level "Recognize the meaning of Read a rate of 95-120 words

1 in the DOT is described as follows: 2,500 (two- or three-syllable) words. per minute.

Compare similarities and differences between words Clark Decl., Docket No. 8, Ex. 1.

and between series of numbers."

It is not disputed that Claimant is illiterate and does not meet this standard. However, the DOT is not necessarily an absolute

description of the requirements for a particular job: The DOT lists maximum requirements of occupations as generally performed, not the range of requirements of a particular job as it is performed in specific settings. A VE, VS, or other reliable source of occupational 13

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information may be able to provide more specific information about jobs or occupations than the DOT. SSR 00-4p. Thus, the VE may conclude that Claimant, or someone

with her skills, could perform a specific job, even if the description of that job in the DOT requires a higher level for Language Development. Such differentiation is contemplated in the Here, the

Ruling and would not amount to an unresolved conflict.

VE acknowledged that Claimant was illiterate, but said that her reading abilities were immaterial to the jobs in question. at 334-35, 338, 341. See AR

Given that the VE was providing the exact

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sort of "more specific information" about the jobs in question, there was no conflict that required resolution on the record, so the ALJ did not err. Even if the VE's testimony amounted to a conflict, however, the Court would still reject Claimant's position. Both Claimant's

counsel and the ALJ questioned the VE about his opinion and about the DOT. See generally id. at 334-348. The VE explicitly

acknowledged the definition of Language Development 1, acknowledged that the jobs in question were listed in the DOT as requiring Language Development 1, and conceded that Claimant did not meet that requirement, but stated that he thought Claimant could still perform those jobs. To the extent there is a conflict

between the VE's testimony and the DOT, that conflict is adequately explained in the record. The Court agrees with

Defendant that, if there was in fact a violation of SSR 00-4p, it was a harmless error at most. /// 14

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V.

CONCLUSION The Court finds that the ALJ's decision in this matter was

supported by substantial evidence.

For that reason, the Court

DENIES Claimant's Motion for Summary Judgment and GRANTS Defendant's Cross-Motion for Summary Judgment.

IT IS SO ORDERED.

September 22, 2008

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UNITED STATES DISTRICT JUDGE

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