Opinion
No. CV-07-0197-JPH.
April 1, 2008
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
BEFORE THE COURT are cross-motions for summary judgment, noted for hearing without oral argument on January 7, 2008. (Ct. Rec. 18, 21). Plaintiff Darryl C. Hutchison ("Plaintiff") filed a reply brief on January 7, 2008. (Ct. Rec. 23). Attorney Maureen Rosette represents Plaintiff; Special Assistant United States Attorney David M. Blume represents the Commissioner of Social Security ("Commissioner"). The parties have filed a consent to proceed before a magistrate judge. (Ct. Rec. 6). After reviewing the administrative record and the briefs filed by the parties, the Court GRANTS Defendant's Motion for Summary Judgment (Ct. Rec. 21) and DENIES Plaintiff's Motion for Summary Judgment (Ct. Rec. 18).
JURISDICTION
On April 20, 2004, Plaintiff filed a second application for Disability Insurance Benefits ("DIB"), alleging disability since August, 1989. (AR 90-93). Plaintiff's second application for DIB was denied initially and on reconsideration. An administrative hearing was held before Administrative Law Judge ("ALJ") Richard Say on July 27, 2006. (AR 1149-1182). On September 14, 2006, the ALJ issued a decision finding that Plaintiff was not disabled. (AR 17-24). On May 24, 2007, the Appeals Council denied Plaintiff's request for review. (AR 6-8). Therefore, the ALJ's decision became the final decision of the Commissioner, which is appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed an action for judicial review pursuant to 42 U.S.C. § 405(g) on June 20, 2007. (Ct. Rec. 1).
Plaintiff filed a prior application for DIB on April 30, 2002, with disability alleged since January 1, 1987. (AR 86-89). Plaintiff's prior application for DIB was denied, and Plaintiff did not further pursue the application. (AR 17).
The ALJ's review of Plaintiff's earnings record revealed that Plaintiff earned sufficient quarters of coverage to remain insured for DIB purposes through March 30, 1992. (AR 17, 1153). Therefore, in order to be eligible for DIB, Plaintiff had the burden to show that he was under a disability, as defined by the Social Security Act, prior to March 30, 1992, his date last insured. The relevant time period under review is thus from August 1, 1989 (Plaintiff's alleged disability onset date), to March 30, 1992 (Plaintiff's date last insured).
STATEMENT OF FACTS
The facts have been presented in the administrative hearing transcripts, the ALJ's decisions, the briefs of both Plaintiff and the Commissioner and will only be summarized here. Plaintiff was 45 years old on his date last insured. (AR 22). Plaintiff completed a four-year college program and received his Bachelor's degree in 1994. (AR 107). He has past work experience as a mechanic. (AR 102, 141-146). He alleges disability as of August 1, 1989, due to post traumatic stress disorder, brain tumor, injury to left ankle and degenerative arthritis in back and hips. (AR 101). However, Plaintiff's brain tumor was not diagnosed until December of 2001. (AR 1156). Plaintiff reported "[d]ue to back leg pain I couldn't continue to work on concrete floors. Also PTSD had been affecting my ability to deal with supervisors do my work." (AR 101). Plaintiff testified that left ankle and lower back problems, as well as a post traumatic stress disorder, kept him from working before March 1992. (AR 1166-1167, 1174).
SEQUENTIAL EVALUATION PROCESS
The Social Security Act (the "Act") defines "disability" as the "inability 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), 1382c(a)(3)(A). The Act also provides that a Plaintiff shall be determined to be under a disability only if his impairments are of such severity that Plaintiff is not only unable to do his previous work but cannot, considering Plaintiff's age, education and work experiences, engage in any other substantial gainful work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).
The Commissioner has established a five-step sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step one determines if he is engaged in substantial gainful activities. If he is, benefits are denied. 20 C.F.R. §§ 404.1520(b), 416.920(b). If he is not, the decision maker proceeds to step two, which determines whether Plaintiff has a medically severe impairment or combination of impairments. 20 C.F.R. §§ 404.1520(c), 416.920(c).
If Plaintiff does not have a severe impairment or combination of impairments, the disability claim is denied. If the impairment is severe, the evaluation proceeds to the third step, which compares Plaintiff's impairment with a number of listed impairments acknowledged by the Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d), 416.920(d); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or equals one of the listed impairments, Plaintiff is conclusively presumed to be disabled. If the impairment is not one conclusively presumed to be disabling, the evaluation proceeds to the fourth step, which determines whether the impairment prevents Plaintiff from performing work he has performed in the past. If Plaintiff is able to perform his previous work, he is not disabled. 20 C.F.R. §§ 404.1520(e), 416.920(e). If Plaintiff cannot perform this work, the fifth and final step in the process determines whether Plaintiff is able to perform other work in the national economy in view of his residual functional capacity and his age, education and past work experience. 20 C.F.R. §§ 404.1520(f), 416.920(f); Bowen v. Yuckert, 482 U.S. 137 (1987).
The initial burden of proof rests upon Plaintiff to establish a prima facie case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden is met once Plaintiff establishes that a physical or mental impairment prevents him from engaging in his previous occupation. The burden then shifts to the Commissioner to show (1) that Plaintiff can perform other substantial gainful activity and (2) that a "significant number of jobs exist in the national economy" which Plaintiff can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).
STANDARD OF REVIEW
Congress has provided a limited scope of judicial review of a Commissioner's decision. 42 U.S.C. § 405(g). A court must uphold the Commissioner's decision, made through an ALJ, when the determination is not based on legal error and is supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "The [Commissioner's] determination that a plaintiff is not disabled will be upheld if the findings of fact are supported by substantial evidence." Delgado v. Heckler, 722 F.2d 570, 572 (9th Cir. 1983) ( citing 42 U.S.C. § 405(g)). Substantial evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 1988). Substantial evidence "means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations omitted). "[S]uch inferences and conclusions as the [Commissioner] may reasonably draw from the evidence" will also be upheld. Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). On review, the court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989) ( quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).
It is the role of the trier of fact, not this court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational interpretation, the court may not substitute its judgment for that of the Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 1988). Thus, if there is substantial evidence to support the administrative findings, or if there is conflicting evidence that will support a finding of either disability or nondisability, the finding of the Commissioner is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987).
ALJ'S FINDINGS
The ALJ found at step one that Plaintiff has not engaged in substantial gainful activity during the period from his alleged onset date through his date last insured. (AR 19). At step two, the ALJ determined that, through the date last insured, Plaintiff had the severe impairments of post traumatic stress disorder and a left ankle injury. (AR 20). However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments listed in or medically equal to one of the Listings impairments. (AR 21). The ALJ found that, through Plaintiff's date last insured, he had the residual functional capacity ("RFC") to perform at least sedentary level work activities with limitations on repetitive motion with his left foot, overhead activities and vibrations and, because of mental problems, was limited to short simple instructions and superficial contact with others. (AR 22).
At step four of the sequential evaluation process, the ALJ determined that Plaintiff would have been unable to perform his past relevant work prior to March 1992. (AR 22). However, based on the testimony of the vocational expert and considering Plaintiff's age, educational background, work experience and RFC, the ALJ concluded that Plaintiff could perform a significant range of sedentary work that existed in significant numbers in the national economy prior to March 1992. (AR 23-24). Accordingly, the ALJ determined at step five of the sequential evaluation process that Plaintiff was not disabled within the meaning of the Social Security Act at any time from his alleged onset date through March 31, 1992, his date last insured. (AR 24).
ISSUES
Plaintiff argues that he was more limited from a psychological standpoint than as determined by the ALJ. (Ct. Rec. 19 at 11-17). This Court must uphold the Commissioner's determination that Plaintiff is not disabled if the Commissioner applied the proper legal standards and there is substantial evidence in the record as a whole to support the decision.
DISCUSSION
Plaintiff asserts that the ALJ failed to provide sufficient reasoning for rejecting the opinions of Drs. Pollack, Grismer, Riodica and Giffen regarding his psychological functioning. (Ct. Rec. 19 at 11-17). The Commissioner responds that the ALJ properly evaluated the medical evidence of record and properly concluded that Plaintiff's psychological limitations restricted him to only performing short, simple work instructions with only superficial contacts with others. (Ct. Rec. 22 at 7-15; AR 20-22).
With respect to Plaintiff's mental limitations, the ALJ found that Plaintiff was limited to short simple instructions and superficial contact with others. (AR 22). In making this determination, the ALJ evaluated the medical evidence of record pertaining to Plaintiff's mental ability. The ALJ determined that, while PTSD and depression were mentioned in the record during the relevant time period, the evidence demonstrated that the severity of Plaintiff's mental limitations produced only mild limitations of activities of daily living, moderate limitations of social functioning, mild limitations of concentration, persistence or pace, and no episodes of decompensation of extended duration. (AR 20-21).
With respect to Plaintiff's mental limitations during the relevant time period, August 1, 1989 to March 30, 1992, the ALJ indicated as follows:
In 1989, the claimant was treated for "situational adjustment reaction" and he was a recovering "drug addict and alcoholic" .
. . .
[W]hile treatment notes from Okanogan Valley Clinic mentioned depression and post-traumatic stress disorder in 1989-1991. The claimant was treated primarily for gastrointestinal problems. A note dated January 28, 1991 describes depression and PTSD and says that the claimant was receiving Elavil for the condition . In a follow-up for depression on March 20, 1991, the claimant increased the Elavil to 200 mg and he reported doing significantly better. He increased the dose to 250 mg and reported nightmares and hallucinations. Upon reducing the dose to 200 mg again, he was doing fine and had done some part-time mechanic work and exploring vocational rehab. The notes do not mention PTSD or depression again until February 1992 when insomnia and a long history of PTSD are merely mentioned with no discussion of ongoing treatment.
(AR 20).
Plaintiff was seen by William A. Gromko, M.D., in November 1989. Dr. Gromko noted that Plaintiff was engaged in psychological counseling, but did not want to take medications. (AR 182). Dr. Gromko prescribed Fluoxetine, and, in February 1990, Plaintiff requested an increase in his anti-depressant medication. (AR 182-184). Plaintiff was seen almost monthly at the Okanogan Valley Clinic for ongoing gastrointestinal problems from November 1990 to September 1991. (AR 211-239). However, despite the frequency of these visits, the medical reports make only limited references to mental health complaints. ( Id.)
There is little evidence of Plaintiff's psychological symptoms or limitations prior to the expiration of his insured status. However, the notes from Plaintiff's physicians indicate that although he had difficulty with sleep, nightmares and feeling down, the symptoms were sufficiently controlled by medication. Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for benefits. Warre v. Comm'r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006), see also, Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming a denial of benefits and noting that the claimant's impairments were responsive to medication).
Plaintiff nevertheless contends that, as evidenced by the medical reports of Drs. Pollack, Grismer, Riodica and Giffen, he had greater psychological limitations during the relevant time period. (Ct. Rec. 19 at 11-17). However, each of these medical professionals evaluated Plaintiff after the expiration of the relevant time period in this case. Although evidence from outside of the relevant period of time may be deemed useful information, it is irrelevant to the extent that it does not address claimant's medical status during the relevant period at issue in this action.
On February 12, 1993, Joseph F. Grismer, M.D., examined Plaintiff. (AR 1130-1133). The report indicates that a February 26, 1990 examination determined that Plaintiff continued to have a diagnosis of PTSD, characterized by recurrent recollections of the events of Vietnam and recurrent nightmares and flashbacks when he hears helicopter sounds. (AR 1130). The report also references Plaintiff's past treatment for depressive symptomotology. (AR 1130). Although Dr. Grismer noted Plaintiff's difficulties with social interactions and concentration at the time of his examination, he indicated that Plaintiff was able to maintain his college course work and interact with others in the classroom. (AR 1131-1132). Dr. Grismer diagnosed PTSD, delayed, and gave Plaintiff a Global Assessment of Functioning ("GAF") score of 55. (AR 1132-1133). While Dr. Grismer's report refers to a 1990 diagnosis of PTSD and past treatment for depressive symptomotology, his report included no specific assessment of Plaintiff's functional capacity prior to the date last insured. Accordingly, the report fails to address Plaintiff's specific mental condition or limitations during the relevant period at issue.
A GAF of 60-51 reflects: Moderate symptoms or moderate difficulty in social, occupational, or school functioning. See DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994).
On August 20, 1996, Romeo Reodica, M.D., examined Plaintiff. (AR 656-660). It was noted that Plaintiff had a 30% disability for service-connected PTSD and that, at the time of Dr. Reodica's evaluation, all information was provided by Plaintiff since "the C-file was not available and the clinical chart contained minimal information." (AR 656). Dr. Reodica diagnosed PTSD, delayed, and gave Plaintiff a GAF score of 45. (AR 660).
A GAF of 50-41 reflects: "[s]erious symptoms (e.g., suicidal ideation, severe obsessive rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS-IV 32 (4th ed. 1994).
Dr. Reodica's assessment, based entirely on information provided by Plaintiff in August of 1996, included no discussion or assessment of Plaintiff's capacity prior to the date last insured. In fact, Dr. Reodica noted that the evaluation was performed to "update information and symptoms from February 1993." (AR 656). Accordingly, the undersigned finds Dr. Reodica's findings irrelevant because he fails to address Plaintiff's medical status during the relevant period at issue.
Plaintiff was examined by David Griffon, M.D., on September 12, 2001. (AR 548-551). It was noted that Plaintiff had a 70% disability for service-connected PTSD and that Plaintiff had been diagnosed and treated for an inoperable brain tumor in 2000. (AR 548-549). Dr. Griffon diagnosed PTSD, chronic, and a cognitive disorder, not otherwise specified (mild aphasia and cognitive slowing associated with glioma and radiation therapy) and gave Plaintiff a current GAF score of 25. Dr. Griffon's medical report contained no discussion or assessment of Plaintiff's capacity prior to the date last insured. Therefore, his findings are not relevant to Plaintiff's medical status during the period of time at issue in this case as well.
A GAF of 30-21 is characterized as: "Behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas." DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS 12 (3d ed. Rev. 1987).
On April 25, 2006, Plaintiff was examined by Dennis R. Pollack, Ph.D. (AR 1134-1143). Dr. Bostwick noted that Plaintiff's clinical scores indicated Plaintiff is depressed, angry, resentful and dependent and suggest that he has difficulty getting along with others and following social norms. (AR 1139). Dr. Bostwick stated "[i]t is clear from the record that Mr. Hutchinson had emotional problems prior to 1991 that resulted in an award for service related PTSD as a result of his service in Vietnam. These problems alone cause him to be disabled." (AR 1139). Dr. Bostwick diagnosed PTSD, a pain disorder associated with both psychological factors and a general medical condition, and a dysthymic disorder, ruled out dementia due to a brain tumor, and gave Plaintiff a GAF score of 50. (AR 1139).
On a mental medical source statement form, Dr. Pollack marked that Plaintiff had only two marked limitation out of 20 areas of functioning; that being his ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances and to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (AR 1141). Dr. Pollack also marked that Plaintiff had one moderate limitation, but otherwise found that Plaintiff had no or mild limitations in all other areas of functioning. (AR 1140-1142).
The ALJ rejected Dr. Pollack's opinion that Plaintiff was disabled prior to 1991 because his examination was remote in time and based on a faulty analysis. (AR 23). Not only did Dr. Pollack's evaluation occur 14 years after Plaintiff's date last insured, but also, on the date last insured, Plaintiff had received only a 40 percent disability rating from the VA. This VA disability rating does not indicate total disability as stated by Dr. Pollack. Moreover, Dr. Pollack did not state when Plaintiff's psychological difficulties first caused him to be completely disabled, nor described the level of the limitations stemming from his impairments prior to Plaintiff's date last insured. It is further apparent from the record that Plaintiff's psychological symptoms increased after he was diagnosed with a inoperable brain tumor in 2000, making Dr. Pollack's 2006 retrospective opinion of Plaintiff's 1991 abilities all the more speculative. See, Johnson v. Shalala, 60 F.3d 1428, 1432-1433 (9th Cir. 1995). An ALJ must give specific and legitimate reasons supported by substantial evidence to reject the opinion of an examining physician. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). The undersigned finds that the ALJ provided sufficient rationale, supported by substantial evidence, to reject Dr. Pollack's opinion that Plaintiff was disabled prior to 1991. (AR 23).
With respect to Plaintiff's mental functioning, it is significant to note that the Department of Veterans Affairs ("VA") rated Plaintiff only 30% to 40% disabled for service connected PTSD during the relevant time period. (AR 21, 656, 1131). Plaintiff's VA disability rating was not elevated to 70% until November of 1997 and was continued at that rate in September of 2001. (AR 166-171). The ALJ must consider the VA's findings in reaching his decision. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). Because of the marked similarity between the two federal disability programs, the ALJ must give great weight to a VA determination of disability. McCartey v. Massanari, 298 F.3d 1072, 1076 (9th Cir. 2002). As noted by the ALJ, the VA ratings indicate that the VA did not consider Plaintiff to be totally disabled even well after his date last insured. (AR 21, 23). The psychological limitations assessed by the ALJ during the relevant time period, restrictions to short, simple instructions and only superficial contact with others, accurately reflect the limitations assessed by the VA ratings as well as the weight of the record evidence.
The undersigned further finds it significant that Plaintiff reported working full-time as a motorcycle mechanic in 1989 and 1990, after the alleged onset date of disability, August of 1989. (AR 102, 110).
The ALJ is responsible for reviewing the evidence and resolving conflicts or ambiguities. Magallanes, 881 F.2d at 751. If evidence supports more than one rational interpretation, the Court must uphold the decision of the ALJ. Allen, 749 F.2d at 579. It is the role of the trier of fact, not this Court, to resolve conflicts in evidence. Richardson, 402 U.S. at 400. The Court may not substitute its own judgment for that of the ALJ even if it might justifiably have reached a different result upon de novo review. 42 U.S.C. § 405(g). The ALJ's RFC finding is in accord with the weight of the record evidence. Contrary to Plaintiff's argument, the record does not support a more restrictive psychological finding than Plaintiff being limited to short and simple instructions and superficial contact with others. (AR 22). Accordingly, the Commissioner did not err in so finding in this case.
CONCLUSION
Having reviewed the record and the ALJ's conclusions, the Court finds that the ALJ's decision is supported by substantial evidence and free of legal error. Plaintiff is thus not disabled within the meaning of the Social Security Act. Accordingly,
IT IS ORDERED:
1. Plaintiff's Motion for Summary Judgment ( Ct. Rec. 18) is DENIED.
2. Defendant's Motion for Summary Judgment ( Ct. Rec. 21) is GRANTED.
3. The District Court Executive is directed to enter judgment in favor of Defendant, file this Order, provide a copy to counsel for Plaintiff and Defendant, and CLOSE this file.
IT IS SO ORDERED.