STANLEY A. BOONE, Magistrate Judge.
Plaintiff Jesse Holguin ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Stanley A. Boone.
Plaintiff suffers from hypertension, asthma, insomnia, erectile dysfunction, hearing loss, posttramatic stress disorder ("PTSD"), major depressive disorder, and a history of alcohol abuse in remission. (AR 29.) For the reasons set forth below, Plaintiff's Social Security appeal shall be denied.
Plaintiff protectively filed an application for a period of disability and disability insurance benefits on July 22, 2011. (AR 195.) Plaintiff's application was initially denied on December 1, 2011, and denied upon reconsideration on April 25, 2012. (AR 122-125, 130-134.) Plaintiff requested and received a hearing before Administrative Law Judge Danny Pittman ("the ALJ"). Plaintiff appeared for a hearing on May 16, 2013. (AR 42-75.) On August 12, 2013, the ALJ found that Plaintiff was not disabled. (AR 24-37.) The Appeals Council denied Plaintiff's request for review on December 19, 2014. (AR 9-12.)
Plaintiff testified at the hearing on May 16, 2013. (AR 45-69, 71.) Plaintiff was born on October 5, 1951. (AR 45.) Plaintiff is right-handed, 5' 5" tall, and weighs 190 pounds. (AR 45-46.) Plaintiff is separated and has two adult children. (AR 46.) Plaintiff lives in a house with his 92 year old mother who is retired. (AR 46.) Plaintiff and his sister take care of his mother. (AR 46-47.) Plaintiff does not drink or smoke, and has no history of drug use. (AR 57.) Plaintiff used to drink. (AR 57.)
Plaintiff served in the military, was trained in communications, and received an honorable discharge. (AR 49.) Plaintiff receives disability payments from the Veteran's Administration. (AR 47.) Plaintiff has been adjudged 70 percent disabled by the Veteran's Administration. (AR 47.) Plaintiff is on vocational rehabilitation for his quality of life. (AR 47-48.) Plaintiff was on unemployment until 2011 and was actively looking for work at that time. (AR 50-51.) Plaintiff went to many interviews but did not receive any job offers. (AR 51.) Plaintiff walked out of one interview and does not know why. (AR 66.) Plaintiff received unemployment benefits during 2010 and 2011. (AR 50.)
Plaintiff received his GED in the service. (AR 48.) Plaintiff attempted to go back to school on the GI Bill, but dropped out. (AR 48.) Plaintiff received special services in elementary school for language. (AR 49.) Plaintiff can read and write at the high school level. (AR 49.) Plaintiff had a driver's license but it was suspended in 1999 for driving under the influence. (AR 48.) Plaintiff volunteers at his church for a couple of hours cleaning up the church. (AR 50.)
Plaintiff had his own business from 1998 to 2001 repairing computers and installing telephones. (AR 52.) Plaintiff last worked for Central Valley Indian Heath as an IT tech person in 2002. (AR 52-53.) Plaintiff is unable to work because he is short tempered, has difficulty remembering things, and is tired. (AR 53.) Plaintiff started seeing a psychiatrist in 2010. (AR 53-54.) Plaintiff's psychiatric issues vary in intensity. (AR 54.) Plaintiff attends a PTSD group once a week and takes two medications for mood and one to help him sleep. (AR 55.) Plaintiff uses an inhaler for asthma and takes medication for blood pressure and his prostrate. (AR 55-56.)
The medication for his mood helps, but relief with the sleeping medication is inconsistent. (AR 56.) Plaintiff's asthma is caused by weather and exertion. (AR 58.) Plaintiff has always had problems with his memory, but it has gotten worse. (AR 58.) Plaintiff gets distracted very easily and has trouble concentrating. (AR 58-59.) Plaintiff is sometimes able to follow simple instructions, but at other times gets frustrated. (AR 59.) When he gets frustrated he gets angry. (AR 59.) Plaintiff is impulsive and makes bad decisions. (AR 59.)
Plaintiff has trouble getting along with other people. (AR 59.) When Plaintiff worked at Indian Health he was written up for being too abrasive and not getting along with other employees. (AR 59, 66.) Plaintiff had the police called on him, but that might have been alcohol related. (AR 60.) Plaintiff has nightmares almost every day and sometimes has flashbacks about once a week but can go long periods of time without a flashback. (AR 60.) When he gets a flashback he feels like he is back in Vietnam. (AR 67.) Plaintiff has flashbacks around the time of anniversaries of things that happened when he was in Vietnam. (AR 67.) His flashbacks are sporadic. (AR 67.)
On an average day, Plaintiff has to get up and go outside in the morning. (AR 61.) Plaintiff cuts the lawn and does things around the house. (AR 61.) Plaintiff picks up the trash, cuts the lawn, trims trees, and does laundry. (AR 61.) Plaintiff will vacuum or cook occasionally and does repairs around the house. (AR 62.) His mother or sister does the dishes and mop the floors. (AR 61.) Plaintiff pays his own bills and does his own grocery shopping. (AR 62.) Plaintiff goes out to eat and attends church almost every Sunday. (AR 63.) Plaintiff has friends that come to visit him and goes to the movies. (AR 63.) Plaintiff does not like being in crowds. (AR 64.) Plaintiff does not use the computer much because he gets frustrated. (AR 64.) Plaintiff does enjoy photography and takes pictures of buildings. (AR 64-65.)
Plaintiff sleeps two to three hours a night. (AR 65.) He has to get up at night and go outside. (AR 65.) During the night Plaintiff does a lot of perimeter walking, making sure the house and neighborhood are all right. (AR 69.) Plaintiff is able to handle his self-care. (AR 65.)
A vocational expert ("VE") Thomas Dachelet also testified at the hearing. (AR 70-75.)
The ALJ made the following findings of fact and conclusions of law.
(AR 29-37.)
To qualify for disability insurance benefits under the Social Security Act, the claimant must show that 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 12 months." 42 U.S.C. § 423(d)(1)(A). The Social Security Regulations set out a five step sequential evaluation process to be used in determining if a claimant is disabled. 20 C.F.R. § 404.1520;
Congress has provided that an individual may obtain judicial review of any final decision of the Commissioner of Social Security regarding entitlement to benefits. 42 U.S.C. § 405(g). In reviewing findings of fact in respect to the denial of benefits, this court "reviews the Commissioner's final decision for substantial evidence, and the Commissioner's decision will be disturbed only if it is not supported by substantial evidence or is based on legal error."
"[A] reviewing court must consider the entire record as a whole and may not affirm simply by isolating a specific quantum of supporting evidence."
Plaintiff contends that the ALJ erred by failing to properly assess the opinions of his treating physicians. Specifically, Plaintiff argues that the ALJ failed to adopt Dr. Beauchene's understanding of the term "moderate" and that the record does not establish that his mental impairments would abate in twelve months so the ALJ should have contacted Dr. Beauchene to determine the extent of Plaintiff's limitations after five months. Defendant counters that the ALJ properly evaluated the medical evidence, gave the greatest weight to the opinion of Dr. Beauchene, and there was no ambiguity or inadequacy in the record to require further development.
Plaintiff argues that the ALJ erred by failing to adopt Dr. Beauchene's understanding of the term "moderate". The weight to be given to medical opinions depends upon whether the opinion is proffered by a treating, examining, or non-examining professional.
Where the treating physician's opinion is contradicted by the opinion of an examining physician who based the opinion upon independent clinical findings that differ from those of the treating physician, the nontreating source itself may be substance evidence, and the ALJ is to resolve the conflict.
The contrary opinion of a non-examining expert is not sufficient by itself to constitute a specific, legitimate reason for rejecting a treating or examining physician's opinion, however, "it may constitute substantial evidence when it is consistent with other independent evidence in the record."
In developing Plaintiff's residual functional capacity based upon his mental impairments, the ALJ considered the treatment which Plaintiff had received through the local veteran's hospital for his mental impairments developed in the course of his military service. (AR 32.) The ALJ found that Plaintiff had some moderate limitations. (AR 32.) The ALJ gave significant weight to the opinion of Dr. Beauchene and only limited weight to the opinions of the agency and examining physicians that had found Plaintiff to have no severe mental impairments. (AR 34.) As to Plaintiff's mental health impairments, the record reflects the following.
On August 2, 2010, Plaintiff reported he has insomnia at times and is taking Ambien which has been effective. (AR 340.) He was to continue the Ambien as needed. (AR 340.) A depression screening was completed and Plaintiff was negative for depression. (AR 341.)
The Veteran's Administration had Plaintiff evaluated to determine his service rated disability. On September 15, 2010, Dr. Gonzalez performed a psychological evaluation. (AR 32, 457-462.) The record notes that Plaintiff began receiving mental health services in December 2009 for "depression, insomnia and PTSD ad stress." (AR 458.) He was participating in a group for PTSD and anger on a weekly basis and expressed mixed feelings about its efficacy. (AR 458.) Plaintiff's affect was labile and appropriate to conversation. (AR 460.) Thought content was clear and thought processes were goal directed. (AR 460.) His memory was not formally evaluated and no psychological testing was conducted. (AR 460.) Dr. Gonzalez diagnosed Plaintiff with PTSD, depression NOS, R/O alcohol abuse and a Global Assessment of Function ("GAF") score of 50.
The next indication of mental health issues is on April 27, 2011. Plaintiff reported that he had gotten depressed and lost his appetite, but that he is feeling better and his appetite and sleep are better. (AR 305.) On May 18, 2011, Plaintiff reported that his depression had improved. (AR 302.) On July 15, 2011, mental health screening was negative for depression. (AR 292.)
On October 26, 2011, Plaintiff reported depression and that his nightmares and flashbacks were becoming more frequent. (AR 32.) On October 28, 2011, Plaintiff had a comprehensive psychiatric examination by Dr. Mary Lewis. (AR 347.) Dr. Lewis found Plaintiff's behavior to be cooperative and his attitude pleasant. (AR 349.) Plaintiff's conversation, pace and intensity were easily understood with no obvious expressive or receptive deficits. (AR 349.) Stream of mental activity was within normal limits and stream of consciousness was linear, logical, coherent, and goal directed. (AR 349.) There were no indications of hallucinations or delusions. (AR 349.) Plaintiff's mood was euthymic
On October 26, 2011, Plaintiff was referred to mental health complaining of depression, and nightmares and flashbacks that were becoming more frequent. (AR 361, 393.) A mental health intake examination was conducted on November 3, 2011. (AR 32, 386-392.) Plaintiff complained of having flashbacks, but the record notes that "after further clarification it sounds as though he is having daydreams, and is waking up from his nightmares and feels as though these nightmares are very real." (AR 386.) The nightmares have been getting worse. (AR 386.) Dr. Richardson performed the intake examination and noted that Plaintiff had been receiving treatment since 2009 which was very helpful and was engaged in group therapy. (AR 32, 387.) Plaintiff reported that when he stops taking his medication his nightmares become less frequent. (AR 33, 387.)
Dr. Richardson found an essentially normal mental examination. (AR 33.) Plaintiff had no impairment in his ability to care for himself. (AR 389.) Plaintiff's attention and concentration was satisfactory with no distractibility. (AR 390.) Plaintiff was oriented and his memory was unimpaired, cognition was intact, and general fund of knowledge was satisfactory. (AR 390.) Insight and judgment were intact and impulse control was good. (AR 391.) Plaintiff was diagnosed with PTSD by history and depression with a GAF score of 60.
On January 11, 2012, Plaintiff was seen for a refill of his medication and reported some improvement with the use of medication. (AR 33, 364.) On June 27, 2012, a depression screening was conducted and Plaintiff was negative for depression. (AR 441.) Plaintiff reported doing better on his medication. (AR 442.) Plaintiff talked about spending time with his grandchildren, volunteering at his church and the VA. (AR 442.) Plaintiff was seen on October 24, 2012, and reported that the Paxil was effective and he was feeling better. (AR 33, 431.)
On November 30, 2012, Plaintiff was seen and admitted that he was not taking his medication regularly as advised. (AR 33, 513.) Plaintiff complained of four months of loss of interest, decreased motivation, low energy, lack of appetite, and depressed mood. (AR 513.) Plaintiff reported he was only taking the medication when he felt down. (AR 33, 513.) Plaintiff's mood was depressed and his affect was mildly restricted. (AR 33, 513.) Plaintiff's insight and judgment were fair. (AR 514.) Plaintiff was diagnosed with a GAF score of 55. (AR 33, 514.)
On February 22, 2013, Plaintiff reported good compliance with his medication and no side effects. (AR 33, 472.) He reported that he did not know if the medication was continuing to be effective. (AR 472.) Plaintiff reported that he was a little more down as the holidays and February and March are hard for him. (AR 472.) Plaintiff complained about insomnia and his sleep medication was changed. (AR 33, 473.) Plaintiff's mood was depressed and his affect was congruent, restricted. (AR 473.) His insight and judgment were fair. (AR 473.) He was alert, oriented, attentive, and his cognition was appropriate to conversation. (AR 473.) Plaintiff was diagnosed with PTSD; major depressive disorder, recurrent, mild to moderate; and a GAF score of 57. (AR 33, 473.)
On April 19, 2013, Dr. Beauchene completed a medical source statement opining that Plaintiff was not significantly limited in 17 of 20 work related functional categories. (AR 34, 523-525.) Dr. Beauchene opined that Plaintiff was mildly limited in his ability to carry out detailed instructions, and moderately limited in his ability to meet attention and concentration for extended periods, and ability 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 34, 524-525.) Dr. Beauchene opined that these limitations had been present for five months and would not last for a continuous 12 months. (AR 34, 525.)
While Plaintiff argues that the ALJ failed to adopt Dr. Beauchene's understanding of the term "moderate", the ALJ properly considered that Dr. Beauchene opined that Plaintiff only had moderate limitations in two areas that would not last for a continuous twelve months. To qualify for disability benefits, "the plaintiff must demonstrate an `inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than twelve months.'"
In considering Plaintiff's mental limitations, the ALJ limited Plaintiff to simple, routine tasks in a non-public setting with only occasional interaction with co-workers and supervisors. There is substantial evidence in the record to support the mental residual functional capacity.
Plaintiff also argues that the ALJ erred by accepting Dr. Beauchene's finding that Plaintiff's moderate limitations would not last for twelve months. Plaintiff contends that the ALJ should have contacted Dr. Beauchene to determine Plaintiff's mental impairments after five months.
When applying for disability benefits, the claimant has the duty to prove that he is disabled. 42 U.S.C. § 423(c)(5)(A). The ALJ has an independent "duty to fully and fairly develop the record and to assure that the claimant's interests are considered."
A specific finding of ambiguity or inadequacy in the record is not required to trigger the necessity to further develop the record where the record itself establishes the ambiguity or inadequacy.
In this instance, Dr. Beauchene checked "NO" in answer to the question, "In your opinion, have the limitations assessed on this form lasted 12 continuous months or can they be expected to last 12 continuous months
Despite a significant medical record in this case, there are only sporadic mentions of mental health issues in the medical record. Also, while Plaintiff claims to suffer from depression and an inability to concentrate, he had relatively normal mental health examinations, and the record notes no signs of depression when screened during medical appointments. (AR 292, 341, 347-351, 389-392, 441.)
There is substantial evidence in the record to support the ALJ's finding that Plaintiff's moderate limitations would not last for a continuous 12 months.
Based on the foregoing, the Court finds that the ALJ did not err in determining that Plaintiff's mental impairments would not preclude him from work activity. Accordingly,
IT IS HEREBY ORDERED that Plaintiff's appeal from the decision of the Commissioner of Social Security is DENIED. It is FURTHER ORDERED that judgment be entered in favor of Defendant Commissioner of Social Security and against Plaintiff Jesse Holguin. The Clerk of the Court is directed to CLOSE this action.
IT IS SO ORDERED.
