MICHAEL J. MCSHANE, District Judge.
Plaintiff Afagia Roberts brings this action for judicial review of a final decision of the Commissioner of Social Security denying her application for disability insurance benefits (DIB) and supplemental security income payments (SSI) under Titles II and XVI of the Social Security Act. This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). The issue before this Court is whether the ALJ erred in evaluating the respective opinions of examining psychologist, Dr. Lange, non-examining psychologist, Dr. Anderson, treating physician, Dr. Callahan, and social worker, Nickie Frisch. Because the ALJ articulated sufficient reasons supported by substantial evidence in the record for his evaluation of the respective opinions, the Commissioner's decision is AFFIRMED.
Plaintiff applied for DIB and SSI on May 8, 2009, alleging disability since March 1, 2007 (later amended to September 28, 2008). Tr. 15, 42, 154-66. These claims were denied initially and upon reconsideration. Tr. 15, 84-93. Plaintiff timely requested a hearing before an administrative law judge (ALJ), and appeared before the Honorable Riley Atkins on August 22, 2011. Tr. 15, 38-78. ALJ Atkins denied plaintiff's claims by written decision dated September 23, 2011. Tr. 15-24. Plaintiff sought review from the Appeals Council, which was subsequently denied, tr. 1-4, thus rendering the ALJ's decision final. Plaintiff now seeks judicial review.
Plaintiff, born on February 15, 1958, tr. 43, 154, 159, completed limited formal education, tr. 44 (indicating that plaintiff completed sixth grade), and worked most recently as a sorter/packager for Gage Industries Inc. (1989-2009), tr. 45-48, 167-76, 192. Plaintiff was fifty at the time of alleged disability onset, and fifty-three at the time of hearing. See tr. 43, 154, 159.
The reviewing court shall affirm the Commissioner's decision if the decision is based on proper legal standards and the legal findings are supported by substantial evidence on the record. See 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). To determine whether substantial evidence exists, this Court reviews the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion. Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986).
The Social Security Administration utilizes a five step sequential evaluation to determine whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920. The initial burden of proof rests upon the claimant to meet the first four steps. If a claimant satisfies his or her burden with respect to the first four steps, the burden shifts to the Commissioner for step five. 20 C.F.R. § 404.1520. At step five, the Commissioner's burden is to demonstrate that the claimant is capable of making an adjustment to other work after considering the claimant's residual functional capacity (RFC), age, education, and work experience. Id.
Plaintiff contends that the ALJ erred in formulating and applying plaintiff's RFC under step four of the sequential evaluation. In particular, plaintiff argues: (1) the ALJ erred in evaluating the opinion of examining psychologist Donald Lange, Ph.D.; (2) the ALJ erred in evaluating the opinion of non-examining psychologist Dorothy Anderson, Ph.D.; (3) the ALJ erred in evaluating the opinion of L. Teresa Callahan, M.D.; and (4) the ALJ erred in evaluating the opinion of Nickie Frisch, L.C.S.W.
Plaintiff contends that the ALJ erred in his consideration of Dr. Lange's opinion. Pl.'s Br. 6-9, ECF No. 16. In response, defendant argues that the ALJ provided sufficient reasons for the weight assigned to Dr. Lange's opinion. Def.'s Br. 5, ECF No. 17.
In January 2009, Donald Lange, Ph.D., met with plaintiff and administered a comprehensive neuropsychological evaluation (CNE).
Dr. Lange, having met with plaintiff a single time, is not a treating physician. See, e.g., Benton ex rel. Benton v. Barnhart, 331 F.3d 1030, 1038 (9th Cir. 2003) (indicating that an ongoing treatment relationship with a claimant is a key factor in determining whether a physician is treating). "To reject his opinion, the ALJ had to give clear and convincing reasons." Reginnitter v. Comm'r of Soc. Sec. Admin., 166 F.3d 1294, 1298 (9th Cir. 1999) (citation omitted). "Even if contradicted by another doctor, the opinion of an examining doctor can be rejected only for specific and legitimate reasons that are supported by substantial evidence in the record." Id. (citation omitted).
The ALJ, pursuant to step two, recognized plaintiff's Cognitive Disorder NOS and Dysthymic Disorder as severe impairments. Tr. 17. The ALJ, however, declined to recognize Dr. Lange's diagnosis of mild mental retardation as a severe impairment. The ALJ found:
Tr. 18 (citations omitted).
The ALJ, pursuant to step four, found that plaintiff had the RFC to "perform light work ... except: she may stand and walk two to four hours of an eight-hour workday; no climbing of ladders, ropes and scaffolds; climb ramps and stairs occasionally; and she can perform only simple, routine, repetitive work; and only occasional public contact." Tr. 19. The ALJ, in reference to Dr. Lange's opinion, further noted:
Tr. 21. Plaintiff contends that this RFC formulation does not incorporate many of the proposed functional limitations identified by Dr. Lange. Plaintiff directs this Court's attention to suggested limitations in intellectual functioning (including related adaptive limitations) and concentration, persistence and pace. See Pl.'s Br. 6-10, ECF No. 16.
As to intellectual functioning and related adaptive limitations, the ALJ relied heavily on the opinion of Dorothy Anderson, Ph.D., and plaintiff's past employment history. See Tr. 18. Dr. Anderson, a non-examining psychologist, noted:
Tr. 412. The ALJ's reliance on Dr. Anderson's findings, tr. 22, and plaintiff's approximately twenty-year employment history as a sorter/packager for Gage Industries Inc., tr. 45-48, 167-76, 192, provides clear and convincing reasons supported by substantial evidence to reject Dr. Lange's diagnosis of mental retardation to the extent that this diagnosis is inconsistent with plaintiff's RFC. See also Gregory v. Bowen, 844 F.2d 664, 667 (9th Cir. 1988) (finding "substantial evidence indicated that the condition of [plaintiff] had remained constant for a number of years and that her [condition] had not prevented her from working over that time.").
As to concentration, persistence and pace, the ALJ imposed a RFC limiting plaintiff to "simple, routine, repetitive work." Tr. 19. Plaintiff contends that this "does not include any functional limitations related to concentration, persistence or pace." Pl.'s Br. 8, ECF No. 16. This Court is not persuaded.
In Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), the Ninth Circuit joined the Sixth and Eighth Circuits in recognizing that an "ALJ's assessment of a claimant adequately captures restrictions related to concentration, persistence or pace where the assessment is consistent with restrictions identified in the medical testimony." The Court held that an ALJ's limiting instruction of "simple tasks" adequately incorporated an examining doctor's observations that plaintiff had a "slow pace, both with thinking and her actions" and was "moderately limited" in her ability to "perform at a consistent pace without an unreasonable number and length of rest periods." Id. at 1173; see also Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (holding that the ALJ's limiting instruction of "simple, routine, repetitive work" adequately accounted for "the finding of borderline intellectual functioning."). As in Stubbs-Danielson, the hypothetical limitations posed by the ALJ adequately captured plaintiff's moderate deficiencies in concentration, persistence and pace, and were consistent with the medical testimony.
Plaintiff contends that the ALJ erred in his consideration of Dr. Anderson's opinion. Pl.'s Br. 11, ECF No. 16. Plaintiff directs this Court's attention to Dr. Anderson's functional limitation ratings. Id.
In July 2009, Dr. Anderson completed a psychiatric review technique form and mental residual functional capacity assessment. Tr. 400-417. Dr. Anderson opined that plaintiff "is able to complete a normal workday/workweek doing simple, routine tasks with normal supervision," tr. 416, but had moderate limitations in restriction of activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace, tr. 410.
The ALJ, pursuant to step three, discussed Dr. Anderson's findings on the psychiatric review technique form. The ALJ found:
Tr. 19 (citing tr. 410). Pursuant to step four, the ALJ accorded "significant weight" to Dr. Anderson's mental RFC findings. The ALJ found:
Tr. 22. Plaintiff contends that the ALJ erred in partially rejecting Dr. Anderson's opinion pursuant to step three because the ALJ failed "to identify `the evidence.'" Pl.'s Br. 12, ECF No. 16. Plaintiff's argument is not persuasive.
The ALJ explicitly discussed plaintiff's daily living activities pursuant to his step three analysis:
Tr. 18 (citing 209-216) (emphasis added). The ALJ expanded on this finding pursuant to his step four analysis:
Tr. 20 (citing 209-16, 218-25, 446). This evidence is sufficient to reject Dr. Anderson's conclusion that plaintiff had moderate limitations in daily living. See 20 C.F.R. §§ 404.1527(e)(2), 416.927(e); see also Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005) ("If the record would support more than one rational interpretation, we defer to the ALJ's decision." (citation omitted)). In any event, the ALJ explicitly adopted Dr. Anderson's "Functional Capacity Assessment"—"simple, routine tasks with normal supervision"—which clarified plaintiff's "limitation or function." Tr. 416; see also Jensen v. Astrue, No. 6:11-cv-06298-ST, 2012 WL 4470507, at *3 (D. Or. Sept. 25, 2012) ("In any event, any error in designating specific impairments as severe did not prejudice [plaintiff] because the ALJ resolved step two in her favor.").
Plaintiff contends that the ALJ erred in his consideration of Dr. Callahan's findings: "[t]he ALJ attempts to buttress his argument that Claimant is not as physically limited as alleged by misquoting Dr. Callahan." Pl.'s Br. 14, ECF No. 16. Plaintiff argues that Dr. Callahan "does not report any `poor effort,'" and that the ALJ erred in omitting the "additive effect of Claimant's pain on her functional limitations." Id.
Between June and August 2011, Dr. Callahan met with plaintiff at least five different times. See tr. 503-509, 512-14, 516-22. In June 2011, Dr. Callahan administered a physical exam. Tr. 506-509. Pursuant to this physical exam, Dr. Callahan found:
Tr. 508 (emphasis added). The ALJ interpreted these findings as follows:
Tr. 20 (emphasis added). Although plaintiff contests the ALJ's use of the term "poor" in lieu of "slight," this Court is not prepared to find that the ALJ's interpretation is unreasonable. Batson, 359 F.3d at 1196 ("When evidence reasonably supports . . . the ALJ's decision, we may not substitute our judgment for that of the ALJ." (citation omitted)). As noted by defendant, the adjective "poor" is synonymous with the adjective "slight." Def.'s Br. 11, ECF No. 17 (citations omitted). Moreover, both terms convey the same general meaning: plaintiff's efforts were insufficient to enable Dr. Callahan to determine the full extent of plaintiff's limitations.
Plaintiff also generally argues that the ALJ's RFC formulation omitted the "additive effect" of plaintiff's pain. Pl.'s Br. 14, ECF No. 16. Plaintiff directs this Court's attention to prescriptions prescribed by Dr. Callahan.
Plaintiff did not report any major side effects from these (or other) prescriptions to Dr. Callahan. See tr. 503-509, 512-14, 516-22. Having reviewed the record, this Court finds that the ALJ did consider plaintiff's subjective pain testimony. See, e.g., tr. 20-21;
Plaintiff contends that the ALJ improperly rejected the lay witness testimony of Nickie Frisch, L.C.S.W.
"Lay testimony as to a claimant's symptoms is competent evidence that an ALJ must take into account, unless he or she expressly determines to disregard such testimony and gives reasons germane to each witness for doing so." Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001) (citation omitted); see also Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1085 (9th Cir. 2000) ("[A]n ALJ, in determining a claimant's disability, must give full consideration to the testimony of friends and family members." (citation omitted)).
In August 2011, Ms. Frisch met with plaintiff and administered a behavioral health assessment. See tr. 529-35. Pursuant to this assessment, Ms. Frisch diagnosed plaintiff with "296.32 Major Depressive Disorder, Recurrent, Moderate" and a current Global Assessment of Functioning (GAF) score
Tr. 21 (citations omitted). Plaintiff contends that this analysis is inadequate. This Court is not persuaded.
First, as an initial matter, Ms. Frisch is an "other source," who may provide evidence to "show the severity of [plaintiff's] impairment(s) and how it affects [plaintiff's] ability to work." 20 C.F.R. § 404.1513(d); see also Bruce v. Astrue, 557 F.3d 1113, 1115-16 (9th Cir. 2009) ("The ALJ was required to consider and comment upon competent lay testimony, as it concerned how [plaintiff's] impairments impact his ability to work." (emphasis added)). However, "medical diagnoses are beyond the competence of lay witnesses and therefore do not constitute competent evidence." Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); see also Vincent v. Heckler, 739 F.3d 1393, 1395 (9th Cir. 1984) (upholding Commissioner's decision where the ALJ did not discuss lay testimony that plaintiff's "second stroke had left [plaintiff] impaired."). Thus, to the extent that the ALJ arguably did not discuss Ms. Frisch's medical diagnoses, "this omission does not require reversal." Vincent, 739 F.2d at 1395.
Second, as to plaintiff's GAF score, this score "does not have a direct correlation to the severity requirements in [the] mental disorders listing." Revised Medical Criteria for Evaluating Mental Disorders & Traumatic Brain Injury, 65 Fed. Reg. 50746-01, 50764-65 (Aug. 21, 2000); see also Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013) ("It was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice."). The ALJ explicitly addressed Ms. Frisch's GAF analysis
For these reasons, the Commissioner's final decision is AFFIRMED.
IT IS SO ORDERED.
Tr. 350.
Tr. 20-21.
