Suzanne Winchester v. Michael J. Astrue, No. 5:2012cv01449 - Document 17 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym: (see document image for further details). IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (ad)

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O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SUZANNE WINCHESTER 12 13 14 Plaintiff, v. CAROLYN W. COLVIN, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 12-1449-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On September 7, 2012, plaintiff Suzanne Winchester filed a complaint 22 against defendant, the Commissioner of Social Security ( Commissioner ), 23 seeking a review of a denial of supplemental security income ( SSI ). Both 24 plaintiff and defendant have consented to proceed for all purposes before the 25 assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the 26 matter suitable for adjudication without oral argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the finding 28 of the Administrative Law Judge ( ALJ ) that plaintiff s mental impairment is not 1 1 severe was in error; and (2) whether the ALJ s failure to obtain testimony from a 2 mental health expert at step three was in error. Plaintiff s Memorandum in 3 Support of Complaint ( Pl. Mem. ) at 4-10; Memorandum in Support of 4 Defendant s Answer and in Opposition to Plaintiff s Memorandum in Support of 5 Complaint ( Def. Mem. ) at 2-10. 6 Having carefully studied, inter alia, the parties s moving papers, the 7 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 8 that, as detailed herein, the ALJ properly found that plaintiff s mental impairment 9 is not severe. It was therefore unnecessary for the ALJ to consult a mental health 10 expert at step three. Consequently, this court affirms the decision of the 11 Commissioner denying benefits. 12 II. 13 FACTUAL AND PROCEDURAL BACKGROUND 14 Plaintiff, who was fifty-nine years old on the date of her December 13, 2010 15 administrative hearing, completed some high school. AR at 20, 45, 57-58, 170, 16 356. Her past relevant work was as an office manager and a security guard. AR at 17 26-27, 45, 53-54, 57, 173. 18 On January 30, 2009, plaintiff protectively filed an application for SSI. AR 19 at 20, 110-113. This application alleged that plaintiff suffered from multiple 20 strokes and heart attacks, diminished use of her right arm, and cognitive 21 difficulties, with an onset date of September 11, 2008. AR at 20, 163. The 22 Commissioner denied plaintiff s applications for benefits, after which she filed a 23 request for a hearing. AR at 20, 62-66, 72-77. 24 On December 13, 2010, plaintiff, represented by counsel, appeared and 25 testified at a hearing before the ALJ. AR at 45, 49-53. The ALJ also heard 26 testimony from Dr. Sami Nafoosi, a medical expert, and Alan Boroskin, a 27 vocational expert. AR at 45, 46-49, 53-55. On January 10, 2011, the ALJ denied 28 plaintiff s claim for benefits. AR at 17-27. 2 1 Applying the well-known five-step sequential evaluation process, the ALJ 2 found, at step one, that plaintiff did not engage in substantial gainful activity since 3 January 30, 2009, the protective filing date. AR at 22. 4 At step two, the ALJ found that plaintiff suffers from the following severe 5 impairments: hypertension with end organ damage, chronic obstructive pulmonary 6 disease, and a compression fracture of the seventh thoracic vertebrae. Id. The 7 ALJ found that plaintiff s mental impairment is not severe. AR at 23. 8 At step three, the ALJ found that plaintiff s impairments did not meet the 9 listed impairments set forth in section 12.04 of 20 C.F.R. part 404, Subpart P, 10 Appendix 1. AR at 24. As to plaintiff s mental impairment, the ALJ found that it 11 did not meet any of the listed impairments in Listing 12.00 of the Listing of 12 Impairments, including consideration of the paragraph B criteria. Id. The ALJ then assessed plaintiff s residual functional capacity ( RFC ).1 13 14 AR at 24-26. The ALJ found that plaintiff has the RFC to perform light work with 15 the following limitations: she needs to change positions every hour, and is limited 16 to occasional climbing, balancing, stooping, kneeling, crouching, crawling, and 17 squatting. AR at 24. In addition, plaintiff should avoid concentrated exposure to 18 dusts, chemical fumes, vapors, or sudden changes in extreme temperatures. Id. 19 The ALJ found, at step four, that plaintiff would be capable of performing 20 her past relevant work as a security guard and office manager as actually and 21 generally performed, and that those occupations did not require plaintiff to 22 perform work precluded by her RFC. AR at 26-27. 23 24 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). Between steps three and four of the five-step 27 evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 25 3 1 Consequently, the ALJ concluded that plaintiff did not suffer from a 2 disability as defined by the Social Security Act. AR at 27. 3 Plaintiff filed a timely request for review of the ALJ s decision, which was 4 denied by the Appeals Council on July 10, 2012. AR at 1, 36. The ALJ s decision 5 stands as the final decision of the Commissioner. 6 III. 7 STANDARD OF REVIEW 8 This court is empowered to review decisions by the Commissioner to deny 9 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 10 Administration must be upheld if they are free of legal error and supported by 11 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 12 (as amended). But if the court determines that the ALJ s findings are based on 13 legal error or are not supported by substantial evidence in the record, the court 14 may reject the findings and set aside the decision to deny benefits. Aukland v. 15 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 16 1144, 1147 (9th Cir. 2001). 17 Substantial evidence is more than a mere scintilla, but less than a 18 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 19 relevant evidence which a reasonable person might accept as adequate to support 20 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 21 F.3d at 459. To determine whether substantial evidence supports the ALJ s 22 finding, the reviewing court must review the administrative record as a whole, 23 weighing both the evidence that supports and the evidence that detracts from the 24 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 25 affirmed simply by isolating a specific quantum of supporting evidence. 26 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 27 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 28 the ALJ s decision, the reviewing court may not substitute its judgment for that 4 1 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 A. The ALJ s Findings at Step Two that Plaintiff s Mental Impairment 6 Is Non-Severe Was Not in Error 7 Plaintiff argues that the ALJ erred when he did not find that plaintiff s 8 mental impairment is severe at step two. Pl. Mem. at 5-9. Plaintiff contends that 9 there is significant evidence in the record to indicate that plaintiff s mental 10 impairment is severe, relying almost entirely upon the medical records proffered 11 by Dr. Gene N. Berg, Ph.D. Id. The Commissioner contends the ALJ properly 12 discounted Dr. Berg s opinion in favor of the findings of the State agency 13 physician Dr. S. Khan, M.D., and the examining physician Dr. Hiruy Gessesse, 14 M.D. Def. Mem. at 2-8. Because the ALJ articulated specific and legitimate 15 reasons to discount Dr. Berg s opinion, and because the opinions of Drs. Khan and 16 Gessesse indicating that plaintiff s mental impairment is non-severe were properly 17 credited, the court finds that the ALJ did not err at step two. 18 The inquiry at step two is whether or not a claimant is suffering from a 19 severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii) & 416.920(a)(4)(ii). The step 20 two inquiry is defined as a de minimis screening device to dispose of groundless 21 claims. Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001, as amended 22 Aug. 9, 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). 23 At step two of the five-step sequential inquiry, the Commissioner determines 24 whether the claimant has a medically severe impairment or combination of 25 impairments. Smolen, 80 F.3d at 1289-90. Important here, at the step two 26 inquiry, is the requirement that the ALJ must consider the combined effect of all of 27 the claimant s impairments on her ability to function, without regard to whether 28 each alone was sufficiently severe. Id. at 1290. The ALJ is also required to 5 1 consider the claimant s subjective symptoms . . . in determining severity. Id. 2 An impairment or combination of impairments can be found not severe 3 only if the evidence establishes a slight abnormality that has no more than a 4 minimal effect on an individual[ ]s ability to work. 2 Smolen, 80 F.3d at 1290 5 (internal quotation marks and citation omitted). [A]n ALJ may find that a 6 claimant lacks a medically severe impairment or combination of impairments only 7 when his conclusion is clearly established by medical evidence. Webb v. 8 Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting SSR 85-28).3 [A]pplying 9 our normal standard of review to the requirements of step two, we must determine 10 whether the ALJ had substantial evidence to find that the medical evidence clearly 11 established that [the claimant] did not have a medically severe impairment or 12 combination of impairments. Id. In addition, if an adjudicator is unable to 13 determine clearly the effect of an impairment or combination of impairments on 14 the individual s ability to do basic work activities, the sequential evaluation 15 should not end with the not severe evaluation step. Id. (quoting SSR 85-28) 16 (brackets omitted). 17 /// 18 /// 19 20 2 Basic work activities are defined as including such capabilities as use of judgment; responding appropriately to supervision, co-workers and usual work 22 situations; and dealing with changes in a routine work setting. Edlund, 253 F.3d 23 at 1159 (internal citations omitted). 21 24 25 26 27 28 3 The Commissioner issues Social Security Rulings to clarify the Act s implementing regulations and the agency s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner s interpretation of the agency s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations. Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted). 6 1 1. 2 On September 11, 2008, plaintiff was admitted to the emergency room Evidence of Mental Impairment Before Treatment 3 complaining of an inability to remember simple things and an inability to perform 4 activities of daily living. AR at 226. She was not oriented to date, time, or place. 5 AR at 235. She was admitted to the hospital and diagnosed with an acute mental 6 status change of unknown etiology. AR at 226-27, 234. Upon discharge from the 7 hospital she was stable, and was oriented to person, place, time, and situation, 8 though she did not know what the date was. AR at 236. 9 2. 10 Dr. Hiruy Gessesse, M.D. With respect to the severity of plaintiff s mental impairment, the ALJ relied 11 upon and credited the medical opinion of Dr. Hiruy Gessesse. AR at 22. Dr. 12 Gessesse examined plaintiff on May 31, 2009. AR at 283. Dr. Gessesse assigned 13 plaintiff a global assessment functioning score ( GAF ) score of 65.4 AR at 286. 14 According to the evaluation undertaken by Dr. Gessesse, plaintiff maintained good 15 eye contact and established a rapport with him. AR at 285. Plaintiff s thought 16 processes were concrete but linear and were goal directed. Id. Plaintiff was able 17 to state four digits forward and backward and was able to do serial 7's correctly. 18 Id. When asked how much change would be left from one dollar if three oranges 19 were bought at fifteen cents each, plaintiff correctly answered fifty-five cents. Id. 20 Plaintiff could understand and explain proverbs. AR at 286. Dr. Gessesse 21 concluded that plaintiff could regularly perform tasks and attend work. Id. 22 Plaintiff s prognosis was fair. Id. 23 /// 24 25 4 A GAF score of 61-70 indicates [s]ome mild symptoms (e.g., depressed 26 mood and mild insomnia) OR some difficulty in social, occupational, or school 27 functioning . . ., but generally functioning pretty well, has some meaningful interpersonal relationships. American Psychological Association, Diagnostic and 28 Statistical Manual of Mental Disorders 34 (4th Edition, Text Revision). 7 1 3. 2 The ALJ also relied upon the opinion of the State agency physician S. Khan The State Agency Physician, Dr. S. Khan M.D. 3 in the determination that plaintiff s mental impairment is not severe. AR at 22. 4 Dr. Khan reviewed plaintiff s medical records and completed a Psychiatric 5 Review Technique for plaintiff on June 30, 2009. AR at 301, 313. Dr. Khan 6 noted that plaintiff suffered from adjustive disorder with depressed mood, though 7 that impairment was not severe. AR at 301, 304, 311. Moreover, Dr. Kahn 8 concluded that plaintiff would experience no functional limitations on activities of 9 daily living, maintaining social functioning, maintaining concentration, 10 persistence, or pace, and would not suffer repeated episodes of decompensation of 11 an extended duration. AR at 309. According to Dr. Khan, plaintiff s medical 12 records exhibited no demonstrable impairment in memory or attentional processes. 13 AR at 313. Dr. Khan also noted that plaintiff was only partially credible 14 concerning her ability to work; he concluded that plaintiff s mental impairment 15 would not prevent her from performing one-two step repetitive tasks with 16 adequate pace and persistence and would not have an issue adapt[ing] and 17 relat[ing] to coworkers and supervisors [or] deal[ing] with changes in the routine 18 public work setting. AR at 311. 19 20 21 4. Plaintiff s Statements in Her Application for Benefits Relevant to Her Mental Impairment In addition to Dr. Gessesse s opinion that plaintiff is able to work, the ALJ 22 relied upon plaintiff s own statements in her application for benefits. AR at 23. In 23 the application, plaintiff stated that she was able to spend time with people daily, 24 use public transportation, did not need to be reminded to go places, and can handle 25 her own finances though that ability has been somewhat diminished. AR at 13726 38. 27 /// 28 /// 8 1 5. 2 The ALJ also considered the testimony of Dr. Gene Berg, Ph.D in his Dr. Gene Berg, Ph.D 3 assessment of plaintiff s mental impairment. AR at 23. Dr. Berg conducted a 4 psychological evaluation of plaintiff at her counsel s request on October 29, 2010. 5 Dr. Berg found that, although plaintiff was alert and did not appear disorganized, 6 she did have trouble responding to questions and had difficulty maintaining her 7 train of thought. AR at 355. Dr. Berg noted a connection between a possible 8 depressive disorder and plaintiff s previous heart attacks and stroke. AR at 356. 9 During the evaluation, plaintiff could respond appropriately to hypothetical 10 judgment scenarios but could not perform serial 3's or 7's and complained of 11 difficulties with attention and concentration. Id. When given a memory task, she 12 was unable to recall three things after a short period of time. Id. Dr. Berg 13 diagnosed plaintiff with a non-specific cognitive disorder and a non-specific 14 depressive disorder, assigning plaintiff a GAF score of 50.5 AR at 357. In 15 conclusion, Dr. Berg found that plaintiff s psychological impairment would 16 preclude work. AR at 358. 17 In evaluating medical opinions, the regulations distinguish among three 18 types of physicians: (1) treating physicians; (2) examining physicians; and (3) 19 non-examining physicians. 20 C.F.R. §§ 404.1528(c),(e), 416.927(c), (e); Lester 20 v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). In this case, plaintiff 21 has not been treated by a physician for her mental health impairment; Drs. 22 Gessesse and Berg each conducted examinations of plaintiff and therefore should 23 be considered examining physicians. Dr. Khan reviewed plaintiff s medical file 24 when making his determination and never examined plaintiff personally. See AR 25 26 5 A GAF score of 41 50 indicates serious symptoms . . . [or] any serious 27 impairment in social, occupational, or school functioning, such as inability to keep a job. American Psychological Association, Diagnostic and Statistical 28 Manual of Mental Disorders 34 (4th Edition, Text Revision). 9 1 at 313. Therefore, Dr. Khan was a non-examining physician. The opinions of 2 Drs. Gessesse and Berg are thus entitled to more weight than Dr. Khan s. 3 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (holding that the opinion 4 of an examining physician is entitled to greater weight than that of a non5 examining physician). If the . . . examining physician s opinion is contradicted 6 by another doctor, as here, the ALJ may reject that opinion only if he provides 7 specific and legitimate reasons supported by substantial evidence in the record. 8 Combs v. Astrue, 387 F. App x 706, 708 (9th Cir. 2010) (citing Lester, 81 F.3d 9 830-31). 10 Here, Dr. Berg s conclusions were not rejected outright solely because they 11 were sought by plaintiff in connection with her appeal for benefits. AR at 23. 12 Instead, the ALJ noted that Dr. Berg s conclusions were entitled to due 13 consideration, before ultimately providing specific and legitimate reasons to 14 discount Dr. Berg s conclusions. AR at 23-24. 15 First, the ALJ noted that there were many aspects of Dr. Berg s opinion that 16 contradicted other medical evidence, including Dr. Gessesse and Dr. Khan s 17 evaluations of plaintiff. AR at 23. The ALJ listed all of the evidence he 18 considered in finding that plaintiff did not suffer from a severe mental impairment. 19 See AR at 22-24. Of particular importance was plaintiff s inconsistent 20 performance during evaluative testing by plaintiff done by Drs. Gessesse and 21 Berg. Plaintiff completed the task of serial 7's without issue when evaluated by 22 Dr. Gessesse and said that her concentration and memory were okay, but was 23 unable to count serial 3's and 7's when asked by Dr. Berg and complained of a loss 24 in concentration. AR at 285, 356. 25 Second, the ALJ noted that Dr. Berg s conclusion that plaintiff is unable to 26 work contradicts the statements plaintiff made to Dr. Gessesse as well as the 27 record of daily activities in her application for benefits to the Social Security 28 Administration. AR at 23. For example, when interviewed by Dr. Gessesse, 10 1 plaintiff was able to correctly solve a math problem involving leftover change. 2 AR at 285. On her application for benefits, plaintiff noted that she did all of her 3 own banking, including paying bills, counting change, handling a savings account, 4 and using a checkbook, though she noted some difficulty writing checks and 5 balancing her checkbook. AR at 137-38. When evaluated by Dr. Berg, however, 6 he noted that plaintiff would be limited in her ability to carry out simple one or 7 two-step instructions or perform activities within schedule. AR at 363 8 Finally, the ALJ gave less weight to Dr. Berg s opinion because his 9 evaluation of plaintiff was undertaken at the behest of plaintiff s counsel in 10 connection with her claim for SSI and not for purposes of treatment. AR at 23, 11 355. Although an ALJ may consider the source and context of a doctor s opinion, 12 he may not dismiss it solely because it was solicited by counsel. Lester, 81 F.3d at 13 832; Saelee v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996) (per curiam). 14 Evidence of the circumstances under which the report was obtained and its 15 consistency with other records, reports, or findings [can] form a legitimate basis 16 for evaluating the reliability of the report. Reddick v. Chater, 157 F.3d 715, 726 17 (9th Cir. 1998). Given the disparity of plaintiff s performance in the 18 psychological evaluations done by Drs. Gessesse and Berg, and because the 19 opinions of Drs. Gessesse and Khan were consistent with other evidence in the 20 record, it was permissible for the ALJ to discount Dr. Berg s testimony on the 21 basis that it was sought in connection with a disability claim. 22 Even if the ALJ erred in rejecting Dr. Berg s opinion in part because the 23 consultative exam was conducted at the behest of plaintiff s counsel, because the 24 ALJ cited other specific, legitimate reasons for rejecting that testimony there is no 25 error. See Morgan v. Comm r Soc. Sec. Admin., 169 F.3d 595, 601 02 (9th 26 Cir.1999) (noting that if an ALJ relies upon an impermissible reason to discount a 27 doctor s credibility, there is no error if he also relies upon other, permissible 28 evidence to do so); see also Hammond v. Astrue, 2008 WL 276360, at *24 11 1 (D. Ariz. Jan. 29, 2008). 2 The ALJ s decision to discount Dr. Berg s opinion was permissible and 3 supported by the record. Though plaintiff s briefing devotes much time 4 addressing the findings of Dr. Berg, she completely disregards the findings of Drs. 5 Gessesse and Khan to the contrary. See Pl. Mem. at 5-8 (discussing Dr. Berg s 6 opinion but not Drs. Gessesse or Khan). Plaintiff has at best made an argument 7 that the record supports more than one rational interpretation. Such an argument 8 is insufficient to show legal error because [i]f the record would support more than 9 one rational interpretation, [the court] defer[s] to the ALJ s decision. Bayliss v. 10 Barnhart, 427 F.3d at 1214 n. 1 (9th Cir. 2005) (citation omitted). Accordingly, 11 the ALJ did not err when he determined that plaintiff s mental impairment is not 12 severe. 13 B. It Was Unnecessary at Step Three for the ALJ to Consult a Mental 14 Health Expert 15 Plaintiff argues that because the ALJ erred in determining that plaintiff s 16 mental impairment is not severe at step two as discussed above, his failure to 17 consult a mental health expert to determine if plaintiff met or equaled a listing at 18 step three was in error. Pl. Mem. at 9-10. The court disagrees. 19 As discussed above, the ALJ did not err at step two when he found that 20 plaintiff s mental impairment was not severe. If an impairment is found to be non21 severe at step two, that impairment cannot form the basis for a claim of disability. 22 See 20 C.F.R. § 404.1520 ( If you do not have a severe medically determinable 23 physical or mental impairment that meets the duration requirement . . . we will find 24 that you are not disabled. ); see also Sutton v. Colvin, 2013 WL 1290802, at *8 25 (E.D. Wash. Mar. 27, 2013) ( because the ALJ properly found plaintiff's 26 depression is not severe at step two, he could not have erred at step three regarding 27 equivalency of a non-severe impairment. ). Thus, an ALJ must only analyze an 28 impairment to determine if it meets or exceeds a listing at step three if that 12 1 impairment is found to be severe at step two. It was therefore unnecessary for the 2 ALJ to consult a mental health expert at step three, because plaintiff s mental 3 health impairment was found to be non-severe at step two. Accordingly, the ALJ 4 did not err at step three. 5 V. 6 CONCLUSION 7 IT IS THEREFORE ORDERED that Judgment shall be entered 8 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 9 the complaint with prejudice. 10 11 DATED: May 22, 2013 12 13 14 SHERI PYM United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13

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