Patrick Gerard Obrien v. Carolyn W. Colvin, No. 5:2016cv01627 - Document 24 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that the decision of the Commissioner finding Plaintiff not disabled is AFFIRMED. (ec)
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Patrick Gerard Obrien v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 PATRICK GERARD OBRIEN, 12 Plaintiff NANCY A. BERRYHILL1, Acting Commissioner of Social Security, 14 15 Defendant. 16 I. 17 18 19 20 21 22 23 24 MEMORANDUM OPINION AND ORDER v. 13 Case No. 5:16-cv-01627-GJS PROCEDURAL HISTORY Plaintiff Patrick Gerard Obrien (“Plaintiff”) filed a complaint seeking review of Defendant Commissioner of Social Security’s (“Commissioner”) denial of his application for Supplement Security Income (“SSI”). The parties filed consents to proceed before the undersigned United States Magistrate Judge [Dkts. 11, 12] and briefs addressing disputed issues in the case [Dkt. 19 (“Pltf.’s Br.”); Dkt. 23 (“Def.’s Br.”)]. The Court has taken the parties’ briefing under submission without oral argument. For the reasons set forth below, the Court affirms the decision of the ALJ 25 26 27 28 1 The Court notes that Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration on January 23, 2017. Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended to substitute Nancy A. Berryhill for Carolyn W. Colvin as the defendant in this action. Dockets.Justia.com 1 and orders judgment entered accordingly. II. 2 ADMINISTRATIVE DECISION UNDER REVIEW 3 On May 19, 2014, Plaintiff filed an application for SSI, alleging that he 4 became disabled as of March 1, 2008. [Dkt. 15, Administrative Record (“AR”) 15, 5 141-149.] The Commissioner denied his initial claim for benefits in September 6 2014 and then denied his claim upon reconsideration in May 2015. [AR 15, 46-82.] 7 On January 6, 2016, a hearing was held before Administrative Law Judge (“ALJ”) 8 Jay E. Levine. [AR 30-46.] On February 2, 2016, the ALJ issued a decision 9 denying Plaintiff’s request for benefits. [12-29.] Plaintiff requested review from the 10 Appeals Council on April 3, 2016, but the Appeals Council denied his request for 11 review on July 25, 2016. [AR 7-11.] 12 Applying the five-step sequential evaluation process, the ALJ found that 13 Plaintiff was not disabled. See 20 C.F.R. § 416.920(b)-(g)(1). At step one, the ALJ 14 concluded that Plaintiff had not engaged in substantial gainful activity since the 15 application date. [AR 17.] At step two, the ALJ found that Plaintiff suffered from 16 the following severe impairments: status post triple bypass surgery, status post 17 multiple myocardial infarctions/heart attacks, and bilateral torn rotator cuffs. [Id. 18 (citing 20 C.F.R. § 416.920(c).] Next, the ALJ determined that Plaintiff did not 19 have an impairment or combination of impairments that meets or medically equals 20 the severity of one of the listed impairments. [AR 18 (citing 20 C.F.R. Part 404, 21 Subpart P, Appendix 1; 20 C.F.R. §§ 416.920(d), 416.925, and 416.926).] 22 23 24 25 The ALJ found that Plaintiff had the following residual functional capacity (RFC): [M]edium work as defined in 20 CFR 416.967(c) except he may not lift above shoulder level with either upper extremity. 26 [AR 18.] Applying this RFC, the ALJ found that Plaintiff had no past relevant 27 work, but determined that based on his age (61 years old), high school education, 28 and ability to communicate in English, he could perform representative occupations 2 1 such as hand packager (DOT 920.587-018), food mixer (DOT 520.687-034), and 2 inspector-packager (DOT 920.587-018) and, thus, is not disabled. [AR 23-24.] 3 4 III. GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 5 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 6 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 7 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 8 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 9 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 10 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 11 also Hoopai, 499 F.3d at 1074. 12 13 IV. DISCUSSION Plaintiff contends that the ALJ erred in finding that his adjustment disorder 14 mixed with anxiety and depression were not severe. [Pltf.’s Br. at 9-13.] The 15 Commissioner argues that substantial evidence supports the ALJ’s finding that 16 Plaintiff did not have a severe mental impairment. [Def.’s Br. at 2.] 17 At step two of the sequential evaluation process, a plaintiff has the burden to 18 present evidence of medical signs, symptoms, and laboratory findings that establish 19 a medically determinable physical or mental impairment that is severe and can be 20 expected to result in death or last for a continuous period of at least 12 months. 21 Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 (9th Cir. 2005) (citing 42 U.S.C. §§ 22 423(d)(3), 1382c(a)(3)(D)); see also 20 C.F.R. §§ 416.912, 416.921. Substantial 23 evidence supports an ALJ’s determination that a claimant is not disabled at step two 24 when “there are no medical signs or laboratory findings to substantiate the existence 25 of a medically determinable physical or mental impairment.” Ukolov, 420 F.3d at 26 1004-05 (citing Social Security Ruling (“SSR”) 96-4p). An impairment may never 27 be found on the basis of the claimant’s subjective symptoms alone. Id. at 1005. 28 3 1 Step two is “a de minimis screening device [used] to dispose of groundless 2 claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Applying the 3 applicable standard of review to the requirements of step two, a court must 4 determine whether an ALJ had substantial evidence to find that the medical 5 evidence clearly established that the claimant did not have a medically severe 6 impairment or combination of impairments. Webb v. Barnhart, 433 F.3d 683, 687 7 (9th Cir. 2005); see also Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988) 8 (“Despite the deference usually accorded to the Secretary’s application of 9 regulations, numerous appellate courts have imposed a narrow construction upon the 10 severity regulation applied here.”). An impairment or combination of impairments 11 is “not severe” if the evidence established only a slight abnormality that had “no 12 more than a minimal effect on an individual’s ability to work.” Webb, 433 F.3d at 13 686 (internal citation omitted). The ability to do “basic work activities” is defined 14 as “the abilities and aptitudes necessary to do most jobs,” including: (1) walking, 15 standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) seeing, 16 hearing, or speaking; (3) understanding, carrying out, and remembering simple 17 instructions; (4) use of judgment; (5) responding appropriately to supervision, co- 18 workers and usual work situations; and (6) dealing with changes in a routine work 19 setting. 20 C.F.R. § 416.922(b). 20 Here, the ALJ determined at step two of the 5-step analysis that Plaintiff had 21 adjustment disorder mixed with anxiety and depression; however, he characterized 22 Plaintiff’s conditions as “not severe” because: (1) Plaintiff attended but failed to 23 fully participate in his psychological consultative examination; (2) the consultative 24 psychologist, Dr. Colette Valette, Ph.D., concluded that it was highly likely that 25 Plaintiff had no mental restrictions; (3) Plaintiff reported a wide range of daily 26 activities; (4) Plaintiff sought little to no treatment for his alleged mental 27 impairments; and (5) Plaintiff denied symptoms of depression at multiple exams. 28 4 1 [AR 18.] Plaintiff contends that the ALJ’s finding is contrary to the evidence. 2 [Pltf.’s Br. at 9-13.] The Court disagrees. 3 4 1. Psychological Consultative Examination To clarify the record as to the severity of Plaintiff’s mental impairments, the 5 Commissioner ordered a psychological consultative examination to assess Plaintiff’s 6 adjustment disorder, anxiety, and depression in July 2014. [AR 18.] However, 7 Plaintiff refused to participate in most of the exam. [AR 18, 364-367.] The 8 examiner, Colette Valette, Ph.D., opined that it was highly likely that Plaintiff had 9 no mental restrictions and estimated that Plaintiff is intellectually functioning in the 10 average range. [AR 18, 367.] Due to Plaintiff’s poor participation in the exam, Dr. 11 Valette did not give any diagnoses. [AR 364-367.] The two non-examining 12 medical consultants subsequently found that Plaintiff had no severe mental 13 impairments. [AR 46-82.] 14 Plaintiff argues that the ALJ erred in adopting the conclusion of examining 15 physiatrist because her conclusion is inconsistent with the medical evidence as a 16 whole. [Pltf.’s Br. at 11.] Plaintiff also argues that he does not have the capacity to 17 articulate whether he suffers from a mental impairment and that his poor 18 participation in the psychological consultative exam depicts “a person who has a 19 difficult time admitting he has a mental impairment.” [Pltf.’s Br. at 10.] 20 Plaintiff points to several emergency room and doctor’s office visits in 21 January to May 2015, in which he was diagnosed with insomnia associated with 22 anxiety disorder and mild depression and referred to behavioral health. [AR 419- 23 420, 422-424, 448, 499, 501, 536, 592.] However, Plaintiff fails to establish how 24 these records are inconsistent with Dr. Valette’s opinion. Plaintiff’s diagnoses of 25 mild depression and insomnia associated with anxiety disorder alone are insufficient 26 for finding a “severe” mental impairment, as required by the social security 27 regulations. 20 C.F.R. § 416.920(a)(4)(ii). Having reviewed the entirety of the 28 record, the Court agrees with ALJ’s assessment that Dr. Valette’s opinion that 5 1 Plaintiff has no mental restrictions is not inherently inconsistent with his diagnoses 2 of insomnia associated with anxiety disorder and mild depression in the medical 3 record. Accordingly, remand is not appropriate on this basis. See Febach v. Colvin, 4 580 F. App’x. 530, 531 (9th Cir. 2014) (affirming ALJ’s reliance on doctors’ 5 conclusions that claimant’s depression was not severe). 6 In addition, if a plaintiff is “applying for benefits and do[es] not have a good 7 reason for failing or refusing to take part in a consultative examination or test which 8 [the Commissioner] arrange[s] for [the claimant] to get information [it] need[s] to 9 determine [the claimant’s] disability or blindness, [the Commissioner] may find that 10 [the claimant is] not disabled” See 20 C.F.R. § 416.918; see also McCann v. Astrue, 11 No. EDCV 09–1432, 2010 WL 2803964 (C.D. Cal. July 15, 2010). Here, there is 12 nothing in the record to support Plaintiff’s argument that his failure to cooperate 13 with the consultative examiner was due to his mental impairments or denial of his 14 mental impairments. To the contrary, the record shows that Plaintiff reported to the 15 emergency room numerous times for anxiety and provided information requested of 16 him at office visits regarding his anxiety and depression. [AR 419-420, 422-424, 17 448, 499, 501, 536, 592] Accordingly, Plaintiff has failed to show good cause for 18 his failure to cooperate with Dr. Valette during his consultative examination, which 19 further supports the ALJ’s finding that Plaintiff is not disabled. 20 2. Daily Activities 21 Plaintiff testified that he was able to perform about 30 minutes of 22 cardiovascular exercise per day until about April 2015, nine months before the 23 hearing date, and well after the May 19, 2014 application date. [AR 41.] In 24 addition, Plaintiff reported a wide range of daily activities in his Function Report, 25 including, listening to his iPod, reading, praying, shaving, feeding himself, using the 26 toilet, preparing simple meals, driving a vehicle, shopping at stores, paying bills, 27 counting change, and handling a checking/savings account. Plaintiff denied having 28 problems getting along with family, friends, neighbors, authority figures, or anyone 6 1 else. [AR 178-186, 366.] In short, Plaintiff did not describe restrictions in his daily 2 activities caused by adjustment disorder, depression, or anxiety at the hearing or in 3 his Function Report. Plaintiff argues that the ALJ ignored evidence that Plaintiff is 4 homeless, sleeps in his car, and uses the gym, in part, to shower. [Pltf.’s Br. at 11- 5 13.] However, these additional facts do not negate the conclusion that Plaintiff’s 6 daily activities, both leisurely and otherwise, are arguably inconsistent with severe 7 adjustment disorder, anxiety, and/or depression. Accordingly, Plaintiff’s reported 8 daily activities support the ALJ’s finding that Plaintiff’s mental impairments were 9 not severe and Plaintiff could perform medium work.2 V. 10 For all of the foregoing reasons, IT IS ORDERED that the decision of the 11 12 CONCLUSION Commissioner finding Plaintiff not disabled is AFFIRMED. 13 14 IT IS SO ORDERED. 15 16 DATED: April 25, 2017 17 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 2 The other two reasons cited by the ALJ for determining that Plaintiff’s mental impairments were not severe, Plaintiff’s conservative treatment and subjective symptom testimony, are likely not legally sufficient reasons, by themselves, to find that Plaintiff’s mental impairments were non-severe at step two of the sequential evaluation. However, the Court declines to address these additional reasons as it finds that the ALJ’s decision is reasonably based on Dr. Valette’s medical opinion, Plaintiff’s failure to fully participate in the consultative exam, and Plaintiff’s report of his daily activities, and thus, is not reversible error. 7
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