Goldassio v. Commissioner of Social Security, No. 5:2017cv00198 - Document 26 (N.D. Cal. 2018)

Court Description: Order denying 18 Plaintiff's motion for summary judgment and granting 24 Defendant's motion for summary judgment. Signed by Magistrate Judge Howard R. Lloyd on 5/14/2018. (hrllc3S, COURT STAFF) (Filed on 5/14/2018)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 JOHN PAUL GOLDASSIO, Plaintiff, 9 United States District Court Northern District of California ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT v. 10 11 Case No.17-cv-00198-HRL COMMISSIONER OF SOCIAL SECURITY, 12 Re: Dkt. Nos. 18, 24 Defendant. 13 14 I. INTRODUCTION 15 Plaintiff John Paul Goldassio (“Goldassio”) appeals a final decision by Defendant Nancy 16 A. Berryhill, Acting Commissioner of the Social Security Administration (“the Commissioner”), 17 to deny Goldassio’s application for disability benefits under the Social Security Act. Each party 18 now moves for summary judgment. Dkt. Nos. 18, 24. For the reasons described below, the Court 19 denies Goldassio’s motion and grants the Commissioner’s cross-motion for summary judgment. 20 All parties consented to have this matter adjudicated by a magistrate judge. Dkt. Nos. 5, 21 10. 22 II. BACKGROUND 23 A. 24 Born in 1983, Goldassio graduated from high school and went on to earn an associate’s Medical History 25 degree in computer science. AR 34. In September 2011, he was only a few months into a new job 26 as a computer support specialist with the Ghirardelli chocolate company when, while bending 27 down to open a box of hard drives, he heard a “pop” in his lower back. AR 325, 335. Ghiradelli 28 laid Goldassio off soon after the injury, and Goldassio has not worked ever since. AR 325. Goldassio complained of lower back pain registering between eight or nine on a scale of 2 ten, AR 335, but a November 2011 MRI came back “normal,” AR 337. Goldassio was initially 3 prescribed hydrocodone with acetaminophen, a cold/hot pack, and physical therapy three times a 4 week. AR 336. He was later given a TENS unit and encouraged to walk, swim, and cycle for 5 exercise. AR336-37. A treating source described an April 2012 MRI as “quite unremarkable,” 6 AR 341, and although a later MRI scan revealed “mild central spinal stenosis,” Goldassio’s doctor 7 told him he was “essentially normal,” AR 680. Goldassio said he was still in pain, but his 8 chiropractor wrote “[p]ossible SX [symptom] magnification.” AR 328. Similarly, a doctor 9 reported, “[P]atient has large symptom amplifications, states that he is not better and wants refill 10 on [hyrdocodone]. Objective complaints not consistent with objective findings. It is noted that 11 United States District Court Northern District of California 1 the patient has secondary gains.” AR 336. 12 Goldassio eventually fell into depression. He started complaining of “visual illusions” (as 13 opposed to hallucinations), which Goldassio guessed were caused by a prescription muscle 14 relaxer. AR 417-18. In June 2013, Faith Tobias, PhD, a consultative examiner, conducted a 15 mental status exam. AR 417-20. Among other things, her report says, “Registration: 3/3 words 16 registered on the first trial. Short-Delay Recall: 3/3 words recalled. Attention/Concentration: The 17 claimant was able to correctly complete serial sevens.” AR 418. Based on those and other tests, 18 Dr. Tobias assigned Goldassio a Global Assessment of Functioning (“GAF”) score of 65 19 (indicating mild symptoms) and concluded that his cognitive and emotional problems caused at 20 most mild impairment of his ability to work. AR 420. State agency psychologists who later 21 reviewed Goldassio’s disability application reached similar conclusions. Randall Garland, PhD, 22 noted that Goldassio had exhibited a “slightly restricted affect” at times, but Dr. Garland 23 concluded that the record did not “establish the presence of a medically determinable mental 24 impairment. AR 47. A second state agency psychologist, Margaret Pollack, PhD, later agreed 25 with Dr. Garland’s assessment. AR 69-70. 26 The depression persisted, however, and Goldassio attended therapy through much of 2014. 27 Randall Wright, Psy.D, noted that Goldassio reported continuing back pain – nine out of ten – 28 “occasional visual hallucinations,” and a “restricted” affect. AR 661. In February Wright 2 1 conducted tests of Goldassio’s memory and cognitive abilities. “[Goldassio] was able to correctly 2 calculate 5 simple subtraction problems (serial 7s). His delayed memory was moderately impaired 3 as he was only able to recall 1 word after an interference task. . . . [T]he patient endorsed a 4 moderate-to-severe form of depression.” AR 657. Dr. Wright concluded that Goldassio was 5 “[f]rom a cognitive standpoint, grossly intact, with mild impairment in attention and delayed 6 recall.” AR 658. 7 In August 2014, Goldassio began therapy with a Halo Saleem, MD, a psychiatrist. AR 8 719-20. Over the course of five sessions conducted between August and November, Goldassio 9 reported auditory and visual hallucinations and mild-to-severe anxiety. AR 714-20. Dr. Saleem noted that Goldassio exhibited poor memory and attention/concentration. Id. He assigned 11 United States District Court Northern District of California 10 Goldassio a GAF score of 60, indicating moderate symptoms. AR 718. In November Dr. Saleem 12 prepared a check-the-box questionnaire, which said that Goldassio suffered “markedly limited” 13 functioning in areas such as “ability to maintain attention for extended periods,” “ability to 14 complete a normal workday and work-week without interruptions from psychologically based 15 symptoms,” and “ability to get along with co-workers and peers without unduly distracting them 16 or exhibiting behavioral extremes.” AR 498-99. Dr. Saleem concluded that Goldassio’s 17 problems, which stemmed from his “severe depression,” would prevent him from carrying on a 18 job. Id. 19 B. 20 Goldassio applied for benefits under Titles II and XVI in 2013, alleging that he was 21 disabled as of September 26, 2011. AR 11, 164-175. After the Commissioner denied Goldassio’s 22 application initially and on reconsideration, Goldassio requested a hearing before an 23 administrative law judge (“ALJ”). ALJ Nancy Lisewski presided over a hearing in Oakland in 24 2015. 25 Social Security Administrative Proceedings Two witnesses testified at the hearing. First up was Goldassio, who described his work 26 and educational history, explained that he drove himself to the hearing, and alleged that he could 27 not stand, walk, or sit for even short periods without a break. AR 32-36. Goldassio said he does 28 not do yard work or clean dishes, but he helps wash his laundry and goes grocery shopping with 3 1 the assistance of family members. AR 37-38. Next a vocational expert offered testimony about 2 Goldassio’s prior work experience. The expert explained that a hypothetical person of Goldassio’s 3 age, education, and work background could perform Goldassio’s earlier jobs despite being limited 4 to “medium” work. AR 40-41. 5 The ALJ issued a written decision in August 2015. After concluding that Goldassio met 6 the insured status requirements for Title II benefits, the ALJ considered the disability claim with 7 the five-step, sequential evaluation approach required by the Commissioner’s regulations. At step 8 one, the ALJ found that Goldassio had not performed substantial gainful activity since the alleged 9 onset date of his disability. AR 13. At step two, the ALJ found that Goldassio had only one severe impairment, lumbosacral strain, and that his depression was not severe. AR 13-15. At step 11 United States District Court Northern District of California 10 three, the ALJ determined that none of Goldassio’s impairments or combinations thereof met or 12 were medically equivalent to the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that Goldassio had a residual functional capacity (“RFC”) to 13 14 perform “the full range of medium work as defined in 20 CFR 4041567.1567(c) and 416.967(c).” 15 AR 16. In determining the RFC, the ALJ concluded that Goldassio’s statements concerning his 16 symptoms were not entirely credible. AR 19-20. The ALJ gave significant weight to the opinions 17 of Drs. Toibias, Garland, and Pollack, and little weight to the opinion of Dr. Saleem. AR 20-21. 18 Dr. Saleem’s opinion was “based primarily on the claimant’s subjective reporting of symptoms, 19 [did] not appear to be supported by any objective testing, was drafted after a relatively short 20 treatment relationship, and [was] not supported by the weight of the evidence.” AR 21. The Appeals Council later denied Goldassio’s request for review of the ALJ’s decision, so 21 22 Goldassio filed a civil action in this Court. 23 III. LEGAL STANDARD 24 A. 25 This Court has jurisdiction to review the Commissioner's decision to deny benefits but Standard of Review 26 must affirm if the Commissioner's decision applied the correct legal standards and is supported by 27 substantial evidence. 42 U.S.C. § 405(g) (“findings of the Commissioner . . . as to any fact, if 28 supported by substantial evidence, shall be conclusive”); Molina v. Astrue, 674 F.3d 1104, 1110 4 1 (9th Cir. 2012). Substantial evidence is “such relevant evidence as a reasonable mind might 2 accept as adequate to support a conclusion,” and is “more than a mere scintilla, but may be less 3 than a preponderance.” Molina, 674 F.3d. at 1110-11 (citations omitted). A court must consider 4 the record as a whole when assessing whether the Commissioner's decision is supported by 5 substantial evidence. Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986). “If the evidence is 6 susceptible to more than one rational interpretation, the court may not substitute its judgment for 7 that of the Commissioner.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations 8 omitted). 9 B. Standard for Determining Disability The Social Security Act defines disability as the “inability to engage in any substantial 10 United States District Court Northern District of California 11 gainful activity by reason of any medically determinable physical or mental impairment which can 12 be expected to result in death or which has lasted or can be expected to last for a continuous period 13 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). Additionally, the impairment must be 14 so severe that a claimant is unable to do previous work, and cannot “engage in any other kind of 15 substantial gainful work which exists in the national economy,” considering the claimant’s age, 16 education, and work experience. Id. § 423(d)(2)(A). 17 In determining whether a claimant has a disability, an ALJ follows a five-step analysis: 18 1. At step one, the ALJ determines whether the claimant is engaged in “substantial gainful 19 activity.” 20 C.F.R. § 404.1520(a)(4)(i).1 If so, the claimant is not disabled. If not, the 20 analysis proceeds to step two. 21 2. At step two, the ALJ must assess whether the claimant suffers from a severe “impairment 22 or combination of impairments which significantly limits [the claimant’s] physical or 23 mental ability to do basic work activities.” Id. § 404.1520(a)(4)(ii). If not, the claimant is 24 not disabled. If so, the evaluation proceeds to step three. 3. At step three, the ALJ determines whether the claimant’s impairments or combination of 25 26 27 28 1 All citations to the Code of Federal Regulations refer to the regulations for the Title II (Disability Insurance Benefits) program. The regulations for the Title XVI (Supplemental Security Income) program, which can be found at 20 C.F.R. §§ 416.900-416.999, are virtually identical. 5 1 impairments meets or medically equals the requirements of the Listing of Impairments. Id. 2 § 404.1520(a)(4)(iii). If so, the claimant is disabled. If not, the analysis proceeds to step 3 four. 4. At step four, the ALJ determines whether the claimant has the RFC to perform past work 4 5 despite his or her limitations. Id. § 404.1520(a)(4)(iv). If the claimant can still perform 6 past work, then he or she is not disabled. If not, then the evaluation proceeds to step five. 7 5. At the fifth and final step, the ALJ must determine whether the claimant can perform other 8 substantial gainful work available in the economy, considering the claimant’s RFC, age, 9 education, and work experience. Id. § 404.1520(a)(4)(v). If so, the claimant is not disabled. 10 The claimant bears the burden of proof at steps one through four; the Commissioner has the United States District Court Northern District of California 11 12 burden at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). 13 IV. DISCUSSION 14 A. 15 When a treating physician's opinion is well-supported and not inconsistent with other The ALJ did not err in discounting the opinion of Dr. Saleem 16 substantial evidence in the record, a treating physician's opinion is entitled to controlling weight. 17 Edlund, 253 F.3d at 1157; 20 C.F.R. § 404.1527(c)(2). Even if the treating doctor's opinion is 18 contradicted by other evidence, an ALJ may discount that opinion only for “specific and legitimate 19 reasons that are supported by substantial evidence in the record.” Edlund, 253 F.3d at 1157. For 20 example, an ALJ may discount a medical opinion if it is based primarily on a claimant’s subjective 21 complaints, see Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004), or if 22 the opinion is inconsistent with the record as a whole, 20 C.F.R. § 404.1527(c)(2)(4). 23 Dr. Saleem’s opinion was more pessimistic than the opinions of Goldassio’s other 24 treatment sources. Dr. Tobias, the consultative examiner, thought Goldassio suffered from at most 25 mild impairment of his ability to work, AR 420, and the two non-examining state agency 26 physicians did not even believe there was evidence of a medically determinable mental 27 impairment at all, AR 47, 69-70. Although Dr. Saleem was Goldassio’s treating physician – and 28 his opinion was therefore presumptively entitled to deference – other evidence in the record 6 1 plainly contradicted his opinion about Goldassio. So the relevant question on appeal is whether 2 the ALJ provided specific and legitimate reasons supported by substantial evidence to discount 3 that opinion. Goldassio says no, objecting especially to the ALJ’s argument that Dr. Saleem based his 4 5 opinion on Goldassio’s subjective reporting of symptoms. Dkt. No. 8 at 6-8. He also says Dr. 6 Saleem naturally had few objective ways to reach his conclusions: “The ALJ never specified what 7 other objective testing is available in the mental health realm that Dr. Saleem could have 8 performed. . . . [T]he patient interview and mental status exam[] remain[s] the foundation for” 9 evaluating a claimant’s mental impairments. Dkt. No. 18 at 8. Goldassio’s point about objective testing in the mental health context is fair, at least in the sense that emotional issues are less 11 United States District Court Northern District of California 10 tangible and quantifiable than physical ailments. If Goldassio’s argument is that the ALJ 12 mischaracterized the record, however, the Court disagrees. The ALJ accurately summarized Dr. Saleem’s November 2014 check-the-box form and the 13 14 underlying treatment notes: “Dr. Saleem’s notes from that day [the day he prepared the checkthe-box form] indicate that the claimant had applied for disability and that ‘he saw an orthopedic surgeon who said his back is fine’ and reported visual hallucinations. Dr. Saleem opined that the claimant had marked impairment in his abilities to maintain attention for extended periods, maintain regular attendance and be punctual, make simple work-related decisions, and complete a normal workday without interruptions from psychologically-based symptoms.” 15 16 17 18 19 20 AR 14 (internal citations omitted). As that excerpt suggests, Dr. Saleem’s records were heavy on 21 conclusions but light on explanations.2 By contrast, Drs. Wright and Tobias detailed Goldassio’s 22 actual performance on various memory and concentration tests, and only then offered their 23 opinions about Goldassio’s ability to work. AR 418, 657-58. Goldassio is correct that an ALJ may not dismiss a treating source’s opinion simply 24 25 because it is memorialized in a check-the-box form. See Trevizo v. Berryhill, 871 F.3d 664, 677 26 27 28 2 In fairness, Dr. Saleem prepared what look like more detailed notes but they are, for the most part, illegible. AR 719-20. The portions that are decipherable suggest that the notes focus on Goldassio’s subjective complaints and medical history. 7 1 n.4 (9th Cir. 2017) (“[T]here is no authority that a “check-the-box” form is any less reliable than 2 any other type of form; indeed, agency physicians routinely use these types of forms to assess the 3 intensity, persistence, or limiting effects of impairments.”). An AJL can, however, reject any 4 medical opinion that lacks sufficient support in the record. See Molina v. Astrue, 674 F.3d 1104, 5 1111 (9th Cir. 2012) (“We have held that the ALJ may “permissibly reject[ ] . . . check-off reports 6 that [do] not contain any explanation of the bases of their conclusions.”) (citation omitted); 20 7 C.F.R. § 404.1527 (“The better an explanation a source provides for a medical opinion, the more 8 weight we will give that medical opinion.”). That is what happened here. The ALJ accorded more 9 weight to the doctors, like Tobias and Wright, who offered detailed explanations for their conclusions, and less to the opinion of Dr. Saleem, who did not. Finally, it is up to the ALJ to 11 United States District Court Northern District of California 10 resolve conflicts in the evidence, and this Court must affirm so long as the ALJ’s conclusion was 12 supported by substantial evidence. See Edlund, 253 F.3d at 1156 (9th Cir. 2001). Even though 13 Dr. Saleem’s notes and opinions suggested Goldassio might be disabled, the weight of the other 14 evidence pointed in the opposite direction. The Court sees no error in the ALJ’s conclusion. 15 Additionally, Goldassio objects to the ALJ’s characterization of his relationship with Dr. 16 Saleem as short. Citing Le v. Astrue, 529 F.3d 1200 (9th Cir. 2008), and Ghokassian v. Shalala, 17 41 F.3d 1300 (9th Cir. 1994), Goldassio argues that the four-month, five-visit relationship 18 preceding the November 2014 check-the-box form was “more than enough to establish a treatment 19 relationship” between doctor and patient. Dkt. No. 18 at 9. Goldassio’s argument misses the 20 point. The ALJ never argued that Dr. Saleem had not established a treatment relationship with 21 Goldassio. Instead the ALJ said that although Dr. Saleem was a treating physician, his opinion 22 was entitled to less weight because his treatment relationship with Goldassio was relatively brief. 23 The ALJ was on firm legal footing. Under the regulations, if a treating source’s medical opinion 24 is not entitled to controlling weight, an ALJ must consider various factors when evaluating that 25 treating source’s opinion, and one of the enumerated factors is the length of the treatment 26 relationship. 20 C.F.R. § 404.1527(c)(2). Dr. Saleem’s opinion was not entitled to controlling 27 weight, so it was appropriate for the ALJ to consider the length of the treatment relationship. The 28 Court sees no error here. 8 Finally, Goldassio says, “The Commissioner may argue that the ALJ gave greater weight 1 2 to the other opinions in the file and thus that is substantial evidence to support the rejection of Dr. 3 Saleem’s opinion. Not so. The ALJ never rejected Dr. Saleem’s opinion because of another 4 doctor’s opinion.” Dkt. No. 18 at 9-10. This argument is without merit, as the ALJ expressly 5 chose to credit the opinions of Drs. Garland, and Pollack (and to credit the observations of Dr. 6 Tobias), at the expense of Dr. Saleem. AR 20-21. 7 B. 8 Substantial evidence supported the ALJ’s s conclusion that Goldassio’s depression was not severe “[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims.” 9 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen v. Yuckert, 482 U.S. 137, 11 United States District Court Northern District of California 10 153-54 (1987)). “An impairment or combination of impairments can be found ‘not severe’ only if 12 the evidence establishes a slight abnormality that has “no more than a minimal effect on an 13 individual’s ability to work.” Id. (citing SSR 85-28). Here, the same evidence that cut against Dr. 14 Saleem’s opinion supports the ALJ’s step-two finding of non-severity. Drs. Wright and Tobias 15 both reported that although Goldassio’s performance on cognitive and memory tests was less than 16 perfect, it indicated no more than mild impairment. AR 420, 657-58. The ALJ also justifiably 17 discounted Goldassio’s own account of his symptoms, about which two treating sources had 18 already expressed skepticism. AR 328, 336. The Court sees no error here. 19 V. 20 21 CONCLUSION For the reasons explained above, the Court denies Goldassio’s summary judgment motion and grants the Commissioner’s cross-motion. Judgment will be entered for the Commissioner. 22 23 24 IT IS SO ORDERED. Dated: May 14, 2018 25 26 HOWARD R. LLOYD United States Magistrate Judge 27 28 9

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