Scott Hilton v.Carolyn W. Colvin, No. 2:2015cv00806 - Document 17 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Scott Hilton v.Carolyn W. Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SCOTT HILTON, Plaintiff, 12 13 v. 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. CV 15-0806-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying his application for Social Security disability insurance 21 benefits (“DIB”). 22 the undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 23 The matter is before the Court on the parties’ Joint Stipulation, 24 filed October 23, 2015, which the Court has taken under 25 submission without oral argument. 26 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of For the reasons stated below, 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1959. (Administrative Record (“AR”) 3 133.) 4 guard supervisor, tool mechanic/repairer, and auto-body helper. 5 (AR 21-22, 154.) 6 He obtained a GED and worked as a preparation cook, guard, On November 17, 2011, Plaintiff applied for DIB, alleging 7 that he had been unable to work since January 19, 2011, because 8 of cirrhosis of the liver, portal hypertension, “ascites, edema,” 9 “generalized anxiety disorder,” and “back pain (lumbar #5).” 10 133.) 11 before an Administrative Law Judge. 12 on May 9, 2013, at which Plaintiff, who was unrepresented, 13 testified, as did a vocational expert. 14 decision issued June 11, 2013, the ALJ found Plaintiff not 15 disabled. 16 denied Plaintiff’s request for review. 17 followed. 18 (AR III. STANDARD OF REVIEW 19 After his application was denied, he requested a hearing (AR 12-22.) (AR 98.) A hearing was held (AR 30-72.) In a written On December 4, 2014, the Appeals Council (AR 1.) This action Under 42 U.S.C. § 405(g), a district court may review the 20 Commissioner’s decision to deny benefits. 21 decision should be upheld if they are free of legal error and 22 supported by substantial evidence based on the record as a whole. 23 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 24 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 25 evidence means such evidence as a reasonable person might accept 26 as adequate to support a conclusion. 27 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 28 It is more than a scintilla but less than a preponderance. 2 The ALJ’s findings and Substantial Richardson, 402 U.S. at 1 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 2 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 3 substantial evidence supports a finding, the reviewing court 4 “must review the administrative record as a whole, weighing both 5 the evidence that supports and the evidence that detracts from 6 the Commissioner’s conclusion.” 7 720 (9th Cir. 1996). 8 either affirming or reversing,” the reviewing court “may not 9 substitute its judgment” for the Commissioner’s. 10 IV. To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 11 People are “disabled” for purposes of receiving Social 12 Security benefits if they are unable to engage in any substantial 13 gainful activity owing to a physical or mental impairment that is 14 expected to result in death or has lasted, or is expected to 15 last, for a continuous period of at least 12 months. 16 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 17 1992). 42 U.S.C. 18 A. The Five-Step Evaluation Process 19 The ALJ follows a five-step sequential evaluation process to 20 assess whether a claimant is disabled. 20 C.F.R. 21 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 22 Cir. 1995) (as amended Apr. 9, 1996). 23 Commissioner must determine whether the claimant is currently 24 engaged in substantial gainful activity; if so, the claimant is 25 not disabled and the claim must be denied. In the first step, the § 404.1520(a)(4)(i). 26 If the claimant is not engaged in substantial gainful 27 activity, the second step requires the Commissioner to determine 28 whether the claimant has a “severe” impairment or combination of 3 1 impairments significantly limiting his ability to do basic work 2 activities; if not, the claimant is not disabled and the claim 3 must be denied. 4 § 404.1520(a)(4)(ii). If the claimant has a “severe” impairment or combination of 5 impairments, the third step requires the Commissioner to 6 determine whether the impairment or combination of impairments 7 meets or equals an impairment in the Listing of Impairments 8 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 9 1; if so, disability is conclusively presumed. 10 § 404.1520(a)(4)(iii). 11 If the claimant’s impairment or combination of impairments 12 does not meet or equal an impairment in the Listing, the fourth 13 step requires the Commissioner to determine whether the claimant 14 has sufficient residual functional capacity (“RFC”)1 to perform 15 his past work; if so, he is not disabled and the claim must be 16 denied. 17 proving he is unable to perform past relevant work. 18 F.2d at 1257. 19 case of disability is established. § 404.1520(a)(4)(iv). The claimant has the burden of Drouin, 966 If the claimant meets that burden, a prima facie Id. 20 If that happens or if the claimant has no past relevant 21 work, the Commissioner then bears the burden of establishing that 22 the claimant is not disabled because he can perform other 23 substantial gainful work available in the national economy. 24 § 404.1520(a)(4)(v); Drouin, 966 F.2d at 1257. 25 determination comprises the fifth and final step in the That 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 sequential analysis. § 404.1520(a)(4)(v); Lester, 81 F.3d at 828 2 n.5; Drouin, 966 F.2d at 1257. 3 B. The ALJ’s Application of the Five-Step Process 4 At step one, the ALJ found that Plaintiff had not engaged in 5 substantial gainful activity since January 19, 2011, the alleged 6 onset date. 7 had the severe impairments of “liver cirrhosis with portal 8 hypertension and lumbar degenerative joint and disc disease.” 9 (Id.) (AR 14.) At step two, he concluded that Plaintiff He found that Plaintiff’s mental impairments of “alcohol 10 abuse/dependence, in remission, anxiety, and depression” were not 11 severe. 12 Plaintiff’s impairments did not meet or equal any of the 13 impairments in the Listing. 14 that Plaintiff had the RFC to perform light work with additional 15 physical restrictions but no mental ones. 16 VE’s testimony, the ALJ concluded that Plaintiff could perform 17 his past relevant work as a guard and guard supervisor. 18 Accordingly, he found Plaintiff not disabled. 19 V. 20 The ALJ Properly Found Plaintiff’s Mental Impairments Not Severe 21 22 (Id.) At step three, the ALJ determined that (AR 16.) At step four, he found (Id.) Based on the (AR 21.) (AR 22.) DISCUSSION Plaintiff claims the ALJ erred in finding his mental impairments not severe. (J. Stip. at 4-13, 18-19.) 23 A. Applicable law 24 The step-two inquiry is “a de minimis screening device to Smolen v. Chater, 80 F.3d 1273, 25 dispose of groundless claims.” 26 1290 (9th Cir. 1996). 27 he has one or more “severe” medically determinable impairments 28 that can be expected to result in death or last for a continuous The claimant has the burden to show that 5 1 period of at least 12 months, as demonstrated by evidence in the 2 form of signs, symptoms, or laboratory findings. 3 Yuckert, 482 U.S. 137, 146 n.5 (1987); §§ 404.1508, 4 404.1520(a)(4)(ii); Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 5 (9th Cir. 2005). 6 if it “significantly limits [the claimant’s] physical or mental 7 ability to do basic work activities.”2 8 § 404.1521(a). 9 be found ‘not severe only if the evidence establishes a slight See Bowen v. A medically determinable impairment is “severe” § 404.1520(c); see also “An impairment or combination of impairments may 10 abnormality that has no more than a minimal effect on an 11 individual’s ability to work.’” 12 686 (9th Cir. 2005) (emphasis in original) (quoting Smolen, 80 13 F.3d at 1290). 14 evidence in the record supported the ALJ’s finding that a 15 particular impairment was not severe. Webb v. Barnhart, 433 F.3d 683, A court must determine whether substantial See id. at 687. 16 B. Analysis 17 The ALJ found that Plaintiff had medically determinable 18 mental impairments of “alcohol abuse/dependence, in remission, 19 anxiety, and depression” but that those impairments caused no 20 more than a “minimal limitation” in his “ability to perform basic 21 mental work activities” and were thus not severe. 22 Substantial evidence supported that determination, as discussed 23 below. 24 (AR 14.) As the ALJ noted, although Plaintiff’s primary-care 25 26 27 28 2 “Basic work activities” include, among other things, “[p]hysical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling” and “[c]apacities for seeing, hearing, and speaking.” § 404.1521(b); accord Yuckert, 482 U.S. at 141. 6 1 physicians diagnosed and prescribed low-dose medication for 2 depression and anxiety, very few objective clinical findings 3 supported those diagnoses, suggesting that Plaintiff’s mental- 4 health treatment was based on his subjective complaints. 5 Febach v. Colvin, 580 F. App’x 530, 531 (9th Cir. 2014) (finding 6 that diagnosis of depression “alone [was] insufficient for 7 finding a ‘severe’ impairment” when other evidence in record 8 suggested that impairment was not severe). 9 February 2011, Plaintiff’s primary-care physician diagnosed See For example, in 10 depression and anxiety but noted normal psychiatric findings. 11 (AR 217.) 12 not mention treatment for depression or anxiety and continued to 13 indicate normal psychiatric findings. 14 2011, a different primary-care physician noted that Plaintiff had 15 been taking mirtazapine and chlordiazepoxide3 since January 2011 16 and refilled the prescriptions but did not diagnose depression or 17 anxiety. 18 physician noting Aug. 2011 continuation of psychiatric medication 19 but not diagnosing depression or anxiety).) Later treatment notes, from April to June 2011, did (AR 212-14.) In August (AR 285, 288, 290; see also AR 292-93 (in Sept. 2011, In December 2011, a 20 21 22 23 24 25 26 27 28 3 Mirtazapine is used to treat depression. See Mirtazapine, MedlinePlus, http://www.nlm.nih.gov/medlineplus/druginfo/meds/ a697009.html (last updated Dec. 15, 2014). Chlordiazepoxide, also known by the brand name Librium, is used to treat anxiety and control agitation caused by alcohol withdrawal. See Chlordiazepoxide, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a682078.html (last updated July 16, 2012). Plaintiff apparently stopped drinking in January 2011. (See AR 54 (Plaintiff testifying that he stopped drinking after hospitalization for esophageal bleeding), 284 (Plaintiff was hospitalized in Jan. 2011); see also AR 217 (health-risk assessment indicating in Feb. 2011 that Plaintiff quit drinking one month earlier).) 7 1 third primary-care physician diagnosed depression based on 2 Plaintiff’s self-reported history. 3 to March 2013, the physician prescribed psychiatric medications 4 despite noting normal psychiatric findings and not conducting any 5 mental-status examination. 6 prescribing medication without conducting mental-status 7 examination), 428-30 (in July 2012, noting that Plaintiff was 8 “[n]egative” for anxiety, depression, insomnia, and memory 9 impairment), 432 (in Aug. 2012, noting that Plaintiff had normal (AR 422-23.) From June 2012 (See AR 426 (in June 2012, 10 insight, normal judgment, and appropriate mood and affect), 435 11 (in Oct. 2012, continuing medication without conducting mental- 12 status examination), 437-38 (in Mar. 2013, noting that Plaintiff 13 had normal insight, normal judgment, and appropriate mood and 14 affect).) 15 and anxiety, the record showed that his treatment was based on 16 his subjective complaints, which are insufficient to establish a 17 severe impairment. 18 10–9080–SP, 2012 WL 83858, at *5-6 (C.D. Cal. Jan. 11, 2012) (in 19 finding claimant’s mental impairment not severe, ALJ properly 20 rejected treating physician’s opinion because it was based on 21 claimant’s subjective complaints); cf. Ukolov, 420 F.3d at 1005- 22 06. 23 Thus, even though Plaintiff was treated for depression See Mitchell-St. Julien v. Astrue, No. CV Further, treatment notes showed that medication improved 24 Plaintiff’s self-reported anxiety and depression. 25 v. Colvin, 608 F. App’x 480, 481 (9th Cir. 2015) (affirming ALJ’s 26 determination that claimant’s mental impairments were not severe 27 in part because treatment notes indicated that claimant’s 28 “depression and anxiety were either mild or improved with 8 See Davenport 1 treatment”). For example, in July 2012, Plaintiff reported that 2 although some days “he [could] get overwhelmed,” he was “stable.” 3 (AR 427.) 4 and was on Paxil4 and reported that he was “doing fine.” 5 431.) 6 with “less mood issues/anxious,” but because of side effects he 7 was switched to Lexapro.5 8 reported “[n]o further significant rage/irritability” with 9 Lexapro, and although he had “some anxiety still,” he was not In August 2012, he was off Librium (chlordiazepoxide) (AR In October 2012, he reported “feeling better” on Paxil, (AR 434-35.) 10 “obsessed over it.” 11 only medication Plaintiff was taking for his mental health was a 12 “low dose” of Paxil for self-described “mild bouts of 13 depression.” 14 “stabilizing, doing better now.” 15 (AR 436.) In March 2013, Plaintiff (AR 48.) At the time of the hearing, the He testified that his medicines were (AR 58.) Finally, in his application for benefits, Plaintiff did not 16 allege depression as a disabling mental impairment; he alleged 17 only generalized anxiety disorder. 18 hearing why he couldn’t work, he didn’t point to any mental- 19 health issues but rather only his portal hypertension. 20 42-43.) 21 mental-health treatment from a psychiatrist or psychologist or (AR 153.) When asked at the (See AR Plaintiff acknowledged that he had never received 22 23 24 25 26 27 28 4 Paxil is a brand name for paroxetine, which is used to treat depression and generalized anxiety disorder, among other mental disorders. See Paroxetine, MedlinePlus, http:// www.nlm.nih.gov/medlineplus/druginfo/meds/a698032.html (last updated Nov. 15, 2014). 5 Lexapro is a brand name for escitalopram, which is used to treat depression and generalized anxiety disorder. See Escitalopram, MedlinePlus, http://www.nlm.nih.gov/medlineplus/ druginfo/meds/a603005.html (last updated Feb. 15, 2016). 9 1 been hospitalized for psychiatric problems. (AR 48.) He also 2 stated that his “mild bouts of depression” were “due to not 3 working and not having any kind of a lifestyle whatsoever.” 4 (Id.) 5 inability to do much around the house was attributable to the 6 “sedat[ing]” side effect of one of the medications he took for 7 his physical conditions (AR 43; see also AR 58-59) — and 8 presumably was not caused by his “mild” depression. 9 these reasons, the ALJ properly found that Plaintiff’s mental Further, Plaintiff testified that much of his lethargy and For all 10 impairments caused no more than minimal limitation in his ability 11 to perform basic work activities and were therefore not severe. In making his determination, the ALJ properly discounted the 12 13 opinions of the consultative examining psychiatrist and 14 nonexamining state-agency physician. 15 consultative psychiatrist, examined Plaintiff in March 2012 and 16 diagnosed “[m]ajor depression, recurrent, unspecified.” 17 316.) 18 impaired” in his ability to “follow simple one or two step 19 instructions,” “maintain attention and concentration required to 20 perform work-related tasks,” and “withstand the stress of a 21 routine workday and adapting [sic] to change.” 22 Elizabeth Leftik, a state-agency psychologist, reviewed 23 Plaintiff’s records and prepared a case analysis. 24 Among other things, she found that Plaintiff had moderate 25 difficulties in maintaining concentration, persistence, or pace Dr. Pramual Pinanong, the (AR Dr. Pinanong opined that Plaintiff was “moderately 26 27 28 10 (AR 317.) Dr. (AR 79-80.) 1 and concluded that he had a severe affective disorder. 2 (AR 79.)6 The ALJ properly gave “little weight” to Dr. Pinanong’s 3 opinion because it was inconsistent with Plaintiff’s 4 “longitudinal mental health treatment records,” which contained 5 little objective medical support, as discussed above. 6 see Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) 7 (ALJ may properly reject examining physician’s opinion “for lack 8 of objective support”); Mendoza v. Astrue, 371 F. App’x 829, 831- 9 32 (9th Cir. 2010) (ALJ may reject examining physician’s opinion 10 (AR 16); that is “unsupported by the record as a whole”). The ALJ also properly discounted Dr. Pinanong’s opinion 11 12 because it was not supported by his own examination findings. 13 (AR 15); see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 14 2002) (“The ALJ need not accept the opinion of any physician, 15 including a treating physician, if that opinion is . . . 16 inadequately supported by clinical findings.”). 17 noted, Plaintiff told Dr. Pinanong that although he had been 18 “feeling depressed off and on,” it was “not that bad.”7 19 314.) 20 and reported normal activities of daily living, including helping As the ALJ (AR Plaintiff also stated that he got along well with friends 21 22 23 24 25 26 27 28 6 The ALJ posed a hypothetical to the VE that seemingly accounted for all of these mental limitations, and the VE responded that although Plaintiff would not be able to do his past work there was other substantial gainful work available for him in the national economy. (AR 66.) Because the ALJ found that Plaintiff could perform some of his past relevant work, he did not reach step five of the sequential evaluation. 7 Plaintiff is incorrect in asserting that “[n]o where [sic] in Dr. Pinagnong’s [sic] opinion does he indicate ‘not that bad.’” (J. Stip. at 12.) 11 1 his friend get ready for work, preparing meals, washing dishes, 2 checking email, cleaning the house, and watching movies with a 3 friend. 4 (AR 314-15.) The ALJ also properly accorded little weight to Dr. 5 Pinanong’s assessed moderate limitations because they “appear[ed] 6 to be based primarily on [Plaintiff’s] subjective complaints,” 7 which the ALJ found “not fully credible.” 8 Tonapetyan, 242 F.3d at 1149 (because record supported ALJ’s 9 discounting of claimant’s credibility, ALJ “was free to disregard (AR 16); see 10 [examining physician’s] opinion, which was premised on 11 [claimant’s] subjective complaints”). 12 objective medical evidence in the record supported the diagnoses 13 of depression and anxiety, the ALJ reasonably noted that Dr. 14 Pinanong’s opinion was based primarily on Plaintiff’s subjective 15 complaints. 16 were inconsistent with Plaintiff’s statement that his depression 17 was “not that bad” and with his description of his daily 18 activities. 19 credibility determination on appeal; indeed, the record supports 20 it. 21 2010 surgery to repair “burst arteries,” he “never went back to 22 work again due to his physical problems along with anxiety and 23 depression.” 24 was laid off in 2010 because the company was downsizing. 25 42.) 26 from a psychiatrist in 2010 (AR 314), but the record does not 27 contain any treatment notes from a psychiatrist or other mental- 28 health specialist (see AR 80 (state-agency reviewer noting no Given that minimal In addition, Dr. Pinanong’s assessed limitations Moreover, Plaintiff does not challenge the ALJ’s For instance, Plaintiff told Dr. Pinanong that after his May (AR 314.) But at the hearing, he testified that he (AR Plaintiff also told Dr. Pinanong that he received treatment 12 1 2 psychiatric records except Dr. Pinanong’s report)). Plaintiff cites Edlund v. Massanari, 253 F.3d 1152, 1159 3 (9th Cir. 2001) (as amended) (J. Stip. at 10), but that case is 4 distinguishable. 5 not severe, the ALJ in Edlund did not specifically address the 6 weight given to the examining psychologist’s opinion but rather 7 “selectively” cited portions in which the psychologist expressed 8 doubt about the claimant’s credibility. 9 also id. at 1155. In finding the claimant’s mental impairments 253 F.3d at 1159; see Here, the ALJ separately addressed Dr. 10 Pinanong’s findings and opinion in making his step-two 11 determination, according little weight to Dr. Pinanong’s assessed 12 limitations not only because they were based on Plaintiff’s 13 subjective complaints but because they were inconsistent with the 14 record as a whole and with some of his own examination findings. 15 As discussed above, those reasons were supported by substantial 16 evidence. 17 The ALJ also properly gave “little weight” to the 18 nonexamining state-agency physician’s opinion that Plaintiff’s 19 mental impairments were severe. 20 noted, Dr. Leftik’s opinion expressly relied on Dr. Pinanong’s 21 opinion and was not supported by objective medical evidence in 22 the record. 23 evidence in record other than Dr. Pinanong’s report), 81 (Dr. 24 Leftik indicating “Great Weight” given to Dr. Pinanong’s 25 opinion)); see Harlow v. Soc. Sec. Admin., Comm’r, 577 F. App’x 26 698, 698 (9th Cir. 2014) (in finding claimant’s mental 27 impairments not severe, ALJ properly gave “minimal weight” to 28 opinion of nonexamining physician because he “failed to clearly (AR 16; see AR 79.) As the ALJ (See AR 80 (Dr. Leftik noting no psychiatric 13 1 explain or adequately support his finding that [claimant] 2 suffered from moderate limitations”); cf. Batson v. Comm’r of 3 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ 4 may discredit treating physicians’ opinions that are conclusory, 5 brief, and unsupported by the record as a whole . . . or by 6 objective medical findings”). 7 Thus, substantial evidence supported the ALJ’s finding that 8 Plaintiff’s mental impairments were not severe. 9 entitled to remand on this ground. 10 11 VI. Plaintiff is not CONCLUSION Consistent with the foregoing, and under sentence four of 42 12 U.S.C. § 405(g),8 IT IS ORDERED that judgment be entered 13 AFFIRMING the decision of the Commissioner, DENYING Plaintiff’s 14 request for remand, and DISMISSING this action with prejudice. 15 IT IS FURTHER ORDERED that the Clerk serve copies of this Order 16 and the Judgment on counsel for both parties. 17 18 DATED: March 17, 2016 19 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 20 21 22 23 24 25 26 27 28 8 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 14
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