Gail Marie Wright v. Carolyn W. Colvin, No. 2:2016cv06203 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (mba)
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Gail Marie Wright v. Carolyn W. Colvin Doc. 21 1 2 3 4 O 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 GAIL MARIE WRIGHT, 12 Plaintiff, v. 13 14 15 Case No. CV 16-06203-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 Gail Marie Wright (“Plaintiff”) appeals from the Social Security 19 20 Commissioner’s final decision denying her application for Social Security 21 Disability Insurance Benefits (“DIB”) and Supplemental Security Income 22 (“SSI”). For the reasons discussed below, the Commissioner’s decision is 23 affirmed and this matter is dismissed with prejudice. 24 /// 25 /// 26 27 28 1 On January 21, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as Defendant under Federal Rule of Civil Procedure 25(d). Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff initially filed applications for DIB and SSI benefits in 2010. See 4 Administrative Record (“AR”) 16. After those applications were denied, 5 Plaintiff requested and received a hearing before an administrative law judge 6 (“ALJ”), who issued an unfavorable decision finding Plaintiff not disabled on 7 March 19, 2012. See AR 116-35. The Appeals Council denied review of that 8 decision, and it became final. See AR 16. Shortly after the ALJ’s March 19, 9 2012, decision became final, Plaintiff re-applied for DIB and SSI alleging 10 disability beginning March 20, 2012. See AR 220-27. Her re-applications were 11 denied on December 11, 2013. See AR 136-71. Plaintiff requested another 12 hearing, which took place on October 23, 2014. See AR 81-115. The same ALJ 13 heard testimony from Plaintiff, who was represented by counsel, a vocational 14 expert (“VE”), and Plaintiff’s therapist. See AR 16. 15 In a written decision issued December 2, 2014, the ALJ denied Plaintiff’s 16 second round of applications. See AR 13-34. He found that Plaintiff did not 17 engage in substantial gainful activity after March 19, 2012, and met the special 18 earnings requirements for DIB through September 30, 2013. See AR 20. The 19 ALJ found that there was a change in circumstances indicating greater 20 disability after March 19, 2012. See AR 20 n.3. The ALJ thus determined that 21 there was no presumption of continuing non-disability under Chavez v. 22 Bowen, 844 F.2d 691 (9th Cir. 1988). See AR 20. 23 The ALJ determined that Plaintiff had the medically-determinable severe 24 impairments of asthma, history of gallstones, hernia, obesity, and major 25 depressive disorder with psychotic features. See AR 20, 22. However, he found 26 that her impairments did not equal the severity of a listed impairment. See id. 27 He also found that Plaintiff retained the residual functional capacity (“RFC”) 28 to perform the demands of light work with the following limitations: 2 1 [Plaintiff] can lift and carry 20 pounds occasionally and 10 2 pounds frequently. She can stand and walk for 6 hours and can sit 3 for 6 hours in an 8 hour day, with normal break. She can push and 4 pull without significant limitations. She cannot be exposed to 5 excessive dust and fumes. [Plaintiff] is limited to occasional 6 detailed tasks. She is also limited to occasional contact with 7 coworkers, supervisors, and the public. She has no other 8 limitations. 9 AR 24 (citing 20 C.F.R. §§ 404.1567, 416.967). The ALJ found that Plaintiff was not capable of performing her past 10 11 relevant work as a mail carrier, home care provider, and medical billing clerk. 12 See AR 28. Based on the VE’s testimony, the ALJ concluded that Plaintiff 13 could perform the work of a bench assembler, bottling line attendant, and 14 inspector hand packager. See AR 28. Therefore, the ALJ concluded that 15 Plaintiff was also not disabled after March 19, 2012. See AR 29. Plaintiff requested review of the ALJ’s decision. See AR 11-12. On June 16 17 20, 2016, the Appeals Council denied review. See AR 1-7. This action 18 followed. 19 II. 20 DISCUSSION The parties dispute whether the ALJ properly rejected the opinion of 21 22 treating physician Dr. Thaddeus Juarez. See Joint Stipulation (“JS”) at 6. 23 A. 24 Relevant Facts Dr. Juarez treated Plaintiff between April 8, 2013, and January 26, 2015. 25 See, e.g., AR 555, 558, 561, 564, 567, 569, 857, 859. On October 1, 2014, he 26 completed a mental RFC for Plaintiff diagnosing her with a severe major 27 depressive disorder with psychosis. See AR 852. He opined that Plaintiff 28 would be off-task more than 30% of the time, could work on a sustained basis 3 1 less than 50% of the time, would miss five or more days per month due to her 2 impairments, and had a Global Assessment Functioning (“GAF”) score of 42. 3 See AR 855. Dr. Juarez also determined that Plaintiff’s mental impairment 4 would preclude performance for 5% of an eight-hour workday because of 5 requesting assistance and getting along with coworkers without distracting 6 them. See AR 853. It would preclude performance for 10% of an eight-hour 7 workday because of remembering locations and work-like precautions, 8 carrying out simple instructions, working in proximity with others without 9 distracting them, maintaining socially-appropriate behavior, being aware of 10 normal hazards and taking appropriate precautions, setting realistic goals or 11 making plans independently of others, and traveling in unfamiliar places or 12 using public transportation. See AR 853-54. It would preclude performance for 13 15% of an eight-hour workday because of understanding and remembering 14 both simple and detailed instructions, carrying out detailed instructions, 15 concentrating for extended periods of time, performing activities within a 16 schedule, sustaining an ordinary routine without special supervision, making 17 simple work-related decisions, completing a normal workweek without 18 interruptions, interacting with the public, responding appropriately to criticism 19 from supervisors, and responding appropriately to changes in the work setting. 20 See id. 21 When formulating Plaintiff’s RFC, the ALJ gave little weight to Dr. 22 Juarez’s assessment that Plaintiff’s mental limitations would preclude 23 performance of most mental abilities for at least 10-15% of an eight-hour 24 workday because “it [wa]s inconsistent with Dr. Juarez’s own treating notes 25 and the overall record.” AR 26. The ALJ noted that most of Plaintiff’s 26 significant mental symptoms “occurred during periods of noncompliance with 27 treatment.” Id. For example, the ALJ noted that Plaintiff received a GAF 28 score of 55 and an excellent prognosis for improvement when complying with 4 1 mental health treatment in September 2012. See id. Yet when she ran out of 2 medication, she reported increased auditory hallucinations. See id. The ALJ 3 further considered that Plaintiff’s partial compliance in mid-2013 improved her 4 mood and decreased her auditory hallucinations. See id. During the second 5 half of 2013, Plaintiff reported frequent noncompliance for two weeks to one 6 month at a time, which coincided with increased auditory hallucinations and 7 depression. See AR 27. Her overall condition improved within days of 8 compliance. See id. In contrast, the ALJ credited the opinion of state-agency psychiatric 9 10 consultant Dr. R. E. Brooks, who reviewed Plaintiff’s records and provided a 11 mental RFC assessment in December 2013. See AR 150. Dr. Brooks found 12 that Plaintiff had no more than mild limitations in concentration, persistence, 13 and pace. See AR 22-23, 27; see also AR 145, 150. The ALJ explained that 14 “[a]lthough [Plaintiff] has sometimes presented with more significant 15 symptoms [in concentrations, persistence, or pace], those symptoms have 16 occurred when [Plaintiff] has been noncompliant with her treatment regimen.” 17 AR 27. 18 B. 19 Applicable Law and Analysis Three types of physicians may offer opinions in Social Security cases: 20 those who treated the plaintiff, those who examined but did not treat the 21 plaintiff, and those who did neither. See 20 C.F.R. §§ 404.1527(c), 416.927(c); 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended).2 A treating 23 24 25 26 27 28 2 Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); 5 1 physician’s opinion is generally entitled to more weight than an examining 2 physician’s opinion, which is generally entitled to more weight than a 3 nonexamining physician’s. See Lester, 81 F.3d at 830. When a treating or 4 examining physician’s opinion is uncontroverted by another doctor, it may be 5 rejected only for “clear and convincing reasons.” Carmickle v. Comm’r, Soc. 6 Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 7 830-31). Where such an opinion is contradicted, the ALJ may reject it for 8 “specific and legitimate reasons that are supported by substantial evidence in 9 the record.” Id.; see also Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 10 2014). 11 Here, Dr. Juarez’s opinion conflicted with Dr. Brooks’s opinion, 12 requiring the ALJ to give specific and legitimate reasons that are supported by 13 substantial evidence in the record for giving little weight to the treating 14 physician’s opinion. The record shows that the ALJ did so. First, the ALJ 15 found that Dr. Juarez’s opinion was inconsistent with his own treatment notes. 16 See AR 26. In particular, Plaintiff’s record shows a pattern of improvement 17 when compliant and relapse when noncompliant. Dr. Juarez noted on several 18 occasions that Plaintiff’s symptoms dissipated when she was compliant with 19 Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 15-05925, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”); cf. Revised Medical Criteria for Determination of Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58010, 58011 (Nov. 19, 2001) (“With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court’s review of the Commissioner’s final decision would be made in accordance with the rules in effect at the time of the final decision.”). Accordingly, the Court applies the versions of 20 C.F.R. §§ 404.1527 and 416.927 that were in effect at the time of the ALJ’s December 2014 decision. 20 21 22 23 24 25 26 27 28 6 1 treatment. See AR 567, 575, 577, 807, 813, 815, 857-58, 860, 1150-51. While 2 she was noncompliant, he noted increased symptoms. See AR 555, 558-59, 3 561, 564, 573, 817, 819, 1174. For example, Dr. Juarez noted that Plaintiff had 4 run out of oral medication one week before, and Plaintiff reported paranoia 5 and hopelessness. See AR 811-12. Yet during a visit when Plaintiff had 6 complied with treatment, Plaintiff reported that she felt very good, did not feel 7 suicidal, and that the voices in her head had been quiet since she got her 8 medicine. See AR 807. Similarly, Plaintiff had not taken medication for more 9 than two weeks when she reported a depressed mood, irritability, auditory 10 11 hallucinations, and reported seeing shadows. See AR 809. A “[p]laintiff’s noncompliance with her treatment regimen is a specific 12 and legitimate reason for rejecting [a treating physician’s] conclusions.” 13 Swinscoe v. Astrue, No. 10-01614, 2012 WL 2317550, at *6 (E.D. Cal. June 14 18, 2012); see also Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 15 (9th Cir. 2006) (“Impairments that can be controlled effectively with 16 medication are not disabling for the purpose of determining eligibility for 17 [disability] benefits.”). Here, Plaintiff repeatedly told her physician that “meds 18 keep [the voice in her head] away,” yet she consistently allowed treatment to 19 lapse. AR 811; see also AR 807. Plaintiff does not suggest that her compliance 20 issues could be related to her mental impairments or otherwise try to explain 21 her frequent bouts of noncompliance. Dr. Juarez’s opinion failed to take into 22 account that Plaintiff’s depressive disorder with psychotic features did not 23 severely limit her when she adhered to treatment. Instead, his mental RFC 24 appeared to address Plaintiff’s symptoms only during noncompliance thus 25 ignoring and conflicting with large portions of his own treatment notes. 26 Moreover, Dr. Juarez’s assessment was inconsistent with his treatment 27 notes written on the same date that he completed the assessment. For example, 28 Dr. Juarez noted severe limitations in his October 1, 2014, mental RFC. See 7 1 AR 850-56. Yet his treatment notes from the same date describe Plaintiff as 2 “friendly, calm, [and maintaining] good eye contact.” AR 857. He also noted 3 that her response to medication was good because it had “improved psychosis, 4 negative voices, and mood.” AR 858. The ALJ properly considered these 5 inconsistencies when giving Dr. Juarez’s opinion little weight. 6 The ALJ also found that Dr. Juarez’s opinion was inconsistent with the 7 overall record. See AR 26. Non-examining state-agency physician Dr. Brooks 8 provided a mental RFC assessment on December 10, 2013, in which he opined 9 that “there are no significant work-related limitations in the ability to sustain 10 concentration/persistence/pace or otherwise adapt to the requirements of a 11 normal work-setting.” AR 152. Yet Dr. Juarez described Plaintiff as capable of 12 working on a sustained basis less than 50% of the time. See AR 85. Dr. 13 Juarez’s opinion also conflicted with a report by treating physician Dr. 14 Raymond Yee, who completed a report on September 4, 2012. See AR 580-84. 15 Based on her generally positive mood, lack of reported delusions, and 16 otherwise normal affect, Dr. Yee gave Plaintiff a GAF of 55 and deemed her 17 prognosis excellent. See AR 584. He noted some depression, but not serious 18 depression or psychosis such that it affected his overall assessment of Plaintiff’s 19 prognosis. See id. This conflicted with Dr. Juarez’s account of Plaintiff’s health 20 as having serious depressive disorder with auditory hallucinations. Dr. Juarez’s 21 opinion was also inconsistent with Dr. Fakoory’s review of psychiatric 22 systems, which noted her normal findings, and that Plaintiff was “negative for 23 hallucinations, depression and anxiety,” and “calm and cooperative, shows 24 good judgment and insight, memory is normal and mood is normal.” AR 507- 25 08. 26 Plaintiff claims that Dr. Brooks’s opinion was made “without the benefit 27 of Dr. Juarez’s records and opinion and thus [was] not based on a complete 28 medical assumption.” JS at 12. Dr. Brooks based his opinion on many records, 8 1 including records from Pacific Clinics—Portals. See AR 140. In the Joint 2 Stipulation, Plaintiff notes that the records upon which Dr. Brooks relied can 3 be found in Exhibit 4F at AR 553-84. See JS at 12. Yet these are the records of 4 Dr. Juarez. See AR 553-78. Plaintiff’s argument is clearly meritless. 5 Additionally, Plaintiff argues that the ALJ should have limited Plaintiff 6 to simple, repetitive tasks because Dr. Brooks noted her moderate limitation in 7 carrying out detailed instructions. See JS at 12-13, AR 151-52. However, it is 8 an ALJ’s job, rather than any one specific doctor’s job, to synthesize record 9 evidence to determine the plaintiff’s RFC. See 20 C.F.R. §§ 404.1545(a)(1), 10 416.945(a)(1) (“We will assess your residual functional capacity based on all 11 the relevant evidence in your case record.”). The ALJ was not required to 12 mirror Dr. Brooks’s distinction between no limitations for simple tasks and 13 moderate limitations for detailed tasks. Rather, he was simply required to 14 consider Dr. Brooks’s findings in formulating Plaintiff’s mental RFC, along 15 with the opinions of the several other relevant physician opinions. The fact that 16 the language used was not identical is irrelevant. Furthermore, even though 17 Dr. Brooks noted that Plaintiff was “moderately limited” in her ability to carry 18 out detailed instructions, he concluded that “there are no significant work- 19 related limitations in the ability to . . . adapt to the requirements of a normal 20 work-setting.” AR 151-52. As Dr. Brooks himself did not suggest that Plaintiff 21 should be limited to simple, repetitive tasks, Plaintiff’s claim is groundless. 22 Finally, Plaintiff’s argument that the ALJ failed to give a “complete 23 medical hypothetical” to Dr. Brooks wrongly conflates the requirements of a 24 VE with those of a non-examining physician. See JS at 12; Bayliss v. Barnhart, 25 427 F.3d 1211, 1217 (9th Cir. 2005) (noting that an ALJ’s hypothetical to a VE 26 was proper because it contained all of the claimant’s limitations that the ALJ 27 found credible and that were supported by substantial evidence in the record). 28 Here, an ALJ had not yet been assigned when Dr. Brooks examined Plaintiff, 9 1 making Plaintiff’s claim an impossible one to have been implemented. Thus, 2 there was no way for the ALJ to pose such a hypothetical to Dr. Brooks. 3 The ALJ provided specific and legitimate reasons, each of which was 4 supported by substantial evidence in the record, for rejecting Dr. Juarez’s 5 opinion. Accordingly, remand is not warranted. 6 III. 7 CONCLUSION 8 9 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 10 11 Dated: January 3, 2018 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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