Suzanne Joy Mackelvey v. Carolyn W. Colvin, No. 2:2016cv08044 - Document 25 (C.D. Cal. 2017)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. (twdb)
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Suzanne Joy Mackelvey v. Carolyn W. Colvin Doc. 25 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 SUZANNE JOY MACKELVEY, Plaintiff, 13 14 15 16 17 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 18 ) Case No. 2:16-cv-08044-KES ) ) ) MEMORANDUM OPINION AND ) ORDER ) ) ) ) ) ) ) ) ) ) ) 19 20 21 22 23 24 25 26 27 28 Plaintiff Suzanne Joy MacKelvey (“Plaintiff”) appeals the final decision of the Administrative Law Judge (“ALJ”) denying her application for Supplemental Security Income (“SSI”) disability benefits. For the reasons discussed below, the ALJ’s decision is AFFIRMED. I. BACKGROUND Plaintiff filed her relevant benefits application on July 9, 2013, alleging the onset of disability in 1996. Administrative Record (“AR”) 191. An ALJ conducted a hearing on December 4, 2014, at which Plaintiff, who was represented Dockets.Justia.com 1 by an attorney, appeared and testified. AR 57-95. The ALJ published an 2 unfavorable decision on January 9, 2015. AR 38-56. 3 The ALJ found that Plaintiff does not suffer from any medically 4 determinable severe physical impairment. AR 45. The ALJ, however, found that 5 Plaintiff suffers from the severe mental impairments of polysubstance dependence, 6 bipolar disorder, and anxiety disorder. AR 44. Despite these impairments, the 7 ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to 8 perform work at any exertional level with several limitations attributable to her 9 mental impairments: “she is unable to understand, remember, and carry out 10 detailed or complex tasks and she can perform work functions with no more than 11 occasional contact with co-workers, supervisors and the general public.” AR 47. 12 In the social security context, “occasional” means up to one-third of the time. 13 Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5. 14 While Plaintiff had no past relevant work, based on this RFC and the 15 testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could work 16 as (1) a hand packager (Dictionary of Occupational Titles [“DOT”] 920.587.018); 17 (2) a small products assembler (DOT 706.684-022); or (3) a caretaker (DOT 18 301.687-010). AR 52. Based on these findings, the ALJ concluded that Plaintiff is 19 not disabled. Id. 20 The ALJ noted that disability benefits may not be granted to claimants 21 whose “drug addiction or alcoholism is material to the determination of disability.” 22 AR 43. If the ALJ had found Plaintiff disabled, then the ALJ would have been 23 obligated to conduct a differentiating analysis to determine if Plaintiff would still 24 be disabled without considering the functional limitations caused by her 25 polysubstance dependence. AR 44, n.2. In such an analysis, the claimant bears the 26 burden of proof to show that his/her drug use is not the cause of the functional 27 limitations material to the finding of disability. Id. The ALJ did not conduct a 28 differentiating analysis in this case, having concluded that Plaintiff is not disabled 2 1 even when considering all her functional limitations, whatever their source. 2 II. 3 ISSUES PRESENTED 4 Issue One: Whether the ALJ erred in evaluating the opinions of treating 5 psychiatrist, Dr. Thomas Hoffman, M.D. Dkt. 23, Joint Stipulation (“JS”) at 4. Plaintiff contends that the ALJ failed to give any reason – let along a 6 7 specific and legitimate reason – for rejecting Dr. Hoffman’s two-page “Medical 8 Source Statement – Mental.” JS at 4, citing AR 276-77. The Commissioner 9 contends that the ALJ did not “reject” Dr. Hoffman’s opinions, but instead 10 determined Plaintiff’s RFC consistent with them. JS at 7-8. Issue Two: Whether the ALJ’s RFC determination is supported by 11 12 substantial evidence. JS at 4. 13 Plaintiff contends that the Appeals Counsel should have accepted as 14 evidence a “Medical Source Statement of Ability to do Work-Related Activities 15 (Mental)” completed by Plaintiff’s treating psychologist, Esther Lee, Ph.D., and 16 dated January 28, 2016, i.e., about a year after the ALJ’s January 9, 2015 decision. 17 JS at 11. Per Plaintiff, had those materials been accepted as evidence, then 18 substantial evidence would not support the ALJ’s RFC determination. JS at 11-17. The Commissioner argues that the Appeals Counsel correctly declined to 19 20 accept Dr. Lee’s 2016 materials as evidence because those materials “post-dated 21 the ALJ’s decision.” JS at 17. 22 III. 23 DISCUSSION. 24 A. Issue One: The ALJ’s Evaluation of Dr. Hoffman’s Opinions. 25 1. The Treating Physician Rule. 26 “As a general rule, more weight should be given to the opinion of a treating 27 source than to the opinion of doctors who do not treat the claimant.” Turner v. 28 Comm’r of Soc. Sec., 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This 3 1 rule, however, is not absolute. Where the treating physician’s opinion is not 2 contradicted by an examining physician, that opinion may be rejected only for 3 “clear and convincing reasons.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 4 1999). Where, however, the opinions of the treating and examining physicians 5 conflict, if the ALJ wishes to disregard the opinion of the treating physician, the 6 ALJ must give “specific, legitimate reasons for doing so that are based on 7 substantial evidence in the record.” Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 8 Cir. 1995) (citation omitted). See also Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 9 2007) (“If the ALJ wishes to disregard the opinion of the treating physician, he or 10 she must make findings setting forth specific, legitimate reasons for doing so that 11 are based on substantial evidence in the record.” (citation omitted)). 12 Thus, under Andrews and Orn, the dispositive questions are (1) whether the 13 ALJ’s RFC determination rejected any of Dr. Hoffman’s opinions and adopted 14 contradictory opinions by other medical sources, and if so, (2) did the ALJ give 15 “specific, legitimate reasons” for doing so. 16 2. Summary of Dr. Hoffman’s Opinions. 17 Dr. Hoffman works for the Los Angeles County Department of Mental 18 Health. AR 297, 331. On June 14, 2012, Dr. Hoffman complete a two-page 19 “Medical Source Statement – Mental” form. AR 276-77. The form requires 20 checking boxes to rate the patient’s ability to do certain work-related activities “on 21 a day-to-day basis in a regular (40 hour) work setting.” AR 276. The four 22 available ratings are unlimited, good, fair, or poor. Id. Dr. Hoffman only used the 23 “fair” or “poor” ratings. Fair was defined as “the individuals’ capacity to perform 24 the activity is impaired, but the degree/extent of the impairment needs to be further 25 described.” AR 276. Poor was defined as “the individual cannot usefully perform 26 or sustain the activity.” Id. 27 Dr. Hoffman opined Plaintiff has a “fair” ability to understand and 28 remember “very short and simple instructions” and react appropriately to 4 1 workplace hazards. AR 276-77. He opined she had a “poor” ability to 2 (1) understand and remember “detailed or complex instructions,” (2) carry out 3 instructions (without specifying detailed or complex), (3) concentrate, (4) work 4 without supervision, (5) interact with the public, coworkers and supervisors, and 5 (6) adapt to workplace changes. Id. 6 The same “medical findings” supported all Dr. Hoffman’s opinions about 7 Plaintiff’s functionality. AR 276-77. Those findings were “self-reported history 8 and observations clinically during appointments.” AR 276. Dr. Hoffman 9 diagnosed Plaintiff with a mood disorder, borderline personality disorder, 10 posttraumatic stress disorder, and polysubstance dependence. Id. He opined that 11 consistent with these diagnoses, “patient has difficulty with mood stability, 12 anxiety, irritability, concentration, and interpersonal functioning.” Id. Dr. 13 Hoffman does not indicate which limitations or degrees of limitation he attributed 14 to Plaintiff’s polysubstance dependence. Id. 15 16 3. The RFC Compared to Dr. Hoffman’s Medical Source Statement. a. Understanding, Remembering, and Carrying Out Instructions. 17 The ALJ gave “significant weight” to the opinions of Dr. Erhart. AR 50. 18 Dr. Erhart opined that Plaintiff’s “ability to understand, remember and perform 19 instructions for simple tasks was intact.” AR 283. He opined, however, that her 20 “ability to understand, remember and perform instructions for complex tasks was 21 severely impaired based on clustered deficits on a cognitive exam indicating 22 prioritized problems with strategizing, maintaining attention and vigilance, and 23 producing recurring instances where she asked even moderately complex questions 24 to be reiterated.” Id. He expressly found that the limitations in his report reflected 25 Plaintiff’s “neurological problems” rather than “cocaine exposure.” AR 284. 26 In his RFC determination, the ALJ adopted Dr. Erhart’s opinions concerning 27 Plaintiff’s reasoning abilities by finding that Plaintiff cannot “understand, 28 remember, and carry out detailed or complex tasks.” AR 47. The ALJ also found 5 1 that Plaintiff could work as a hand packager, small products assembler, or 2 caretaker, all jobs that require level 2 reasoning per their DOT description.1 Jobs 3 requiring level 2 reasoning are simple, repetitive jobs. Salazar v. Astrue, No. 07- 4 00565, 2008 WL 4370056, at *7 (collecting cases). 5 These findings do not contradict Dr. Hoffman’s opinion that Plaintiff cannot 6 usefully understand and remember “detailed or complex instructions.” AR 276. 7 These findings also do not contradict Dr. Hoffman’s opinion that Plaintiff has a 8 “fair” ability to understand and remember simple instructions, because “fair” was 9 not defined to preclude the activity. Rather, Dr. Hoffman’s “fair” rating only 10 indicated that Plaintiff’s ability to understand and remember simple instructions in 11 a regular work setting was “impaired” to an unknown degree/extent. AR 276. 12 That some unspecified (and perhaps slight) degree of impairment exists in a 13 regular work setting is not equal to an opinion that Plaintiff would be unable to 14 understand and remember simple instructions in a workplace environment 15 protected from other sources of stress, such as frequent interactions other people. 16 The Medical Source Statement form that Dr. Hoffman used differentiated 17 between “complex” and “simple” instructions when asking about understanding 18 and remembering, but it did not differentiate between “complex” and “simple” 19 instructions when asking about carrying out. AR 276. Dr. Hoffman therefore 20 presumably intended for his opinion about carrying out to encompass both 21 “complex” and “simple” instructions, which is why he rated Plaintiff’s ability as 22 “poor.” Id. Dr. Hoffman did not provide an opinion that addressed only Plaintiff’s 23 24 25 26 27 28 A job’s level of simplicity is addressed by its DOT general educational development (“GED”) reasoning development rating. GED reasoning levels range from 1 (simplest) to 6 (most complex). GED level 2 requires the ability to “apply commonsense understanding to carry out detailed but uninvolved written or oral instructions” and “deal with problems involving a few concrete variables in or from standardized situations.” See DOT, App. C. 1 6 1 ability to carry out simple instructions. Thus, Dr. Hoffman did not provide an 2 opinion that conflicts with Dr. Erhart’s opinion that Plaintiff retains the ability to 3 “perform … simple tasks.” AR 283. b. 4 Interacting with Other People. 5 Dr. Erhart opined that Plaintiff’s “ability to interact with the public, 6 coworkers and supervisor was moderately impaired by cross sectional features of 7 an impatient and impulsive response style as well as difficulties maintaining focus 8 both of which will be frustrating to potential employers.” AR 283. The ALJ relied 9 on this opinion to include in Plaintiff’s RFC a limitation that she can interact with 10 11 others at work no more than one third of the time. AR 47. Dr. Hoffman opined that Plaintiff cannot usefully “perform or sustain” 12 interactions with others in a regular work setting. AR 276-77. It would not be 13 reasonable to interpret Dr. Hoffman as opining that Plaintiff cannot “perform” any 14 work-related, interpersonal interactions, because his own treatment notes reflect his 15 awareness that she can and does interact with others on a limited basis, such as her 16 boyfriend, her mother, and medical service providers. AR 332-34. Dr. Hoffman 17 must therefore have meant that, in his opinion, Plaintiff cannot “sustain” 18 interpersonal reactions in a regular work setting. The Medical Source Statement 19 form that Dr. Hoffman used, however, does not define or quantify the term 20 “sustain.” Dr. Hoffman might agree that a person who can only interact with 21 others at work up to one-third of the time has no useful ability to “sustain” that 22 activity. 23 4. 24 The ALJ neither discussed Dr. Hoffman by name and nor discussed the 25 opinions in AR 276-77. The ALJ did discuss Plaintiff’s treating records from 26 “Downtown Mental Health,” i.e., the Los Angeles County Department of Mental 27 Health. AR 45, citing Ex. B7F/3-5 (AR 332-34 [medication support service 28 treating notes by Dr. Hoffman]). The ALJ also considered the opinions of Dr. Analysis. 7 1 Erhart, state agency psychologist Cheryl Woodson-Johnson, Psy.D., and state 2 agency psychiatrist R. Singh, M.D. AR 50. The state agency doctors reviewed Dr. 3 Hoffman’s findings in the context of the medical record and opined that Plaintiff 4 would be able to perform simple, routine, and repetitive tasks with limited 5 interpersonal contact. AR 114-15, 118-25. 6 An ALJ need not discuss “all evidence” presented by a claimant. Vincent v. 7 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Rather, the ALJ need only 8 explain why he “rejected” significant, probative evidence. Id. Ultimately, the 9 RFC adopted by the ALJ did not “reject” the opinions of Dr. Hoffman in favor of 10 those of Drs. Erhart, Woodson-Johnson, or Singh. Rather, Dr. Hoffman’s opinions 11 in the Medical Source Statement form are not well quantified, and they can 12 reasonably be interpreted as consistent with the other doctors and the RFC 13 determined by the ALJ, as discussed above. For these reasons, Plaintiff has failed 14 to show that the ALJ erred by failing to give reasons for “rejecting” Dr. Hoffman’s 15 opinions. 16 Even if there was error, it was harmless. “A decision of the ALJ will not be 17 reversed for errors that are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th 18 Cir. 2005). Generally, an error is harmless if it either “occurred during a procedure 19 or step the ALJ was not required to perform,” or if it “was inconsequential to the 20 ultimate nondisability determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 21 1055 (9th Cir. 2006). 22 Here, Dr. Hoffman expressly states that his Medical Source Statement 23 opinions about Plaintiff’s limitations are supported by and consistent with all her 24 diagnoses, including polysubstance dependence. AR 276. He did not distinguish 25 which limitations (or degrees of limitations) were attributable to polysubstance 26 dependence versus Plaintiff’s other impairments. AR 276-77. Dr. Hoffman’s 27 failure to draw this distinction destroys the probative value of his opinions and 28 makes any error to consider them harmless, because the ALJ cannot base a finding 8 1 of disability on functional limitations caused by polysubstance dependence. 2 B. Issue Two: Dr. Lee’s 2016 Opinion. 3 1. Rules Governing New Evidence. 4 A claimant may ask the Appeals Council to review an adverse decision by 5 an ALJ. The Appeals Council will review the ALJ’s decision if it receives 6 evidence “that is new, material, and relates to the period on or before the date of 7 the hearing decision, and there is a reasonable probability that the additional 8 evidence would change the outcome of the decision.” 20 C.F.R. § 404.970(a)(5) 9 (emphasis added). Per the regulations, if a claimant submits “additional evidence 10 that does not relate to the period on or before the date of the administrative law 11 judge hearing decision …, the Appeals Council will send” the claimant a notice 12 that explains why it did not accept the additional evidence. 20 C.F.R. § 404.970(c) 13 (emphasis added). 14 If the Appeals counsel accepts new evidence and makes it part of the record, 15 then the district court must consider the new evidence in analyzing whether the 16 ALJ’s findings are supported by substantial evidence. Brewes v. Comm’r of SSA, 17 682 F.3d 1157, 1163 (2012). 18 If, however, the Appeals Council declines to accept one or more pieces of 19 new evidence (such as Dr. Lee’s opinion [see AR 2]), then the claimant may ask 20 the district court to remand the case to permit the ALJ to consider the new 21 evidence. Remand is appropriate if (1) the new evidence is “material” and 22 (2) there is “good cause” for the failure to incorporate such evidence in the record 23 in a prior proceeding. Burton v. Heckler, 724 F.2d 1415, 1417 (9th Cir. 1984) 24 (citing 42 U.S.C. § 405(g)). 25 “To demonstrate good cause, the claimant must demonstrate that the new 26 evidence was unavailable earlier.” Mayes v. Massanari, 276 F.3d 453, 463 (9th 27 Cir. 2001); see also Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“If new 28 information surfaces after the Secretary’s final decision and the claimant could not 9 1 have obtained that evidence at the time of the administrative proceeding, the good 2 cause requirement is satisfied.”). 3 To be material, the new evidence must bear “directly and substantially on 4 the matter in dispute.” Mayes, 276 F.3d at 462 (holding no remand required where 5 claimant failed to demonstrate that “the [back] condition diagnosed in November 6 1997 [and discussed in the new evidence] even existed when the ALJ hearing was 7 held in May 1997”). This means it must be probative of the claimant’s condition at 8 or before the time of the disability hearing. Sanchez v. Secretary of Health and 9 Human Services, 812 F.2d 509, 511 (9th Cir. 1988) (citing 20 C.F.R. § 404.970(b)) 10 (holding evidence of “mental deterioration after the hearing … would be material 11 to a new application, but not probative of his condition at the hearing”). Finally, 12 materiality also requires plaintiffs to “demonstrate that there is a reasonable 13 possibility that the new evidence would have changed the outcome of the 14 administrative hearing.” Mayes, 276 F.3d at 463. 15 2. Factual Background of Plaintiff’s New Evidence. 16 On January 28, 2016, Esther Lee, Ph.D., Plaintiff’s treating psychologist, 17 completed a medical source statement of ability to do work-related activities 18 (Mental) and an evaluation form for mental disorders in support of Plaintiff’s 19 claim. Dkt. 24-1. Plaintiff submitted these documents to the Appeals Council on 20 April 3, 2016, and wrote a supplement brief describing Dr. Lee’s opinions. AR 21 271-273. The Appeals Council declined to include Dr. Lee’s 2016 medical source 22 statement in the administrative record, finding that it was not probative of whether 23 Plaintiff was disabled on or before January 9, 2015. AR 2. 24 25 26 3. The ALJ Need Not Consider Dr. Lee’s 2016 Opinion. a. Good Cause. Per Plaintiff’s letter brief, Dr. Lee began treating her in July 2015. AR 271. 27 This is after the ALJ’s decision in January 2015. AR 52. Plaintiff has therefore 28 demonstrated “good cause” for not obtaining a treating opinion from Dr. Lee 10 1 earlier. b. 2 3 Materiality Plaintiff argues that Dr. Lee’s January 28, 2016 opinion should be viewed as 4 probative of her condition at or before January 9, 2015, because (1) “Dr. Lee 5 examined her approximately 8-months from the ALJ’s decision,” and (2) Dr. Lee 6 also worked for the Los Angeles County Department of Mental Health, such that 7 Dr. Lee may have had an opportunity to “observe” Plaintiff earlier and may have 8 had access to her previous chart notes. JS at 19. 9 Regarding the timing, while Dr. Lee’s treating relationship with Plaintiff 10 began eight months after the ALJ’s decision, Dr. Lee’s opinion is dated more than 11 a year after the ALJ’s opinion. Compare Dkt. 24-1 at 7 with AR 52. This is a 12 significant lapse of time, during which the limitations caused by Plaintiff’s 13 impairments may have changed significantly. Medical opinions that describes a 14 deterioration in the claimant’s condition after the ALJ’s decision are not probative 15 of the claimant’s condition during the relevant time period. Smith v. Bowen, 849 16 F.2d 1222, 1226 (9th Cir. 1988) (contrasting relevant, retrospective medical 17 opinions with irrelevant medical opinions describing “any deterioration in [the 18 claimant’s] condition subsequent to” the relevant cutoff date); Hall v. Secretary of 19 Health, Educ. & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) (new evidence “was 20 of extremely doubtful relevance because it was based on an examination eight 21 months after [claimant’s] insured status”); Chavolla v. Colvin, No. 13-3943, 2014 22 U.S. Dist. LEXIS 32132, at *5-6 (C.D. Cal. Mar. 11, 2014) (“Dr. Lane’s opinions 23 from July and September 2009 were not probative evidence of plaintiff’s 24 limitations during the earlier, relevant period of June 27, 2007, to May 20, 25 2009….”). 26 Dr. Lee did not indicate that her opinions were intended to describe 27 Plaintiff’s condition a year earlier. To the contrary, Dr. Lee described Plaintiff’s 28 “present illness” and “current level of functioning.” Dkt. 24-1 at 4, 6. While she 11 1 also noted some of Plaintiff’s medical history, she did not offer opinions about 2 Plaintiff’s past level of functioning. Dkt. 24-1 at 6 (opinion Plaintiff “is currently 3 not able” to perform certain activities). Regarding Plaintiff’s argument that Dr. Lee might have obtained 4 5 information about Plaintiff from the relevant time, Plaintiff’s argument relies on 6 speculation. There is no evidence that Dr. Lee based her opinions on any 7 information other than her own observations, as the form instructed her to do. Dkt. 8 24-1 at 1. While she noted Plaintiff’s prior treatment at the Downtown Mental 9 Health Center under “past history,” she did not cite from past treating records. Id. 10 11 at 4. In sum, nothing in Dr. Lee’s opinions suggests that she provided a 12 retrospective opinion, because she did not have a treating relationship with 13 Plaintiff until eight months after the ALJ’s decision. Plaintiff has failed to 14 demonstrate that Dr. Lee’s opinion is probative of Plaintiff’s condition before 15 January 9, 2015. 16 4. 17 Plaintiff argues that since the Appeals Council accepted her letter brief, and 18 that brief summarized Dr. Lee’s 2016 opinions, those opinions became part of the 19 record, such that this Court must consider them when evaluating whether the ALJ’s 20 RFC determination is supported by substantial evidence. JS at 19. 21 Plaintiff’s Letter Brief is Not Substantial Evidence. Not so. The social security regulations broadly define “evidence” as 22 “anything you or anyone else submits to us or that we obtain that relates to your 23 claim.” 20 C.F.R. § 416.912(b). The regulations list several categories of medical 24 evidence, but they do not refer to summaries of medical records in briefing as 25 “evidence.” 20 C.F.R. § 416.912(b)(1)-(8). 26 In Edwards v. Massanari, No. 00-0548, 2001 U.S. Dist. LEXIS 8750 (S.D. 27 Ala. June 5, 2001), the administrative record included a letter brief from plaintiff’s 28 counsel describing IQ testing performed by a qualified medical source. Id. at *2. 12 1 Plaintiff contended that the ALJ “improperly rejected” this evidence. Id. The 2 court determined that a letter brief reciting “a treating source’s findings does not 3 constitute evidence,” such that the ALJ had no duty to discuss it. Id. 4 The Court agrees with this reasoning. Given the Appeals Council’s clear 5 rejection of Dr. Lee’s 2016 Medical Source Statement (AR 2), the Appeals Council 6 did not accept Dr. Lee’s opinions as evidence by accepting Plaintiff’s letter brief 7 discussing them. 8 IV. 9 CONCLUSION 10 11 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 12 13 Dated: October 11, 2017 _____________________________ KAREN E. SCOTT United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13
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