Rene Williams v. Carolyn W. Colvin, No. 2:2016cv09189 - Document 34 (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. (See document for further details.) (sbou)
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Rene Williams v. Carolyn W. Colvin Doc. 34 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 RENE WILLIAMS, Plaintiff, 12 v. 13 14 15 16 17 Case No. CV 16-09189-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Deputy Commissioner of Operations, performing duties and functions not reserved to the Commissioner of Social Security,1 18 Defendant. 19 20 Rene Williams (“Plaintiff”) appeals from the Social Security 21 Commissioner’s final decision denying his application for supplemental 22 security income (“SSI”) benefits. For the reasons discussed below, the 23 Commissioner’s decision is affirmed and this matter is dismissed with 24 prejudice. 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 Plaintiff applied for SSI on March 1, 2013, alleging disability beginning 3 4 January 8, 2008. See Administrative Record (“AR”) 218-23. Plaintiff’s claim 5 was denied initially, see AR 117-20, and on reconsideration, see AR 133-34. 6 Plaintiff requested a hearing, which took place on September 10, 2014; the 7 Administrative Law Judge (“ALJ”) heard testimony from Plaintiff, who was 8 represented by counsel, and a vocational expert (“VE”). See AR 45-60. In a written decision issued October 10, 2014, the ALJ denied Plaintiff’s 9 10 claim. See AR 26-44. The ALJ found that Plaintiff had not engaged in 11 substantial gainful activity since February 18, 2013, and that Plaintiff had the 12 severe impairments of mood disorder, psychotic disorder, and a history of 13 polysubstance dependence in remission. See AR 31. He concluded that 14 Plaintiff’s impairments did not meet or equal the severity of a listed 15 impairment. See id. The ALJ assessed Plaintiff as retaining the residual 16 functional capacity (“RFC”) to perform work at all exertional levels with non- 17 exertional limitations, including limitations to non-complex, routine, and 18 repetitive tasks that do not require hypervigilance or responsibility for the 19 safety of others; no interaction with the public; and working alone with only 20 occasional, superficial, and non-intense interactions with supervisors and 21 coworkers. See AR 33. He found that Plaintiff had no past relevant work. See 22 AR 38. Based on the VE’s testimony, the ALJ found that Plaintiff could work 23 a park worker, linen room attendant, or sweeper/cleaner. See AR 39. He 24 therefore concluded that Plaintiff was not disabled. See AR 40. On June 13, 2016, the Appeals Council denied Plaintiff’s request for 25 26 review of the ALJ’s decision, which became the final decision of the 27 Commission. See AR 18-20, 4-10. This action followed. 28 /// 2 1 II. 2 DISCUSSION 3 A. The ALJ’s RFC Assessment Was Supported by Substantial Evidence 4 Plaintiff argues that the ALJ’s RFC was not supported by substantial 5 evidence because it did not align with the medical opinions of state-agency 6 physicians, a consultative examiner, and a treating physician. See Joint 7 Stipulation (“JS”) at 5. 8 1. Applicable Law 9 A claimant’s RFC is the most a claimant can still do despite his 10 limitations. Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996) (citing 20 11 C.F.R. § 404.545(a)); see also 20 C.F.R. § 416.945(a). An ALJ will assess a 12 claimant’s RFC based on all the relevant evidence of record and will consider 13 all of the claimant’s medically determinable impairments, whether found to be 14 severe or not. See 20 C.F.R. § 416.945(a)(2). An RFC assessment is ultimately 15 an administrative finding reserved to the Commissioner. 20 C.F.R. 16 § 416.927(d)(2).2 However, an RFC determination is based on all of the 17 18 19 20 21 22 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, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); 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 3 1 relevant evidence, including the diagnoses, treatment, observations, and 2 opinions of medical sources, such as treating and examining physicians. See 20 3 C.F.R. § 416.945. 4 A district court must uphold an ALJ’s RFC assessment when the ALJ 5 has applied the proper legal standard and substantial evidence in the record as 6 a whole supports the decision. See Bayliss v. Barnhart, 427 F.3d 1211, 1217 7 (9th Cir. 2005). The ALJ must consider all of the medical evidence in the 8 record and “explain in [his or her] decision the weight given to . . . [the] 9 opinions from treating sources, nontreating sources, and other nonexamining 10 sources.” 20 C.F.R. § 416.927(e)(2)(ii); see also 20 C.F.R. § 416.945(a)(1) 11 (“We will assess your residual functional capacity based on all the relevant 12 evidence in your case record.”). In making an RFC determination, the ALJ 13 may consider those limitations for which there is support in the record and 14 need not consider properly rejected evidence or subjective complaints. See 15 Bayliss, 427 F.3d at 1217 (upholding ALJ’s RFC determination because “the 16 ALJ took into account those limitations for which there was record support 17 that did not depend on [claimant’s] subjective complaints”). The Court must 18 consider the ALJ’s decision in the context of “the entire record as a whole,” 19 and if the “‘evidence is susceptible to more than one rational interpretation,’ 20 the ALJ’s decision should be upheld.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 21 1194, 1198 (9th Cir. 2008) (citation omitted). 22 2. 23 Psychiatrist Dr. Douglas Phan treated Plaintiff in 2013 and 2014. See 24 25 26 27 28 Relevant Facts AR 436-65, 568-72. In November, he diagnosed Plaintiff with major 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, citations to 20 C.F.R. § 416.927 are to the version in effect from August 24, 2012 to March 26, 2017. 4 1 depression with psychotic features and posttraumatic stress disorder. See AR 2 439. He noted that Plaintiff had no current symptoms of mania or paranoia. 3 See AR 440. Dr. Phan assessed his suicide risk as low, but noted that non- 4 compliance with medication, drug use, and unforeseen stress factors could 5 increase the risk. See AR 441. On April 28, 2014, and September 8, 2014, Dr. 6 Phan wrote letters opining that Plaintiff’s symptoms would likely worsen in 7 crowded locations or when interacting with others. See AR 436, 572. On 8 September 8, 2014, Dr. Phan assessed that Plaintiff could not work, and 9 indicated that he did not need further testing to determine the degree of 10 incapacity. See AR 568. The ALJ gave “little” weight to Dr. Phan’s 11 assessment because it was brief, conclusory, and inconsistent with clinical 12 findings, and opined on issues reserved to the Commissioner. AR 38. He also 13 concluded that Dr. Phan’s 2014 opinions were not consistent with the 14 psychiatric assessment that he performed in November 2013. See AR 437-65. 15 State-agency non-examining physician Dr. K.J. Loomis reviewed the 16 medical evidence in Plaintiff’s file and assessed that Plaintiff could perform 17 “non-complex routine tasks.” AR 128-29. He opined that Plaintiff “is capable 18 of understanding, remembering and carrying out simple one to two step 19 (unskilled) tasks,” maintaining concentration, persistence, and pace, 20 “interact[ing] adequately with coworkers and supervisors,” making 21 adjustments, and avoiding hazards in the workspace. AR 125. Dr. Loomis 22 noted that Plaintiff “may have difficulty dealing with the demands of general 23 public contact.” Id. State-agency non-examining physician Dr. R. Paxton 24 agreed with Dr. Loomis’s assessment and opined that Plaintiff should be 25 limited to “non-complex routine tasks.” AR 143. The ALJ gave “great” weight 26 to Dr. Paxton’s assessment. AR 37. The ALJ gave “great” weight to the 27 assessments of the state agency medical consultants. See AR 37. 28 5 1 Dr. Reyaldo Abejuela conducted a mental status examination for the 2 Department of Social Services. See AR 382-88. He noted that the objective 3 medical findings revealed “mild depression and mild anxiety.” AR 387. Dr. 4 Abejuela determined that Plaintiff had no mental restrictions in daily activities; 5 no repeated episodes of emotional deterioration in work-like situations; no 6 impairments in understanding, carrying out, and remembering simple 7 instructions; mild impairments in maintaining social functioning and 8 concentration; mild impairments in understanding, carrying out, and 9 remembering complex instructions; mild impairments in responding to co- 10 workers, supervisors, and the public; and mild impairments in dealing with 11 changes in routine work settings. See id. He opined that Plaintiff’s psychiatric 12 symptoms would likely improve within a few months with continuous use of 13 his medication. See AR 388. The ALJ gave “great” weight to Dr. Abejuela’s 14 opinion. AR 38. The ALJ observed that Plaintiff spent much of his time working on a 15 16 farm and caring for farm animals, and that these daily activities were not those 17 expected of a totally disabled individual. See AR 34-35. Additionally, the ALJ 18 noted that Dr. Abejuela had opined that his psychiatric limitations were mild 19 at most. See AR 38. The ALJ also noted that Plaintiff’s hospitalizations for 20 expressing suicidal thoughts had occurred after consuming alcohol and he was 21 discharged with normal behavior shortly after. See id. Further, the ALJ noted 22 that Dr. Phan’s November and December 2013 mental status examinations 23 revealed largely normal findings. See id. Finally, the ALJ explained that 24 opinions by Drs. Loomis and Paxton were consistent with Plaintiff’s medical 25 records, “which reveal several grossly normal mental status examination 26 results during periods of abstinence from drugs and alcohol.” AR 38. 27 /// 28 /// 6 1 3. 2 Plaintiff contends that the ALJ’s decision was not supported by 3 substantial evidence because the ALJ (1) limited Plaintiff to “non-complex 4 routine tasks” rather than “simple one to two step (unskilled)” tasks, see JS at 5 6, (2) adopted a more restrictive RFC than that found by Dr. Abejuela, see id. 6 at 8, and (3) did not properly account for the medical opinion of Dr. Phan, see 7 JS at 10. However, the Court finds that substantial evidence supported the 8 ALJ’s RFC finding. 9 Analysis The ALJ considered the record as a whole, explained why he assigned 10 each weight to each physician’s opinion, and described the extent to which 11 their opinions were taken into account when formulating Plaintiff’s RFC. Both 12 state agency medical consultants found that Plaintiff was limited to non- 13 complex, routine tasks. See AR 129, 144. Dr. Loomis also noted that Plaintiff 14 “is capable of understanding, remembering, and carrying out one to two step 15 (unskilled) tasks.” AR 125. The ALJ’s failure to incorporate this comment into 16 his RFC was not error. It is the ALJ’s province to synthesize the medical 17 evidence. See Lingenfelter v. Astrue, 504 F.3d 1028, 1042 (9th Cir. 2007) 18 (“When evaluating the medical opinions of treating and examining physicians, 19 the ALJ has discretion to weigh the value of each of the various reports, to 20 resolve conflicts in the reports, and to determine which reports to credit and 21 which to reject.”). Where, as here, the evidence is susceptible of more than one 22 rational interpretation, the ALJ’s decision must be upheld. Burch v. Barnhart, 23 400 F.3d 676, 679 (9th Cir. 2005). 24 Plaintiff’s argument that the ALJ erred in adopting a more restrictive 25 RFC than suggested by Dr. Abejuela fails for the same reason. The ALJ 26 explained that he also “generously considered [Plaintiff’s] subjective 27 complaints of difficulty being around other people and memory problems.” 28 AR 38. He validly synthesized the record and resolved conflicts between Dr. 7 1 Abejuela’s mild assessments and Plaintiff’s claims of disabling symptoms when 2 formulating the RFC. Moreover, any error in considering Dr. Abejuela’s 3 opinion accrued to Plaintiff’s benefit because when “generously” considering 4 Plaintiff’s symptom testimony, the ALJ assessed greater limitations. 5 Plaintiff also complains that the ALJ’s RFC was not supported by 6 substantial evidence because it did not properly consider Dr. Phan’s opinions. 7 Dr. Phan opined that Plaintiff could not work despite also noting largely 8 unremarkable mental status examinations. See AR 568, 384-85. It is the ALJ’s 9 job to resolve what seems to be an internal inconsistency in Dr. Phan’s report. 10 See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 603 (9th Cir. 1999) 11 (holding that ALJ was “responsible for resolving conflicts” and “internal 12 inconsistencies” within doctor’s reports). Moreover, the ALJ was not required 13 to regurgitate Dr. Phan’s assessment as Plaintiff’s RFC. See Bustos v. Astrue, 14 No. 11-1953, 2012 WL 5289311, at *5 (E.D. Cal. Oct. 23, 2012) (noting that 15 the Ninth Circuit has said that “an ALJ may synthesize and translate assessed 16 limitations into an RFC assessment without repeating each functional 17 limitation verbatim”). Here, the ALJ limited Plaintiff to no interaction with the 18 public and only occasional and non-intense interactions with supervisors and 19 coworkers, AR 33, which appears to encompass at least to some degree Dr. 20 Phan’s concern about Plaintiff’s ability to interact with others. See James v. 21 Astrue, No. 08-1032, 2009 WL 1748695, at *5 (E.D. Cal. June 19, 2009) 22 (finding by physician that claimant could perform simple, repetitive work 23 suggests that physician found claimant capable of performing basic work 24 activities notwithstanding limitation on ability to respond to changes in work 25 environment). Although other interpretations of Dr. Phan’s report might be 26 possible, the ALJ’s interpretation is entitled to deference. See Burch, 400 F.3d 27 at 679. Remand is unwarranted. 28 /// 8 1 B. The ALJ Did Not Err in Determining that Plaintiff Can Perform 2 Unskilled Work 3 Plaintiff contends that the ALJ erred at step five of the sequential 4 analysis because the ALJ’s RFC conflicts with a description of unskilled work 5 in a Social Security Administration policy. See JS at 19-21. Specifically, 6 Program Operations Manual System (“POMS”) DI 25020.010 ¶ B.3 describes 7 the ability to respond appropriately to supervision, coworkers, and work 8 situations as a basic mental demand of competitive, remunerative, unskilled 9 work activity. Plaintiff claims that his social functioning limitations leave him 10 unable to respond to criticism appropriately such that he cannot perform 11 unskilled work. See JS at 20-21. 12 The RFC finding does not conflict with the cited POMS rule because the 13 RFC still allows for Plaintiff to have occasional, superficial, and non-intense 14 interactions with supervisors and coworkers. See AR 33. While it limits 15 Plaintiff’s abilities to interact with others at work, it does not completely 16 eliminate all contact with coworkers and supervisors. Importantly, even if the 17 cited POMS rule were construed to suggest that Plaintiff could not perform 18 any unskilled work, it is not judicially enforceable. Lockwood v. Comm’r Soc. 19 Sec. Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) (“POMS constitutes an 20 agency interpretation that does not impose judicially enforceable duties on 21 either this court or the ALJ.”). 22 Plaintiff also argues that the POMS guidance conflicts with the VE’s 23 testimony that jobs that Plaintiff can perform exist in significant numbers in 24 the national economy, because the VE did not explain how a person limited to 25 superficial contact could perform unskilled work. See JS at 20-21; see also AR 26 39, 57-59. A hypothetical posed to the VE must set out all of the claimant’s 27 limitations and restrictions. See Light v. Soc. Sec. Admin., 119 F.3d 789, 793 28 (9th Cir. 1997) (as amended); Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 9 1 1988). However, the hypothetical need not include limitations that are 2 unsupported by substantial evidence in the record. See Osenbrock v. Apfel, 240 3 F.3d 1157, 1163-64 (9th Cir. 2001). Because the ALJ did not err in omitting 4 from his RFC assessment Plaintiff’s suggestion that he is incapable of 5 performing all unskilled work, the ALJ was not obligated to include such 6 limitations in the hypothetical to the VE. See Thomas v. Barnhart, 278 F.3d 7 947, 959 (9th Cir. 2002) (holding that ALJ need not include limitations that are 8 not supported by objective medical evidence in hypothetical questions to VE). 9 The Court therefore finds that the ALJ’s decision at step five is supported by 10 substantial evidence and the ALJ’s reliance on the VE’s testimony does not 11 constitute reversible error. 12 III. 13 CONCLUSION 14 15 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 16 17 Dated: August 6, 2018 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28 10
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