Mary Avila v. Carolyn W. Colvin, No. 2:2017cv00512 - Document 20 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (See document for details.) (sbou)
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Mary Avila v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARY A., 12 13 14 Plaintiff, v. NANCY A. BERRYHILL, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 17-512-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On January 20, 2017, plaintiff Mary A. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of a period of disability and disability insurance 24 benefits (“DIB”). The parties have fully briefed the matters in dispute, and the 25 court deems the matter suitable for adjudication without oral argument. 26 Plaintiff presents one disputed issue for decision, whether the 27 Administrative Law Judge’s step two finding that plaintiff did not have a severe 28 1 Dockets.Justia.com 1 mental impairment was supported by substantial evidence in light of subsequently 2 submitted evidence. Plaintiff’s Memorandum in Support of Plaintiff’s Complaint 3 (“P. Mem.”) at 4-7; see Defendant’s Memorandum in Support of Answer (“D. 4 Mem.”) at 1-2. 5 Having carefully studied the parties’ memoranda on the issue in dispute, the 6 Administrative Record (“AR”), and the decision of the Administrative Law Judge 7 (“ALJ”), the court concludes that, as detailed herein, the ALJ’s step two finding 8 was supported by substantial evidence, even taking into consideration the 9 evidence submitted after the hearing. Consequently, the court affirms the decision 10 of the Commissioner denying benefits. 11 II. 12 FACTUAL AND PROCEDURAL BACKGROUND 13 Plaintiff, who was forty-eight years old on the alleged disability onset date, 14 completed school through the seventh grade, obtained a GED, and has a 15 cosmetology license. AR at 53, 70, 188. Plaintiff has past work as a make-up 16 artist and cosmetics sales associate. Id. at 188. 17 On June 20, 2013, plaintiff filed an application for a period of disability and 18 DIB, alleging an onset date of September 28, 2012 due to depression, anxiety, 19 fatigue, insomnia, stress, and an inability to focus and concentrate. Id. at 70. The 20 Commissioner denied plaintiff’s application initially and upon reconsideration, 21 after which she filed a request for a hearing. Id. at 88-91, 94-101. 22 On June 15, 2015, plaintiff, represented by counsel, appeared and testified 23 at a hearing. Id. at 50-69. The ALJ also heard testimony from Dr. David B. 24 Peterson, a medical expert. Id. at 62-68. On June 30, 2015, the ALJ denied 25 plaintiff’s claim for benefits. Id. at 35-44. 26 Applying the well-known five-step sequential evaluation process, the ALJ 27 found, at step one, that plaintiff had not engaged in substantial gainful activity 28 2 1 since September 28, 2012, the alleged onset date. Id. at 37. 2 At step two, the ALJ found plaintiff suffered from the following 3 impairments: depression and anxiety, not otherwise specified; and a history of 4 polysubstance abuse in full sustained remission. Id. The ALJ found that the 5 impairments, whether individually or in combination, were not severe. Id. at 38. 6 Consequently, the ALJ concluded plaintiff did not suffer from a disability as 7 defined by the Social Security Act. Id. at 44. 8 Plaintiff filed a timely request for review of the ALJ’s decision and 9 submitted additional medical evidence. Id. at 5, 29-30. The Appeals Council 10 found the additional evidence did not provide a basis for changing the ALJ’s 11 decision and so denied the request for review. Id. at 1-4. The ALJ’s decision 12 stands as the final decision of the Commissioner. 13 III. 14 STANDARD OF REVIEW 15 This court is empowered to review decisions by the Commissioner to deny 16 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 17 Administration must be upheld if they are free of legal error and supported by 18 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 19 (as amended). But if the court determines the ALJ’s findings are based on legal 20 error or are not supported by substantial evidence in the record, the court may 21 reject the findings and set aside the decision to deny benefits. Aukland v. 22 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 23 1144, 1147 (9th Cir. 2001). 24 “Substantial evidence is more than a mere scintilla, but less than a 25 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 26 “relevant evidence which a reasonable person might accept as adequate to support 27 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 28 3 1 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 2 finding, the reviewing court must review the administrative record as a whole, 3 “weighing both the evidence that supports and the evidence that detracts from the 4 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 5 affirmed simply by isolating a specific quantum of supporting evidence.’” 6 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 7 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 8 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 9 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 10 1992)). 11 IV. 12 DISCUSSION 13 Plaintiff contends the ALJ’s step two finding was not supported by 14 substantial evidence. P. Mem. at 4-7. Specifically, plaintiff argues the three 15 medical source statements submitted to the Appeals Council, and now a part of the 16 administrative record, are substantial evidence that plaintiff has severe mental 17 impairments. Id. 18 At step two, the Commissioner considers the severity of the claimant’s 19 impairments. 20 C.F.R. § 404.1520(a)(4)(ii).1 “[T]he step-two inquiry is a de 20 minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80 21 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or combination of impairments 22 can be found not severe only if the evidence establishes a slight abnormality that 23 has no more than a minimal effect on an individual’s ability to work.” Id. (citation 24 and quotation marks omitted). 25 Here, the ALJ determined that plaintiff suffered from depression and 26 27 1 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 4 1 anxiety, not otherwise specified, but neither was severe because plaintiff suffered 2 no episodes of compensation and the impairments only caused mild limitations in 3 activities of daily living, social functioning, and concentration, persistence, and 4 pace. AR at 37-38, 44. In reaching this determination, the ALJ considered all of 5 the evidence, including plaintiff’s testimony, the medical records, and the medical 6 opinions. See id. at 38-44; see also 20 C.F.R. § 404.1527(b) (in determining 7 whether a claimant has a medically determinable impairment, among the evidence 8 the ALJ considers is medical evidence). The ALJ discounted plaintiff’s credibility 9 on the basis that she had limited treatment in the past year, she was treated 10 conservatively, she improved with medication, she may have left her job for 11 reasons other than her alleged limitations, and her activities of daily living did not 12 suggest any significant functional limitations. See id. at 41-42; see also 13 Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (listing factors to 14 consider in a credibility analysis). Moreover, there was evidence plaintiff 15 exaggerated her symptoms and sought treatment for the purpose of obtaining 16 social security disability benefits. Id. at 41. Plaintiff does not contest the ALJ’s 17 credibility findings. 18 In evaluating medical opinions, the regulations distinguish among three 19 types of physicians: (1) treating physicians; (2) examining physicians; and (3) 20 non-examining physicians. 20 C.F.R. § 404.157(c), (e); Lester v. Chater, 81 F.3d 21 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s opinion 22 carries more weight than an examining physician’s, and an examining physician’s 23 opinion carries more weight than a reviewing physician’s.” Holohan v. 24 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). 25 Nonetheless, the ALJ is not bound by the opinion of the treating physician and 26 may reject it so as long he or she provides legally sufficient reasons. Smolen, 80 27 F.3d at 1285. 28 5 1 The ALJ here looked at the medical evidence and gave significant weight to 2 the opinion of examining physician Dr. Nina Kapitanski, little weight to the 3 opinion of treating physician Dr. Kathryn Ward, and greater weight to the opinion 4 of medical expert Dr. David B. Peterson. AR at 40, 43. The ALJ gave significant 5 weight to the opinion of Dr. Kapitanski, who opined plaintiff had no more than 6 mild limitations, because her opinion was based on an examination, supported by 7 explanations, and consistent with the clinical findings. Id. at 40; see id. at 377-81. 8 The ALJ gave weight to Dr. Peterson’s opinion, that he was unable to assess 9 limitations greater than mild based on the available evidence, because Dr. Peterson 10 reviewed the entire medical record and was familiar with social security disability 11 requirements. Id. at 43. Finally, the ALJ rejected Dr. Ward’s opinion that plaintiff 12 was “unable to function in any job situation” – which opinion was given on the 13 medical leave forms Dr. Ward completed for plaintiff’s employer (see, e.g., id. at 14 297, 308, 325) – because: her opinion contained no specific assessment of 15 severity and limiting effects; her opinion was not consistent with the other 16 evidence in the record including her own treatment notes, which were “utterly 17 devoid of mental status abnormalities”; and Dr. Ward herself suspected plaintiff 18 had ulterior motives for treatment.2 See id. at 40-41, 43. 19 Plaintiff does not argue the ALJ erred at step two based on the evidence 20 then available to her. Instead, plaintiff contends that the subsequently submitted 21 evidence changes the analysis and the ALJ’s step two finding is no longer 22 supported by substantial evidence. See P. Mem. at 4-7; see also Ramirez v. 23 Shalala, 8 F.3d 1449, 1452 (9th Cir. 1993) (court considered both the ALJ’s 24 decision and the relevant additional report submitted to the Appeals Council after 25 26 2 Dr. Jesse M. Carr also treated plaintiff for at least a year, but did not offer an 27 opinion. See AR at 353-63, 389-90. The ALJ concluded that the findings in Dr. 28 Carr’s mental status examinations were within normal limits. Id. at 41. 6 1 the hearing). In support of her request for review, plaintiff submitted additional 2 medical records from Kaiser (which do not concern plaintiff’s mental 3 impairments) and three medical statements from Dr. Ward. See AR at 8-21, 5194 642, 645-64. The medical statements from Dr. Ward, all dated July 9, 2015, 5 concern plaintiff’s personality disorder, depression, and depression with anxiety. 6 See id. at 654-64. In the medical statements, Dr. Ward, with minimal explanation, 7 opines plaintiff had multiple moderate and marked limitations as a result of her 8 mental impairments. See id. Plaintiff argues that Dr. Ward’s opinion meets the de 9 minimis threshold at step two. P. Mem. at 6. Plaintiff further suggests that Dr. 10 Peterson would have opined plaintiff suffered from more than mild limitations had 11 he reviewed these medical statements. See id. at 7. Defendant disagrees and 12 asserts that the medical statements are not retrospective and the ALJ’s reasons for 13 discounting Dr. Ward’s opinion at the time of the hearing are also applicable to the 14 medical statements. D. Mem. at 1-2. 15 As an initial matter, it is not a specific and legitimate reason to reject a 16 medical opinion simply because it was made after the relevant period. Smith v. 17 Bowen, 849 F.2d 1222, 1225 (9th Cir.1988) (“[M]edical reports are inevitably 18 rendered retrospectively and should not be disregarded on that basis.”). 19 “‘[M]edical evaluations made after the expiration of a claimant’s insured status are 20 relevant to an evaluation of the pre-expiration condition.’” Taylor v. Comm’r, 659 21 F.3d 1228, 1232 (9th Cir. 2011) (citation omitted) (finding that the ALJ must 22 consider medical opinions relevant to the insured period). Here, although Dr. 23 Ward did not specify the period to which the medical statements applied, they 24 were completed only nine days after the ALJ denied plaintiff’s claims. It is 25 therefore reasonably inferable that Dr. Ward’s opinion applies to at least some 26 portion of the relevant period. 27 Whether the medical statements are sufficient to establish that plaintiff had 28 7 1 severe mental impairments is a close call. But as defendant notes, the ALJ’s same 2 reasons for rejecting Dr. Ward’s opinion given in the medical leave forms were 3 equally applicable to the medical statements. The ALJ rejected Dr. Ward’s earlier 4 opinion because it lacked a specific assessment of severity and limiting effects, it 5 was not supported by clinical findings in her treatment notes or other evidence in 6 the record, and Dr. Ward suspected plaintiff had ulterior motives for treatment. 7 See AR at 41, 43. Although Dr. Ward subsequently opined specific limitations in 8 the medical statements, the statements are checkbox forms with minimal 9 explanation and, as with her earlier opinion, were unsupported by clinical 10 findings. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (evidence of an 11 impairment in the form of “check-off reports” may be rejected for lack of 12 explanation of the bases for their conclusions). The only explanation Dr. Ward 13 provided was in support of her opinion that plaintiff had moderate limitations in 14 social functioning, noting that plaintiff found it difficult to leave home, to be 15 around people, and participate in social activities. See AR at 657, 659. But Dr. 16 Ward’s treatment notes are bereft of findings or observations to support this 17 opinion. Indeed, other than a few mentions of plaintiff feeling stressed and being 18 tearful, the majority of the treatment notes contain no findings and simply note the 19 length of the session.3 See, e.g., id. at 299, 304-05, 314, 340, 645. 20 Plaintiff also noted that Dr. Peterson testified that a mental impairment 21 questionnaire would be helpful to assess the severity of the limitations, thereby 22 implying that such a questionnaire would be substantial evidence of severe 23 impairments. See P. Mem. at 7. But as plaintiff acknowledges, Dr. Peterson only 24 testified a mental impairment questionnaire “might” be sufficient. AR at 66. Dr. 25 26 3 Plaintiff cites to symptoms Dr. Ward reported in an Employment 27 Development Department claim, but these symptoms were not supported by the 28 treatment notes. See P. Mem. at 7; AR at 329. 8 1 Peterson actually testified such a questionnaire would be helpful if it reconciled 2 the lack of clinical findings in the mental status examinations with the MCMI-III 3 test results, which indicated a much more severe diagnoses than the treatment 4 notes and found that plaintiff’s responses indicated an inclination to exaggerate. 5 See id. at 66, 397, 401. But as discussed above, Dr. Ward offered little 6 explanation in her medical statements, and certainly nothing that would reconcile 7 anything with the lack of clinical findings. 8 Although the medical statements could be interpreted as evidence of severe 9 mental impairments, the evidence in the record may also reasonably affirm the 10 ALJ’s finding. Therefore, this court will not substitute its judgment for the ALJ’s. 11 The ALJ’s step two finding was supported by substantial evidence. 12 V. 13 CONCLUSION 14 IT IS THEREFORE ORDERED that Judgment shall be entered 15 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 16 the complaint with prejudice. 17 18 DATED: March 21, 2019 19 20 SHERI PYM United States Magistrate Judge 21 22 23 24 25 26 27 28 9
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