Silvia Duarte v. Nancy A. Berryhill, No. 2:2018cv03568 - Document 21 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (See document for details.) (sbou)
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Silvia Duarte v. Nancy A. Berryhill Doc. 21 1 2 3 O 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SILVIA C. D., 12 13 14 15 Case No. 2:18-cv-03568-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 ISSUES PRESENTED 20 Plaintiff Silvia C. D. (“Plaintiff”) appeals the denial of her applications for 21 disability insurance benefits (“DIB”) and supplemental security income (“SSI”) 22 based on the Administrative Record (“AR”). Her appeal presents the following 23 two issues: 24 Issue One: Whether the administrative law judge (“ALJ”) erred in evaluating 25 the medical evidence concerning Plaintiff’s mental impairments, such that the 26 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 27 28 1 1 Dockets.Justia.com 1 ALJ’s determination of Plaintiff’s mental residual functional capacity (“RFC”) is 2 unsupported by substantial evidence. 3 Issue Two: Whether the ALJ erred by failing to include in Plaintiff’s RFC 4 some additional limitation(s) on “motion of the neck.” 5 Joint Stipulation (“JS”) at Dkt. 18, page 5. 6 II. 7 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 8 9 Plaintiff previously applied for DIB and SSI; she was found not disabled in a decision dated January 22, 2013. AR 28, citing AR 641. At that time, the ALJ 10 determined that Plaintiff could do work at all exertional levels, simple and detailed, 11 if the work did not require public contact. AR 631. 12 The instant appeal concerns Plaintiff’s subsequent DIB and SSI applications 13 filed in 2014. AR 790-99. On March 21, 2017, an ALJ issued a decision denying 14 benefits. AR 28-41. The ALJ found that Plaintiff had demonstrated “changed 15 circumstances” by alleging disorders of the spine and submitting a new MRI which 16 showed a herniated disc and disc disease. AR 28; compare AR 629 (discussing 17 2013 lack of medical evidence of any musculoskeletal impairment that might cause 18 back pain of which Plaintiff complained). The ALJ determined that this new 19 evidence rebutted the presumption of continuing non-disability and supported 20 additional limitations in Plaintiff’s RFC. AR 29. 21 The ALJ found that Plaintiff suffered from the medically determinable 22 severe impairments of “schizoaffective disorder, depressive disorder, 23 methamphetamine abuse, alcohol dependence, anxiety disorder, substance induced 24 mood disorder, borderline intellectual functioning, lumbar degenerative disc 25 disease, and cervical spine degenerative disc disease.” AR 31. 26 Next, the ALJ found that Plaintiff’s mental impairments did not meet or 27 medically equal the criteria of listings 12.04 and 12.06. AR 32. In reaching this 28 conclusion, the ALJ found that Plaintiff had mild limitations in understanding, 2 1 remembering, or applying information and in maintaining concentration, 2 persistence, or pace, and moderate limitations interacting with others and 3 managing herself. AR 32-33. 4 Despite her impairments, the ALJ found that Plaintiff had the RFC to 5 perform light work with certain postural limitations. AR 33. To account for 6 Plaintiff’s mental impairments, the ALJ included the following limitations in 7 Plaintiff’s RFC: 8 She can understand, remember, and carry out simple, repetitive tasks 9 and make simple work-related decisions. She can perform tasks in a 10 routine work setting that has only occasional changes in the work 11 routine. Socially, she should avoid contact with the public. 12 AR 33. 13 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 14 found that Plaintiff could work as a photocopy machine operator, collator operator, 15 or silver wrapper. AR 40. The ALJ concluded that Plaintiff was not disabled. AR 16 41. 17 III. 18 DISCUSSION 19 ISSUE ONE: Plaintiff’s Mental Impairments. 20 1. Law. 21 The decision of the Commissioner may be reversed only if it is not 22 supported by substantial evidence or if it is based on legal error. Tackett v. Apfel, 23 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as being 24 more than a mere scintilla, but less than a preponderance. Id. at 1098. Put another 25 way, substantial evidence is such relevant evidence as a reasonable mind might 26 accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 27 401 (1971). If the evidence is susceptible to more than one rational interpretation, 28 the court may not substitute its judgment for that of the Commissioner. Tackett, 3 1 180 F.3d at 1097; Morgan v. Commissioner, 169 F.3d 595, 599 (9th Cir. 1999). 2 The ALJ is responsible for determining credibility, resolving conflicts in medical 3 testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 4 (9th Cir. 1995). 5 2. The ALJ’s Evaluation of Plaintiff’s Mental Impairments. 6 The ALJ summarized records reflecting Plaintiff’s hospitalizations due to 7 anxiety and her inconsistent medication regimen. AR 34, citing AR 975-1040. 8 The ALJ also discussed records from her treating physician and counseling 9 therapy. Id., citing generally AR 1041-1285, 1300-14, and 1319-32. 10 In addition to treating records, the ALJ noted that Plaintiff received two 11 mental status examinations to evaluate her mental capacity for work. AR 35. Dr. 12 J. Zhang performed the first in August 2014 (AR 1288-91) and Dr. Lou Ellen 13 Sherrill performed the second in December 2016 (AR 1464-73). The ALJ 14 characterized the findings of both examinations as “similar” and “well-supported 15 by the treatment notes.” AR 36. The ALJ gave “partial weight” to both opinions. 16 Id. 17 The ALJ also summarized the findings of State agency psychologists Dr. 18 Uwe Jacobs (AR 660-62) and Dr. Kim Morris (AR 686-91). AR 36-37. Dr. 19 Jacobs found that the evidence concerning Plaintiff’s mental impairments was not 20 “substantively different” from that considered by the first ALJ “and thus 21 insufficient for rebuttal of the presumption, etc.” AR 660. He therefore 22 recommended adopting the prior ALJ’s mental RFC (i.e., a restriction against 23 public contact), noting that this was “not an independent assessment.” AR 662. 24 Dr. Morris made the same recommendation for the same reason. AR 688. The 25 ALJ determined that their findings were “mostly consistent with the determination 26 that the claimant is capable of significant work-related activities.” AR 37. The 27 ALJ, however, eroded the weight of these opinions because they were based on an 28 4 1 assessment system no longer used by the Social Security Administration.2 Id. 2 In addition to discussing this medical evidence, the ALJ also discussed 3 Plaintiff’s activities as reported in her Adult Function Report (AR 834-55) and 4 hearing testimony (AR 567-84). AR 34. 5 The ALJ concluded that while Plaintiff has multiple mental impairments, the 6 symptoms that diminished her functionality were “mainly increased due to 7 medication noncompliance.” AR 36. “When she did maintain a consistent 8 medication program, her condition greatly improved and she was able to go to the 9 gym for exercise.” Id., citing AR 1332.3 10 11 12 13 14 15 In determining Plaintiff’s RFC, the ALJ accounted for the opinions of Drs. Zhang and Sherrill as follows: Functional Area Zhang (AR 1291) Sherrill (AR 1470) Understand, No impairment No difficulty remember, and carry out simple instructions 16 17 RFC (AR 33) Limited to simple, repetitive tasks and simple decisions in a routine work setting with only occasional changes 18 19 20 21 22 23 24 25 26 27 28 To evaluate the severity of Plaintiff’s mental impairments, they considered Plaintiff’s functional limitations in four areas: activities of daily living, social functioning, concentration, and episodes of decompensation. AR 660, 687-88. In 2017, the regulations changed (see 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3)), requiring consideration of limitations in social functioning, concentration, selfmanagement, and understanding, remembering, or applying information. 2 This January 2015 treatment note states, in relevant part, “Patient says she’s doing much better. Has been going to the gym with her neighbor and spending time with her socially. Says she’s mentally clearer, exercising has helped her anxiety, and plans to go to her PCP [primary care provider] to come off of her addictive medications…. Wants to get a job to move out of her sister’s house. Says biggest stress is her sister expecting her to clean the house and do chores, says that sister is upset she is going to the gym.” AR 1332. 3 5 1 2 Work without special supervision Moderate impairment Respond appropriately to usual work situations and changes in routine Maintain consistent attendance Mild impairment Maintain concentration, persistence, and pace Moderate impairment Interact appropriately with others Moderate impairment 3 4 5 6 7 8 9 Moderate impairment 10 11 12 13 14 15 16 17 18 Can perform simple and repetitive tasks with minimal supervision Moderate difficulty tolerating ordinary work pressures Same as above Same as above (i.e., conditions that reduce ordinary work pressures) Mild difficulty Same as above maintaining (i.e., conditions normal work cycle that reduce stressors that trigger absenteeism) Same as above, Only mild but no additional difficulty performing simple limits on pace of work repetitive tasks with appropriate persistence and pace Mild difficulty No public contact 19 3. Claimed Errors.4 20 (1) Plaintiff contends that the ALJ left medical opinion evidence from Drs. 21 Lin and Parikh “unaddressed.” (JS at 10.) 22 23 24 25 26 27 28 In the reply portion of the Joint Stipulation, Plaintiff argues that the ALJ also erred in evaluating Dr. Sherrill’s opinions. JS at 17. Plaintiff mentioned Dr. Sherrill in her initial summary of the medical evidence but did not make any arguments about the ALJ’s treatment about that opinion until the reply portion of the joint stipulation. The Court therefore declines to consider this argument, because it was raised for the first time in a reply and not adequately briefed. See Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 924 (9th Cir. 1988). 4 6 1 (2) Plaintiff contends that none of the restrictions in her RFC adequately 2 account for her moderate difficulty maintaining concentration, persistence or pace. 3 (JS at 17.) 4 (3) Plaintiff argues that the ALJ failed to give a specific, legitimate reason 5 for rejecting Dr. Zhang’s opinions of Plaintiff’s moderate impairments.5 (JS at 10, 6 citing AR 1291.) 7 4. Analysis. 8 9 a. Claimed Error One: Drs. Lin and Parikh. Treating records from Dr. Catherine Lin of AltaMed Clinic are found in 10 administrative exhibit B3F. See, e.g., AR 1043, 1099, 1114. The ALJ specifically 11 discussed these records. AR 35. The ALJ did not leave this evidence 12 “unaddressed.” 13 Dr. Sohini Parikh works for the Los Angeles County Department of Mental 14 Health (“LA-DMH”). AR 1338. Treatment records from the LA-DMH are found 15 in administrative exhibit B9F (AR 1335-59). Plaintiff received treatment from 16 various sources at LA-DMH including social workers Theola Flores and Gabriela 17 Ramirez (AR 1335-36), Dr. Mohammed Khan (AR 1337), and Dr. Parikh (AR 18 1338). The only treatment notes by Dr. Parikh appear at AR 1338-39. 19 The ALJ did not discuss Exhibit B9F or any of the LA-DMH sources by 20 name. Plaintiff contends, “Failure to consider the treating source findings about 21 the intensity and limiting effects of medical impairments is error,” citing Marsh v. 22 Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) (finding prejudicial error where “the 23 ALJ did not even mention Dr. Betat’s opinion that Marsh’s chronic bursitis 24 rendered her ‘pretty much nonfunctional’”) (JS at 10.) 25 26 27 28 The ALJ must give specific and legitimate reasons for rejecting a treating physician’s opinion in favor of a non-treating physician’s contradictory opinion or an examining physician’s opinion in favor of a non-examining physician’s opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 5 7 1 Unlike Dr. Betat, Dr. Parikh did not provide any opinions about the 2 functional limitations caused by Plaintiff’s mental impairments. In March 2016, he 3 spoke to Plaintiff for 70 minutes and obtained a personal and medical history. AR 4 1338. His clinical impression was that Plaintiff suffers from schizoaffective 5 disorder as well as alcohol abuse in full remission – findings echoed by the ALJ. 6 Compare AR 1338 and AR 31. He summarized Plaintiff’s medications. AR 1339. 7 He recorded the treatment objectives as reducing mood swings and voices, and he 8 instructed Plaintiff to take her medications as prescribed. AR 1339. 9 In the JS, Plaintiff fails to identify any opinion by Dr. Parikh that would 10 have changed the ALJ’s non-disability determination had the ALJ considered it. 11 Plaintiff, therefore, failed to carry her burden to show prejudicial error. See 12 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (explaining that “we may 13 not reverse an ALJ’s decision on account of an error that is harmless,” and that 14 “the burden of showing that an error is harmful normally falls upon the party 15 attacking the agency’s determination”). 16 17 b. Claimed Error Two: Concentration, Persistence, or Pace. The ALJ found that Plaintiff had only mild limitation in the functional area 18 of maintaining concentration, persistence, or pace. AR 32. In support of this 19 finding, the ALJ cited Plaintiff’s reported activities (including the ability to 20 manage her own finances, shop, and travel in public areas) and treating records that 21 “do not describe significant cognitive abnormalities.” Id. This finding is also 22 consistent with the opinions of psychological examiner Dr. Sherrill. AR 1470 23 (finding Plaintiff has only mild difficulty maintaining appropriate concentration 24 and pace when limited to simple, repetitive tasks). Drs. Jacobs and Morris also 25 found only “mild” difficulties in this area. AR 660, 687. 26 For these reasons, the RFC’s failure to restrict Plaintiff against fast-paced 27 work to account for her claimed “moderate” difficulty in maintaining 28 concentration, persistence, or pace is not legal error. 8 1 c. Claimed Error Three: Dr. Zhang. 2 Procedurally, Plaintiff contends that the ALJ was required to list each of Dr. 3 Zhang’s opinions about Plaintiff’s functional limitations and either adopt each one 4 in its entirety or give a specific, legitimate reason for rejecting it. Not so. The ALJ 5 complied with the applicable regulations by summarizing Dr. Zhang’s report, 6 stating that he gave it “partial” weight, and explaining why. See 20 C.F.R. §§ 7 404.1527, 416.927. 8 9 Substantively, Plaintiff contends that the RFC fails to account for the numerous “moderate” limitations opined by Dr. Zhang. (JS at 10.) As 10 demonstrated by the summary chart above, this again is not so. The ALJ agreed 11 with Dr. Zhang that Plaintiff has moderate difficulties interacting with others. AR 12 32. In the RFC, the ALJ restricted Plaintiff against public contact, but did not 13 restrict the frequency of Plaintiff’s interactions with coworkers or supervisors. AR 14 31. Plaintiff contends that this was error. (JS at 10.) The ALJ, however, 15 accurately summarized evidence of Plaintiff’s ability to get along with others as 16 demonstrated by her public activities, such as shopping and going to the gym. AR 17 32. Plaintiff testified that she was comfortable being around two or three people. 18 AR 583. It is the ALJ’s role to translate the evidence into an RFC. See Rounds v. 19 Comm’r of S.S.A., 807 F.3d 996, 1006 (9th Cir. 2015) (“[T]he ALJ is responsible 20 for translating and incorporating clinical findings into a succinct RFC.”). Plaintiff 21 has not demonstrated that the ALJ committed legal error by determining that 22 Plaintiff’s difficulties in social functioning could be adequately accommodated by 23 restricting her public contact but not restricting her interactions with coworkers or 24 supervisors. 25 26 27 28 ISSUE TWO: Motion of the Neck. 1. The RFC’s Exertional Limitations. The ALJ restricted Plaintiff to occasionally climbing stairs and ramps, but never climbing ladders or scaffolds. AR 33. The ALJ found that Plaintiff can 9 1 occasionally stoop, kneel, crouch, and crawl. Id. In the context of Social Security 2 disability benefits, “occasionally” means no more than one-third of the workday. 3 See, e.g., Social Security Ruling 96-9p, 1996 WL 374185. 2. Claimed Errors. 4 5 6 7 (1) Plaintiff contends that the ALJ failed to give any reasons for rejecting Plaintiff’s subjective symptom testimony about neck pain. (JS at 20.) (2) Plaintiff contends that the ALJ failed to give any reasons for rejecting the 8 findings of Dr. Pollis regarding “the presence of spasms and loss of motion.” (Id., 9 citing AR 38.) 10 11 (3) Plaintiff contends that the ALJ should have included some additional limitation on neck movement in the RFC. (Id.) 3. Law. 12 13 In evaluating a claimant’s subjective symptom testimony, the ALJ engages 14 in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 15 2007). “First, the ALJ must determine whether the claimant has presented 16 objective medical evidence of an underlying impairment [that] could reasonably be 17 expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the 18 ALJ may not reject a claimant’s testimony “simply because there is no showing 19 that the impairment can reasonably produce the degree of symptom alleged.” 20 Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996). Second, if the claimant 21 meets the first test, the ALJ may discredit the claimant’s subjective symptom 22 testimony only if he makes specific findings that support the conclusion. Berry v. 23 Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative 24 evidence of malingering, the ALJ must provide “clear and convincing” reasons for 25 rejecting the claimant’s testimony. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 26 1995). 27 28 The ALJ must give specific and legitimate reasons for rejecting a treating physician’s opinion in favor of a non-treating physician’s contradictory opinion or 10 1 an examining physician’s opinion in favor of a non-examining physician’s opinion. 2 Orn, 495 F.3d at 632. 4. Plaintiff’s Subjective Symptom Testimony. 3 4 When asked why she was unable to work, Plaintiff testified at the hearing, “I 5 have a severe back pain that radiates to my leg … It radiates to my back. It comes 6 to my neck and it gives me a lot of pressure and it gives me headaches. So it’s 7 very hard for me to walk and to sit for a long period of time or to work for a long 8 period of time.” AR 572. Plaintiff testified that she could walk only two or three 9 blocks and stand only twenty or thirty minutes. AR 580. She testified that she was 10 unable to reach above her shoulder with her left hand due to back and neck pain. 11 AR 581. 12 The ALJ gave multiple reasons for disbelieving Plaintiff’s subjective 13 symptom testimony. One stated reason was that “in March 2014, she reported that 14 she performed yoga and boxing for exercise, strongly suggesting her condition was 15 not as limiting as described.” AR 37, citing AR 1101. Results of numerous office 16 visits described normal physical examinations, without any description of an 17 inability to walk or function. Id., citing AR 996, 1026 (describing neck in October 18 2013 as “supple” and “nontender”), 1199, 1368 (findings on neck exam in June 19 2016 reported as “normal”), 1375. These were sufficient reasons to disbelieve 20 Plaintiff’s testimony that her neck pain is so severe, she cannot do any job that 21 requires neck motion. 22 5. Dr. Pollis. 23 The ALJ discussed Plaintiff’s orthopedic consultative examination with Dr. 24 Pollis. AR 38, citing AR 1476-80. Dr. Pollis noted Plaintiff’s complaint that she 25 experiences neck pain upon movement. He limited her to occasional bending, 26 climbing, stooping, kneeling, and crouching. AR 1480. The ALJ gave Dr. Pollis’s 27 opinions “considerable weight,” finding them consistent with Plaintiff’s reported 28 activities of yoga and boxing. AR 38. The ALJ adopted similar limitations in the 11 1 2 RFC. AR 33. Plaintiff has failed to demonstrate legal error in the ALJ’s evaluation of Dr. 3 Pollis’s report. More fundamentally, Plaintiff has failed to demonstrate that the 4 RFC’s restriction to light work with only occasional postural activities is 5 insufficient to account for her neck pain. 6 7 6. Restrictions Against Neck Movement. Plaintiff contends that the ALJ erred by failing to include in Plaintiff’s RFC 8 some limitation on “motion of the neck,” but she does not suggest what that 9 limitation should have been or cite to any medical source who opined such a 10 restriction was necessary. Plaintiff also fails to discuss why limitations on neck 11 movement might preclude her from working as a photocopy machine operator, 12 collator operator, or silver wrapper. Plaintiff has failed to demonstrate prejudicial 13 legal error. 14 V. 15 CONCLUSION 16 For the reasons stated above, IT IS ORDERED that judgment shall be 17 entered AFFIRMING the decision of the Commissioner denying benefits. 18 19 20 21 22 DATED: March 14, 2019 ______________________________ KAREN E. SCOTT United States Magistrate Judge 23 24 25 26 27 28 12
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