Otilia Huizar v. Nancy A. Berryhill, No. 2:2018cv09181 - Document 19 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered accordingly. (see document for further details) (hr)
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Otilia Huizar v. Nancy A. Berryhill Doc. 19 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OTILIA H., an Individual, 12 Plaintiff, 13 v. 14 Case No.: 2:18-0 9181 ADS MEMORANDUM OPINION AND ORDER ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 I. IN TROD U CTION 18 Plaintiff Otilia H.1 (“Plaintiff”) challenges the Defendant Andrew M. Saul2 , 19 Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 20 21 22 23 24 1 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 The Com plaint, and thus the docket caption, do not nam e the Com m issioner. The parties list Nancy A. Berryhill as the Acting Com m issioner in the J oint Subm ission. On J une 17, 20 19, Saul becam e the Com m issioner of Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 of her application for a period of disability and disability insurance benefits (“DIB”). 2 Plaintiff contends that the Adm inistrative Law J udge (“ALJ ”) im properly rejected the 3 opinion of the consultative psychologist. For the reasons stated below, the decision of 4 the Com m issioner is affirm ed, and this m atter is dism issed with prejudice. 5 II. PROCEED IN GS BELOW 6 A. Pro ce d u ral H is to ry 7 Plaintiff protectively filed her application for DIB on J uly 30 , 20 15, alleging 8 disability beginning April 22, 20 15. (Adm inistrative Record “AR” 137-38). Plaintiff’s 9 claim s were denied initially Decem ber 10 , 20 15 (AR 53), and upon reconsideration on 10 February 24, 20 16 (AR 88-92). A hearing was held before ALJ Mary L. Everstine on 11 J uly 31, 20 17. (AR 38-52). Plaintiff, represented by counsel, appeared and testified, 12 through a Spanish interpreter, at the hearing, as did a vocational expert, Kelly Bartlett. 13 (Id.) 14 On Novem ber 16, 20 17, the ALJ found that Plaintiff was “not disabled” within the 15 m eaning of the Social Security Act.3 (AR 18-37). The ALJ ’s decision becam e the 16 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 17 review on August 24, 20 18. (AR 1-9). Plaintiff then filed this action in District Court on 18 October 25, 20 18, challenging the ALJ ’s decision. [Docket (“Dkt.”) No. 1]. 19 20 21 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). -2- On April 8, 20 19, Defendant filed an Answer, as well as a copy of the Certified 1 2 Adm inistrative Record. [Dkt. Nos. 16, 17]. The parties filed a J oint Stipulation on J uly 3 8, 20 19. [Dkt. No. 18]. The case is ready for decision.4 4 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 5 In the decision (AR 24-34), the ALJ followed the required five-step sequential 6 evaluation process to assess whether Plaintiff was disabled under the Social Security 7 Act.5 20 C.F.R. § 40 4.1520 (a). At s te p o n e , the ALJ found that Plaintiff had not been 8 engaged in substantial gainful activity since April 22, 20 15, the alleged onset date. (AR 9 26). At s te p tw o , the ALJ found that Plaintiff had the following severe im pairm ents: 10 (a) history of excision of left acoustic neurom a with cranioplasty in Septem ber 20 0 6 11 with left ear hearing loss; (b) interm ittent vertigo; (c) headaches; and (d) dysthym ic 12 disorder. (AR 26). At s te p th re e , the ALJ found that Plaintiff “does not have an 13 im pairm ent or com bination of impairm ents that m eets or m edically equals the severity 14 of one of the listed im pairm ents in 20 CFR Part 40 4, Subpart P, Appendix 1 (20 CFR 15 40 4.1520 (d), 40 4.1525, 40 4.1526).” (AR 26). 16 17 18 19 20 21 22 23 24 4 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Dkt. Nos. 9, 10 ]. 5 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). -3- The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 6 1 2 to perform light work as defined in 20 C.F.R. § 40 4.1567(b), 7 except: 3 no work at unprotected heights or operating hazardous m achinery; no work requiring bilateral hearing; no loud background noises without use of ear protection; and no greater than sim ple routine tasks. 4 5 (AR 28). 6 At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 7 ALJ found that Plaintiff is capable of perform ing her past relevant work as a 8 packager/ sorter. “This work does not require the perform ance of work-related activities 9 precluded by the [Plaintiff’s] residual functional capacity (20 CFR 40 4.1565).” (AR 33- 10 34). With this finding, the ALJ did not proceed to s te p five . Accordingly, the ALJ 11 determ ined that Plaintiff had not been under a disability, as defined in the Social 12 Security Act, from April 22, 20 15, through the date of the decision, Novem ber 16, 20 17. 13 (AR 34). 14 15 16 17 6 18 19 20 21 22 23 An RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. § 40 4.1545(a)(1). 7 “Light work” is defined as lifting no m ore than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted m ay be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting m ost of the tim e with som e pushing and pulling of arm or leg controls. To be considered capable of perform ing a full or wide range of light work, you m ust have the ability to do substantially all of these activities. 20 C.F.R. § 40 4.1567(b); see also Rendon G. v. Berryhill, 20 19 WL 20 0 6688, at *3 n.6 (C.D. Cal. May 7, 20 19). 24 -4- 1 III. AN ALYSIS 2 A. Is s u e o n Ap p e al 3 Plaintiff raises one issue for review: whether the ALJ failed to provide specific 4 and legitimate reasons to reject the opinion of the consultative psychologist? [Dkt. No. 5 18, J oint Stipulation, p. 4]. 6 B. Stan d ard o f Re vie w 7 A United States District Court m ay review the Com m issioner’s decision to deny 8 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 9 is confined to ascertaining by the record before it if the Com m issioner’s decision is 10 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 11 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 12 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 13 fact if they are supported by substantial evidence and if the proper legal standards were 14 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). An ALJ can satisfy 15 the substantial evidence requirement “by setting out a detailed and thorough sum m ary 16 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 17 m aking findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 18 om itted). 19 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 20 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 21 weighing both evidence that supports and evidence that detracts from the Secretary’s 22 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 23 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 24 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. -5- 1 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 2 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 3 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 4 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 5 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ 6 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 7 20 0 7) (citation om itted). 8 9 Error in a social security determ ination is subject to harm less error analysis. Ludwig v. Astrue, 681 F.3d 10 47, 10 54 (9th Cir. 20 12). Error is harm less if “it is 10 inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, 11 “the agency's path m ay reasonably be discerned.” Treichler v. Com m 'r of Soc. Sec. 12 Adm in., 775 F.3d 10 90 , 10 99 (9th Cir. 20 14). 13 C. Th e ALJ Pro p e rly Evalu ate d Th e Me d ical Evid e n ce 14 Plaintiff contends that the ALJ erred in rejecting the m oderate lim itations 15 assessed by the consultative psychological exam iner, Kara Cross, Ph.D. Defendant 16 argues that the ALJ gave proper weight to Dr. Cross’ opinion. 17 18 1. Standard for Weighing Medical Opinions The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). 19 “As a general rule, m ore weight should be given to the opinion of a treating source than 20 to the opinion of doctors who do not treat the claim ant.” Lester v. Chater, 81 F.3d 821, 21 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where 22 the treating doctor’s opinion is not contradicted by another doctor, it m ay only be 23 rejected for “clear and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 24 1211, 1216 (9th Cir. 20 0 5)). “If a treating or exam ining doctor’s opinion is contradicted -6- 1 by another doctor’s opinion, an ALJ m ay only reject it by providing specific and 2 legitim ate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 3 F.3d 664, 675 (9th Cir. 20 17) (quoting Bayliss, 427 F.3d at 1216). 4 “Substantial evidence” m eans m ore than a m ere scintilla, but less than a 5 preponderance; it is such relevant evidence as a reasonable person m ight accept as 6 adequate to support a conclusion.” Lingenfelter v. Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 7 20 0 7) (citing Robbins, 466 F.3d at 882). “The ALJ can m eet this burden by setting out a 8 detailed and thorough sum m ary of the facts and conflicting clinical evidence, stating his 9 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 10 (9th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d 10 35, 10 41 11 (9th Cir. 20 0 8) (finding ALJ had properly disregarded a treating physician’s opinion by 12 setting forth specific and legitim ate reasons for rejecting the physician’s opinion that 13 were supported by the entire record). 14 As noted above, an RFC is what a claim ant can still do despite existing exertional 15 and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1). Only the ALJ is 16 responsible for assessing a claim ant’s RFC. See 20 C.F.R. § 40 4.1546(c). “It is clear that 17 it is the responsibility of the ALJ , not the claim ant’s physician, to determ ine residual 18 functional capacity.” Vertigan v. Halter, 260 F.3d 10 44, 10 49 (9th Cir. 20 0 1) (citing 20 19 C.F.R. § 40 4.1545). 20 2. The Psychological Evaluation At Issue 21 On October 24, 20 15, Dr. Cross perform ed a Com prehensive Psychological 22 Evaluation/ Com plete Mental Status Evaluation of Plaintiff, at the request of the agency, 23 and subm itted a seven-page written sum m ary of evaluation. (AR 282-88). The 24 -7- 1 prognosis assessed by Dr. Cross states: “From the psychiatric standpoint, the claim ant’s 2 condition is deem ed FAIR.” (AR 287). 3 4 5 6 In the Functional Assessm ent section of Dr. Cross’ report, she gave the following opinions of Plaintiff: Dr. Cross assessed that Plaintiff had “No Lim itations” in (1) Ability to understand safety rules and regulations and to m aintain safety on the job; (2) Ability to accept instructions from supervisors; and (3) Ability to perform work activities without special or additional supervision. 7 8 9 Dr. Cross assessed that Plaintiff was “Not Significantly Lim ited” in (1) Ability to understand, rem em ber and carry out sim ple one or two step task instructions; (2) Ability to do detailed and com plex tasks; (3) Ability to associate day to day work activity; and (4) Ability to relate to co-workers and the public in an appropriate m anner. 10 11 12 13 14 Dr. Cross assessed that Plaintiff was “Moderately Lim ited” in (1) Ability to understand, rem em ber, carry out sim ple one or two step job instructions over an 8 hour day 40 hour work week without em otionally decom pensating; (2) Ability to do detail and com plex tasks over an 8 hour day 40 hour work week without em otionally decom pensating; (3) Ability to m aintain concentration and attention; (4) Ability to m aintain reasonable persistence and pace; and (5) Ability to m aintain regular attendance in the work place and perform activities on a consistent basis. 15 16 17 18 19 20 (AR 287-88). Plaintiff argues that the ALJ failed to provide specific and legitimate reasons to reject the m oderate lim itations assessed by Dr. Cross. [Dkt. No. 18, p. 4]. 3. The ALJ Gave Proper Weight to the Medical Opinion As set forth above, the ALJ found that Plaintiff had the RFC to perform light work 21 with certain exceptions, including “no greater than sim ple routine tasks.” (AR 28). In 22 support of this RFC, the ALJ gave persuasive weight to the opinion of Dr. Cross, stating: 23 24 Persuasive weight is given to the opinion by the psychological CE at [AR 282-88], based on supportability with m edical signs and objective findings, consistency with the record, and area of specialization. As -8- noted above, the claim ant reported a m inim al history of m ental health treatm ent, nam ing a Dr. Montes as her psychologist although the m edical record fails to provide docum entation of treatm ent by Dr. Montes. She had a generally norm al m ental status exam , presenting as cooperative, open, friendly and although she exaggerated her com plaints, she did not show evidence of m anipulation. She had norm al thought processes, denied any auditory or visual hallucinations, had norm al speech, norm al orientation to person, place, tim e and purpose, had norm al m em ory, adequate fund of knowledge, norm al concentration and calculation, and norm al judgm ent and reasoning. Although she had dysthym ic m ood, her affect was congruent with m ood. The claim ant reported engaging in activities of daily living of running errands, shopping, perform ing household chores, going for short walks, paying bills, m anaging m oney, m aintaining “good relationships” with fam ily and friends. On a daily basis, the claim ant was capable of bathing, dressing, picking up after herself, sweeping, vacuum ing, folding the laundry, cooking, using a m icrowave oven, listening to the radio, using a cell phone, using a landline phone, reading, calling friends, and having fam ily visit her. Thus, based on the claim ant’s activities, a norm al m ental status exam , and general lack of psychological abnorm alities, the opinion by the psychological CE that the claim ant was not significantly lim ited in perform ing sim ple repetitive tasks despite dysthym ic disorder is given persuasive weight. 1 2 3 4 5 6 7 8 9 10 11 12 (AR 32). 13 Accordingly, contrary to Plaintiff’s argum ents, the ALJ did not reject any of the 14 15 lim itations assessed by Dr. Cross. Nor did the ALJ sim ply ignore the “m oderate 16 lim itations” as Plaintiff also argues. Rather, the ALJ did a detailed review of the 17 findings and assessm ents of Dr. Cross in the decision.8 18 19 20 21 22 23 24 8 In analyzing and holding at step three that Plaintiff does not have an im pairm ent or com bination of im pairm ents that m eets a listed im pairm ent, the ALJ considered whether the “paragraph B” criteria were satisfied. In finding that the criteria were not satisfied, the ALJ thoroughly reviewed m any of the “m ild” and “m oderate” lim itation findings of Dr. Cross. (AR 26-28). The ALJ also stated at the conclusion of this section that Plaintiff’s assessed RFC “reflects the degree of lim itation the undersigned has found in the ‘paragraph B’ m ental functional analysis.” (AR 28). Thus, the ALJ did not ignore the m oderate lim itations as Plaintiff argues; rather, the ALJ explicitly stated the lim itations are reflected in the assessed RFC. -9- Plaintiff would like for this Court to reverse and rem and so that the ALJ can 1 2 expressly state the weight that should be given to the “m oderate lim itations” assessed in 3 Dr. Cross’ report.9 There is no reason why this case needs to be rem anded for this sole 4 purpose when it is clear that the ALJ considered the entirety of Dr. Cross’ report in 5 giving it persuasive weight and assessing an RFC with “no greater than sim ple routine 6 tasks.” See Ford v. Saul, No. 18-35794, 20 20 WL 829864, at *9 (9th Cir. Feb. 20 , 20 20 ) 7 (“An ALJ ’s duty to develop the record further is triggered only when there is am biguous 8 evidence or when the record is inadequate to allow for proper evaluation of the 9 evidence.”) (quoting Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 20 0 1)); Stubbs- 10 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 20 0 8) (“[A]n ALJ ’s assessm ent of a 11 claim ant adequately captures restrictions related to concentration, persistence, or pace 12 where the assessm ent is consistent with restrictions identified in the m edical 13 testim ony.”). Moreover, Plaintiff has not explained how any of her m ental lim itations 14 are sufficiently restrictive to ultim ately preclude her from perform ing work. See, e.g., 15 Hoopai v. Astrue, 499 F.3d 10 71, 10 77 (9th Cir. 20 0 7) (explaining the Ninth Circuit has 16 not “held m ild or m oderate depression to be a sufficiently severe non-exertional 17 lim itation that significantly lim its a claim ant’s ability to do work beyond the exertional 18 lim itation”); Ball v. Colvin, 20 15 WL 2345652, at *3 (C.D. Cal. May 15, 20 15) (“As the 19 ALJ found that Plaintiff’s m ental im pairm ents were m inim al, the ALJ was not required 20 to include them in Plaintiff’s RFC.”); Sisco v. Colvin, 20 14 WL 2859187, at *7-8 (N.D. 21 22 23 24 9 Plaintiff rather shockingly changes Dr. Cross’ assessed lim itations from “m oderate” to “significant” in the reply section of the J oint Stipulation. [Dkt. No. 18, pp. 10 -12]. The assessed lim itations at issue are only referred to as “m oderate” by Dr. Cross and it is disingenuous to argue that they are of any m ore significance than that specifically stated by the exam ining consultant. -10 - 1 Cal. J une 20 , 20 14) (ALJ not required to include in RFC assessm ent m ental im pairm ent 2 that im posed “no significant functional lim itations”). Here, Dr. Cross sim ply assessed 3 som e “m oderate” lim itations in deem ing Plaintiff’s condition “fair.” (AR 287). See 4 Shapiro v. Berryhill, 20 20 WL 836830 , at *6 (D. Nev. Feb. 20 , 20 20 ) (concluding that 5 the ALJ properly translated claim ant’s m ental im pairm ent into an RFC that accounted 6 for m oderate lim itations). 7 Furtherm ore, it is the role of the ALJ , and not this Court, to interpret and 8 resolve any am biguities in the m edical records. See Tom m asetti, 533 F.3d at 10 41-42 9 (“The ALJ is the final arbiter with respect to resolving am biguities in the m edical 10 evidence.”); Andrews v. Shalala, 53 F.3d 10 35, 10 41 (9th Cir. 1995) (holding that it is the 11 ALJ ’s job to resolve any conflicts). See Ryan v. Com m ’r of Soc. Sec., 528 F.3d 1194, 1198 12 (9th Cir. 20 0 8) (“’Where evidence is susceptible to m ore than one rational 13 interpretation,’ the ALJ ’s decision should be upheld.”) (citation omitted); Robbins v. 14 Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If the evidence can support either 15 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 16 of the ALJ .”) There is no reason why this case needs to be rem anded for the sole 17 purpose of having the ALJ expressly state how she incorporated Dr. Cross’ assessed 18 m oderate lim itations into the RFC. Indeed, an ALJ is not obligated to discuss “every 19 piece of evidence” when interpreting the evidence and developing the record. See 20 Howard ex rel. Wolff v. Barnhart, 341 F.3d 10 0 6, 10 12 (9th Cir. 20 0 3) (citation om itted). 21 Sim ilarly, an ALJ is also not obligated to discuss every word of a doctor’s opinion or 22 include lim itations not actually assessed by the doctor. See Fox v. Berryhill, 20 17 WL 23 3197215, *5 (C.D. Cal. J uly 27, 20 17); Howard, 341 F.3d at 10 12. 24 -11- 1 Finally, as the ALJ ’s assessed RFC aligns with Dr. Cross’ opinion by lim iting 2 Plaintiff to light work with no greater than sim ple routine tasks, any failure of the ALJ to 3 address the m oderate lim itations would be harm less. See Treichler v. Com m 'r of Soc. 4 Sec. Adm in., 775 F.3d 10 90 , 10 99 (9th Cir. 20 14) (Error is harm less if “it is 5 inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, 6 “the agency's path m ay reasonably be discerned.”) 7 IV. 8 9 10 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered accordingly. 11 12 DATE: March 17, 20 20 13 14 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 15 16 17 18 19 20 21 22 23 24 -12-
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