Sherod O Johnson v. Nancy A. Berryhill, No. 2:2018cv09507 - Document 20 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Sherod O Johnson v. Nancy A. Berryhill Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 SHEROD O. J., ) ) Plaintiff, ) ) v. ) ) ANDREW M. SAUL, COMMISSIONER ) OF SOCIAL SECURITY ADMINISTRATION, ) ) ) Defendant. ) ___________________________________) NO. CV 18-9507-E MEMORANDUM OPINION 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on November 9, 2018, seeking review 21 of the Commissioner’s denial of disability benefits. The parties 22 filed a consent to proceed before a United States Magistrate Judge on 23 January 29, 2019. 24 May 10, 2019. 25 June 10, 2019. 26 without oral argument. 27 2018. 28 /// Plaintiff filed a motion for summary judgment on Defendant filed a motion for summary judgment on The Court has taken the motions under submission See L.R. 7-15; “Order,” filed November 14, Dockets.Justia.com 1 BACKGROUND 2 3 Plaintiff asserted disability since June 11, 2015, based on 4 alleged: bipolar disorder with auditory hallucinations; a history of 5 congestive heart failure with non-ischemic cardiomyopathy; glaucoma; 6 and lower back pain (Administrative Record (“A.R.”) 351, 449, 477, 7 484, 511). 8 and heard testimony from Plaintiff and a vocational expert (A.R. 27- 9 38, 347-68, 382-874).1 An Administrative Law Judge (“ALJ”) reviewed the record The ALJ found that Plaintiff suffers from 10 severe non-ischemic cardiomyopathy and a history of congestive heart 11 failure which restrict Plaintiff to a limited range of light work 12 (A.R. 31, 34). 13 find Plaintiff capable of performing jobs existing in significant 14 numbers in the national economy (A.R. 37 (adopting vocational expert’s 15 testimony at A.R. 365-66)). 16 June 11, 2015 through November 17, 2017 – the date of the ALJ’s 17 decision (A.R. 37-38). The ALJ relied on a vocational expert’s testimony to The ALJ found Plaintiff not disabled from 18 19 Plaintiff then submitted to the Appeals Council additional 20 medical records regarding treatment during the alleged disability 21 period. 22 Center and Harbor-UCLA records). 23 “exhibit” these records, finding no reasonable probability that the See A.R. 2; see also A.R. 42-312 (Kedren Community Health The Appeals Council declined to 24 25 26 27 28 1 In response to a previous application for benefits, an ALJ found Plaintiff not disabled through February 22, 2013 (A.R. 372-78). In the present case, a different ALJ found there had been a change in circumstances since the previous decision (Plaintiff’s 50th birthday), and so the ALJ did not apply a presumption of continuing non-disability (A.R. 30-31). 2 1 evidence would change the outcome of the decision (A.R. 2). 2 Appeals Council denied review (A.R. 1-4). The 3 4 Plaintiff stipulates to the ALJ’s summary and assessment of the 5 effects of his cardiovascular disease. However, Plaintiff contends 6 that the ALJ erred by finding Plaintiff’s alleged mental impairments 7 not severe and by adopting a mental residual functional capacity 8 supposedly not supported by substantial evidence. 9 Motion, pp. 4, 8-10. See Plaintiff’s 10 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. section 405(g), this Court reviews the 14 Administration’s decision to determine if: (1) the Administration’s 15 findings are supported by substantial evidence; and (2) the 16 Administration used correct legal standards. 17 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 18 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 19 682 F.3d 1157, 1161 (9th Cir. 2012). 20 relevant evidence as a reasonable mind might accept as adequate to 21 support a conclusion.” 22 (1971) (citation and quotations omitted); see also Widmark v. 23 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). See Carmickle v. Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 24 25 If the evidence can support either outcome, the court may 26 not substitute its judgment for that of the ALJ. 27 Commissioner’s decision cannot be affirmed simply by 28 isolating a specific quantum of supporting evidence. 3 But the 1 Rather, a court must consider the record as a whole, 2 weighing both evidence that supports and evidence that 3 detracts from the [administrative] conclusion. 4 5 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 6 quotations omitted). 7 8 9 Where, as here, the Appeals Council “considers new evidence in deciding whether to review a decision of the ALJ, that evidence 10 becomes part of the administrative record, which the district court 11 must consider when reviewing the Commissioner’s final decision for 12 substantial evidence.” 13 “[A]s a practical matter, the final decision of the Commissioner 14 includes the Appeals Council’s denial of review, and the additional 15 evidence considered by that body is evidence upon which the findings 16 and decision complained of are based.” 17 omitted).2 18 the first time to the Appeals Council. 19 /// 20 /// 21 /// Brewes v. Commissioner, 682 F.3d at 1163. Id. (citations and quotations Thus, this Court has reviewed the evidence submitted for 22 23 24 25 26 27 28 2 And yet, the Ninth Circuit sometimes had stated that there exists “no jurisdiction to review the Appeals Council’s decision denying [the claimant’s] request for review.” See, e.g., Taylor v. Commissioner, 659 F.3d 1228, 1233 (9th Cir. 2011); but see Smith v. Berryhill, 2019 WL 2257159 (U.S. May 28, 2019) (court has jurisdiction to review Appeals Council’s dismissal of request for review as untimely); see also Warner v. Astrue, 859 F. Supp. 2d 1107, 1115 n.10 (C.D. Cal. 2012) (remarking on the seeming irony of reviewing an ALJ’s decision in the light of evidence the ALJ never saw). 4 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material3 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 I. 9 Substantial Evidence Supports the Conclusion that Plaintiff Can Work. 10 11 Substantial evidence supports the administrative conclusion that 12 Plaintiff can work. Clinical psychologist and consultative examiner, 13 Dr. Rashin D’Angelo, prepared a “Complete Psychiatric Evaluation” 14 dated October 23, 2015 (A.R. 614-18). 15 records including progress notes from Kedren Mental Health Center in 16 2014, which reflected treatment for depression and self-reported 17 auditory hallucinations concerning Plaintiff’s deceased father (A.R. 18 614). 19 sad and having difficulty sleeping dating back to 2008 when his father 20 died, with symptoms allegedly increasing over the previous year (A.R. 21 614-15). 22 /// 23 /// 24 /// Dr. D’Angelo reviewed treatment In 2014, Plaintiff reportedly complained of feeling stressed, Plaintiff also reportedly then complained of irritability 25 26 3 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 5 1 and mood swings and said he heard voices (A.R. 614-15).4 2 reported a history of alcohol and cocaine abuse and yet claimed that 3 he had stopped using 10 years ago (A.R. 615; but see A.R. 543 4 (Plaintiff reporting in November of 2013 that he had abstained from 5 cocaine use for only the past six months (i.e., since approximately 6 May of 2013) – supposedly his longest period of sobriety)). 7 reportedly denied having any “legal history” (A.R. 615; but see A.R. 8 544 (Plaintiff admitting in November of 2013 that he had four or five 9 prior convictions); A.R. 557 (Plaintiff asserting in March of 2014 Plaintiff Plaintiff 10 that his criminal record prevented him from obtaining employment)). 11 In 2014, Plaintiff reportedly was taking Risperdal, Zoloft, Remeron 12 and Cogentin (A.R. 615). 13 family and doing household chores, maintaining “adequate” self care, 14 and using the bus for transportation (A.R. 616). Plaintiff said he then was living with his 15 16 On examination by Dr. D’Angelo, however, Plaintiff denied any 17 auditory or visual hallucinations, exhibited an “adequate” memory 18 (i.e., remembering three out of three words in immediate recall, and 19 one out of three words in five minutes), was not able to name the 20 4 21 22 23 24 25 26 27 28 At the January 14, 2013 hearing on Plaintiff’s prior disability application, Plaintiff reported no mental health issues and testified that he had been looking for work as a machinist four months prior to the hearing (A.R. 316-39). At the August 7, 2017 hearing, Plaintiff testified that, ever since his father died in 2008, Plaintiff has become “real upset and agitated at just little things,” which he addressed by going outside for five to 10 minutes for fresh air to clear his head (A.R. 353, 355, 360). Plaintiff testified he “sometimes” has problems with his social relationships and his condition affects his activity level in that he “can’t do too much” (A.R. 353-54). Plaintiff claimed that, for approximately a year, he had been hearing voices, which are “somewhat” controlled with medication and by Plaintiff telling the voices to stop (A.R. 354-55). 6 1 capitals of the United States or California, but had no other noted 2 abnormalities (A.R. 616). 3 not otherwise specified, and assigned a current Global Assessment of 4 Functioning (“GAF”) score of 70 (A.R. 617). 5 Psychological Association, Diagnostic and Statistical Manual of Mental 6 Disorders (“DSM”) 34 (4th Ed. 2000).5 Dr. D’Angelo diagnosed depressive disorder, See American 7 8 9 Dr. D’Angelo stated, “This is a 50-year-old male who complains of mild depression and insomnia with exaggerated symptoms of psychosis 10 that do not appear to be congruent with clinical presentation” (A.R. 11 617). 12 functional limitations (i.e., Plaintiff would have: (a) no difficulty 13 maintaining composure and even temperament; (b) mild difficulty 14 maintaining social functioning; (c) no impairment in maintaining focus 15 and attention; (d) no difficulty with concentration, persistence and 16 pace; (e) no difficulty understanding, remembering and carrying out 17 short, simplistic instructions; (f) mild difficulty understanding, 18 remembering and carrying out detailed and complex instructions; 19 (g) mild difficulty making simplistic work-related decisions without 20 special supervision; (h) mild difficulty complying with job rules such 21 as safety and attendance; (i) mild difficulty responding to changes in 22 a normal workplace setting; (j) mild difficulty maintaining 23 persistence and pace in a normal workplace setting; (k) mild Dr. D’Angelo opined that Plaintiff would have “none” to “mild” 24 25 26 27 28 5 A GAF of 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.” See DSM, p. 34. 7 1 difficulty handling the usual stresses, changes and demands of gainful 2 employment; and (l) mild difficulty interacting with supervisors, 3 coworkers and peers on a consistent basis) (A.R. 617). 4 opined that, if Plaintiff continued his psychiatric treatment, his 5 symptoms would greatly improve with a “good” prognosis (A.R. 617-18). 6 Dr. D’Angelo also opined that Plaintiff did not appear to have an 7 alcohol or substance abuse related impairment contributing to any of 8 Plaintiff’s limitations (A.R. 617). Dr. D’Angelo 9 10 Under the circumstances of this case, Dr. D’Agnelo’s opinion 11 constitutes substantial evidence supporting the ALJ’s non-disability 12 determination. 13 Cir. 2001) (examining physician’s opinion alone constituted 14 substantial evidence “because it rests on his own independent 15 examination”); see also Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 16 2007) (where an examining physician provides “independent clinical 17 findings that differ from findings of the treating physician, such 18 findings are ‘substantial evidence’” to support a disability 19 determination) (citations and internal quotations omitted). See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th 20 21 State agency psychologist Dr. Heather Barrons reviewed the 22 record, including Dr. D’Angelo’s evaluation, and prepared a 23 Psychiatric Review Technique form dated December 1, 2015 (A.R. 388- 24 90). 25 “non severe” (i.e., having no more than a minimal effect on 26 Plaintiff’s ability to work), and Dr. Barrons assessed no restriction 27 in the activities of daily living, mild restriction in maintaining 28 social functioning and moderate restriction in maintaining Dr. Barrons opined that Plaintiff’s “affective disorders” are 8 1 concentration, persistence and pace, with no episodes of 2 decompensation. 3 28 at *3-4 (defining when an impairment is “not severe”); 20 C.F.R. § 4 416.920a(d)(1) (if a limitation is rated as “none” or “mild,” the 5 Administration generally will conclude that the impairment is not 6 severe, “unless the evidence otherwise indicates that there is more 7 than a minimal limitation in your ability to do basic work 8 activities”). 9 mental impairments are “not severe” further supports the ALJ’s denial See A.R. 388-89; see also Social Security Ruling 85- Dr. Barrons’ non-examining opinion that Plaintiff’s 10 of disability benefits. See Andrews v. Shalala, 53 F.3d 1035, 1041 11 (9th Cir. 1995); Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 12 1991). 13 14 Dr. Barrons completed a Mental Residual Functional Capacity 15 Assessment opining that Plaintiff is moderately limited in his ability 16 to understand, remember and carry out detailed instructions, but has 17 no other “significant” limitations (i.e., Plaintiff is capable of 18 understanding, remembering and sustaining concentration, pace and 19 persistence for simple routines throughout a normal workday/workweek, 20 is able to accept routine supervision and interact with co-workers, 21 and is capable of public contact and adapting to a routine and 22 predictable work environment, recognizing typical hazards, traveling 23 to routine locations and setting goals independently (A.R. 391-93). 24 To the extent Plaintiff may assert that the ALJ erred by not finding 25 functional capacity limitations for simple routine tasks based on Dr. 26 Barrons’ opinion that Plaintiff would have moderate limitations in his 27 ability to understand, remember and carry out detailed instructions, 28 any error is harmless in light of the vocational evidence. 9 According 1 to the Dictionary of Occupational Titles (“DOT”), the jobs the 2 vocational expert identified as performable by a person with 3 Plaintiff’s physical residual functional capacity all involve a 4 Reasoning Level of 2. 5 (Assembler, Small Products I), 1991 WL 679050, at *1 (2016); DOT 6 222.687-022 (Routing Clerk), 1991 WL 672133, at *1 (2016); DOT 7 559.687-074 (Inspector and Hand Packager), 1991 WL 683797 (2016). 8 Reasoning Level 2 requires an ability “[a]pply commonsense 9 understanding to carry out detailed but uninvolved written or oral See A.R. 365-66; see also DOT 706.684-022 10 instructions.” See id. (emphasis added). The Ninth Circuit has found 11 that a limitation to “simple” or “repetitive” tasks is consistent with 12 the ability to perform jobs with a Reasoning Level of 2. 13 v. Commissioner, 807 F.3d 996, 1004 n.6 (9th Cir. 2015) (collecting 14 cases); see also Lewis v. Berryhill, 708 Fed. App’x 919, 920 (9th Cir. 15 2018) (finding that ALJ did not err in finding claimant could perform 16 job requiring Level 2 reasoning where claimant was limited to “work 17 involving simple instructions”); Little v. Berryhill, 708 Fed. App’x 18 468, 469-70 (9th Cir. 2018) (limitation to jobs with Level 2 reasoning 19 or less is consistent with limitation to “simple directions”); compare 20 Zavalin v. Colvin, 778 F.3d 842, 843-44 (9th Cir. 2015) (apparent 21 conflict exists between limitations to “simple, routine or repetitive 22 tasks” and “the demands of Level 3 Reasoning”). See Rounds 23 24 Plaintiff cites to various GAF scores in the record which are 25 lower than the GAF score Dr. D’Angelo assessed, and Plaintiff then 26 argues that there existed a conflict between treating providers and 27 Dr. D’Angelo that the ALJ assertedly should have resolved. 28 /// 10 See 1 Plaintiff’s Motion, pp. 5-9 (citing reported GAF scores of 38).6 2 However, the record contains no opinion from any treating provider 3 concerning Plaintiff’s residual functional capacity. 4 Plaintiff cites are not dispositive on the issue of disability. 5 See Garrison v. Colvin, 759 F.3d 995, 1002 n.4 (9th Cir. 2014) (“GAF 6 scores, standing alone, do not control determinations of whether a 7 person’s mental impairments rise to the level of a disability (or 8 interact with physical impairments to create a disability”). 9 Social Security Administration has indicated that GAF scores have no The GAF scores The 10 “direct correlation to the severity requirements in the mental 11 disorder listings.” 12 Mental Disorders and Traumatic Brain Injury, 65 Fed. Reg. § 50746-01, 13 50764-65 (Aug. 21, 2000); see also McFarland v. Astrue, 288 Fed. App’x See Revised Medical Criteria for Evaluating 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Plaintiff’s social worker diagnosed a mood disorder, not otherwise specified, with a GAF of 38 as of November 8, 2013 (A.R. 549). Later medication management notes include a chart stating that Plaintiff had a GAF of 38 as of January 1, 2014 and October 1, 2015. See, e.g., 623, 661. A GAF score of 31–40 indicates “[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school).” See DSM, p. 34. On January 2, 2014, another social worker diagnosed a mood disorder, not otherwise specified, and cocaine-induced mood disorder with mixed features with onset during withdrawal, and assessed a current GAF of 41 (A.R. 546). A GAF score between 41 and 50 describes “serious symptoms” or “any serious impairment in social, occupational, or school functioning.” See DSM, p. 34. A psychiatrist also evaluated Plaintiff on January 2, 2014, and diagnosed a mood disorder, not otherwise specified, with alcohol and cocaine dependence in remission, and assessed a current GAF of 60 (A.R. 562). A GAF score of 51 to 60 describes “moderate symptoms” or any “moderate difficulty in social, occupational, or school functioning.” See DSM, p. 34. 11 1 357, 359 (9th Cir. 2008) (noting same).7 2 of record concerning Plaintiff’s alleged mental impairments is 3 conflicting, the ALJ properly resolved the conflicts. 4 v. Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it 5 to the ALJ” to resolve conflicts and ambiguities in the record); 6 Andrews v. Shalala, 53 F.3d at 1039-40 (court must uphold the 7 administrative decision when the evidence “is susceptible to more than 8 one rational interpretation”). To the extent the evidence See Treichler 9 10 The vocational expert testified that a person with the residual 11 functional capacity the ALJ found to exist could perform jobs existing 12 in significant numbers in the national economy (A.R. 365-66). 13 properly relied on this testimony in denying disability benefits. 14 Barker v. Secretary, 882 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez 15 v. Heckler, 807 F.2d 771, 774-75 (9th Cir. 1986). The ALJ See 16 17 II. The ALJ Did Not Materially Err in Weighing the Medical Evidence. 18 19 Plaintiff contends in a conclusory manner that the ALJ erred in 20 failing to find Plaintiff’s alleged mental impairments to be severe. 21 See Plaintiff’s Motion, p. 8. 22 /// 23 /// No material error occurred. 24 7 25 26 27 28 The GAF scale was eliminated from the fifth edition of the DSM. The DSM no longer recommends using GAF scores to measure mental health disorders because of the scores’ “conceptual lack of clarity . . . and questionable psychometrics in routine practice.” See Olsen v. Commissioner, 2016 WL 4770038, at *4 (D. Or. Sept. 12, 2016) (quoting DSM 16 (5th ed. 2013)). 12 1 The ALJ found Plaintiff’s depression to be a medically 2 determinable mental impairment that does not cause more than minimal 3 limitation in Plaintiff’s ability to perform basic work activities 4 (i.e. a “nonsevere” impairment). 5 gave “great” weight to examining psychologist Dr. D’Angelo’s opinion 6 that Plaintiff has no more than mild mental limitations, as well as a 7 good prognosis for continuing improvement (A.R. 33-34). See A.R. 34. In so finding, the ALJ 8 9 When, as here, a claimant is found to have at least one severe 10 impairment, the ALJ is required to consider the functional effects of 11 all impairments, severe and nonsevere. 12 8p, *5 (“In assessing [residual functional capacity], the adjudicator 13 must consider limitations and restrictions imposed by all of an 14 individual’s impairments, even those that are not ‘severe.’”). 15 present case, while the ALJ found Plaintiff’s alleged mental 16 impairments to be nonsevere, the ALJ stated that Plaintiff’s residual 17 functional capacity assessment was based on a consideration of all of 18 Plaintiff’s symptoms (A.R. 34). 19 Plaintiff’s medically determinable mental impairments in determining 20 Plaintiff’s residual functional capacity (and found no functional 21 limitations). 22 mental impairments to be severe was harmless. 23 498 F.3d 909, 911 (9th Cir. 2007) (finding any Step 2 error harmless 24 where ALJ considered the impairment at Step 4); see also Gray v. 25 Commissioner, 365 Fed. App’x 60, 61-62 (9th Cir. 2010) (finding any 26 Step 2 error harmless where ALJ considered nonsevere mental 27 impairments in determining claimant’s residual functional capacity). 28 /// See Social Security Ruling 96- In the Accordingly, the ALJ considered Thus, any error in failing to find Plaintiff’s alleged 13 See Lewis v. Astrue, 1 CONCLUSION 2 3 For all of the foregoing reasons,8 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted.9 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: July 16, 2019. 10 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 8 The Court has considered and rejected all of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (discussing the standards applicable to evaluating prejudice). 22 9 23 24 25 26 27 28 Plaintiff’s counsel submitted to the Appeals Council a Residual Functional Capacity Questionnaire by Dr. Lichhan Zery dated January 29, 2018 – after the ALJ’s adverse decision – suggesting that Plaintiff would have greater physical limitations than the ALJ found to exist. See A.R. 313-15 (assessing a residual functional capacity work closer to sedentary work than light work). To the extent Plaintiff’s conditions may have worsened after the ALJ’s most recent decision, nothing prevents Plaintiff from filing a new application based on new evidence. See Sanchez v. Secretary of Health and Human Servs., 812 F.2d 509, 512 (9th Cir. 1987). 14
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