Renee Denise Holloway v. Carolyn W Colvin, No. 5:2016cv00093 - Document 18 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm: The judgement of the Commissioner is affirmed. (see document for further details) (klg)
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Renee Denise Holloway v. Carolyn W Colvin Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RENEE DENISE HOLLOWAY, Plaintiff, 11 v. 12 13 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 16-93 FFM MEMORANDUM DECISION AND ORDER Plaintiff brings this action seeking to overturn the decision of the Commissioner 16 17 of the Social Security Administration1 denying her applications for Disability Insurance 18 Benefits and Supplemental Security Income. Plaintiff and defendant consented to the 19 jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 20 636(c). Pursuant to the March 8, 2016, Case Management Order, on September 20, 21 2016, the parties filed a Joint Stipulation (“JS”) detailing each party’s arguments and 22 authorities. The Court has reviewed the administrative record (the “AR”), filed on June 23 21, 2016, and the Joint Stipulation. For the reasons stated below, the decision of the 24 Commissioner is affirmed. 25 /// 26 /// 27 1 28 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, and is hereby substituted as defendant pursuant to Federal Rule of Civil Procedure 25(d). PROCEDURAL HISTORY 1 On October 31, 2012, plaintiff applied for Supplemental Security Income. (AR 2 3 101.) Plaintiff’s application was denied initially and on review. (AR 101-46.) Plaintiff 4 then requested a hearing before an administrative law judge (“ALJ”). (AR 164-70.) On 5 March 24, 2014, ALJ Nancy M. Stewart held a hearing. (AR 27-56.) Plaintiff was 6 present with counsel and testified at the hearing. (See generally id.) On September 9, 2014, the ALJ denied plaintiff benefits in a written decision. 7 8 (AR 8-22.) Based on her review of the evidence, the ALJ determined that plaintiff 9 possesses the residual functional capacity (“RFC”) to perform “light work” subject to 10 numerous accompanying limitations. (AR 16.) Ultimately, the ALJ found that plaintiff 11 can perform work that exists in significant numbers in the national economy and, 12 therefore, is not disabled. (AR 20-22.) On November 27, 2015, the Appeals Council denied review. (AR 1-3.) 13 14 Thereafter, plaintiff initiated this action. CONTENTIONS 15 16 Plaintiff raises two contentions in this action: 17 1. Whether the ALJ improperly determined that plaintiff does not suffer from a severe mental impairment. 18 2. 19 Whether the ALJ failed to properly consider the opinions of Dr. Pechman. STANDARD OF REVIEW 20 21 Under 42 U.S.C. § 405(g), this Court reviews the Administration’s decisions to 22 determine if: (1) the Administration’s findings are supported by substantial evidence; 23 and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d 24 1273, 1279 (9th Cir. 1996) (citations omitted). “Substantial evidence is more than a 25 scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 26 1998) (citation omitted). To determine whether substantial evidence supports a finding, 27 “a court must consider the record as a whole, weighing both evidence that supports and 28 /// 2 1 evidence that detracts from the [Commissioner’s] conclusion.” Auckland v. Massanari, 2 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted). If the evidence in the record can reasonably support either affirming or reversing 3 4 the ALJ’s conclusion, the Court may not substitute its judgment for that of the ALJ. 5 Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing Flaten v. Sec’y of 6 Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). However, even if 7 substantial evidence exists to support the Commissioner’s decision, the decision must 8 be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. 9 Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80 F.3d at 1279. DISCUSSION 10 11 A. Whether the ALJ Erred in Finding that Plaintiff’s Mental Impairments Are Not 12 Severe. 13 At step two of the five-step sequential evaluation,2 an ALJ must determine 14 whether any of the claimant’s impairments are “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). 15 An impairment is severe if it “significantly limits [the claimant’s] physical or mental 16 ability to do basic work activities.” 20 C.F.R. § 404.1520(c). Put another way, a 17 claimant’s impairment is non-severe if it has “no more than a minimal effect on her 18 ability to work.” Yuckert v. Bowen, 841 F.2d 303, 306-07 (9th Cir. 1988) (adopting 19 SSR 85-28). Additionally, an impairment is not severe if it does not last or is not 20 expected to last “for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509. 21 The claimant bears the burden of demonstrating that her impairments are severe. 22 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). 23 24 25 26 27 28 2 The five-step sequential evaluation process is the multi-level analysis that ALJs employ to determine whether a person is disabled under the Social Security Act. 20 C.F.R. § 404.1520(a)(4). If the ALJ conclusively determines at any step that a claimant is or is not disabled, the ALJ does not proceed to the next step. Id. If the ALJ completes step five and concludes that a claimant’s limitations do not preclude work that exists in significant numbers in the national economy, the claimant is not considered disabled. 20 C.F.R. § 404.1520(a)(4)(v). 3 In order to determine an alleged mental impairment’s severity, Social Security 1 2 adjudicators utilize the so-called “psychiatric review technique.” Under the technique, 3 adjudicators assess a claimant’s mental restrictions in four broad functional areas: 4 activities of daily living; social functioning; concentration, persistence, or pace; and 5 episodes of decompensation.3 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). If the 6 adjudicator finds that the claimant had no episodes of decompensation and only mild 7 limitations (or none at all) in the other functional areas, the adjudicator will “generally” 8 conclude that the mental impairment is not severe. 20 C.F.R. §§ 404.1520a(d)(1), 9 416.920a(d)(1). Moderate limitations are sufficient to meet the “severe impairment” 10 standard. Here, the ALJ found no to mild limitations in each of the four broad functional 11 12 areas. (AR 14.) These findings generally indicate a non-severe finding of mental 13 impairment. Plaintiff does not focus on the ALJ’s determination of the four functional 14 areas. Instead, plaintiff contends that the ALJ erred in rejecting the opinions of Dr. 15 Rathana-Nakintara, the consultative examining psychiatrist. However, the ALJ appears 16 to have relied on (or at least accepted) the opinions of Dr. Rathana-Nakintara with 17 respect to the four broad functional areas analyzed at step 2: 18 Dr. Rathana-Nakintara diagnosed the claimant with mood disorder, 19 psychotic disorder, polysubstance dependence in sustained remission, and 20 cannabis abuse in sustained remission, and assessed a global assessment of 21 functioning (GAF) score of 65(id.). Based on the examination, she opined 22 the claimant had no difficulties in maintaining social functioning; mild 23 /// 24 /// 25 /// 26 3 27 28 Episodes of decompensation are exacerbations of or temporary increases in symptoms or signs, accompanied by a loss of adaptive functioning. 20 C.F.R. Part 404, subpt. P, app. 1, § 12:00(C)(4). 4 1 difficulties in concentration, persistence and pace; and no difficulties in 2 performing activities of daily living (Exhibit 6F, p. 5). 3 (AR 14.)4 4 Plaintiff focuses on other findings made by Dr. Rathana-Nakintara that plaintiff 5 argues demonstrate that plaintiff’s mental impairment is severe. Specifically, plaintiff 6 refers to the following statement made by Dr. Rathana-Nakintara: 7 Based on the objective findings presented during this interview, the 8 claimant would have no limitations performing simple and repetitive tasks 9 but mild limitations performing detailed and complex tasks. The claimant 10 would have no difficulties to be able to perform work activities on a 11 consistent basis without special or additional supervision. The claimant 12 would have no limitations completing a normal workday or work week due 13 to her mental condition. The claimant would have moderate limitations 14 accepting instructions from supervisors and interacting with coworkers and 15 with the public due to her having auditory hallucinations. She would have 16 no limitations to handle the usual stresses, changes and demands of gainful 17 employment within her intellectual limitation. 18 19 (JS at 8-9 (quoting AR 344).) Notwithstanding the determination made after analyzing the four functional areas, 20 the regulations provide that if “the evidence otherwise indicates there is more than a 21 minimal limitation in [the claimant’s] ability to do basic work activities,” the 22 impairment may be considered severe. 20 C.F.R. § 404.1520a(d)(1). Presumably, 23 24 25 26 27 28 4 Dr. Rathana-Nakintara’s findings were as follows: “The claimant exhibits no difficulty interacting with the clinic staff or myself. She has no difficulty maintaining composure and even temperament. She has no difficulties in maintaining social functioning. She has no difficulties focusing and maintaining attention. She has mild difficulties in concentration, persistence, and pace. The level of personal independence is adequate. She is intellectually and psychologically capable of performing activities of daily living (ADLs).” (AR 344.) 5 1 plaintiff is relying on the statement that “[t]he claimant would have moderate limitations 2 accepting instructions from supervisors and interacting with coworkers and with the 3 public due to her having auditory hallucinations.” However, with the exception of that 4 one statement, Dr. Rathan-Nakintara’s opinions are entirely consistent with the ALJ’s 5 findings. Thus, plaintiff’s contention essentially reduces to a claim that the ALJ should 6 have provided greater weight to the statement that plaintiff would have moderate 7 limitations accepting instructions from supervisors and interacting with coworkers and 8 with the public. However, given that the ALJ found other impairments to be severe, whether she 9 10 found the mental impairments to be severe is irrelevant. Under the regulations, once 11 having found a severe impairment, the ALJ considers the impact of all medically 12 determinable impairments, severe and non-severe, in formulating the residual functional 13 capacity of the claimant. 20 C.F.R. § 416.945(a)(2). The ALJ specifically found that 14 plaintiff’s medically determinable impairments included the mental impairments of 15 mood disorder and psychotic disorder. (See AR 14.) Therefore, she was required to 16 consider what impact, if any, plaintiff’s mental impairments in combination with her 17 other impairments had on her ability to work. 18 Here, the ALJ did not expressly address that issue. However, it would be fruitless 19 to remand this action based on that failure. Plaintiff testified that most of her symptoms 20 were controlled by her medication. Plaintiff also did not mention any auditory 21 hallucinations in her testimony. Given the overall tenor of Dr. Rathan-Nakintara’s 22 findings on examination, the State Agency psychological consultants’ findings (which 23 mentioned the auditory hallucinations but did not attribute any limitation to them), and 24 plaintiff’s failure to even mention the auditory hallucinations as occurring, let alone 25 limiting her functioning in any respect, the Court finds that the ALJ’s failure to 26 expressly address the auditory hallucinations was harmless error. See Molina v. Astrue, 27 674 F.3d 1104, 1115 (9th Cir. 2012) (citations omitted) (error is harmless where court 28 /// 6 1 “able to conclude from the record that the ALJ would have reached the same result 2 absent the error”). Having found that the ALJ properly attributed no limitations to plaintiff’s mental 3 4 impairments, plaintiff’s contention that the ALJ erred in her finding that the mental 5 impairments did not satisfy the durational requirement is moot. 6 B. Whether the ALJ Failed to Properly Reject the Opinions of Dr. Pechman. 7 1. 8 On August 11, 2009, Dr. David B. Pechman examined plaintiff in connection 9 Background with plaintiff’s Workers’ Compensation claim. (AR 408-58.) Dr. Pechman also 10 examined plaintiff’s medical records, including imaging studies that revealed 11 degenerative changes in plaintiff’s cervical, thoracic, and lumbar spine. (AR 421-26.) 12 Overall, Dr. Pechman determined that plaintiff’s condition is “permanent and 13 stationary”5 with respect to her back impairments. (AR 453.) Moreover, the ALJ 14 found that plaintiff’s cervical and lumbar impairments preclude plaintiff from 15 performing “heavy work.” (AR 455.) 16 In her September 9, 2014, decision, the ALJ assigned “little weight” to Dr. 17 Pechman’s opinions that plaintiff’s condition is “permanent and stationary.” (AR 20.) 18 In this regard, the ALJ found the following: 19 Dr. Pechman performed an evaluation in relation to a workers’ 20 compensation claim. Medical reports generated in the context of a 21 workers’ compensation claim are adversarial in nature. The 22 physicians retained by either party in the context of workers’ 23 compensation cases are often biased and do not provide truly 24 objective opinions. The claimant’s treating physician in the context 25 of a workers’ compensation claim often serves as an advocate for the 26 27 28 5 For the purposes of workers’ compensation, a disability is considered “permanent and stationary” when the impairment or disability is not expected to improve with further medical treatment. See Gangwish v. Workers’ Compensation Appeals Board, 89 Cal. App. 4th 1284, 1290 n.7 (2001). 7 1 claimant and describes excessive limitations to enhance the 2 claimant’s financial recovery. Also, the definition of disability in a 3 workers’ compensation case is not the same as a Social Security 4 disability case. Workers’ compensation cases look only at the 5 claimant’s ability to return to the job being performed at the time of 6 the injury. . . . Moreover, Dr. Pechman’s opinion is not consistent 7 with the evidence as a whole. 8 9 10 (Id.) 2. Analysis The ALJ improperly rejected Dr. Pechman’s opinions. The ALJ’s first reason, 11 that Dr. Pechman’s report was generated in the workers’ compensation context, was not 12 a permissible reason to reject his opinions. See Lester v. Chater, 81 F.3d 821, 832 (9th 13 Cir. 1995) (“The purpose for which medical reports are obtained does not provide a 14 legitimate basis for rejecting them.”); see also Bowser v. Comm’r of Soc. Sec., 121 F. 15 App’x 231, 239 (9th Cir. 2005) (permitting rejection of workers’ compensation opinion 16 only when the ALJ points out “evidence of the circumstances under which the report 17 was obtained and its consistency with the remainder of the record can constitute an 18 acceptable basis for assessing its reliability.”). The ALJ’s second reason, that Dr. 19 Pechman’s opinion is “not consistent with the evidence as a whole,” also fails because 20 the ALJ failed to meaningfully discuss how evidence in the record undermines Dr. 21 Pechman’s opinion, and instead offered only his conclusion. See Embrey v. Bowen, 22 849 F.2d 418, 421-22 (9th Cir. 1988) (“To say that medical opinions are . . . contrary to 23 the preponderant conclusions mandated by the objective findings does not achieve the 24 level of specificity our prior cases have required . . . . The ALJ must do more than 25 offer [her] conclusions. [She] must set forth [her] own interpretations and explain why 26 27 28 they, rather than the doctors’, are correct.”). However, the ALJ’s failure to properly reject Dr. Pechman’s opinions was harmless. Dr. Pechman’s opinion that plaintiff is permanent and stationary is only a 8 1 finding that plaintiff’s condition is not expected to improve. It does not show that 2 plaintiff is more limited than assessed in the RFC. Aside from the permanent and 3 stationary determination, Dr. Pechman’s only other assessment of plaintiff’s functional 4 limitations was that plaintiff cannot perform “heavy work.” However, even assuming a 5 preclusion from “heavy work” in the Workers’ Compensation context is more 6 restrictive than that same limitation in the Social Security context, plaintiff has not 7 persuasively demonstrated that such a limitation would further reduce her RFC. 8 Indeed, the ALJ limited plaintiff to “light work,” as described in the Social Security 9 context, along with numerous other limitations, none of which a preclusion from 10 “heavy work” would seemingly affect. Because plaintiff has not shown that full 11 consideration of Dr. Pechman’s opinions would alter the ALJ’s RFC determination or 12 ultimate decision, the ALJ’s failure to properly reject those opinions was harmless. See 13 Molina, 674 F.3d at 1115; Cantrall v. Colvin, 540 F. App’x 607, 609 (9th Cir. 2013) 14 (finding ALJ’s error to account for doctor’s opinions harmless where plaintiff failed to 15 show whether consideration of those opinions would alter the ALJ’s RFC 16 determination). 17 CONCLUSION 18 For the foregoing reasons, the judgement of the Commissioner is affirmed. 19 IT IS SO ORDERED. 20 DATED: November 16, 2017 /S/FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 21 22 23 24 25 26 27 28 9