Mont Elkins v. Nancy A. Berryhill, No. 5:2017cv00248 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: For the reasons stated above, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. See document for further information. (lwag)
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Mont Elkins v. Nancy A. Berryhill Doc. 24 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. 5:17-cv-00248-KES MONT ELKINS, Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 Plaintiff Mont Elkins (“Plaintiff”) appeals the final decision of the Social 19 Security Commissioner denying his application for Supplemental Security Income 20 disability benefits (“SSI”). For the reasons discussed below, the Commissioner’s 21 decision is AFFIRMED. 22 I. 23 BACKGROUND 24 Plaintiff filed his SSI application on November 25, 2013, alleging a disability 25 onset date of November 1, 2009. Administrative Record (“AR”) 149. The 26 Commissioner denied the claims initially and again on reconsideration. AR 12. In 27 April 2014, Plaintiff requested a hearing before an Administrative Law Judge 28 (“ALJ”). AR 107. An ALJ conducted a hearing on October 1, 2015, at which 1 Dockets.Justia.com 1 Plaintiff, who was represented by an attorney, appeared and testified. AR 28-68. 2 The ALJ issued an unfavorable decision on January 15, 2016. AR 9-27. 3 The ALJ found that Plaintiff suffers from the severe impairments of 4 degenerative changes in the lumbar spine with radiculitis, history of right shoulder 5 surgery, bilateral tarsal tunnel syndrome, asthma, and a “mood disorder.” AR 14. 6 Despite these impairments, the ALJ found that Plaintiff retained the residual 7 functional capacity (“RFC”) to perform light work with some additional exertional 8 restrictions. AR 16. Because of Plaintiff’s “mood disorder,” the ALJ limited 9 Plaintiff’s potential work to “non-public, simple, and routine tasks.” Id. 10 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 11 found that Plaintiff could not perform his past relevant work. AR 21. Plaintiff 12 could, however, work as a packer, sorter, or bench assembler. AR 22. The ALJ 13 therefore concluded that Plaintiff was not disabled. Id. 14 II. 15 PROCEDURES AND STANDARDS 16 A. 17 The Evaluation of Disability. A person is “disabled” for purposes of receiving Social Security benefits if he 18 is unable to engage in any substantial gainful activity owing to a physical or mental 19 impairment that is expected to result in death or which has lasted, or is expected to 20 last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); 21 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). A claimant for disability 22 benefits bears the burden of producing evidence to demonstrate that he was 23 disabled within the relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 24 (9th Cir. 1995). 25 B. The Five-Step Evaluation Process. 26 The ALJ follows a five-step sequential evaluation process in assessing 27 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Lester 28 v. Chater, 81 F.3d 821, 828 n. 5 (9th Cir. 1996). In the first step, the Commissioner 2 1 must determine whether the claimant is currently engaged in substantial gainful 2 activity; if so, the claimant is not disabled and the claim must be denied. 20 C.F.R. 3 §§ 404.1520(a)(4)(i), 416.920(a)(4)(i). 4 If the claimant is not engaged in substantial gainful activity, the second step 5 requires the Commissioner to determine whether the claimant has a “severe” 6 impairment or combination of impairments significantly limiting his ability to do 7 basic work activities; if not, the claimant is not disabled and the claim must be 8 denied. Id. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 9 If the claimant has a “severe” impairment or combination of impairments, the 10 third step requires the Commissioner to determine whether the impairment or 11 combination of impairments meets or equals an impairment in the Listing of 12 Impairments (“Listing”) set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if 13 so, disability is conclusively presumed and benefits are awarded. Id. 14 §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). 15 If the claimant’s impairment or combination of impairments does not meet or 16 equal an impairment in the Listing, the fourth step requires the Commissioner to 17 determine whether the claimant has sufficient residual functional capacity to 18 perform his past work; if so, the claimant is not disabled and the claim must be 19 denied. Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). The claimant has the burden 20 of proving he is unable to perform past relevant work. Drouin, 966 F.2d at 1257. If 21 the claimant meets that burden, a prima facie case of disability is established. Id. 22 If that happens or if the claimant has no past relevant work, the 23 Commissioner then bears the burden of establishing that the claimant is not 24 disabled because he can perform other substantial gainful work available in the 25 national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That 26 determination comprises the fifth and final step in the sequential analysis. Id. 27 §§ 404.1520, 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 28 3 1 C. 2 Standard of Review. Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 3 decision to deny benefits. The ALJ’s findings and decision should be upheld if 4 they are free from legal error and are supported by substantial evidence based on 5 the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 6 401 (1971); Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 7 evidence means such relevant evidence as a reasonable person might accept as 8 adequate to support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter v. 9 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than a scintilla, but less 10 than a preponderance. Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 11 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether substantial 12 evidence supports a finding, the reviewing court “must review the administrative 13 record as a whole, weighing both the evidence that supports and the evidence that 14 detracts from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 15 720 (9th Cir. 1998). “If the evidence can reasonably support either affirming or 16 reversing,” the reviewing court “may not substitute its judgment” for that of the 17 Commissioner. Id. at 720-21. 18 “A decision of the ALJ will not be reversed for errors that are harmless.” 19 Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). Generally, an error is 20 harmless if it either “occurred during a procedure or step the ALJ was not required 21 to perform,” or if it “was inconsequential to the ultimate nondisability 22 determination.” Stout v. Comm’r of SSA, 454 F.3d 1050, 1055 (9th Cir. 2006). 23 III. 24 ISSUE PRESENTED 25 Plaintiff’s appeal presents the sole issue of whether the ALJ properly 26 evaluated the opinions of consultative psychiatric examiner, Dr. Nenita Belen. 27 (Dkt. 23, Joint Stipulation (“JS”) at 4.) 28 /// 4 1 Dr. Belen examined Plaintiff in November 2015. AR 1034-38. She took a 2 patient history, administered a mental status examination, diagnosed Plaintiff’s 3 mental impairments, and rendered opinions concerning his functional abilities. Id. 4 Dr. Belen found that Plaintiff had various “mild” difficulties, including in 5 “completing a normal workday or work week due to [his] mental condition,” and 6 two “moderate” difficulties: (1) maintaining composure and even temperament, and 7 (2) maintaining social functioning. Id. at 1037. The ALJ summarized Dr. Belen’s 8 report and concluded, “I concur with Dr. Belen’s assessment and have incorporated 9 it into the [RFC] found herein.” AR 19-20. 10 On appeal, Plaintiff contends that “the ALJ’s limitation to non-public, simple 11 and routine tasks does not take into account … the moderate difficulty in 12 maintaining composure and even temperament” or the “mild limitations … with 13 respect to completing a workday or work week or handling the stressors of usual 14 employment.” (JS at 6-7.) The Commissioner counters that Plaintiff cannot 15 establish reversible error by pointing only to the ALJ’s “failure to incorporate some 16 additional, unidentified mental limitation into the RFC ….” (Id. at 10.) 17 IV. 18 DISCUSSION 19 A. Rules for Weighing Conflicting Medical Evidence and Determining the 20 Claimant’s RFC. 21 There are three types of physicians who may offer opinions in Social 22 Security cases: (1) those who directly treated the plaintiff, (2) those who examined 23 but did not treat the plaintiff, such as Dr. Belen, and (3) those who did not treat or 24 examine the plaintiff. See 20 C.F.R. § 416.927(c); Lester, 81 F.3d at 830. A 25 treating physician’s opinion is generally entitled to more weight than that of an 26 examining physician, which is generally entitled to more weight than that of a non- 27 examining physician. Lester, 81 F.3d at 830. Thus, the ALJ must give specific and 28 legitimate reasons for rejecting a treating physician’s opinion in favor of a non5 1 treating physician’s contradictory opinion or an examining physician’s opinion in 2 favor of a non-examining physician’s opinion. Orn v. Astrue, 495 F.3d 625, 632 3 (9th Cir. 2007) (citing Reddick, 157 F.3d at 725); Lester, 81 F.3d at 830-31 (citing 4 Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983)). 5 A claimant’s RFC is the most that claimant can still do despite his or her 6 limitations, and is based on all the relevant evidence in the case record. 20 C.F.R. 7 § 416.945(a); Social Security Ruling (“SSR”) 96-8. In making the RFC 8 determination, the ALJ takes into account those limitations for which there is record 9 support. Batson v. Comm’r, 359 F.3d 1190, 1197-98 (9th Cir. 2003). 10 “The ALJ is the final arbiter with respect to resolving ambiguities in the 11 medical evidence.” Ly v. Colvin, 13-cv-1241, 2014 U.S. Dist. LEXIS 135826, at 12 *33 (E.D. Cal. Sep. 24, 2014). The RFC need not parrot the opinion of any 13 particular doctor, but rather, “the ALJ is responsible for translating and 14 incorporating clinical findings into a succinct RFC.” Rounds v. Comm’r of SSA, 15 807 F.3d 996, 1006 (9th Cir. 2015); see also Stubbs-Danielson v. Astrue, 539 F.3d 16 1169, 1174 (9th Cir. 2008) (discussing the ALJ’s role in weighing conflicting 17 medical evidence and translating accepted medical opinions into “concrete 18 restrictions”). Where, for example, a credited medical source opines that the 19 claimant has “mild” or “moderate” difficulties with social interactions, the ALJ 20 must decide whether the RFC should specify that the claimant can perform jobs 21 requiring no, occasional, or frequent contact with members of the public and/or co- 22 workers. Where a credited medical source opines that the claimant has “mild” or 23 “moderate” difficulties maintaining concentration or pace, the ALJ must decide 24 whether the RFC should specify that the claimant can perform work if the reasoning 25 level and/or skill level of the work is low (i.e., “simple” work), if the work 26 environment is “routine” (as opposed to high-stress or fast-paced), if the claimant is 27 permitted to take breaks of specified frequency and duration, etc. Stubbs- 28 Danielson, 539 F.3d at 1174 (holding an RFC of “simple, routine, repetitive 6 1 sedentary work” adequately captures “moderate” deficiencies in pace). 2 The ALJ’s translation of the medical evidence into concrete functional 3 assessments should be affirmed if the ALJ “applied the proper legal standard and 4 his decision is supported by substantial evidence.” Bayliss v. Barnhart, 427 F.3d 5 1211, 1217 (9th Cir. 2005) (citing Morgan v. Comm’r of the SSA, 169 F.3d 595, 6 599 (9th Cir. 1999) (“Where the evidence is susceptible to more than one rational 7 interpretation, it is the ALJ’s conclusion that must be upheld.”)). 8 B. 9 The RFC Reasonably Accounts for Plaintiff’s Moderate Difficulty in Maintaining Composure. 10 In discussing Plaintiff’s anger management issues, Dr. Belen noted that 11 Plaintiff has a history of “being involved in fights and assaults.” AR 1034. When 12 asked about this, Plaintiff explained that “he cannot stand people and he has 13 difficulty dealing with them.” AR 1034-35. Thus, Dr. Belen found that social 14 interactions are the stressors that cause Plaintiff to have difficulty maintaining his 15 composure and even temperament. Consistent with this finding, the RFC limits 16 Plaintiff’s job-related social interactions by limiting him to non-public work. AR 17 16. 18 Plaintiff has failed to explain how the limitation to non-public work fails to 19 account for his moderate difficulty maintaining composure. He has also failed to 20 suggest what additional limitation the ALJ should have incorporated into the RFC 21 that would have adequately accounted for this difficulty. The ALJ expressly noted 22 Dr. Belen’s finding that Plaintiff has moderate difficulty maintaining composure. 23 AR 19. Plaintiff’s position appears to be that the ALJ was required to explain how 24 the RFC accounts for that opinion. In fact, while ALJs are required to give specific, 25 legitimate reasons for rejecting relevant medical opinions, they are not required to 26 explain how they translated each relevant medical opinion into an RFC 27 determination. See Estep v. Colvin, 15-cv-2647-CKD, 2016 U.S. Dist. LEXIS 28 163699, at *27 (E.D. Cal. Nov. 28, 2016) (“[A]s the Ninth Circuit Court of Appeals 7 1 has observed, an ALJ may synthesize and translate assessed limitations into an RFC 2 assessment … without repeating each functional limitation verbatim in the RFC 3 assessment or hypothetical.” (citing Stubbs-Danielson, 539 F.3d at 1173-74)). 4 Here, where the medical evidence states that social interactions cause 5 Plaintiff’s difficulties with maintaining composure, and the RFC limits Plaintiff’s 6 work-related social interactions to avoid all public contact, the ALJ reasonably 7 translated the medical evidence in formulating the RFC. This is particularly true 8 where Dr. Belen concluded that Plaintiff had “mild” and “moderate” psychological 9 limitations, which “do not have to be exactly mirrored in the RFC determination.” 10 Phillips v. Colvin, 61 F. Supp. 3d 925, 939-40 (N.D. Cal. 2014); Hoopai v. Astrue, 11 499 F.3d 1071, 1077 (9th Cir. 2007) (“We have not previously held mild or 12 moderate depression to be a sufficiently severe non-exertional limitation that 13 significantly limits a claimant’s ability to do work beyond the exertional 14 limitation.”). 15 Plaintiff argues that “no medical source has found that a limitation in 16 maintaining composure and temperament is adequately addressed by a limitation to 17 non-public, simple and routine tasks.” (JS at 14.) This Court disagrees. A fair 18 reading of Dr. Belen’s report is that social interactions sometimes cause Plaintiff to 19 lose his composure, such that limiting his social interactions addresses this 20 difficulty. AR 1034-37. As emphasized above, the ALJ is responsible for 21 translating medical opinions into an RFC, and here that translation is supported by 22 substantial evidence. 23 C. The RFC Reasonably Accounts for Plaintiff’s Mild Difficulties in 24 Maintaining Attendance and Coping with Usual Workplace Stress. 25 Dr. Belen found that Plaintiff would have “mild” limitation completing a 26 normal workday or workweek due to his mental condition and “mild” limitations 27 handling “the usual stresses, changes and demands of gainful employment.” AR 28 1037. Plaintiff argues that since regular attendance and coping with “usual 8 1 stresses” are components of all jobs, the ALJ was required to (1) give specific 2 legitimate reasons for rejecting these medical opinions, (2) incorporate restrictions 3 addressing these limitations into the RFC, or (3) find Plaintiff disabled. (JS at 7-9.) 4 The ALJ clearly accepted Dr. Belen’s opinions and stated that he intended to 5 “incorporate” them into the RFC. AR 20. Plaintiff argues that he did not actually 6 do so, but again fails to identify what sort(s) of restrictions would address these 7 mild limitations. (JS at 9.) 8 Regarding workplace stress, the RFC ensures that Plaintiff will not be 9 subjected to “the usual stresses, changes and demands of gainful employment.” 10 AR 1037. Rather, by limiting Plaintiff’s potential work to tasks that are simple, 11 routine, and conducted in a non-public space, the ALJ reduced several of the most 12 significant workplace stressors below the level present in a “usual” workplace. AR 13 16. This restriction, therefore, adequately accounts for Dr. Belen’s finding of mild 14 difficulty. 15 Regarding attendance, in Turner v. Berryhill, 693 F. App’x 722, 722 (9th Cir. 16 2017), the Ninth Circuit ruled that the “ALJ’s decision not to include an attendance- 17 based limitation in Turner’s [RFC] assessment was supported by substantial 18 evidence,” despite the ALJ’s having accepted the opinions of a medical source who 19 found that Turner had “moderate” limitations maintaining regular attendance. That 20 medical source, however, “did not specify that Turner’s difficulties with attendance 21 would lead him to miss a certain number of days of work each month or would 22 otherwise undermine his ability to work.” Id. at 722. The RFC also limited Turner 23 to non-public work, and thereby “mitigated against the kinds of stressors likely to 24 aggravate Plaintiff’s mood and anxiety disorders and cause absenteeism.” Turner v. 25 Colvin, 15-cv-0020-KES, 2015 U.S. Dist. LEXIS 131772, at *13 (C.D. Cal. Sep. 26 29, 2015). 27 28 The result is the same here. The RFC adequately accounts for Dr. Belen’s opinion that Plaintiff would have “mild” difficulty maintaining regular attendance 9 1 because (1) she did not specify that this difficulty would lead Plaintiff to miss a 2 certain number of days of work each month or would otherwise undermine his 3 ability to work, and (2) by limiting Plaintiff to simple, routine, non-public work, the 4 RFC mitigates against the kinds of stressors likely to aggravate Plaintiff’s mood 5 disorder and cause absenteeism. 6 V. 7 CONCLUSION 8 For the reasons stated above, IT IS ORDERED that judgment shall be 9 entered AFFIRMING the decision of the Commissioner denying benefits. 10 11 12 13 14 DATED: January 04, 2018 ____________________________________ KAREN E. SCOTT United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10
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