Gilberto Avila v. Nancy A Berryhill, No. 5:2017cv01440 - Document 24 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and GRANTING judgment in Defendant's favor. (See document for further details.) (sbou)
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Gilberto Avila v. Nancy A Berryhill Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GILBERTO AVILA, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. ) Case No. EDCV 17-1440-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 19 denying his application for Social Security supplemental security 20 income benefits (“SSI”). 21 jurisdiction of the undersigned under 28 U.S.C. § 636(c). 22 matter is before the Court on the parties’ Joint Stipulation, 23 filed February 28, 2018, which the Court has taken under 24 submission without oral argument. 25 the Commissioner’s decision is affirmed. The parties consented to the The For the reasons stated below, 26 27 28 1 Dockets.Justia.com 1 II. 2 BACKGROUND Plaintiff was born in 1966. (Administrative Record (“AR”) 3 31, 239, 241.) 4 hairdresser, waiter, and community outreach worker (AR 265, 284, 5 370). 6 He received a GED (AR 58, 265) and worked as a On January 10, 2013, Plaintiff applied for SSI, alleging 7 that he had been unable to work since June 1, 1996,1 because of 8 stroke, heart problems, learning disability, posttraumatic stress 9 disorder, and mental illness. (AR 21, 241-49, 264.) After his 10 application was denied initially and on reconsideration (see AR 11 101-03, 119-20), he requested a hearing before an Administrative 12 Law Judge (AR 137). 13 16, 2015.2 14 counsel, testified (AR 41-43, 51-58, 71-78, 886-95), as did a 15 medical expert (AR 43-50, 875-86) and a vocational expert (AR 58- 16 63, 895-900).3 Hearings were held on June 5 and December (AR 39-82.) Plaintiff, who was represented by In a written decision issued January 13, 2016, 17 1 18 19 20 21 22 Plaintiff listed June 1, 1996, as his disability-onset date (AR 241), but the actual date of his stroke is unclear (see AR 46 (medical-expert testimony that “I don’t think we know exactly when [the stroke] happened”)). The record gives estimated dates between 1995 and 1998. (See AR 71 (Plaintiff’s attorney giving date as “1996 or ’98” and remarking, “[i]t’s sort of unclear”), 369 (Plaintiff “has been having difficulty since 1995”), 420 (consulting examiner reporting date as “1998” with possible second stroke in 2005).) Contemporaneous medical documentation is not in the AR. 23 2 24 25 The parties erroneously give the hearing dates as June 5 and December 16, 2016, which would have been after the ALJ’s decision was issued. (See J. Stip. at 2.) 3 26 27 28 AR 48 is labeled as page 10 of the December 16, 2015 hearing transcript, AR 49 is labeled as page 16, AR 50 as page 17, and AR 51 as page 20. (See AR 48-51.) On September 20, 2018, in response to this Court’s order, the parties supplemented the AR by lodging the full transcript of the December 16, 2015 hearing. (See AR 871-903.) They agreed that no supplemental 2 1 the ALJ found Plaintiff not disabled. 2 sought Appeals Council review (AR 238, 336-37), which was denied 3 on May 19, 2017 (AR 4-9). 4 III. STANDARD OF REVIEW 5 (AR 18-38.) Plaintiff This action followed. Under 42 U.S.C. § 405(g), a district court may review the 6 Commissioner’s decision to deny benefits. The ALJ’s findings and 7 decision should be upheld if they are free of legal error and 8 supported by substantial evidence based on the record as a whole. 9 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 10 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 11 means such evidence as a reasonable person might accept as 12 adequate to support a conclusion. 13 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 14 is more than a scintilla but less than a preponderance. 15 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 16 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 17 substantial evidence supports a finding, the reviewing court 18 “must review the administrative record as a whole, weighing both 19 the evidence that supports and the evidence that detracts from 20 the Commissioner’s conclusion.” 21 720 (9th Cir. 1998). 22 either affirming or reversing,” the reviewing court “may not 23 substitute its judgment” for the Commissioner’s. 24 Courts “may not reverse an ALJ’s decision on account of an error 25 that is harmless,” that is, “inconsequential to the ultimate Substantial evidence Richardson, 402 U.S. at 401; To determine whether Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support Id. at 720-21. 26 27 28 It briefing was required because they had not relied on any previously missing pages of the transcript in making their arguments. (See J. Rep. at 2.) The AR thus now appears to be complete. 3 1 nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 2 1111, 1115 (9th Cir. 2012) (citation omitted). 3 IV. THE EVALUATION OF DISABILITY 4 People are “disabled” for purposes of receiving Social 5 Security benefits if they are unable to engage in any substantial 6 gainful activity owing to a physical or mental impairment that is 7 expected to result in death or has lasted, or is expected to 8 last, for a continuous period of at least 12 months. 9 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 10 42 U.S.C. 1992). 11 A. 12 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 13 whether a claimant is disabled. 14 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 15 amended Apr. 9, 1996). 16 determine whether the claimant is currently engaged in 17 substantial gainful activity; if so, the claimant is not disabled 18 and the claim must be denied. 20 C.F.R. § 416.920(a)(4); In the first step, the Commissioner must § 416.920(a)(4)(i). 19 If the claimant is not engaged in substantial gainful 20 activity, the second step requires the Commissioner to determine 21 whether the claimant has a “severe” impairment or combination of 22 impairments significantly limiting his ability to do basic work 23 activities; if not, the claimant is not disabled and his claim 24 must be denied. 25 § 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of 26 impairments, the third step requires the Commissioner to 27 determine whether the impairment or combination of impairments 28 meets or equals an impairment in the Listing of Impairments set 4 1 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 2 disability is conclusively presumed. § 416.920(a)(4)(iii). 3 If the claimant’s impairment or combination of impairments 4 does not meet or equal an impairment in the Listing, the fourth 5 step requires the Commissioner to determine whether the claimant 6 has sufficient residual functional capacity (“RFC”)4 to perform 7 his past work; if so, he is not disabled and the claim must be 8 denied. 9 proving he is unable to perform past relevant work. § 416.920(a)(4)(iv). The claimant has the burden of Drouin, 966 10 F.2d at 1257. 11 case of disability is established. 12 the claimant has no past relevant work, the Commissioner then 13 bears the burden of establishing that the claimant is not 14 disabled because he can perform other substantial gainful work 15 available in the national economy. 16 966 F.2d at 1257. 17 final step in the sequential analysis. 18 Lester, 81 F.3d at 828 n.5. If the claimant meets that burden, a prima facie Id. If that happens or if § 416.920(a)(4)(v); Drouin, That determination comprises the fifth and § 416.920(a)(4)(v); 19 B. 20 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 21 substantial gainful activity since January 10, 2013, the 22 application date. 23 Plaintiff had the severe impairments of “cerebellar infarct with (AR 23.) At step two, he concluded that 24 25 4 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 residual hemiataxia.”5 2 of “glaucoma” and “depressive disorder and anxiety disorder” not 3 severe. 4 impairments did not meet or equal a listing. 5 four, the ALJ found that Plaintiff’s “statements concerning the 6 intensity, persistence[,] and limiting effects of [his] symptoms 7 [were] not entirely credible” (AR 25) and concluded that he had 8 the RFC to perform “a full range of work at all exertional 9 levels” subject to the following exceptions: (Id.) (Id.) He found Plaintiff’s impairments At step three, he determined that Plaintiff’s (AR 24.) At step 10 [N]o limitation lifting and/or carrying; no limitation 11 standing and/or walking; does not require a cane in order 12 to stand or ambulate; frequently bend, stoop, kneel, 13 crouch, and crawl; occasionally climb and balance; and 14 never climb ladders, ropes, or scaffolds, or work at 15 unprotected heights due to residual hemiataxia. 16 (AR 24.) 17 At step five, the ALJ found that given Plaintiff’s age, 18 education, work experience, and RFC, there were jobs he could 19 perform existing in significant numbers in the national economy. 20 (Id.) Plaintiff did not have past relevant work. Thus, the ALJ found Plaintiff not disabled. (AR 31.) (AR 32.) 21 22 23 24 25 26 27 28 5 Hemiataxia is a loss of muscle control affecting one side of the body and may result from stroke or cerebellar injury. See Hemiataxia, The Free Dictionary-Medical Dictionary, https://medical-dictionary.thefreedictionary.com/hemiataxia (last visited Sept. 28, 2018). 6 1 V. DISCUSSION6 2 Remand Is Not Warranted Based on the ALJ’s Step-Two 3 Determination Concerning Plaintiff’s Mental Impairments 4 Plaintiff argues that the ALJ improperly ignored the 5 moderate limitations assessed by psychologists Margaret Donohue 6 and Robin Rhodes Campbell, whose opinions the ALJ afforded “great 7 weight” in other respects, and as a result erroneously determined 8 his mental impairments to be nonsevere at step two. 9 Stip. at 5-13, 19-20.) (See J. As discussed below, the ALJ did not 10 ignore the opinions of Drs. Donohue and Campbell, and even if he 11 did err in failing to adequately explain his reasons for 12 rejecting the limitations they opined, any such error was 13 harmless. 14 15 Remand is therefore unwarranted. 1. Applicable law The step-two inquiry is “a de minimis screening device to 16 dispose of groundless claims” when a claimant’s impairments are 17 not severe. 18 1996). 19 ‘not severe only if the evidence establishes a slight abnormality 20 that has no more than a minimal effect on an individual’s ability 21 to work.’” 22 (quoting Smolen, 80 F.3d at 1290 (emphasis in original)). Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. “An impairment or combination of impairments may be found Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) A 23 6 24 25 26 27 28 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court recently held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during his administrative proceedings. (See AR 4-9, 39-82, 238, 336-37; J. Stip. at 5-13, 19-20); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council). 7 1 court must determine whether substantial evidence in the record 2 supported the ALJ’s finding that a particular impairment was not 3 severe. 4 Id. at 687. The ALJ may disregard a physician’s opinion regardless of 5 whether it is contradicted. 6 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 7 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 8 some portions of a medical source’s opinion and reject others. 9 See Magallanes, 881 F.2d at 754 (ALJ properly accepted doctor’s Magallanes v. Bowen, 881 F.2d 747, An ALJ may accept 10 objective findings but rejected his opinion as to disability 11 onset date); see also Stewart v. Colvin, No. 1:13-cv-00187-BAM., 12 2014 WL 3615237, at *6 (E.D. Cal. July 21, 2014) (expressly 13 rejecting plaintiff’s contention that ALJ “cannot ‘pick and 14 choose’ among portions of medical opinions”). 15 opinion or portion of it is contradicted by other evidence in the 16 record, the ALJ need provide only a “specific and legitimate” 17 reason supported by “substantial evidence” in order to reject it. 18 See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) 19 (citation omitted). 20 reject a physician’s opinion or a portion of it; the court may 21 draw “specific and legitimate inferences” from the ALJ’s opinion. 22 Magallanes, 881 F.2d at 755. 23 When the relevant An ALJ need not recite “magic words” to The Court must consider the ALJ’s decision in the context of 24 “the entire record as a whole,” and if the “‘evidence is 25 susceptible to more than one rational interpretation,’ the ALJ’s 26 decision should be upheld.” 27 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). Ryan v. Comm’r of Soc. Sec., 528 28 8 1 2. 2 Relevant background a. Plaintiff’s neurological condition Plaintiff had a stroke in or around 19967 and an aortic- 3 4 valve replacement. 5 stroke left him with left-side weakness, dizziness, balance 6 problems, vision loss in his right eye, and mental-health 7 difficulties. 8 confirmed changes in Plaintiff’s brain from “old infarcts.” 9 AR 368 (reporting 2008 scan showing “low-density changes of the (See AR 379, 382.) He reported that the (See, e.g., AR 369, 382, 389.) Later CT scans (See 10 left cerebral hemisphere and right cerebrum with atrophy 11 representing old infarcts” and “old left frontal lobe infarct” 12 but no acute damage), 389 (2013 scan showing “[c]hronic 13 postinfarction encephalomalacia involving the cerebellar 14 hemispheres bilaterally” but “[n]o acute abnormality”).) 15 On June 6, 2013, Plaintiff saw internal-medicine specialist 16 Dr. Ruben Ustaris for a consulting exam. 17 complained of “constant dizziness,” “falling,” “loss of memory 18 function,” difficulty “understanding what he reads or hears,” and 19 “severe depression.” 20 walked with a “long wooden rod” but was capable of walking 21 without it, although he tended to “grab the wall after he 22 step[ped] to maintain balance.” 23 Plaintiff’s “left extremities are slightly weaker compared to the 24 right” but graded both at “5/5 in terms of motor strength.” 25 381.) 26 to prevent falls” while walking, could “bend, stoop, kneel and (AR 379.) (AR 379-83.) He Dr. Ustaris noted that Plaintiff (AR 380.) He observed that He opined that Plaintiff needed “a cane for balance only 27 28 (AR 7 The exact date of Plaintiff’s stroke is unclear. supra note 1. 9 See 1 crawl frequently but climb and balance occasionally,” and could 2 not “work at unprotected heights because of history of dizziness 3 and problems with equilibrium.” 4 other restrictions. 5 (AR 382.) He did not assess any (Id.) On August 5, 2013, Plaintiff met with neurologist Robert 6 Moore for a consulting exam. 7 and “was able to drive himself to the office.” 8 told Dr. Moore that “in 1998, while living in Mexico,” he 9 “suffered what sounds like an embolic infarction related to 10 bacterial endocarditis.” 11 second stroke in 2005. 12 (AR 420-24.) (Id.) He arrived on time (AR 420.) He He also reported a possible (Id.) Plaintiff complained to Dr. Moore primarily of problems with 13 balance that caused him to use a cane and secondarily of “mild 14 weakness in his left leg.” 15 “performing fine coordinated movements with the left fingers,” 16 felt that “his vision was getting worse,” had been diagnosed with 17 depression with psychotic features, and believed that his memory 18 and thinking were “getting worse.” 19 he was “afraid to drive” despite having apparently driven himself 20 to the appointment. 21 (Id.) He said he had some difficulty (AR 420-21.) He stated that (AR 421.) Dr. Moore performed a mental-status examination in which 22 Plaintiff misstated the day of the week but was “otherwise alert 23 and oriented to person and place.” 24 identified the President, was able to calculate two plus five, 25 and “followed three step commands and repeated two reversed 26 digits.” 27 minutes and two out of three with assistance.” 28 attempt to subtract seven from 100. (Id.) (AR 422.) He correctly His object recall was “one out of three in five 10 (Id.) (Id.) He did not Dr. Moore opined that 1 Plaintiff’s “general fund of knowledge appeared to be fair.” 2 (Id.) 3 Dr. Moore further observed that Plaintiff’s speech was 4 “normal,” and he had “no difficulty in naming objects,” “spoke in 5 grammatically correct sentences,” and “was able to read and write 6 without difficulty.” 7 interpreter or translator was present, and the exam was 8 apparently conducted in English. (Id.) Nothing indicates that an (See generally AR 420-24.) 9 Physical testing showed that Plaintiff had mild difficulty 10 in fine coordinated movement with his left fingers, “a bit more 11 than a mild left hemiataxic gait,” and weakened grip strength in 12 his left hand. 13 unremarkable. 14 him with “[c]erebellar infarct with residual hemiataxia,” 15 “[h]istory of depression,” and “[c]ognitive impairment possibly 16 secondary” to the first two diagnoses. 17 Plaintiff could stand and walk “at least two hours out of an 18 eight-hour day without an assistive device,” “sit in an 19 unrestricted manner,” and “occasionally bend and stoop.” 20 He could not “climb, balance, or work at heights” and “would have 21 slight difficulty operating foot controls with the left leg.” 22 (Id.) 23 simple gripping and frequent distal fine coordinated movements 24 with the left hand and fingers.” 25 issues,” he could “intermittently lift and carry 30 pounds and 26 more frequently lift and carry 15 pounds.” (AR 422.) The exam findings were otherwise (See generally AR 421-23.) Dr. Moore diagnosed (AR 423.) He opined that (Id.) He could “frequently push and pull” and “perform frequent (Id.) “Because of his balance (Id.) 27 With respect to nonexertional limitations, Dr. Moore 28 observed that “a component” of Plaintiff’s cognitive complaints 11 1 “may be related to his left frontal infarct, but there certainly 2 may be a component associated with an underlying depression.” 3 (Id.) 4 commands and perform simple tasks” but “would likely have slight 5 difficulty following complex commands and performing complex 6 tasks.” 7 restrictive nonexertional limitations on the understanding that 8 Plaintiff would “be having psychometric tests performed for SSI 9 purposes.” 10 He opined that Plaintiff would be “able to follow simple (AR 423-24.) (AR 423.) b. 11 12 He declined to assess any more specific or Psychological exams by Drs. Donohue and Campbell On May 25, 2013, Plaintiff met with psychologist Donohue for 13 a consulting exam. 14 California driver’s license. 15 Plaintiff’s driver’s license valid through Feb. 4, 2015).) 16 complained of “posttraumatic stress disorder,” “mood swings,” 17 “depression,” and “anger,” which he attributed to the stroke or 18 other “brain trauma” from “1995.” 19 Dr. Donohue that he was “not in current [psychiatric] treatment,” 20 had “had suicidal thoughts” in the past but was “not suicidal 21 now” and had “never made an attempt,” and “hear[d] noises and 22 [saw] shadows of people walking.” 23 noted difficulty in obtaining an accurate history from Plaintiff. 24 (See AR 368-69.) (AR 368-74.) He presented his valid (AR 368; see also AR 435 (copy of (AR 369.) (Id.) He He apparently told Dr. Donohue repeatedly 25 Dr. Donohue observed that Plaintiff’s motor activity was 26 “within normal limits,” further noting that “[t]here is motor 27 slowing but some of that appears intentional.” 28 speech was “clear and fluent in English” and, although she was 12 (AR 370.) His 1 “translating into Spanish,” it was “not always helping.” (Id.) 2 His “[i]nterview behavior showed resignation formulas and easily 3 giving up,” and he “put[] forth a really marginal effort.” 4 371.) 5 and “d[id] not know” the month, date, season, name of the office, 6 or what county it was in. 7 word “mundo” and told Dr. Donohue he could not spell “cat” in 8 reverse order. 9 100. He reported the year and the day of the week incorrectly (Id.) (Id.) (Id.) He was not able to spell the He could correctly subtract seven from Dr. Donohue opined that Plaintiff’s “[i]ntellect is 10 not able to be adequately assessed due to marginal effort.” 11 (Id.) 12 (AR Dr. Donohue attempted to administer the Trail Making Test, 13 parts A and B,8 but Part A “was aborted at 15 seconds” when 14 Plaintiff claimed he could not go further. 15 able to pass the training item” for that test. 16 Donohue also administered the Wechsler Adult Intelligence Scale — 17 Fourth Edition,9 which yielded a composite IQ score of 47. 18 Dr. Donohue did “not believe these scores [were] valid.” 19 373.) (AR 372.) (Id.) He “was Dr. (Id.) (AR She attempted to administer the Wechsler Memory Scale — 20 21 22 23 24 8 The Trail Making Test is a timed test used to assess cognition and screen for dementia. See Administration, Scoring and Interpretation of the Trail Making Test, VeryWellHealth, https://www.verywellhealth.com/dementia-screening-tool-the-trailmaking-test-98624 (last visited Sept. 28, 2018). 9 25 26 27 28 The Wechsler Adult Intelligence Scale — Fourth Edition measures intelligence in adults and older adolescents. See The Wechsler Adult Intelligence Scale, VeryWellMind, https:// www.verywellmind.com/the-wechsler-adult-intelligencescale-2795283 (last visited Sept. 28, 2018). It provides scores of an examinee’s verbal comprehension, perceptual reasoning, working memory, and processing speed as well as his overall IQ and an index of his general ability. See id. 13 1 Fourth Edition,10 but the test was aborted because Plaintiff 2 “report[ed] he [was] too confused to be able to do this and he 3 cannot repeat back anything.” (Id.) 4 Dr. Donohue diagnosed Plaintiff with major depressive 5 disorder, cognitive disorder not otherwise specified “with 6 unknown degree of impairment because of poor effort on testing,” 7 and a likely borderline to mild level of intellectual impairment. 8 (Id.) 9 would not cause him to “fail[] preschool level items on multiple She opined that his stroke, as “verified by CT scan,” 10 areas.” 11 remember, and carry out short, simplistic instructions with mild 12 difficulty.” 13 simplistic work-related decisions without special supervision.” 14 (AR 374.) 15 . . . due to impulsivity with frontal lobe disorder” and “would 16 have moderate difficulty to maintain persistence and pace in a 17 normal workplace setting.” 18 socially inappropriate” with her in that he gave up on or refused 19 to complete several examination items, and she was therefore “not 20 able to assess his ability” to interact with supervisors and 21 coworkers. (Id.) She opined that he “would be able to understand, (Id.) He “should have no difficulty to make He “may have mild difficulty to comply with job rules (Id.) (Id.) She noted that he “was She was not able to assess his GAF score.11 22 23 24 25 26 27 28 10 The Wechsler Memory Scale — Fourth Edition assesses different types of memory in adults, including auditory, visual, logical, spatial, working, immediate, and delayed. See, e.g., Sample Interpretive Report of WMS-IV Testing, Pearson Clinical, http://images.pearsonclinical.com/images/Products/WMS-IV/ WMS-IV_Writer_Report_Sofia_Estrange_September_2011.pdf (last visited Sept. 28, 2018). 11 GAF stands for Global Assessment of Functioning and is used to rate how seriously symptoms of mental illness interfere with a person’s day-to-day life. See What Is the Global 14 1 (AR 373.) 2 memory impairment and his walking into a wall as he was leaving 3 her office were inconsistent with his having a valid driver’s 4 license. 5 She further observed that Plaintiff’s claimed level of (AR 374.) On August 5, 2013, the same day as his visit with Dr. Moore 6 (to which he had evidently driven himself and at which he had 7 presented only mild — at most — mental difficulties) (AR 420-24), 8 Plaintiff met with psychologist Campbell for a consulting exam 9 (AR 428-34). He reported “difficulty processing instructions,” 10 “memory loss,” “balance problems,” “left-sided weakness,” and 11 “inability to express his thoughts.” 12 those problems to a stroke in “1998.” 13 he could not focus well enough to read or to learn his phone 14 number or address. 15 voices and see[ing] shadows since the stroke” but was “vague and 16 evasive” when Dr. Campbell asked for more specific information. 17 (Id.) 18 me’” but “could not give any time in the last 15 years that this 19 had happened.” 20 apparently gained 20 pounds in the three months before the exam. 21 (Id.) Dr. Campbell nevertheless rated him a “fair historian.” 22 (Id.) She also rated his speech as “fluent with normal volume, 23 rate and rhythm” and noted that his “[e]xpressive and receptive 24 language appeared to be intact.” 25 the services of an interpreter and apparently participated in the (Id.) (AR 429.) (Id.) He attributed He complained that He claimed that he had been “hear[ing] He expressed worry that “people are ‘doing bad things to (Id.) He also reported poor appetite but had (AR 431.) Plaintiff declined 26 27 28 Assessment of Functioning (GAF) Scale?, WebMD, https:// www.webmd.com/mental-health/gaf-scale-facts (last visited Sept. 28, 2018). 15 1 exam in English without difficulty. 2 (AR 429.) Dr. Campbell administered the WAIS-IV and the WMS-IV tests. 3 (AR 431-32.) She observed that Plaintiff’s “manner was notable 4 for some evidence of exaggeration and dissimulation.” 5 More specifically, “[w]hen presented with even very simple tasks, 6 he put his hands over his eyes and exclaimed, ‘Oh God.’” 7 Plaintiff scored at or below the second percentile on both tests, 8 indicating “extremely low” functioning. 9 Campbell warned, however, that the test results were “not (AR 431-32.) (AR 430.) (Id.) Dr. 10 considered to be a reliable estimation of [Plaintiff’s] cognitive 11 or intellectual functioning” because of “very poor effort.” 12 432.) 13 “Anxiety Disorder, NOS,” ruled out diagnoses of “Psychotic 14 Disorder, NOS,” and “Factitious Disorder with [p]sychological 15 [s]ymptoms,” and rated his GAF score at 67, indicating “some mild 16 symptoms” or “some difficulty in social, occupational, or school 17 functioning” but “generally functioning pretty well,” with “some 18 meaningful interpersonal relationships.” 19 Is the Global Assessment of Functioning (GAF) Scale?, WebMD, 20 https://www.webmd.com/ 21 mental-health/gaf-scale-facts (last visited Sept. 28, 2018). 22 (AR She diagnosed him with “Depressive Disorder, NOS,” and (AR 433); see also What Based on the exam, Dr. Campbell opined that Plaintiff “would 23 have no impairment in understanding, remembering, and carrying 24 out short, simple instructions.” 25 understand, remember, and carry out detailed instructions” was 26 “mildly impaired.” 27 his ability to make judgments on simple, work-related decisions” 28 but noted that he “would have moderate difficulty in relating (AR 433.) (AR 433.) His “ability to She found Plaintiff “unimpaired in 16 1 appropriately to the public, supervisors, and co-workers.” 2 She also found moderate impairment in his “ability to withstand 3 the stress and changes associated with an eight-hour workday and 4 day-to-day work activities.” 5 limitations in maintaining concentration, persistence, or pace. 6 (Id.) 7 8 9 c. (Id.) (Id.) She did not assess any Medical-expert testimony Impartial medical expert Dr. James Haynes,12 a neurologist (AR 867), evaluated the longitudinal record and testified at the 10 December 16, 2015 hearing (see AR 875-86). 11 Plaintiff had had a “stroke in the cerebellum” and “aortic valve” 12 replacement that had left him with vision and balance problems. 13 (AR 876-77.) 14 physical problems supported limitations on ladders and heights 15 (AR 877), standing, walking, lifting, and carrying (AR 880-81); 16 further, “it probably [would be] reasonable [for him] to use a 17 walking stick of some kind.” He noted that He opined that the medical evidence of those (AR 877; see also AR 882.) 18 With respect to Plaintiff’s alleged cognitive impairments, 19 Dr. Haynes agreed that he had “abnormalities in the cerebellum” 20 (AR 877) but observed that “[t]here’s a lot of psychiatric issues 21 here,” referring to consulting examiners’ descriptions of 22 “impaired cognition” and “question[able] effort.” 23 ALJ expressly asked if there might be a “neurological basis” for 24 Plaintiff’s “severe [mental-health] complaints,” “extremely low 25 IQ,” and “major cognitive deficits with some extreme limitations” (AR 876.) The 26 27 28 12 Dr. Haynes’s name is spelled “Haines” in the hearing transcript (see, e.g., AR 43), but his curriculum vitae gives his name as “James M. Haynes” (see AR 867). 17 1 as opposed to the consulting examiners’ suspicions of 2 malingering. 3 brain damage that is leading to this? Maybe he’s not exaggerating 4 . . . [maybe] [h]e’s given forth his full effort.”).) 5 pointedly answered, “I don’t think that it’s true” and further 6 opined that “the effort issues, I mean, worse than preschooler 7 . . . I mean that’s kind of impossible.” 8 880 (Dr. Haynes testifying that Plaintiff’s having “perform[ed] 9 worse than your average preschooler” did not “make any sense” and 10 (AR 878; see also AR 879 (“[C]ould there have been Dr. Haynes (AR 879; see also AR was “not explained by neuro imaging”).) 11 Plaintiff’s counsel cross-examined Dr. Haynes but spent most 12 of his questioning on how long Plaintiff could stand and walk. 13 (See AR 882-83.) 14 alleged cognitive impairments, he asked Dr. Haynes whether he had 15 seen “any notations about [Plaintiff’s] exaggerating?” 16 Haynes replied, “[n]ot exactly” but observed that his “depression 17 [was] probably pretty significant” and could cause “pseudo 18 dementia.” 19 statement and had no further questions for the doctor. 20 also AR 885.) 21 (Id.) 3. 22 In his single question related to his client’s (AR 884.) Plaintiff’s counsel did not follow up on that (Id.; see Analysis The ALJ found no severe mental impairment at step two and 23 included no mental limitations in Plaintiff’s RFC. (See AR 23- 24 24.) 25 reasons for “ignor[ing]” the mild to moderate cognitive 26 limitations opined by Drs. Donohue and Campbell amounts to 27 reversible error. 28 reasons set forth below. Plaintiff argues that the ALJ’s failure to give specific (See J. Stip. at 5.) 18 He is incorrect, for the 1 a. The ALJ did not err in finding Plaintiff’s 2 mental-health impairments not severe at step 3 two 4 At step two, the ALJ found that Plaintiff’s “medically 5 determinable impairments of depressive disorder and anxiety 6 disorder,” considered alone or together, did not “cause more than 7 minimal limitation” on his “ability to perform basic mental work 8 activities.” 9 (Id.) (AR 23.) He thus classified them as “nonsevere.” The ALJ gave “great weight” to Drs. Donohue’s and 10 Campbell’s opinions that Plaintiff “gave poor effort, the testing 11 was invalid, and [his] symptoms were disproportionate to the 12 objective findings.” 13 belief to the contrary (see J. Stip. at 11-12), he did not give 14 great weight to any of the functional limitations opined by 15 either doctor (see AR 30; see also generally AR 27-31). 16 the paragraphs affording “great weight” to the portions of their 17 opinions bearing on Plaintiff’s credibility (AR 30) make that 18 clear by observing that his symptoms were “disproportionate to 19 the objective findings” in a way that “would not be expected 20 following [his] stroke” and that he gave “vague and evasive 21 answers” and engaged in “exaggeration and dissimulation” when 22 examined by Dr. Campbell (id.). 23 plaintiff’s repeated failure to give full effort during an exam 24 undermines the alleged limiting effect of his symptoms. 25 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 26 (AR 30.) Despite Plaintiff’s apparent Indeed, An ALJ may properly find that a See Moreover, the ALJ provided ample support elsewhere in his 27 decision for implicitly rejecting the mental restrictions found 28 by Drs. Campbell and Donohue. (See generally AR 28-31.) 19 1 Although the decision falls just short of an explicit statement 2 of his reasoning, reviewing courts “are not deprived of our 3 faculties for drawing specific and legitimate inferences from the 4 ALJ’s opinion.” 5 recite “incantation” such as “I reject [this doctor’s] opinion 6 about [this issue] because . . . .”). 7 opinion for the proposition that “the alleged limiting effects of 8 [Plaintiff’s] symptoms are questionable.” 9 stated, “I find [Plaintiff] and his partner, Roger Kincaid, not Magallanes, 881 F.2d at 755 (ALJ not required to He cited Dr. Campbell’s (See AR 30.) He later 10 credible” (id.), a determination that Plaintiff has not disputed 11 (see J. Stip. at 4-13, 19-20). 12 testimony that Plaintiff’s stroke did not support “the alleged 13 limiting effects of [his] complaints, mental and otherwise” (AR 14 31) — testimony that Plaintiff’s hearing counsel made no serious 15 effort to undermine (see AR 884) — and found that Plaintiff’s 16 treating providers’ “belief that [he] is not a malingerer” was 17 “inconsistent with the evidence of record” (AR 31). 18 He then cited Dr. Haynes’s Plaintiff has not disputed those findings, either. (See J. 19 Stip. at 4-13, 19-20.) 20 “incantation” of “magic words” when none is required. 21 Magallanes, 881 F.2d at 755; see also Gray v. Comm’r of Soc. Sec. 22 Admin., 365 F. App’x 60, 62 (9th Cir. 2010) (ALJ did not err in 23 declining to include plaintiff’s claimed level of cognitive 24 limitation in RFC when doctors reported she gave poor effort on 25 IQ testing and he found her testimony not fully credible); Deleon 26 v. Astrue, No. 09cv2282-WQH (Wmc)., 2010 WL 3418425, at *5 (S.D. 27 Cal. July 30, 2010) (plaintiff’s counsel’s having chosen to 28 present “few or no questions” to medical expert on impairments at His argument amounts to a request for an 20 See 1 issue on appeal weighed against finding of error), accepted by 2 2010 WL 3418423 (S.D. Cal. Aug. 26, 2010). 3 without merit. 4 It is therefore The ALJ’s finding that Plaintiff’s mental impairments were 5 not severe was thus supported by substantial evidence in the 6 record and free of the legal errors alleged by Plaintiff. 7 433 F.3d at 687. 8 9 10 11 b. Webb, Any error in finding Plaintiff’s cognitive impairments not severe would have been harmless As noted above, the step-two inquiry is “a de minimis 12 screening device to dispose of groundless claims” when a 13 claimant’s impairments are not severe. 14 When a claimant is found to have any severe impairment, the ALJ 15 is required to consider the functional effect of all his 16 impairments, both severe and nonsevere. 17 374184, at *5 (July 2, 1996) (“In assessing RFC, the adjudicator 18 must consider limitations and restrictions imposed by all of an 19 individual’s impairments, even those that are not ‘severe.’”); 20 see also Gray, 365 F. App’x at 61 (no reversible error in ALJ’s 21 step-two determination that certain impairments were nonsevere 22 when ALJ found other severe impairments and considered but 23 discredited nonsevere impairments at step five). 24 circumstances, any step-two error is harmless. 25 Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (as amended) (any step- 26 two error would be rendered harmless by ALJ’s consideration of 27 nonsevere impairments at step four); Bickell v. Astrue, 343 F. 28 App’x 275, 278 (9th Cir. 2009) (same). 21 Smolen, 80 F.3d at 1290. See SSR 96-8p, 1996 WL In such See Lewis v. 1 The ALJ found Plaintiff to have other severe impairments 2 (see AR 23) and expressly considered the “entire record” in 3 assessing his RFC (AR 24), including evidence of his mental 4 health provided not only by Drs. Donohue and Campbell but also 5 Dr. Moore and psychiatrists Khushro Unwalla and Han Nguyen, among 6 others (AR 26-29). 7 limitation” in the area of “concentration, persistence[, and] 8 pace” (AR 24), a finding that was apparently based in part on the 9 opinions of Drs. Donohue and Campbell (see AR 27-29 (citing He found at step two that Plaintiff had “mild 10 medical evidence from Drs. Han Nguyen, Matthew MacKay, Imelda 11 Alfonso, Jon Porter, Donohue, Campbell, and Unwalla)).13 12 Thus, the ALJ’s determination as to the severity of 13 Plaintiff’s mental condition had no effect on his obligation to 14 review and consider all evidence of record, which he did.14 15 AR 24, 31 (“[a]lthough [Plaintiff’s] alleged symptoms and 16 limitations are not entirely supported by the objective medical 17 evidence, I have considered them”).) (See Accordingly, even had the 18 13 19 20 21 22 23 24 25 26 27 28 Dr. Donohue assessed a “moderate” limitation in maintaining “persistence and pace in a normal workplace setting” but otherwise assessed no more than mild impairments. (AR 37374.) Dr. Campbell assessed moderate limits in “relating appropriately to the public, supervisors, and coworkers” and in withstanding “the stress and changes associated with an eighthour workday and day-to-day work activities.” (AR 433.) She otherwise found Plaintiff to have no more than mild limitations. (AR 433.) 14 Plaintiff does not argue that the ALJ erred at step two by failing to give sufficient weight to any of the other medical opinions in the record, some of which support greater restrictions than do those of Drs. Campbell and Donohue. (See J. Stip. at 5 n.2 (citing AR 88-94, 114-16, 368-76, 428-37, 508-14, 522-27).) To the contrary, Plaintiff has stipulated that “the ALJ fairly and accurately summarized the medical and non-medical evidence of record” except as to Drs. Donohue and Campbell. (See id. at 4.) 22 1 ALJ erred at step two, any such error would have been harmless. 2 Plaintiff also contends that the ALJ erred by omitting the 3 mental limitations opined by Drs. Campbell and Donohue from his 4 RFC. 5 err in rejecting any mental limitations, but even if he had it 6 would not have provided grounds for reversal. 7 the VE testified that a hypothetical individual with Plaintiff’s 8 physical limitations15 who was limited to “non-public, simple, 9 repetitive tasks with non-intense and superficial interaction (See J. Stip. at 10.) As discussed above, the ALJ did not At the hearing, 10 with others” could perform three unskilled sedentary jobs 11 existing in significant numbers in the national economy: 12 addresser (DOT 209.587-010, 1991 WL 671797 (Jan. 1, 2016)), 13 assembler (DOT 726.684-034, 1991 WL 679599 (Jan. 1, 2016)), and 14 document preparer (DOT 249.587-018, 1991 WL 672349 (Jan. 1, 15 2016)). (AR 59-60.) 16 Plaintiff argues that an RFC consistent with the 17 hypothetical that limited him to “simple repetitive tasks” 18 without significant interaction with others would not “adequately 19 20 21 22 23 24 25 26 27 28 15 The physical limitations in the hypothetical are actually more restrictive than those ultimately contained in Plaintiff’s RFC. (Compare AR 59-60 (hypothetical individual able to “lift and/or carry 20 pounds occasionally and 10 pounds frequently,” “stand and/or walk for four-hours in an eight-hour period with the use of a single pointed cane,” “frequently perform simple gripping and frequently perform distal fine coordinating movements with the left . . . hand and fingers,” occasionally “balance,” “walk over uneven terrain,” and “operate foot controls with the left foot” but never “work at heights,” “climb ladders, ropes, or scaffolds” or do “work requiring excellent visual acuity”), with AR 24 (RFC finding that Plaintiff “does not require a cane in order to stand or ambulate” and could “occasionally climb” but never “climb ladders, ropes, or scaffolds, or work at unprotected heights”; no restrictions on visual acuity or use of left hand or fingers).) 23 1 address the limitations identified by Drs. Donohue and Campbell.” 2 (J. Stip. at 12 n.3.) 3 proposition that impairment in “concentration, persistence, or 4 pace” or “interaction with coworkers” is insufficiently addressed 5 by an RFC assessing limitations to simple, repetitive tasks or 6 unskilled work. 7 cases the ALJ found the plaintiff’s mental impairments fully 8 credible. 9 890 (9th Cir. 2015) (citation omitted) (remanding because RFC He cites several cases in support of the (See id.) But — crucially — in each of those See Bagby v. Comm’r of Soc. Sec., 606 F. App’x 888, 10 “failed to include all of [plaintiff’s] credible limitations”); 11 Brink v. Comm’r Soc. Sec. Admin, 343 F. App’x 211, 212 (9th Cir. 12 2009) (reversal warranted when ALJ “accepted medical evidence 13 that [plaintiff] ha[d] moderate difficulty maintaining 14 concentration, persistence, or pace” but hypothetical to VE 15 included only limitation to “simple, repetitive work”); Juarez v. 16 Colvin, No. CV 13-2506 RNB., 2014 WL 1155408, at *7 (C.D. Cal. 17 Mar. 20, 2014) (restriction to “simple tasks” did not adequately 18 reflect ALJ’s “express[]” finding, “consistent with the opinion 19 of a state agency review physician,” that plaintiff had “moderate 20 limitation in maintaining concentration, persistence, and pace”). 21 Unlike in those cases, the ALJ did not find the degree of 22 Plaintiff’s alleged cognitive impairments fully credible, a 23 finding that — as discussed above — was supported by substantial 24 evidence, including Drs. Donohue’s and Campbell’s own findings. 25 (See AR 373 (Dr. Donohue cautioning that “[Plaintiff] is showing 26 significant symptoms for an excess of what would be expected” 27 with his medical history), 432 (Dr. Campbell stating, “[t]his 28 test result is not considered to be a reliable estimation of 24 1 2 [Plaintiff’s] cognitive or psychological functioning”).) The Ninth Circuit has made clear that an ALJ’s assessment 3 limiting the plaintiff to simple tasks “adequately captures 4 restrictions related to concentration, persistence, or pace” when 5 it is “consistent with the restrictions identified in the medical 6 testimony.” Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th 7 Cir. 2008). This is so even when the restrictions are “moderate” 8 rather than mild. 9 limitations adequately captured by restriction to “simple,” See id. at 1173-74 (“moderate” mental 10 “repetitive,” “routine” work); see also McGarrah v. Colvin, 650 11 F. App’x 480, 481 (9th Cir. 2016) (“[Plaintiff’s] RFC to perform 12 simple tasks adequately captured her moderate limitations”; 13 finding that unskilled jobs listed in DOT met this standard). 14 The hypothetical posed to the VE met the applicable 15 standard. 16 “unskilled,” meaning that they “need[] little or no judgment to 17 do simple duties that can be learned on the job in a short period 18 of time.” 19 not mention interaction with the public, and none require 20 significant social skills of any kind. 21 WL 671797 (“Addresser”; “[p]eople” skills rated “[n]ot 22 [s]ignificant”); DOT 726.684-034, 1991 WL 679599 (“Assembler, 23 [s]emiconductor”; same); DOT 249.587-018, 1991 WL 672349 24 (“Document [p]reparer, [m]icrofilming”; same). 25 had fully credited the moderate limitations opined by Drs. 26 Donohue and Dr. Campbell — which he did not — and incorporated 27 them into Plaintiff’s RFC, he still would have found him able to 28 perform the jobs identified in the VE’s testimony, thereby (See AR 59-60.) See § 416.968(a). The three jobs listed are all Their descriptions in the DOT do 25 See DOT 209.587-010, 1991 Even if the ALJ 1 precluding a finding of disability. 2 this ground would therefore have been harmless. 3 F.3d at 1111, 1115. 4 VI. 5 (See AR 60.) Any error on See Molina, 674 CONCLUSION Consistent with the foregoing and under sentence four of 42 6 U.S.C. § 405(g),16 IT IS ORDERED that judgment be entered 7 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 8 request for remand, and GRANTING judgment in Defendant’s favor. 9 10 DATED: October 1, 2018 11 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 16 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 26
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