Valerie Corona v. Nancy A. Berryhill, No. 5:2017cv02209 - Document 29 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Gail J. Standish. For all of the foregoing reasons, IT IS ORDERED that: (1) the decision of the Commissioner is AFFIRMED and this action is DISMISSED WITH PREJUDICE; and (2) Judgment be entered in favor of the Commissioner. (ec)
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Valerie Corona v. Nancy A. Berryhill Doc. 29 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Case No. 5:17-cv-02209-GJS VALERIE C., Plaintiff 12 MEMORANDUM OPINION AND ORDER v. 13 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 I. 17 PROCEDURAL HISTORY Plaintiff1 filed a complaint seeking review of Defendant Commissioner of 18 19 Social Security’s (“Commissioner”) denial of her application for Supplemental 20 Security Income (“SSI”). The parties filed consents to proceed before the 21 undersigned United States Magistrate Judge [Dkts. 11, 12] and briefs addressing 22 disputed issues in the case [Dkt. 16 (“Pltf.’s Br.”), Dkt. 23 (“Def.’s Br.”), and Dkt. 23 24 (“Pltf.’s Reply)]. The Court has taken the parties’ briefing under submission 24 without oral argument. For the reasons discussed below, the Court finds that this 25 matter should be affirmed. 26 27 28 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. Dockets.Justia.com 1 2 II. ADMINISTRATIVE DECISION UNDER REVIEW On October 31, 2013, Plaintiff filed an application for SSI, alleging that she 3 became disabled as of March 31, 2013. [Dkt. 15, Administrative Record (“AR”) 26, 4 222.] The Commissioner denied her initial claim for benefits on May 22, 2014. 5 [AR 23; 101, 108.] On May 24, 2016, a hearing was held before Administrative 6 Law Judge (“ALJ”) Joseph P. Lisiecki. [AR 47-64.] On July 8, 2016, the ALJ 7 issued a decision denying Plaintiff’s request for benefits. [AR 26-38.] Plaintiff 8 requested review from the Appeals Council, which denied review on August 25, 9 2017. [AR 1-5.] 10 Applying the five-step sequential evaluation process, the ALJ found that 11 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 12 ALJ concluded that Plaintiff has not engaged in substantial gainful activity since 13 October 21, 2013, the application date. [AR 28 (citing 20 C.F.R. § 416.971).] At 14 step two, the ALJ found that Plaintiff suffered from the following severe 15 impairments: chronic obstructive pulmonary disease (COPD), lumbar degenerative 16 disc disease; hepatitis c; adjustment disorder with mixed anxiety and depressed 17 mood; and polysubstance dependence. [Id. (citing 20 C.F.R. § 416.920(c)).] Next, 18 the ALJ determined that Plaintiff did not have an impairment or combination of 19 impairments that meets or medically equals the severity of one of the listed 20 impairments. [AR 29 (citing 20 C.F.R. Part 404, Subpart P, Appendix 1; 20 C.F.R. 21 §§ 416.920(d), 416.925, and 416.926.] 22 23 24 25 26 27 28 The ALJ found that Plaintiff had the following residual functional capacity (RFC) to: Occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for 6 hours in an 8-hour workday; sit for 6 hours in an 8-hour workday; occasionally perform posturals except never climb ladders, ropes, or scaffolds; no unprotected heights or dangerous machinery; no concentrated exposure to fumes, odors, dusts, gases, pulmonary irritants, extreme temperatures hot or cold, or vibration; simple repetitive tasks, object-oriented so no work with the 2 general public; occasional interaction with coworkers and supervisors; and not responsible for safety related operations. 1 2 3 [AR 30.] Applying this RFC, the ALJ found that Plaintiff had no past relevant 4 work, but she could perform other work as a mail sorter (DOT 209.687-026) or a 5 swatch clerk (DOT 222.587-050), and, thus, is not disabled. [AR 37.] III. 6 GOVERNING STANDARD Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 7 8 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 9 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 10 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 11 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 12 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 13 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 14 also Hoopai, 499 F.3d at 1074. The Court will uphold the Commissioner’s decision 15 when the evidence is susceptible to more than one rational interpretation. Burch v. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only 17 the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a 18 ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 19 2007). IV. 20 21 1. DISCUSSION Plaintiff’s Mental RFC Determination 22 In her opening brief, Plaintiff asserts that the ALJ’s mental RFC determination is 23 flawed because (1) the ALJ implicitly rejected Dr. Bagner’s psychiatric consultative 24 opinion that Plaintiff is “limited in her ability to deal with work pressure in a usual 25 work setting” and (2) the ALJ failed to adequately account for her moderate 26 limitations in concentration, persistence, or pace. The Court addresses each claim in 27 turn. 28 /// 3 1 A. The ALJ’s Assessment of Dr. Bagner’s Examining Opinion 2 Plaintiff first argues that the ALJ failed to accommodate Dr. Bagner’s 3 assessment that she is moderately limited in her ability to respond to work pressure 4 in a routine work setting. As to Dr. Bagner’s opinion, the ALJ stated: 5 14 Ernest Bagner III, M.D., the psychiatric consultative examiner, concluded that the claimant’s ability to follow simple, oral, and written instructions was not limited. Her ability to follow detailed instructions was mildly limited. Her ability to interact appropriately with the public, coworkers, and supervisors was mildly limited. Her ability to comply with job rules, such as safety and attendance was not limited. Her ability to respond to changes in a routine work setting was mildly limited. Her ability to respond to work pressure in a usual work setting was moderately limited. Her daily activities were mildly limited. Although not inconsistent with the evidence, giving the claimant all reasonable consideration, the undersigned gives less weight to these opinions and adopts a more restrictive residual functional capacity above. 15 [AR 35.] 6 7 8 9 10 11 12 13 16 Plaintiff contends that although the ALJ found that Dr. Bagner’s opinion was 17 consistent with the evidence, the ALJ implicitly rejected Dr. Bagner’s findings, in 18 part, without adequate explanation. The Commissioner responds that the ALJ did 19 not reject Dr. Bagner’s findings, but rather accommodated Plaintiff’s difficulties 20 with work pressure by including limitations on task complexity and social 21 interaction in Plaintiff’s RFC. 22 Plaintiff’s argument that the ALJ erred by silently rejecting some of Dr. 23 Bagner’s specific limitations is unpersuasive. An ALJ may synthesize and translate 24 assessed limitations into an RFC assessment without repeating each functional 25 limitation verbatim in the RFC assessment. Stubbs-Danielson v. Astrue, 539 F.3d 26 1169, 1173-74 (9th Cir. 2008); see also 20 C.F.R. § 404.1545 (defining RFC as “the 27 most you can still do despite your limitations”). Here, the ALJ restricted Plaintiff to 28 simple repetitive tasks without rejecting any specific limitations opined by Dr. 4 1 Bagner. Instead, the ALJ assessed greater limitations than those found by Dr. 2 Bagner when formulating Plaintiff’s RFC. By assessing more restrictions than Dr. 3 Bagner, the rational inference is that the ALJ in this case intended to adopt all of the 4 moderate limitations in mental functioning opined by Dr. Bagner— including 5 limitations in responding to work pressure—by generally finding that Plaintiff can 6 perform simple repetitive work with limited interaction and responsibilities. See 7 Stubbs-Danielson, 539 F.3d at 1174-76 (the court may presume from a general 8 finding of simple routine work that all moderate limitations are included in that 9 finding). 10 This presumption is supported by substantial evidence in the record cited by 11 the ALJ when formulating Plaintiff’s mental RFC. As Dr. Bagner’s report reflects, 12 Plaintiff is not taking any psychiatric medications and she has not sought any 13 outpatient psychiatric treatment for over 10 years. [AR 555.] During her 14 examination with Dr. Bagner, Plaintiff presented with a depressed mood, but as the 15 ALJ noted, her mental status examination findings “were generally unremarkable.” 16 [AR 36, 554-558.] Dr. Bagner further assessed a GAF score of 65, suggesting that 17 Plaintiff was “generally functioning pretty well.” See DSM-IV-TR. Additionally, 18 the State agency reviewing physicians found that Plaintiff did not have a severe 19 mental impairment and she had no more than mild limitations in the four broad 20 functional areas of mental impairment. [AR 91]; see also Thomas v. Barnhart, 278 21 F.3d 947, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining 22 physicians may also serve as substantial evidence when the opinions are consistent 23 with independent clinical findings or other evidence in the record.”). Accordingly, 24 the Court concludes that the ALJ’s finding that Plaintiff could perform a range of 25 simple repetitive work encompasses Dr. Bagner’s concern about Plaintiff’s ability to 26 respond to work pressure. 27 /// 28 /// 5 1 B. Moderate Limitations in Concentration, Persistence, or Pace 2 Next, Plaintiff argues that the ALJ erred by failing to account for her 3 moderate limitations in concentration, persistence or pace when formulating her 4 mental RFC. Plaintiff cites Brink v. Comm’r of Soc. Sec. Admin., 343 Fed. Appx. 5 211 (9th Cir. 2009), for support. See id. The Commissioner, relying on Stubbs- 6 Danielson, responds that the ALJ’s RFC determination limiting Plaintiff to “simple, 7 repetitive, object-oriented tasks; no work with the general public; only occasional 8 interaction with coworkers and supervisors; and no responsibility for safety-related 9 operations” adequately encompassed Plaintiff’s moderate limitations in 10 11 concentration, persistence, or pace. As recently noted in Juanita S. v. Berryhill, the distinction between the Ninth 12 Circuit’s decision in Stubbs-Danielson and Brink is “well -worn track.” 2018 U.S. 13 Dist. LEXIS 163468, at *6 (C.D. Cal. Sep. 24, 2018). In Stubbs-Danielson, the 14 circuit court concluded that moderate pace limitations may translate into a “simple 15 task” RFC without additional conditions. Stubbs-Danielson, 539 F.3d at 1173-74. 16 That is, an ALJ can “account[ ] for [a claimant’s] moderate functional limitations in 17 the residual functional capacity” with a simple work limit. Mitchell v. Colvin, 642 18 F. App’x 731, 733 (9th Cir. 2016); see also Duran v. Berryhill, No. CV 16-7416 19 JPR, 2017 U.S. Dist. LEXIS 91707, 2017 WL 2588069 at * 8 (C.D. Cal. 2017) 20 (claimant’s moderate impairments were properly translated by the ALJ into an RFC 21 for “‘simple, repetitive tasks’ with limitations on fast-paced work, teamwork, and 22 contact with the public, coworkers, and supervisors”). 23 On the other hand, a simple work RFC may not adequately address a 24 claimant’s personal situation. When an ALJ finds that a claimant has a moderate 25 limitation in maintaining concentration, persistence, and pace, merely limiting the 26 claimant’s potential work to “simple, repetitive work” without including other 27 limitations can be error. Brink, 343 F. App’x. 211, 212 (9th Cir. 2009) (“The 28 Commissioner’s contention that the phrase ‘simple, repetitive work’ encompasses 6 1 difficulties with concentration, persistence, or pace is not persuasive.”); Lubin v. 2 Comm’r of Soc. Sec. Admin., 507 F.App’x 709, 712 (9th Cir. 2013) (“Although the 3 ALJ found that [the claimant] suffered moderate difficulties in maintaining 4 concentration, persistence, or pace, the ALJ erred by not including this limitation in 5 the residual functional capacity determination or in the hypothetical question to the 6 vocational expert.”). 7 Following Brink, recent unpublished Ninth Circuit cases have declined to cite 8 Brink and rely instead on Stubbs-Danielson to find that “simple task” hypotheticals 9 can encompass concentration, persistence, and pace limitations. In Israel v. Astrue, 10 494 Fed. App’x 794 (9th Cir. 2012), the Ninth Circuit found that an ALJ’s RFC 11 limitation to “simple tasks” adequately captured moderate limitations in 12 concentration, persistence, or pace. In Sabin v. Astrue, 337 Fed. App’x 617 (9th Cir. 13 2009), the Ninth Circuit determined that an ALJ’s RFC formulation for “simple and 14 repetitive tasks on a consistent basis” was consistent with the claimant’s moderate 15 difficulties in concentration, persistence, or pace, where the plaintiff could complete 16 serial ones, follow a three-step command, and do her own cooking, cleaning, 17 laundry, shopping, and bills. Id. at 621. 18 Here, the ALJ imposed a simple, repetitive work RFC with additional 19 conditions regarding interaction with supervisors and coworkers and no 20 responsibility for safety related work. These limitations are entirely consistent with 21 the medical evidence despite the ALJ’s finding that Plaintiff is moderately limited in 22 her concentration, persistence, and pace. In formulating Plaintiff’s RFC, the ALJ 23 rejected evidence from Plaintiff’s treating psychiatrist that “Plaintiff has an extreme 24 limitation in her ability to perform at a consistent pace.” [AR 36]. The ALJ rejected 25 that treating physician’s opinion because it was inconsistent with the “generally 26 unremarkable mental status examinations” conducted by Dr. Bagner who found that 27 Plaintiff’s ability to follow simple, oral and written instructions was not limited and 28 7 1 Plaintiff’s ability to follow detailed instruction was only mildly limited. [AR 36, 2 557.] Moreover, immediately after opining that Plaintiff is moderately limited in 3 4 her concentration, persistence, or pace, the ALJ permissibly questioned Plaintiff’s 5 complaints regarding her ability to concentrate. [AR 29.] The ALJ noted that 6 “Plaintiff alleged that she has difficulty concentrating. However, “[Plaintiff had] 7 enough concentration to perform household chores and read. Moreover, the 8 undersigned observed the claimant throughout the hearing. During the time when 9 the claimant was being questioned, the claimant appeared to understand and process 10 the questions without difficulty as she responded to the questions appropriately and 11 without delay. The claimant paid attention throughout the hearing.” [AR 29.] This 12 was an appropriate consideration. Although the Ninth Circuit has disapproved of so called “sit and squirm,” 13 14 jurisprudence, the inclusion of the ALJ’s observations does not render the decision 15 improper. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (“The ALJ’s 16 reliance on his personal observations at the hearing has been condemned as ‘sit and 17 squirm’ jurisprudence”); but see Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 18 1999) (although Ninth Circuit has disapproved of so-called “sit and squirm” 19 jurisprudence, the inclusion of the ALJ’s observations does not render the decision 20 improper; ALJ did not comment on fact that claimant failed to manifest symptoms 21 of pain at the hearing, but rather on the claimant’s symptoms that were inconsistent 22 with the medical record and with other behavior exhibited at the hearing). Here, the 23 ALJ’s observation of Plaintiff’s ability to concentrate and to answer questions 24 during the hearing is one more piece of evidence supporting the weight of the 25 medical evidence from the examining and reviewing physicians that Plaintiff can 26 perform simple, repetitive work despite her moderate impairments in concentration, 27 persistence, or pace. 28 /// 8 1 Given the ALJ’s observations, the ultimate RFC finding, and the recent 2 authority, the Court concludes that the ALJ’s RFC adequately captured Plaintiff’s 3 moderate limitations related to concentration, persistence, and pace. See Stubbs- 4 Danielson, 539 F.3d at 1174 (“[A]n ALJ’s assessment of a claimant adequately 5 captures restrictions related to concentration, persistence, or pace where the 6 assessment is consistent with restrictions identified in the medical testimony.”); see 7 also Turner v. Berryhill, 705 F. App’x 495, 498 (9th Cir. 2017) (A hypothetical 8 question posed by a VE need not “separately mention[ ] [a claimant’s] moderate 9 difficulties in concentration, persistence, or pace” where the question limits the 10 claimant to performing simple, routine tasks.); Kehm v. Berryhill, No. 2:16–cv– 11 01918 AC, 2018 WL 1392887, at *6 (E.D. Cal. Mar. 20, 2018) (“To the extent 12 plaintiff argues that the ALJ’s hypothetical to the VE was incomplete because it did 13 not specifically include a limitation on concentration, persistence, or pace, such an 14 argument is inconsistent with the rule in the Ninth Circuit.”) (citing Hoopai v. 15 Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007; Allain v. Astrue, No. CV 09–00810– 16 MLG, 2009 WL 3514424, at *2 (C.D. Cal. Oct. 27, 2009) (holding that the ALJ 17 properly translated moderate difficulties in concentration, persistence, or pace at 18 Step Three into questions to the VE by limiting the claimant to work involving 19 “simple, routine tasks”). On this record, Plaintiff has failed to demonstrate that the 20 ALJ failed to adequately translate her moderate limitations in concentration, 21 persistence, or pace when formulating her RFC. Remand is therefore not required. 22 B. Plaintiff’s Physical RFC Determination 23 In her second issue, Plaintiff argues that the ALJ failed to properly assess her 24 physical RFC. Specifically, Plaintiff contends that the ALJ “discounted every single 25 medical opinion outright and [instead] based the RFC on his own opinion evidence 26 of record.” (Dkt. 16 at 16). The Commissioner responds that the ALJ did not 27 broadly reject all of the medical evidence. Rather, the ALJ largely adopted the 28 opinions of the internal consultative examiner and the state agency reviewing 9 1 physicians, but ultimately adopted greater functional restrictions than those found by 2 the examining and reviewing physicians. (Dkt. 23 at 5-8). 3 Here, the ALJ provided a detailed review of the medical evidence, including 4 the opinions of the two State agency reviewing physicians and the two consultative 5 examining physicians, all who opined Plaintiff could perform a range of medium or 6 light work. [AR 35-36,74-75, 93-94, 512, 551, 626-627.] In weighing the evidence, 7 the first ALJ rejected the treating opinion of Dr. Sik Tjan as inconsistent with the 8 record. Dr. Tjan opined that Plaintiff can only stand and walk for 1 hour in an 8- 9 hour workday and she is unable to work because of her condition. [AR 35, 512.] 10 The ALJ declined to credit Dr. Tjan’s opinion because it was inconsistent “with the 11 record as a whole, specifically the generally unremarkable physical examinations 12 and minor MRI/x-ray findings.” [AR 36.] The ALJ then largely adopted Dr. 13 Karamlou’s examining opinion who assessed that Plaintiff could perform light 14 work. [AR 35, 551.] The ALJ further noted that examining orthopedist Vicente R. 15 Bernabe found that Plaintiff could perform a range of medium work, and the State 16 agency medical consultants opined that Plaintiff could perform restricted ranges of 17 light work. [AR 35-36, 74-75, 93-94, 551, 670-71.] In light of this evidence, the 18 ALJ gave Plaintiff the benefit of the doubt and fashioned a more-restrictive, limited 19 range-of-light-work RFC than opined by the agency and examining physicians. [AR 20 30.] Thus, contrary to Plaintiff’s assertion, the RFC was not merely the ALJ’s own 21 opinion but was based on the majority of medical opinions concluding that Plaintiff 22 could perform work. 23 Further, Plaintiff fails to show that any other credited opinion supports a 24 finding for a more restrictive RFC than fashioned by the ALJ. See Matthews v. 25 Shalala, 10 F.3d 678, 680 (9th Cir. 1993) (substantial evidence supported finding 26 claimant, although impaired, was not disabled and could perform a range of medium 27 work because “[n]one of the doctors who examined [claimant] expressed the 28 opinion that he was totally disabled”). Because Plaintiff does not challenge the 10 1 ALJ’s treatment of the treating physician evidence and the ALJ’s final RFC 2 determination is more limited than the physical functionality opinions of all of the 3 other examining and reviewing physicians, Plaintiff cannot show harm by the ALJ’s 4 weighing of their opinions. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“the 5 burden of showing that an error is harmful normally falls upon the party attacking 6 the agency’s determination”). 7 Finally, it is well established that the RFC determination is not a medical 8 opinion, but a legal decision that is expressly reserved for the Commissioner. See 9 20 C.F.R. §§ 416.927(d)(2) (RFC is not a medical opinion and is a decision reserved 10 for the Commissioner), 416.946(c) (identifying the ALJ as responsible for 11 determining RFC); Lynch Guzman v. Astrue, 365 F. App’x 869, 870 (9th Cir. 2010) 12 (a claimant’s RFC “is an administrative finding reserved to the Commissioner”); 13 Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001) (“It is clear that it is the 14 responsibility of the ALJ, not the claimant’s physician, to determine [RFC].”). 15 Contrary to Plaintiff’s argument, the ALJ’s physical RFC determination was 16 supported by substantial evidence demonstrating that Plaintiff could perform a 17 restricted range of light work and therefore remand is not warranted on this basis. V. 18 CONCLUSION 19 For all of the foregoing reasons, IT IS ORDERED that: 20 (1) the decision of the Commissioner is AFFIRMED and this action is 21 22 DISMISSED WITH PREJUDICE; and (2) Judgment be entered in favor of the Commissioner. 23 24 IT IS SO ORDERED. 25 26 27 DATED: February 5, 2019 __________________________________ GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 28 11
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