Sylvia Zendejas v. Nancy A. Berryhill, No. 5:2019cv00014 - Document 18 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Paul L. Abrams. IT IS HEREBY ORDERED that: (1) plaintiffs request for remand is denied; and (2) thedecision of the Commissioner is affirmed. (See document for details.) (sbou)
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Sylvia Zendejas v. Nancy A. Berryhill Doc. 18 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 SYLVIA Z., 13 Plaintiff, 14 15 16 v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, 17 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. ED CV 19-14-PLA MEMORANDUM OPINION AND ORDER 18 19 I. 20 PROCEEDINGS 21 Sylvia Z.1 (“plaintiff”) filed this action on January 3, 2019, seeking review of the 22 Commissioner’s2 denial of her applications for Disability Insurance Benefits (“DIB”) and 23 Supplemental Security Income (“SSI”) payments. The parties filed Consents to proceed before 24 25 26 27 28 1 In the interest of protecting plaintiff’s privacy, this Memorandum Opinion and Order uses plaintiff’s (1) first name and last initial, and (2) year of birth in lieu of a complete birth date. See Fed. R. Civ. P. 5.2(c)(2)(B), Local Rule 5.2-1. 2 Pursuant to Federal Rule of Civil Procedure 25(d), Andrew M. Saul, Commissioner of the Social Security Administration, is hereby substituted as the defendant herein. Dockets.Justia.com 1 a Magistrate Judge on January 31, 2019, and February 20, 2019. Pursuant to the Court’s Order, 2 the parties filed a Joint Submission (alternatively “JS”) on September 5, 2019, that addresses their 3 positions concerning the disputed issues in the case. The Court has taken the Joint Submission 4 under submission without oral argument. 5 6 II. 7 BACKGROUND 8 9 Plaintiff was born in 1954. [Administrative Record (“AR”) at 208, 210.] She has past relevant work experience as an administrative clerk. [Id. at 32, 45-47.] 10 Plaintiff protectively filed an application for a period of disability and DIB, and an application 11 for SSI payments, on January 9, 2015, and January 15, 2015, respectively, alleging that she has 12 been unable to work since February 28, 2013. [Id. at 19; see also id. at 208-09, 210-16.] After 13 her applications were denied initially and upon reconsideration, plaintiff timely filed a request for 14 a hearing before an Administrative Law Judge (“ALJ”). [Id. at 140-42.] A hearing was held on 15 November 29, 2017, at which time plaintiff appeared represented by an attorney, and testified on 16 her own behalf. [Id. at 40-67.] A vocational expert (“VE”) also testified. [Id. at 45-47, 63-66.] On 17 February 2, 2018, the ALJ issued a decision concluding that plaintiff was not under a disability 18 from February 28, 2013, the alleged onset date, through February 2, 2018, the date of the 19 decision. [Id. at 19-34.] Plaintiff requested review of the ALJ’s decision by the Appeals Council. 20 [Id. at 204-06.] When the Appeals Council denied plaintiff’s request for review on November 6, 21 2018 [id. at 1-5], the ALJ’s decision became the final decision of the Commissioner. See Sam v. 22 Astrue, 550 F.3d 808, 810 (9th Cir. 2008) (per curiam) (citations omitted). This action followed. 23 24 III. 25 STANDARD OF REVIEW 26 Pursuant to 42 U.S.C. § 405(g), this Court has authority to review the Commissioner’s 27 decision to deny benefits. The decision will be disturbed only if it is not supported by substantial 28 evidence or if it is based upon the application of improper legal standards. Berry v. Astrue, 622 2 1 F.3d 1228, 1231 (9th Cir. 2010) (citation omitted). 2 “Substantial evidence . . . is ‘more than a mere scintilla[,]’ . . . [which] means -- and means 3 only -- ‘such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.’” Biestek v. Berryhill, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d 504 (2019) (citations 5 omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017). “Where evidence is susceptible 6 to more than one rational interpretation, the ALJ’s decision should be upheld.” Revels, 874 F.3d 7 at 654 (internal quotation marks and citation omitted). However, the Court “must consider the 8 entire record as a whole, weighing both the evidence that supports and the evidence that detracts 9 from the Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum 10 of supporting evidence.” Id. (quoting Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) 11 (internal quotation marks omitted)). The Court will “review only the reasons provided by the ALJ 12 in the disability determination and may not affirm the ALJ on a ground upon which he did not rely.” 13 Id. (internal quotation marks and citation omitted); see also SEC v. Chenery Corp., 318 U.S. 80, 14 87, 63 S. Ct. 454, 87 L. Ed. 626 (1943) (“The grounds upon which an administrative order must 15 be judged are those upon which the record discloses that its action was based.”). 16 17 IV. 18 THE EVALUATION OF DISABILITY 19 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable 20 to engage in any substantial gainful activity owing to a physical or mental impairment that is 21 expected to result in death or which has lasted or is expected to last for a continuous period of at 22 least twelve months. Garcia v. Comm’r of Soc. Sec., 768 F.3d 925, 930 (9th Cir. 2014) (quoting 23 42 U.S.C. § 423(d)(1)(A)). 24 25 A. THE FIVE-STEP EVALUATION PROCESS 26 The Commissioner (or ALJ) follows a five-step sequential evaluation process in assessing 27 whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920; Lounsburry v. Barnhart, 468 28 F.3d 1111, 1114 (9th Cir. 2006) (citing Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999)). 3 1 In the first step, the Commissioner must determine whether the claimant is currently engaged in 2 substantial gainful activity; if so, the claimant is not disabled and the claim is denied. Lounsburry, 3 468 F.3d at 1114. If the claimant is not currently engaged in substantial gainful activity, the 4 second step requires the Commissioner to determine whether the claimant has a “severe” 5 impairment or combination of impairments significantly limiting her ability to do basic work 6 activities; if not, a finding of nondisability is made and the claim is denied. Id. If the claimant has 7 a “severe” impairment or combination of impairments, the third step requires the Commissioner 8 to determine whether the impairment or combination of impairments meets or equals an 9 impairment in the Listing of Impairments (“Listing”) set forth at 20 C.F.R. § 404, subpart P, 10 appendix 1; if so, disability is conclusively presumed and benefits are awarded. Id. If the 11 claimant’s impairment or combination of impairments does not meet or equal an impairment in the 12 Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient 13 “residual functional capacity” to perform her past work; if so, the claimant is not disabled and the 14 claim is denied. Id. The claimant has the burden of proving that she is unable to perform past 15 relevant work. Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). If the claimant meets 16 this burden, a prima facie case of disability is established. Id. The Commissioner then bears 17 the burden of establishing that the claimant is not disabled because there is other work existing 18 in “significant numbers” in the national or regional economy the claimant can do, either (1) by 19 the testimony of a VE, or (2) by reference to the Medical-Vocational Guidelines at 20 C.F.R. part 20 404, subpart P, appendix 2. Lounsburry, 468 F.3d at 1114. The determination of this issue 21 comprises the fifth and final step in the sequential analysis. 20 C.F.R. §§ 404.1520, 416.920; 22 Lester v. Chater, 81 F.3d 721, 828 n.5 (9th Cir. 1995); Drouin, 966 F.2d at 1257. 23 24 25 B. THE ALJ’S APPLICATION OF THE FIVE-STEP PROCESS At step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since 26 27 28 4 1 February 28, 2013, the alleged onset date.3 [AR at 21.] At step two, the ALJ concluded that 2 plaintiff has the severe impairments of degenerative disc disease in the cervical spine; bilateral 3 shoulder impingement; bilateral osteoarthritis of the knees; carpal tunnel syndrome; and obesity. 4 [Id. at 22.] He also determined that plaintiff did not have a medically determinable mental 5 impairment. [Id. at 23.] At step three, the ALJ determined that plaintiff does not have an 6 impairment or a combination of impairments that meets or medically equals any of the impairments 7 in the Listing. [Id.] The ALJ further found that plaintiff retained the residual functional capacity 8 (“RFC”)4 to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b),5 as follows: 9 12 [Can] lift and/or carry, push and pull twenty pounds occasionally and ten pounds frequently; can stand and/or walk for four hours in an eight-hour workday, for one hour at a time, then sit for a few minutes before standing and walking again; could sit for six hours in an eight-hour workday; can occasionally climb ramps and stairs but could not climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, or crawl; could do frequent handling and fingering with bilateral upper extremities; and could do occasional above-shoulder work with bilateral extremities. 13 [Id. at 24.] At step four, based on plaintiff’s RFC and the testimony of the VE, the ALJ concluded 14 that plaintiff is able to perform her past relevant work as an administrative clerk. [Id. at 32.] He 15 also determined that plaintiff had learned transferable skills in her past relevant work that would 16 transfer to the job of receptionist, a sedentary position that requires occasional fingering bilaterally 17 and frequent handling. [Id. at 33.] Accordingly, the ALJ determined that plaintiff was not disabled 10 11 18 19 20 3 The ALJ concluded that plaintiff met the insured status requirements of the Social Security Act through December 31, 2018. [AR at 21.] 4 21 22 23 24 25 26 27 28 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. See Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007) (citation omitted). 5 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. §§ 404.1567(b), 416.967(b). 5 1 at any time from the alleged onset date of February 28, 2013, through February 2, 2018, the date 2 of the decision. [Id. at 34.] 3 4 V. 5 THE ALJ’S DECISION 6 Plaintiff contends that the ALJ erred when he: (1) rejected the opinion of the consultative 7 psychiatrist Ernest Bagner, M.D. and determined at step two that plaintiff did not have a medically 8 determinable mental impairment; and (2) rejected plaintiff’s subjective symptom testimony 9 regarding fingering and handling limitations. [JS at 4.] As set forth below, the Court respectfully 10 disagrees with plaintiff and affirms the decision of the ALJ. 11 12 A. THE ALJ’S STEP TWO FINDING 13 1. Legal Standard 14 At step two of the five-step process, plaintiff has the burden to provide evidence of a 15 medically determinable physical or mental impairment that is severe and that has lasted or can 16 be expected to last for a continuous period of at least twelve months. Ukolov v. Barnhart, 420 17 F.3d 1002, 1004-05 (9th Cir. 2005) (citing 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D)); see generally 18 Bowen v. Yuckert, 482 U.S. 137, 148, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987) (Secretary may 19 deny Social Security disability benefits at step two if claimant does not present evidence of a 20 “medically severe impairment”). A medically determinable physical or mental impairment “must 21 result from anatomical, physiological, or psychological abnormalities that can be shown by 22 medically acceptable clinical and laboratory diagnostic techniques,” and will not be found based 23 solely on the claimant’s statement of symptoms, a diagnosis, or a medical opinion. 20 C.F.R. 24 404.1521 (eff. Mar. 27, 2017). 25 Step two is “a de minimis screening device [used] to dispose of groundless claims.” 26 Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). A “severe” impairment, or combination of 27 impairments, is defined as one that significantly limits physical or mental ability to do basic work 28 activities. 20 C.F.R. § 404.1520. An impairment or combination of impairments should be found 6 1 to be “non-severe” only when the evidence establishes merely a slight abnormality that has no 2 more than a minimal effect on an individual’s physical or mental ability to do basic work activities. 3 Yuckert, 482 U.S. at 153-54 & n.11 (Social Security claimants must make “de minimis” showing 4 that impairment interferes with ability to engage in basic work activities) (citations omitted); Webb 5 v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005); see also 20 C.F.R. § 404.1521(a). “Basic work 6 activities” mean the abilities and aptitudes necessary to do most jobs, including “[p]hysical 7 functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or 8 handling . . . .” 20 C.F.R. § 404.1521(b). It also includes mental functions such as the ability to 9 understand, carry out, and remember simple instructions, deal with changes in a routine work 10 setting, use judgment, and respond appropriately to supervisors, coworkers, and usual work 11 situations. See Soc. Sec. Ruling (“SSR”)6 85-28. 12 When reviewing an ALJ’s findings at step two, the Court “must determine whether the ALJ 13 had substantial evidence to find that the medical evidence clearly established that [the claimant] 14 did not have a medically severe impairment or combination of impairments.” Webb, 433 F.3d at 15 687 (citing Yuckert, 841 F.2d at 306 (“Despite the deference usually accorded to the Secretary’s 16 application of regulations, numerous appellate courts have imposed a narrow construction upon 17 the severity regulation applied here.”)). 18 19 2. Dr. Bagner and the State Agency Reviewing Doctors 20 On May 20, 2015, Dr. Bagner, the psychiatric consultative examiner, conducted a clinical 21 interview and a mental status examination. [AR at 384-85.] He had no medical records to review. 22 [Id. at 385.] He noted plaintiff’s chief complaints of crying spells, difficulty falling asleep, fatigue, 23 low motivation, anxiety attacks, and feelings of depression, as well as her physical complaints that 24 she cannot stand for a long period of time, has arthritis in her knees, and is “falling apart.” [Id. at 25 26 27 28 6 “SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (citations omitted). 7 1 384.] Among other things, Dr. Bagner noted that plaintiff was tearful, cooperative, had normal 2 body movements, had good eye contact, her speech was soft in tone and the rate of speech was 3 slow and emotional, and she was alert and oriented to time, place, person, and purpose. [Id. at 4 386.] He reported that she was able to recall three out of three objects immediately, and one out 5 of three objects in five minutes, she was able to perform serial sevens and serial threes, and was 6 able to spell the word “music” forward and backward. [Id. at 387.] He diagnosed plaintiff with 7 major depressive disorder, anxiety disorder, not otherwise specified, and panic disorder. [Id.] He 8 found her mildly limited in her ability to follow simple, oral and written instructions, to interact 9 appropriately with the public, co-workers, and supervisors, to respond to changes in a routine work 10 setting, and in her daily activities. [Id. at 387-88.] He found her moderately limited in her ability 11 to follow detailed instruction “due to difficulty with short-term memory,” and in her ability to respond 12 to work pressure “due to depression and low motivation.” [Id.] 13 On August 17, 2015, the State Agency reviewing consultant, Pamela Hawkins, Ph.D., 14 reviewed Dr. Bagner’s evaluation and agreed with him that plaintiff was moderately limited in her 15 ability to understand and remember detailed instructions, but found she has “sufficient ability to 16 understand and remember simple and some 3-4 step tasks.” [Id. at 86-87, 90.] On September 17 28, 2015, the State Agency reviewing consultant on reconsideration, Beth Klein, Ph.D., agreed 18 with Dr. Hawkins, and also determined that plaintiff can maintain concentration, pace, and 19 persistence for “simple and some 3-4 step tasks.” [Id. at 113, 117.] Dr. Klein also noted that 20 plaintiff “would be best suited to work with minimal social demands and limited public contact [and] 21 [c]an interact adequately with peers/supervisors,” and “can adapt to a low demand work setting 22 consistent with simple and some detailed work. For greatest success, changes should be 23 introduced gradually.” [Id. at 117.] 24 25 26 27 28 The ALJ gave Dr. Bagner’s opinion “little weight” and determined at step two that plaintiff did not have a medically determinable mental impairment: Although . . . Dr. . . . Bagner[] did diagnose [plaintiff] with major depressive disorder, anxiety disorder, and panic disorder, these findings are not reflected in the remainder of [her] medical record. As discussed in greater detail below, Dr. Bagner’s opinion is given little weight for being inconsistent with the evidence in the record. Furthermore, [plaintiff’s] “Anxiety [was] stable with Lorazepam 0.5 mg as 8 1 4 needed.” [AR at 505, 510.] The manageability of [her] anxiety symptoms is supported by [her] frequent denial of the need to be seen by a psychiatrist and normal mood and affect during appointments. [AR at 501, 507, 514, 516.] Pursuant to SSR 96-4p, symptoms alone cannot establish the existence of an impairment, and [plaintiff’s] record includes insufficient medically acceptable clinical or laboratory diagnostic techniques to support a finding of a medically determinable mental impairment. 5 .... 6 Dr. Bagner’s opinion that [plaintiff] was not limited in her ability to comply with job rules and could manage her own funds is given great weight because it is consistent with the evidence in the record. For example, [plaintiff] reported that she was able to pay bills, count change, and handle a savings account, checkbook, and money orders. Additionally, [she] performed her physical therapy exercises as instructed, showing that she was able to comply with rules. 2 3 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 The remainder of Dr. Bagner’s opinion is given little weight because it is not consistent with the evidence in the record. First, Dr. Bagner evaluated [plaintiff] just once and did not have an ongoing treatment relationship with [her]. Additionally, Dr. Bagner did not review [plaintiff’s] medical records, but rather solely relied upon his own observations and [plaintiff] as the source of information. Moreover, Dr. Bagner’s findings are not only internally inconsistent, but also inconsistent with the other evidence in the record. For example, [plaintiff] was cooperative during her examination, did not exhibit a disrupted thought process or thought content, and performed her serial sevens, which contradicts Dr. Bagner’s opinion that [she] was limited in her ability to follow instructions. [Plaintiff] also demonstrated an ability to follow instructions by performing her home exercises. Similarly, [she] is not limited in her ability to interact with the public, co-workers, or supervisors, as demonstrated by her normal mood and affect during appointments and ability to carry a conversation with normal thought process. All of these findings show that there is insufficient objective evidence to support [plaintiff’s] mental impairment as medically determinable. [Id. at 22-23, 27-28 (citations omitted).] With respect to the opinions of Dr. Hawkins and Dr. Klein, the ALJ found them also to be inconsistent with the evidence in the record and gave them “little weight”: First, [plaintiff] reported that she was able to pay attention for a good while and did not require reminders, contradicting the finding that she has moderate difficulties in concentration, persistence, or pace. Additionally, [plaintiff] was able to perform serial threes and serial sevens, again reflecting no limitations in this area. Further, [her] ability to successfully learn and perform her home physical therapy exercises reflects [her] ability to understand and remember instructions. Dr. Hawkins and Dr. Klein also did not have an ongoing treatment relationship with [plaintiff] or even evaluate [her] in person, so these opinions are given little weight. 25 26 [Id. at 28-29 (citations omitted).] 27 Plaintiff contends that although the ALJ rejected the opinion of Dr. Bagner as inconsistent 28 with the evidence, “the decision to order a consultative examiners [sic] opinion is only triggered 9 1 when the record is inadequate to properly evaluate an impairment.” [JS at 6.] She also argues 2 that the ALJ’s reliance on plaintiff’s lack of psychiatric treatment to discount Dr. Bagner’s opinion 3 is a “questionable practice” with respect to “chastis[ing] one with a mental impairment for the 4 exercise of poor judgment in seeking rehabilitation.” [Id. (citing Nguyen v. Chater, 100 F.3d 1462, 5 1465 (9th Cir. 1996)).] She contends that the ALJ’s statement that “symptoms alone cannot 6 establish the existence of an impairment, and [plaintiff’s] record includes insufficient medically 7 acceptable clinical or laboratory diagnostic techniques to support a finding of a medically 8 determinable mental impairment” is “incorrect,” because Dr. Bagner’s “clinical interview and mental 9 status evaluation are ‘objective measures.’” [Id. (citing Buck v. Berryhill, 869 F.3d 1040, 1049 (9th 10 Cir. 2017)).] Plaintiff also notes that “neither Dr. Bagner nor the state agency doctors assessed 11 any marked limitations that were internally inconsistent with Dr. Bagner’s findings” and suggests 12 that the ALJ’s rejection of Dr. Bagner’s “uncontroverted mental limitations appears conclusion 13 driven as [plaintiff] would grid out if she had limitations in performing the mental demand of her 14 past semi-skilled work.” [Id. at 7 (citation omitted).] Finally, plaintiff states that the state agency 15 doctors’ findings that plaintiff could perform simple tasks with the ability to perform “some 3 and 16 4 step tasks” would limit plaintiff to reasoning level 2 jobs because at reasoning level 3 the 17 individual would have to be able to “[a]pply commonsense understanding to carry out instructions 18 furnished in written, oral, or diagrammatic form. Deal with problems involving several concrete 19 variables in or from standardized situations.” [Id. at 7-8 (citations omitted).] Plaintiff submits that 20 because she is “close to retirement age with a date of birth of . . . 1954,” the Court should credit 21 the mental limitations as true, apply grid rule 202.04, and award the payment of benefits. [Id. at 22 8.] 23 Defendant responds that the ALJ properly found Dr. Bagner’s one-time examining opinion 24 to be unsupported and inconsistent with plaintiff’s lack of mental health symptoms or treatment. 25 [Id.] Defendant notes that Dr. Bagner evaluated plaintiff “just once,” reviewed no records, and his 26 information about plaintiff’s mental symptoms came solely from plaintiff’s self-reports, all of which 27 are valid reasons for the ALJ to discount the medical opinions. [Id. at 9 (citations omitted).] He 28 also notes that the ALJ found that Dr. Bagner’s opinion was both internally inconsistent and 10 1 inconsistent with other record evidence, which is also relevant to the weight given to a medical 2 opinion. [Id. at 10 (citation omitted).] Defendant observes that the medical records reflected that 3 plaintiff received no treatment from a mental health specialist, and that “the limited reference in 4 the record to any mental symptoms or treatment showed that Plaintiff’s anxiety was stable and a 5 general practitioner prescribed Lorazepam to take ‘as needed.’” [Id. at 11 (citing AR at 22, 505, 6 510).] In fact, as noted by the ALJ, plaintiff “frequently denied the need to be seen by a 7 psychiatrist, and had normal mood and affect during appointments, which supported that her 8 symptoms were well managed.” [Id. (citing AR at 22-23, 501, 507, 514, 516).] Defendant further 9 notes that plaintiff provides no support for her argument that an ALJ’s decision to order a 10 consultative examination is only made when the record is inadequate to evaluate an impairment 11 and somehow undermines the ALJ’s reasoning. [Id.] He states that “[f]ollowing Plaintiff’s logic, 12 an ALJ would never be permitted to find a consultative examiner’s opinion inconsistent with the 13 record, which clearly is false” because both the regulations and case authority support that 14 inconsistency is a valid basis for giving an examining opinion less weight. [Id. (citations omitted).] 15 Defendant also submits that the ALJ did not find that Dr. Bagner’s examination did not contain 16 objective evidence, just that in light of Dr. Bagner’s minimal findings at his single examination and 17 the record as a whole, there was insufficient evidence to establish a mental impairment. [Id. at 18 12.] Defendant notes that the state agency examiners found that even with a limitation to simple 19 and some detailed tasks, plaintiff could still perform her past work. [Id. at 12-13 (citing AR at 92, 20 106).] Finally, defendant argues that plaintiff’s argument that Dr. Bagner’s finding of some 21 moderate limitations meant that she could not perform jobs that are reasoning level 3 is “wholly 22 unsupported.” [Id.] That is because Dr. Bagner did not find plaintiff limited to 3 or 4 step tasks -- 23 “that came from the State agency psychological consultants’ opinions, which the ALJ rejected, a 24 finding Plaintiff has not specifically challenged here.” [Id.] Defendant states that even a restriction 25 to “simple and some 3 or 4 step tasks” has “not been found to conflict with any particular 26 reasoning level,” as the Ninth Circuit “has only identified a possible conflict between a restriction 27 to only simple, repetitive tasks (i.e., no detailed tasks) and jobs classified as reasoning level 3.” 28 [Id. (citing Zavalin v. Colvin, 778 F.3d 842 (9th Cir. 2015)).] Because neither Dr. Bagner’s opinion 11 1 nor the state agency psychological consultants’ opinions limited plaintiff to simple, repetitive tasks, 2 there was no conflict in this case. [Id.] 3 Plaintiff reiterates that the ALJ failed to provide clear and convincing reasons for 4 discounting Dr. Bagner’s opinion and that the ALJ failed to consider even his non-severe 5 limitations in assessing plaintiff’s RFC, which, had they been properly considered, “would preclude 6 the past semi-skilled work in this case.” [Id. at 14 (citing SSR 96-8p).] 7 At step two, plaintiff has the burden to provide evidence of a medically determinable 8 physical or mental impairment that is severe and that has lasted or can be expected to last for a 9 continuous period of at least twelve months. Ukolov, 420 F.3d at 1004-05. In this case, the only 10 evidence even potentially supporting a medically determinable mental impairment is Dr. Bagner’s 11 one-time limited evaluation, which was conducted without the benefit of any of plaintiff’s prior 12 medical records, and based solely on Dr. Bagner’s own limited observations at the examination 13 and on plaintiff as the source of the information. See 20 C.F.R. § 404.1527(c)(2) (length of 14 treatment relationship, frequency of examination, kind and extent of examinations and testing 15 performed, and relevant evidence (i.e., medical signs and laboratory findings) supporting an 16 opinion are factors to consider in weighing a medical opinion). 17 The ALJ also determined that Dr. Bagner’s opinions were both internally inconsistent and 18 inconsistent with other evidence in the record. With respect to internal inconsistency, for instance, 19 the ALJ noted plaintiff was cooperative during the examination, did not exhibit disruptive thought 20 process or content, and performed serial sevens, all of which contradicted Dr. Bagner’s opinion 21 that plaintiff was limited in her ability to follow instructions. [AR at 28, 386-87.] Likewise, the ALJ 22 found plaintiff was not limited in her ability to interact with others, as demonstrated by her normal 23 mood and affect during appointments, and her ability to carry on a conversation with normal 24 though process. [Id. at 28 (citing id. at 501, 507, 516, 540, 548).] With respect to inconsistency 25 with the record generally, the ALJ found that Dr. Bagner’s opinions were not reflected anywhere 26 in the record. [Id. at 22-23.] Indeed, plaintiff testified that she is not getting any psychiatric 27 treatment, her worker’s compensation claim had no psychiatric component, she was “just taking 28 anxiety pills, but that’s real -- well, because I can’t sleep sometimes,” and she “sometimes” gets 12 1 depressed and wants to stay asleep in bed, especially when it is cold and she is in more pain. [AR 2 at 50-54.] In her February 3, 2014, Adult Function Report, plaintiff noted that she can pay 3 attention “for a good while,” follows written instructions such as a recipe with help from her 4 daughter, follows spoken instructions “well,” and has no problem getting along with authority 5 figures, but gets frustrated and anxious when she cannot do something for herself, and has the 6 fear of not being able to pay her bills. [Id. at 243-49.] As noted by the ALJ, plaintiff’s Lorazepam 7 was prescribed “as needed” and, although there are a few notations in the record about plaintiff’s 8 anxiety being “stable” on Lorazepam, there are no records otherwise reflecting that plaintiff was 9 suffering from a medically determinable mental impairment, let alone one that was severe and 10 impacted her ability to perform work-related activities. Neither does plaintiff point to any such 11 records and even her testimony fails to provide evidence of a medically determinable mental 12 impairment: plaintiff received no treatment from a mental health specialist, her anxiety was stable, 13 she denied the need to be seen by a psychiatrist, and she even testified that she was taking her 14 anxiety medication just to help her sleep. These were appropriate reasons for discounting Dr. 15 Bagner’s opinions. See 20 C.F.R. § 404.1527(c)(3)-(c)(4) (supportability and consistency are 16 factors relevant to the weight afforded a medical opinion). 17 In this case, other than the opinions of Dr. Bagner, Dr. Hawkins, and Dr. Klein, which the 18 ALJ took into account and properly discounted, there simply is no evidence in the record that 19 plaintiff’s alleged anxiety or other mental impairments caused her any work-related limitations. 20 Indeed, as plaintiff herself admitted, she was taking the prescribed anxiety medication to help her 21 sleep [AR at 53]; she did not seek mental health treatment [id.]; and she did not provide any 22 details or evidence supporting her alleged anxiety (or any other mental impairment) or limitations 23 resulting therefrom. Under these circumstances, the Court finds that the ALJ provided clear and 24 convincing reasons supported by substantial evidence for discounting Dr. Bagner’s opinions 25 regarding plaintiff’s limitations (as well as the opinions of Dr. Hawkins and Dr. Klein that relied on 26 Dr. Bagner’s opinion) and in finding that plaintiff did not have a medically determinable mental 27 impairment. Ukolov, 420 F.3d at 1005 (“regardless of how many symptoms an individual alleges, 28 or how genuine the individual’s complaints may appear to be, the existence of a medically 13 1 determinable . . . mental impairment cannot be established in the absence of objective medical 2 abnormalities; i.e., medical signs and laboratory findings”); Biestek, 139 S. Ct. at 1154. 3 Plaintiff has not met her burden at step two. Remand is not warranted on this issue. 4 5 B. SUBJECTIVE SYMPTOM TESTIMONY 6 1. Legal Standard 7 Prior to the ALJ’s assessment in this case, SSR 16-3p went into effect. See SSR 16-3p, 8 2017 WL 5180304 (Oct. 25, 2017).7 SSR 16-3p supersedes SSR 96-7p, the previous policy 9 governing the evaluation of subjective symptoms. SSR 16-3p, 2017 WL 5180304, at *2. SSR 16- 10 3p indicates that “we are eliminating the use of the term ‘credibility’ from our sub-regulatory policy, 11 as our regulations do not use this term.” Id. Moreover, “[i]n doing so, we clarify that subjective 12 symptom evaluation is not an examination of an individual’s character[;] [i]nstead, we will more 13 closely follow our regulatory language regarding symptom evaluation.” Id.; Trevizo, 871 F.3d at 14 678 n.5. Thus, the adjudicator “will not assess an individual’s overall character or truthfulness in 15 the manner typically used during an adversarial court litigation. The focus of the evaluation of an 16 individual’s symptoms should not be to determine whether he or she is a truthful person.” SSR 17 16-3p, 2017 WL 5180304, at *11. The ALJ is instructed to “consider all of the evidence in an 18 individual’s record,” “to determine how symptoms limit ability to perform work-related activities.” 19 Id. at *2. The Ninth Circuit also noted that SSR 16-3p “makes clear what our precedent already 20 required: that assessments of an individual’s testimony by an ALJ are designed to ‘evaluate the 21 22 23 24 25 26 27 28 7 SSR 16-3p, originally “effective” on March 28, 2016, was republished on October 25, 2017, with the revision indicating that SSR 16-3p was “applicable [rather than effective] on March 28, 2016.” See 82 Fed. Reg. 49462, 49468 & n.27, 2017 WL 4790249, 4790249 (Oct. 25, 2017); SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). Other than also updating “citations to reflect [other] revised regulations that became effective on March 27, 2017,” the Administration stated that SSR 16-3p “is otherwise unchanged, and provides guidance about how we evaluate statements regarding the intensity, persistence, and limiting effects of symptoms in disability claims . . . .” Id. The Ninth Circuit recently noted that SSR 16-3p is consistent with its prior precedent. Trevizo v. Berryhill, 871 F.3d 664, 678 n.5 (9th Cir. 2017) (SSR 16-3p “makes clear what [Ninth Circuit] precedent already required”). Thus, while SSR 16-3p eliminated the use of the term “credibility,” case law using that term is still instructive in the Court’s analysis. 14 1 intensity and persistence of symptoms after [the ALJ] find[s] that the individual has a medically 2 determinable impairment(s) that could reasonably be expected to produce those symptoms,’ and 3 ‘not to delve into wide-ranging scrutiny of the claimant’s character and apparent truthfulness.’” 4 Trevizo, 871 F.3d at 678 n.5 (citing SSR 16-3p). 5 To determine the extent to which a claimant’s symptom testimony must be credited, the 6 Ninth Circuit has “established a two-step analysis.” Trevizo, 871 F.3d at 678 (citing Garrison, 759 7 F.3d at 1014-15). “First, the ALJ must determine whether the claimant has presented objective 8 medical evidence of an underlying impairment which could reasonably be expected to produce the 9 pain or other symptoms alleged.” Id. (quoting Garrison, 759 F.3d at 1014-15); Treichler v. Comm’r 10 of Soc. Sec. Admin., 775 F.3d 1090, 1102 (9th Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 11 1028, 1036 (9th Cir. 2007)) (internal quotation marks omitted). If the claimant meets the first test, 12 and the ALJ does not make a “finding of malingering based on affirmative evidence thereof” 13 (Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006)), the ALJ must “evaluate the 14 intensity and persistence of [the] individual’s symptoms . . . and determine the extent to which 15 [those] symptoms limit [her] . . . ability to perform work-related activities . . . .” SSR 16-3p, 2017 16 WL 5180304, at *4. In assessing the intensity and persistence of symptoms, the ALJ must 17 consider a claimant’s daily activities; the location, duration, frequency, and intensity of the pain or 18 other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side 19 effects of medication taken to alleviate pain or other symptoms; treatment, other than medication 20 received for relief of pain or other symptoms; any other measures used to relieve pain or other 21 symptoms; and other factors concerning a claimant’s functional limitations and restrictions due to 22 pain or other symptoms. 20 C.F.R. § 416.929; see also Smolen, 80 F.3d at 1283-84 & n.8; SSR 23 16-3p, 2017 WL 5180304, at *4 (“[The Commissioner] examine[s] the entire case record, including 24 the objective medical evidence; an individual’s statements . . . ; statements and other information 25 provided by medical sources and other persons; and any other relevant evidence in the 26 individual’s case record.”). 27 Where, as here, plaintiff has presented evidence of an underlying impairment, and the ALJ 28 did not make a finding of malingering, the ALJ’s reasons for rejecting a claimant’s subjective 15 1 symptom statements must be specific, clear and convincing. Brown-Hunter v. Colvin, 806 F.3d 2 487, 488-89 (9th Cir. 2015); Burrell v. Colvin, 775 F.3d 1133, 1136 (9th Cir. 2014) (citing Molina 3 v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012)); Trevizo, 871 F.3d at 678 (citing Garrison, 759 4 F.3d at 1014-15); Treichler, 775 F.3d at 1102. “General findings [regarding a claimant’s credibility] 5 are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence 6 undermines the claimant’s complaints.” Burrell, 775 F.3d at 1138 (quoting Lester, 81 F.3d at 834) 7 (quotation marks omitted). The ALJ’s findings “‘must be sufficiently specific to allow a reviewing 8 court to conclude the adjudicator rejected the claimant’s testimony on permissible grounds and 9 did not arbitrarily discredit a claimant’s testimony regarding pain.’” Brown-Hunter, 806 F.3d at 493 10 (quoting Bunnell v. Sullivan, 947 F.2d 341, 345-46 (9th Cir. 1991) (en banc)). A “reviewing court 11 should not be forced to speculate as to the grounds for an adjudicator’s rejection of a claimant’s 12 allegations of disabling pain.” Bunnell, 947 F.2d at 346. As such, an “implicit” finding that a 13 plaintiff’s testimony is not credible is insufficient. Albalos v. Sullivan, 907 F.2d 871, 874 (9th Cir. 14 1990) (per curiam). 15 In determining whether an individual’s symptoms will reduce her corresponding capacities 16 to perform work-related activities or abilities to function independently, appropriately, and 17 effectively in an age-appropriate manner, the ALJ “will consider the consistency of the individual’s 18 own statements.” SSR 16-3p, 2017 WL 5180304, at *8-9; see also Ghanim v. Colvin, 763 F.3d 19 1154, 1163-64 (9th Cir. 2014). In doing so, the ALJ “will compare statements an individual makes 20 in connection with the individual’s claim for disability benefits with any existing statements the 21 individual made under other circumstances.” Id. “If an individual’s various statements about the 22 intensity, persistence, and limiting effects of symptoms are consistent with one another and 23 consistent with the objective medical evidence and other evidence in the record,” the ALJ will 24 determine that an individual’s symptoms are more likely to reduce her capacities for work-related 25 activities or reduce the abilities to function independently, appropriately, and effectively in an 26 age-appropriate manner. Id. at *9. The ALJ will recognize, however, that inconsistencies in an 27 individual’s statements made at varying times “does not necessarily mean they are inaccurate,” 28 as symptoms may vary in their intensity, persistence, and functional effects, or may worsen or 16 1 improve with time. Id. 2 3 2. Analysis 4 Plaintiff contends the ALJ failed to articulate clear and convincing reasons for rejecting 5 plaintiff’s testimony regarding the pain and limitations she experiences due to her carpal tunnel 6 syndrome. [JS at 16.] 7 With respect to plaintiff’s carpal tunnel syndrome, the ALJ noted the following: 8 During the hearing, [plaintiff] alleged limitations in her manipulation and fingering, including an estimate that she could only type for fifteen to twenty minutes at one time. However, [plaintiff] admitted that she had not typed in a while, detracting from the accuracy of her estimation. Although [she] did exhibit positive signs and symptoms of carpal tunnel, she did not require more restrictive limitations. In fact, Dr. Solomon opined that [her] alleged symptoms cannot be fully explained by [her] bilateral carpal tunnel. [Her] nerve conduction velocity studies revealed that although [her] sensorimotor latencies of the bilateral median nerves were prolonged, [she] did not have a drop in the amplitudes of the motor and sensory latencies in all her upper extremity nerves nor did she have a noted delay in her bilateral nerve conduction velocity studies. Additionally, [her] needle electromyography in her bilateral upper extremities revealed no increase in membrane instability and no abnormal MUAP findings. Although [she] exhibited some signs of bilateral carpal tunnel syndrome, [plaintiff] had a full range of motion in her left wrist but a reduced range of motion in her right wrist with pain. [Plaintiff] did maintain a mostly full bilateral wrist grip and had normal motor strength in her upper extremities. [She] remained able to make a complete fist and extend all of her digits, had a normal range of motion in her fingers, and did not display muscle atrophy. Based on the medical evidence, [she] remains able to frequently handle and finger with her bilateral upper extremities. 9 10 11 12 13 14 15 16 17 18 19 [AR at 27 (citations omitted).] 20 Plaintiff states that she testified that she “could type for maybe 15-20 minutes and then she 21 would need to stop and rest for 10 minutes”; and that she could sometimes tie her shoes and 22 button her buttons, “but not always.” [JS at 16 (citing AR at 59).] She notes that although the ALJ 23 stated that an EMG did not show evidence of cervical radiculopathy that would explain her 24 complaints of “pain, numbness, and tingling that radiated from her hands to her neck” [id. (citing 25 AR at 26)], “the ALJ failed to note that the examiner that reviewed the EMG did not rule out 26 cervical radiculopathy,” which was “still suspected.” [Id. (citing AR at 516-17).] She also states 27 that the EMG findings were supported by the objective findings of a positive grind test and positive 28 Finkelstein’s test. [Id.] Plaintiff argues that if she could not perform the “frequent fingering of her 17 1 past work as an administrative assistant she would grid out under grid rule 202.04, unless the 2 Commissioner could show that [she] had transferable skills to a significant range of work,” but the 3 ALJ only identified one job that plaintiff “would have transferable skills to with a limitation to only 4 occasional fingering,” which is “insufficient.” [Id. (citing Lounsberry, 468 F.3d at 1115).] Plaintiff 5 argues that the ALJ’s stated reasons for rejecting her subjective symptom upper extremity 6 limitations were not supported by the record, as evidenced by his statement that “the EMG was 7 not positive for cervical radiculopathy,” despite the fact that the EMG showed she has carpal 8 tunnel syndrome, along with a positive Tinel’s test and Finkelstein’s test. [Id. at 21 (citing AR at 9 26, 337).] Plaintiff also states that the evidence shows that “at times [she] could not move her 10 fingers due to pain,” and that treatment notes show that she had “tenderness to palpitation [sic] 11 of the wrist and decreased range of motion of the writs [sic] with reduced grip strength.” [Id. (citing 12 AR at 548).] She also points to a treatment note that purportedly “document[s] the frequently [sic] 13 and severity of [her] wrist pain as frequent moderate pain.” [Id. (citing AR at 488).8] 14 Defendant responds that the ALJ reasonably found that plaintiff’s carpal tunnel pain was 15 under control with her pain medication and physical therapy. [Id. at 18 (citing AR at 25).] 16 Additionally, the ALJ acknowledged that plaintiff had not had surgery due to her fear it might make 17 her worse, but properly relied on the fact that she had even declined a carpal tunnel injection in 18 January 2017 without providing a reason. [Id. (citing (AR at 26, 52-53, 517).] Defendant also 19 notes that the EMG report relied on by plaintiff [AR at 516-17], specifically points out that plaintiff’s 20 complaint of “radicular pain extending up to her neck,” i.e., cervical radiculopathy, is not explained 21 by the EMG results, which show only bilateral carpal tunnel syndrome, and which “cannot explain 22 her full symptoms.” [JS at 19 (citing AR at 516).] Defendant observes that there was no doctor 23 who assessed any manipulative limitations. [Id. at 20 (citing AR at 29-31).] 24 25 The Court finds that the ALJ provided specific, clear and convincing reasons for discounting plaintiff’s testimony regarding her carpal tunnel symptoms and limitations. First, plaintiff’s 26 27 8 28 The treatment note plaintiff cites to, however, is a lab report reflecting blood test results and has nothing to do with wrist pain. [See AR at 488.] 18 1 speculation regarding how long she might be able to type at one time without resting, and her 2 testimony about sometimes not being able to tie her shoes or button her buttons, did not warrant 3 any more restrictive limitation in fingering than that found by the ALJ,9 and plaintiff did not point 4 to any evidence supporting a more restrictive limitation. Indeed, plaintiff’s carpal tunnel syndrome 5 was controlled by medication (Naproxen) and physical therapy [see, e.g., AR at 59 (stating that 6 when the pain starts in her hands she does her “exercises” to relieve it), 63, 311], and although 7 an injection had been recommended, plaintiff declined that treatment without explanation. [Id. at 8 26, 517]; Tommasetti, 533 F.3d at 1039 (when evaluating symptoms, the ALJ can consider 9 “unexplained or inadequately explained failure to seek treatment or to follow a prescribed course 10 of treatment”). Accordingly, this was a specific, clear and convincing reason supported by 11 substantial evidence to discount plaintiff’s subjective symptom testimony. Second, plaintiff’s 12 argument that the ALJ erred because he failed to identify more than one job that she would be 13 able to perform based on her transferable skills is without merit. [JS at 16 (citing Lounsberry, 468 14 F.3d at 1115).] As best as the Court can glean, plaintiff appears to be referencing the holding in 15 Lounsberry that “[i]f a claimant is found able to work jobs that exist in significant numbers, the 16 claimant is generally considered not disabled.” Lounsberry, 468 F.3d at 1115 (citation omitted). 17 However, that holding does not mean that there must be a significant number of different jobs that 18 a claimant is able to perform, only that the job (or jobs) that the ALJ finds a claimant is able to 19 perform is itself available in significant numbers in the national economy. In this case, the VE 20 testified that there were 210,000 nationwide positions available for the receptionist occupation, 21 which requires only occasional fingering. [AR at 46.] This number is considered significant. 22 23 24 25 26 27 28 9 Plaintiff’s hearing testimony and arguments appear to relate primarily to her ability to engage in bilateral fingering tasks (i.e., typing, buttoning, tying shoelaces). Plaintiff’s past relevant work as an administrative clerk requires frequent handling and fingering, i.e., from 1/3 to 2/3 of the time. See Dictionary of Occupational Titles (“DOT”) No. 219.362-010. Here, the ALJ also determined that plaintiff’s skills learned from her past relevant work as an administrative clerk would be transferable to the position of receptionist, DOT number 237.367-038. [AR at 33, 46-47.] The VE testified that the receptionist position requires only occasional bilateral fingering (i.e., up to 1/3 of the time) and frequent bilateral handling, and is a semi-skilled sedentary job with 210,000 jobs available nationally. [Id. at 46-47.] 19 1 Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 527-29 (9th Cir. 2014) (holding that 25,000 jobs 2 nationwide constitutes a significant amount of work in the national economy). Thus, the ALJ’s 3 error, if any, in finding plaintiff capable of performing frequent fingering, was harmless. 4 Remand is not warranted on this issue. 5 6 VI. 7 CONCLUSION 8 9 10 11 12 13 IT IS HEREBY ORDERED that: (1) plaintiff’s request for remand is denied; and (2) the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. This Memorandum Opinion and Order is not intended for publication, nor is it intended to be included in or submitted to any online service such as Westlaw or Lexis. 14 15 DATED: October 22, 2019 PAUL L. ABRAMS UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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