Debbie L. Ward v. Carolyn W. Colvin, No. 8:2015cv00595 - Document 23 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 1 (SEE ORDER FOR FURTHER DETAILS) (gr)
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Debbie L. Ward v. Carolyn W. Colvin Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Plaintiff, 13 14 15 Case No. CV 15-00595-RAO DEBBIE L. WARD, 12 MEMORANDUM OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Debbie L. Ward (“Plaintiff”) challenges the Commissioner’s denial of her 21 application for a period of disability and disability insurance benefits (“DIB”) 22 following an administrative law judge’s (“ALJ”) decision that Plaintiff had not been 23 under a disability, as defined in the Social Security Act. Administrative Record 24 (“AR”) 35. For the reasons below, the Commissioner’s decision is AFFIRMED. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 II. 2 PROCEEDINGS BELOW 3 On December 12, 2011, Plaintiff filed an application for DIB, alleging 4 disability beginning October 5, 2011 (her alleged onset date (“AOD”)). AR 25. 5 Plaintiff’s claim was denied initially on June 29, 2012 and upon reconsideration on 6 November 27, 2012. Id. On January 15, 2013, Plaintiff filed a written request for 7 hearing, which occurred on June 25, 2013. Id. Represented by counsel, Plaintiff 8 appeared and testified, as did an impartial medical expert (“ME”) and an impartial 9 vocational expert (“VE”). Id. On August 20, 2013, the ALJ found that Plaintiff 10 had not been under a disability, as defined in the Social Security Act,1 from the 11 AOD, through the date of the decision. Id. at 35. The ALJ’s decision became the 12 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 13 for review. Id. at 1-6. Plaintiff filed the instant case on April 15, 2015. Dkt. No. 1. 14 The ALJ followed a five-step sequential evaluation process to assess whether 15 Plaintiff was disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Lester v. Chater, 16 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had 17 not engaged in substantial gainful activity since the AOD. AR 27. At step two, the 18 ALJ found that Plaintiff has the following severe impairments: disorder of the 19 lumbar spine and internal left knee derangement. Id. The ALJ further found that 20 Plaintiff did not suffer from a severe mental impairment. Id. At step three, the 21 ALJ found that Plaintiff “does not have an impairment or combination of 22 impairments that meets or medically equals the severity of one of the listed 23 impairments in 20 CFR Part 404, Subpart P, Appendix 1.” Id. at 30 (citations 24 omitted). 25 functional capacity (“RFC”) to: 26 1 27 28 At step four, the ALJ found that Plaintiff possessed the residual Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 1 2 3 4 5 6 7 [P]erform less than the full range of sedentary work as defined in 20 CFR 404.1567(a). Specifically the claimant can lift and/or carry ten pounds occasionally, five pounds frequently; she can stand for two hours out of an eight-hour workday; she can sit for six hours out of an eight-hour workday; she can walk for one hour out of an eight-hour workday with the use of an assistive device; she can occasionally climb stairs, stoop, and kneel; and she is not to climb ladders, ropes or scaffolds, crouch or crawl. 8 Id. Based on the foregoing RFC, the ALJ determined that Plaintiff could perform 9 her past relevant work “as a service representative and data entry clerk.” Id. at 35. 10 Accordingly, the ALJ did not proceed to step five, and instead found that Plaintiff 11 has not been under a disability, as defined in the Social Security Act. Id. 12 III. 13 STANDARD OF REVIEW 14 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 15 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 16 supported by substantial evidence, and if the proper legal standards were applied. 17 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 18 means more than a mere scintilla, but less than a preponderance; it is such relevant 19 evidence as a reasonable person might accept as adequate to support a conclusion.” 20 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 21 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 22 evidence requirement “by setting out a detailed and thorough summary of the facts 23 and conflicting clinical evidence, stating his interpretation thereof, and making 24 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes 25 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 26 “[T]he Commissioner's decision cannot be affirmed simply by isolating a 27 specific quantum of supporting evidence. Rather, a court must consider the record 28 3 1 as a whole, weighing both evidence that supports and evidence that detracts from 2 the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 3 2001) (citations and internal quotations omitted). “‘Where evidence is susceptible 4 to more than one rational interpretation,’ the ALJ's decision should be upheld.” 5 Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 6 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882 7 (“If the evidence can support either affirming or reversing the ALJ's conclusion, we 8 may not substitute our judgment for that of the ALJ.”). The Court may review only 9 “the reasons provided by the ALJ in the disability determination and may not affirm 10 the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 11 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 12 IV. 13 DISCUSSION 14 Plaintiff argues that the ALJ erred in not finding a severe mental impairment 15 at step two of the five-step sequential evaluation process. See Plaintiff’s Motion for 16 Summary Judgment (“Pl. Mot.”) at 4-10, Dkt. No. 20. The Commissioner, in turn, 17 argues that the ALJ’s finding that Plaintiff’s mental impairments were non-severe 18 within the meaning of the Social Security Act is supported by substantial evidence. 19 See Defendant’s Motion for Summary Judgment (“Def. Mot.”) at 2-6, Dkt. No. 22. 20 A. Applicable Law 21 1. 22 At step two of the sequential evaluation process, the claimant has the burden 23 of demonstrating a severe medically determinable physical or mental impairment 24 that meets the duration requirement, or a combination of impairments that is severe 25 and meets the duration requirement.2 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. 26 2 27 28 General Evaluation: Severity of Impairments In order to satisfy the duration requirement, an impairment generally “must have lasted or must be expected to last for a continuous period of at least 12 months.” 20 C.F.R. § 404.1509; 20 C.F.R. § 416.909; see also Bowen v. Yuckert, 482 U.S. 137, 140, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987). 4 1 § 416.920(a)(4)(ii); Yuckert, 482 U.S. at 146 n.5. 2 screening device used to dispose of groundless claims. Smolen v. Chater, 80 F.3d 3 1273, 1290 (9th Cir. 1996). 4 5 6 7 8 Step two is a de minimis [A claimant’s] impairment must result from anatomical, physiological, or psychological abnormalities which can be shown by medically acceptable clinical and laboratory diagnostic techniques. A physical or mental impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [the claimant’s] statement of symptoms. 9 10 20 C.F.R. § 404.1508; 20 C.F.R. § 416.908. 11 The impairment or combination of impairments must “‘significantly limit[] 12 [a claimant’s] physical or mental ability to do basic work activities.’” Yuckert, 482 13 U.S. at 154 n.11 (quoting 20 C.F.R. § 404.1520(c)); see also Smolen v. Chater, 80 14 F.3d 1273, 1290 (9th Cir. 1996). The ability to do basic work activities “mean[s] 15 the abilities and aptitudes necessary to do most jobs[,]” and includes: 16 17 18 (1) Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing, and speaking; 19 20 (3) Understanding, carrying out, and remembering simple instructions; 21 22 23 (4) Use of judgment; 24 (5) Responding appropriately to supervision, co-workers, and usual work situations; and 25 (6) Dealing with changes in a routine work setting. 26 27 20 C.F.R. § 404.1521(b); 20 C.F.R. § 416. 28 5 1 An impairment or combination of impairments may be found not severe only 2 if the medical evidence clearly establishes a slight abnormality which has no more 3 than a minimal effect on a person’s ability to do work. Webb v. Barnhart, 433 F.3d 4 683, 686-87 (9th Cir. 2005). When reviewing an ALJ’s step two finding, the Court 5 must determine whether the ALJ had substantial evidence to find that the claimant 6 did not have a severe impairment or combination of impairments. Id. at 687. 7 2. Additional Evaluation: Severity of Mental Impairment 8 When a claimant alleges there is a mental impairment that prevents her from 9 working, the Social Security Administration supplements the five-step sequential 10 evaluation process with additional inquiries. See Maier v. Comm’r of Soc. Sec. 11 Admin., 154 F.3d 913, 914-15 (9th Cir. 1998) (per curiam) (citing 20 C.F.R. 12 § 416.920a). 13 laboratory findings to determine whether the claimant has a medically determinable 14 mental impairment. 15 substantiates the presence of the impairment must be documented in the ALJ’s 16 decision. 20 C.F.R. § 416.920a(b)(1), (e)(4). First, the ALJ must evaluate a claimant’s symptoms, signs and If such an impairment is found, the information that 17 Next, the ALJ must rate the degree of the claimant’s functional limitation 18 resulting from the impairment in four broad functional areas and record it. See 20 19 C.F.R. § 416.920a(b)(2), (c)(3), (e)(4). The four areas are: (1) activities of daily 20 living; (2) social functioning; (3) concentration, persistence, or pace, and (4) 21 episodes of decompensation. 20 C.F.R. § 416.920a(c)(3). The first three functional 22 areas are to be rated on a five-point scale of: 23 “marked,” and “extreme.” 20 C.F.R. § 416.920a(c)(4). The fourth area is to be 24 rated on a four-point scale of: “none,” “one or two,” “three,” and “four or more.” 25 Id. “none,” “mild,” “moderate,” 26 After rating the degree of functional limitation resulting from a claimant’s 27 impairment, the ALJ must then determine the severity of the claimant’s mental 28 impairments. 20 C.F.R. § 416.920a(d). If the claimant’s degree of limitation in the 6 1 first three functional areas is “none” or “mild” and “none” in the fourth area, the 2 ALJ may generally conclude that a claimant’s impairment is not severe unless 3 evidence indicates that the claimant has more than a minimal limitation in her 4 ability to do basic work activities. 20 C.F.R. § 416.920a(d)(1). 5 If a claimant’s mental impairment is severe, the ALJ must determine whether 6 it meets or is equivalent in severity to a listed mental disorder in 20 C.F.R. § 404, 7 Subpart P, Appendix 1. See 20 C.F.R. § 416.920a (d)(2). If a claimant’s severe 8 mental impairment neither meets nor is equivalent in severity to any listing, the 9 ALJ is to assess the claimant’s RFC. 20 C.F.R. § 416.920a(d)(3). The ALJ’s 10 decision must incorporate the pertinent findings and conclusions, must show the 11 significant history and functional limitations that were considered when reaching 12 his conclusion about the severity of a claimant’s mental impairment, and must 13 include a specific finding as to the degree of limitation in each of the described 14 functional areas. 20 C.F.R. § 416.920a(e)(4). 15 B. Analysis 16 The ALJ found that Plaintiff's medically determinable mental impairment did 17 not significantly limit her ability to perform basic work activities and, therefore, 18 was not severe. 19 assessments of two mental health consultative examiners, K. Nguyen, M.D. and T. 20 Athans, Ph.D., and assigned great weight to their opinions. (Id. at 28.) Thereafter, 21 he also considered the broad functional areas in the disability regulations for 22 evaluating the severity of mental disorders. (Id. at 29-30.) (AR 30.) To support this determination, he reviewed the 23 1. November 27, 2009 Examination by Dr. Nguyen 24 Dr. Nguyen performed a complete psychiatric evaluation of Plaintiff on 25 November 27, 2009. In her written evaluation of Plaintiff, Dr. Nguyen concluded 26 that Plaintiff did not meet the “criteria for any psychiatric diagnosis” and observed 27 that her mental status was “unremarkable.” (Id. at 331.) Dr. Nguyen gave her 28 opinion that Plaintiff was “able to perform her work-related duties and adapt to 7 1 commonplace stressors of a work environment, from a psychiatric standpoint.” 2 (Id.) 3 2. May 3, 2012 Examination by Dr. Athans 4 Plaintiff underwent a comprehensive psychological consultative examination 5 with Dr. Athans. (AR 28.) Plaintiff was “coherent and organized” and was “alert 6 and oriented to time, place, person, and purpose.” (Id.) There was “no bizarre or 7 psychotic thought content,” and Plaintiff "denied any symptoms of depression" 8 during the evaluation. (Id.) “She similarly denied any problems with concentration 9 or memory. [Plaintiff] stated that she is sometimes anxious secondary to 10 experiencing a fall at work where she has ruptured her discs in her back.” (Id.) Dr. 11 Athans diagnosed Plaintiff with adjustment disorder with anxiety. (Id.) 12 In his written evaluation, Dr. Athans concluded that Plaintiff’s condition was 13 fair from a psychiatric standpoint. (Id. at 385.) She then assessed Plaintiff in eight 14 functional categories: 15 16 (1) Able to understand, remember, and carry out simple one or two-step job instructions: Unimpaired. 17 (2) Able to do detailed and complex instructions: Unimpaired. 18 (3) Ability to relate and interact with co-workers and public: Unimpaired. 19 (4) Ability to maintain concentration and attention, persistence and pace: 20 21 22 Mildly impaired. (5) Ability to associate with day-to-day work activity, including attendance and safety: Mildly impaired. 23 (6) Able to accept instructions from supervisor: Unimpaired. 24 (7) Able to maintain regular attendance in the work place and perform 25 26 27 28 work activities on a consistent basis: Moderately impaired. (8) Able to perform work activities without special or additional supervision: Mildly impaired. (Id. at 385-86; emphasis in original.) 8 1 3. The ALJ's Review of Impairment Under Broad Functional Areas 2 In addition, pursuant to the regulations, after finding that Plaintiff had a 3 medically determinable mental impairment (adjustment disorder with anxiety), the 4 ALJ proceeded to evaluate the degree of Plaintiff's functional limitations under the 5 special technique of the four broad functional areas described above. (Id. at 29-30; 6 see 20 C.F.R. § 416.920a(c)(3).) 7 With respect to activities of daily living, the ALJ observed that Plaintiff “is 8 capable of performing numerous adaptive activities independently, appropriately, 9 effectively, and on a sustained basis despite her alleged mental impairment.” (AR 10 29.) “Plaintiff reported being independent in bathing, dressing, grooming, oral 11 care, toileting, eating, managing medication, and cooking.” (Id.) In light of these 12 facts, the ALJ determined that Plaintiff had no limitation in this functional area. 13 (Id. at 29.) 14 Regarding social functioning, the ALJ remarked that Plaintiff “is still capable 15 of maintaining interaction with individuals in a variety of situations independently, 16 appropriately, effectively, and on a sustained basis.” (Id.) Plaintiff reported that 17 “she lives with family, takes her granddaughter on picnics or to the parks, she 18 socializes with friends, her relationships with family and friends are excellent, and 19 she chats with her family and friends and does therapy.” (Id.) In light of these 20 facts, the ALJ determined that Plaintiff had no limitation in this functional area. 21 Concerning concentration, persistence, or pace, the ALJ found that Plaintiff 22 has a mild limitation because “she still has the ability to sustain focused attention 23 and concentration sufficiently long enough to permit the timely and appropriate 24 completion of tasks commonly found in work settings despite her alleged mental 25 impairment.” (Id.) Plaintiff reported “being independent in managing money,” 26 “handles her finances appropriately,” “is able to go out alone, . . . can focus 27 attention, . . . has no difficulty making her decisions.” (Id.) Further, Plaintiff 28 demonstrated no difficulties in concentrating during the administrative hearing; she 9 1 processed questions without difficulty and responded to questions appropriately and 2 without delay. (Id.) In light of these facts, the ALJ determined that Plaintiff had a 3 mild limitation in this functional area. 4 Regarding the fourth area -- episodes of decompensation -- the ALJ found 5 that Plaintiff had experienced no such episodes which have been of extended 6 duration. (Id. at 29-30). The ALJ observed, “[t]here is no indication showing any 7 exacerbations or temporary increases in symptoms, no significant alteration in 8 medications, or evidence showing a need for a more structured psychological 9 support system.” (Id. at 30.) Based on these determinations, the ALJ concluded that Plaintiff's medically 10 11 determinable mental impairments were nonsevere. (Id.) See 20 C.F.R. 12 416.920a(d)(1) (stating “none” to “mild” findings in first three functional areas and 13 a “none” finding in the fourth area warrants a determination of “nonsevere” 14 impairment).3 15 Plaintiff argues that the ALJ's determination of a nonsevere mental 16 impairment is erroneous because the ALJ impermissibly rejected Dr. Athans' 17 opinion. (Pl. Mot. at 7.) Plaintiff points to Dr. Athans’ functional assessment that 18 Plaintiff was “moderately impaired” in her ability to “maintain regular attendance 19 in the work place and perform work activities on a consistent basis.” (AR 386.) 20 From this assessment of moderate impairment in this one functional area, Plaintiff 21 contends that her mental impairment is severe. (Pl. Mot. at 7.) 22 In reaching this conclusion, Plaintiff erroneously equates Dr. Athans’ finding 23 of moderate impairment to a rating of a moderate functional limitation resulting 24 25 26 27 28 3 Notably, at the June 25, 2013 administrative hearing, the Plaintiff and ALJ had the following exchange with respect to Plaintiff’s mental health: Q. Are you seeing a psychiatrist, or a psychologist at the present time? A. No. Q. Okay. Any need to see someone like that? A. No. 10 1 from the impairment. The Commissioner persuasively argues that the record is 2 void of any evidence that Dr. Athans was applying the special “four broad 3 functional areas” technique used in assessing whether a mental impairment is 4 severe. (Def. Mot. at 5.) Indeed, the record points to the opposite conclusion. In 5 his written evaluation of Plaintiff’s functional assessment, Dr. Athans evaluated 6 Plaintiff in eight distinct categories. (AR 385-86.) In evaluating the degree of 7 Plaintiff’s functional limitations, the ALJ had before him Dr. Athans’ assessment 8 that Plaintiff was “unimpaired” and “mildly impaired,” as well as “moderately 9 impaired,” in categories that an ALJ reasonably would consider in determining 10 Plaintiff’s functional limitation with respect to “concentration, persistence, or 11 pace.” 12 assessment in one of eight evaluation categories requires a finding that her mental 13 impairment is severe, this is not so. It is the ALJ’s job to “consider all of the 14 evidence at Step Two to determine whether a medically determinable impairment 15 significantly limits the claimant’s ability to perform basic work activities.” Cotton 16 v. Astrue, 374 F. App’x 769, 772 (9th Cir. 2010) (citing 20 C.F.R. § 404.1520(a), 17 (c); Yuckert, 482 U.S. at 145.) While Plaintiff suggests that Dr. Athans’ single moderately-impaired 18 Based on the record before him, the ALJ concluded that Plaintiff had a mild 19 limitation. Substantial medical evidence supports this conclusion. Dr. Athans 20 deemed Plaintiff’s condition as fair. Dr. Nguyen’s earlier assessment that Plaintiff 21 was able to perform her work-related duties and adapt to commonplace stressors of 22 a work environment, from a psychiatric standpoint, was consistent with Dr. Athans’ 23 conclusion. This Court will not second-guess the ALJ’s reasonable interpretation 24 of the medical evidence in concluding that Plaintiff’s mental impairment was not 25 severe. Gallardo v. Astrue, 2008 WL 4183985, at *11 (E.D.Cal. Sept. 10, 2008) 26 (“The role of this Court is not to second guess the ALJ and reevaluate the evidence, 27 but rather it must determine whether the decision is supported by substantial 28 evidence and free of legal error.) 11 1 Accordingly, the decision of the Commissioner is affirmed. 2 V. 3 CONCLUSION 4 5 6 7 IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 8 9 10 DATED: November 23, 2015 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 NOTICE THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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