Dennis Lindsay v. Nancy A. Berryhill, No. 8:2017cv01545 - Document 21 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER by Magistrate Judge Alexander F. MacKinnon. IT IS ORDERED that Judgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. (See document for further details.) (sbou)
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Dennis Lindsay v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No. SACV 17-01545-AFM DENNIS LINDSAY, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF COMMISSIONER Defendant. 16 17 18 Plaintiff filed this action seeking review of the Commissioner’s final decision 19 denying his applications for disability insurance benefits and supplemental security 20 income. In accordance with the Court’s case management order, the parties have filed 21 memorandum briefs addressing the merits of the disputed issues. This matter now is 22 ready for decision. 23 BACKGROUND 24 In November 2017, Plaintiff filed applications for Disability Insurance 25 Benefits and Supplemental Security Income, alleging disability beginning 26 February 2, 2013 (Administrative Record (“AR”) 114-115, 272-274.) His 27 applications were denied initially and upon reconsideration. (AR 146-151, 154-160.) 28 Hearings were held before an Administrative Law Judge (“ALJ”) on March 4, 2015, Dockets.Justia.com 1 July 29, 2015, and February 23, 2016, at which Plaintiff (who was represented by an 2 attorney), a medical expert (“ME”), and a vocational expert (“VE”) testified. (AR 41- 3 54, 55-64, 65-91.) 4 On April 18, 2016, the ALJ issued a decision finding that Plaintiff suffered 5 from a medically severe impairment – namely, lumbar degenerative disc disease. (AR 6 16.) The ALJ determined that Plaintiff retained the residual functional capacity 7 (“RFC”) to perform a limited range of light work and concluded that Plaintiff was 8 able to perform his past relevant work as a court reporter. (AR 22, 30.) Accordingly, 9 the ALJ found Plaintiff was not disabled at any time from February 2, 2013 through 10 the date of the ALJ’s decision. (AR 30.) On July 20, 2017, the Appeals Council 11 denied review, rendering the ALJ’s decision the final decision of the Commissioner. 12 (AR 1-5.) 13 14 15 16 17 18 DISPUTED ISSUES 1. Whether the ALJ’s finding that Plaintiff did not suffer from a severe mental impairment is supported by substantial evidence. 2. Whether the ALJ erred by failing to include limitations related to Plaintiff’s mild mental impairment in his hypothetical to the VE. STANDARD OF REVIEW 19 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 20 determine whether the Commissioner’s findings are supported by substantial 21 evidence and whether the proper legal standards were applied. See Treichler v. 22 Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014). Substantial 23 evidence means “more than a mere scintilla” but less than a preponderance. See 24 Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence is “such 25 relevant evidence as a reasonable mind might accept as adequate to support a 26 conclusion.” Richardson, 402 U.S. at 401. The Court reviews the record as a whole, 27 weighing both the evidence that supports and the evidence that detracts from the 28 Commissioner’s conclusion. See Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2 1 2014). Where evidence is susceptible of more than one rational interpretation, the 2 Commissioner’s decision must be upheld. See Garrison, 759 F.3d at 1010; Ryan v. 3 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); Orn v. Astrue, 495 F.3d 4 625, 630 (9th Cir. 2007). Finally, even when an ALJ’s decision contains error, it must 5 be affirmed if the error was harmless. Treichler, 775 F.3d at 1099. 6 7 DISCUSSION 1. The ALJ’s finding that Plaintiff’s mental impairments were non-severe. 8 At step two of the sequential evaluation process, the claimant has the burden 9 to show that he has one or more “severe” medically determinable impairments. See 10 Bowen v. Yuckert, 482 U.S. 137, 146 n.5, 148 (1987); Webb v. Barnhart, 433 F.3d 11 683, 686 (9th Cir. 2005). An impairment is “severe” if it “significantly limits [the 12 claimant’s] physical or mental ability to do basic work activities.” 20 C.F.R. 13 §§ 416.920(c), 416.921(a). In determining whether a claimant’s mental impairment 14 is severe, an ALJ is required to evaluate the degree of mental limitation in the 15 following four areas: (1) activities of daily living; (2) social functioning; 16 (3) concentration, persistence, or pace; and (4) episodes of decompensation. If the 17 degree of limitation in these four areas is determined to be “mild,” a plaintiff's mental 18 impairment is generally not severe, unless there is evidence indicating a more than 19 minimal limitation in his ability to perform basic work activities. See 20 C.F.R. 20 §§ 404.1520a(c)-(d), 416.920a(c)-(d). 21 Here, the ALJ found that Plaintiff’s medically determinable impairments of 22 depression, anxiety, and history of alcohol abuse, in remission caused mild 23 limitations in activities of daily living; mild limitations in social functioning; and 24 mild limitations in concentration, persistence, and pace. The ALJ found no episodes 25 of decompensation. (AR 16-17). Because he found that Plaintiff’s mental 26 impairments did not cause more than minimal limitation in his ability to perform 27 basic mental work activities, the ALJ concluded that they were not severe. (AR 16- 28 3 1 18.) In reaching his non-severity conclusion, the ALJ relied upon the following 2 evidence. 3 The ALJ considered the opinion of psychiatric consultative examiner Sohini P. 4 Parikh, M.D. (AR 17.) Dr. Parikh conducted a psychiatric evaluation of Plaintiff on 5 February 17, 2014. She noted that Plaintiff’s mood was depressed and anxious, and 6 that his hands appeared shaky, likely due to his alcohol related problem, but 7 otherwise, her findings were not significant. For example, Dr. Parikh reported that 8 Plaintiff was able to focus during the evaluation, was alert, cooperative, his thought 9 process was logical, his memory and intellectual function were intact, and he denied 10 suicidal ideation. (AR 472-477.) Dr. Parikh diagnosed Plaintiff with mood disorder, 11 not otherwise specified, and alcohol dependency. She advised that from a psychiatric 12 standpoint, Plaintiff should refrain from alcohol. Based upon her evaluation, 13 Dr. Parikh opined that Plaintiff’s concentration, persistence and pace were not 14 impaired; his ability to understand, carry out, and remember simple instructions was 15 not impaired; and in other areas – i.e., maintaining social functioning, ability to deal 16 with changes in a routine work setting, and ability to respond to coworkers, 17 supervisors and the general public – Plaintiff had mild mental impairment. (AR 477- 18 478.) Dr. Parikh’s opinion constituted substantial evidence in support of the ALJ’s 19 conclusion that Plaintiff’s mental impairments were no more than mild. See 20 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician’s 21 opinion, alone, constitutes substantial evidence to support ALJ finding). 22 The ALJ also relied upon the opinions of the two State agency psychological 23 consultants. (AR 17.) After reviewing the record, the consultants, R. E. Brooks, M.D. 24 and P. M. Balson, M.D., both opined that Plaintiff had no severe mental impairment. 25 In his opinion, rendered on March 6, 2014, Dr. Brooks found that Plaintiff had no 26 mental functional limitations, and therefore no severe impairment. (AR 97, 108.) 27 Dr. Balson reviewed the record in May 2014, and agreed with Dr. Brooks’s 28 assessment. (AR 121-123.) The opinions of non-examining physicians may also 4 1 serve as substantial evidence so long as they are consistent with independent clinical 2 findings or other evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 3 (9th Cir. 2002.) 4 The ALJ specifically found that these opinions were supported by the medical 5 record, which he noted showed normal mental status examination findings, as well 6 as conservative, routine treatment with medication. (AR 17.) As Plaintiff concedes, 7 his mental status examination findings were essentially normal throughout the record. 8 (See AR 409, 475-477, 518-519, 567, 594, 599, 602-603, 606, 823, 828.) 9 In addition, the ALJ found that Plaintiff’s activities of daily living were 10 inconsistent with his allegedly severe mental impairment. In particular, the ALJ 11 pointed out that Plaintiff lived alone, took care of his personal grooming, drove, got 12 along with family members, had close friends, had no problems getting along with 13 neighbors, had no difficulty completing household tasks, prepared meals daily, went 14 out almost every day, shopped for groceries, was able to handle his finances, spent 15 time with others, talked on the phone daily, did not need reminders, got along with 16 authority figures, and could follow spoken instructions. The ALJ also noted 17 Plaintiff’s testimony that he had moved into a sober living home with six other men, 18 where he had his own room, he attended AA meetings twice a week, and he was the 19 secretary at one of those meetings. (AR 17-18 [citing AR 47, 77-79, 315-325, 474- 20 475.) Each of the foregoing activities or abilities is supported by the record and was 21 properly considered by the ALJ in concluding that Plaintiff’s mental impairment did 22 not impose more than minimal limitations on his daily activities or social functioning. 23 See Haverstock v. Colvin, 2014 WL 7149417, at *3 (C.D. Cal. Dec. 12, 2014) (with 24 regard to mental impairments, specific criteria which must be met in determining the 25 existence of a severe mental impairment, requiring the ALJ to evaluate evidence of 26 activities of daily living; social function; and concentration, persistence, or pace). 27 Last, the ALJ discussed Plaintiff’s demeanor at the hearing, finding that it 28 undermined his allegations because Plaintiff was “lucid and responsive to 5 1 questioning”; his answers “demonstrated good memory recall and logical thinking”; 2 and his testimony reflected good social interaction and good concentration. (AR 18.) 3 Plaintiff contends that the opinions of Drs. Parikh, Brooks, and Balson could 4 not constitute substantial evidence because Drs. Parikh and Brooks rendered their 5 opinions prior to Plaintiff’s hospitalization on March 31, 2014 and Dr. Balson failed 6 to review those hospitalization records. According to Plaintiff, these medical 7 opinions cannot constitute substantial evidence because “the subsequent 8 hospitalization and treatment records reveal the presence of a more limiting mental 9 impairment.” (ECF No. 18 at 6.) 10 The ALJ, however, thoroughly considered all of the medical evidence related 11 to Plaintiff’s mental impairment, including Plaintiff’s March 2014 hospitalization, in 12 concluding that Plaintiff’s mental impairments did not impose any limitations upon 13 his RFC. Specifically, the ALJ noted that on March 31, 2014, Plaintiff presented to 14 the emergency room intoxicated and stated that he had suicidal ideation. After 15 undergoing numerous physical and mental examinations, which revealed generally 16 normal findings, Plaintiff was released on April 4, 2014. (AR 27, 496-498, 502). The 17 hospital records on which Plaintiff relies reflect that on arrival, Plaintiff was 18 diagnosed with suicidal ideation, alcohol intoxication, and dehydration. (AR 500- 19 501.) Upon release, Plaintiff was diagnosed with “major depressive disorder, single 20 episode, unspecified.” (AR 498.) Other than his conclusory assertion, Plaintiff does 21 not provide any reason why his hospitalization nullifies the evidentiary value of all 22 prior medical opinions, particularly in light of the fact that the hospitalization records 23 do not contain medical opinions that contradicted those of Drs. Parikh, Brooks, or 24 Balson. 25 Next, Plaintiff takes issue with the ALJ’s reliance upon his normal mental 26 status examinations. While conceding that the ALJ correctly interpreted the medical 27 record in this regard, Plaintiff argues that the examinations were only “a part of his 28 mental health picture.” (ECF No. 18 at 6.) According to Plaintiff, his treatment 6 1 records demonstrate that he “did not respond to certain medication” and had 2 “increasing bouts of depression, irritability and insomnia.” (ECF No. 18 at 6.) 3 The treatment records to which Plaintiff cites indicate that he received mental 4 health treatment for depression, and that on some occasions reported that specific 5 medication did not help and complained of irritability and insomnia. (AR 703-707.) 6 The existence of an impairment, diagnosis, or symptom, however, does not mean that 7 Plaintiff suffered from a significant limitation in his ability to perform work 8 activities. To the contrary, standing alone, neither a diagnosis nor a claimant’s 9 subjective complaints are sufficient to demonstrate severity at step two. See 10 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164-1165 (9th Cir. 2008) 11 (ALJ did not err at step two by failing to classify carpal tunnel syndrome as a severe 12 impairment where the medical record did not establish work-related limitations); 13 Draiman v. Berryhill, 2018 WL 895445, at *7 (C.D. Cal. Feb. 13, 2018) (claimant’s 14 “diagnoses of Major Depressive Disorder and Generalized Anxiety Disorder are 15 insufficient to demonstrate that she has a severe mental impairment” at step two); 16 Gahagan v. Colvin, 2013 WL 4547868, at *6 (E.D. Wash. Aug. 28, 2013) (“that 17 certain diagnoses exist in the record does not establish that they are severe or cause 18 disabling symptoms) (citing Key v. Heckler, 754 F.2d 1545, 1549-1550 (9th Cir. 19 1985) (diagnosis alone does not establish severity). 20 Plaintiff also objects to the ALJ’s reliance upon his daily activities in reaching 21 his non-severity finding. Plaintiff argues that, “many home activities are not easily 22 transferable to what may be the more grueling environment of the workplace.” (ECF 23 No. 18 at 7.) As discussed above, however, an ALJ is required to consider a 24 claimant’s daily activities in analyzing the severity of a mental impairment at step 25 two. See Haverstock, 2014 WL 7149417, at *3; 20 C.F.R. §§ 404.1520a(c)-(d), 26 416.920a(c)-(d). Further, it was reasonable for the ALJ to infer from Plaintiff’s daily 27 activities that his mental impairments did not impose significant limitations on his 28 social function or concentration. 7 1 Next, Plaintiff argues that the ALJ’s reliance upon his own observations at the 2 hearing amounted to “sit and squirm” jurisprudence. (ECF No. 18 at 7 [citing 3 Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985)].) Although courts generally 4 condemn an ALJ’s reliance upon personal observations, this is not a case where the 5 ALJ substituted his own lay judgment in the place of a medical diagnosis. Instead, 6 the ALJ relied, in part, upon observations that Plaintiff’s conduct at the hearing was 7 inconsistent with alleged impaired concentration or social function. This was not an 8 improper consideration. See Orn v. Astrue, 495 F.3d 625, 639-640 (9th Cir. 2007) 9 (while an ALJ may not rely solely on personal observations to discount a claimant’s 10 testimony, the ALJ may use those observations in context with other indicators of the 11 claimant's credibility in evaluating testimony); Estrada v. Colvin, 2016 WL 1181505, 12 at *10 (E.D. Cal. Mar. 28, 2016) (ALJ was entitled to consider observations that 13 claimant was able to participate in the hearing without distraction, which contradicted 14 hearing testimony regarding maintaining concentration); Obiora v. Astrue, 2012 WL 15 628144, at *4 (C.D. Cal. Feb. 27, 2012) (ALJ properly considered that the claimant, 16 inconsistent with his allegations of difficulty concentrating and following 17 instructions, “behaved appropriately” at the hearing and was able to make arguments 18 on his own behalf). 19 Finally, Plaintiff points out that in reaching his non-severity determination, the 20 ALJ mentioned Plaintiff’s “conservative, routine treatment with medications.” (AR 21 17.) Plaintiff contends that the ALJ erred in so characterizing Plaintiff’s mental health 22 treatment because the ALJ failed to identify other available recommended treatment. 23 Plaintiff’s claim may be well-taken. See, e.g., North v. Colvin, 2014 WL 4666575, at 24 *7 (C.D. Cal. Sept. 18, 2014) (ALJ erred by relying on “conservative” treatment to 25 reject physician’s opinion where the ALJ failed to articulate what, if any, other 26 treatment was currently recommended or available for plaintiff’s impairments). 27 Nevertheless, in light of the other substantial evidence supporting the ALJ’s finding, 28 8 1 the ALJ’s improper characterization of Plaintiff’s treatment as conservative has no 2 effect on the Court’s ultimate conclusion. 3 In sum, the ALJ’s determination that Plaintiff’s mental impairments did not 4 impose more than minimal limitation on Plaintiff’s ability to perform work related 5 activity is supported by substantial evidence. See Davenport v. Colvin, 608 F. App’x 6 480, 481 (9th Cir. 2015) (in reviewing step two determination, the Court considers 7 whether “the ALJ had substantial evidence to find that the medical evidence clearly 8 established that” Plaintiff did not have a severe mental impairment); Lomas v. Colvin, 9 2014 WL 6775762, at *4–5 (C.D. Cal. Dec. 2, 2014) (substantial evidence supported 10 ALJ’s finding of non-severe mental impairments was supported by substantial 11 evidence, including claimant’s lack of credibility, a credibility determination that the 12 claimant did not challenge); Sevier v. Colvin, 2014 WL 1247369, at *6 (E.D. Cal. 13 Mar. 25, 2014) (ALJ’s finding of non-severity supported by substantial evidence 14 where record did not “reflect any functional limitations associated with Plaintiff's 15 diagnoses of major depressive disorder, posttraumatic stress disorder, and panic 16 disorder with agoraphobia”). 17 Even if the ALJ erred by finding Plaintiff’s mental impairments non-severe, 18 the error was harmless because the ALJ nevertheless considered those impairments 19 when determining Plaintiff’s RFC at step four. (AR 22-23.) See Davenport, 608 F. 20 App’x at 481 (“any error regarding the step-two determination is harmless because 21 the ALJ proceeded to step five and considered Davenport’s mental impairments as 22 part of that analysis”); Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007) (failure to 23 address particular impairment at step two is harmless if the ALJ fully evaluated the 24 claimant’s medical condition in later steps of sequential evaluation process); Kemp 25 v. Berryhill, 2017 WL 3981195, at *5 (C.D. Cal. Sept. 8, 2017) (any error at step two 26 was harmless because the ALJ subsequently considered mental health issues in 27 assessing the claimant’s RFC, although the ALJ found mental health issues did not 28 cause any limitation). 9 1 2. The ALJ’s failure to include any mental health limitations in Plaintiff’s 2 RFC and hypothetical to the VE. 3 Plaintiff contends that the ALJ also erred by failing to include mild mental 4 limitations in the RFC assessment and subsequent hypothetical to the VE. (ECF No. 5 18 at 7-9.) Plaintiff’s argument is based upon a mistaken assumption that the ALJ’s 6 step two finding that Plaintiff’s mental impairments were mild – and, therefore non- 7 severe – equated to a finding that those mental impairments actually imposed 8 limitations on Plaintiff’s ability to perform work-related activity. In so arguing, 9 Plaintiff conflates the step two analysis with the separate and distinct RFC 10 assessment at steps four and five. See Sanchez v. Colvin, 2016 WL 7017221, at *6 11 (C.D. Cal. Dec. 1, 2016). 12 In support of his claim, Plaintiff relies upon Hutton v. Astrue, 491 F. App’x 13 850 (9th Cir. 2012). In Hutton, the ALJ determined at step two that the claimant’s 14 PTSD caused mild limitations in concentration, persistence or pace, but was non- 15 severe. Hutton, 491 F. App’x at 850. The ALJ later excluded consideration of the 16 claimant’s PTSD in reaching an RFC because he determined that the claimant lacked 17 credibility. In finding error, the Ninth Circuit explained, 18 Regardless of its severity, however, the ALJ was still required to 19 consider Hutton’s PTSD when he determined Hutton’s RFC. See 20 20 C.F.R. § 404.1545(a)(2) (“We will consider all of your medically 21 determinable impairments of which we are aware, including your 22 medically determinable impairments that are not ‘severe[.]’”). The ALJ, 23 however, failed to do so. 24 Hutton, 491 F. App’x at 850. 25 The regulations require the ALJ to consider the limiting effect of all 26 impairments, including those that are non-severe. The regulations, however, do not 27 require the ALJ to include limitations in the RFC if the record supports a conclusion 28 that the non-severe impairment does not cause a significant limitation in the 10 1 claimant’s ability to work. See Banks v. Berryhill, 2018 WL 1631277, at *4 (C.D. 2 Cal. Apr. 2, 2018); Aranda v. Berryhill, 2017 WL 3399999, at *6 (C.D. Cal. Aug. 8, 3 2017). Rather, as long as the ALJ “actually reviews the record and specifies reasons 4 supported by substantial evidence for not including the non-severe impairment [in 5 the RFC determination], the ALJ has not committed legal error.” Medlock v. Colvin, 6 2016 WL 6137399, at *5 (C.D. Cal. Oct. 20, 2016). 7 Here, unlike in Hutton, the ALJ expressly considered all of the evidence 8 related to Plaintiff’s mental impairments at step four before concluding that those 9 non-severe impairments did not necessitate inclusion of any limitation in the RFC. 10 In particular, the ALJ discussed and evaluated the medical record, including 11 Plaintiff’s normal mental status examinations; limited clinical findings; Global 12 Assessment of Functioning scores; the March 2014 psychiatric hospitalization; and 13 the opinions of the consultative examining psychiatrist, the two State agency 14 physicians, and Plaintiff’s treating physician Dr. Michael Smith. (AR 25-28.)1 After 15 considering the medical evidence related to Plaintiff’s non-severe mental 16 impairments, the ALJ considered Plaintiff’s daily activities and his testimony and 17 demeanor during the hearing – all of which the ALJ found demonstrated that Plaintiff 18 possessed good focus, memory recall, good concentration, persistence and pace, and 19 good social interaction with not only his family, friends, and neighbors, but also 20 during the hearing. (AR 29.) After thoroughly considering all of the evidence 21 regarding Plaintiff’s mental impairments, the ALJ concluded that they did not 22 warrant inclusion of any mental limitations in the RFC. This did not constitute legal 23 error. See, e.g., McIntosh v. Berryhill, 2018 WL 3218105, at *4 (C.D. Cal. June 29, 24 2018) (distinguishing Hutton where the ALJ expressly considered the claimant’s 25 non-severe mental impairment in formulating RFC, and concluding that because ALJ 26 concluded that mental impairment caused no more than minimal restrictions, there 27 The ALJ gave little weight to Dr. Smith’s opinion regarding Plaintiff’s mental limitations for several reasons (AR 28-29), a conclusion that Plaintiff does not contest. 1 28 11 1 was no requirement to include it in the claimant’s RFC); Medlock, 2016 WL 2 6137399, at *5 (no legal error where, “[u]nlike the ALJ in Hutton, the ALJ in this 3 case thoroughly considered the medical evidence related to Plaintiff's mild mental 4 impairment at step four before choosing not to include the limitation in the RFC 5 determination”); Ball v. Colvin, 2015 WL 2345652, at *3 (C.D. Cal. May 15, 2015) 6 (same). It follows that the ALJ did not err by failing to include any mental limitations 7 in his hypothetical questions to the VE or by relying on the VE’s opinion in reaching 8 his disability determination. ORDER 9 10 For the foregoing reasons, IT IS ORDERED that Judgment be entered 11 affirming the decision of the Commissioner and dismissing this action with prejudice. 12 13 DATED: 7/18/2018 14 15 16 ALEXANDER F. MacKINNON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 12
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