Alfalma III v. Berryhill, No. 3:2017cv01002 - Document 27 (S.D. Cal. 2018)
Court Description: REPORT AND RECOMMENDATION Regarding 14 Cross-Motions for Summary Judgment. This Court recommends that plaintiff's motion for summary judgment be denied, that the Commissioner's cross-motion for summary judgment be granted, and that J udgment be entered affirming the decision of the Commissioner and dismissing this action with prejudice. Any party having objections to the Court's proposed findings and recommendations shall serve and file specific written objections within 14 days after being served with acopy of this Report and Recommendation. The objections should be captioned "Objections to Report and Recommendation." A party may respond to the other party's objections within 14 days after being served with a copy of the objections. Signed by Magistrate Judge Robert N. Block on 6/4/2018.(rmc)
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Alfalma III v. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 17-cv-01002-MMA (RNB) FRANK ANTONE ALFAMA III, Plaintiff, 12 13 v. 14 REPORT AND RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY JUDGMENT NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 (ECF Nos. 14, 21) 17 18 This Report and Recommendation is submitted to the Honorable Michael M. Anello, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Local Civil Rule 20 72.1(c) of the United States District Court for the Southern District of California. 21 On October 20, 2016, plaintiff Frank Antone Alfama III filed a Complaint pursuant 22 to 42 U.S.C. § 405(g) seeking judicial review of a decision by the Commissioner of Social 23 Security denying his application for a period of disability and disability insurance benefits. 24 (ECF No. 1.) 25 Now pending before the Court and ready for decision are the parties’ cross-motions 26 for summary judgment. For the reasons set forth herein, the Court RECOMMENDS that 27 plaintiff’s motion for summary judgment be DENIED, that the Commissioner’s cross- 28 1 17-cv-01002-MMA (RNB) Dockets.Justia.com 1 motion for summary judgment be GRANTED, and that Judgment be entered affirming the 2 decision of the Commissioner and dismissing this action with prejudice. 3 4 PROCEDURAL BACKGROUND 5 On March 19, 2013, plaintiff protectively filed an application for a period of 6 disability and disability insurance benefits under Title II of the Social Security Act, alleging 7 disability beginning on December 24, 2011. (Certified Administrative Record [“AR”] 177- 8 78.) After his application was denied initially and upon reconsideration (AR 95-99, 101- 9 06), plaintiff requested an administrative hearing before an administrative law judge 10 (“ALJ”). (AR 107-08.) An administrative hearing was held on July 13, 2015. Plaintiff 11 appeared at the hearing with counsel, and testimony was taken from him and a vocational 12 expert (“VE”). (AR 32-59.) 13 As reflected in his August 8, 2015 hearing decision, the ALJ found that plaintiff had 14 not been under a disability, as defined in the Social Security Act, from his alleged onset 15 date through June 30, 2015, his date last insured. (AR 9-24.) The ALJ’s decision became 16 final on March 20, 2017, when the Appeals Council denied plaintiff’s request for review. 17 (AR 1-5.) This timely civil action followed. 18 19 SUMMARY OF THE ALJ’S FINDINGS 20 In rendering his decision, the ALJ followed the Commissioner’s five-step sequential 21 evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ found that 22 plaintiff did not engage in substantial gainful activity from December 24, 2011, his alleged 23 onset date, through June 30, 2015, his date last insured. (AR 11.) 24 At step two, the ALJ found that plaintiff had the following severe impairments 25 through the date last insured: history of cervical discectomy and fusion, degenerative disc 26 disease, depression, anxiety, personality disorder (NOS), and epilepsy. (AR 11.) 27 28 2 17-cv-01002-MMA (RNB) 1 At step three, the ALJ found that plaintiff did not have an impairment or combination 2 of impairments that met or medically equaled one of the impairments listed in the 3 Commissioner’s Listing of Impairments. (AR 12.) 4 Next, the ALJ determined that plaintiff had the residual functional capacity (“RFC”) 5 to perform light work as defined in 20 C.F.R. § 404.1567(b), except that plaintiff could not 6 work on unprotected heights or on dangerous machinery and could not climb ladders. 7 Plaintiff could occasionally climb ramps and stairs; could occasionally stoop and bend; and 8 could occasionally lift above shoulder level. Plaintiff could engage in routine, noncomplex 9 tasks and could work in a non-public setting. Plaintiff could have no sustained, interaction 10 with coworkers or supervisors, but was not precluded from incidental or brief social 11 conversation. (AR 14.) 12 At step four, the ALJ determined that plaintiff was not able to perform any of his 13 past relevant work as a stock clerk, mail truck driver, or parts clerk due to their exertional 14 levels. (AR 22.) 15 For purposes of his Step Five determination, the ALJ adduced and accepted the VE’s 16 testimony that a hypothetical person with plaintiff’s vocational profile could make a 17 successful adjustment to other work that existed in significant numbers in the national 18 economy (i.e., mail room clerk and garment folder). (AR 23.) Accordingly, the ALJ found 19 that plaintiff was not disabled. (AR 24.) 20 21 DISPUTED ISSUES 22 As reflected in plaintiff’s cross-motion for summary judgment, the disputed issues 23 24 25 26 27 that plaintiff is raising as the grounds for reversal and remand are as follows: 1. Whether the ALJ failed to properly evaluate the opinions of two examining physicians, Dr. Lyons and Dr. Paul. 2. Whether the ALJ failed to properly evaluate the lay witness testimony of plaintiff’s wife. 28 3 17-cv-01002-MMA (RNB) 1 STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 3 determine whether the Commissioner’s findings are supported by substantial evidence and 4 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991). Substantial evidence means “more than a mere scintilla” but less than a 6 preponderance. Richardson v. Perales, 402 U.S. 389, 401 (1971); Desrosiers v. Sec’y of 7 Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is 8 “such relevant evidence as a reasonable mind might accept as adequate to support a 9 conclusion.” Richardson, 402 U.S. at 401. This Court must review the record as a whole 10 and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529- 11 30 (9th Cir. 1986). Where evidence is susceptible of more than one rational interpretation, 12 the Commissioner’s decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 13 (9th Cir. 1984). 14 15 17 DISCUSSION A. Reversal is not warranted based on the ALJ’s alleged failure to properly evaluate the opinions of the two examining physicians. To reject the uncontradicted opinion of an examining physician, an ALJ must 18 provide “clear and convincing” reasons. Where the examining physician’s opinion is 19 contradicted by that of another doctor, the ALJ must provide “specific and legitimate” 20 reasons that are supported by substantial evidence in the record. See Regennitter v. 21 Comm’r of Soc. Sec. Admin., 166 F.3d 1294, 1298-99 (9th Cir. 1999); Lester v. Chater, 81 22 F.3d 821, 8301-31 (9th Cir. 1996); Andrews v. Shalala, 53 F.3d 1041(9th Cir. 1995); see 23 also Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). 16 24 Here, plaintiff contends that the ALJ erred by failing to provide clear and convincing 25 reasons for rejecting the opinions of examining workers compensation psychologist 26 Lawrence Lyons expressed in his November 7, 2012 psychological evaluation report and 27 his two ensuing supplemental reports and by failing to give any reasons for not mentioning 28 Dr. Lyons’ opinions in his decision. (See ECF No. 14 at 18.) However, contrary to 4 17-cv-01002-MMA (RNB) 1 plaintiff’s contention, the ALJ did discuss Dr. Lyons’ initial November 7, 2012 2 psychological evaluation report (AR 391-413) in his decision. (See AR 16.) While Dr. 3 Lyons diagnosed that plaintiff suffered various mental impairments, diagnosis alone does 4 not establish disability under the Act. See Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 5 1995). Plaintiff has failed to specify which opinions regarding plaintiff’s work-related 6 limitations by Dr. Lyons the ALJ supposedly rejected in making his RFC determination, 7 which is not surprising because Dr. Lyons did not specifically opine that plaintiff’s mental 8 impairments caused any work-related limitations. Indeed, Dr. Lyons assessed plaintiff’s 9 Global Assessment of Functioning (“GAF”) score at 61, which is indicative of only mild 10 symptoms.1 Nor has plaintiff specified in what respects the ALJ’s RFC determination, 11 which included limitations based on plaintiff’s mental impairments, supposedly was 12 inconsistent with Dr. Lyons’ opinions. 13 The Court finds that there is no need for the ALJ to discuss Dr. Lyons’ March 26, 14 2013 supplemental report (AR 563-65) or his August 26, 2013 supplemental report (AR 15 642-44) because Dr. Lyons stated in both that his findings remained unchanged from his 16 earlier report. (See AR 564, 643.) See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 17 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and developing the record, the ALJ 18 does not need to ‘discuss every piece of evidence.’”). 19 20 21 22 23 24 25 26 27 28 The GAF range for “absent or minimal symptoms” is 81–90, and the GAF range for “no more than slight impairment in social, occupational, or school functioning” is 71–80. A GAF score in the range of 61–70 is indicative of “[s]ome mild symptoms (e.g., depressed mood and mild insomnia ) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within household ), but generally functioning pretty well, has some meaningful interpersonal relationships.” See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 32 (4th ed.). 1 5 17-cv-01002-MMA (RNB) 1 Plaintiff further contends that the ALJ erred by not discussing the September 23, 2 20102 evaluation report by examining workers’ compensation psychiatrist Robindra Paul, 3 M.D., wherein Dr. Paul opined that plaintiff was temporarily totally disabled. (See ECF 4 No. 14 at 18-19.) However, this evaluation report (AR 328-65) was issued more than 15 5 months prior to the alleged onset date of December 24, 2011. (ECF No. 21-1 at 18, citing 6 AR 362.) The Court also notes that, in the accompanying “Qualified Medical Evaluator’s 7 Findings Summary Form,” also dated September 23, 2010, in response to the question, 8 “Can this employee now return to his/her usual job,” Dr. Paul checked off the “Yes” box 9 and indicated that his answer was “yes” as of September 23, 2010 with unspecified 10 restrictions. (See AR 324.) Plaintiff has failed to articulate how these conflicting opinions 11 by Dr. Paul, rendered more than 15 months prior to plaintiff’s alleged onset date of 12 December 24, 2011, were relevant to the ALJ’s determination of whether plaintiff was 13 disabled during the period December 24, 2011 through June 30, 2015 or probative of 14 plaintiff’s RFC during that period. See Howard, 341 F.3d at 1012 (an ALJ need only 15 discuss evidence that is significant and probative). 16 Moreover, the Court disagrees with plaintiff the ALJ erred in not giving proper 17 weight to Dr. Paul’s February 20, 2014 supplemental report (AR 574-613), and in not 18 mentioning Dr. Paul’s April 30, 2014 supplemental report (AR 628-39). (See ECF No. 14 19 at 18-19.) Neither supplemental report contained any opinions regarding plaintiff’s work- 20 related limitations. Both of these 2014 supplemental reports by Dr. Paul merely related 21 plaintiff’s complaints, contained more detailed descriptions of his condition, included 22 conclusions about whether plaintiff had established causation between his employment and 23 his injury in the workers’ compensation claim context, and reflected Dr. Paul’s 24 disagreement with Dr. Lyons on this point and others. Plaintiff has failed to convince the 25 26 27 28 Although plaintiff referred to this report as dated October 18, 2010, the signature date on the report was September 23, 2010. (See AR 365.) October 10, 2010 was the date of the cover letter to the Workers Compensation Judge. (See AR 310-13.) 2 6 17-cv-01002-MMA (RNB) 1 Court that either of Dr. Paul’s 2014 supplemental reports contained any opinions that were 2 relevant to the ALJ’s determination of plaintiff’s RFC that the ALJ needed to evaluate. 3 4 The Court therefore finds that reversal is not warranted based on the ALJ’s alleged failure to properly evaluate the opinions of Dr. Lyons and Dr. Paul. 5 7 B. Reversal is not warranted based on the ALJ’s alleged failure to properly evaluate the lay witness testimony of plaintiff’s wife. The law is well-established in this Circuit that lay witness testimony as to how a 8 claimant’s symptoms affect the claimant’s ability to work is competent evidence and 9 cannot be disregarded without providing specific reasons germane to the testimony 10 rejected. See, e.g., Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996); Smolen v. 11 Chater, 80 F.3d 1273, 1288-89 (9th Cir. 1996); Dodrill v. Shalala, 12 F.3d 915, 919 (9th 12 Cir. 1993). 6 13 Here, plaintiff’s wife completed a Third Party Function Report in which she stated 14 inter alia that plaintiff rarely went out and seldom left the house. (See AR 258-66.) In his 15 decision, the ALJ stated that plaintiff’s wife’s “opinion” was “given little weight” as she 16 “is not an acceptable medical source and her opinion is similar to the claimant’s testimony.” 17 (AR 22.) 18 The Court finds that the first reason proffered by the ALJ is not a legally sufficient 19 reason on which the ALJ could properly rely to find that plaintiff’s wife’s testimony was 20 not credible. A lay witness’s lack of medical training does not disqualify him or her from 21 proffering a probative opinion about the severity of a claimant’s impairments and his ability 22 to work. See Bruce v. Astrue, 557 F.3d 1113, 1116 (9th Cir. 2009) (“A lay person, . . . 23 though not a vocational or medical expert, was not disqualified from rendering an opinion 24 as to how [a claimant]’s condition affects his ability to perform basic work activities.”); 20 25 C.F.R. § 404.1513(d)(4) (evidence provided by lay witnesses may be used to show “the 26 severity of [a claimant]’s impairment(s) and how it affects [the claimant]’s ability to 27 work”). 28 7 17-cv-01002-MMA (RNB) 1 The other reason proffered by the ALJ was that plaintiff’s wife’s testimony was 2 similar to plaintiff’s testimony. (See AR 22.) Based on its comparison of plaintiff’s wife’s 3 testimony as reflected in the Third Party Function Report (AR 258-66) to plaintiff’s 4 testimony as reflected in the Adult Function Report (AR 245-53), the Court concurs. The 5 Court notes that the ALJ also made an adverse credibility determination with respect to 6 plaintiff’s subjective symptom testimony, citing among other reasons plaintiff’s non- 7 compliance with his treatment regimen, his opting to not participate in group therapy 8 recommended by his treatment providers, his looking for work during the relevant 9 disability period, his reporting that he would only work in a position that paid him what he 10 wanted and was conveniently located, and evidence in the record of apparent symptom 11 exaggeration. (See AR 14-15.) The Court finds that these constituted sufficiently specific 12 reasons on which the ALJ could properly rely in support of his adverse credibility 13 determination with respect to plaintiff’s subjective symptom testimony.3 See Molina v. 14 Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (concluding that an ALJ may discredit 15 claimant testimony based on an unexplained or inadequately explained failure to complete 16 a course of treatment); Thomas v. Barnhart, 278 F.3d 947, 960 (9th Cir. 2002) (ALJ 17 properly discredited subjective symptom testimony based on finding that claimant engaged 18 in exaggeration); Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001) (same where 19 claimant had “tendency to exaggerate”); see also Fair v. Bowen, 885 F.2d 597, 604 n.5 20 (9th Cir. 1989) (ordinary techniques of credibility evaluation apply in social security 21 22 23 24 3 25 26 27 28 The Court notes that an ALJ is only required to provide clear and convincing reasons for rejecting a claimant’s testimony when there is no evidence of malingering. See Smolen v. Chater, 80 F.3d 1273, 1283-84 (9th Cir. 1996). Here, the ALJ did make a finding and cite evidence in the record of symptom exaggeration and possible malingering (see AR 15, citing AR 723, 751); therefore, the ALJ was not required to provide clear and convincing reasons for rejecting plaintiff’s subjective symptom testimony, but rather merely reasons that were sufficiently specific to support the ALJ’s adverse credibility determination. 8 17-cv-01002-MMA (RNB) 1 cases). 2 determination with respect to his subjective symptom testimony. Indeed, plaintiff is not even challenging the ALJ’s adverse credibility 3 It follows that the ALJ’s legally sufficient reasons for rejecting plaintiff’s subjective 4 symptom testimony also constituted legally sufficient reasons for rejecting plaintiff’s 5 wife’s lay witness testimony. See Valentine v. Commissioner Social Sec. Admin., 574 F.3d 6 685, 694 (9th Cir. 2009) (“In light of our conclusion that the ALJ provided clear and 7 convincing reasons for rejecting Valentine’s own subjective complaints, and because Ms. 8 Valentine’s testimony was similar to such complaints, it follows that the ALJ gave germane 9 reasons for rejecting her testimony.”); see also Molina, 674 F.3d at 1122 (even where ALJ 10 completely failed to discuss lay witness testimony, “given that the lay witness testimony 11 described the same limitations as Molina’s own testimony, . . . the ALJ’s reasons for 12 rejecting Molina’s testimony apply with equal force to the lay testimony”). 13 In conclusion, the Court finds that, even if the ALJ did err in relying on one of his 14 two stated reasons in support of his adverse credibility determination with respect to 15 plaintiff’s wife’s lay witness testimony, the error was harmless because the ALJ’s other 16 reason and ultimate adverse credibility determination was supported by substantial 17 evidence. See Valentine, 574 F.3d at 694 (ALJ’s improper rejection of testimony of 18 claimant’s wife because she was an interested party who never saw claimant at work was 19 harmless error because there were other germane reasons for rejecting her testimony); 20 Williams v. Astrue, 493 Fed. Appx. 866, 869 (9th Cir. 2012) (now citable for its persuasive 21 value per Ninth Circuit Rule 36-3) (where ALJ provided germane reason to discredit lay 22 opinion, “under Valentine the ALJ properly discredited their testimony and the other 23 improper reasons cited by the ALJ for discrediting their lay opinions were harmless.”). 24 25 CONCLUSION AND RECOMMENDATION 26 For the foregoing reasons, this Court RECOMMENDS that plaintiff’s motion for 27 summary judgment be DENIED, that the Commissioner’s cross-motion for summary 28 9 17-cv-01002-MMA (RNB) 1 judgment be GRANTED, and that Judgment be entered affirming the decision of the 2 Commissioner and dismissing this action with prejudice. 3 Any party having objections to the Court’s proposed findings and recommendations 4 shall serve and file specific written objections within 14 days after being served with a 5 copy of this Report and Recommendation. See Fed. R. Civ. P. 72(b)(2). The objections 6 should be captioned “Objections to Report and Recommendation.” A party may respond 7 to the other party’s objections within 14 days after being served with a copy of the 8 objections. See Fed. R. Civ. P. 72(b)(2). See id. 9 IT IS SO ORDERED. 10 11 12 13 Dated: June 4, 2018 ____________________________ ROBERT N. BLOCK United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10 17-cv-01002-MMA (RNB)
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