Emma L. Verlin Scott v. Nancy A. Berryhill

• Court: District Court, C.D. California
• Decided: December 23, 2019
• Docket: 5:18-cv-02338
• Status: Unknown

Opinion

1 O 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 EMMA S.,1 Case No. 5:18-cv-02338-MAA 12 Plaintiff, MEMORANDUM DECISION AND 13 v. ORDER AFFIRMING DECISION OF THE COMMISSIONER 14 15 ANDREW M. SAUL,2 Commissioner of Social Security, 16 Defendant. 17 18 19 On October 31, 2018, Plaintiff filed a Complaint seeking review of the Social 20 Security Commissioner’s final decision terminating her Supplemental Security 21 Income benefits, which she had been receiving pursuant to Title XVI of the Social 22 Security Act. This matter is fully briefed and ready for decision. For the reasons 23 discussed below, the Commissioner’s final decision is affirmed, and this action is 24 dismissed with prejudice.

25 1 Plaintiff’s name is partially redacted in accordance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court 26 Administration and Case Management of the Judicial Conference of the United States. 27 2 The Commissioner of Social Security is substituted as the Defendant pursuant to 28 Federal Rule of Civil Procedure 25(d). 1 PROCEDURAL HISTORY On October 10, 2012, the Commissioner found that Plaintiff was disabled 2 beginning on May 11, 2012 due to an organic mental disorder and epilepsy. 3 (Administrative Record [AR] 18, 92.) The Commissioner found that Plaintiff’s 4 mental conditions met the requirements of Listing 12.02 (Organic Mental 5 Disorders). (AR 87-88.) 6 On November 22, 2016, the Commissioner determined that Plaintiff was no 7 longer disabled as of November 1, 2016. (AR 18, 105.) On reconsideration, a 8 disability hearing officer upheld the decision. (AR 18, 138-47.) Plaintiff requested 9 a hearing before an administrative law judge (“ALJ”). (AR 151.) At a hearing held 10 on December 11, 2017, at which Plaintiff waived her right to counsel, the ALJ 11 heard testimony from Plaintiff, Plaintiff’s son, and a vocational expert. (AR 33- 12 81.) In a decision issued on February 6 , 2018, the ALJ found that Plaintiff’s 13 disability had ended as of November 1, 2016. (AR 18-28.) 14 The ALJ applied the evaluation for medical improvement, as set out in 20 15 C.F.R. § 416.994, to make the following findings. (AR 19.) Since November 1, 16 2016, Plaintiff did not have an impairment or combination of impairments that met 17 or equaled the severity of a listed impairment. (AR 20.) Since November 1, 2016, 18 there had been medical improvement. (AR 22.) The medical improvement was 19 related to the ability to work because Plaintiff no longer met or equaled the 20 requirements of a listed impairment. (Id.) Since November 1, 2016, Plaintiff 21 continued to have severe impairments consisting of “epilepsy/seizure disorder” and 22 an organic mental disorder. (AR 23.) Beginning on November 1, 2016, Plaintiff 23 had a residual functional capacity for medium work with additional non-exertional 24 limitations including a limitation to simple, routine, and repetitive tasks. (Id.) 25 Although Plaintiff had no past relevant work (AR 26), her residual functional 26 capacity enabled her to perform other work in the national economy, in the 27 occupations of “marker, laundry,” “linen room attendant,” and “stores, laborer” 28 1 (AR 27). Thus, the ALJ concluded that Plaintiff’s disability ended on November 1, 2016 and that she had not become disabled again since that date. (Id.) 2 On October 3, 2018, the Appeals Council denied Plaintiff’s request for 3 review. (AR 1-6.) Thus, the ALJ’s decision became the final decision of the 4 Commissioner. 5

6 DISPUTED ISSUE 7 The disputed issue here is “whether the ALJ’s conclusion that substantial 8 medical improvement occurred on November 1, 2016 is supported by substantial 9 evidence.” (ECF No. 25, Parties’ Joint Stipulation [“Joint Stip.”] at 4.) 10

11 STANDARD OF REVIEW 12 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s final 13 decision to determine whether the Commissioner’s findings are supported by 14 substantial evidence and whether the proper legal standards were applied. See 15 Treichler v. Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 16 2014). Substantial evidence means “more than a mere scintilla” but less than a 17 preponderance. See Richardson v. Perales, 402 U.S. 389, 401 (1971); Lingenfelter 18 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). Substantial evidence is “such 19 relevant evidence as a reasonable mind might accept as adequate to support a 20 conclusion.” Richardson, 402 U.S. at 401. The Court must review the record as a 21 whole, weighing both the evidence that supports and the evidence that detracts from 22 the Commissioner’s conclusion. Lingenfelter, 504 F.3d at 1035. Where evidence is 23 susceptible of more than one rational interpretation, the Commissioner’s 24 interpretation must be upheld. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 25 2007). 26 /// 27 /// 28 1 DISCUSSION A. Legal Standard. 2 Once a claimant is found to be disabled, a presumption of continuing 3 disability arises in her favor. See Bellamy v. Secretary of Health & Human 4 Services, 755 F.2d 1380, 1381 (9th Cir. 1985) (citing Murray v. Heckler, 722 F.2d 5 499, 500 (9th Cir. 1983)). To rebut the presumption, the Commissioner has the 6 burden to come forward with evidence of medical improvement. See Murray, 722 7 F.2d at 500. 8 Medical improvement “must be based on changes (improvement) in the 9 symptoms, signs, or laboratory findings associated with [the claimant’s] 10 impairment(s).” See 20 C.F.R. § 416.994 (b)(1)(i). An ALJ must “compare the 11 medical evidence used to determine that the claimant was disabled with the medical 12 evidence existing at the time of the asserted medical improvement.” Attmore v. 13 Colvin, 827 F.3d 872, 873 (9th Cir. 2016); see also 20 C.F.R. § 416.994 (b)(1)(vii) 14 (an ALJ must compare “the current medical severity” of the claimant’s impairment 15 to the medical severity of the impairment at the time of the “most recent favorable 16 medical decision” that she was disabled). The evidence of medical improvement 17 must satisfy the “substantial evidence” standard. See Murray, 722 F.2d at 500. 18

19 B. Analysis. 20 1. Substantial Evidence of Medical Improvement. 21 The ALJ compared the evidence existing at the time of Plaintiff’s most recent 22 favorable medical decision on October 10, 2012 with the medical evidence existing 23 at the time of her asserted medical improvement on November 1, 2016. (AR 20.) 24 Based on an independent review of the record, the Court finds that substantial 25 evidence supported the ALJ’s determination that Plaintiff had experienced medical 26 improvement such that she was no longer disabled. 27 /// 28 1 The ALJ first compared the symptom evidence relating to Listing 12.02 (Organic Mental Disorders). On October 10, 2012, Plaintiff had been found to have 2 met the requirements of this listing based on (1) satisfaction of the “A” criteria due 3 to a memory impairment and a loss of at least 15 I.Q. points, plus (2) satisfaction of 4 the “B” criteria due to marked difficulties in the areas of maintaining social 5 functioning and maintaining concentration, persistence, or pace. (AR 87-88.) As 6 of November 1, 2016, however, the ALJ found that Plaintiff no longer met the 7 requirements of the listing because the two “B” criteria were no longer satisfied. 8 (AR 20-21.) The ALJ found that as of November 1, 2016, Plaintiff had only mild 9 difficulties in social functioning, based on her documented ability to interact with 10 others; and had only mild difficulties in concentration, persistence, or pace, based 11 on mental status examinations showing a normal attention span and ability to 12 concentrate as well as evidence of her ability to answer questions during an 13 interview. (AR 21 [citing AR 219-25, 336-42, 343-75, 397-403, 404-06].) The 14 evidence cited by the ALJ showed that Plaintiff was friendly and cooperative (AR 15 224, 351, 357), was able to understand and answer questions (AR 224), and 16 displayed a normal attention span and ability to concentrate (AR 341). This was 17 substantial evidence of an improvement in symptoms such that Plaintiff no longer 18 satisfied the “B” criteria of Listing 12.02 and thus no longer met all the 19 requirements of that listing. 20 The ALJ also cited additional evidence of symptoms, signs, or laboratory 21 findings in between the comparison dates of October 10, 2012 and November 1, 22 2016. During that period, two treating physicians reported normal findings. One of 23 the treating physicians, Dr. Earle, conducted examinations in December 2015 (AR 24 357-60) and May 2016 (AR 351-54). During those examinations, Plaintiff 25 displayed normal symptoms or signs from a neurological standpoint: an 26 appropriate affect, normal speech, normal cranial nerves bilaterally, normal sensory 27 exam, normal bulk and contour, normal tone, normal muscle strength, and normal 28 1 coordination. (AR 351, 358.) The other treating physician, Dr. Gallegos, likewise reported a normal examination in October 2016. (AR 340-41.) During that 2 examination, Plaintiff was rated normal in every neurological area Dr. Gallegos 3 measured. (AR 341.) And a few months later, in April 2017, a computerized 4 tomography scan of Plaintiff’s brain was unremarkable. (AR 402.) This was 5 substantial evidence of an improvement in the symptoms, signs, or laboratory 6 findings associated with Plaintiff’s impairments. See 20 C.F.R. § 416.994 (b)(1)(i). 7 In addition to this evidence, the ALJ cited a July 2016 investigative report 8 that was generated in response to an allegation of Plaintiff’s possible malingering. 9 (AR 21 [citing AR 219-25].) According to that report, investigators from the Los 10 Angeles County District Attorney’s Office visited Plaintiff at her home and, using a 11 ruse for the visit, interviewed her. (AR 223.) Plaintiff told the investigators that 12 she was the caretaker for her 92-year-old grandmother; did all the cooking, 13 household cleaning, and shopping for her family; managed all of her family’s 14 finances; drove for her family members; and cared for three puppies. (AR 223-24.) 15 The investigators observed that Plaintiff was able to concentrate, recall information, 16 and answer questions, and that she did not exhibit any unusual behavior. (AR 224.) 17 Finally, the ALJ cited evidence of Plaintiff’s failure to seek treatment and 18 daily activities. The ALJ found that Plaintiff was given a referral to a neurologist in 19 June 2015 but did not go. (AR 25 [citing AR 353].) The ALJ further found that 20 Plaintiff, by her own account, was able to care for her own personal needs and 21 make sure that her daughter attended school. (AR 25 [citing AR 67, 69].) This 22 evidence further supported the ALJ’s finding of medical improvement. See 23 McCalmon v. Astrue, 319 F. App’x 658, 660 (9th Cir. 2009) (affirming finding of 24 medical improvement based on “affirmative medical evidence of improvement, the 25 long periods of time without seeking medical help, and [the claimant’s] daily 26 activities”). 27 /// 28 1 In sum, substantial evidence supported the ALJ’s determination that Plaintiff was no longer disabled because of medical improvement. 2

3 2. Plaintiff’s Contentions. 4 Although Plaintiff raises several points challenging the ALJ’s finding of 5 medical improvement, they do not warrant a different result. The Court addresses 6 Plaintiff’s contentions in turn. 7 Plaintiff contends that her asserted level of activity remained “virtually the 8 same” from the time she was awarded benefits in 2012 until the time they were 9 terminated in 2016. (Joint Stip. at 5 [citing AR 311-17, 225-25].) To the contrary, 10 the asserted level of activity for those two dates was different. In 2012, Plaintiff 11 asserted that she “needs help in making meals, doing household chores, and 12 shopping” and “is able to drive sometimes.” (AR 313.) In 2016, Plaintiff asserted 13 that she was the caretaker for her 92-year-old grandmother; did all the cooking, 14 household cleaning, and shopping for her family; managed her family’s finances; 15 drove for the entire family; and cared for three puppies. (AR 223-24.) 16 Plaintiff next contends that the investigative report of her possible 17 malingering was prepared by people of unknown qualifications and that the report 18 should have been followed by a consultative examination. (Joint Stip. at 6 [citing 19 AR 222-25].) To the contrary, the investigative report was material evidence that 20 the ALJ was allowed to consider, regardless of the investigators’ qualifications. 21 See 20 C.F.R. § 416.1450(c) (“[T]he administrative law judge may receive any 22 evidence at the hearing that he or she believes is material to the issues, even though 23 the evidence would not be admissible in court under the rules of evidence used by 24 the court.”); Richardson, 402 U.S. at 400 (recognizing that “strict rules of evidence, 25 applicable in the courtroom, are not to operate at social security hearings so as to 26 bar the admission of evidence otherwise pertinent”); Bayliss v. Barnhart, 427 F.3d 27 1211, 1218 n.4 (9th Cir. 2005) (“The Federal Rules of Evidence do not apply to the 28 1 admission of evidence in Social Security administrative proceedings.”). Moreover, the ALJ had the discretion not to order a consultative examination if he believed, as 2 he apparently did, the existing record was sufficient to resolve the issue of medical 3 improvement. See Reed v. Massanari, 270 F.3d 838, 842 (9th Cir. 2001) (an ALJ 4 has “broad latitude in ordering a consultative examination”). 5 Plaintiff next contends that the ALJ’s selection of a medical improvement 6 date of November 1, 2016, which was several months after the investigative report 7 was written in July 2016, “appears to be a random date with no evidentiary support 8 whatsoever.” (Joint Stip. at 6.) To the contrary, the record permits an inference 9 that the ALJ reasonably selected the date of November 1, 2016 because the 10 symptoms, signs, or laboratory findings associated with Plaintiff’s impairments 11 substantially established medical improvement before that date. See 20 C.F.R. 12 § 416.994 (b)(1)(i). As discussed above, Plaintiff repeatedly displayed normal 13 neurological symptoms and signs in 2015 and 2016, prior to November 1, 2016. 14 (AR 341, 351, 358.) And even though the investigative report was written months 15 before November 1, 2016, the ALJ was permitted to give Plaintiff the benefit of 16 assigning the latest possible date of medical improvement. See Mosinski v. Astrue, 17 2011 WL 2580353, at *7 (N.D. NY Mar. 7, 2011) (“The ALJ gave Plaintiff the 18 maximum benefit of this inference in selecting the August 1, 2003 date, even 19 though there was evidence in the record to suggest medical improvement occurred 20 prior to that date.”); see also Rolston v. Astrue, 298 F. App’x 661, 662 (9th Cir. 21 2008) (substantial evidence supported an ALJ’s finding of medical improvement in 22 October 2003 where, for example, the record showed marked improvement from 23 surgery in September 2003). 24 Plaintiff next contends that the ALJ erred by failing to consider evidence of 25 Plaintiff’s migraine headaches. (Joint Stip. at 7.) Because Plaintiff’s initial award 26 of disability benefits was not based on migraine headaches, they were not relevant 27 to the medical improvement analysis. See Nathan v. Colvin, 551 F. App’x 404, 406 28 1 (9th Cir. 2014) (“[A]n ALJ undertaking a continuing disability determination is required to consider whether there is any improvement for those impairments that 2 were ‘present at the time’ of the last finding of disability.”) (citing 20 C.F.R. 3 § 416.994(b)(1)(i)). Plaintiff’s allegation of migraine headaches became relevant 4 only later, when the ALJ considered Plaintiff’s ability to work after medical 5 improvement had occurred. See 20 C.F.R. § 416.994(b)(1)(v) (“When [considering 6 your ability to engage in substantial gainful activity], we will consider all your 7 current impairments not just that impairment(s) present at the time of the most 8 recent favorable determination.”). Here, however, no statement in the record, from 9 either Plaintiff or her physicians, ever specified how her migraine headaches 10 limited her ability to work. (AR 61-62, 400, 406.) Thus, evidence that Plaintiff 11 experienced migraine headaches, by itself, was not enough to call into question the 12 ALJ’s non-disability determination. See Valentine v. Commissioner Social Sec. 13 Admin., 574 F.3d 685, 692 n.2 (9th Cir. 2009) (where the claimant fails to detail 14 what limitations follow from an impairment, “[w]e reject any invitation to find that 15 the ALJ failed to account for [the claimant’s] injuries in some unspecified way.”). 16 Plaintiff next contends that because she was not represented by counsel at the 17 administrative hearing, she did not know how to explain to the ALJ that her 18 seizures permit her to function normally when she is not experiencing them. (Joint 19 Stip. at 7.) But Plaintiff waived her right to counsel at the administrative hearing. 20 (AR 40.) For such a waiver to be valid, the Commissioner’s regulations required 21 that she be notified in advance in writing of her “options for obtaining an attorney” 22 and the legal services organization that may provide “legal representation free of 23 charge.” See 20 C.F.R. § 416.1506. Plaintiff received such notice, both in writing 24 (AR 149, 153, 156-61) and again at the hearing (AR 39), rendering her waiver 25 valid. And even assuming for purposes of argument that Plaintiff’s waiver was 26 invalid, it still would not have resulted in prejudice or unfairness in the proceeding. 27 See Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir. 1985) (“Lack of counsel does not 28 1 affect the validity of the hearing unless the plaintiff can demonstrate prejudice or unfairness in the administrative proceedings.”). Despite the absence of counsel at 2 the hearing, Plaintiff was not prevented from explaining fully the nature of her 3 seizures (AR 54, 59-61) or otherwise testifying about any of her limitations. 4 Nothing in the transcript of Plaintiff’s testimony suggests that she did not 5 understand the ALJ’s questions or was unable to communicate. (AR 35-69.) Thus, 6 the absence of counsel did not result in prejudice or unfairness. 7 Plaintiff next contends that the ALJ erred by failing to consider the sedating 8 effects of her medication. (Joint Stip. at 7 [citing AR 24, 253, and 266].) Plaintiff 9 alleged that her medication makes her very drowsy such that she is “knocked out.” 10 (AR 68, 253, 266.) But the ALJ rejected Plaintiff’s subjective allegations about her 11 symptoms (AR 25-26), which Plaintiff does not challenge here. And the medical 12 record otherwise contains only a passing mention of medication side effects: in 13 2012, a physician observed that sedation was a possible side effect of Plaintiff’s 14 phenobarbital (AR 322), but subsequent records showed that Plaintiff continued 15 taking the medication without complaining of side effects (AR 332, 340, 349, 350, 16 351, 355, 356, 359). This evidence did not demonstrate that Plaintiff’s side effects 17 were severe enough to interfere with her ability to work. See Osenbrock v. Apfel, 18 240 F.3d 1157, 1164 (9th Cir. 2001) (holding that an ALJ did not err in failing to 19 credit complaints of medication side effects where there were only “passing 20 mentions” of side effects without “evidence of side effects severe enough to 21 interfere with [the claimant’s] ability to work”). 22 Plaintiff next contends that the ALJ erred by failing to discuss evidence of 23 her November 2017 visit to the emergency room. (Joint Stip. at 8 [citing AR 43].) 24 To the contrary, the ALJ did discuss this evidence. (AR 26.) Plaintiff testified that 25 she had visited the emergency room because she kept falling down. (AR 43.) But 26 the emergency room records showed that Plaintiff’s dilantin level was measured as 27 “very high” and that she voluntarily left the emergency room before receiving 28 1 treatment, with a recommendation that she stop taking dilantin and return to the hospital for continued monitoring. (AR 407-08.) A subsequent note from 2 December 2017 shows that Plaintiff’s dilantin level had decreased and that her 3 prescription therefore was adjusted so she could restart it. (AR 408.) This evidence 4 arising from the emergency room visit did not render the ALJ’s finding of medical 5 improvement erroneous or lacking in substantial evidence. 6 Plaintiff next contends that the ALJ’s residual functional capacity for 7 medium work is absurd given that, at the time of the hearing, she weighed only 88 8 pounds. (Joint Stip. at 8 [citing AR 46].) The strength activities of medium work 9 “involves lifting no more than 50 pounds at a time with frequent lifting or carrying 10 of objecting weighing up to 25 pounds.” See 20 C.F.R. § 416.967(c). Here, the 11 ALJ determined that Plaintiff did not have any physical impairment that would 12 cause any restrictions in her physical exertional abilities. (AR 23.) Plaintiff does 13 not dispute this finding. Thus, the ALJ’s residual functional capacity determination 14 for medium work was warranted under the Commissioner’s rules, despite Plaintiff’s 15 small physical stature. See 20 C.F.R. § 416.994(b)(1)(iv) (“A person who has no 16 impairment(s) would be able to do all basic work activities at normal levels; he or 17 she would have an unlimited functional capacity to do basic work activities.”). 18 Plaintiff finally contends that the ALJ erred by failing to consider the lay 19 witness testimony of Plaintiff’s son. (Joint Stip. at 8.) Plaintiff’s son testified that 20 Plaintiff had memory problems because of her medications and that he had to 21 remind her to do things. (AR 71.) The ALJ rejected this lay testimony because 22 “numerous medical examinations revealed normal mental status evaluations, 23 including an ability to remember items and repeat phrases, as well as an appropriate 24 fund of knowledge” and because Plaintiff “was able to recall information and 25 answer questions appropriately” when interviewed by the investigators. (AR 21 26 [citing AR 219-25, 336-42, 343-75, 397-403, 404-06].) This was a germane reason 27 to discount the lay witness’s testimony. See Vincent v. Heckler, 739 F.2d 1393, 28 1 |} 1395 (9th Cir. 1984) (per curiam) (conflict with medical evidence is a legally 2 || sufficient reason for rejecting a lay witness’s testimony); see also Bayliss, 427 F.3d 3 || at 1218 (same) (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)). 4 5 ORDER 6 It is ordered that Judgment be entered affirming the decision of the 7 || Commissioner of Social Security and dismissing this action with prejudice. 8 9 || DATED: December 23, 2019 . 10 11 cal? AUDERO 1D UNIFED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12