Irma Yolanda Casillas v. Andrew Saul

• Court: District Court, C.D. California
• Decided: March 9, 2021
• Docket: 5:20-cv-00088
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRMA Y. C., ) No. EDCV 20-0088 AGR ) 12 Plaintiff, ) ) 13 v. ) MEMORANDUM OPINION AND ORDER ) 14 ANDREW SAUL, ) Commissioner of Social Security, ) 15 ) Defendant. ) 16 ) 17 Plaintiff1 filed this action on January 14, 2020. The parties filed a Joint Stipulation 18 that addressed the disputed issues. The court has taken the matter under submission 19 without oral argument.2 20 Having reviewed the entire file, the court affirms the decision of the 21 Commissioner. 22 23 24 25 1 Plaintiff’s name has been partially redacted in compliance with Fed. R. Civ. P. 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and 26 Case Management of the Judicial Conference of the United States. 27 2 Pursuant to 28 U.S.C. § 636(c), the parties consented to proceed before the 28 1 I. 2 PROCEDURAL BACKGROUND 3 Plaintiff filed an application for disability insurance benefits on August 4, 2016, 4 and alleged an onset date of May 8, 2015. Administrative Record (“AR”) 15. The 5 application was denied initially and on reconsideration. AR 15, 57, 68. Plaintiff 6 requested a hearing before an Administrative Law Judge (“ALJ”). On November 8, 7 2018, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. 8 AR 30-56. On December 18, 2018, the ALJ issued a decision denying benefits. AR 12- 9 25. On December 3, 2019, the Appeals Council denied review. AR 1-5. This action 10 followed. 11 II. 12 STANDARD OF REVIEW 13 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 14 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 15 supported by substantial evidence, or if it is based upon the application of improper 16 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 17 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 18 “Substantial evidence” means “more than a mere scintilla but less than a 19 preponderance – it is such relevant evidence that a reasonable mind might accept as 20 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 21 substantial evidence exists to support the Commissioner’s decision, the court examines 22 the administrative record as a whole, considering adverse as well as supporting 23 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 24 one rational interpretation, the court must defer to the Commissioner’s decision. 25 Moncada, 60 F.3d at 523. 26 27 28 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 The ALJ found that Plaintiff met the insured status requirements through 12 December 31, 2020. AR 17. Following the five-step sequential analysis applicable to 13 disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),3 14 the ALJ found that Plaintiff had the severe impairments of status post left breast 15 lumpectomy (2008) and post effects from chemotherapy and radiation; tendonitis of the 16 left shoulder; DeQuerain’s syndrome; arthritis of the lumbar spine; and chronic plantar 17 fasciitis. AR 18. 18 The ALJ found that Plaintiff had the residual functional capacity to perform 19 medium work except that she could frequently climb ramps and stairs; frequently handle 20 bilaterally; and occasionally climb ladders, ropes and scaffolds. She requires the option 21 to change position at least two times per hour for ten minutes at a time while remaining 22 on task. AR 20. 23 24 25 3 The five-step sequential analysis examines whether the claimant engaged in 26 substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his 27 or her past relevant work, and whether the claimant is able to do any other work. 28 Lounsburry, 468 F.3d at 1114. 1 The Appeals Council concluded that Plaintiff was capable of performing her past 2 relevant work as a general clerk as generally performed (light work) and actually 3 performed (sedentary work). AR 24. 4 C. Residual Functional Capacity 5 The residual functional capacity (“RFC”) assessment measures the claimant’s 6 capacity to engage in basic work activities. Bowen v. New York, 476 U.S. 467, 471 7 (1986). The RFC is a determination of “‘the most [the claimant] can still do despite [the 8 claimant’s] limitations.’” Treichler v. Comm’r, 775 F.3d 1090, 1097 (9th Cir. 2014) 9 (citation omitted). The RFC assessment must be supported by substantial evidence. 10 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005). 11 An opinion of a treating physician is given more weight than the opinion of 12 non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). When, as 13 here, a treating physician’s opinion is contradicted by another doctor, “the ALJ may not 14 reject this opinion without providing specific and legitimate reasons supported by 15 substantial evidence in the record. This can be done by setting out a detailed and 16 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 17 thereof, and making findings.” Id. at 632 (citations and quotation marks omitted). 18 An examining physician’s opinion constitutes substantial evidence when it is 19 based on independent clinical findings. Id. When an examining physician's opinion is 20 contradicted, “it may be rejected for ‘specific and legitimate reasons that are supported 21 by substantial evidence in the record.’” Carmickle v. Comm'r, 533 F.3d 1155, 1164 (9th 22 Cir. 2008) (citation omitted). 23 “‘The opinion of a nonexamining physician cannot by itself constitute substantial 24 evidence that justifies the rejection of the opinion of either an examining physician or a 25 treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation and 26 emphasis omitted). A non-examining physician’s opinion may serve as substantial 27 evidence when it is supported by other evidence in the record and is consistent with it. 28 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 1 “When there is conflicting medical evidence, the Secretary must determine 2 credibility and resolve the conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 3 2002) (citation and quotation marks omitted). 4 The ALJ found that Plaintiff had the RFC to perform medium work except that she 5 could frequently climb ramps and stairs; frequently handle bilaterally; and occasionally 6 climb ladders, ropes and scaffolds. She requires the option to change position at least 7 two times per hour for ten minutes at a time while remaining on task. AR 20. 8 1. Mental Functional Limitations 9 Plaintiff contends that the ALJ erred in discounting the Department of Veterans 10 Affairs (“VA”) rating. An ALJ may gave less weight to a VA rating “‘if he gives 11 persuasive, specific, valid reasons for doing so that are supported by the record.’” 12 Valentine v. Comm’r, 574 F.3d 685, 695 (9th Cir. 2009) (citation omitted). “[T]he 13 acquisition of new evidence or a properly justified reevaluation of old evidence 14 constitutes a ‘persuasive, specific, and valid reason’” supported by the record to 15 discount the VA rating. Id. (citation omitted). 16 On March 21, 2017, the VA issued a report assigning a 70% disability evaluation 17 and overall 100% rating for major depressive disorder effective November 17, 2016. 18 The VA noted difficulty in adapting to work, near continuous depression and panic 19 affecting the ability to function independently and effectively, disturbances of motivation 20 and mood, and flattened affect. AR 157-58. The VA relied upon medical records 21 including a VA exam dated February 28, 2017, and Albuquerque VA medical records 22 dated September 29, 2015 to March 16, 2017. AR 161. 23 The ALJ discounted the VA rating because it was inadequately supported and 24 explained by substantial evidence. The ALJ found that the VA rating system 25 compensates a veteran for service-related disability even when, as the ALJ found, a 26 claimant’s major depressive disorder did not affect her ability to perform basic work 27 activities more than minimally. The ALJ found no limitation in the ability to understand, 28 remember and apply information; mild limitation in the ability to interact with others; mild 1 limitation in concentrating, persisting or maintaining pace; and no limitation in managing 2 or adapting herself. AR 18-19, 23. 3 The ALJ’s reasons for discounting the VA rating is supported by substantial 4 evidence in the record. See Valentine, 574 F.3d at 695. Plaintiff retired from the 5 military as of June 30, 2015, after the alleged onset date of May 8, 2015. AR 826. 6 Plaintiff sought treatment in September 2014 for stress, depression, anxiety and poor 7 concentration. AR 342. She was diagnosed with major depressive disorder (recurrent, 8 moderate) and adjustment disorder. Although Plaintiff argues she was unable to 9 perform her job, the VA records indicate she had no duty restrictions or safety concerns 10 during her treatment through April 2015, when she was released from treatment with no 11 limitations. AR 359; see also AR 385-86. 12 Plaintiff’s mental health records indicate no deterioration in mental functioning 13 required for work duties during the period through the date of the ALJ’s decision. 14 Rather, the mental health records relate to a sleep disorder stemming from her long 15 hours working in the military, her relationship with her three children who were budding 16 teenagers and had conflicts, and medication to manage depression and anxiety. After 17 leaving the military, Plaintiff moved to Albuquerque, New Mexico. She continued 18 therapy to cope with the above-described problems. AR 738-39. Her mental status 19 examination indicated she was cooperative with normal speech and no psychomotor 20 excitation or slowing. Her thought process was coherent, logical and goal-oriented; her 21 mood was depressed; her affect was full and appropriate; and her insight and judgment 22 were good. E.g., AR 640. Her mental status examinations have been consistent 23 throughout the period. In February 2017, Plaintiff commenced a VA program for 24 depression and anxiety known as Acceptance and Commitment Therapy (ACT),4 and 25 family therapy with her children. AR 580-81. Plaintiff had significant anxiety and 26 27 4 The ACT program works on promoting a full and meaningful life, skills to handle 28 1 moderately severe depression. AR 569-70. She apparently completed the ACT 2 program in May 2017. Her mental status examination was unchanged. E.g., AR 827- 3 28 (reporting her concentration is good, she can pay attention to read, and goes to 4 church many evenings). In July 2017, Plaintiff’s major depressive disorder, recurrent, 5 was in partial remission. Plaintiff reported her mood was stable. She was assessed 6 with insomnia disorder. AR 802. In August 2017, Plaintiff reported some anxiety with 7 selling her house in Albuquerque and buying a house in California, but was looking 8 forward to the move, being close to family and taking a class at the community college. 9 She reported not being depressed and was satisfied with her medications. AR 850. 10 Her mood was mildly anxious and not sad. AR 851. In February 2018, Plaintiff 11 reported anxiety and depression. She had an episode of intense anxiety while driving 12 and had to pull over for one or two minutes. Her mood seemed mildly anxious based 13 on her statements and speech rate, volume and tone. AR 919-20; see also AR 917 14 (mental status 3/28/18). 15 Plaintiff has not shown error. 16 2. Physical Functional Limitations 17 As discussed above, the ALJ found that Plaintiff had the RFC to perform medium 18 work except that she could frequently climb ramps and stairs; frequently handle 19 bilaterally; and occasionally climb ladders, ropes and scaffolds. She requires the option 20 to change position at least two times per hour for ten minutes at a time while remaining 21 on task. AR 20. 22 The ALJ’s RFC assessment that Plaintiff could perform medium work is not 23 supported by substantial evidence. The VA medical records indicate that Plaintiff had a 24 history of wrist pain and right elbow pain. AR 623-24. In March 2017, Plaintiff reported 25 right elbow pain that affected her ability to grip the steering wheel for long periods of 26 time (13-hour drive), pour, and use pots and pans.5 Her grip strength was 9 lbs. on the 27 28 5 To accommodate her pain, Plaintiff had previously bought pans with two handles 1 left and 9.5 lbs. on the right. Her bilateral wrists were swollen and tender to the touch. 2 She was prescribed physical therapy and exercise. AR 504-05, 507. In April 2017, 3 Plaintiff was performing the daily exercises and her soreness after exercise had 4 lessened over time. During her 45-minute physical therapy session, brachioradial 5 tenderness was less than before. She experienced soreness in the posterior wrist and 6 forearm before icing at home. AR 843-44. In May 2017, Plaintiff’s wrist strength was 7 3+/5 with pain. Her grip strength had improved to 27 lbs. on the left and 30 lbs. on the 8 right, which was still impaired. AR 811. Plaintiff continued to experience bilateral wrist 9 pain in November 2017. AR 867. In 2018, Plaintiff reported breast pain when she 10 exercises or moves that resolves when she sits or lays down. AR 912. At rest, breast 11 pain was 2/10 but upon palpation increased to 8/10. AR 915. Plaintiff was told to use 12 Aleve and was referred for injections to relieve the pain. AR 912, 914, 930. 13 Although the ALJ erred in finding Plaintiff capable of medium work with 14 restrictions, the ALJ found that Plaintiff was capable of performing her past relevant 15 work as a general clerk as generally performed (light work) and actually performed 16 (sedentary work). AR 24. Accordingly, any error in the RFC assessment would be 17 harmless unless Plaintiff is incapable of performing her past relevant work either as 18 actually performed or as generally performed. See Pinto v. Massanari, 249 F.3d 840, 19 845 (9th Cir. 2001). An error is harmless when it is “‘inconsequential to the ultimate 20 nondisability determination.’” Marsh v. Colvin, 792 F.3d 1170, 1173 (9th Cir. 2015) 21 (citation omitted). 22 There is no indication in the medical records that Plaintiff is precluded from her 23 past relevant work at the sedentary or light level. In May 2017, Plaintiff reported that 24 she walks with her mother 60-90 minutes per day. AR 827. On examination, Plaintiff 25 had no back pain with palpation and no cva tenderness. AR 840. She reported that, 26 although there is chronic pain, she was satisfied with the current regimen of pain control 27 and level of functioning. AR 842. In November 2017, Plaintiff had a normal gait. AR 28 870. According to the DOT, the general clerk position does not require climbing, 1 balancing, stooping, kneeling, crouching, crawling or exposure to environmental 2 conditions or hazards. (DOT 209.562-010.) The ALJ limited Plaintiff to frequent 3 handling bilaterally, which is required to perform the general clerk position according to 4 the DOT. The state agency physician on reconsideration limited Plaintiff to frequent 5 handling based on her level of recurrent pain. AR 77. The term “handling” means the 6 ability to seize, hold, grasp, or turn an object. Sylvia L.P. v. Saul, 2019 U.S. Dist. LEXIS 7 149874, *5 (C.D. Cal. Sept. 3, 2019). Plaintiff described her clerical position as typing, 8 making copies, answering phones, attending to new recruits (i.e., preparing their 9 contracts) and lifting boxes with files. She reported that she would write, type or handle 10 small objects four hours per workday. The heaviest weight she lifted was less than ten 11 pounds. AR 40-41, 234. The ALJ could reasonably conclude based on the medical 12 records, including her wrist and grip strength, that she could perform her past relevant 13 work as generally or actually performed.6 Plaintiff has not shown error. 14 D. Plaintiff’s Allegations 15 In assessing a claimant’s subjective allegations, the Commissioner conducts a 16 two-step analysis. Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009). First, the ALJ 17 determines whether the claimant presented objective medical evidence of an 18 impairment that could reasonably be expected to produce the symptoms alleged. Id. 19 Here, the ALJ found that Plaintiff’s medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms. AR 21. Second, the ALJ 21 evaluates the intensity and persistence of the claimant’s symptoms and determines the 22 extent to which those symptoms limit the claimant’s ability to perform work-related 23 activities. Social Security Ruling (“SSR”) 16-3p. Absent malingering, the ALJ must give 24 specific, clear and convincing reasons for discounting the claimant’s subjective 25 allegations. Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020). To do so, the ALJ 26 27 6 The vocational expert testified that the same jobs would be available even 28 1 must identify the claimant’s testimony that is found not to be credible and explain what 2 evidence undermines that testimony. On the other hand, “[o]ur cases do not require 3 ALJs to perform a line-by-line exegesis of the claimant’s testimony, nor do they require 4 ALJs to draft dissertations when denying benefits.” Id. 5 The ALJ discounted Plaintiff’s testimony based on three reasons: (1) her 6 allegations were inconsistent with the medical evidence; (2) evidence indicated that she 7 was more active and capable than she alleged; and (3) failure to comply with 8 medications in a manner consistent with the severity of mental symptoms alleged. AR 9 21-23. 10 The ALJ’s first reason is supported by substantial evidence for the reasons 11 discussed above in connection with the residual functional capacity. The second 12 reason is supported by substantial evidence. Plaintiff reported a level of activity in the 13 records that is inconsistent with the alleged severity of her symptoms at the hearing and 14 in her written statements to the Commissioner. For example, Plaintiff was able to move 15 interstate twice, go for drives (including a 13-hour drive), take vacations, go to church, 16 and go shopping. E.g., AR 494 (describing 45-60 minute exercise three times per 17 week), AR 507 (reporting 13-hour drive out of town in April 2017); AR 676; AR 827; AR 18 919. The third reason is also supported by substantial evidence. The record shows 19 Plaintiff experienced more anxiety when she ran out of medications and was off them 20 for significant periods of time. AR 827-28 (reporting increase in anxiety and several 21 panic attacks after running out of medications 3-4 weeks ago; generally doing well with 22 medications in May 2017); AR 644 (reporting in Sept. 2016 that she ran out of 23 medications on vacation and stayed off them for one month; denying depression after 24 being on medications for one month); AR 676 (reporting missing group therapy during 25 visit to Mexico City in June 2016). The ALJ could reasonably infer that Plaintiff’s 26 willingness to go without medications for significant periods of time while on vacation or 27 otherwise, without any other explanation in the record, was inconsistent with the alleged 28 severity of her mental health symptoms. Plaintiff has not shown error. 1 IV. 2 ORDER 3 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 4 5 6 Wea A Koaenberg, DATED: March 9, 2021

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