Jose A. Solano v. Kilolo Kijakazi

• Court: District Court, C.D. California
• Decided: March 21, 2022
• Docket: 2:20-cv-09561
• Status: Unknown

Opinion

Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 1 of 11 Page ID #:426

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 JOSE S., 1 Case No. 2:20-cv-09561-GJS

12 Plaintiff MEMORANDUM OPINION AND 13 v. ORDER

14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,2 15 Defendant. 16 17 I. PROCEDURAL HISTORY 18 Plaintiff filed a complaint seeking review of Defendant Commissioner of 19 Social Security’s (“Commissioner”) denial of his application for Disability 20 Insurance Benefits (“DIB”). The parties filed consents to proceed before the 21 undersigned United States Magistrate Judge [Dkts. 8, 10] and briefs addressing 22 23 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 Case Management of the 24 Judicial Conference of the United States.

25 2 On July 9, 2021, Kilolo Kijakazi was named Acting Commissioner of the Social Security 26 Administration. See https://www.ssa.gov/history/commissioners.html. She is therefore substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner's 27 Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in [their] official capacity, be the proper defendant”). 28 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 2 of 11 Page ID #:427

1 disputed issues in the case [Dkt. 14 (“Pltf.’s Br.”) and Dkt. 19 (“Def.’s Br.”)]. The 2 Court has taken the parties’ briefing under submission without oral argument. For 3 the reasons discussed below, the Court finds that this matter should be affirmed. 4 5 II. ADMINISTRATIVE DECISION UNDER REVIEW 6 In May 2018, Plaintiff filed his application for DIB alleging a disability onset 7 date of September 1, 2016. [Dkt. 13, Administrative Record (“AR”) 15, 154-157.] 8 Plaintiff claimed that he suffered from diabetes, neuropathy, depression, and high 9 blood pressure. [AR 207.] Plaintiff’s application was denied initially, on 10 reconsideration, and after a telephonic hearing before Administrative Law Judge 11 (“ALJ”) Philip J. Simon. [AR 31-54.] 12 Applying the five-step sequential evaluation process, the ALJ found that 13 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the 14 ALJ found that Plaintiff had not engaged in substantial gainful activity since the 15 alleged disability onset date. [AR 18.] At step two, the ALJ found that Plaintiff 16 suffered from severe impairments including diabetes mellitus and peripheral 17 neuropathy. [AR 18.] The ALJ determined at step three that Plaintiff did not have 18 an impairment or combination of impairments that meets or medically equals the 19 severity of one of the listed impairments. [AR 21.] Next, the ALJ found that 20 Plaintiff had the residual functional capacity (RFC) to perform light work, including 21 that he can:

22 lift and carry 20 pounds occasionally and 10 pounds frequently, stand 23 and walk for six hours in an eight-hour workday with normal breaks, and sit for six hours in an eight-hour workday with normal breaks. He 24 can frequently use foot controls and his bilateral lower extremities. 25 The claimant cannot climb ladders, ropes, or scaffolds. He can occasionally perform all other postural activities. The claimant can 26 frequently perform activities requiring feeling in his fingertips. The 27 claimant must also avoid exposure to hazards, such as heights, dangerous moving machinery and walking on uneven terrain. [AR 22.] 28 2 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 3 of 11 Page ID #:428

1 Applying this RFC, the ALJ found at step four that Plaintiff was capable of 2 performing his past relevant work as a Pharmacy Clerk and thus he is not disabled. 3 [AR 25.] 4 Plaintiff objects to the ALJ’s decision of non-disability on two related 5 grounds: (1) the ALJ erred in finding that his depression is a non-severe impairment; 6 and (2) as a result, the ALJ failed to account for all of his true limitations in the 7 residual functional capacity finding. [Dkt. 14.] The Commissioner responds that 8 the ALJ’s decision should be affirmed. [Dkt. 19.] 9 10 III. GOVERNING STANDARD 11 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to 12 determine if: (1) the Commissioner’s findings are supported by substantial evidence; 13 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r 14 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 15 1071, 1074 (9th Cir. 2007). Substantial evidence is “such relevant evidence as a 16 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 17 Perales, 402 U.S. 389, 401 (1971) (internal citation and quotations omitted); see 18 also Hoopai, 499 F.3d at 1074. The Court will uphold the Commissioner’s decision 19 when the evidence is susceptible to more than one rational interpretation. Burch v. 20 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only 21 the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a 22 ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 23 2007). 24 25 IV. DISCUSSION 26 1. The ALJ Properly Evaluated Plaintiff’s Depression at Step Two 27 At step two of the sequential evaluation process, the ALJ must determine 28 whether the claimant has a “severe” impairment. See 20 C.F.R. §§ 404.1520(c), 3 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 4 of 11 Page ID #:429

1 416.920(c). The fact that a claimant has been diagnosed with and treated for a 2 medically determinable impairment does not necessarily mean the impairment is 3 “severe,” as defined by the Social Security Regulations. See, e.g., Fair v. Bowen, 4 885 F.2d 597, 603 (9th Cir. 1989); Key v. Heckler, 754 F.2d 1545, 1549-50 (9th Cir. 5 1985). To establish severity, the evidence must show the diagnosed impairment 6 significantly limits a claimant’s physical or mental ability to do basic work activities 7 for at least 12 consecutive months. 20 C.F.R. § 416.920(c). 8 The step two analysis is a screening device designed to dispose of de minimis 9 complaints. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). “[A]n 10 impairment is found not severe . . . when medical evidence establishes only a slight 11 abnormality or a combination of slight abnormalities which would have no more 12 than a minimal effect on an individual’s ability to work.” Yuckert v. Bowen, 841 13 F.2d 303 (9th Cir. 1988) (quoting SSR 85-28, 1985 SSR LEXIS 19). The claimant 14 bears the burden of proof at this stage and the “severity requirement cannot be 15 satisfied when medical evidence shows that the person has the ability to perform 16 basic work activities, as required in most jobs.” SSR 85-28, 1985 SSR LEXIS 19. 17 Basic work activities include: “walking, standing, sitting, lifting, pushing, pulling, 18 reaching, carrying, or handling; seeing, hearing, speaking, understanding, carrying 19 out and remembering simple instructions, responding appropriately to supervision, 20 coworkers, and usual work situations.” Id. 21 In the present case, the ALJ determined that Plaintiff’s major depressive 22 disorder was a medically determinable mental impairment, however it was not 23 proven to cause more than a minimal limitation in his ability to perform basic 24 mental work activities, and is, therefore, nonsevere. [AR 19.] Plaintiff challenges 25 this aspect of the ALJ’s decision for three reasons. First, he notes that the ALJ 26 failed to give proper “weight” to the consultative examiner’s major depressive 27 disorder diagnosis. Second, the ALJ improperly relied upon his own reading of 28 “raw medical data” to discount Plaintiff’s allegations of a severe mental impairment. 4 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 5 of 11 Page ID #:430

1 Third, he argues that the ALJ improperly relied on Plaintiff’s performance at the 2 administrative hearing and his regular daily activities to find his depression 3 nonsevere. [Dkt. 14 at 5-13.] The Commissioner responds that substantial evidence 4 supports the ALJ’s finding that Plaintiff did not have a severe mental impairment. 5 [Dkt. 19 at 5-13.] 6 The ALJ made extensive findings to support his determination that Plaintiff’s 7 major depressive disorder was not severe. First, as a preliminary matter, a diagnosis 8 alone does not establish disability. Matthews v. Shalala, 10 F.3d 678, 680 (9th Cir. 9 1993) (“The mere existence of an impairment is insufficient proof of a disability.”); 10 Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999) (“Although the appellant 11 clearly [has] diabetes, high blood pressure, and arthritis, there is no evidence to 12 support his claim that those impairments are ‘severe.’”). For an impairment to be 13 “severe,” it must significantly limit the claimant’s physical or mental ability to do 14 basic work activities, or the “abilities and aptitudes necessary to do most jobs.” 20 15 C.F.R. §§ 404.1520(c), 404.1521(b). The ALJ found that Plaintiff’s major 16 depressive disorder did not have more than a minimal effect on Plaintiff’s ability to 17 perform basic work activities and, as seen below, that conclusion is fully supported 18 by the record. [AR 19-20.] 19 Second, although Plaintiff argues the ALJ improperly “weighed” the medical 20 evidence, under the updated regulations—which apply because Plaintiff filed his 21 administrative claim after March 27, 2017—the agency is no longer required to 22 “defer or give any specific evidentiary weight, including controlling weight, to any 23 medical opinion(s) or prior administrative medical finding(s), including those from 24 [the claimant’s own] medical sources.” 20 C.F.R. §§ 404.1520c(a), 416.920c(a). 25 Instead, an ALJ is to evaluate medical opinions and prior administrative medical 26 findings by evaluating their “persuasiveness.” See 20 C.F.R. § 404.1520c (2017). 27 In evaluating persuasiveness, an ALJ must consider the PAMF’s supportability, its 28 consistency, the relationship between the source and the claimant, the source’s 5 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 6 of 11 Page ID #:431

1 specialization, and other factors such as the source’s knowledge of other evidence, 2 social security requirements, and whether there was subsequently submitted 3 evidence. Id.; 20 C.F.R. § 404.1520c(c)(1)-(c)(5). The ALJ did so here. 4 Here, consistency played a key role in the ALJ’s determination that Plaintiff’s 5 major depressive disorder was not severe. The ALJ found, in part, that the 6 consultative examiner’s opinion was internally inconsistent and at odds with the 7 overall medical record. 8 Dr. Ijeoma Ijeaku, the consultative psychological examiner, examined 9 Plaintiff on July 7, 2018, and found that he was “moderately impaired in ability to 10 understand, remember and carry out complex instructions,” but he was otherwise 11 either mildly limited or not limited in all other areas of functioning. [AR 283-287.] 12 During the examination, Dr. Ijeaku observed that Plaintiff was cooperative. [AR 13 285.] He “exhibited good eye contact, normal speech, a good mood, and an 14 appropriate affect. [AR 285.] Dr. Ijeaku did not detect any psychomotor 15 retardation, suicidal or homicidal ideation. [AR 285.] Plaintiff had a goal directed 16 thought process, no abnormal thought content, fair concentration and memory 17 (although with an inability to perform serial sevens and threes), alertness, 18 orientation, an intact fund of knowledge, and fair insight and judgment.” [AR 20, 19 286.] 20 The ALJ found Dr. Ijeaku’s opinion “partially persuasive” because while it 21 was largely consistent with the minimal psychiatric treatment history, the opinion 22 was otherwise unsupported by other evidence in the record and inconsistent with Dr. 23 Ijeaku’s own objective examination. [AR 20.] Specifically, the ALJ found that Dr. 24 Ijeaku’s finding that Plaintiff had a “moderate limitation in understanding, 25 remembering, and carrying out complex instructions” contradicted Dr. Ijeaku’s own 26 exam findings which included a largely normal mental status examination. 27 As the ALJ pointed out, Dr. Ijeaku’s opinion that Plaintiff had moderate 28 difficulty in understanding and remembering was inconsistent with the lack of any 6 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 7 of 11 Page ID #:432

1 abnormal findings on the mental status examination. The ALJ correctly noted these 2 clinical findings were inconsistent with Dr. Ijeaku’s opinion that Plaintiff had a 3 moderate limitation. See Houghton v. Comm’r Soc. Sec. Admin., 493 F. App’x 843, 4 845 (9th Cir. 2012) (ALJ properly discounted medical opinions that were “internally 5 inconsistent, unsupported by [the doctor’s] own treatment records or clinical 6 findings, inconsistent with the record as a whole, and premised primarily on [the 7 claimant’s] subjective statements which the ALJ found unreliable”). 8 The ALJ also explained that Dr. Ijeaku’s moderate limitation finding was 9 inconsistent with the lack of mental health treatment throughout the record. The 10 ALJ noted that Plaintiff had no history of intensive treatment or medical 11 interventions, and no history of counseling, therapy or other mental health services 12 from a psychiatrist. [AR 19-20.] This is a valid point. The overall medical record 13 here is very limited, consisting of approximately 70 pages addressing mostly 14 physical issues. [AR 266-277, 288-292, 293-348.] There are no substantive mental 15 health treatment notes in the medical evidence of record, and the record shows 16 Plaintiff did not seek any mental health treatment until around November 2017, over 17 a year after he alleged his work-limiting depression. [AR 269, 283]; see Lasich v. 18 Astrue, 252 Fed. Appx. 823, 825 (9th Cir. 2007) (unpublished) (ALJ properly 19 assessed claimant’s depression and anxiety as non-severe impairments, where 20 claimant “provided little evidence of significant psychiatric or psychological 21 findings demonstrating severe mental impairment and had not been regularly treated 22 by a licensed psychologist or psychiatrist or received regular mental health 23 counseling or therapy”). Thus, there was nothing in Dr. Ijeaku’s findings or the 24 overall record to suggest that Plaintiff experienced moderate limitations in his work- 25 related functioning and Plaintiff has failed to identify any evidence suggesting that 26 despite these findings that he had a moderate work-related limitation as a result of 27 his depressive disorder. 28 Further, although Plaintiff argues that the ALJ erred when he relied on his 7 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 8 of 11 Page ID #:433

1 “own [lay] interpretation of [Dr. Ijeaku’s] examination notes,” as indicated above, 2 the regulations specifically direct adjudicators to assess the persuasiveness of 3 medical opinions based on supportability and consistency with the evidence. See 20 4 C.F.R. § 404.1520c(a). Thus, Plaintiff’s argument that the ALJ erred when he relied 5 on his own lay interpretation of “raw medical data” is misplaced. Here, there was 6 no error as the ALJ interpreted Dr. Ijeaku’s narrative opinion and not evidence such 7 as complex imaging and laboratory testing results. Cf. Nguyen v. Chater, 172 F.3d 8 31, 35 (1st Cir. 1999) (ALJ erred when he formulated claimant’s residual functional 9 capacity based on magnetic resonance images without the benefit of any medical 10 opinion about the functional limitations attributable to the impairments depicted in 11 the images); Goodman v. Berryhill, No. 2:17-CV-01228 CKD, 2019 U.S. Dist. 12 LEXIS 564, 2019 WL 79016, at *5 (E.D. Cal. Jan. 2, 2019) (finding that the ALJ 13 erred in adopting state agency consultants’ opinions which were rendered before 14 “plaintiff sustained a fall in November 2014” and before “an April 2015 MRI of the 15 lumbar spine [which] showed L1 compression deformity with worsened kyphosis . . 16 .”). 17 Rather than rely on Dr. Ijeaku’s partially persuasive opinion, the ALJ found 18 the opinions of the State agency reviewing psychiatrists Dr. Petzelt and Dr. 19 Koutrakos, who concurred in their assessments that Plaintiff had no more than a 20 mild mental impairment, fully persuasive. [AR 61-62, 76-78.] The ALJ found that 21 the assessments of the state agency psychiatrists were supported by the record and 22 other evidence demonstrating that Plaintiff’s mental impairment caused no more 23 than a minimal limitation in his ability to perform basic mental work activities. [AR 24 19.] This was an appropriate determination as the opinions of non-examining 25 physicians may serve as substantial evidence when their opinions “are consistent 26 with independent clinical findings or other evidence in the record.” Thomas v. 27 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); cf. Neugebauer v. Barnhart, 154 28 Fed.App’x 649, 650 (9th Cir. 2005) (“the ALJ was free to rely on non-treating 8 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 9 of 11 Page ID #:434

1 agency physician reports that contained specific clinical support”). 2 Finally, the ALJ appropriately found that Plaintiff’s demeanor at the hearing 3 was inconsistent with his allegedly severe mental impairment. This was not an 4 improper consideration as it was reasonable for the ALJ to infer from Plaintiff’s 5 performance at the telephonic hearing that his ability to follow and respond to 6 questions contradicted a finding that he had moderate limitations in understanding, 7 remembering, and carrying out complex instructions. [AR 20]; see Lindsay v. 8 Berryhill, 2018 U.S. Dist. LEXIS 120231, 2018 WL 3487167, at *4 (C.D. Cal. July 9 18, 2018) (ALJ properly relied upon observations that claimant’s conduct at the 10 hearing was inconsistent with alleged impaired concentration or social function); 11 Estrada v. Colvin, 2016 U.S. Dist. LEXIS 40599, 2016 WL 1181505, at *10 (E.D. 12 Cal. Mar. 28, 2016) (ALJ was entitled to consider observations that claimant was 13 able to participate in the hearing without distraction, which contradicted hearing 14 testimony regarding maintaining concentration.) 15 In addition, the ALJ found that Plaintiff’s daily activities were inconsistent 16 with his allegedly severe mental impairment. In particular, the ALJ noted that 17 Plaintiff had no difficulty with personal care, household chores, driving a car, 18 shopping in stores and handling his finances. [AR 20.] He reported having a good 19 relationship with his family and in Plaintiff’s May 2018 Function Report, when 20 asked how well he got along with authority figures, Plaintiff responded “good.” 21 [AR 192.] He also reported that he can pay attention “all of the time” and he had 22 never been fired from work because of problems getting along with others. [AR 23 192.] “An ALJ is required to consider a claimant’s daily activities in analyzing the 24 severity of a mental impairment at step two.” See Lindsay v. Berryhill, Case No. 25 SACV 17-1545-AFM, 2018 U.S. Dist. LEXIS 120231, 2018 WL 3487167, at *4 26 (C.D. Cal. July 18, 2018) (citing 20 C.F.R. §§ 404.1520a(c)-(d)). Each of the 27 foregoing activities or abilities is supported by the record and was properly 28 considered by the ALJ in concluding that Plaintiff’s mental impairment did not 9 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page 10 of 11 Page ID #:435

1 impose more than minimal limitations on his functioning. See Haverstock v. Colvin, 2 2014 U.S. Dist. LEXIS 173116, 2014 WL 7149417, at *3 (C.D. Cal. Dec. 12, 2014) 3 (with regard to mental impairments, specific criteria which must be met in 4 determining the existence of a severe mental impairment, requiring the ALJ to 5 evaluate evidence of activities of daily living; social function; and concentration, 6 persistence, or pace). Thus, to the extent Plaintiff disagrees with the ALJ’s 7 interpretation of the impact of his daily activities, that is not a basis for remand. See 8 Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012). 9 2. Substantial Evidence Supports the RFC 10 Relatedly, Plaintiff argues that his RFC is erroneous because the ALJ failed to 11 account for his true limitations due to his major depressive disorder in the residual 12 functional capacity assessment. [Dkt. 14 at 13-15.] 13 The ALJ must consider all of the relevant medical opinions as well as the 14 combined effects of all of the plaintiff’s impairments, even those that are not 15 “severe.” 20 C.F.R. §§ 404.1545(a); 416.945(a); Celaya v. Halter, 332 F.3d 1177, 16 1182 (9th Cir. 2003). “[A]n RFC that fails to take into account a claimant’s 17 limitations is defective.” Valentine v. Commissioner Social Sec. Admin., 574 F.3d 18 685, 690 (9th Cir. 2009). The ALJ must determine a claimant’s limitations on the 19 basis of “all relevant evidence in the record.” Robbins v. Soc. Sec. Admin., 466 F.3d 20 880, 883 (9th Cir. 2006). 21 Here, the ALJ assessed an RFC with all of the limitations the ALJ found 22 credible and supported by substantial evidence. There was no requirement that the 23 RFC assessment include limitations unsubstantiated by objective medical evidence 24 or based on subjective symptom allegations that were properly discounted. 25 Osenbrock v. Apfel, 240 F.3d 1157, 1164-65 (9th Cir. 2001). Consequently, the 26 Court finds Plaintiff fails to show the ALJ did not adequately consider his mental 27 impairments in the RFC. 28 /// 10 Case 2:20-cv-09561-GJS Document 20 Filed 03/21/22 Page11of11 Page ID #:436

1 Vv. CONCLUSION 2 For all of the foregoing reasons, IT IS ORDERED that the decision of the 3 || Commissioner finding Plaintiff not disabled is AFFIRMED. 5 || DATED: March 21, 2022 6 Lk Po 7 GAIL J. STANDISH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11