Pistole v. Kijakazi

• Court: District Court, S.D. California
• Decided: September 28, 2023
• Docket: 3:22-cv-00113
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BILLY P., Case No.: 22-cv-00113-DEB

12 Plaintiff, ORDER: 13 v. (1) DENYING PLAINTIFF’S 14 KILOLO KIJAKAZI, MOTION FOR SUMMARY 15 Acting Commissioner of Social Security JUDGMENT; AND

16 Defendant. (2) GRANTING DEFENDANT’S 17 CROSS-MOTION FOR SUMMARY JUDGMENT 18

19 [DKT. NOS. 14, 17]

20 21 I. INTRODUCTION 22 Plaintiff Billy P. seeks review of the Commissioner of Social Security’s denial of 23 his application for disability benefits. Dkt. No. 1. The parties filed cross-motions for 24 Summary Judgment. Dkt. Nos. 14, 17. 25 For the reasons discussed below, the Court DENIES Plaintiff’s Motion for Summary 26 Judgment and GRANTS Defendant’s Cross-Motion for Summary Judgment. 27 / / 28 / / 1 II. PROCEDURAL BACKGROUND 2 On March 15, 2018, Plaintiff applied for disability and supplemental security income 3 benefits alleging disability beginning December 15, 2015. AR 19. On April 28, 2020, 4 Plaintiff amended his alleged onset date to September 23, 2016. AR 19. The Commissioner 5 denied Plaintiff’s claim initially and on reconsideration. AR 138–53, 161. 6 Plaintiff requested an Administrative Law Judge (“ALJ”) hearing (AR 192–93), 7 which the ALJ held on January 12, 2021 (AR 58–137). Following the hearing, the ALJ 8 issued a decision finding Plaintiff not disabled. AR 19–36. 9 The Appeals Council denied Plaintiff’s request for review (AR 1–6), and this case 10 followed. 11 III. SUMMARY OF ALJ’S DECISION 12 The ALJ followed the five-step sequential evaluation process. See 20 C.F.R. 13 § 404.1520. At step one, the ALJ found Plaintiff had “not engage[d] in substantial gainful 14 activity during the period from his alleged onset date of September 23, 2016, through his 15 date last insured of June 30, 2019.” AR 22. 16 At step two, the ALJ found Plaintiff had the following medically determinable 17 severe impairments: diabetes mellitus and degenerative joint disease. Id. The ALJ found 18 Plaintiff’s anxiety disorder, mood disorder, and post-traumatic stress disorder impairments 19 were not severe. AR 22–28. The ALJ determined Plaintiff’s limitations in all four mental 20 health functional areas were mild. AR 22–23. 21 At step three, the ALJ found Plaintiff did not have an impairment or combination of 22 impairments that met or medically equaled those in the Commissioner’s Listing of 23 Impairments. AR 28. 24 Before proceeding to step four, the ALJ determined Plaintiff had the residual 25 functional capacity (“RFC”) to perform medium work. Id. The ALJ determined Plaintiff 26 could “frequently climb ramps and stairs, occasionally climb ladders, but never climb ropes 27 or scaffolding. He could frequently balance, stoop or crouch. He could occasionally kneel 28 1 or crawl . . . . He could frequently reach, handle, and finger bilaterally. He should have 2 avoided work at unprotected heights.” Id. 3 At step four, the ALJ found Plaintiff “was capable of performing past relevant work 4 as a chauffeur.” AR 33. The ALJ, therefore, concluded Plaintiff was not disabled and did 5 not proceed to step five. Id. 6 IV. STANDARD OF REVIEW 7 The Court reviews the ALJ’s decision to determine whether the ALJ applied the 8 proper legal standards and whether the decision is supported by substantial evidence. 9 42 U.S.C. § 405(g); Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). Substantial 10 evidence is “such relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (quoting 12 Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is “more than a mere 13 scintilla but, less than a preponderance . . . .” Garrison v. Colvin, 759 F.3d 995, 1009 (9th 14 Cir. 2014) (quoting Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). 15 The Court may not impose its own reasoning to affirm the ALJ’s decision. Garrison, 16 759 F.3d at 1010. The Court “must consider the entire record as a whole and may not affirm 17 simply by isolating a specific quantum of supporting evidence.” Hill v. Astrue, 698 F.3d 18 1153, 1159 (9th Cir. 2012) (internal quotation marks and citation omitted). “[I]f evidence 19 exists to support more than one rational interpretation, [the Court] must defer to the [ALJ’s] 20 decision.” Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). 21 Plaintiff filed his claim after March 27, 2017; therefore, the 2017 amendments 22 governing medical opinions apply. Woods v. Kijakazi, 32 F.4th 785, 789 (9th Cir. 2022). 23 Under those amendments, the SSA “will not defer or give any specific evidentiary weight, 24 including controlling weight, to any medical opinion(s) or prior administrative medical 25 finding(s), including those from . . . medical sources.” 20 C.F.R. § 404.1520c(a). Instead, 26 all medical opinions are evaluated based on supportability, consistency, relationship with 27 the claimant, specialization, and other factors. Id. § 404.1520c(c). The SSA is required to 28 explain how it considered the most important factors, supportability and consistency, but 1 is not required to explain how it considered the other factors. Id. § 404.1520c(b)(2). 2 Supportability means a medical source must support the opinion by explaining the 3 “relevant . . . objective medical evidence.” Woods, 32 F.4th at 791. Consistency means the 4 extent to which a medical opinion is “consistent . . . with the evidence from other medical 5 sources and nonmedical sources in the claim.” Id. at 791–92 (internal citations omitted). 6 “Even under the new regulations, an ALJ cannot reject an examining or treating 7 doctor’s opinion as unsupported or inconsistent without providing an explanation 8 supported by substantial evidence.” Id. at 792. The ALJ must “articulate . . . how 9 persuasive” the ALJ finds “all of the medical opinions.” 20 C.F.R. § 404.1520c(b). 10 The Court will not reverse for a harmless error. Marsh v. Colvin, 792 F.3d 1170, 11 1173 (2015) (“ALJ errors in social security cases are harmless if they are inconsequential 12 to the ultimate no disability determination . . . .”) (internal citations and quotations omitted). 13 V. DISCUSSION 14 Plaintiff claims the ALJ: (1) improperly discounted Dr. Nitin Paul Dhiman’s opinion 15 regarding Plaintiff’s physical disabilities; (2) improperly evaluated the opinions of 16 Drs. Brady Dalton, Psy.D., Norman Zukowsky, Ph.D., and Jaga Nath Glassman, M.D., 17 regarding Plaintiff’s mental disabilities; and (3) included “inaccurate citations” to the 18 record in the written decision. Dkt. No. 14-1 at 3–9. The Court addresses each in turn and 19 finds no error. 20 A. Dr. Dhiman 21 Dr. Dhiman is a state agency consultant who reviewed the record and testified at the 22 ALJ hearing. AR 65. Dr. Dhiman testified that Plaintiff has “diabetes mellitus, high blood 23 pressure, high cholesterol, and osteoarthritis of the knees and of the hips . . . .” Id. 24 Dr. Dhiman opined that Plaintiff is limited to light exertion work and, at most, Plaintiff 25 may: occasionally lift and carry up to 20 pounds; frequently lift and carry up to 10 pounds; 26 occasionally climb ramps and stairs; never climb ladders, ropes or scaffolds; occasionally 27 stoop, kneel, crouch and crawl; and frequently reach in all other directions. AR 65–66. 28 1 The ALJ found Dr. Dhiman’s opinion “unpersuasive because it is inconsistent with 2 the record as a whole,” including: (1) documentation that Plaintiff recovered from his left 3 knee surgery; (2) evidence that Plaintiff’s right knee abnormalities did not manifest until 4 shortly before the date Plaintiff was last insured; (3) a lack of objective evidence 5 corroborating diminished strength, gait disturbances and/or joint instability; (4) evidence 6 (i.e., shoulder imaging and negative clinical signs) showing a generally intact range of 7 motion, full strength, and only mild impingement; (5) reports evidencing that Plaintiff 8 regularly exercised and lifted weights; and (6) Plaintiff’s testimony that he can bench press 9 100 pounds. AR 33. Regarding supportability, the ALJ found Dr. Dhiman’s opinion 10 unsupported because he did not consider objective evidence, symptom reports, medically 11 determinable impairments, and Plaintiff’s activities of daily living. Id. 12 Plaintiff contends the ALJ erred by: (1) failing to explain the nexus between bench 13 pressing 100 pounds and lifting and/or carrying; (2) improperly concluding Dr. Dhiman 14 did not consider Plaintiff’s activities of daily living; and (3) not sufficiently and accurately 15 explaining the reasons for rejecting Dr. Dhiman’s opinion. Dkt. No. 14-1 at 6–9. 16 The inconsistency between Plaintiff’s testimony that he can bench press 100 pounds 17 and Dr. Dhiman’s opinion that Plaintiff is limited to only occasionally lifting and carrying 18 up to 20 pounds is self-evident. As the ALJ explained, Dr. Dhiman’s opinion that Plaintiff 19 is limited to light exertion work (i.e., lifting and carrying 20 pounds occasionally and up to 20 10 pounds frequently) is inconsistent with evidence in the record establishing that Plaintiff 21 regularly exercises and lifts weights, including Plaintiff’s own testimony that he can bench 22 press 100 pounds. AR 33 (citing AR 1419, 1426 (Exhibit 8F), AR 1600 (Exhibit 11F), 23 1735 (Exhibit 14F)). Regarding Plaintiff’s argument that lifting and carrying is different 24 from bench pressing (Dkt. No. 14–1 at 6–7), the relevant point is the record contains 25 substantial evidence establishing that Plaintiff’s overall strength and level of activity is 26 significantly greater than what Dr. Dhiman opined. 27 Plaintiff next contends the ALJ’s finding that Dr. Dhiman did not consider Plaintiff’s 28 activities of daily living is not supported by substantial evidence. Dkt. No. 14-1 at 8. 1 Plaintiff specifically claims Dr. Dhiman did not hear Plaintiff’s testimony about daily 2 activities (because Dr. Dhiman testified after Plaintiff) and the ALJ did not ask Dr. Dhiman 3 about Plaintiff’s daily activities. Although Plaintiff accurately sets out the order of 4 testimony at the ALJ hearing, it does not undermine the accuracy of the ALJ’s point: 5 Dr. Dhiman did not discuss Plaintiff’s activities of daily living, some of which are 6 described in other parts of the record that were available to Dr. Dhiman before he testified. 7 Finally, Plaintiff argues “[t]he ALJ did not provide a decision that permits 8 meaningful review of the reasons for rejecting [Dr. Dhiman]” and “gave reasons that were 9 either completely wrong, or unreasonable.” Dkt. No. 14-1 at 9. To the contrary, the ALJ 10 discussed the reasons for rejecting Dr. Dhiman’s opinion at length and supported those 11 reasons with citations to the record. AR 32–33. 12 In sum, the ALJ considered and evaluated Dr. Dhiman’s opinion against other 13 evidence in the record and concluded Plaintiff’s physical limitations were less limited than 14 what Dr. Dhiman opined. This both complies with the articulation requirement of 20 C.F.R. 15 § 416.920c(b) and constitutes substantial evidence supporting the ALJ’s conclusion. See 16 Johnson v. Kijakazi, No. 21-35755, 2022 WL 3998572, at *1 (9th Cir. Aug. 11, 2022) (no 17 error where the ALJ sufficiently articulated the reasons for rejecting a medical opinion and 18 those reasons were supported by substantial evidence in the record). 19 B. Drs. Dalton, Zukowsky, and Glassman 20 Plaintiff next the challenges the ALJ’s treatment of three opinions (Drs. Dalton, 21 Zukowsky, and Glassman) regarding Plaintiff’s mental health limitations. Dkt. No. 14-1 22 at 9–16. 23 When evaluating alleged mental disabilities at step two, the ALJ must consider four 24 functional areas: “understand, remember, or apply information; interact with others; 25 concentrate, persist, or maintain pace; and adapt or manage oneself.” 20 C.F.R. 26 §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ must then rate the degree of limitation on a 27 five-point scale: “[n]one, mild, moderate, marked, and extreme.” 20 C.F.R. 28 §§ 4041520a(c)(4), 416.920a(c)(4). “When [the ALJ] rate[s] the degrees of [] limitation as 1 ‘none’ or ‘mild,’ [the ALJ] generally conclude[s] that [the] impairment is not severe, unless 2 the evidence otherwise indicates that there is more than a minimal limitation in [the 3 claimant’s] ability to do basic work activities.” 20 C.F.R. §§ 404.1520a(d)(1), 4 416.920a(d)(1). 5 Contrary to Dr. Dalton’s and Dr. Zukowsky’s (and consistent with Dr. Glassman’s) 6 opinions, the ALJ determined that Plaintiff’s limitations in all four functional areas were 7 mild. AR 22–23. The Court finds the ALJ’s finding of mild limitations is supported by 8 substantial evidence. 9 1. Drs. Dalton and Zukowsky 10 Drs. Dalton and Zukowsky are state agency consultants. Dr. Dalton reviewed the 11 record in September 2018, and Dr. Zukowsky reviewed the record in May 2019. AR 26, 12 150, 167. Unlike the ALJ (who found only mild limitations), both Drs. Dalton and 13 Zukowsky opined that Plaintiff has moderate limitations in his ability to: maintain attention 14 and concentration for extended periods; perform activities within a schedule, maintain 15 regular attendance, and be punctual within customary tolerances; work in coordination with 16 or in proximity to others without being distracted by them; complete a normal workday 17 and workweek without interruptions from psychologically based symptoms and to perform 18 at a consistent pace without an unreasonable number and length of rest periods; interact 19 appropriately with the general public; accept instructions and respond appropriately to 20 criticism from supervisors; get along with coworkers or peers without distracting them or 21 exhibiting behavioral extremes; respond appropriately to changes in the work setting; and 22 set realistic goals or make plans independently of others. AR 148–50, 166–67. 23 The ALJ found Dr. Dalton’s and Dr. Zukowsky’s opinions “unpersuasive because 24 they are inconsistent with the record as a whole.” AR 26. The ALJ relied on the “dearth of 25 significant positive objective signs in treatment records.” AR 26–27. The ALJ also found 26 their opinions unsupported because they “do not cite significant objective medical signs to 27 corroborate the stated limitations” and “do not properly address the activities of daily living 28 and work activity confirmed by the evidence.” AR 27. 1 Plaintiff contends “the findings/opinions of the state agency mental health 2 professionals are substantial evidence for the existence of severe mental impairment.” Dkt. 3 No. 14-1 at 16. Plaintiff specifically argues: (1) Dr. Dalton’s and Dr. Zukowsky’s opinions 4 are supported by and consistent with the medical evidence; (2) the ALJ failed to consider 5 additional factors because Drs. Dalton, Zukowsky, and Glassman are equally persuasive; 6 and (3) the ALJ improperly relied on evidence of daily and work activities that “fail to 7 meet a threshold of having application in a work setting.” Id. at 14–16. 8 In rejecting both Dr. Dalton’s and Dr. Zukowsky’s opinions as inconsistent with and 9 unsupported by the record, the ALJ concluded: 10 [Plaintiff] consistently presented with normal dress and grooming and maintained good eye contact during examinations. He also repeatedly 11 exhibited normal attention and displayed normal psychomotor activity. He 12 consistently displayed linear and logical thought processes. There were no signs of abnormal thought content such as delusions or hallucinations. He also 13 consistently exhibited normal cognition without objective signs of diminished 14 memory. He was also calm and cooperative during examinations and at times, there were no signs of anxiety. At times, he also exhibited an appropriate 15 mood and affect. He was also consistently assessed with good insight and 16 judgment. Notably there is no evidence of psychiatric emergencies or hospitalizations during the adjudicatory period. The severity rating is also 17 generally inconsistent with documented activities of daily living, including 18 work activity, adherence to an exercise regimen, and dictation of a book . . . . 19 AR 26–27 (internal citations omitted). 20 The record contains substantial evidence supporting the ALJ’s conclusions. Multiple 21 treatment notes demonstrate Plaintiff: is fully engaged and attentive; can use good insight 22 and judgment to solve problems; maintains appearance and hygiene; and appears “jovial,” 23 “calm and cooperative,” and “smile[s] and laugh[s] nicely.” AR 75, 77, 433, 606, 635, 679, 24 710, 822, 834, 854, 1426–28, 1735. The record further documents that Plaintiff’s irritability 25 and “outbursts” decreased over time, he drove a limo for his company, he wrote a book, 26 and shared his experiences during medical visits. AR 92–98, 606, 635, 715–16, 829, 833, 27 853. 28 1 Plaintiff also contends the ALJ improperly relied on evidence of daily and work 2 activities that “fail to meet a threshold of having application in a work setting.” Dkt. No. 3 14-1 at 15. As discussed above, however, substantial evidence in the record supports the 4 ALJ’s conclusions that Plaintiff can exercise at the gym, be attentive, maintain general 5 appearance, and exhibit social capabilities during medical examinations, all of which 6 transfer to Plaintiff’s ability to concentrate, maintain attention and pace, and interact with 7 others in a work environment. 8 In sum, the ALJ’s rejection of Dr. Dalton’s and Dr. Zukowsky’s opinions is 9 supported by substantial evidence in the record. The Court, therefore, finds no legal error 10 in the ALJ’s treatment of their opinions. See Toback v. Kijakazi, No. 22-15243, 2023 WL 11 4261284, at *1 (9th Cir. June 29, 2023) (no error where the ALJ “provided valid reasons 12 supported by substantial evidence . . . including . . . how much weight to give to each 13 opinion”); Woods, 32 F.4th at 787 (“[A]n ALJ’s decision, including the decision to 14 discredit any medical opinion, must simply be supported by substantial evidence.”). 15 2. Dr. Glassman 16 Dr. Glassman also conducted a consultative psychiatric evaluation of Plaintiff. 17 AR 27, 431. Dr. Glassman found Plaintiff has mild impairments getting along with others; 18 behaving in a socially appropriate manner; maintaining concentration, persistence, and 19 pace; and adapting to changes and stresses in a workplace setting. AR 436. Dr. Glassman 20 concluded Plaintiff is “capable of understanding and following at least simple instructions” 21 and “managing his own funds.” Id. 22 The ALJ found Dr. Glassman’s opinion “persuasive because it is consistent with the 23 record evidence during the relevant period as well as Dr. Glassman’s own examination 24 findings.” AR 27. The ALJ further concluded that “Dr. Glassman’s objective clinical 25 observations . . . also support the lack of more restrictive limitations.” Id. 26 Plaintiff alleges the ALJ’s reliance on Dr. Glassman’s opinion is error because 27 Dr. Glassman examined Plaintiff on September 13, 2016, which predates the alleged 28 September 23, 2016 disability onset date. Dkt. No. 14-1 at 12–13. See Carmickle v. 1 Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that 2 predate the alleged onset of disability are of limited relevance.”). 3 Any such error, however, is harmless. Dr. Glassman’s opinion (rendered on 4 September 13, 2016) predates the amended date of onset by only ten days. And it was well 5 within the period of alleged disability (originally alleged to be December 15, 2015) until 6 Plaintiff amended the date of alleged onset on April 28, 2020. Further, the ALJ’s mild 7 impairment findings do not rely solely on Dr. Glassman. The ALJ considered, evaluated, 8 and cited substantial objective record evidence to determine Plaintiff’s mental severity, 9 including substantial evidence that postdates even the amended onset date. AR 22–28. Any 10 error in the ALJ’s consideration of Dr. Glassman’s opinion, therefore, is inconsequential 11 to the ultimate disability conclusion. See Stout v. Comm’r of Soc. Sec. Admin., 454 F.3d 12 1050, 1055 (9th Cir. 2006) ( mistakes “nonprejudicial to the claimant or irrelevant to the 13 ALJ’s ultimate disability conclusion” are “harmless error”). 14 C. Inaccurate Citations 15 Plaintiff also contends certain “citations proffered by the ALJ . . . are inaccurate.” 16 Dkt. No. 14-1 at 7. Specifically, Plaintiff claims the ALJ’s citations to AR 1419, 1426, 17 1600, and 1735 do not support the stated finding that Plaintiff can bench press 100 pounds. 18 Id. 19 Although Plaintiff is correct that the citations listed above do not support the 20 sentence that immediately precedes them, any such error is harmless. See Stout, 454 F.3d 21 at 1055. The citations at issue support the previous sentence in the ALJ’s decision, which 22 finds a light work limitation inconsistent with reports that Plaintiff “regularly exercised 23 and lifted weights.” AR 33. The record also contains documentation that Plaintiff can bench 24 press 100 pounds. See AR 107 (Plaintiff’s testimony stating “I used to bench about 250 25 and I can barely do 100 pounds now”). 26 Plaintiff’s reliance on Regennitter v. Comm’r, 166 F.3d 1294 (9th Cir. 1999), is 27 misplaced. Dkt. No. 14-1 at 7. In Regennitter, the Court found the ALJ discounted 28 plaintiff’s testimony for inaccurate and irrelevant reasons. Regennitter, 166 F.3d at 1298. 1 || Regennitter is distinguishable from this case, where the ALJ’s statement was supported by 2 ||the record and (at most) the ALJ simply cited the wrong pages. These types of clerical 3 ||errors are harmless. See, e.g., Samuel Z. v. Kijakazi, No. 8:20-cv-01924-SP, 2022 WL 4 4842936, at *3 n.3 (C.D. Cal. Sept. 30, 2022) (“A typographical error does not undermine 5 entire decision.”); Baglio v. Saul, No. 18-cv-04294-HSG, 2020 WL 2733919, at *9 6 ||(N.D. Cal. May 26, 2020) (finding the ALJ’s citation to the wrong exhibit was merely a 7 || typo). 8 VI. CONCLUSION 9 The Court DENIES Plaintiff's Motion for Summary Judgment and GRANTS 10 ||Defendant’s Cross-Motion for Summary Judgment. The Clerk of Court shall enter 11 ||judgment accordingly. 12 IT IS SO ORDERED. 13 ™ 14 || Dated: September 28, 2023 Ja whedon Daniel E. Butcher 15 United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28