Sarmiento v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: March 18, 2021
• Docket: 3:20-cv-05644
• Status: Unknown

Opinion

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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 JUAN S., 8 Plaintiff, CASE NO. C20-5644-BAT 9 v. ORDER AFFIRMING THE COMMISSIONER 10 COMMISSIONER OF SOCIAL SECURITY, 11 Defendant. 12 13 Plaintiff Juan S. seeks review of the denial of his application for Disability Insurance 14 Benefits. He contends the ALJ erred in evaluating the medical opinions, in finding that his 15 mental impairments were not severe and did not meet a listing, and in evaluating his residual 16 functional capacity. Dkt. 20. The Court AFFIRMS the Commissioner’s final decision and 17 DISMISSES the case with prejudice. 18 DISCUSSION 19 At issue in this case is plaintiff’s claim for a closed period of disability, from the 20 amended alleged onset date of March 23, 2014, to the date he returned to work, September 17, 21 2017. Dkt. 20 at 3. This is the second time this case has come before this Court. In the previous 22 decision, this Court remanded the case for further consideration of the medical opinions 23 addressing plaintiff’s mental health impairments and plaintiff’s need for a cane. Tr. 945-54. In 1 this appeal, plaintiff again challenges the ALJ’s assessment of the opinions regarding his mental 2 impairments, as well as the physical limitations in the RFC finding. 3 A. Mental health impairments 4 Plaintiff argues that the ALJ erred by “failing to give weight” to plaintiff’s diagnoses of

5 major depression and anxiety. Dkt. 20 at 4. But a diagnosis alone does not establish either the 6 severity of an impairment or any specific functional limitations caused by the impairment. “The 7 mere existence of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10 8 F.3d 678, 680 (9th Cir. 1993) (citing Sample v. Schweiker, 694 F. 2d 639, 642-43 (9th Cir. 9 1982)). The ALJ evaluated plaintiff’s mental impairments at step two and found that he had the 10 medically determinable mental impairments of major depressive disorder, generalized anxiety 11 disorder, panic disorder, and post-traumatic stress disorder, but that these impairments, singly 12 and in combination, did not cause more than a minimal limitation in plaintiff’s ability to perform 13 basic work activities and were therefore not severe. Tr. 894-96. The ALJ did not err by failing to 14 “give weight” to plaintiff’s diagnoses.

15 Plaintiff also argues that the ALJ misevaluated the medical opinions related to his mental 16 impairments, including the opinions of Mary Lang-Furr, M.D., Rebecca C. Hendrickson, M.D., 17 Douglas P. Robinson, M.D., Phillip Perkins, D.O., and Theodore Georgis, M.D. Dkt. 20 at 4-9. 18 The ALJ found, based on the medical opinions, that plaintiff had mild limitations in each of the 19 four functional areas, resulting in the finding that his mental impairments were non-severe.1 Tr. 20 896. 21

22 1 When evaluating whether a mental impairment is severe, the ALJ must rate the degree of functional limitation resulting from the impairment in four broad areas: (1) understand, 23 remember, or apply information, (2) interact with others, (3) concentrate, persist, or maintain pace, and (4) adapt or manage oneself. 20 C.F.R. § 404.1520a(c). If the ALJ rates the degree of functional limitation in these areas as “none” or “mild,” the ALJ will generally find the 1 In general, the ALJ must give specific and legitimate reasons for rejecting a treating or 2 examining doctor’s opinion that is contradicted by another doctor, and clear and convincing 3 reasons for rejecting a treating or examining doctor’s uncontradicted opinion. Lester v. Chater, 4 81 F.3d 821, 830-31 (9th Cir. 1996). The Court may neither reweigh the evidence nor substitute

5 its judgment for that of the Commissioner. Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 6 2002). When the evidence is susceptible to more than one rational interpretation, it is the 7 Commissioner’s conclusion that must be upheld. Id. 8 1. Dr. Lang-Furr 9 Dr. Lang-Furr examined plaintiff in May 2011. She diagnosed major depressive disorder, 10 severe, with psychotic features, PTSD, and generalized anxiety disorder and assigned a GAF 11 score of 45, indicating serious symptoms or a serious impairment in social, occupational, or 12 school functioning. Tr. 625; Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental 13 Disorders (DSM-IV), 34 (4th ed. text rev. 1994). She opined that plaintiff would be able to 14 perform simple and repetitive tasks and could probably also perform detailed and complex tasks;

15 he could relate well to other people including supervisors, coworkers, and the public; he could 16 perform work activities on a consistent basis, maintain regular attendance in the workplace, and 17 complete a normal work day and work week without interruptions from his psychiatric 18 condition; and could deal well with the usual stress encountered in a competitive work 19 environment. Tr. 625-26. 20 The ALJ noted that Dr. Lang-Furr’s assessment took place 18 months before the 21 amended alleged onset date and found it to be of little relevance in assessing plaintiff’s mental 22

23 impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in the plaintiff’s ability to do basic work activities. 20 C.F.R. § 404.1520a(d). 1 functioning during the relevant period. Tr. 894. The ALJ nevertheless gave her findings great 2 weight due to their consistency with the mental examination findings and the opinions of Dr. 3 Hendrickson and Dr. Robinson. Tr. 895. 4 Plaintiff points to Dr. Lang-Furr’s statements that plaintiff would likely have difficulty

5 with things that require a broader fund of knowledge as plaintiff’s was fairly low, that he would 6 do better receiving both verbal and written instructions as his spelling was poor and he had only 7 half recall in short-term memory, and that he required repetition and clarification of instructions 8 and required frequent redirection. Tr. 626; Dkt 20 at 4. The ALJ is responsible for “translating 9 and incorporating” an opinion into a succinct finding. See Rounds v. Comm’r Soc. Sec. Admin., 10 807 F.3d 996, 1006 (9th Cir. 2015). A plaintiff does not establish error by merely pointing to 11 specific language that the ALJ did not discuss without identifying how that omission was 12 harmful error. Given Dr. Lang-Furr’s assessment of plaintiff’s functional abilities, including the 13 ability to perform simple and repetitive tasks, relate well to others, and sustain regular work 14 activities and attendance, the ALJ could rationally interpret the statements plaintiff has identified

15 as consistent with mild functional limitations. Plaintiff has not established error in the ALJ’s 16 assessment of Dr. Lang-Furr’s opinion. 17 2. Dr. Hendrickson 18 Dr. Hendrickson examined plaintiff in December 2012. She diagnosed major depressive 19 disorder, severe, and generalized anxiety disorder and assigned a GAF score of 25, indicating 20 behavior considerably influenced by delusions or hallucinations, serious impairment in 21 communication or judgment (including suicidal preoccupation), or inability to function in almost 22 all areas. Tr. 649; DSM-IV at 34. She opined that plaintiff had the ability to perform simple and 23 repetitive tasks and detailed and complex tasks if he is motivated to do to; he would be able to 1 accept instructions from supervisors and interact with coworkers and the public; he would be 2 able to perform work activities on a consistent basis with additional supervision if he were able 3 to physically do the activities; he would be able to maintain regular attendance and complete a 4 normal workday and workweek without interruptions from his psychiatric condition, with the

5 caveat that she worried about his risk of suicide over the following year; and he would likely 6 deal somewhat poorly with the usual stress encountered in the competitive workplace but would 7 probably be able to function enough to keep his job. Tr. 649-50. 8 The ALJ found that Dr. Hendrickson’s functional assessment was similar to Dr. Lang- 9 Furr’s, that she stated that the likelihood of improvement was good with appropriate treatment, 10 and that while she noted a possible suicide risk, she felt plaintiff would be able to maintain a full 11 time work schedule on a regular and continuing basis without interruption from a mental health 12 condition. Tr. 895. The ALJ gave Dr. Hendrickson’s opinion great weight, finding that it was 13 consistent with Dr. Lang-Furr’s and Dr. Robinson’s opinions and with the mental status 14 examination findings. Tr. 895.

15 Plaintiff asserts that the ALJ failed to discuss Dr. Hendrickson’s statements that plaintiff 16 would deal somewhat poorly with the stress of a competitive work environment and that he 17 would likely need additional support to function at home if he were working. Dkt. 20 at 6. Again, 18 a plaintiff does not establish error by merely pointing to specific language that the ALJ did not 19 discuss without identifying how that omission was harmful error. Here, one of the statements 20 plaintiff identifies concerns plaintiff’s functioning at home, and the other is followed by an 21 opinion that plaintiff would be able to maintain employment despite the doctor’s concern. 22 Plaintiff has not established error in the ALJ’s failure to discuss these aspects of Dr. 23 Hendrickson’s opinion. 1 Plaintiff also asserts that the ALJ erred by failing to discuss the low GAF score Dr. 2 Hendrickson assigned. Dkt. 20 at 6. A GAF score is a one-time snapshot of a person’s 3 functioning and can include factors other than functional limitations caused by medically 4 determinable severe impairments, such as financial stressors. DSM-IV at 34. A GAF score may

5 be relevant evidence of an individual’s overall level of functioning, but the ALJ’s assessment of 6 the medical record is not deficient solely because it does not reference a particular GAF score. 7 Florence v. Astrue, No. EDCV 08-0883-RC, 2009 WL 1916397, at *6 (C.D. Cal. July 1, 2009) 8 (unpublished opinion) (citing Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 9 2002)). Dr. Hendrickson assessed this GAF score more than a year before the amended alleged 10 onset date. She was concerned about plaintiff’s risk of suicide in the year following her 11 evaluation, but nevertheless believed he could function at work and maintain employment. The 12 ALJ noted Dr. Hendrickson’s concern about plaintiff’s risk of suicide and her belief that he could 13 nevertheless maintain employment. The ALJ’s decision is not flawed for failing to discuss the 14 GAF score Dr. Hendrickson assessed. Plaintiff has not established that the ALJ erred in assessing

15 Dr. Hendrickson’s opinion. 16 3. Dr. Robinson 17 Dr. Robinson examined plaintiff in July 2013 and diagnosed panic disorder with 18 agoraphobia. Tr. 851. On mental status examination, he found memory and cognitive function 19 were normal. Id. He opined that symptom exaggeration was evident and that plaintiff was not 20 depressed but was unhappy about his circumstances, which Dr. Robinson described as a normal 21 mental state in response to stressors such as financial difficulties. Tr. 853. He opined there were 22 no work restrictions required as a result of plaintiff’s psychiatric condition, and that plaintiff was 23 able to work on a reasonably continuous basis in a similar pattern to that before his workplace 1 injury as far as his psychiatric condition was concerned. Tr. 854. The ALJ gave Dr. Robinson’s 2 opinion great weight, finding that it was consistent with Dr. Lang-Furr’s and Dr. Hendrickson’s 3 opinions and with the mental status examination findings. Tr. 895. 4 Plaintiff points to various aspects of Dr. Robinson’s assessment, primarily related to the

5 fact that the assessment was for purposes of plaintiff’s Labor and Industries claim and Dr. 6 Robinson could not connect plaintiff’s pre-existing mental conditions with his industrial injury. 7 Dkt. 20 at 6. Plaintiff asserts that this fact does not allow the ALJ to “self-interpret” the record 8 for the sake of a denial. Id. at 7. But plaintiff does not explain this statement or otherwise allege 9 error in the ALJ’s assessment of the opinion. The Court finds no error in the ALJ’s assessment of 10 Dr. Robinson’s opinion. 11 3. Dr. Perkins and Dr. Georgis 12 Plaintiff describes the results of a psychiatric examination by Dr. Perkins and a physical 13 examination by Dr. Georgis but makes no arguments about the ALJ’s findings related to these 14 opinions. Merely presenting the evidence in a more favorable light to the plaintiff is insufficient

15 to establish error in the ALJ’s decision. Thomas, 278 F.3d at 954. Moreover, the Court may 16 deem arguments that are unsupported by explanation to be waived. See Avila v. Astrue, No. C07- 17 1331, 2008 WL 4104300 (E.D. Cal. Sept. 2, 2008) at *2 (unpublished opinion) (citing Nw. 18 Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 923-24 (9th Cir. 1996) (party who 19 presents no explanation in support of claim of error waives issue)). By failing to make any 20 arguments related to these opinions, plaintiff has waived any challenge to the ALJ’s assessments 21 of them. 22 23 1 4. Community college attendance 2 The ALJ found that plaintiff had mild restriction in the ability to understand, remember, 3 and apply information. Tr. 896. As support for this finding, the ALJ found that plaintiff attended 4 community college in 2013, which required the ability to understand, remember, and apply

5 information and which reflected greater abilities than plaintiff alleged. Id. Plaintiff argues that 6 this finding is misleading because he was actually struggling to obtain his GED at that time and 7 he failed in this attempt because he was unable to understand, remember, or apply the 8 information needed to do so. Dkt. 20 at 9. Plaintiff points to his testimony at the first hearing, 9 where he testified that he tried to finish his GED at community college but he couldn’t 10 concentrate and failed the examination several times. Tr. 46. He reported elsewhere that he 11 completed two years of college in 2013. Tr. 322. 12 The ALJ’s finding noted the fact of plaintiff’s community college attendance, as 13 confirmed by plaintiff’s own statements, and found only that his ability to do so contradicted his 14 allegations of more severe limitations in the ability to understand, remember, and apply

15 information. The ALJ never stated that plaintiff obtained a degree at community college or made 16 any other misleading findings about plaintiff’s attendance at community college. In addition, the 17 ALJ also relied on the consultative examiners’ finding that plaintiff would have no difficulty 18 following simple instructions to carry out simple tasks. Id. This finding alone would support the 19 ALJ’s conclusion that plaintiff had only mild limitations in this area, making any error in the 20 ALJ’s assessment of his community college attendance harmless. Molina v. Astrue, 674 F.3d 21 1104, 1122 (9th Cir. 2012) (error is harmless where it is inconsequential to the ALJ’s ultimate 22 nondisability determination). Plaintiff has not established harmful error in the ALJ’s assessment 23 1 of his community college attendance or in his ability to understand, remember, and apply 2 information. 3 5. Listings 4 Plaintiff argues that the ALJ should have found that his mental impairments met or

5 equaled Listings 12.04 and 12.06 for depression and anxiety. Dkt. 20 at 13. The listings describe 6 specific impairments that are considered “severe enough to prevent an individual from doing any 7 gainful activity regardless of his or her age, education, or work experience.” 20 C.F.R. 8 §§ 404.1525(a), 416.925(a). A claimant whose impairments either meet or equal a listing is 9 presumptively disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). 10 To meet or equal listings 12.04 and 12.06, a claimant must satisfy the diagnostic criteria 11 listed in paragraph A and the functional limitations listed in either paragraph B or paragraph C. 12 20 C.F.R. pt. 404, subpt. P app. 1, §§ 12.04, 12.06. Paragraph B requires either an extreme 13 limitation in one of the four functional areas or marked limitations in two of them. Id. Paragraph 14 C requires a documented history of the disorder for at least two years and both ongoing treatment

15 or support that diminishes the signs and symptoms and marginal adjustment. Id. 16 Plaintiff argues that he met the listings because he exhibited sleep disturbance, decreased 17 energy, thoughts of suicide, feelings of worthlessness, difficulty concentrating, agoraphobia, 18 panic attacks, and disproportionate fear and anxiety. Dkt. 20 at 13. Plaintiff’s argument focuses 19 on the diagnostic criteria but does not address the paragraph B criteria or the paragraph C criteria 20 other than to assert that his impairments lasted for more than two years. But the ALJ found, at 21 step two, that plaintiff had mild limitations in all four of the paragraph B functional areas and 22 that his mental impairments were therefore not severe. Tr. 896. The Court considered and 23 rejected plaintiff’s challenges to the ALJ’s assessment of his mental impairments at step two. 1 Because plainitff’s mental impairments were not severe, the ALJ was not required to analyze 2 whether they met the listings at step three. Plaintiff has not established that the ALJ erred in 3 evaluating his mental impairments, in finding them non-severe, or in not including limitations 4 due to these non-severe impairments in the RFC finding.

5 6. Duty to develop the record 6 Plaintiff asserts that if there was a question about the ongoing nature of his mental health 7 limitations, the ALJ had a duty to develop the record. Dkt. 20 at 14. But the ALJ’s duty to 8 develop the record is triggered only when there is ambiguous evidence or when the ALJ finds 9 that the record is inadequate to allow for proper evaluation of the evidence. Tonapetyan v. 10 Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). Here, the evidence was not ambiguous and was 11 sufficient to allow for proper evaluation. The ALJ’s duty to develop the record was not triggered. 12 B. Physical RFC 13 Plaintiff argues that the ALJ erred in assessing his physical RFC by not considering his 14 degenerative disc disease as documented in physical therapy treatment notes and by improperly

15 giving weight to an Independent Medical Examination over the opinion of treating doctor Daniel 16 Chilczuk, M.D. Dkt. 20 at 9. 17 Although plaintiff asserts that the ALJ did not consider plaintiff’s degenerative disc 18 disease, the ALJ found this to be a medically determinable severe impairment and assessed 19 functional limitations due to this impairment. Tr. 893, 897. Plaintiff refers to physical therapy 20 treatment notes that he asserts show that he still required treatment as recently as 2016 and that 21 his condition had worsened. Dkt. 20 at 9, 11. But the ALJ noted that plaintiff underwent physical 22 therapy after his spinal fusion surgery, citing to these treatment notes. Tr. 901, 717-94. The ALJ 23 noted that the August 2015 physical therapy discharge summary assessed plaintiff’s capability at 1 sedentary to light work. Tr. 717. Plaintiff does not explain how the ALJ erred in assessing these 2 treatment notes, and the fact that plaintiff was undergoing physical therapy does not establish 3 any specific functional limitations. Plaintiff has not established error in the ALJ’s RFC finding 4 by referring to physical therapy treatment notes.

5 Dr. Curcin and Dr. Kamath conducted an IME for plaintiff’s L&I claim in November 6 2015. They opined that after spinal fusion surgery plaintiff’s condition was fixed and stable, 7 there was no increase in impairment rating from previous IMEs, and plaintiff could return to his 8 prior medium-level work without restrictions. Tr. 871. The ALJ found that although she had 9 concluded that plaintiff could not perform his past medium-level job, the November 2015 IME 10 opinion was nevertheless a valuable tool in assessing whether plaintiff could perform other light 11 work after his surgery. Tr. 901. 12 In a letter dated January 18, 2016, Dr. Chilczuk stated that he disagreed with the rating in 13 the November 2015 IME. Tr. 803. Dr. Chilczuk opined that, based on the surgeries plaintiff had 14 had on his back, it “did not make any sense” for plaintiff to continue to be rated in the same

15 category as before his spinal fusion. Id. Dr Chilczuk also disagreed with the finding that plaintiff 16 could return full-time to regular duties. Id. It does not appear that the ALJ discussed this letter 17 from Dr. Chilczuk. 18 Plaintiff argues that the ALJ erred by giving weight to the IME and failing to consider or 19 properly analyze the rebuttal letter from Dr. Chilczuk. Dkt. 20 at 10. But the ALJ gave weight to 20 the IME only to the extent it was useful to assess plaintiff’s ability to perform light work. Dr. 21 Chilczuk disputed aspects of the IME that the ALJ also discounted—the L&I rating level given 22 by the IME doctors, a concept that is not applicable in the Social Security disability context, and 23 the opinion that plaintiff could return to his past work, which the ALJ also disagreed with. 1 Moreover, as the ALJ noted, in a letter date January 11, 2016—one week before the letter 2 plaintiff discusses—Dr. Chilczuk opined that plaintiff could return to work in a light-duty type of 3 position. Tr. 804, 904. Even if the ALJ had given Dr. Chilczuk’s January 18, 2016, letter full 4 weight, it would not have changed the ALJ’s assessment of the IME or plaintiff’s ability to

5 perform light work. Any error in the ALJ’s failure to discuss or give weight to this letter is 6 harmless. Molina, 674 F.3d at 1122 (9th Cir. 2012). Plaintiff has not established that the ALJ 7 committed harmful error in assessing his physical RFC. 8 CONCLUSION 9 For the foregoing reasons, the Commissioner’s decision is AFFIRMED and this case is 10 DISMISSED with prejudice. 11 DATED this 18th day of March, 2021. 12 A 13 BRIAN A. TSUCHIDA Chief United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23