(SS) Brown v. Commissioner of Social Security

• Court: District Court, E.D. California
• Decided: August 27, 2019
• Docket: 2:18-cv-01405
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HELENE BROWN, No. 2:18-cv-01405 CKD 12 Plaintiff, 13 v. ORDER 14 ANDREW M. SAUL, Commissioner of Social Security, 15 Defendant. 16

17 18 Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”) finding that plaintiff’s disability under sections 216(i) and 223(f) of the Social 20 Security Act (“Act”) ended on October 15, 2014, and that plaintiff has not become disabled again 21 since that date. The parties have consented to Magistrate Judge jurisdiction to conduct all 22 proceedings in the case, including the entry of final judgment. For the reasons discussed below, 23 the court will deny plaintiff’s motion for summary judgment and grant the Commissioner’s cross- 24 motion for summary judgment. 25 BACKGROUND 26 Plaintiff, born in 1962, was found disabled beginning on January 1, 2005. Administrative 27 Transcript (“AT”) 16, 27. The September 21, 2005 decision finding plaintiff disabled stated that 28 she had bipolar disorder and curvature of the spine. AT 18. After a continuing disability review 1 (“CDR”), the Commissioner found plaintiff no longer disabled as of October 15, 2014 due to 2 medical improvement. See AT 16. Plaintiff asserted that she was still unable to work because of 3 bipolar disorder, chronic low back pain, moderate bilateral scoliosis, alcoholism, and bilateral 4 hearing loss. See AT 21. 5 In the decision challenged herein, following an April 25, 2017 hearing and dated July 14, 6 2017, the ALJ determined that plaintiff’s disability ended on October 15, 2014.1 AT 16-28. The 7 ALJ made the following findings (citations to 20 C.F.R. omitted): 8 1. The most recent favorable medical decision finding that the claimant was disabled is the determination dated September 21, 9 2005. This is known as the ‘comparison point decision’ or CPD.

10 1 Disability Insurance Benefits are paid to disabled persons who have contributed to the Social Security program, 42 U.S.C. § 401 et seq. Supplemental Security Income is paid to 11 disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, in 12 part, as an “inability to engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment. . . .” 42 U.S.C. §§ 423(d)(1)(a) & 1382c(a)(3)(A). 13 A parallel five-step sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 14 137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation: 15 Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed 16 to step two. 17 Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is 18 appropriate. 19 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 20 404, Subpt. P, App.1? If so, the claimant is automatically determined disabled. If not, proceed to step four. 21 Step four: Is the claimant capable of performing his past 22 work? If so, the claimant is not disabled. If not, proceed to step five. 23 Step five: Does the claimant have the residual functional 24 capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled. 25

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 26

27 The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the 28 burden if the sequential evaluation process proceeds to step five. Id. 1 2. At the time of the CPD, the claimant had the following medically determinable impairments: bipolar disorder and 2 curvature of the spine. These impairments were found to result in the residual functional capacity that markedly limited her ability to 3 maintain attention and concentration, maintain regular attendance, and complete a normal workday and workweek without psychiatric 4 symptom interruption and perform at a consistent pace without an unreasonable number and length of rest periods. 5 3. Through the date of this decision, the claimant has not engaged 6 in substantial gainful activity. 7 4. The medical evidence establishes that, since October 15, 2014, the claimant has had the following medically determinable 8 impairments: tri-malleolar ankle fracture, status post open reduction and internal fixation; scoliosis; lumbar degenerative disc disease; 9 partial hearing loss; and bipolar disorder. These are the claimant’s current impairments. 10 5. Since October 15, 2014, the claimant has not had an impairment 11 or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 12 1. 13 6. Medical improvement occurred on October 15, 2014. 14 7. The claimant’s medical improvement is related to the ability to work because it resulted in an increase in the claimant’s residual 15 functional capacity. 16 8. Since October 15, 2014, the claimant has continued to have a severe impairment or combination of impairments. 17 9. Based on the impairments present since October 15, 2014, the 18 claimant has had the residual functional capacity to perform light work except: no work in a loud environment and limited to simple 19 repetitive tasks. 20 10. Since October 15, 2014, the claimant has been unable to perform past relevant work. 21 11. On October 15, 2014, the claimant was an individual closely 22 approaching advanced age. 23 12. The claimant has at least a high-school education and is able to communicate in English. 24 13. Since October 15, 2014, transferability of job skills is not 25 material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that 26 the claimant is ‘not disabled,’ whether or not the claimant has transferable job skills. 27 14. Since October 15, 2014, considering the claimant’s age, 28 education, work experience, and residual functional capacity based 1 on the impairments present since October 15, 2014 the claimant has been able to perform a significant number of jobs in the national 2 economy. 3 15. The claimant’s disability ended on October 15, 2014, and the claimant has not become disabled again since that date. 4

5 AT 18-28. 6 ISSUES PRESENTED 7 Plaintiff argues that the ALJ committed the following errors in finding plaintiff not 8 disabled: (1) the ALJ erroneously weighed the opinions of plaintiff’s treating physicians; and (2) 9 the ALJ erroneously failed to develop the record. 10 LEGAL STANDARDS 11 The court reviews the Commissioner’s decision to determine whether (1) it is based on 12 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 13 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 14 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 15 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 16 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 17 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 18 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 19 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted). 20 “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one 21 rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 22 The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th 23 Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s 24 conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not 25 affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see 26 also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the 27 administrative findings, or if there is conflicting evidence supporting a finding of either disability 28 or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226, 1 1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in 2 weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). 3 ANALYSIS 4 A. Medical Opinions 5 Plaintiff asserts that the ALJ improperly weighed the opinions of her treating physicians at 6 Mercy Medical Group during the alleged disability period under review, October 2014 through 7 July 2017. See AT 114-116. Mainly, plaintiff argues that the ALJ wrongly discounted a March 8 2017 opinion by psychiatrist Dr. Karl Zeff, who treated plaintiff multiple times between June 9 2014 and March 2017. Plaintiff also asserts that the ALJ improperly credited non-treating 10 opinions as to plaintiff’s physical limitations. 11 The weight given to medical opinions depends in part on whether they are proffered by 12 treating, examining, or non-examining professionals. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a 14 greater opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 15 F.3d 1273, 1285 (9th Cir. 1996). 16 To evaluate whether an ALJ properly rejected a medical opinion, in addition to 17 considering its source, the court considers whether (1) contradictory opinions are in the record, 18 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 19 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 20 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may be 21 rejected for “specific and legitimate” reasons, that are supported by substantial evidence. Id. at 22 830. While a treating professional’s opinion generally is accorded superior weight, if it is 23 contradicted by a supported examining professional’s opinion (e.g., supported by different 24 independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 25 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). In 26 any event, the ALJ need not give weight to conclusory opinions supported by minimal clinical 27 findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (treating physician’s conclusory, 28 minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a 1 non-examining professional, without other evidence, is insufficient to reject the opinion of a 2 treating or examining professional. Lester, 81 F.3d at 831. 3 On March 24, 2017, Dr. Zeff filled out a checkbox Medical Source Statement indicating 4 that plaintiff had marked difficulties in the following areas: understanding and remembering 5 detailed or complex instructions; ability to attend and concentrate; ability to work without 6 supervision; and ability to interact with supervisors. AT 821-822. He further indicated that she 7 had moderate limitations in the following areas: ability to carry out instructions; ability to interact 8 with coworkers; and ability to adapt to changes in the workplace. AT 821-822. Dr. Zeff 9 explained these limitations only by stating that plaintiff “reports of difficulties in this area,” had 10 “frequent problems with inattention and procrastination by patient reports,” was “reportedly 11 avoidant of most social interaction” and “forgetful of change instruction reportedly, poor ability 12 to learn new technology.” AT 821-822. 13 The ALJ addressed Dr. Zeff’s March 2017 opinion as follows: 14 Karl Zeff, M.D., the claimant’s psychiatrist, opined that the claimant had marked limitations in her ability to understand and 15 remember detailed or complex instructions, attend and concentrate, work with supervision, and interact with supervisors. She has 16 moderate limitations in her ability to carry out instructions, interact with coworkers, and adapt to changes in the workplace. 17 I accord little weight to this opinion because it is not consistent with 18 the record as a whole, including generally unremarkable mental status examination findings as discussed above (particularly the 19 March 2017 treatment note at Exhibit 28F which was during the same month as the opinion). Moreover, the opinion expressed 20 provides little explanation of the evidence relied on in forming that opinion. 21 22 AT 26. 23 The ALJ cited mental status findings June 2015 and March 2017, discussed earlier in his 24 opinion. See AT 24-25, 823-865 (Exhibit 28F). At a June 8, 2015 mental status examination 25 conducted by Dr. Zeff, plaintiff was cooperative, oriented, with good eye contact, clear thought 26 process, no impairment in cognitive status, no delusions or hallucinations, and unremarkable 27 findings as to psychological insight, speech, affect, and self-control. AT 40-42; see AT 24. 28 1 However, her movement was restless and her speech verbose. AT 41; see AT 24. Similarly, at a 2 March 24, 2017 mental status examination by Dr. Zeff, plaintiff’s movement was “somewhat 3 restless” and her anxiety “better than before,” while her behavior, orientation, eye contact, 4 speech, affect, thought process, cognitive status, and psychological insight were all normal. AT 5 823-824; see AT 25. Dr. Zeff noted that her Global Assessment Functioning (GAF) score was 6 65, indicative of mild impairment.2 Moreover, Dr. Zeff’s treatment notes from June 2015 through 7 January 2017 showed normal mental status exams and generally mild symptoms. AT 828-829 8 (January 2017), 832-833 (July 2016), 838-839 (February 2016), 842-843 (November 2015), 848- 9 849 (September 2015), 862-863 (June 2015). These records “indicate some positive mental status 10 examination findings, but moderate findings overall including GAF scores,” the ALJ wrote. AT 11 25. 12 While giving Dr. Zeff’s March 2017 opinion little weight, the ALJ assigned great weight 13 to the opinion of psychological consultative examiner Dr. Lenore Tate, who examined plaintiff on 14 March 12, 2015, but did not review any of plaintiff’s medical records, relying solely on plaintiff’s 15 reports and her examination as the bases for her opinion. AT 715. Dr. Tate noted that plaintiff 16 “did appear to be experiencing some psychomotor agitation,” including difficulty sitting still. AT 17 718. However, Dr. Tate noted that plaintiff’s thought processes were coherent and organized; her 18 thought content was relevant and non-delusional; her mood was “mildly anxious; however, she 19 was pleasant during her evaluation and her affect was congruent with her thought content”; and 20 her speech, orientation, fund of information, concentration, insight, and judgment were normal 21 and/or intact. AT 718-720. As summarized by the ALJ, Dr. Tate “concluded that the claimant

22 2 GAF is a scale reflecting the “psychological, social, and occupational functioning on a 23 hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders at 34 (4th ed. 2000) (“DSM IV-TR”). A GAF of 51-60 indicates moderate symptoms 24 (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school function (e.g., few friends, conflicts with peers or co-workers). Id. 25 A GAF of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school function (e.g., occasional truancy, or theft within 26 the household), but generally functioning pretty well, has some meaningful interpersonal 27 relationships. Id. A GAF of 71-80 indicates that symptoms are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after a family argument), resulting in no 28 more than slight impairment in social, occupational, or school functioning. Id. 1 has no impairment in her ability to understand, remember, and carry out simple one or two-step 2 job instructions. She has moderate impairment in her ability to perform detailed and complex 3 tasks. . . . She has moderate impairment in her ability to maintain concentration, attention, 4 persistence and pace.” AT 26. 5 Additionally, the ALJ assigned great weight to a mental functional residual capacity 6 assessment by State agency medical consultant Dr. V. Meenakshi, who reviewed plaintiff’s 7 medical records in August 2014 as part of the agency’s continuing disability review. AT 643- 8 653. Dr. Meenakshi noted that plaintiff had not taken psychotropic medications between 9 November 2010 and April 2014, and opined that plaintiff was “capable of simple repetitive 10 tasks.” AT 653. 11 The ALJ also assigned great weight to a mental functional residual capacity assessment by 12 State agency medical consultant Dr. L. Gottschalk, who reviewed plaintiff’s medical history and 13 Dr. Tate’s opinion in April 2015 and concluded that plaintiff had significantly improved since the 14 decision finding her disabled in 2005. AT 26, 732. The ALJ credited Dr. Gottschalk’s April 15 2015 opinion that plaintiff had certain moderate mental limitations but could perform simple, 16 repetitive tasks; relate to supervisors, coworkers, and the public; adapt to changes in work 17 routine; and should avoid hazards. AT 26, 735-736. Based on the foregoing, the ALJ provided 18 legally sufficient reasons for discounting Dr. Zeff’s March 2017 checkbox opinion.3 19 As to plaintiff’s physical limitations, the ALJ accorded great weight to the opinion of 20 internal consultative examiner Dr. Richard Chun, who examined plaintiff and reviewed her 21 records in September 2014. AT 26, AT 656-660. Dr. Chun opined that plaintiff’s 22 polyneuropathy had “improved or resolved” since 2006 and that she had no limitations in 23 standing, walking, and sitting. AT 660. The ALJ also credited the physical residual functional 24 capacity assessments of State agency medical consultants Dr. A. Dipsia and Dr. D. Pong, who 25 reviewed plaintiff’s records in September 2014 and April 2015, respectively. AT 26, 661-669, 26 3 Moreover, insofar as Dr. Zeff’s March 2017 opinion was based on self-reported mental 27 symptoms, the ALJ found plaintiff less than fully credible as to the severity of her symptoms, in an unchallenged finding. AT 21, 25. 28 1 801-809. Both opined that plaintiff was capable of light work. The ALJ accorded “great weight 2 to these opinions because they are substantiated by the objective medical evidence and consistent 3 with the record as a whole.” AT 27; see AT 22-23 (summary of largely normal findings at 4 September 2014 physical examination), AT 24 (summary of 2015-2016 medical records). 5 Having reviewed the record in conjunction with the ALJ’s decision, the court finds no 6 error in the ALJ’s weighing of the medical opinions. 7 B. Duty to Develop 8 Plaintiff next asserts that the ALJ did not adequately develop the record, as the consulting 9 physicians did not review plaintiff’s 2015 and/or later records from Mercy Medical Group. 10 Disability hearings are not adversarial. See DeLorme v. Sullivan, 924 F.2d 841, 849 (9th 11 Cir. 1991); see also Crane v. Shalala, 76 F.3d 251, 255 (9th Cir. 1996) (ALJ has duty to develop 12 the record even when claimant is represented). Evidence raising an issue requiring the ALJ to 13 investigate further depends on the case. Generally, there must be some objective evidence 14 suggesting a condition that could have a material impact on the disability decision. See Smolen 15 v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of Health and Human 16 Services, 939 F.2d 680, 682 (9th Cir. 1991). “Ambiguous evidence . . . triggers the ALJ’s duty to 17 ‘conduct an appropriate inquiry.’” Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) 18 (quoting Smolen, 80 F.3d at 1288.) 19 At the April 25, 2017 hearing, the ALJ left the record open for two weeks to allow 20 plaintiff’s attorney to submit any additional medical records from the relevant period. AT 114- 21 115. See Tonapetyan, 242 F.3d at 1150 (ALJ may discharge duty to develop the record in several 22 ways, including “keeping the record open after the hearing to allow supplementation of the 23 record”). The ALJ reviewed the medical evidence through 2017, and plaintiff has not shown the 24 existence of material, ambiguous evidence that would trigger a duty to supply the most up-to-date 25 records to the consultative physicians. Rather, the ALJ found the non-treating doctors’ opinions 26 consistent with the overall medical record, as set forth above, and plaintiff has not shown 27 otherwise. The court finds no error on this basis. 28 //// 1 | CONCLUSION 2 For the reasons stated herein, IT IS HEREBY ORDERED that: 3 1. Plaintiff's motion for summary judgment (ECF No. 18) is denied; 4 2. The Commissioner’s cross-motion for summary judgment (ECF No. 19) is granted; 5 and 6 3. Judgment is entered for the Commissioner. 7 | Dated: August 27, 2019 Pee a4 if / /, CAN fu fl. ay 8 CAROLYN K. DELANEY 9 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 |) 2/rown1405.ssi.ckd 16 17 18 19 20 21 22 23 24 25 26 27 28 10