UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ROSEMARY GONZALES, No. 1:19-cv-01377-GSA 5 Plaintiff, 6 v. ORDER DIRECTING ENTRY OF 7 JUDGMENT IN FAVOR OF DEFENDANT ANDREW SAUL, Commissioner of Social COMMISSIONER OF SOCIAL SECURITY 8 Security, AND AGAINST PLAINTIFF
9 Defendant. 10 11 I. Introduction 12 Plaintiff Rosemary Gonzales (“Plaintiff”) seeks judicial review of a final decision of the 13 Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for 14 disabled widow’s benefits and supplemental security income pursuant to Titles II and XVI, 15 respectively, of the Social Security Act. The matter is before the Court on the parties’ briefs which 16 were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate 17 Judge.1 See Docs. 17, 18, 20. After reviewing the record the Court finds that substantial evidence 18 and applicable law support the ALJ’s decision. Plaintiff’s appeal is therefore denied. 19 II. Procedural Background 20 On August 13, 2015 Plaintiff filed an application for disabled widow’s benefits and 21 supplemental security income claiming disability beginning March 13, 2014 due to fibromyalgia, 22 constant pain, sciatic pain from hips to legs, bulging discs in lower back causing neck and back 23 pain, limited mobility, restricted range of motion, depression, anxiety, headaches and dizziness. 24 AR 298–306; 331–32. The Commissioner denied the application initially on January 7, 2016, and 25 on reconsideration on June 29, 2016. AR 161–72; 176–90. 26 27
28 1 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 6 and 8. Plaintiff requested a hearing which was held before an Administrative Law Judge (the 2 “ALJ”) on June 13, 2018. AR 33–70. Plaintiff was represented by counsel at the hearing. AR 33.
3 On October 1, 2018, the ALJ issued a decision denying Plaintiff’s application. AR 12–32. The
4 Appeals Council denied review on June 4, 2019. AR 7–11. On September 30, 2019 Plaintiff filed
5 a complaint in this Court. Doc. 1.
6 III. Factual Background
7 A. Plaintiff’s Testimony
8 Plaintiff (born November 1959) completed school through the 10th grade. AR 40. She
9 previously worked as a retail cashier and assistant manager. AR 42. She handled scheduling but 10 did not hire or fire people. AR 42. She had previously been involved in three car accidents. AR 11 59–60. She had sciatica and back pain radiating from her neck to her arms and legs. AR 45. She 12 sometimes needed help getting out of bed. AR 45–46. She could not comb her hair or put it up. 13 AR 46. She had a step-in shower with rails. AR 46. She needed help to put on underclothes. AR 14 46. She had a prescribed cane. AR 47. She answered affirmatively when asked if she used her 15 cane all the time (AR 47) but subsequently testified she uses it sometimes, and doesn’t want to 16 become dependent on it. AR 66. 17 She required periodic breaks when walking, could sit 30 to 60 consecutive minutes and had 18 to alternate between sitting and standing to relieve painful spasms. AR 47–48. She sometimes had 19 to lie down to relieve spasms. AR 48. She could do dishes for five minutes at a time. AR 48. She 20 had difficulty bending and required frequent help from her granddaughter for things like dressing. 21 AR 48–49. She could lift five pounds. AR 50. She drove occasionally up to three miles at most. 22 AR 49, 54. Her family members ran errands for her. AR 50. She ordered groceries online and 23 sent a family member to pick them up. AR 50. She lived alone but her family members lived 24 around the block and helped her daily. AR 52. She had fifteen grandchildren who did her chores 25 for her. AR 53. She was unable to take her grandchildren to places like the zoo. AR 53. 26 She took Lyrica and Cymbalta for fibromyalgia which helped but caused sleepiness. AR 27 55, 57–58. She took Metformin for diabetes which caused stomach upset, dizziness and nausea. 28 AR 55, 57. She took medication for depression and anxiety which helped, but she tried to take it as little as possible. AR 55–56. She had migraines three times a week which caused vomiting. AR 2 58. She took prescription strength Tylenol for migraines. AR 58. She had to lay in a dark room
3 to relieve eye strain during a migraine, and it would take two hours to feel relief. AR 59.
4 B. Medical Records
5 Plaintiff was involved in a car accident on March 4, 2014 (shortly before her March 13,
6 2014 disability onset date) after which she reported headaches and pain in her back, hip, arms and
7 neck. 433. Between March 2014 and June 6, 2014, Plaintiff’s physician completed numerous work
8 status reports indicating temporary total disability or partial disability with extensive physical
9 limitations. AR 436–42. 10 Lumbar spine MRI results dated May 5, 2014 showed mild to moderate posterior disk 11 protrusions at L2-L3, L3-L4 and L4-5. AR 450–51. November 14, 2014 treatment notes indicated 12 lumbar tenderness and Plaintiff was prescribed Lidoderm 5%. AR 543. A November 14, 2014 x- 13 ray of the lumbar spine found moderately severe loss of disc height at L3-L4 and L4-L5 levels, 14 mild loss of disc height at the mid lumbar region, and moderate facet degenerative changes of the 15 mid and lower lumbar spine, among other clinical findings. AR 554. 16 March 3, 2015 examination findings documented tenderness of the cervical and lumbar 17 spine. AR 538. Plaintiff was diagnosed with chronic neck pain, back pain, muscle spasm and 18 fibromyalgia and prescribed Cymbalta and Amitriptyline. AR 535–38. A July 22, 2015 cervical 19 spine x-ray revealed mild loss of disc height at C5-C6 with endplate osteophyte. AR 552. February 20 2016 treatment records noted tenderness of the cervical and lumbar spine. AR 632. Plaintiff was 21 prescribed a cane and referred for pain management. AR 633. March 2016 pain management 22 consultation examination findings noted 2/5 strength in the bilateral lower extremities; trigger 23 points; generalized musculoskeletal pain with hyperalgesia; and, ambulation with a cane. AR 638. 24 She was diagnosed with generalized musculoskeletal pain secondary to fibromyalgia, chronic low 25 back pain possibly secondary to lumbar degenerative disc disease and bilateral myocardial pain 26 syndrome. AR 638. 27 An April 18, 2016 lumbar spine x-ray documented disc space narrowing at L3-4 and L4-5. 28 AR 639. An August 15, 2016 MRI of the lumbar spine noted disc bulges, hypertrophic changes, effusions, narrowing, osteophytes and protrusions at L2-L3, L3-L4 and L4-L5, among other clinical 2 findings. AR 873–874.
3 Painful ROM in the cervical and lumbar spine was documented in a March 29, 2017
4 examination. AR 667. She was referred to a physical therapist and chiropractor and prescribed
5 medication for pain, insomnia, fibromyalgia, anxiety and depression. AR 667, 671–672.
6 Chiropractic examination noted abnormal cervical spine ROM and limited lumbar ROM. AR 676.
7 She was diagnosed with segmental and somatic dysfunction of the thoracic, cervical and lumbar
8 spine. AR 676. A June 12, 2017 lumbar spine x-ray noted multilevel disc height loss and
9 anterolisthesis. AR 758. 10 Pain management records from July 2017 through April 2018 noted pain level 6/10 with 11 medication and 10/10 without medication. AR 764. Contemporaneous examinations noted 12 abnormal and painful lumbar ROM, decreased motor strength and 4/5 ankle dorsiflexion and hip 13 abduction, among other clinical findings. AR 785. April 2018 imaging of the cervical and lumbar 14 spine noted continued abnormalities. AR 875–76. 15 C. Consultative Examinations; Opinions; Prior Administrative Findings 16 Dr. Georgis conducted a consultative orthopedic examination of Plaintiff on December 10, 17 2015. AR 619. He diagnosed chronic neck pain, chronic back pain with sciatica, and fibromyalgia 18 by history. AR 622. He noted that she walked in a flexed forward posture at the waste, took short 19 antalgic steps, but did not use a cane or other assistive device. AR 620. He noted tenderness and 20 reduced ROM of the cervical and lumbar spine. AR 620–21. He noted negative straight leg raise 21 test, normal ROM of extremities, normal muscle bulk and normal muscle tone. AR 621–22. He 22 opined she could lift and carry 20 pounds occasionally and 10 frequently, could sit, stand and walk 23 six hours in an eight-hour day and seldom perform postural activities. AR 623. 24 Dr. Lewis conducted a consultative psychological examination of Plaintiff on June 17, 25 2016. AR 646–51. Dr. Lewis noted that Plaintiff ambulates with the aid of her cane. AR 648. Dr. 26 Lewis diagnosed “other specified depressive disorder, mild.” AR 650. Dr. Lewis opined that 27 Plaintiff did not appear to exhibit any symptoms that would impair her level of functioning. AR 28 650. Dr. Lewis opined that Plaintiff had no functional impairments. AR 650–51. Regarding Plaintiff’s physical condition, non-examining state agency medical consultants 2 Drs. Kwun and Coleman reviewed Plaintiff’s medical file at the initial and reconsideration levels,
3 respectively. AR 78–79; AR 121–22. Both opined that Plaintiff could lift and carry 20 pounds
4 occasionally and 10 frequently, could sit, stand, and walk six hours in an eight-hour day, and could
5 occasionally perform postural activities (except that Dr. Coleman opined Plaintiff could frequently
6 perform some postural activities). AR 78–79; AR 121–22.
7 Regarding Plaintiff’s mental condition, non-examining state agency medical consultant Dr.
8 Solomon reviewed Plaintiff’s medical file at the reconsideration level. AR 118–19. He opined that
9 Plaintiff’s affective disorder was non-severe, caused mild restriction of her activities of daily living 10 but caused no difficulties maintaining social functioning, concentration, persistence or pace, and 11 no repeated episodes of decompensation of extended duration. AR 119. 12 D. Vocational Expert 13 A vocational expert (“VE”) testified at the administrative hearing. AR 63–69. The ALJ 14 questioned the VE regarding a hypothetical individual who could perform light work with the 15 16 following exceptions: no climbing ladders/ropes/scaffolds; occasionally perform other postural 17 activities; no concentrated exposure to: temperature extremes, dampness, vibration, very loud 18 noise, and very bright lights; frequently perform forceful overhead pushing, pulling and reaching 19 with bilateral upper extremities. AR 63. The VE opined that such an individual could not perform 20 Plaintiff’s past work as a manager (medium exertional level), or her past work as a sales clerk as 21 actually performed (medium exertional level), but could perform her past work as a sales clerk as 22 generally performed (light exertional level). AR 64. If the postural activities outlined in 23 24 hypothetical one could be performed “seldom to occasional,” as opposed to “straight out 25 occasional,” the VE’s answers would not be impacted. AR 67. If the individual could not maintain 26 regular attendance, no work would be available. AR 67. 27 Plaintiff’s attorney then posed a hypothetical to the VE adding a limitation of only 28 occasional fine gross manipulative activities. AR 68. The VE testified that such a limitation would 2 eliminate all available work. AR 68. 3 IV. Standard of Review, Generally 4 5 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the
6 Commissioner denying a claimant disability benefits. “This court may set aside the
7 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on legal
8 error or are not supported by substantial evidence in the record as a whole.” Tackett v. Apfel, 180
9 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence within the 10 record that could lead a reasonable mind to accept a conclusion regarding disability status. See 11 Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less than a 12 13 preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation omitted). 14 When performing this analysis, the court must “consider the entire record as a whole and may not 15 affirm simply by isolating a specific quantum of supporting evidence.” Robbins v. Social Security 16 Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks omitted). 17 If the evidence could reasonably support two conclusions, the court “may not substitute its 18 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112 19 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s decision 20 21 for harmless error, which exists when it is clear from the record that the ALJ’s error was 22 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d 1035, 23 1038 (9th Cir. 2008) (citations and internal quotation marks omitted). 24 V. The Disability Standard 25 To qualify for benefits under the Social Security Act, a plaintiff must establish that 26 he or she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment that has lasted or can be expected to 27 last for a continuous period of not less than twelve months. 42 U.S.C. § 28 1382c(a)(3)(A). An individual shall be considered to have a disability only if . . . his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and 2 work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate 3 area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 4 42 U.S.C. §1382c(a)(3)(B). 5 To achieve uniformity in the decision-making process, the Commissioner has established a 6 sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§ 416.920(a)- 7 (f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding that the 8 claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929. 9 Specifically, the ALJ is required to determine: (1) whether a claimant engaged in substantial 10 gainful activity during the period of alleged disability, (2) whether the claimant had medically 11 determinable “severe impairments,” (3) whether these impairments meet or are medically 12 equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, (4) 13 whether the claimant retained the residual functional capacity (“RFC”) to perform his past relevant 14 work, and (5) whether the claimant had the ability to perform other jobs existing in significant 15 numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f). While the Plaintiff bears 16 the burden of proof at steps one through four, the burden shifts to the commissioner at step five to 17 prove that Plaintiff can perform other work in the national economy, given her RFC, age, education 18 and work experience. Garrison v. Colvin, 759 F.3d 995, 1011 (9th Cir. 2014). 19 VI. The ALJ’s Decision 20 At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since 21 her alleged disability onset date of March 13, 2014. AR 17. At step two, the ALJ found that 22 Plaintiff had the following impairments which were severe in combination: fibromyalgia; 23 degenerative disc disease of the lumbar and cervical spine with bulging discs; myofascial pain 24 syndrome; diabetes with neuropathy; migraine headaches; gastroesophageal reflux disease; and, 25 hypothyroidism, depression and anxiety. AR 18. At step three, the ALJ concluded that Plaintiff 26 did not have an impairment or combination of impairments that met or medically equaled the 27 severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 18. 28 Prior to step four, the ALJ evaluated Plaintiff’s residual functional capacity (RFC) and 2 concluded that Plaintiff had the RFC to perform light work as defined in 20 C.F.R. 404.1567(b)
3 and 416.967(b) with no climbing of ladders ropes or scaffolds, seldom to occasional performance
4 of other postural activities, no more than frequent forceful overhead pushing, pulling, or reaching,
5 and no exposure to extreme heat, cold, wetness, humidity, very loud noise, very bright lights or
6 vibration. AR 22. At step four, considering Plaintiff’s RFC, the ALJ found that Plaintiff could not
7 perform her past relevant work as a department manager or sales clerk (as actually performed), but
8 could perform work as a sales clerk as generally performed. AR 25–26. Accordingly, the ALJ
9 found that Plaintiff had not been under a disability since March 13, 2014. AR 26. 10 VII. Issues Presented 11 Plaintiff contends that “the RFC is not based on substantial evidence of record that Ms. 12 Gonzales suffers from depression and anxiety that in combination with her chronic and severe pain 13 disorders cause marked non-exertional limitations in her ability to independently sustain basic 14 functioning.” Br. at 9, Doc. 17. Plaintiff also contends that “The RFC is not based on substantial 15 evidence of record that Ms. Gonzales requires a medically-prescribed cane for ambulation.” Br. at 16 17. 17 A. Applicable Law 18 Before proceeding to step four, the ALJ must first determine the claimant’s residual 19 functional capacity. Nowden v. Berryhill, No. EDCV 17-00584-JEM, 2018 WL 1155971, at *2 20 (C.D. Cal. Mar. 2, 2018). The RFC is “the most [one] can still do despite [his or her] limitations” 21 and represents an assessment “based on all the relevant evidence.” 20 C.F.R. §§ 404.1545(a)(1), 22 416.945(a)(1). The RFC must consider all of the claimant’s impairments, including those that are 23 not severe. 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling (“SSR”) 96–8p. 24 A determination of residual functional capacity is not a medical opinion, but a legal decision 25 that is expressly reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(d)(2) (RFC is not a 26 medical opinion), 404.1546(c) (identifying the ALJ as responsible for determining RFC). “[I]t is 27 the responsibility of the ALJ, not the claimant’s physician, to determine residual functional 28 capacity.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In doing so, the ALJ must 2 determine credibility, resolve conflicts in medical testimony and resolve evidentiary ambiguities.
3 Andrews v. Shalala, 53 F.3d 1035, 1039–40 (9th Cir. 1995).
4 “In determining a claimant’s RFC, an ALJ must consider all relevant evidence in the record
5 such as medical records, lay evidence and the effects of symptoms, including pain, that are
6 reasonably attributed to a medically determinable impairment.” Robbins, 466 F.3d at 883. See also
7 20 C.F.R. § 404.1545(a)(3) (residual functional capacity determined based on all relevant medical
8 and other evidence). “The ALJ can meet this burden by setting out a detailed and thorough
9 summary of the facts and conflicting evidence, stating his interpretation thereof, and making 10 findings.” Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 11 F.2d 1403, 1408 (9th Cir. 1986)). 12 B. Analysis 13 Plaintiff’s argument regarding the legal sufficiency of the RFC analysis raises a variety of 14 issues including: 1) the significance of the ALJ’s step two finding that Plaintiff’s impairments were 15 severe in combination; 2) the appropriateness of the weight the ALJ assigned to the conclusions of 16 the examining and non-examining psychiatric consultants, and the sufficiency of the ALJ’s analysis 17 of the combined effect of her mental and physical impairments; 3) whether a finding of more than 18 mild limitations in the four functional areas under the paragraph B criteria would have impacted 19 Plaintiff’s RFC; 4) whether the ALJ accurately and completely characterized the testimonial 20 evidence in concluding that Plaintiff had only mild limitations in the four functional areas under 21 the paragraph B criteria; and, 5) whether the ALJ accurately and completely characterized the 22 evidence regarding Plaintiff’s need for a medically prescribed cane. 23 1. Step Two Severity Finding 24 Plaintiff emphasizes that the ALJ’s step two finding of severity required the ALJ to consider 25 her anxiety and depression at subsequent stages of the analysis. Br. at 9. Plaintiff contends, 26 however, that “the ALJ committed harmful error by failing to account for these non-exertional 27 limitations in later steps of the evaluation . . .” Id. Anxiety and depression are not non-exertional 28 limitations. They are medical impairments which may or may not have caused non-exertional limitations depending on the nature of the evidence. The pertinent evidence is discussed below. 2 However, the ALJ’s step two severity finding does not support an inference that Plaintiff had non-
3 exertional limitations impacting her RFC. See Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir.
4 1996) (noting that step two is “a de minimis screening device [used] to dispose of groundless
5 claims).
6 2. Weight Determinations; Combined Effect of Impairments
7 Plaintiff questions the fact that the ALJ accorded significant weight to Dr. Solomon’s
8 conclusion that her mental impairments were non-severe in isolation but accorded little weight to
9 Dr. Lewis’s conclusion that her depression caused no significant limitations. Br. at 10. Plaintiff 10 also contends that the ALJ did not discuss how her depression and anxiety were considered in 11 combination with her other severe impairments. Id. 12 The ALJ gave little weight to Dr. Lewis’s opinion because it was based on one examination 13 and Dr. Lewis only had limited medical records available for review. AR 25. Although the ALJ 14 ultimately reached a similar conclusion to the one offered by Dr. Lewis, the ALJ reached that 15 conclusion based on other medical evidence and opinion evidence such as the opinion of Dr. 16 Solomon who had a more complete medical file for review. Plaintiff offers no explanation as to 17 why she believes this was improper. 18 Dr. Solomon’s conclusion that Plaintiff’s mental impairments were non-severe supported 19 the ALJ’s more moderate conclusion that Plaintiff’s mental impairments were severe in 20 combination with other impairments, but that the evidence ultimately did not support the inclusion 21 of non-exertional limitations in her RFC. Plaintiff identifies no reason why the ALJ could not rely 22 on Dr. Solomon’s opinion and supporting medical record evidence while nevertheless reaching a 23 different conclusion than Dr. Solomon did regarding severity. 24 Nor is there any apparent reason why Dr. Solomon’s conclusion regarding non-severity of 25 Plaintiff’s mental impairment “in isolation” can’t serve as substantial evidence supporting the 26 ALJ’s broader RFC determination. Dr. Solomon, Ph.D., was tasked with evaluating Plaintiff’s 27 mental condition, not her physical condition. Such opinion, even though not coming from a medical 28 doctor, is nevertheless appropriate evidence for the ALJ’s consideration, and the Court is aware of no exception for cases involving combined impairments. A non-examining opinion, such as Dr. 2 Solomon’s, may constitute substantial evidence when it is “consistent with independent clinical
3 findings or other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).
4 The ALJ found Dr. Solomon’s opinion consistent with the medical evidence upon which it was
5 based, including: essentially normal mental status examinations throughout the record, no record
6 of hospitalization for psychiatric treatment, no psychosis or suicidal ideation, and treatment with
7 medication only. AR 24.
8 In addition to Dr. Solomon’s opinion and the supporting medical evidence discussed
9 therein, the ALJ also cited other evidence undermining the notion that Plaintiff’s mental 10 impairments caused non-exertional limitations, including: March 2017 and August 2017 primary 11 care treatment notes reflecting full orientation with appropriate mood and affect, normal insight 12 and normal judgment; the lack of evidence that Plaintiff ever visited a clinical social worker or 13 behavior health provider notwithstanding her physician’s recommendation that she do so; 14 November 2017 records reflecting that the claimant denied depressed mood, difficulty sleeping or 15 suicidal thoughts. AR 23. The ALJ also acknowledged contemporaneous records reflecting the 16 opposite findings, but those records did not change his conclusion. Id. Remand is not warranted 17 where the evidence supports two conclusions. Jamerson, 112 F.3d at 1066. 18 Plaintiff does not acknowledge or directly dispute the ALJ’s extensive analysis of the 19 evidence regarding Plaintiff’s physical conditions (AR 20-25), including three out of three 20 physician’s opinions supporting the ALJ’s RFC. Rather, Plaintiff’s central contention is that the 21 evidence of her anxiety and depression were not sufficiently brought to bear on the ALJ’s analysis 22 of the combined effect of all her impairments. Plaintiff offers minimal discussion of any such 23 evidence other than her testimony which is discussed below. Further, Plaintiff’s contention that 24 the ALJ failed to consider the combined effect of her impairments is contrary to the record. Her 25 claim proceeded past step two precisely because the ALJ considered the combined effect of 26 independently non-severe impairments, and he evaluated evidence of all impairments at subsequent 27 stages. AR 18. Thus, the ALJ clearly considered the combined effect of all impairments. 28 Granted, Plaintiff is correct that the ALJ’s repeated emphasis of the importance of considering the combined effect of impairments2 perhaps set the stage for a discussion uniquely 2 focused on “combined effects” rather than individual effects. Nevertheless, Plaintiff provides no
3 theory or legal authority as to how the ALJ is supposed to go about articulating “combined effects”
4 other than doing what the ALJ did here. The ALJ thoroughly analyzed the medical evidence,
5 opinion evidence and testimonial evidence regarding each individual impairment and reached an
6 overall conclusion on Plaintiff’s corresponding limitations. Plaintiff identifies no error in that
7 analysis.
8 3. Impact of Paragraph B Criteria on RFC
9 Plaintiff contends that a finding of more than mild limitations in the four functional areas 10 under the paragraph B criteria would have impacted her RFC and mandated a finding of disability 11 pursuant to rule 202.02 of the medical vocational guidelines. Br. at 11. First, none of the opinion 12 evidence supports a finding of more than mild limitations in the paragraph B criteria, and Plaintiff 13 identifies no medical evidence to the contrary. Plaintiff only identifies testimonial evidence, which 14 15 is discussed below. 16 Second, the ALJ’s finding of mild limitations in those functional areas is a distinct inquiry 17 from the RFC. The ALJ found that Plaintiff had mild limitations in the four broad categories of 18 functional limitation considered during the special technique set forth at 20 C.F.R. § 19 404.1520a(c)(3), also known as “paragraph B criteria,” including: understanding, remembering and 20 applying information;3 interacting with others; concentration, persistence and pace; and, adapting 21 22 2 See, e.g., AR 17 (“The claimant has the following impairments which are severe in combination 23 . . . The medically severe combination of the above impairments caused more than minimal functional limitations . . . these impairments ‘in combination’ are more than slight abnormalities 24 and ‘in combination’ cause more than minimal limitations . . . the claimant’s medically 25 determinable impairments, in combination, are severe.”); AR 24 (“Dr. Kwun and Dr. Coleman did not give consideration to the effects of the claimant’s impairments in combination . . . Dr. Georgis 26 does not appear to have given consideration to the effects of the claimant’s impairments in combination . . .”); AR 25 (“However, the opinion does not consider the impact of these 27 impairments in combination with the claimant’s physical impairments, and the undersigned finds 28 that they should be considered together.”) (emphasis added). 3 The Paragraph B criteria the ALJ evaluated are actually derived from a revised version of 20 and managing one’s self. As SSR 96-8p explains, however: 2 the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria are not an 3 RFC assessment but are used to rate the severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation process. The mental RFC assessment used at steps 4 4 and 5 of the sequential evaluation process requires a more detailed assessment by 5 itemizing various functions contained in the broad categories found in paragraphs B and C of the adult mental disorders listings in 12.00 of the Listing of Impairments,
6 and summarized on the PRTF.
7 SSR 96-8, 1996 WL 374184, at *1. These “itemized” functions include: understanding, carrying
8 out and remembering instructions; using judgment in making work-related decisions; responding
9 appropriately to supervision, co-workers and work situations; and, dealing with changes in a routine 10 work setting. See id at *6. 11 None of the opinion evidence of record supports a finding of limitations in any of the work- 12 13 related functional areas considered at the RFC stage. Plaintiff does not explain how any medical 14 evidence would support a finding of such limitations. 15 4. ALJ’s Characterization of Plaintiff’s Testimony 16 Plaintiff contends that the ALJ did not accurately or completely capture her testimonial 17 evidence in finding only mild limitations under the paragraph B criteria. The ALJ cited Plaintiff’s 18 adult function report and noted that Plaintiff could prepare her own simple meals, do her household 19 cleaning and laundry, drive during daylight hours, shop when needed, handle a checkbook and 20 21 savings account, count change, attend family events periodically, regularly go to the bank and 22 regularly go to her daughter’s house. AR 19 (citing Exhibits 5E/7 through 5E/11, AR 375–79). On 23 the other hand, the ALJ also noted that Plaintiff needed her granddaughter’s help paying bills, did 24 not like to go out alone because she could get dizzy and hurt herself, preferred to order groceries 25
26 C.F.R. § 404.1520a(c)(3) (2017) which post-dated Plaintiff’s application date. The version effective as of her application date contained slightly different criteria: Activities of daily living; 27 social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. 28 § 404.1520(c)(3) (2011). Dr. Solomon evaluated the latter criteria. Neither party draws attention to this nor contends that it impacted the outcome. electronically and have them picked up, had some difficulty maintaining focus with spoken 2 instructions and had difficulty dressing and combing her hair. Id. On balance, the ALJ found only 3 mild limitations in the four functional areas. A review of the cited exhibits (Plaintiff’s adult 4 5
function report) confirms that the ALJ accurately characterized the same.4
6 Plaintiff disagrees, contending as follows:
7 Furthermore, a review of “Exhibit 5E/9,” as a whole reveals, that Ms. Gonzales does not go out alone for fear of falling and stated she is unable to pay bills on her own (AR 8 377); and review of “Exhibit 5E/10,” as a whole, reveals that Ms. Gonzales generally and vaguely stated she does go “to dinner” or “visit fam ily members” she also states 9 that she only does so “every two months and just sit and talk” and is unable to go out 10 alone. (AR 378)
11 Br. at 15 (emphasis in original). Here however, the ALJ in fact acknowledged the very statements 12 Plaintiff underscores from her function report, including her need for assistance paying her bills, that 13 she visits family members periodically, and that she does not like to go out alone because she could get 14 dizzy and hurt herself.5 15 Plaintiff also underscores oral testimony from the administrative hearing that she contends 16 17 4 Plaintiff applies the “clear and convincing” standard to the ALJ’s “rejection” of her testimony. 18 Br. at 14 (citing Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th Cir.2002); Trevizo v. Berryhill, 871 F.3d 664, 678-682 (9th Cir. 2017)). However, Plaintiff was in fact quoting from 19 and disputing the ALJ’s step three finding concerning the severity of her impairments under the paragraph B criteria and the accuracy of the ALJ’s description of her testimony in reaching that 20 conclusion. Plaintiff does not discuss the ALJ’s step four explanation for why her testimony did 21 not support a finding of non-exertional limitations. In any event, to the extent the “clear and convincing” standard does apply, the Court finds the ALJ’s reasoning at step three clear and 22 convincing as he fairly characterized the content of her adult function report, notwithstanding Plaintiff’s contention to the contrary. 23 5 There were some subtle differences between the ALJ’s description and Plaintiff’s actual function report. Whereas he stated she attended family events “periodically,” Plaintiff’s function report 24 states that she did so “maybe two months apart.” AR 378. Whereas the ALJ stated Plaintiff does 25 not “like to” go out alone, her function report reflects that she “need[s] someone to accompany [her],” meaning it was a necessity not a preference. AR 378. Plaintiff did not identify these 26 subtleties or contend they are outcome determinative. Rather, Plaintiff suggests that the ALJ simply focused on the testimony concerning her capabilities and ignored her statements about her 27 difficulties, which is not an accurate assessment of the ALJ’s reasoning. The ALJ considered 28 statements regarding capabilities and difficulties and concluded that Plaintiff’s statements as a whole only supported mild limitations in the four functional areas. supports a finding of greater limitations than the statements in her function report. However, remand 2 is not warranted where the evidence supports two conclusions. Jamerson, 112 F.3d at 1066. 3 5. Evidence Regarding Medically Prescribed Cane 4 Finally, Plaintiff contends that the ALJ mischaracterized and/or overlooked evidence 5
6 regarding her medically prescribed cane. Plaintiff quotes the discussion she had during the hearing
7 with the ALJ, which the Court agrees was a bit unusual:
8 ALJ: You know there’s been some dispute regarding this cane that you have. There’s been times when you’ve needed a cane, been prescribed a can e, and there’s been other times when 9 you weren’t using the cane, and whether it was prescribed for you or no, or any other assistive 10 device. Do you have a cane with you here today?
11 Ms. Gonzales: Yes sir.
12 ALJ: Yes, you do. But do you feel like you need it?
13 Ms. Gonzales: This morning I was folding my blanket, and I pulled a muscle in my back…
14 ALJ: And, in particular, you needed it today, huh? 15 Ms. Gonzales: Yeah. 16 ALJ: And is it also kind a security blanket? 17 Ms. Gonzales: Yea, it is. 18 ALJ: Kind of like protection? 19
Ms. Gonzales: Yes. 20
21 ALJ: If somebody said something rude to you, or something, you can smack them real quick with it, or something? No? 22 Ms. Gonzales: No. 23 ALJ: You’ve never done that, have you? 24 Ms. Gonzales: No. 25
26 ALJ: But if you hadn’t hurt your side, you wouldn’t be using the cane right now, is that true?
27 Ms. Gonzales: I use it sometimes, yea.
28 ALJ: Sometimes you use it; sometimes you don’t? 2 Ms. Gonzales: Yea, sometimes I do, I don’t want to get dependent on it.
3 ALJ: Oh really?
4 Ms. Gonzales: Yea, but, I pulled a muscle today.
5 ALJ: You try not to use it unless you absolutely need it.
6 Ms. Gonzales: Yes.
7 AR 65–66. Subsequently, the ALJ stated in his written opinion that Plaintiff was prescribed a cane but
8 that “she does not use the cane at all times and it is a ‘security blan ket’ rather than a constant necessity.” 9 AR 22. Indeed, as Plaintiff emphasizes, the term “security blanket” came from the ALJ, not Plaintiff.6 10 Nevertheless, Plaintiff did independently state that she uses the cane “sometimes,” in contrast 11 12 to her earlier testimony that she uses it “all the time.” AR 47, 66. She also answered affirmatively 13 when asked if she tries not to use it unless she absolutely needs it. AR 66. As the ALJ stated, the 14 medical evidence was also split regarding her use of the cane. Whereas June 17, 2016 examination 15 notes reflect that Plaintiff ambulated with the aid of her cane (AR 648), December 10, 2015 examination 16 notes reflect that she did not use a cane or other assistive device (AR 620). Remand is not warranted 17 where the evidence supports two conclusions. Jamerson, 112 F.3d at 1066. 18 Plaintiff contends that the evidence nevertheless establishes that she requires the cane “at 19 least 50%” of the time which would limit her to sedentary work if incorporated in her RFC. 20 21 However, she did not testify that she required her cane at least 50% of the time, nor would such 22 testimony establish a medical requirement where her doctor’s prescription contains no information 23 beyond “DME for cane sent today” (AR 629, 633). See SSR 96-9p (requiring “medical 24 25 6 It is also worth noting that the ideal time for the ALJ to introduce levity and humor into the 26 proceedings was probably not during the same line of questioning the ALJ ultimately used as a basis to exclude the cane requirement from Plaintiff’s RFC. See AR 66 (“If somebody said 27 something rude to you, or something, you can smack them real quick with it, or something? No? . 28 . . You’ve never done that, have you?”). This was not the only instance of statements which blurred the distinction between friendly banter and sworn testimony. documentation establishing the need for a hand-held assistive device to aid in walking or standing, 2 and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or 3 only in certain situations; distance and terrain; and any other relevant information.”)) (emphasis 4 5 added).
6 VIII. Conclusion and Order
7 For the reasons stated above, the Court finds that substantial evidence and applicable law
8 support the ALJ’s conclusion that Plaintiff was not disabled. Accordingly, Plaintiff’s appeal from
9 the administrative decision of the Commissioner of Social Security is denied. The Clerk of Court 10 is directed to enter judgment in favor of Defendant Andrew Saul, Commissioner of Social Security, 11 and against Plaintiff Rosemary Gonzales. 12 13 14 IT IS SO ORDERED.
15 Dated: February 20, 2021 /s/ Gary S. Austin 16 UNITED STATES MAGISTRATE JUDGE
17 18 19 20 21 22 23 24 25 26 27 28