1 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 SOUTHERN DISTRICT OF CALIFORNIA 12 13 ROSA MARIA V., Case No.: 19cv1312-RBB
14 Plaintiff, ORDER DENYING PLAINTIFF’S 15 v. MOTION FOR SUMMARY JUDGMENT [ECF NO. 23] AND 16 ANDREW M. SAUL, Commissioner of GRANTING DEFENDANT’S CROSS- Social Security, 17 MOTION FOR SUMMARY Defendant. JUDGMENT [ECF NO. 24] 18
19 On July 15, 2019, Plaintiff Rosa V.1 commenced this action against Defendant 20 Andrew M. Saul, Commissioner of Social Security, for judicial review under 42 U.S.C. 21 § 405(g) of a final adverse decision for social security benefits [ECF No. 1]. On August 22 6, 2019, Plaintiff consented to the jurisdiction of Magistrate Judge Linda Lopez [ECF No. 23 24 25 26 1 The Court refers to Plaintiff using only her first name and last initial pursuant to the Court's Civil Local 27 Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b). 1 6].2 Defendant filed the Administrative Record on November 22, 2019 [ECF No. 16]. 2 On March 11, 2020, Plaintiff filed a motion for summary judgment [ECF No. 23]. 3 Defendant filed a cross-motion for summary judgment and opposition to Plaintiff’s 4 motion for summary judgment on April 15, 2020 [ECF No. 24]. Plaintiff and Defendant 5 filed reply briefs on May 7 and 8, 2020, respectively [ECF Nos. 28, 30]. On May 26, 6 2020, Judge Lopez transferred this matter to Magistrate Judge Ruben B. Brooks [ECF 7 No. 31]. Plaintiff’s consent to Judge Brooks’s jurisdiction was filed on June 23, 2020 8 [ECF No. 32]. 9 For the following reasons, Plaintiff's motion for summary judgment is DENIED, 10 and Defendant’s cross-motion for summary judgment is GRANTED. 11 I. BACKGROUND 12 On October 20, 2015, Plaintiff filed an application for disability insurance benefits 13 under Title II of the Social Security Act. (Admin. R. 23, 235-36, ECF No. 16.) 3 Rosa V. 14 alleged that she had been disabled since November 4, 2014, due to chronic insomnia, 15 depression, headaches, back aches, joint pain, and memory loss. (Id. at 281.) Plaintiff 16 was born in 1959 and was employed as a housekeeper at the Manchester Grand Hyatt in 17 San Diego at the time she stopped working. (Id. at 272, 356.) Her disability application 18 was denied on initial review and again on reconsideration. (Id. at 161-64, 168-72.) An 19 administrative hearing was conducted on June 20, 2018, by Administrative Law Judge 20 ("ALJ") Jay E. Levine; on September 18, 2018, he determined that Plaintiff was not 21 disabled. (Id. at 23-31.) Plaintiff requested a review of the ALJ's decision; the Appeals 22
23 24 2 The United States has informed the Court of its general consent to Magistrate Judge jurisdiction in cases of this nature. 25 3 The administrative record is filed on the Court’s docket as multiple attachments. The Court will cite to 26 the administrative record using the page references contained on the original document rather than the page numbers designated by the Court’s case management/electronic case filing system (“CM/ECF”). 27 For all other documents, the Court cites to the page numbers affixed by CM/ECF. 1 Council for the Social Security Administration denied the request for review on May 22, 2 2019. (Id. at 1-4.) Plaintiff then commenced this action pursuant to 42 U.S.C. § 405(g). 3 A. Medical Evidence 4 Plaintiff received regular medical care at the SIMNSA medical office in Tijuana, 5 Mexico between 2010 and 2015. (Id. at 362-437.) Her medical records reflect multiple 6 complaints, including anxiety, insomnia, sleep apnea, tension headaches, depression, and 7 neck pain dating back to 2010. (Id. at 421-31, 433-35, 437.) Her anxiety and depression 8 symptoms continued into 2011 but appeared to improve with prescribed medications. 9 (Id. at 412-19.) A psychiatrist noted that Plaintiff needed to wean off benzodiazepines 10 due to a dependency on these sedatives. (Id. at 416.) In 2012, Rosa V.’s depression, 11 anxiety, insomnia, and low back pain were under control. (Id. at 405-07.) In June 2013, 12 she reported right lumbar pain that radiated into her right leg. (Id. at 398.) But in August 13 and October 2013, Plaintiff’s physicians noted that she had persistent anxiety and 14 insomnia. (Id. at 392, 394-95.) 15 Rosa V. reported continuing low back pain on March 28, 2014. (Id. at 387.) On 16 October 2, 2014, she complained of exhaustion and excessive tiredness. (Id. at 381.) 17 Treatment notes from November 4, 2014, the day she stopped working, indicate that Rosa 18 V. was suffering from asthenia (lack or loss of strength), adynamia (asthenia caused by 19 disease), headaches, and exhaustion due to stress at work. (Id. at 380.) On December 1, 20 2014, she presented with vertigo symptoms. (Id. at 377.) Plaintiff’s treatment notes from 21 January 2, 2015, indicate that she had suspended her treatment for bipolar disorder 22 because of the side effects, and she did not trust the prescribed treatment. (Id. at 367.) In 23 March 2015, Plaintiff’s prescribed medications included Brintellix, Rivotril, and 24 Plantival. (Id. at 359-60.) 25 On March 27, 2015, Rosa V. underwent an internal medicine evaluation with Amy 26 L. Kanner, M.D., at the request of the Department of Social Services. (Id. at 574-81.) 27 1 Plaintiff’s chief complaints were lower back pain, neck pain, and vertigo. (Id. at 575.) 2 She told the examiner that she was on disability from work due to depression. (Id. at 3 577.) Dr. Kanner examined Plaintiff’s claimed conditions; each was within normal 4 limits, and the doctor opined that Plaintiff had no physical functional limitations. (Id. at 5 581.) 6 Plaintiff established care at the Family Health Centers of San Diego on October 16, 7 2015, for treatment of her insomnia and anxiety; her initial consultation was with nurse 8 practitioner Teresa Aldana. (Id. at 591-93.) She received a behavioral health assessment 9 from licensed clinical social worker Martha Jasso-Ramirez on November 17, 2015. (Id. 10 at 600.) Plaintiff reported that she had a long history of anxiety and depression that had 11 started about seven years earlier when her workload as a hotel housekeeper doubled from 12 cleaning sixteen rooms a day to thirty to thirty-two rooms. (Id.) She became very 13 stressed and injured herself several times trying to keep up with her work until she quit in 14 2014. (Id.) During her examination, she was alert and showed coherent thought process, 15 appropriate affect, and normal memory, but exhibited a depressed and anxious mood. 16 (Id. at 602.) Shortly thereafter, on November 30, 2015, Plaintiff underwent a psychiatric 17 medication evaluation with Dr. Joe Sepulveda. (Id. at 597-99.) Dr. Sepulveda observed 18 that although Rosa V. primarily complained of insomnia, it became apparent during the 19 evaluation that she “contends with a significant amount of anxiety bordering on 20 neuroticism.” (Id. at 597.) The psychiatrist noted that Plaintiff spoke nonstop for forty 21 minutes but was not pressured in speech and paused at appropriate intervals when she 22 needed to collect her thoughts. (Id.) He also determined that Rosa V. had taken 23 benzodiazepines, primarily Klonopin, chronically for the past ten years and had become 24 physically dependent on them. (Id.) He found Plaintiff had a history of, but no present 25 symptoms of, major depressive disorder, and a history of significant anxiety bordering on 26 neuroticism, but did not believe her history supported diagnoses of psychosis or bipolar 27 1 disorder. (Id.) Dr. Sepulveda directed Plaintiff to restart Klonopin, for which she would 2 require a slow taper over a long period of time to prevent withdrawal symptoms, and 3 prescribed Effexor (for depression and anxiety) and Trazodone (antidepressant). (Id. at 4 598.) He also recommended therapy to develop better coping skills for anxiety and a 5 sleep study in the future if needed. (Id. at 599.) 6 Two months later, on February 8, 2016, Plaintiff returned to see Dr. Sepulveda and 7 reported that she had received rehabilitation services in Mexico and had successfully 8 weaned herself completely off benzodiazepines. (Id. at 594.) She stated that she still had 9 insomnia, did not find Trazadone to be helpful, did not want to take Effexor, and only 10 wanted non-addictive medications for sleep. (Id.) Rosa V.’s mental status examination 11 revealed linear and coherent thought process, appropriate judgment and insight, 12 appropriate attention span and concentration, appropriate remote and recent memory, and 13 euthymic mood and affect. (Id. at 594-95.) Dr. Sepulveda made a note in Plaintiff’s 14 record to not prescribe any controlled substances and provided her with a prescription for 15 Doxepin. (Id. at 595.)4 16 On April 12, 2016, Plaintiff returned to Nurse Practitioner Aldana at Family Health 17 Centers and reported that she had not responded well to Doxepin and was unable to sleep. 18 (Id. at 930-31.) She also complained of low back pain on a scale of seven out of ten. 19 (Id.) Nurse Aldana ordered lumbar x-rays, which showed scoliosis and moderate disc 20 height narrowing at L3-4, and a sleep study. (Id. at 611, 932.) Plaintiff then received an 21 internal medicine evaluation from Phong T. Dao, D.O., on April 13, 2016, at the request 22 of the Department of Social Services. (Id. at 604-09.) Her chief complaints were back 23 24 25 4 Two months later, on April 8, 2016, state agency psychiatrist Heather Barrons, Psy.D., reviewed 26 Plaintiff’s file and prepared the Psychiatric Review Technique and mental residual functional capacity assessment upon which Plaintiff’s arguments are based. (See Admin. R. 138-42, ECF No. 16.) Dr. 27 Barrons’s opinion is discussed in greater detail below. 1 pain and depression. (Id. at 604.) Dr. Dao noted that Rosa V. had tenderness to palpation 2 of the lumber spine with normal range of motion; negative straight leg raising test; intact 3 motor strength, sensation, and reflexes in the lower extremities; and normal gait. (Id. at 4 608.) The doctor opined that Plaintiff could lift, carry, push, or pull one hundred pounds 5 occasionally and fifty pounds frequently, could stand or walk for eight hours in an eight- 6 hour workday, and could sit with no limitations. (Id.) 7 Rosa V. had a follow up with Dr. Sepulveda, the psychiatrist, on June 3, 2016. (Id. 8 at 613-16.) She told him that she felt chronically exhausted and was unable to sleep. (Id. 9 at 613.) Dr. Sepulveda observed that Plaintiff appeared alert and rested; he remarked that 10 it was “[u]nclear if she subjectively feels lack of sleep vs. true insomnia[.]” (Id.) The 11 psychiatrist prescribed Ambien at Rosa V.’s request because Doxepin and Melatonin 12 were not helping her sleep. (Id.) Plaintiff’s psychiatric care was transferred to Deborah 13 Birnbaum, M.D., on August 22, 2016. (Id. at 622.) Rosa V. informed Dr. Birnbaum that 14 she was receiving injections of an unknown medication from an “addiction specialist” in 15 Mexico. (Id.) Dr. Birnbaum discontinued all of Plaintiff’s previous insomnia 16 medications, which Plaintiff stated were not working, and put Rosa V. on a trial of 17 Seroquel, to which Plaintiff was later found to be allergic. (Id. at 623, 797, 923.) 18 Plaintiff underwent a sleep study at Eastlake Sleep Center on September 9, 2016. 19 (Id. at 625-27.) The study demonstrated that Plaintiff had obstructive sleep apnea, for 20 which the use of an auto-titrating CPAP (continuous positive airway pressure) machine 21 was recommended. (Id. at 626.) Dr. Birnbaum, who had not yet seen the sleep study 22 results, placed Rosa V. on a trial of Remeron on September 19, 2016. (Id. at 797-98.) 23 Plaintiff requested a CPAP machine from Family Health Centers on October 19, 2016. 24 (Id. at 899.) She reported at that time that she slept for four hours a night and 25 experienced tiredness and low energy daily. (Id.) Dr. Birnbaum, the psychiatrist, saw 26 Plaintiff again on November 21, 2016. (Id. at 794.) Rosa V. had stopped taking 27 1 Remeron because it was ineffective and had restarted Ambien on her own. (Id.) Dr. 2 Birnbaum cautioned Plaintiff that she should not take Ambien due her prior 3 benzodiazepine addiction and started her on Elavil instead. (Id. at 795.) 4 On November 30, 2016, Plaintiff went to the emergency room at Scripps Mercy 5 Hospital Chula Vista after being struck by a bicycle in Tijuana, Mexico. (Id. at 628, 6 886.) She explained that she was walking to a doctor’s office and was hit on the left side 7 by the bicycle. (Id. at 628.) She sustained a laceration to her left leg that was treated in 8 Mexico and had come to the hospital in Chula Vista for further imaging and evaluation. 9 (Id. at 628, 886.) A CT scan of her head and face showed maxillary (jaw) and nasal 10 fractures. (Id. at 629.) An x-ray of her left tibia and fibula was negative. (Id.) 11 Rosa V. was seen in follow-up at Family Health Centers on December 6, 2016. 12 (Id. at 883.) She reported that she was feeling better from her facial bone fractures but 13 was unable to use her CPAP machine due to her injuries. (Id.) Nurse practitioner 14 Adriana Celiz prescribed Zolpidem (generic Ambien) at Plaintiff’s request because 15 Plaintiff stated that it was the only medication that enabled her to sleep. (Id.) On 16 December 20, 2016, Rosa V. attended a psychiatric medication follow-up with nurse 17 practitioner Ruben Montanez. (Id. at 791-93.) She admitted that taking Ambien was not 18 the best option because of her history of benzodiazepine addiction but stated that other 19 medications had not worked for her. (Id. at 791.) Nurse Montanez prescribed 20 Miratazapine and Vistaril and encouraged psychotherapy. (Id. at 792.) A few weeks 21 later, Plaintiff told Nurse Montanez that the Mirtazapine increased her anxiety at night 22 and caused her to have restless legs, so she had started taking “Sertralina,” prescribed by 23 a doctor in Tijuana. (Id. at 786.) The nurse discontinued Mirtazapine, added Zoloft, and 24 continued Vistaril. (Id. at 787.) A brain CT scan performed on December 28, 2016, was 25 normal. (Id. at 716.) 26 27 1 On January 11, 2017, Rosa V. told her primary care nurse practitioner that the 2 facial injuries she sustained in the accident were improving and that she had replaced the 3 teeth she lost in the accident. (Id. at 875, 877.) Randall W. Stettler, D.D.S., an oral 4 surgeon, evaluated Plaintiff’s facial injuries on January 18, 2017. (Id. at 804-05.) He 5 found that she did not have any facial fractures but did have a nasal fracture; he 6 recommended that she see an ear, nose, and throat specialist. (Id. at 805.) ENT 7 Associates of San Diego referred Rosa V. to neurology for evaluation of post-concussion 8 syndrome, recommended physical therapy for evaluation and treatment of myofascial 9 pain, and suggested vestibular therapy for her dizziness. (Id. at 681-84, 688, 696.) 10 Plaintiff attended twelve sessions of physical therapy between April 20 and June 14, 11 2017. (Id. at 633-80.) Notwithstanding her complaints of dizziness, Rosa V. was able to 12 drive herself to therapy. (Id. at 645.) She still felt “a little dizzy” at the conclusion of her 13 course of physical therapy but stated that the therapy had helped to decrease her pain and 14 dizzy spells. (Id. at 677.) 15 Plaintiff resumed treatment with Dr. Sepulveda, the psychiatrist, on March 28, 16 2017. (Id. at 782-85.) He agreed to restart her on Ambien because she found that other 17 insomnia medications were not effective. (Id. at 783.) He noted that Zoloft helped Rosa 18 V. with her depression symptoms. (Id.) Plaintiff had successfully tapered down to 0.5 19 milligrams of benzodiazepines twice per day with the assistance of “benzo shots” but had 20 been unable to continue the injections because of her insurance coverage. (Id.) He 21 suspected that Plaintiff’s increased anxiety and insomnia were likely symptoms of 22 withdrawal from benzodiazepines. (Id.) Dr. Sepulveda found his patient’s attention span 23 and concentration to be “appropriate.” (Id.) 24 Plaintiff saw an optometrist on June 13, 2017, after experiencing pain and a foreign 25 body sensation in her left eye for two months. (Id. at 727.) The doctor informed her that 26 she had cataracts but that they did not require treatment unless they interfered with her 27 1 vision. (Id. at 728.) On July 31, 2017, Rosa V. saw Nurse Practitioner Adriana Celiz to 2 address continuing pain on the left side of her face related to the injuries sustained in her 3 accident. (Id. at 869-71.) She had been treating with a dentist in Mexico for a gum 4 infection, had multiple dental procedures, and was taking Ketorolac for pain. (Id. at 869.) 5 X-rays were negative for fractures, and Plaintiff was referred to pain management to 6 assist with her chronic facial pain. (Id. at 867.) On August 4, 2017, Plaintiff began 7 therapy with licensed clinical social worker Martha Jasso-Ramirez, whom she had 8 previously seen in November 2015. (Id. at 776-81; see also 600-03.) Rosa V. exhibited 9 an “anxious and irritated mood” but had a coherent thought process, appropriate affect, 10 and normal memory. (Id. at 777, 779.) Jasso-Ramirez rated Plaintiff’s clinical 11 complexity as “mild.” (Id. at 780.) On August 29, 2017, Rosa V. told her psychiatrist, 12 Dr. Sepulveda, that she had undergone multiple dental surgeries that had produced pain 13 and anxiety. (Id. at 766-67.) Her mental status exam was normal. (Id.) The psychiatrist 14 renewed a prescription for Gabapentin that a physician in Mexico had prescribed to help 15 Plaintiff’s symptoms and noted that Plaintiff had a sleep study scheduled for the 16 following month. (Id. at 767.) 17 Plaintiff was evaluated for her chronic pain on October 10, 2017, by Annette 18 Ramos-Haggan, N.P., of Synovation Medical Group. (Id. at 700-03.) She described jaw 19 pain radiating into her head, aching pain in the back of her head, and neck pain radiating 20 down her arms. (Id. at 700.) Thoracic x-rays revealed scoliosis. (Id. at 709.) An MRI of 21 Plaintiff’s cervical spine showed right posterior disc spur complex at C3-4 and right 22 foraminal stenosis that correlated for right C4 radiculopathy but was otherwise normal. 23 (Id. at 707-08.) Nurse Ramos-Haggan reviewed Plaintiff’s images with her on October 24 31, 2017; Rosa V. stated that she wanted to try acupuncture before considering other 25 treatment options. (Id. at 704.) Plaintiff attended eleven session of acupuncture for her 26 neck pain between November 2, 2017, and April 12, 2018. (Id. at 730-40.) 27 1 When Rosa V. saw Dr. Sepulveda on November 30, 2017, she was very anxious 2 about a “botched dental procedure” that had been performed in Mexico. (Id. at 763-65.) 3 She had previously described this to her primary care provider as a “hole” in her mouth 4 which made a whistle sound when she spoke. (Id. at 862.) The dentist apparently told 5 Plaintiff that no further corrective measures could be taken; this caused Plaintiff great 6 distress. (Id. at 763.) Rosa V. had stopped taking Gabapentin but asked to restart this 7 medication and continue her prescription for Ambien. (Id. at 763-64.) 8 A little over two months later, on February 8, 2018, Rosa V. informed Dr. 9 Sepulveda that she was still struggling with anxiety and chronic pain in her jaw area. (Id. 10 at 760-62.) She planned to undergo additional dental surgery in Mexico with a different 11 surgeon. (Id. at 760.) On April 3, 2018, Rosa V. returned to Nurse Practitioner Celiz 12 because of continued pain in Rosa V.’s left jaw area. (Id. at 858-61.) On May 17, 2018, 13 Plaintiff told Dr. Sepulveda that she had attempted to taper off Ambien but doing so had 14 worsened her mood and insomnia, which reportedly resulted in two hospitalizations in 15 Mexico. (Id. at 757-59.)5 He continued her Ambien prescription, increased her dosage of 16 Gabapentin, and recommended ongoing therapy. (Id. at 758.)6 17 / / / 18 / / / 19 / / / 20 21 22 5 These hospitalizations reported by Rosa V. may conflict with the ALJ’s observation that Plaintiff’s 23 medical record does not describe “sustained psychiatric hospitalizations due to psychological symptoms.” (See Admin. R. 27, ECF No. 16.) Neither party, however, has briefed this issue and the 24 record does not contain any further reference to these hospitalizations. 6 The administrative record contains medical records submitted to the Social Security Administration 25 after the ALJ’s decision. (See Admin. R. 37-116, ECF No. 16.) The district court’s function is to 26 review the correctness of the Commissioner’s decision at the time it was made. Hudson v. Bowen, 849 F.2d 433, 435 (9th Cir. 1988). For this reason, and because Plaintiff’s argument does not rely upon the 27 supplemental records, the Court has not considered these records in its decision. 1 B. Hearing Testimony 2 On June 20, 2018, Rosa V. appeared with her attorney at a hearing before ALJ 3 Levine. (Id. at 117.) Vocational expert Sonia Peterson also briefly testified. (Id. at 117, 4 123-24.) 5 1. Plaintiff’s testimony 6 Plaintiff, whose primary language is Spanish, (see id. at 280), testified with the 7 assistance of an interpreter. (Id. at 119.) She stated that she had stopped working in 8 November 2014 because she could not sleep and had a lot of pain. (Id. at 122.) She 9 believed her insomnia was the primary factor behind her collision with the bicycle. (Id.) 10 Rosa V. testified that the injections she had received in Mexico were “[p]robably . . . 11 tranquilizers for the pain.” (Id. at 123.) She confirmed that her prior job required her to 12 lift more than fifty pounds. (Id. at 124.) Her medications at the time of the hearing 13 included Gabapentin, Tylenol, and Zolpidem or Ambien, which she stated were the same. 14 (Id. at 125.) Rosa V. stated that the Zolpidem had lost some of its effectiveness and that 15 she was sleeping only four hours a night. (Id. at 125-26.) She helped around the house 16 by washing dishes and sweeping leaves. (Id. at 126.) She received a worker’s 17 compensation settlement of $16,000 from the hotel where she was previously employed 18 and had used some of the money for her dental care. (Id. at 127.) She suffered an injury 19 to her ear in the bicycle accident that caused her to experience dizzy spells more than 20 thirty times a day. (Id. at 127-28.) Nausea and vomiting accompanied her dizzy spells 21 on occasion. (Id. at 128.) 22 2. Vocational expert’s testimony 23 Vocational expert Peterson described Plaintiff’s past work as that of a “house 24 cleaner.” (Id. at 124.) She explained that even though Plaintiff had cleaned hotel rooms, 25 because she had performed her past work at a heavy level, Plaintiff’s work was better 26 27 1 classified as “house cleaner,” which was considered “heavy” work, rather than “cleaner 2 housekeeping,” which was considered to be “light.”7 3 C. ALJ's Decision 4 On September 18, 2018, the ALJ issued a decision finding that Rosa V. had not 5 been under a disability, as defined in the Social Security Act, from her alleged onset date 6 through the date of the decision. (Id. at 22-31.) Judge Levine stated that Plaintiff met the 7 insured status requirements of the Social Security Act through September 30, 2020. (Id. 8 at 25.) He determined that Plaintiff had not engaged in substantial gainful activity since 9 November 4, 2014, the alleged onset date. (Id. at 23.) The ALJ found that Rosa V. had 10 the severe impairment of degenerative disc disease of the lumbar spine. (Id. at 25.) The 11 ALJ considered Plaintiff’s degenerative disc disease of the cervical spine, scoliosis, 12 vertigo, status post facial fractures, history of benzodiazepine dependence in remission, 13 sleep apnea, and cataracts to not be severe impairments. (Id.) The ALJ found that, singly 14 or in combination, Plaintiff did not have impairments that met or medically equaled a 15 listing. (Id. at 28.) He further determined that Rosa V. had the residual functional 16 capacity (“RFC”)8 to perform the full range of medium work. (Id. at 28.)9 The ALJ 17 18 19 20
21 22 7 Under the Social Security Regulations, occupations are classified as sedentary, light, medium, heavy, and very heavy. 20 C.F.R. § 404.1567 (2019). “Light work involves lifting no more than 20 pounds at a 23 time with frequent lifting or carrying of objects weighing up to 10 pounds.” Id. § 404.1567(b). “Heavy work involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects 24 weighing 50 pounds or more.” Id. § 404.1567(d). 8 Residual functional capacity is “the most you can still do despite your limitations.” See 20 C.F.R. § 25 404.1545(a)(1). 26 9 “Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds.” 20 C.F.R. § 404.1567(c). 27 1 concluded that Plaintiff was unable to perform her past relevant work but that Medical- 2 Vocational Rule 203.1110 directed a finding of “not disabled.” (Id. at 30-31.) 3 II. LEGAL STANDARDS 4 Sections 405(g) and 421(d) of the Social Security Act allow unsuccessful 5 applicants to seek judicial review of a final agency decision of the Commissioner. 42 6 U.S.C.A. §§ 405(g), 421(d) (West 2011). The scope of judicial review is limited, 7 however, and the denial of benefits "'will be disturbed only if it is not supported by 8 substantial evidence or is based on legal error.'" Brawner v. Sec'y of Health & Human 9 Servs., 839 F.2d 432, 433 (9th Cir. 1988) (quoting Green v. Heckler, 803 F.2d 528, 529 10 (9th Cir. 1986)); see also Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). 11 Substantial evidence means "'more than a mere scintilla but less than a preponderance; it 12 is such relevant evidence as a reasonable mind might accept as adequate to support a 13 conclusion.'" Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (quoting Andrews 14 v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The court must consider the entire 15 record, including the evidence that supports and detracts from the Commissioner's 16 conclusions. Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 (9th Cir. 17 1988). If the evidence supports more than one rational interpretation, the court must 18 uphold the ALJ's decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984). The 19 district court may affirm, modify, or reverse the Commissioner's decision. 42 U.S.C.A. § 20 405(g). The matter may also be remanded to the Social Security Administration for 21 further proceedings. Id. 22 To qualify for disability benefits under the Social Security Act, a claimant must 23 show two things: (1) The applicant suffers from a medically determinable impairment 24
25 26 10 Medical-Vocational Rule 203.11 directs a finding of “not disabled” for a person of advanced age who is limited to medium work, has a limited education, and has an unskilled work background. 20 C.F.R., 27 Pt. 404, Subpt. P, App. 2, Rule 203.11. 1 that can be expected to result in death or that has lasted or can be expected to last for a 2 continuous period of twelve months or more; and (2) the impairment renders the 3 applicant incapable of performing the work that he or she previously performed or any 4 other substantially gainful employment that exists in the national economy. See 42 5 U.S.C.A. §§ 423(d)(1)(A), (2)(A) (West 2011). An applicant must meet both 6 requirements to be classified as "disabled." Id. The applicant bears the burden of 7 proving he or she was either permanently disabled or subject to a condition which 8 became so severe as to disable the applicant prior to the date upon which his or her 9 disability insured status expired. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 10 The Commissioner makes this assessment by employing a five-step analysis 11 outlined in 20 C.F.R. § 404.1520. See also Tackett v. Apfel, 180 F.3d 1094, 1098-99 12 (9th Cir. 1999) (describing five steps). First, the Commissioner determines whether a 13 claimant is engaged in "substantial gainful activity." If so, the claimant is not disabled. 14 20 C.F.R. § 404.1520(b) (2019). Second, the Commissioner determines whether the 15 claimant has a "severe impairment or combination of impairments" that significantly 16 limits the claimant's physical or mental ability to do basic work activities. If not, the 17 claimant is not disabled. Id. § 404.1520(c). Third, the medical evidence of the claimant's 18 impairment is compared to a list of impairments that are presumed severe enough to 19 preclude work; if the claimant's impairment meets or equals one of the listed 20 impairments, benefits are awarded. Id. § 404.1520(d). If not, the claimant’s residual 21 functional capacity is assessed and the evaluation proceeds to step four. Id. 22 § 404.1520(e). Fourth, the Commissioner determines whether the claimant can do his or 23 her past relevant work. If the claimant can do their past work, benefits are denied. Id. 24 § 404.1520(f). If the claimant cannot perform his or her past relevant work, the burden 25 shifts to the Commissioner. In step five, the Commissioner must establish that the 26 claimant can perform other work. Id. § 404.1520(g). If the Commissioner meets this 27 1 burden and proves that the claimant is able to perform other work that exists in the 2 national economy, benefits are denied. Id. 3 III. DISCUSSION 4 Plaintiff’s sole argument is that the ALJ erred by rejecting the opinions of state 5 agency psychological consultants Heather Barrons, Psy. D., and Kim Morris, Psy. D. 6 (Pl.’s Mot. Attach. #1 Mem. P. & A. 4-9, ECF No. 23.) 7 A. State Agency Physicians’ Opinions 8 On April 8, 2016, Dr. Barrons made the following notation in Plaintiff’s claim 9 record: 10 A [consultative examination] is not needed. The prior file (2015) included a [psychological consultative examination] showing no more than mild 11 limitations. Recent [mental status examination] shows no memory or 12 concentration problems. Her entire [mental status examination] was [within normal limits]. The [claimant] does have difficulties with insomnia which is 13 likely to contribute to her subjective experience of cognitive problems but 14 the evidence does not support a genuine cognitive disorder. Her [activities of daily living] remain intact. She is able to go out alone and manage her 15 finances. Giving the [claimant’s] subjective complaints some benefit of the 16 doubt, she may have mild to moderate limits in [concentration, persistence, and pace] at times but remains capable of sustaining a detailed routine. 17 Please see [psychiatric review technique/mental residual functional 18 capacity].
19 (Admin. R. 138, ECF No. 16.) Dr. Barrons considered Plaintiff’s anxiety to be a 20 severe impairment. (Id. at 139.) In her psychiatric review technique assessment, 21 Dr. Barrons determined that Rosa V. had mild restrictions of activities of daily 22 living; mild difficulties in maintaining social functioning; moderate difficulties in 23 maintaining concentration, persistence, or pace; and no repeated episodes of 24 decompensation of extended duration. (Id.) The mental residual functional 25 capacity assessment completed by Dr. Barrons indicated that Plaintiff was 26 moderately limited in the ability to maintain attention and concentration for 27 1 extended periods and to complete a normal workday and workweek without 2 interruption from psychologically based symptoms. (Id. at 141.) The doctor 3 explained: 4 [Claimant] is capable of understanding, remembering and sustaining concentration, pace and persistence for detailed (3-4 step) routines 5 throughout a normal workday/workweek. [Claimant] is able to accept 6 routine supervision and interact with co-workers. [Claimant] is capable of public contact. [Claimant] is capable of adapting to a routine and 7 predictable work environment, recognizing typical hazards, traveling to 8 routine locations, and setting goals independently within the framework noted above. 9
10 (Id. at 142.) Dr. Morris affirmed Dr. Barrons’s findings on September 14, 2016. (Id. at 11 154.) 12 Plaintiff argues that the ALJ erred by impermissibly rejecting the opinions of Drs. 13 Barrons and Morris. (Pl.’s Mot. Attach. #1 Mem. P. & A. 4-9, ECF No. 23.) In her view, 14 the opinions of these doctors that she was moderately limited in the ability to maintain 15 attention and concentration for extended periods and to complete a normal workday and 16 workweek without interruption from psychologically based symptoms should have been 17 credited by the ALJ. (Id. at 5-7.) She contends that the ALJ should have treated the state 18 agency psychologists as “highly qualified experts” but he instead improperly found that 19 the opinions of these doctors were inconsistent with the other psychological evidence in 20 the record. (Id.) Defendant argues that substantial evidence supports the ALJ’s 21 evaluation of the medical opinions in the record. (Def.’s Mot. 6-14, ECF No. 24.) 22 / / / 23 / / / 24 / / / 25 / / / 26 / / / 27 1 B. Application of Standards Under 20 C.F.R. § 404.1527 2 The ALJ must evaluate all medical opinions he receives in determining whether a 3 claimant is disabled. 20 C.F.R. § 404.1527 (2019).11 Medical opinions are “statements 4 from acceptable medical sources that reflect judgments about the nature and severity of 5 [the claimant’s] impairment(s), including [the claimant’s] symptoms, diagnosis and 6 prognosis, what [the claimant] can still do despite impairment(s), and [the claimant’s] 7 physical or mental restrictions.” Id. § 404.1527(a)(1). Generally, more weight is given 8 to the opinions of treating sources than of nontreating sources. Id. § 404.1527(c)(2); see 9 also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). If a treating source’s opinion is 10 “well-supported by medically acceptable clinical and laboratory diagnostic techniques 11 and is not inconsistent with” other evidence in the record, the ALJ will give it controlling 12 weight. 20 C.F.R. § 404.1527(c)(2). If the ALJ does not afford controlling weight to a 13 treating physician’s opinion, the ALJ will consider the following factors when deciding 14 the weight to give to any medical opinion: (1) examining relationship; (2) treatment 15 relationship; (3) supportability; (4) consistency with the record as a whole; (5) 16 specialization; and (6) any other relevant factors. Id. § 404.1527(c)(1)-(6). 17 Federal and State agency medical or psychological consultants “are highly 18 qualified and experts in Social Security disability evaluation.” 20 C.F.R. § 19 404.1513a(b)(1) (2019). Although the ALJ must consider administrative medical 20 findings and medical evidence from these consultants, he is “not required to adopt [their] 21 prior administrative medical findings[.]” Id. Rather, the ALJ must give weight to these 22 opinions according to the applicable standards. Id. In this case, the ALJ gave “little 23 weight” to the opinions of state agency psychological consultants Dr. Barrons and Dr. 24 25 26 11 The standard for evaluating opinion evidence is set forth in 20 C.F.R. § 404.1527 for claims, such as 27 Plaintiff’s, filed before March 27, 2017. 1 Morris. In doing so, he explained, “Their finding that the claimant has severe mental 2 impairments is inconsistent with psychological evidence outlined above, which shows 3 conservative treatment with routinely normal mental status findings showing appropriate 4 behavior, emotional control, and cognitive functioning.” (Admin. R. 30, ECF No. 16.) 5 The ALJ could properly assign little weight to the opinions of the state agency 6 psychological consultants in this case under the factors set forth in 20 C.F.R. § 404.1527. 7 Drs. Barrons and Morris neither examined nor treated Rosa V., and thus their opinions 8 were entitled to less weight than the opinions of sources who did examine and treat 9 Plaintiff. 20 C.F.R. § 404.1527(c)(1)-(2). The explanation offered by Dr. Barrons to 10 support her opinion that Plaintiff had moderate psychological limitations was not based 11 upon medical signs and laboratory findings but rather relied upon giving Rosa V.’s 12 subjective complaints “some benefit of the doubt.” (Admin. R. 138, ECF No. 16.) This 13 decreases the “supportability” of Dr. Barrons’s and Dr. Morris’s opinions. See 20 C.F.R. 14 § 404.1527(c)(3) (providing that a medical opinion supported by “relevant evidence” 15 such as “medical signs and laboratory findings” is entitled to more weight than one that 16 does not). The inconsistency of these doctors’ opinions with the record as a whole also 17 provides a basis to give these opinions lesser weight under 20 C.F.R. § 404.1527. In 18 general, the more consistent a medical opinion is with the record as a whole, the more 19 weight is given to the opinion. Id. § 404.1527(c)(4). Here, the only medical evidence in 20 the record suggesting that Plaintiff’s insomnia gave rise to moderate limitations of 21 concentration, persistence, and pace and the ability to complete a full workday are the 22 opinions of the state agency psychological consultants. (Admin. R. 138-39, 154, ECF 23 No. 16.) None of the treating or examining physicians made such a finding. In fact, their 24 treatment notes consistently reflect that Plaintiff’s attention span and concentration was 25 “appropriate” (using a rating system of “appropriate,” “fair,” “impaired,” and “easily 26 distracted”). (See id. at 595, 598, 614, 623, 758, 761, 764, 783, 795, 798.) Furthermore, 27 1 no examining or treating doctor opined that Plaintiff’s ability to complete a full workday 2 was affected by her mental impairments or any other impairments. 3 The extent to which a medical source is familiar with other information in a 4 claimant’s case record is also relevant in deciding the weight to be given to a medical 5 opinion. Id. § 404.1527(c)(6). The record had not yet been fully developed regarding 6 Plaintiff’s insomnia at the time Dr. Barrons rendered her opinion. Rosa V.’s sleep study 7 showing that she had sleep apnea had not yet taken place, (see Admin. R. 626-27, ECF 8 No. 16), and Dr. Sepulveda had not yet determined whether Rosa V. “subjectively feels 9 lack of sleep” or has “true insomnia,” (see id. at 613.) On multiple occasions after Dr. 10 Barrons rendered her opinion, Plaintiff’s treating doctors found that notwithstanding 11 Plaintiff’s claim of severe insomnia, she appeared alert and rested on examination, had 12 appropriate attention span and concentration, and had coherent thought process. (See 13 Admin. R. 613, 779, 783, ECF No. 16.) Medical evidence developed after Dr. Barrons 14 rendered her opinion also demonstrated that Ambien helped Plaintiff’s insomnia. (See id. 15 at 758 (“[S]till finds [A]mbien helpful.”); 763-64, 783; see also Warre v. Comm’r of Soc. 16 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006) (“Impairments that can be controlled 17 effectively with medication are not disabling . . . .”).) It does not appear that Dr. Morris 18 was familiar with this information at the time she affirmed the conclusions reached by 19 Dr. Barrons. (See Admin. R. 152-53, ECF No. 16.) The doctors’ lack of familiarity with 20 other information in Plaintiff’s medical record could properly be taken into consideration 21 by the ALJ in giving their opinions lesser weight. See 20 C.F.R. § 404.1527(c)(6). 22 The conclusion of a nonexamining physician is entitled to less weight than 23 the conclusion of an examining physician. Lester, 81 F.3d at 830; see also Gallant 24 v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984) (“A report of a non-examining, 25 non-treating physician should be discounted and is not substantial evidence when 26 contradicted by all other evidence in the record.”). Here, the opinions of Drs. 27 1 Barrons and Morris were not supported by other evidence in the record and thus 2 did not constitute substantial evidence that Rosa V.’s insomnia caused moderate 3 limitations in her mental functioning. Although state agency consultants are 4 considered “highly qualified and experts” in the evaluation of Social Security 5 disability claims, an ALJ is not required to adopt their medical findings and may 6 allocate weight to their opinions under the applicable standards. See 20 C.F.R. § 7 404.1513a(b)(1). Judge Levine, who considered all opinion evidence in 8 accordance with the requirements of 20 C.F.R. § 404.1527, (see Admin. R. 28, 9 ECF No. 16), could reasonably accord little weight to the opinions of state agency 10 consultants Dr. Barrons and Dr. Morris under this regulation. 11 C. Normal Mental Status Findings 12 Plaintiff disputes that the ALJ properly gave little weight to Dr. Barrons’s 13 and Dr. Morris’s opinions. She argues that the ALJ erred by relying on her normal 14 mental status examinations to reject the state agency physicians’ opinions because 15 her cognitive problems arose from the lack of sleep, not her anxiety. (Pl.’s Mot. 16 Attach. #1 Mem. P. & A. 6-7, ECF No. 23.) The ALJ recognized that Plaintiff 17 complained of insomnia but observed that “her mental status examinations have 18 routinely found her to be alert and oriented with normal thought processes, 19 associations, thought content, fund of knowledge, attention span, concentration, 20 recent memory, and remote memory.” (Admin. R. 26, ECF No. 16 (citations 21 omitted).) Judge Levine also acknowledged Rosa V.’s complaints with task 22 completion, concentration, and fatigue, but noted that “evidence of alertness with 23 intact cognitive functioning does not support more than a mild limitation . . . .” 24 (Id. at 27.) 25 As discussed above, the only evidence in the record that Plaintiff had any 26 functional limitations resulting from her insomnia were the opinions of 27 1 nonexamining physicians Drs. Barrons and Morris. The medical evidence, 2 however, does not support Dr. Barrons’s and Dr. Morris’s conclusions. None of 3 Rosa V.’s treating or examining physicians provided any indication that Plaintiff 4 had moderate difficulties in maintaining concentration, persistence, and pace, and 5 none stated that her insomnia or other mental impairments would negatively 6 impact her ability to complete a normal workday and workweek. Rather, the 7 record consistently reflects that Plaintiff’s mental exams by her treating physicians 8 were unremarkable, and her attention span and concentration was “appropriate” 9 and not impaired. (See Admin. R. 595, 598, 614, 623, 758, 761, 764, 783, 795, 10 798, ECF No. 16.) Indeed, Dr. Barrons herself ultimately concluded that despite 11 Rosa V.’s limitations, Plaintiff “remain[ed] capable of sustaining a detailed 12 routine” and was “capable of understanding, remembering and sustaining 13 concentration, pace and persistence for detailed (3-4 step) routines throughout a 14 normal workday/workweek.” (See id. at 138, 142.) The ALJ could properly rely 15 upon Rosa V.’s routinely normal mental status findings in giving little weight to 16 the state agency psychologists’ opinions because substantial evidence supports his 17 interpretation of the record. 18 D. “Conservative” Treatment 19 Plaintiff also contests the ALJ’s determination that Rosa V. received only 20 conservative treatment, arguing that “the ALJ cannot fault [her] for failing to 21 pursue non-conservative treatment options if none exist[]” and that “[i]n the realm 22 of mental health, surgical intervention is not [a] common treatment course.” (Pl.’s 23 Mot. Attach. #1 Mem. P. & A. 7-8, ECF No. 23.) The Commissioner observes that 24 the ALJ considered Plaintiff’s treatment to be conservative because she did not 25 have “recurrent emergency visits or sustained psychiatric hospitalization.” (Def.’s 26 Mot. 6-10, ECF No. 24.) This limited view of the medical record is not 27 1 compelling. Although not the basis for Plaintiff’s challenge, several courts have 2 suggested that the prescription of psychotropic medications should not be 3 considered conservative treatment. See, e.g., Green v. Berryhill, Case No.: 2:17- 4 cv-01339-APG-NJK, 2018 WL 4291960, at *5 (D. Nev. Aug. 20, 2018) (“The 5 Ninth Circuit and other courts have recognized within the context of mental health 6 conditions that the prescription of psychiatric medications is not indicative of 7 conservative treatment.”) (citing Drawn v. Berryhill, 728 Fed. Appx. 637, 642 (9th 8 Cir. 2018)); see also Mason v. Colvin, No. 1:12-cv-00584 GSA, 2013 WL 9 5278932, at *6 (E.D. Cal. Sept. 18, 2013) (finding plaintiff’s treatment not 10 conservative because she took prescription antidepressants and other medications 11 and received mental health treatment from a psychiatrist and social worker). In 12 light of these cases as well as the reference in the record that Plaintiff may have 13 had two mental health-related hospitalizations in Mexico, (see Admin. R. 758, ECF 14 No. 16), the ALJ’s statement that Plaintiff’s mental health treatment was 15 conservative ignores Rosa V.’s entire medical history. 16 Nevertheless, even if the ALJ could not properly rely on Plaintiff’s 17 “conservative treatment” as a basis to discount the state agency doctors’ 18 psychological opinions, the ALJ still properly relied on Plaintiff’s routinely normal 19 mental status findings to discount their opinions and his conclusion that Rosa V. 20 had at most mild mental functional limitations was supported by substantial 21 evidence. See Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998) (“In 22 determining whether the Commissioner’s findings are supported by substantial 23 evidence, we must review the administrative record as a whole, weighing both the 24 evidence that supports and the evidence that detracts from the Commissioner’s 25 conclusion.”); Sandgathe v. Chater, 108 F.3d at 980 (“Substantial evidence is 26 "more than a mere scintilla but less than a preponderance; it is such relevant 27 1 || evidence as a reasonable mind might accept as adequate to support a conclusion."). 2 || Therefore, even though it is questionable whether Plaintiff's treatment was 3 || conservative, this does not alter the Court’s finding that the other bases for giving 4 weight to the opinions of Drs. Barrons and Morris were supported by the 5 ||record and that substantial evidence buttresses his interpretation of the medical 6 || evidence. 7 IV. CONCLUSION 8 For the reasons stated above, Plaintiff's motion for summary judgment is 9 || DENIED, and Defendant’s cross-motion for summary judgment is GRANTED. 10 This Order concludes the litigation in this matter. The Clerk shall close the file. 11 IT IS SO ORDERED. 12 ||Dated: June 29, 2020 Hon. Ruben B. Brooks 14 United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 23 28 19cv1312-RBB