Swingle v. Colvin

Filing 27

ORDER - The final decision of the Commissioner of Social Security is affirmed. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 4/11/16. (EJA)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Jeremy Wayne Swingle,
Plaintiff,

10
11

ORDER

v.

12

No. CV-15-00836-PHX-DGC

Carolyn W. Colvin,

13

Defendant.

14
15
16

Plaintiff Jeremy Wayne Swingle seeks review under 42 U.S.C. § 405(g) of the

17

final decision of the Commissioner of Social Security, which denied him disability

18

insurance benefits and supplemental security income under sections 216(i), 223(d), and

19

1614(a)(3)(A) of the Social Security Act. Because the decision of the Administrative

20

Law Judge (“ALJ”) is supported by substantial evidence and is not based on legal error,

21

the Commissioner’s decision will be affirmed.1

22

I.

Background.

23

Plaintiff, a 36-year-old male, has a GED and previously worked as a retail clerk, a

24

mechanic helper, and a metal fabricating shop helper. On January 10, 2008, Plaintiff

25

applied for disability insurance benefits and supplemental security income, alleging

26

disability beginning May 15, 2006. On February 17, 2011, he first appeared with his

27
1

28

Plaintiff’s request for oral argument is denied because the issues have been fully
briefed and oral argument will not aid the Court’s decision. See Fed. R. Civ. P. 78(b);
Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

1

attorney and testified at a hearing before the ALJ. A vocational expert also testified. On

2

February 25, 2011, the ALJ issued a decision that Plaintiff was not disabled within the

3

meaning of the Social Security Act. On March 8, 2012, the Appeals Council vacated the

4

ALJ’s hearing decision and remanded for further proceedings.

5

Plaintiff appeared with his attorney and testified at a second hearing. A vocational expert

6

also testified. On August 12, 2013, the ALJ issued a decision that Plaintiff was not

7

disabled within the meaning of the Social Security Act. The Appeals Council denied

8

Plaintiff’s request for review, making the ALJ’s decision the Commissioner’s final

9

decision.

10

II.

On July 12, 2013,

Legal Standard.

11

The district court reviews only those issues raised by the party challenging the

12

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

13

may set aside the Commissioner’s disability determination only if the determination is

14

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

15

625, 630 (9th Cir. 2007) (citations omitted). Substantial evidence is more than a scintilla,

16

less than a preponderance, and relevant evidence that a reasonable person might accept as

17

adequate to support a conclusion considering the record as a whole.

18

omitted). In determining whether substantial evidence supports a decision, the court must

19

consider the record as a whole and may not affirm simply by isolating a “specific

20

quantum of supporting evidence.” Id. (citations omitted). As a general rule, “[w]here the

21

evidence is susceptible to more than one rational interpretation, one of which supports the

22

ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d

23

947, 954 (9th Cir. 2002) (citation omitted).

Id. (citations

24

The ALJ is responsible for resolving conflicts in medical testimony, determining

25

credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir.

26

1995). In reviewing the ALJ’s reasoning, the court is “not deprived of [its] faculties for

27

drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v.

28

Bowen, 881 F.2d 747, 755 (9th Cir. 1989).

-2-

1

III.

The ALJ’s Five-Step Evaluation Process.

2

To determine whether a claimant is disabled for purposes of the Social Security

3

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

4

the burden of proof on the first four steps, but at step five, the burden shifts to the

5

Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

6

At the first step, the ALJ determines whether the claimant is engaging in

7

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

8

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

9

has

a

“severe”

medically

determinable

physical

or

mental

impairment.

10

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step

11

three, the ALJ considers whether the claimant’s impairment or combination of

12

impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

13

of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

14

be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

15

claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

16

still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

17

is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final

18

step, where he determines whether the claimant can perform any other work based on the

19

claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

20

claimant is not disabled. Id. If not, the claimant is disabled. Id.

21

At step one, the ALJ found that Plaintiff meets the insured status requirements of

22

the Social Security Act through June 30, 2009, and that he has not engaged in substantial

23

gainful activity since May 15, 2006. At step two, the ALJ found that Plaintiff has the

24

following severe impairments: bipolar disorder, anxiety disorder, hypogonadism, and a

25

history of adrenal insufficiency. At step three, the ALJ determined that Plaintiff does not

26

have an impairment or combination of impairments that meets or medically equals an

27

impairment listed in Appendix 1 to Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ

28

found that, in relevant part, Plaintiff has the mental RFC to:

-3-

1

understand, remember and carry out simple instructions. He has moderate
limitations interacting appropriately with supervisors and responding
appropriately to usual work situations and changes in a routine work
setting, with moderate meaning more than a slight limitation in this area but
the individual can generally function well.

2
3
4
5

The ALJ further found that Plaintiff is unable to perform any of his past relevant work.

6

At step five, the ALJ concluded that, considering Plaintiff’s age, education, work

7

experience, and RFC, there are jobs that exist in significant numbers in the national

8

economy that Plaintiff could perform, including light and unskilled occupations, such as

9

cashier, merchandise marker, or routing clerk.

10

IV.

Analysis.

11

Plaintiff argues that the ALJ’s decision is defective for two reasons: (1) it

12

selectively relied on portions of Dr. William Allison’s medical opinion that supported a

13

finding of non-disability, and (2) in formulating Plaintiff’s mental RFC, it failed to

14

account for limitations in concentration, persistence, or pace.

15

A.

The ALJ Did Not Selectively Rely on Dr. Allison’s Medical Opinion.

16

Plaintiff argues that the ALJ erred by effectively rejecting the portion of Dr.

17

Allison’s assessment that Plaintiff “would not be able to maintain consistent

18

employment.” Doc. 22 at 11-12 (emphasis in original). Plaintiff characterizes this as

19

“cherry-pick[ing]” portions of Dr. Allison’s assessment that support a finding of non-

20

disability, while ignoring portions that do not. Id. at 13.

21

As an initial matter, Plaintiff mischaracterizes Dr. Allison’s opinion on this point.

22

Dr. Allison opined that Plaintiff “would not maintain consistent attendance.” A.R. 1669

23

(emphasis added).

24

consistent employment.” Doc. 22 at 11-12 (emphasis in original omitted; new emphasis

25

added). Even if Dr. Allison had opined that Plaintiff could not maintain employment, the

26

Commissioner would not be required to afford that opinion any deference. See 20 C.F.R.

27

§ 416.927(d)(1) (“A statement by a medical source that [Plaintiff is] ‘disabled’ or ‘unable

28

to work’ does not mean that [the Commissioner] will determine that [Plaintiff is]

He did not opine that Plaintiff “would not be able to maintain

-4-

1

disabled.”). The Court must therefore consider whether the ALJ adequately accounted

2

for Dr. Allison’s statement that Plaintiff would not maintain consistent attendance.

3

Plaintiff contends that “[b]y ignoring that portion of [Dr. Allison’s] assessment,

4

the ALJ effectively rejected it.” Doc. 22 at 12. In support, Plaintiff cites Garrison v.

5

Colvin for the proposition that “an ALJ errs when he rejects a medical opinion or assigns

6

it little weight while doing nothing more than ignoring it, asserting without explanation

7

that another medical opinion is more persuasive.” 759 F.3d 995, 1012-13 (9th Cir. 2014).

8

This is indisputably true, but the ALJ did not ignore Dr. Allison’s opinion or afford it

9

little weight. The ALJ devoted three paragraphs of his decision to Dr. Allison’s opinion

10

and ultimately afforded it “greater weight.” A.R. 36. The ALJ clearly did not ignore it or

11

provide no explanation as in Garrison.

12

Plaintiff next argues that the “ALJ’s approach here mirrors that criticized by the

13

Ninth Circuit” in Ghanim v. Colvin, 763 F.3d 1154, 1164 (9th Cir. 2014). Doc. 22 at 13.

14

In Ghanim, “the ALJ improperly cherry-picked some of [the examining physician’s]

15

characterizations of [Plaintiff’s] rapport and demeanor instead of considering these

16

factors in the context of [the examining physician’s] diagnoses and observations of

17

impairment.” 763 F.3d at 1164. Plaintiff – rather than the ALJ – appears to be taking

18

portions of Dr. Allison’s opinion out of context.

19

Allison’s statement that Plaintiff “would not maintain consistent attendance” from its

20

context within the overall medical opinion. The statement at issue was a description

21

made in support of Dr. Allison’s assessment that Plaintiff’s mental impairments impose

22

mild-to-moderate limitations on his “ability to interact appropriately with supervision, co-

23

workers, and the public, as well as respond to changes in the routine work setting.” A.R.

24

1669. “Mild” means “[t]here is a slight limitation in this area, but the individual can

25

generally function well.” A.R. 1668. “Moderate” means “[t]here is more than a slight

26

limitation in this area but the individual is still able to function satisfactorily.” Id. Thus,

27

Dr. Allison concluded that Plaintiff could function at least satisfactorily, and perhaps

28

well, in his interactions with supervisors, co-workers, and the public. See A.R. 1669. His

-5-

Plaintiff attempts to divorce Dr.

1

statement that Plaintiff “would not maintain consistent attendance” was made in support

2

of this assessment and cannot be pulled out of context to suggest a greater limitation. Id.

3

The ALJ accepted Dr. Allison’s assessment that Plaintiff has both “mild

4

limitations . . . interacting appropriately with the public and coworkers” and “moderate

5

limitations responding appropriately to usual work situations and changes in a routine

6

work setting and interacting appropriately with supervisors.” A.R. 36. Because Dr.

7

Allison’s statement that Plaintiff “would not maintain consistent attendance” was used to

8

justify these limitations, it was properly addressed in the ALJ’s opinion. Although there

9

may be other interpretations, this undoubtedly is a rational interpretation of the evidence

10

that supports the ALJ’s decision. It must therefore be upheld. Thomas, 278 F.3d at 954.

11

Furthermore, as the Commissioner correctly points out (Doc. 25 at 8), mild and moderate

12

non-exertional limitations such as depression have not been found to mandate a disability

13

finding when not otherwise required by an exertional limitation. See Hoopai v. Astrue,

14

499 F.3d 1071, 1077 (9th Cir. 2007) (“We have not previously held mild or moderate

15

depression to be a sufficiently severe non-exertional limitation that significantly limits a

16

claimant’s ability to do work beyond the exertional limitation.”).2

17

Finally, during the hearing, Plaintiff’s counsel directly asked the vocational expert

18

whether someone who could not maintain consistent attendance, as Dr. Allison opined,

19

could maintain employment. A.R. 125. When the expert asked whether Dr. Allison had

20

defined what he meant, Plaintiff’s attorney responded in the negative and added his own

21

gloss: “if you’re telling me one day a month over time is going to lead to the inability to

22

sustain [employment], would you agree that the inability to maintain consistent

23

attendance would likewise lead to the inability to sustain [employment]?” Id. at 125-26.

24

In response, the expert said “[w]ell, yes.” Id. at 126. Plaintiff’s counsel did not explain,

25

however, that Dr. Allison’s statement was made only in the portion of his opinion

26
27
28

2

Because this rational interpretation of the evidence provides a sufficient basis on
which to uphold the ALJ’s decision, the Court finds it unnecessary to consider the
Commissioner’s arguments addressing Plaintiff’s symptom exaggeration, Plaintiff’s
credibility, and conflict with other medical opinions. See Docs. 25 at 8-11; 26 at 3-5.
-6-

1

explaining that Plaintiff would have mild-to-moderate limitations, nor that someone with

2

those limitations could, according to the definitions in the form Dr. Allison used, function

3

well or satisfactorily. The Court concludes that the ALJ rationally concluded that this

4

testimony from the vocational expert did not mandate a finding of disability. DeLorme v.

5

Sullivan, 924 F.2d 841, 850 (9th Cir. 1991) (concluding that testimony “has no

6

evidentiary value” where “the failure to clarify [the claimant’s] limitations left the

7

vocational expert’s testimony couched in somewhat ambiguous terms”).

8
9

The Court concludes that the ALJ did not err by selectively relying on portions of
Dr. Allison’s medical opinion.

10

B.

11

Plaintiff contends that the ALJ committed legal error by failing “to account for

12

acknowledged moderate limitations in abilities to maintain concentration, persistence, or

13

pace” in formulating Plaintiff’s mental RFC. Doc. 22 at 14.

The ALJ Did Not Err in Formulating Plaintiff’s Mental RFC.

14

Plaintiff states that “[t]he ALJ failed to account for acknowledged moderate

15

limitations in abilities to maintain concentration, persistence, or pace.” Id. (citing A.R.

16

28-29) (emphasis added). At step three, however, the ALJ found that “[w]ith regard to

17

concentration, persistence or pace, the claimant has moderate difficulties.” A.R. 28

18

(emphasis added). It is unclear whether the ALJ intentionally declined to characterize

19

these as limitations, and whether the distinction matters. Even assuming that difficulties

20

are equivalent to limitations, Plaintiff’s argument fails.

21

Plaintiff correctly identifies limitations identified by the ALJ in step three that are

22

not contained in the RFC assessment at steps four and five.

These are “moderate

23

limitations in abilities to maintain concentration, persistence, or pace.” Doc. 22 at 14.

24

Other than the statement that Plaintiff “can understand, remember and carry out simple

25

instructions,” the ALJ’s mental RFC does not include mental limitations involving

26

concentration, persistence, or pace. A.R. 29.

27

Limitations identified during step three of the sequential analysis, however, are not

28

equivalent to limitations employed in the RFC at steps four and five. “The [ALJ] must

-7-

1

remember that the limitations identified in the ‘paragraph B’ and ‘paragraph C’ criteria

2

are not an RFC assessment but are used to rate the severity of mental impairment(s) at

3

steps 2 and 3 of the sequential evaluation process.” SSR 96-8p, 1996 WL 374184, at *4

4

(July 2, 1996); see also Davis v. Astrue, No. CV11-02043-VBK, 2012 WL 4848734, at

5

*3 (C.D. Cal. Oct. 10, 2012) (“The existence of moderate limitations found at Steps Two

6

and Three do not necessarily equate to a finding of a disabling RFC.”). Thus, the fact

7

that limitations that appeared in step three are absent from Plaintiff’s mental RFC does

8

not necessarily amount to error.

9

Plaintiff argues that the ALJ erred by failing to consider limitations on

10

concentration, persistence, or pace. See Docs. 22 at 15; 26 at 7. The Court does not

11

agree. The ALJ gave careful consideration to Plaintiff’s mental limitations. A.R. 28-29.

12

The discussion specifically included acknowledgment of difficulties in concentration,

13

persistence, and pace.

14

“statements concerning the intensity, persistence and limiting effects of [his] symptoms

15

are not entirely credible,” and that “[m]entally, the claimant’s alleged limitations are

16

inconsistent with his reported level of functioning.” A.R. 30-31. The ALJ further noted

17

that Plaintiff obtained his GED in 2009, and provided an extensive discussion of

18

Plaintiff’s medical history, including his mental health conditions and treatment, noting

19

that a number of providers found Plaintiff lacking in motivation and unwilling to work.

20

A.R. 30-36 (“Despite signs of improvement, [a therapist at Verde Valley Guidance

21

Clinic] noted that the claimant appeared ‘to be content with not working at this time’”;

22

Plaintiff “told his plain management specialist he was interested in being placed on long-

23

term disability,” which “demonstrates disability-seeking behavior and further undermines

24

his credibility”). The ALJ concluded that Plaintiff’s motivation “seems to be an issue

25

here, as the claimant is able to actively engage in things he enjoys,” including watching

26

television shows, reading, or using the internet. A.R. 31. The ALJ’s RFC did include

27

some mental limitations with respect to Plaintiff’s ability to interact with supervisors,

28

respond to usual work situations, and respond to changes in routine, showing that the ALJ

A.R. 28.

The ALJ also found, however, that Plaintiff’s

-8-

1

did not disregard mental considerations when he formulated the RFC. A.R. 29.

2

Given the ALJ’s careful treatment of Plaintiff’s mental health issues, the Court

3

cannot conclude that the ALJ erred by failing to include limitations on concentration,

4

persistence, or pace in the RFC. The RFC “is the most [a claimant] can still do despite

5

[his] limitations.” 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, 1996 WL 374184, at

6

*2. The Commissioner retains the ultimate responsibility for assessing a claimant’s RFC.

7

20 C.F.R. §§ 404.1527(e)(2), 416.927(e)(2). The ALJ was required to assess Plaintiff’s

8

RFC based on all the record evidence, including medical sources, examinations, and

9

information provided by Plaintiff. 20 C.F.R. §§ 404.1545(a)(1)-(3), 416.945(a)(1)-(3).

10

The ALJ was not required to include all possible limitations in his assessment of what a

11

claimant can do, only “limitations that the ALJ found credible and supported by

12

substantial evidence in the record.” Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir.

13

2005). The Court finds that the ALJ satisfied this requirement.

14
15
16
17
18

The Court concludes that the ALJ did not err by excluding certain limitations from
his formulation of Plaintiff’s mental RFC.
IT IS ORDERED that the final decision of the Commissioner of Social Security
is affirmed. The Clerk shall enter judgment accordingly and terminate this case.
Dated this 11th day of April, 2016.

19
20
21
22
23
24
25
26
27
28

-9-