Lloyd v. Commissioner of Social Security Administration

Filing 22

ORDER - The final decision of the Commissioner of Social Security is vacated and this case is remanded for further proceedings consistent with this opinion. The Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 10/27/17. (DXD)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Kelly Lloyd, No. CV-17-0099-PHX-DGC Plaintiff, 10 11 v. 12 ORDER Commissioner of Social Security Administration, 13 Defendant. 14 15 16 Plaintiff Kelly Lloyd seeks review under 42 U.S.C. § 405(g) of the final decision 17 of the Commissioner of Social Security which denied her disability insurance benefits 18 under §§ 216(i), 223(d), and 1614(a)(3)(A) of the Social Security Act. Because the 19 decision of the Administrative Law Judge (“ALJ”) is based on reversible legal error, the 20 Court will vacate the Commissioner’s decision and remand for further proceedings. 21 I. 22 Background. This is the second occasion that a judge of this Court has considered a 23 Commissioner’s decision in Plaintiff’s case. Plaintiff is a 41 year-old female who 24 previously worked as a customer service representative for the Arizona Bureau of 25 Economic Security. A.R. 196. In August 2011, Plaintiff applied for disability insurance 26 benefits, alleging disability beginning on September 16, 2007. A.R. 13. After a hearing, 27 the ALJ issued a decision on September 6, 2013, that Plaintiff was not disabled within the 28 meaning of the Social Security Act. A.R. 13-23. This became the Commissioner’s final 1 decision when the Appeals Council denied review. A.R. 1. Plaintiff subsequently sought 2 review in this Court (A.R. 788-90), but before a decision was made, the parties filed a 3 stipulated motion to remand the case to the Commissioner to correct several specific 4 deficiencies (A.R. 807-08). The ALJ held another hearing in March 2016, and issued a 5 decision six months later finding Plaintiff not disabled. A.R. 696-716. This became the 6 Commissioner’s final decision when Plaintiff did not file exceptions. Doc. 1 ¶ 4. 7 II. Legal Standard. 8 The district court reviews only those issues raised by the party challenging the 9 ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court 10 may set aside the Commissioner’s disability determination only if the determination is 11 not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d 12 625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a 13 preponderance, and relevant evidence that a reasonable person might accept as adequate 14 to support a conclusion considering the record as a whole. Id. In determining whether 15 substantial evidence supports a decision, the court must consider the record as a whole 16 and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id. 17 (internal citations and quotation marks omitted). As a general rule, “[w]here the evidence 18 is susceptible to more than one rational interpretation, one of which supports the ALJ’s 19 decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 20 (9th Cir. 2002) (citations omitted). 21 The ALJ is responsible for resolving conflicts in medical testimony, determining 22 credibility, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 23 1995). In reviewing the ALJ’s reasoning, the Court is “not deprived of [its] faculties for 24 drawing specific and legitimate inferences from the ALJ’s opinion.” Magallanes v. 25 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 26 III. The ALJ’s Five-Step Evaluation Process. 27 To determine whether a claimant is disabled for purposes of the Social Security 28 Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears -2- 1 the burden of proof on the first four steps, and the burden shifts to the Commissioner at 2 step five. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). To establish disability, 3 the claimant must show that (1) he is not currently working, (2) he has a severe 4 impairment, and (3) this impairment meets or equals a listed impairment or (4) his 5 residual functional capacity (“RFC”) prevents his performance of any past relevant work. 6 If the claimant meets his burden through step three, the Commissioner must find him 7 disabled. If the inquiry proceeds to step four and the claimant shows that he is incapable 8 of performing past relevant work, the Commissioner must show in the fifth step that the 9 claimant nonetheless is capable of other work suitable for his RFC, age, education, and 10 work experience. 20 C.F.R. § 404.1520(a)(4). 11 At step one, the ALJ found that Plaintiff meets the insured status requirements of 12 the Social Security Act through June 30, 2011, and that she has not engaged in substantial 13 gainful activity since September 16, 2007. A.R. 699. At step two, the ALJ found that 14 Plaintiff has the following severe impairments: 15 sacroiliac joint arthritis, and hip bursitis. A.R. 699. Although the ALJ acknowledged 16 that the record contains evidence of diabetes, polysubstance dependence, bipolar 17 disorder, and anxiety disorder, she found them to be non-severe. A.R. 699-707. At step 18 three, the ALJ determined that Plaintiff has no impairments that meet or equal a listed 19 impairment. A.R. 707. At step four, the ALJ found that Plaintiff has the RFC to perform 20 light work with certain restrictions. A.R. 709. The ALJ then concluded, considering 21 Plaintiff’s age, education, work experience, and RFC, that she is able to perform the 22 requirements of occupations like housekeeper, cashier, or merchandise marker. 23 A.R. 715. 24 IV. lumbar spondylosis, obesity, right Analysis. 25 Plaintiff argues that the ALJ’s decision is based on reversible legal error. Doc. 19. 26 Specifically, Plaintiff argues that the ALJ (1) erred in finding her mental impairments 27 non-severe at step two, (2) failed to consider her mental impairments in the RFC inquiry, 28 -3- 1 (3) relied too heavily on two medical opinions, and (4) improperly discredited an 2 examining physician’s medical opinion. Id.1 3 A. 4 Step two is “a de minimis screening device [used] to dispose of groundless 5 claims,” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996), and an ALJ may find that 6 a claimant lacks a medically severe impairment or combination of impairments only 7 when his conclusion is “clearly established by medical evidence.” S.S.R. 85–28 (1985). 8 Impairments are considered “not severe” when “the evidence establishes a slight 9 abnormality that has no more than a minimal effect on an individual’s ability to work.” 10 Step Two Analysis. Smolen, 80 F.3d at 1290. 11 The ALJ found evidence in the record of Plaintiff’s bipolar and anxiety disorders, 12 but found these impairments not severe because they “do not cause more than minimal 13 limitation in the claimant’s ability to perform basic mental work activities.” A.R. 700. 14 Over the course of seven pages, the ALJ thoroughly described Plaintiff’s alleged mental 15 health symptoms, medical expert testimony, mental health treatment notes, three 16 psychological evaluations, Global Assessment of Functioning scores, and four functional 17 areas used to evaluate mental disorders. A.R. 700-07. The ALJ noted that medical 18 evaluations consistently reveal normal mental health findings. 19 acknowledged the existence of bipolar and anxiety disorders, but concluded that they 20 place no more than a mild limitation on her daily activities, social functioning, and 21 concentration, persistence, and pace. A.R. 705-06. Id. The ALJ 22 Plaintiff contends that the ALJ’s finding of non-severity is inconsistent with 23 evidence that her mental impairments continue to cause significant symptoms (Doc. 19 at 24 15-16), but the records she cites reveal nothing inconsistent with the ALJ’s conclusion. 25 Plaintiff struggles with mental impairments and has episodes of increased anxiety, but 26 she suffers from only mild limitations. What is more, one of the reports Plaintiff cites 27 1 28 To the extent Plaintiff makes other arguments, they are only conclusory assertions. See, e.g., Doc. 19 at 22 (“The ALJ’s rejection of the medical evidence from Plaintiff’s treating providers . . . is not supported by substantial evidence.”) -4- 1 actually supports the ALJ’s conclusion – Plaintiff reported losing weight, eating well, 2 sleeping well, driving without significant issues, “feeling a lot better,” and generally 3 being able to function. A.R. 1065. 4 As discussed above, “[w]here the evidence is susceptible to more than one rational 5 interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be 6 upheld.” 7 citations do not establish that her interpretation is the only rational conclusion. The Court 8 finds no legal error at step two. 9 B. Thomas, 278 F.3d at 954 (citations omitted). Plaintiff’s isolated record Residual Functional Capacity. 10 The ALJ concluded that Plaintiff can perform light work with the following 11 additional limitations: “occasional climbing of ladders, ropes, and scaffolds; occasional 12 stooping and crawling; frequent climbing of ramps and stairs; frequent balancing, 13 crouching, and kneeling; and no concentrated exposure to hazards.” A.R. 709. Plaintiff 14 argues that the ALJ erred by failing to consider her mental impairments. 15 at 17-18. Doc. 19 16 The law is clear. In determining RFC, the ALJ must consider the combined 17 effects of all impairments, both severe and non-severe. 42 U.S.C. § 423(d)(2)(B); see 18 also Carmickle v. Commissioner, 533 F.3d 1155, 1164 (9th Cir. 2008). Here, the ALJ 19 acknowledges that “[t]he mental [RFC] assessment . . . requires a more detailed 20 assessment by itemizing various [work-related] functions.” A.R. 707. She even claims 21 that the RFC “reflects the degree of limitation the undersigned has found in the 22 ‘paragraph B’ mental function analysis.” A.R. 707. But the ALJ’s subsequent RFC 23 analysis does not address the effect of Plaintiff’s mental impairments on work-related 24 functions; the ALJ addresses only Plaintiff’s physical impairments and the credibility of 25 her symptom testimony. A.R. 709-14. This is legal error. 26 Even if the ALJ commits error, that error is harmless if the Court can “conclude 27 from the record that the ALJ would have reached the same result absent the error.” 28 Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012); Marsh v. Colvin, 792 F.3d 1170, -5- 1 1172 (9th Cir. 2015). Here, the ALJ failed to consider the effects of Plaintiff’s mild 2 mental impairments on her RFC. These effects might include, among other things, 3 limitations in “responding appropriately to supervision, coworkers, and work pressures in 4 a work setting.” See 20 C.F.R. § 404.1545(c). Significantly, the vocational expert 5 testified that mental impairments could preclude some or all work. A.R. 1337-38. The 6 Court accordingly cannot find that the ALJ would have reached the same result. The 7 error is not harmless. 8 C. 9 The ALJ interpreted and accorded significant weight to the medical opinions of 10 Edward Jasinski, Ph.D., and Robert Mastikian, Psy.D. A.R. 700, 702-03. They each 11 opined that Plaintiff’s mental impairments are mild. 12 identifies mistakes in their interpretation of the record and contends that the ALJ’s 13 reliance on their opinions was erroneous. Doc. 19 at 18-21. Defendant counters that an 14 ALJ errs only by improperly rejecting medical evidence, not by interpreting medical 15 evidence. Doc. 20 at 11.2 Over-Reliance on Medical Sources. A.R. 700, 702-03. Plaintiff 16 Plaintiff contends that Dr. Mastikian’s credibility finding is unreliable because he 17 based it on wrongful conclusions that she failed to disclose her substance-abuse history 18 and never sought out-patient mental health treatment. Doc. 19 at 19-20. Plaintiff also 19 argues that Dr. Mastikian misidentified the records he reviewed. Doc. 19 at 18. But 20 Plaintiff does not describe how these isolated mistakes render Dr. Mastikian’s entire 21 opinion useless. And the ALJ’s lengthy description of Dr. Mastikian’s opinion does not 22 even mention his credibility finding. A.R. 702. 23 Plaintiff similarly argues that Dr. Jasinski’s opinion relies on an inconsistent 24 evaluation of self-reported symptoms – an argument Plaintiff presented to the ALJ 25 through Dr. Geary’s rebuttal. Doc. 19 at 20. But the ALJ thoroughly considered that 26 2 27 28 Defendant also contends that Plaintiff has waived any factual objection to the content of Dr. Mastikian’s report because she did not do so at the hearing. Doc. 20 at 11. But Plaintiff does not object to its admission into the record, only to the weight given it by the ALJ. Because the ALJ had not made her decision before the hearing, Plaintiff could not make this objection at the hearing. -6- 1 rebuttal and found Dr. Jasinski’s opinion more probative for several specific reasons. 2 A.R. 704-05. Plaintiff also contends that Dr. Jasinski ignored contrary evidence when he 3 opined that Plaintiff has episodes of general anxiety, but consistently recovers. Doc. 19 4 at 21. Plaintiff cites to the record, but does not explain how the evidence is inconsistent 5 with Dr. Jasinski’s opinion. Granted, Plaintiff complained of ongoing mental health 6 issues, but mere citations to isolated evidence do not displace Dr. Jasinski’s opinion. 7 As discussed, the ALJ’s conclusion must be upheld where a rational interpretation 8 of the evidence supports the ALJ’s decision. Thomas, 278 F.3d at 954. Plaintiff does not 9 argue that the ALJ’s decision is devoid of substantial evidence,3 yet she appears to ask 10 the Court to second-guess the ALJ’s rational conclusions. The Court declines to do so. 11 What is more, Plaintiff does not cite any controlling precedent to support her 12 position. Plaintiff’s reliance on Ladue v. Chater, No. C-95-0754 EFL, 1996 WL 83880, 13 at *5 (N.D. Cal. Feb. 16, 1996), is unavailing. In that case, the court found error in the 14 ALJ’s reliance on an examining physician’s opinion where that physician had access to 15 only one treatment note from the claimant’s entire medical record. Id. Because the ALJ 16 failed to provide “necessary background information” to the physician, the resulting 17 opinion was not reliable. Id. The ALJ’s reliance on it was therefore legal error. Id. But 18 Plaintiff has not alleged a deprivation of that magnitude.4 Rather, Plaintiff simply argues 19 that the physicians made mistakes in their review of the medical record. They may have 20 made mistakes, but Plaintiff has not demonstrated that the ALJ’s reliance on their 21 opinions was likewise mistaken. For this reason, the Court finds no legal error. 22 D. 23 The ALJ interpreted and gave great weight to the testimony of Dr. Jasinski, whose 24 examination revealed that Plaintiff’s mental impairments impose only mild limitations. 25 A.R. 700, 702-03. The ALJ considered and rejected a rebuttal opinion from Dr. Geary. Discrediting Examining Physician Opinion. 26 3 27 See supra note 1. 4 28 Plaintiff concedes that Dr. Mastikian considered, at the least, his clinical interview, a mini-mental status examination, a June 2014 treatment note, and a SSA function report. Doc. 19 at 18. -7- 1 A.R. 704-05. Plaintiff contends that the ALJ improperly discredited this rebuttal medical 2 opinion. Doc. 19 at 21-22. Defendant counters that Plaintiff has misinterpreted the 3 ALJ’s reasoning. Doc. 20 at 14-15. 4 In determining how much deference to give a physician’s medical opinion, the 5 Ninth Circuit distinguishes between the opinions of treating physicians, examining 6 physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821, 830 (9th 7 Cir. 1995). Generally, an ALJ should give the greatest weight to a treating physician’s 8 opinion and more weight to the opinion of an examining physician than a non-examining 9 physician. See Andrews, 53 F.3d at 1040-41; see also 20 C.F.R. § 404.1527(c)(2)-(6) 10 (listing factors to be considered when evaluating opinion evidence, including length of 11 examining or treating relationship, frequency of examination, consistency with the 12 record, and support from objective evidence). 13 When an examining physician’s opinion is contradicted by another doctor, it can 14 be rejected “for specific and legitimate reasons that are supported by substantial evidence 15 in the record.” Lester, 81 F.3d at 830-31 (citation omitted). To satisfy this requirement, 16 the ALJ must set out “a detailed and thorough summary of the facts and conflicting 17 clinical evidence, stating his interpretation thereof, and making findings.” Cotton v. 18 Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986). “The ALJ must do more than offer his 19 conclusions. He must set forth his own interpretations and explain why they, rather than 20 the doctors’, are correct.” Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). 21 The ALJ met this rigorous standard. She discredited Dr. Geary’s rebuttal opinion 22 for specific reasons, each of which is legitimate: 23 Plaintiff’s past work, relied on Plaintiff’s inconsistent reports of her education level, and 24 did not have the benefit of more recent medical evidence. A.R. 704-05. Dr. Geary erroneously classified 25 Plaintiff focuses on a single sentence at the end of the ALJ’s reasoning to suggest 26 legal error. The ALJ stated: “Dr. Geary challenged the medical expert’s impartiality, yet 27 the undersigned notes that Dr. Geary was paid by the claimant’s attorney for his report 28 and his response to the medical expert’s testimony.” A.R. 705. The Ninth Circuit has -8- 1 held that “in the absence of other evidence to undermine the credibility of a medical 2 report, the purpose for which the report was obtained does not provide a legitimate basis 3 for rejecting it.” Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998) (emphasis added). 4 Here, however, there was not an absence of other legitimate grounds for rejecting Dr. 5 Geary’s rebuttal opinion. The ALJ provided three other reasons, and Plaintiff does not 6 challenge them. The Court therefore finds no error. 7 E. 8 The decision to remand for further development of the record or for an award 9 benefits is within the discretion of the Court. 42 U.S.C. § 405(g); see Harman v. Apfel, 10 211 F.3d 1172, 1173 (9th Cir. 2000). Under Ninth Circuit precedent, however, an action 11 should be remanded for an immediate award of benefits when the following factors are 12 satisfied: (1) the record has been fully developed and further administrative proceedings 13 would serve no useful purpose, (2) the ALJ has failed to provide legally sufficient 14 reasons for rejecting evidence, and (3) the ALJ would be required to find the claimant 15 disabled if the improperly discredited evidence were credited as true. Garrison v. Colvin, 16 759 F.3d 995, 1020 (9th Cir. 2014). 17 Remand. In this case, the record has been fully developed. It includes evidence gathered for 18 two ALJ decisions. 19 incorporating Plaintiff’s mental impairments in her RFC assessment. But the record does 20 not satisfy the third requirement. Even assuming that Plaintiff’s mental impairments 21 have an adverse effect on her RFC, the ALJ would not be required to find Plaintiff 22 disabled. 23 concentration, and pace would preclude all work (A.R. 1337-38), but occasional 24 problems may allow Plaintiff to work (A.R. 1341). The ALJ found only mild functional 25 limitations. A.R. 705-06. Because the expert did not conclude that any level of mental 26 impairment requires a finding of disability, this case will not be remanded for an award of 27 benefits. And the ALJ failed to give legally sufficient reasons for not The vocational expert testified that moderate limitations in persistence, 28 -9- 1 IT IS ORDERED that the final decision of the Commissioner of Social Security 2 is vacated and this case is remanded for further proceedings consistent with this 3 opinion. The Clerk shall enter judgment accordingly and terminate this case. 4 Dated this 27th day of October, 2017. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

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