Rhodus v. Colvin

Filing 20

ORDER that Plaintiff's case is DISMISSED and the Clerk of Court shall enter judgment. Signed by Magistrate Judge Lynnette C Kimmins on 9/18/2017. (See attached Order for details) (KEP)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Willie Douglas Rhodus, Plaintiff, 10 11 ORDER v. 12 No. CV-16-00238-TUC-LCK Nancy A. Berryhill, 13 Defendant. 14 15 Plaintiff Willie Rhodus filed this action pursuant to 42 U.S.C. § 405(g) seeking 16 judicial review of a final decision by the Commissioner of Social Security 17 (Commissioner). (Doc. 1.) Before the Court are Rhodus’s Opening Brief and Defendant’s 18 Brief. (Docs. 18, 19.) The parties have consented to Magistrate Judge jurisdiction. (Doc. 19 10.) Based on the pleadings and the administrative record submitted to the Court, the 20 Commissioner’s decision is affirmed. 21 FACTUAL AND PROCEDURAL HISTORY 22 Rhodus filed an application for Disability Insurance Benefits (DIB) and 23 Supplemental Security Income (SSI) on August 29, 2012. (Administrative Record (AR) 24 175.) He alleged disability from January 1, 2009. (Id.) Rhodus’s application was denied 25 upon initial review (AR 45-74) and on reconsideration (AR 75-110). A hearing was held 26 on July 16, 2014 (AR 22-44), after which the ALJ found that Rhodus was not disabled 27 because he could perform his past relevant work (AR 9-17). The Appeals Council denied 28 Rhodus’s request to review the ALJ’s decision. (AR 1.) 1 Rhodus was born on November 14, 1950, making him 58 years of age at the onset 2 date of his alleged disability. (AR 175.) From 1998 to 2009, Rhodus worked as an officer 3 at an insurance company and as an investment advisor. (AR 190.) 4 The ALJ found Rhodus had two severe impairments, degenerative joint disease 5 (knees) and osteoarthritis. (AR 11.) The ALJ determined Rhodus had the Residual 6 Functional Capacity (RFC) to perform sedentary work except he could sit for up to six 7 hours and stand for up to two hours; lift/carry 10 pounds frequently; occasionally climb, 8 balance, stoop, kneel, crouch, and crawl; and should avoid unprotected heights and 9 dangerous machinery. (AR 14.) The ALJ concluded at Step Four, based on the testimony 10 of a Vocational Expert, that Rhodus could perform his past work (as generally 11 performed) as an investment representative or director of insurance. (AR 17.) 12 STANDARD OF REVIEW 13 The Commissioner employs a five-step sequential process to evaluate SSI and 14 DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S. 15 458, 460-462 (1983). To establish disability the claimant bears the burden of showing he 16 (1) is not working; (2) has a severe physical or mental impairment; (3) the impairment 17 meets or equals the requirements of a listed impairment; and (4) claimant’s RFC 18 precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4), 19 416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the 20 claimant has the RFC to perform other work that exists in substantial numbers in the 21 national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the 22 Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point 23 in the five-step process, she does not proceed to the next step. 20 C.F.R. 24 §§ 404.1520(a)(4), 416.920(a)(4). 25 “The ALJ is responsible for determining credibility, resolving conflicts in medical 26 testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th 27 Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings 28 of the Commissioner are meant to be conclusive if supported by substantial evidence. 42 -2- 1 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a 2 preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v. 3 Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to 4 deny benefits only “when the ALJ’s findings are based on legal error or are not supported 5 by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033, 6 1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must 7 resolve conflicts in the evidence, and if the evidence can support either outcome, the 8 court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019 9 (quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc. 10 Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision, 11 however, “cannot be affirmed simply by isolating a specific quantum of supporting 12 evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v. 13 Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence 14 that supports as well as detracts from the Commissioner’s conclusion. Day v. 15 Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975). DISCUSSION 16 17 Rhodus argues the ALJ erred in not finding his mental impairments severe at Step 18 Two. Alternatively, Rhodus argues the ALJ erred in not evaluating the effect of his non- 19 severe depression on his ability to work. 20 Step Two 21 Rhodus argues the ALJ failed to find, at Step Two, that his depression was a 22 severe impairment. A finding of disability requires an “inability to do any substantial 23 gainful activity by reason of any medically determinable physical or mental impairment.” 24 20 C.F.R. §§ 404.1505, 416.905. An impairment is “not severe if it does not significantly 25 limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521, 26 416.921. 27 The ALJ found that Rhodus had a medically determinable impairment of 28 depressive disorder but concluded it was not severe because it did not cause “more than -3- 1 minimal limitation in the claimant’s ability to perform basic mental work activities.” (AR 2 12.) In particular, the ALJ determined Rhodus had only mild limitations in activities of 3 daily living, social functioning, and concentration, persistence, and pace. (Id.) 4 To resolve this claim, the Court must examine the medical opinions regarding 5 Rhodus’s functional limitations arising from his mental impairment.1 The record 6 regarding how depression affects Rhodus’s ability to work consists of (a) reports from 7 two psychologists that examined Rhodus in December 2012 (Dr. Rau) and August 2014 8 (Dr. Glenn Marks); and (b) mental residual functional capacity assessments from January 9 2013 by a psychiatrist (Dr. Jack Marks) and June 2013 by a psychologist (Dr. Garland). 10 (AR 57, 89.) Rhodus has no mental health treatment records. (AR 10.) The ALJ gave 11 great weight to the 2014 assessment of examining psychologist Dr. Glenn Marks. The 12 ALJ gave little weight to the opinion of examining psychologist Dr. Rau and rejected the 13 opinions of the non-examining State agency physicians. 14 As an initial matter, Rhodus contends the ALJ failed to consider the factors set 15 forth in 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6) for weighing medical opinion 16 evidence. The regulations do not require the ALJ to discuss these factors, only to consider 17 them; there is no reason to believe the ALJ did not consider these factors as required. As 18 discussed below, the ALJ explicitly discounted Dr. Rau’s opinion as not well-supported 19 by the evidence, one of the applicable factors. See 20 C.F.R. §§ 404.1527(c)(3), 20 416.927(c)(3). Review of the other §§ 404.1527(c), 416.927(c) factors reveals little 21 material distinction between the opinions of Dr. Rau and Dr. Glenn Marks. They both 22 examined Rhodus one time but had no treating relationship with him, and they are both 23 experts in psychology and the Social Security disability program. See 20 C.F.R. §§ 24 404.1527(c)(1), (2), (5), (6), 416.927(c)(1), (2), (5), (6). Although Dr. Rau’s opinion was 25 consistent with the opinions of Drs. Garland and Jack Marks (while Dr. Glenn Marks’s 26 27 1 28 The Court does not rely upon Dr. Melvyn Weinberg’s diagnosis of depression and observation of Rhodus’s depressed affect (AR 280-81) because he evaluated only Rhodus’s physical, not mental, limitations (AR 284). -4- 1 opinion was not), see 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4), that holds little weight 2 as the two latter opinions were based solely on Dr. Rau’s report. 3 Next, Plaintiff argues that the ALJ erred in rejecting the opinions of Drs. Rau, 4 Garland, and Jack Marks. The opinion of an examining physician generally is afforded 5 more weight than a non-examining or reviewing physician’s opinion. Lester v. Chater, 81 6 F.3d 821, 830 (9th Cir. 1995). Here, these three opinions were contradicted by that of 7 psychologist Glenn Marks. When there are contradictory medical opinions, to reject an 8 examining physician’s opinion, the ALJ must provide “specific and legitimate reasons 9 that are supported by substantial evidence.” Id. 10 Dr. Rau, a licensed psychologist, examined Rhodus in December 2012 and 11 diagnosed major depressive disorder, moderate, without psychosis. (AR 291.) Dr. Rau 12 found that Rhodus’s understanding and memory were not significantly limited and he 13 could remember simple instructions with repetition. (AR 292.) Dr. Rau stated that 14 Rhodus was moderately limited in sustained concentration and persistence, and would 15 frequently struggle with carrying out detailed instructions, staying focused for an 16 extended period of time, and maintaining a consistent pace (due to pain, internal agitation 17 and dysphoria, or frustration). (Id.) He also concluded that Rhodus was moderately 18 limited in the area of social interaction – he may have difficulty with criticism and 19 struggle being around others, and his stern and dysphoric presence may put others ill at 20 ease. (AR 293.) The ALJ gave this opinion little weight finding it to be “unsupported by 21 any evidence, objective findings, and [] inconsistent with other opinion evidence.” (AR 22 16.) 23 The ALJ was accurate in finding Dr. Rau’s opinion inconsistent with at least one 24 other opinion, that of Dr. Glenn Marks. Dr. Marks noted that Rhodus exhibited almost no 25 evidence of cognitive difficulties, and he scored 28 out of 30 on the Mini-mental status 26 examination (MMSE) (failing to recall two of three words on delayed recall). (AR 322.) 27 In his medical source statements, Dr. Marks opined that Rhodus had no impairment in 28 concentration/persistence, social interaction, or adapting to change. (Id.) He also -5- 1 determined that Rhodus’s depression did not affect his ability to understand, remember 2 and carry out instructions; interact appropriately with supervisors, co-workers, or the 3 public; or respond to changes in the work setting. (AR 326-27.) In his report, he noted 4 that Rhodus’s depression could possibly cause cognition problems that might interfere 5 with highly cognitively demanding work; however, he found him fully capable of 6 learning and retaining new information and information for which he was familiar from 7 past work. (AR 324.) 8 The Court examines Dr. Rau’s report to evaluate the ALJ’s finding that Dr. Rau’s 9 opinion was unsupported by evidence and objective findings. His forty-five minute exam 10 is the only substantive evidence he relied upon in making his findings.2 11 The Court finds there is substantial evidence to support the ALJ’s rejection of Dr. 12 Rau’s opinion because it is not supported by the evidence of record. See Valentine v. 13 Comm’r Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (defining substantial 14 evidence as “such relevant evidence as a reasonable mind might accept as adequate to 15 support a conclusion.”); Batson, 359 F.3d at 1196 (“When evidence reasonably supports 16 either confirming or reversing the ALJ’s decision, we may not substitute our judgment 17 for that of the ALJ.”). On the MMSE, Rhodus scored 27 out of 30 (missing one of three 18 words on a brief delay), only one point less than when administered two years later by 19 Dr. Glenn Marks. (AR 290.) Dr. Rau found Rhodus had moderate limitations in 20 concentration, focus, and pace, and in carrying out detailed instructions. (AR 292.) 21 However, upon exam, Dr. Rau found Rhodus’s attention, orientation, and effort 22 unremarkable, and Rhodus described his concentration as non-problematic and stated that 23 he had good recollection of personal interactions and activities. (AR 287, 288.) Dr. Rau 24 also found Rhodus had moderate limitations in social interaction. (AR 293.) However, 25 Dr. Rau recorded Rhodus’s cooperation, rapport, insight, and judgment as unremarkable 26 (AR 287), noted that he did well socializing with family, and recognized he had no 27 28 2 Dr. Rau stated that, prior to the exam, he reviewed only “a medical note and a self-report note.” (AR 287.) -6- 1 history of acting out. (AR 290.) Rhodus reported normal conversational abilities (AR 2 288) and that he has always gotten along well with others (AR 289). Finally, Dr. Rau 3 noted that Rhodus was “active behaviorally day-to-day in a healthy way.” (AR 290.) 4 Although there is some evidence to support Dr. Rau’s opinion and, in turn, Rhodus’s 5 argument, “the key question is not whether there is substantial evidence that could 6 support a finding of disability, but whether there is substantial evidence to support the 7 Commissioner’s actual finding that the claimant is not disabled.” Jamerson v. Chater, 8 112 F.3d 1064, 1067 (9th Cir. 1997). Here, specific and legitimate reasons, and 9 substantial evidence, support the ALJ’s rejection of Dr. Rau’s opinion. 10 Finally, the Court looks at the opinions of Drs. Garland and Jack Marks, which 11 were contradicted by the opinion of Dr. Glenn Marks. These doctors found very similar, 12 but slightly more restrictive, limitations as Dr. Rau. They both concluded that Rhodus 13 was moderately limited in understanding, remembering and carrying out detailed 14 instructions, and maintaining attention and concentration for extended periods. They both 15 found Rhodus moderately limited in interacting with coworkers, while Dr. Garland found 16 the same limitation for the general public. Dr. Garland found Rhodus moderately limited 17 in accepting instructions and criticism, while Dr. Marks found a marked limitation in this 18 area. Additionally, Dr. Garland found a moderate limitation in completing a normal 19 workweek without psychological 20 unreasonable rest periods. They both concluded Rhodus could perform the basic mental 21 demands of competitive, remunerative, unskilled work, particularly if it required only low 22 social contact. (AR 55-57, 88-90.) interruptions and maintaining pace without 23 The ALJ rejected these opinions as not supported by the record as a whole and 24 because these doctors did not review updated medical records, see Rhodus in person, or 25 hear his testimony.3 (AR 16.) The ALJ was correct in noting that these doctors saw only 26 the evaluation by Dr. Rau and were not able to compare the opinion of Dr. Rau with the 27 3 28 The Court does not rely on the fact that these doctors did not see Rhodus in person or hear his testimony, as that is true for all non-examining State agency physicians. -7- 1 later evaluation of Dr. Glenn Marks. In contrast, the ALJ had the entirety of Rhodus’s 2 records and it was her job to resolve conflicts in medical testimony. See Andrews, 53 F.3d 3 at 1039. Drs. Garland and Jack Marks noted that their opinions were based solely on the 4 report of Dr. Rau. (AR 57, 89.) Therefore, for the same reasons discussed above with 5 respect to Dr. Rau’s opinion, the Court finds there is substantial evidence to support the 6 ALJ’s conclusion that these opinions were not in line with the record as a whole. 7 Residual Functional Capacity 8 First, Rhodus argues the ALJ failed to include, in the RFC, limitations found by 9 Dr. Glenn Marks. Specifically, Dr. Marks stated that Rhodus’s “possible cognitive 10 problems might interfere with highly cognitively demanding work”; however, he found 11 him fully capable of learning and retaining new information and information for which he 12 was familiar from past work. (AR 324.) The equivocal statement quoted above is not a 13 direct assessment of Rhodus’s functional limitations. See Griffith v. Colvin, No. 3:13-cv- 14 00585-HZ, 2014 WL 1303102, at *5 n.3 (D. Or. Mar. 30, 2014) (finding doctor’s 15 statements that claimant “may have difficulty completing work without interference from 16 her mental impairments or performing work activities on a consistent basis without 17 additional instructions do not represent ‘work-related limitation[s] of function that nee[d] 18 to be reflected in the RFC.’”) Dr. Marks completed a separate mental medical source 19 statement of Rhodus’s ability to do work-related activities. He found no impairment in 20 understanding, remembering, and carrying out instructions, including no impairment in 21 remembering and carrying out complex instructions and making judgments on complex 22 work-related decisions. (AR 326.) Therefore, in finding no mental limitations, the RFC 23 fully accounted for Dr. Glenn Marks’s functional limitation findings. See Valentine, 574 24 F.3d at 691 (upholding RFC that incorporated doctor’s detailed mental residual functional 25 capacity assessment rather than more generalized statements of functional abilities). 26 Second, Rhodus argues that because the ALJ found, in evaluating the paragraph B 27 criteria, that Rhodus had mild limitations in daily living, social functioning, and 28 -8- 1 concentration, persistence and pace (AR 12), the ALJ was obligated to include mental 2 limitations in the RFC. 3 Mild limitations, as found by the ALJ in Rhodus’s case, do not necessarily 4 translate to a restriction in ability to perform specific work functions. See Foster v. 5 Colvin, No. 6:12-cv-00698-HZ, 2013 WL 3994652, at *4 (D. Or. Aug. 2, 2013) (rejecting 6 argument that mild limitation in social functioning, found at Step Three, must be 7 incorporated into subsequent detailed RFC evaluation). Even a severe mental impairment 8 finding at Step Two does not mandate a corresponding RFC limitation in a claimant’s 9 ability to perform basic work activities. See Bray v. Comm’r of Soc. Sec. Admin., 554 10 F.3d 1219, 1228-29 (9th Cir. 2009). Further, the paragraph B criteria are not an RFC 11 assessment; rather, they are used to rate the severity of a mental impairment at Steps Two 12 and Three. SSR 96-8p; Israel v. Astrue, 494 F. App’x 794, 796 (9th Cir. 2012) (holding 13 that Step Two and Three findings must be considered with “all of the relevant evidence” 14 to form the RFC). The ALJ stated that the RFC “reflects the degree of limitation the 15 undersigned has found in the ‘paragraph B’ mental function analysis.” (AR 13.) The ALJ 16 cited specifically to the opinion of Dr. Glenn Marks, who found no impairment in the 17 more specific RFC categories of maintaining attention, concentration, and attendance; 18 understanding, remembering, and carrying out instructions; interacting appropriately with 19 supervisors, co-workers, and the public; and adapting to work situations and changes in 20 the work setting. (AR 324, 326-27.) Because the RFC is consistent with the opinion of 21 Dr. Glenn Marks, regardless of the paragraph B functional assessment, it sufficiently 22 captures Rhodus’s limitations. Rogers v. Comm’r of Soc. Sec. Admin., 490 F. App’x 15, 23 17-18 (9th Cir. 2012) (upholding RFC based on medical source opinions, which did not 24 incorporate paragraph B finding of moderate limitation in social functioning). 25 Rhodus has not established the ALJ erred in formulating his RFC. 26 27 28 -9- CONCLUSION 1 2 3 The Court concludes the ALJ did not err as to any of the claims raised by Rhodus. Therefore, Rhodus is not entitled to relief and his appeal is denied. 4 Accordingly, 5 IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court 6 7 shall enter judgment. Dated this 18th day of September, 2017. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 -

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?