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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Willie Douglas Rhodus,
Plaintiff,

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ORDER

v.

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No. CV-16-00238-TUC-LCK

Nancy A. Berryhill,

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Defendant.

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Plaintiff Willie Rhodus filed this action pursuant to 42 U.S.C. § 405(g) seeking

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judicial review of a final decision by the Commissioner of Social Security

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(Commissioner). (Doc. 1.) Before the Court are Rhodus’s Opening Brief and Defendant’s

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Brief. (Docs. 18, 19.) The parties have consented to Magistrate Judge jurisdiction. (Doc.

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10.) Based on the pleadings and the administrative record submitted to the Court, the

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Commissioner’s decision is affirmed.

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FACTUAL AND PROCEDURAL HISTORY

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Rhodus filed an application for Disability Insurance Benefits (DIB) and

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Supplemental Security Income (SSI) on August 29, 2012. (Administrative Record (AR)

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175.) He alleged disability from January 1, 2009. (Id.) Rhodus’s application was denied

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upon initial review (AR 45-74) and on reconsideration (AR 75-110). A hearing was held

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on July 16, 2014 (AR 22-44), after which the ALJ found that Rhodus was not disabled

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because he could perform his past relevant work (AR 9-17). The Appeals Council denied

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Rhodus’s request to review the ALJ’s decision. (AR 1.)

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Rhodus was born on November 14, 1950, making him 58 years of age at the onset

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date of his alleged disability. (AR 175.) From 1998 to 2009, Rhodus worked as an officer

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at an insurance company and as an investment advisor. (AR 190.)

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The ALJ found Rhodus had two severe impairments, degenerative joint disease

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(knees) and osteoarthritis. (AR 11.) The ALJ determined Rhodus had the Residual

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Functional Capacity (RFC) to perform sedentary work except he could sit for up to six

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hours and stand for up to two hours; lift/carry 10 pounds frequently; occasionally climb,

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balance, stoop, kneel, crouch, and crawl; and should avoid unprotected heights and

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dangerous machinery. (AR 14.) The ALJ concluded at Step Four, based on the testimony

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of a Vocational Expert, that Rhodus could perform his past work (as generally

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performed) as an investment representative or director of insurance. (AR 17.)

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STANDARD OF REVIEW

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The Commissioner employs a five-step sequential process to evaluate SSI and

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DIB claims. 20 C.F.R. §§ 404.1520; 416.920; see also Heckler v. Campbell, 461 U.S.

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458, 460-462 (1983). To establish disability the claimant bears the burden of showing he

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(1) is not working; (2) has a severe physical or mental impairment; (3) the impairment

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meets or equals the requirements of a listed impairment; and (4) claimant’s RFC

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precludes him from performing his past work. 20 C.F.R. §§ 404.1520(a)(4),

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416.920(a)(4). At Step Five, the burden shifts to the Commissioner to show that the

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claimant has the RFC to perform other work that exists in substantial numbers in the

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national economy. Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007). If the

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Commissioner conclusively finds the claimant “disabled” or “not disabled” at any point

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in the five-step process, she does not proceed to the next step. 20 C.F.R.

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§§ 404.1520(a)(4), 416.920(a)(4).

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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th

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Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)). The findings

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of the Commissioner are meant to be conclusive if supported by substantial evidence. 42

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U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla but less than a

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preponderance.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (quoting Matney v.

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Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)). The court may overturn the decision to

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deny benefits only “when the ALJ’s findings are based on legal error or are not supported

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by substantial evidence in the record as a whole.” Aukland v. Massanari, 257 F.3d 1033,

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1035 (9th Cir. 2001). This is so because the ALJ “and not the reviewing court must

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resolve conflicts in the evidence, and if the evidence can support either outcome, the

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court may not substitute its judgment for that of the ALJ.” Matney, 981 F.2d at 1019

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(quoting Richardson v. Perales, 402 U.S. 389, 400 (1971)); Batson v. Comm’r of Soc.

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Sec. Admin., 359 F.3d 1190, 1198 (9th Cir. 2004). The Commissioner’s decision,

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however, “cannot be affirmed simply by isolating a specific quantum of supporting

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evidence.” Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998) (citing Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989)). Reviewing courts must consider the evidence

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that supports as well as detracts from the Commissioner’s conclusion. Day v.

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Weinberger, 522 F.2d 1154, 1156 (9th Cir. 1975).
DISCUSSION

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Rhodus argues the ALJ erred in not finding his mental impairments severe at Step

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Two. Alternatively, Rhodus argues the ALJ erred in not evaluating the effect of his non-

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severe depression on his ability to work.

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Step Two

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Rhodus argues the ALJ failed to find, at Step Two, that his depression was a

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severe impairment. A finding of disability requires an “inability to do any substantial

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gainful activity by reason of any medically determinable physical or mental impairment.”

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20 C.F.R. §§ 404.1505, 416.905. An impairment is “not severe if it does not significantly

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limit your physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1521,

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416.921.

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The ALJ found that Rhodus had a medically determinable impairment of

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depressive disorder but concluded it was not severe because it did not cause “more than

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minimal limitation in the claimant’s ability to perform basic mental work activities.” (AR

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12.) In particular, the ALJ determined Rhodus had only mild limitations in activities of

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daily living, social functioning, and concentration, persistence, and pace. (Id.)

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To resolve this claim, the Court must examine the medical opinions regarding

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Rhodus’s functional limitations arising from his mental impairment.1 The record

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regarding how depression affects Rhodus’s ability to work consists of (a) reports from

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two psychologists that examined Rhodus in December 2012 (Dr. Rau) and August 2014

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(Dr. Glenn Marks); and (b) mental residual functional capacity assessments from January

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2013 by a psychiatrist (Dr. Jack Marks) and June 2013 by a psychologist (Dr. Garland).

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(AR 57, 89.) Rhodus has no mental health treatment records. (AR 10.) The ALJ gave

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great weight to the 2014 assessment of examining psychologist Dr. Glenn Marks. The

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ALJ gave little weight to the opinion of examining psychologist Dr. Rau and rejected the

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opinions of the non-examining State agency physicians.

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As an initial matter, Rhodus contends the ALJ failed to consider the factors set

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forth in 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6) for weighing medical opinion

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evidence. The regulations do not require the ALJ to discuss these factors, only to consider

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them; there is no reason to believe the ALJ did not consider these factors as required. As

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discussed below, the ALJ explicitly discounted Dr. Rau’s opinion as not well-supported

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by the evidence, one of the applicable factors. See 20 C.F.R. §§ 404.1527(c)(3),

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416.927(c)(3). Review of the other §§ 404.1527(c), 416.927(c) factors reveals little

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material distinction between the opinions of Dr. Rau and Dr. Glenn Marks. They both

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examined Rhodus one time but had no treating relationship with him, and they are both

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experts in psychology and the Social Security disability program. See 20 C.F.R. §§

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404.1527(c)(1), (2), (5), (6), 416.927(c)(1), (2), (5), (6). Although Dr. Rau’s opinion was

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consistent with the opinions of Drs. Garland and Jack Marks (while Dr. Glenn Marks’s

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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).
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opinion was not), see 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4), that holds little weight

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as the two latter opinions were based solely on Dr. Rau’s report.

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Next, Plaintiff argues that the ALJ erred in rejecting the opinions of Drs. Rau,

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Garland, and Jack Marks. The opinion of an examining physician generally is afforded

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more weight than a non-examining or reviewing physician’s opinion. Lester v. Chater, 81

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F.3d 821, 830 (9th Cir. 1995). Here, these three opinions were contradicted by that of

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psychologist Glenn Marks. When there are contradictory medical opinions, to reject an

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examining physician’s opinion, the ALJ must provide “specific and legitimate reasons

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that are supported by substantial evidence.” Id.

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Dr. Rau, a licensed psychologist, examined Rhodus in December 2012 and

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diagnosed major depressive disorder, moderate, without psychosis. (AR 291.) Dr. Rau

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found that Rhodus’s understanding and memory were not significantly limited and he

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could remember simple instructions with repetition. (AR 292.) Dr. Rau stated that

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Rhodus was moderately limited in sustained concentration and persistence, and would

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frequently struggle with carrying out detailed instructions, staying focused for an

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extended period of time, and maintaining a consistent pace (due to pain, internal agitation

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and dysphoria, or frustration). (Id.) He also concluded that Rhodus was moderately

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limited in the area of social interaction – he may have difficulty with criticism and

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struggle being around others, and his stern and dysphoric presence may put others ill at

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ease. (AR 293.) The ALJ gave this opinion little weight finding it to be “unsupported by

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any evidence, objective findings, and [] inconsistent with other opinion evidence.” (AR

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16.)

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The ALJ was accurate in finding Dr. Rau’s opinion inconsistent with at least one

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other opinion, that of Dr. Glenn Marks. Dr. Marks noted that Rhodus exhibited almost no

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evidence of cognitive difficulties, and he scored 28 out of 30 on the Mini-mental status

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examination (MMSE) (failing to recall two of three words on delayed recall). (AR 322.)

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In his medical source statements, Dr. Marks opined that Rhodus had no impairment in

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concentration/persistence, social interaction, or adapting to change. (Id.) He also

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determined that Rhodus’s depression did not affect his ability to understand, remember

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and carry out instructions; interact appropriately with supervisors, co-workers, or the

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public; or respond to changes in the work setting. (AR 326-27.) In his report, he noted

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that Rhodus’s depression could possibly cause cognition problems that might interfere

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with highly cognitively demanding work; however, he found him fully capable of

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learning and retaining new information and information for which he was familiar from

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past work. (AR 324.)

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The Court examines Dr. Rau’s report to evaluate the ALJ’s finding that Dr. Rau’s

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opinion was unsupported by evidence and objective findings. His forty-five minute exam

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is the only substantive evidence he relied upon in making his findings.2

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The Court finds there is substantial evidence to support the ALJ’s rejection of Dr.

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Rau’s opinion because it is not supported by the evidence of record. See Valentine v.

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Comm’r Social Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (defining substantial

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evidence as “such relevant evidence as a reasonable mind might accept as adequate to

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support a conclusion.”); Batson, 359 F.3d at 1196 (“When evidence reasonably supports

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either confirming or reversing the ALJ’s decision, we may not substitute our judgment

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for that of the ALJ.”). On the MMSE, Rhodus scored 27 out of 30 (missing one of three

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words on a brief delay), only one point less than when administered two years later by

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Dr. Glenn Marks. (AR 290.) Dr. Rau found Rhodus had moderate limitations in

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concentration, focus, and pace, and in carrying out detailed instructions. (AR 292.)

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However, upon exam, Dr. Rau found Rhodus’s attention, orientation, and effort

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unremarkable, and Rhodus described his concentration as non-problematic and stated that

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he had good recollection of personal interactions and activities. (AR 287, 288.) Dr. Rau

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also found Rhodus had moderate limitations in social interaction. (AR 293.) However,

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Dr. Rau recorded Rhodus’s cooperation, rapport, insight, and judgment as unremarkable

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(AR 287), noted that he did well socializing with family, and recognized he had no

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Dr. Rau stated that, prior to the exam, he reviewed only “a medical note and a
self-report note.” (AR 287.)
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history of acting out. (AR 290.) Rhodus reported normal conversational abilities (AR

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288) and that he has always gotten along well with others (AR 289). Finally, Dr. Rau

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noted that Rhodus was “active behaviorally day-to-day in a healthy way.” (AR 290.)

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Although there is some evidence to support Dr. Rau’s opinion and, in turn, Rhodus’s

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argument, “the key question is not whether there is substantial evidence that could

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support a finding of disability, but whether there is substantial evidence to support the

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Commissioner’s actual finding that the claimant is not disabled.” Jamerson v. Chater,

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112 F.3d 1064, 1067 (9th Cir. 1997). Here, specific and legitimate reasons, and

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substantial evidence, support the ALJ’s rejection of Dr. Rau’s opinion.

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Finally, the Court looks at the opinions of Drs. Garland and Jack Marks, which

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were contradicted by the opinion of Dr. Glenn Marks. These doctors found very similar,

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but slightly more restrictive, limitations as Dr. Rau. They both concluded that Rhodus

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was moderately limited in understanding, remembering and carrying out detailed

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instructions, and maintaining attention and concentration for extended periods. They both

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found Rhodus moderately limited in interacting with coworkers, while Dr. Garland found

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the same limitation for the general public. Dr. Garland found Rhodus moderately limited

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in accepting instructions and criticism, while Dr. Marks found a marked limitation in this

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area. Additionally, Dr. Garland found a moderate limitation in completing a normal

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workweek without psychological

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unreasonable rest periods. They both concluded Rhodus could perform the basic mental

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demands of competitive, remunerative, unskilled work, particularly if it required only low

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social contact. (AR 55-57, 88-90.)

interruptions and maintaining pace without

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The ALJ rejected these opinions as not supported by the record as a whole and

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because these doctors did not review updated medical records, see Rhodus in person, or

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hear his testimony.3 (AR 16.) The ALJ was correct in noting that these doctors saw only

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the evaluation by Dr. Rau and were not able to compare the opinion of Dr. Rau with the

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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.
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later evaluation of Dr. Glenn Marks. In contrast, the ALJ had the entirety of Rhodus’s

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records and it was her job to resolve conflicts in medical testimony. See Andrews, 53 F.3d

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at 1039. Drs. Garland and Jack Marks noted that their opinions were based solely on the

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report of Dr. Rau. (AR 57, 89.) Therefore, for the same reasons discussed above with

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respect to Dr. Rau’s opinion, the Court finds there is substantial evidence to support the

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ALJ’s conclusion that these opinions were not in line with the record as a whole.

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Residual Functional Capacity

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First, Rhodus argues the ALJ failed to include, in the RFC, limitations found by

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Dr. Glenn Marks. Specifically, Dr. Marks stated that Rhodus’s “possible cognitive

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problems might interfere with highly cognitively demanding work”; however, he found

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him fully capable of learning and retaining new information and information for which he

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was familiar from past work. (AR 324.) The equivocal statement quoted above is not a

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direct assessment of Rhodus’s functional limitations. See Griffith v. Colvin, No. 3:13-cv-

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00585-HZ, 2014 WL 1303102, at *5 n.3 (D. Or. Mar. 30, 2014) (finding doctor’s

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statements that claimant “may have difficulty completing work without interference from

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her mental impairments or performing work activities on a consistent basis without

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additional instructions do not represent ‘work-related limitation[s] of function that nee[d]

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to be reflected in the RFC.’”) Dr. Marks completed a separate mental medical source

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statement of Rhodus’s ability to do work-related activities. He found no impairment in

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understanding, remembering, and carrying out instructions, including no impairment in

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remembering and carrying out complex instructions and making judgments on complex

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work-related decisions. (AR 326.) Therefore, in finding no mental limitations, the RFC

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fully accounted for Dr. Glenn Marks’s functional limitation findings. See Valentine, 574

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F.3d at 691 (upholding RFC that incorporated doctor’s detailed mental residual functional

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capacity assessment rather than more generalized statements of functional abilities).

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Second, Rhodus argues that because the ALJ found, in evaluating the paragraph B

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criteria, that Rhodus had mild limitations in daily living, social functioning, and

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concentration, persistence and pace (AR 12), the ALJ was obligated to include mental

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limitations in the RFC.

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Mild limitations, as found by the ALJ in Rhodus’s case, do not necessarily

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translate to a restriction in ability to perform specific work functions. See Foster v.

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Colvin, No. 6:12-cv-00698-HZ, 2013 WL 3994652, at *4 (D. Or. Aug. 2, 2013) (rejecting

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argument that mild limitation in social functioning, found at Step Three, must be

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incorporated into subsequent detailed RFC evaluation). Even a severe mental impairment

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finding at Step Two does not mandate a corresponding RFC limitation in a claimant’s

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ability to perform basic work activities. See Bray v. Comm’r of Soc. Sec. Admin., 554

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F.3d 1219, 1228-29 (9th Cir. 2009). Further, the paragraph B criteria are not an RFC

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assessment; rather, they are used to rate the severity of a mental impairment at Steps Two

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and Three. SSR 96-8p; Israel v. Astrue, 494 F. App’x 794, 796 (9th Cir. 2012) (holding

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that Step Two and Three findings must be considered with “all of the relevant evidence”

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to form the RFC). The ALJ stated that the RFC “reflects the degree of limitation the

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undersigned has found in the ‘paragraph B’ mental function analysis.” (AR 13.) The ALJ

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cited specifically to the opinion of Dr. Glenn Marks, who found no impairment in the

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more specific RFC categories of maintaining attention, concentration, and attendance;

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understanding, remembering, and carrying out instructions; interacting appropriately with

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supervisors, co-workers, and the public; and adapting to work situations and changes in

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the work setting. (AR 324, 326-27.) Because the RFC is consistent with the opinion of

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Dr. Glenn Marks, regardless of the paragraph B functional assessment, it sufficiently

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captures Rhodus’s limitations. Rogers v. Comm’r of Soc. Sec. Admin., 490 F. App’x 15,

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17-18 (9th Cir. 2012) (upholding RFC based on medical source opinions, which did not

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incorporate paragraph B finding of moderate limitation in social functioning).

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Rhodus has not established the ALJ erred in formulating his RFC.

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CONCLUSION

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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.

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Accordingly,

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IT IS ORDERED that Plaintiff’s case is DISMISSED and the Clerk of Court

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shall enter judgment.
Dated this 18th day of September, 2017.

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