Marc Lederer v. Carolyn W. Colvin

Filing 20

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of Commissioner is AFFIRMED. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) No. CV 16-01004-AS
)
) MEMORANDUM OPINION
)
)
)
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)
)
)
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)

MARC LEDERER,

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Plaintiff,
v.

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CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,

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Defendant.

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I. PROCEEDINGS
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On

February

12,

2016,

Plaintiff

Marc

Lederer

(“Plaintiff”)

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filed a Complaint, seeking review of the Commissioner’s denial of
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Plaintiff’s

application

for

a

period

of

disability,

disability

24

insurance

benefits

(“DIB”),

and

supplemental

security

income

25

(“SSI”).

(Docket Entry No 1).

On July 1, 2016, Defendant filed an

26

Answer to the Complaint, (Docket Entry No. 14), and the Certified
27

Administrative Record (“AR”).

(Docket Entry No. 15).

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1

The parties

1

have consented to proceed before a United States Magistrate Judge.

2

(Docket Entry Nos. 11-12).

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a Joint Stipulation (“Joint Stip.”), setting forth their respective

4

positions on Plaintiff’s claims.

On September 19, 2016, the parties filed

(Docket Entry No. 19).

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For

the

reasons

discussed

below,

the

decision

of

the

Administrative Law Judge is AFFIRMED.

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II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION

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10
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Plaintiff,

formerly

employed

as

an

office

manager,

asserts

12

disability beginning May 15, 2010, based on alleged mental health

13

impairments related to mood swings, getting along with others, and

14

controlling his temper.

15

Administrative Law Judge (“ALJ”), John Wojciechowski, examined the

16

record

17

(“VE”), Frank Corso.

18

Plaintiff benefits in a written decision.

and

heard

(AR 37, 207-12).

testimony

from

Plaintiff

(AR 37-38).

On May 7, 2014, the

and

vocational

expert

On July 2, 2014, the ALJ denied
(AR 26-43).

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20

The ALJ applied the five-step sequential process in evaluating

21

Plaintiff’s case.

(AR 26-43).

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Plaintiff had not engaged in substantial gainful activity after the

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alleged onset date.

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Plaintiff has the severe impairments of personality disorder, mood

25

disorder, and impulse control disorder.

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the ALJ found that Plaintiff’s impairments did not meet or equal a

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listing found in 20 C.F.R. Part 404, Subpart P, Appendix 1.

(AR 22).

At step one, the ALJ determined that

At step two, the ALJ found that

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2

(AR 31).

At step three,

(AR

1

33).

2

had the residual functional capacity (“RFC”)1 to perform a full

3

range of work, but that he was “limited to simple repetitive tasks

4

involving no contact with the public and no more than occasional

5

contact with co-workers and supervisors.” (AR 34).

Before proceeding to step four, the ALJ found that Plaintiff

6

In making this finding, the ALJ discussed Plaintiff’s treatment

7
8

history in great detail.

Plaintiff attended Kaiser Permanente for

9

one psychological exam in 2007 and for various appointments related

10

to his physical health.

11

during

12

Plaintiff had “a largely normal objective mental status examination,

13

including a euthymic mood; a normal-range, appropriate and mood-

14

congruent affect; coherent, relevant and logical thought processes;

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and no thought content abnormalities or perceptual disturbances.”

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(AR

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sadness,

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psychological treatment until April 2012.

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surmised that during visits related to Plaintiff’s physical health,

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he had a “normal mood, affect, memory, and judgment.”

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Plaintiff stated that he was “anxious” about having prostitis in a

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July 2008 visit, but there were no further credible mental health

23

complaints in the Kaiser records.

the

35).

“single

Plaintiff
and

worry,

(AR 285-692, 710-864).

visit

to

noted
but

the

some

psychiatric

symptoms,

Plaintiff

did

not

The ALJ noted that
clinic”

such
return

as

in

2007,

impatience,

for

(AR 35, 631).

follow-up
The ALJ

(AR 35, 588).

(AR 35).

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25
1

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A Residual Functional Capacity is what a claimant can
still do despite existing exertional and non-exertional limitations.
See 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).

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1

The ALJ also discussed Plaintiff’s 2012 psychiatric evaluation

2

at S & L Medical Group.

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complained of mental health issues, but the ALJ determined that

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these complaints were not credible.

5

that he was “not interested in treatment” and “simply [wanted] a

6

mental

7

disability.”

8

Reynolds,

9

argumentative;

health

(AR 35).

diagnosis

so

(Id.).

assessed

that

The

Plaintiff

with

poor

During this visit, Plaintiff

(AR 35, 705).

he

[could]

attending
as

impulse

Plaintiff stated

file

for

permanent

psychiatrist,

vague,

anxious,

control

and

and

David

somewhat

motivation,

fair

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judgment, and limited insight.

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Plaintiff neither returned for his follow-up appointment with Dr.

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Reynolds,

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Plaintiff’s alleged obsessive compulsive disorder and anxiety.

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36, 867).

15

called

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diagnosis, which Dr. Reynolds refused to provide.

nor

took

the

(AR 700-01).

Dr.

Gabapentin

that

was

The ALJ noted that

prescribed

to

treat
(AR

Plaintiff also exhibited malingering qualities when he

Dr.

Reynolds

and

requested

a

limited

spectrum

autism

(AR 35, 867).

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The

ALJ

gave

examining

little

weight

psychiatrist,

to
Dr.

the

opinion

Ernest

of

the

state-

Bagner,

and

relied

19

appointed

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instead, on the opinions of non-examining psychiatric consultants,

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David Deaver, Ph.D. and Pamela Hawkins, Ph.D.

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116-23).

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before Dr. Bagner on April 2, 2013.

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Plaintiff complained of mood swings, depression, nervousness, and

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low motivation.

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with good eye contact, alert, oriented to time, place, person and

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purpose, and had normal movements, but he was also tense, hostile,

(AR 36-37, 91-94,

Plaintiff underwent a consultative psychiatric examination

(AR 695).

(AR 693).

At the examination,

Plaintiff appeared to be well developed

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irritable, tangential, and experiencing “paranoid delusions.”

2

694-96).

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immediately and 3 out of 3 objects in 5 minutes,” “what he had for

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breakfast,”

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regarding basic knowledge, perform “serial sevens,” spell the word

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“music” forward and backward; and had normal insight and judgement.

7

(AR 695).

Plaintiff

and

“his

was

date

able

of

to

recall

birth;”

“3

out

logically

of

3

answer

(AR

objects

questions

8

Dr. Bagner diagnosed Plaintiff with a mood disorder NOS,2

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10

psychotic

disorder

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related to his social environment, occupation, health, and economic

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well-being.

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60,3 (AR 695-96), and found Plaintiff to be markedly limited in the

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ability to respond to changes or work pressure in a routine work

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setting; moderately limited in complying with job rules such as

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safety and attendance; interacted appropriately with the public, co-

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workers and supervisors; followed detailed instructions; and mildly

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limited

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instruction.

in

NOS,

(AR 695-96).

his

ability

personality

disorder

NOS,

and

problems

Dr. Bagner gave Plaintiff a GAF score of

to

follow

simple,

oral

and

written

(Id.).

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2

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27

“NOS” is an abbreviation used by health professionals that
stands
for
“not
otherwise
specified.”
http://www.psyweb.com/mdisord/MoodDis/mdnos.jsp.
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A GAF score of 51–60 indicates “[m]oderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) OR
moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).” See
Diagnostic and Statistical Manual of Mental Disorders, Fourth
Edition, Text Revision (“DSM-IV-TR”), 34 (2000).

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The

ALJ

gave

“little

probative

weight”

to

Dr.

Bagner’s

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evaluation for the following reasons: (1) Dr. Bagner’s “observations

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and findings are anomalous when viewed in the context of other

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medical evidence of record . . . ”; (2) evaluation notes indicated

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normal behavior, thus demonstrating that his opinion was largely

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based

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credible;

and

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briefly,”

he

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longitudinal evidence in this case . . . ” (AR 36-37).

on

Plaintiff’s
(3)

subjective

because

did

not

representations,

Dr.

have

Bagner

“an

only

which

“met

opportunity

were

the

to

not

claimant

consider

the

10

Dr.

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Deaver,

a

non-examining

psychiatrist,

found

Plaintiff

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markedly limited in interacting appropriately with the public, and

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moderately limited in the ability to ask questions, accept and carry

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out

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attention and regular attendance, sustain an ordinary routine, and

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respond appropriately to criticism.

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Plaintiff was not significantly limited in his ability to remember

18

locations

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instructions; and work in coordination with, or in proximity to,

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others without being distracted.

instructions,

and

maintain

work-like

socially

appropriate

(AR 92).

procedures;

behavior,

hold

Dr. Deaver found that

remember

short

and

simple

(AR 92-93).

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22

Dr.

Hawkins
in

that

Plaintiff

was

ability

to

maintain

social

persistence,

or

only

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limited

24

concentration,

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Plaintiff’s activities of daily living.

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indicated that she had “adopted” Dr. Bagner’s opinion.

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However,

Dr.

his

determined

Hawkins

found

pace,

Plaintiff

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and

mildly

(AR 119).

“not

disabled”

moderately

functioning,
limited

in

Dr. Hawkins
(AR 120).
whereas

Dr.

1

Bagner gave Plaintiff a “guarded” diagnosis.

2

93).

(AR 123, 696).

(AR

3

The ALJ found Plaintiff’s statements regarding the intensity,

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5

persistence,

and

limiting

6

credible

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allegedly disabling symptoms,” which suggested that his “symptoms

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have not been particularly troubling or at least not as serious as

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has been alleged.”

because

effects

Plaintiff

had

of

“not

his

symptoms

received

not

treatment

entirely
for

the

(AR 35).

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At step four, the ALJ determined that Plaintiff was not able

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to perform his past relevant work.

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found that Plaintiff was able to perform jobs consistent with his

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age, education, work experience, and RFC existing in significant

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numbers

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testimony of the VE, who considered all of Plaintiff’s limitations

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in

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perform the requirements of representative light or medium unskilled

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occupations

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Occupational Titles (“DOT”) No. 706.84-022), housekeeping cleaner

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(DOT 323 678-014), and warehouse worker (DOT 922.687-058).

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As a result of these findings, the ALJ found that Plaintiff was not

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disabled.

in

the

providing

national

his

such

economy.

opinions,

as

(AR 37).

small

the

(AR

ALJ

products

At step five, the ALJ

38-39).

found

Relying

that

assembler

I

on

Plaintiff

the

could

(Dictionary

of

(AR 38).

(AR 39).

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Plaintiff requested that the Appeals Council review the ALJ’s

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decision.

(AR 1).

The request was denied on December 15, 2015.

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(AR 1-5).

The ALJ’s decision then became the final decision of the

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Commissioner, allowing this Court to review the decision.

2

U.S.C. §§ 405(g), 1383(c).

See 42

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III. STANDARD OF REVIEW

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6

This Court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

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See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157,

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1161 (9th Cir. 2012).

“Substantial evidence” is more than a mere

10

scintilla, but less than a preponderance.

11

F.3d 995, 1009 (9th Cir. 2014).

12

evidence supports a finding, “a court must consider the record as a

13

whole,

14

detracts

15

Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

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the evidence can reasonably support either affirming or reversing

17

the ALJ’s conclusion, [a court] may not substitute [its] judgment

18

for that of the ALJ.”

19

882 (9th Cir. 2006).

weighing
from

both
the

evidence

Garrison v. Colvin, 759

To assess whether substantial

that

[Commissioner’s]

supports

and

conclusion.”

evidence
Aukland

that
v.

As a result, “[i]f

Robbins v. Soc. Sec. Admin., 466 F.3d 880,

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IV. PLAINTIFF’S CONTENTION

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23

Plaintiff contends that the ALJ failed to provide clear and

24

convincing reasons to reject the opinion of consultative examiner,

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Dr. Bagner, in assessing Plaintiff’s residual functional capacity.

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(Joint Stip. 4-8, 16-19).

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V. DISCUSSION

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3

A. The ALJ Properly Evaluated Dr. Bagner’s Opinion

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5

Plaintiff contends that Dr. Bagner’s opinion, which markedly

6

limited Plaintiff “in the ability to respond to changes in the work

7

setting and work pressures,” and moderately limited in the ability

8

“to interact with supervisors, co-workers, and the public . . . ” is

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supported by the record.

(Joint Stip. 6-8).

Plaintiff maintains

10

that the ALJ improperly (1) gave credence to benign cognitive tests

11

in

12

psychology intern, Jacquline Raines-Kohler, M.S.; and (3) relied on

13

Plaintiff’s lack of treatment to discredit Dr. Banger’s opinion.

14

(Joint Stip. 6-7, 16-17).

Dr.

Bagner’s

examination

notes;

(2)

ignored

the

opinion

of

15
16

The opinion of a treating physician must be given more weight

17

than the opinion of an examining physician, and the opinion of an

18

examining physician must be afforded more weight than that of a

19

reviewing physician.

20

Cir. 2014).

21

reasons for rejecting the uncontradicted opinion of a treating or

22

examining physician.

23

Cir. 2006); Annis v. Commissioner Social Sec. Admin., 598 Fed. Appx.

24

517, 519 (9th Cir. 2015).

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opinion is contradicted by another doctor, the opinion may only be

26

rejected if the ALJ provides specific and legitimate reasons that

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are

Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th

The Commissioner must also provide clear and convincing

supported

by

Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th

When a treating or examining physician’s

substantial

evidence

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9

in

the

record.

Hill

v.

1

Astrue, 698 F.3d 1153, 1160 (9th Cir. 2012); Murphy

2

Social Sec. Admin., 423 Fed. Appx. 703, 705 (9th Cir. 2011) (ALJ

3

should at minimum provide specific and legitimate reasons in the

4

decision for either expressly or implicitly rejecting the opinions

5

of an examining physician).

v.

Commissioner

6

The

7

Court

reviews

the

ALJ’s

decision

to

determine

whether

8

specific and legitimate reasons supported by substantial evidence in

9

the record were provided to reject the opinion of the consultative

10

psychiatrist, Dr. Bagner, in favor of the contradicting opinions of

11

non-examining psychiatric consultants Dr. Deaver and Dr. Hawkins.

12

Hill, 698 F.3d at 1160.

13

Here, the ALJ set out a “detailed and thorough summary of the

14
15

facts

and

conflicting

16

opinions of Dr. Deaver and Dr. Hawkins, (see AR 35-36).

17

Commissioner of Social Security, 169 F.3d 595, 600, 602 (9th Cir.

18

1999)

19

examining

20

evidence).

21

visit

22

minimal evidence of mental health complaints or treatment that would

23

indicate severe mental health conditions and functional limitations.

24

(See

25

psychological exam at Kaiser, Plaintiff diagnosed himself as manic

26

depressive, but the examinee did not make any diagnosis.

27

288).

(clinical

and

AR

clinical

findings

medical

from

advisor’s

evidence”

the

that

record

opinion

that

align

with

Morgan v.

support

constitute

the

a

non-

substantial

The ALJ referenced Plaintiff’s 2007 psychiatry clinic
subsequent

285-692,

visits

710-864).

at

Kaiser

(Id.).

Permanente,

During

which

Plaintiff’s

showed

only

(AR 285,

Plaintiff attended numerous appointments for a variety of

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10

1

non-disabling, physical conditions from September 2007 to May 2013.4

2

Plaintiff consistently attended these appointments, was punctual,

3

“well

4

Plaintiff’s most irregular visit was when he received treatment for

5

a

6

received minimal treatment at S & L Medical Group where he refused

7

to take prescribed medications and exhibited malingering qualities

8

such as requesting a limited spectrum autism diagnosis from Dr.

9

Reynolds.

appearing,”

“human

bite

and

to

“in

the

no

acute

hand.”

(AR

(AR 700-05, 865, 867).

distress.”

460).

(AR

429,

Similarly,

435).

Plaintiff

These findings support Dr. Deaver

10

and Dr. Hawkins’ opinions that Plaintiff is not disabled and has no

11

severe

12

social functioning.

limitations

aside

from

moderate

to

marked

limitations in

(AR 92-93, 120-121).

13

Moreover, the ALJ properly determined that Dr. Bagner’s own

14
15

evaluation

16

assigned

17

Plaintiff

18

contact,

19

successfully performed a series of cognitive tests.

20

95).

21

Dr. Bagner’s opinion “rested largely on the subjective report of

22

symptoms and limitations provided by the [Plaintiff],” who was found

23

not credible.

24

(9th Cir. 2008) (an ALJ may reject a treating physician’s opinion

25
26
27

notes

to

contradict

Plaintiff.

appeared
normal

During

“alert

speech

the

and

and

functional
the
fully

normal

limitations

examination

with

oriented”

with

psychomotor

that

Dr.

he

Bagner

“good

eye

activity,”

and

(AR 36, 694-

Given these “normal findings,” the ALJ properly concluded that

(Id.).

Tommasetti v. Astrue, 533 F.3d 1035, 1041

4

Plaintiff attended regular appointments at Kaiser for
ulcerative colitis, urine frequency, elbow pain, a rib contusion,
migraines, knee pain, ear pain, a mole check, and conjunctivitis,
but his doctors did not refer him to mental health treatment. (AR
297, 340, 346, 352, 364, 383, 416, 597, 651, 655, 721).

28
11

1

where it relies largely on a claimant’s discredited self-reports,

2

rather than on objective clinical evidence).

3

may disagree over whether a cognitive test is probative evidence of

4

a severe mood or personality disorder, it is not the role of the

5

court to substitute its judgment for that of the ALJ. See Robbins,

6

466 F.3d at 882 (“If the evidence can reasonably support either

7

affirming

8

substitute [its] judgment for that of the ALJ.”).

or

reversing

the

ALJ’s

While reasonable minds

conclusion,

[a

court]

may

not

9
10

The ALJ also emphasized that Dr. Bagner “met the claimant

11

briefly on only one occasion and did not have the perspective shared

12

by the State Agency doctors who had an opportunity to consider the

13

longitudinal

14

observation of a claimant is a good reason to give less weight to a

15

physician’s

16

factors already discussed by the ALJ’s decision.

17

Chater, 81 F.3d 821, 832 (9th Cir. 1995), as amended (Apr. 9, 1996).

18

Accordingly, the ALJ provided a legitimate and specific reason to

19

give little weight to Dr. Bagner’s opinion where Dr. Bagner did not

20

have a longitudinal picture of Plaintiff’s conditions.

evidence

opinion,

in

this

case

especially

when

.

.

.

”

(AR

considered

37).

among

Limited

the

other

See Lester v.

21
22

To the extent that Plaintiff offers an April 2012 evaluation

23

conducted by a psychology intern, Jacquline Raines-Kohler, M.S., to

24

support Dr. Bagner’s opinion, the ALJ properly declined to follow

25

Ms.

26

practitioners, and interns are defined as “other sources,” and are

27

therefore

Raines-Kohler’s

entitled

findings.

to

less

Physicians'

deference

28
12

than

assistants,

traditional

nurse

medical

1

sources,

2

404.1513(d); Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

3

An ALJ need only give germane reasons to discount such opinions.

4

See Turner v. Comm'r of Soc. Sec., 613 F.3d 1217, 1224 (9th Cir.

5

2010) (quoting Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).

such

as

doctors

and

psychiatrists.

20

C.F.R.

§

6
7

Ms. Raines-Kohler was a psychology intern at the time of the

8

April 2012 evaluation, and thus not a traditional medical source.

9

(AR 703-04).

The ALJ found that the April 2012 evaluation was not

10

persuasive

because

11

complaints, which were not credible.

12

medical evidence to support an opinion is a proper, germane reason

13

to reject the opinion of a non-traditional medical source.

14

e.g.

15

Accordingly, the ALJ properly rejected the findings in Ms. Rains-

16

Kohler’s report.

Vincent

v.

it

was

Heckler,

739

based

F.2d

on

Plaintiff’s

(AR 35).

1393,

subjective

Lack of objective

1395

(9th

See,

Cir.1984).

17
18

However, it was improper for the ALJ to consider Plaintiff’s

19

lack of treatment in finding that there was not objective evidence

20

of record to support Dr. Bagner’s opinion.

21

Soc. Sec. Admin., 166 F.3d 1294, 1299–300 (9th Cir. 1999) (quoting

22

Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir. 1989) (“[M]ental

23

illness

24

practice to chastise one with a mental impairment for the exercise

25

of poor judgment in seeking rehabilitation.”)).

is

notoriously

underreported”

26
27
28
13

and

Regennitter v. Comm'r of

“it

is

a

questionable

The Court finds any

harmless5

1

such

2

provided other specific and legitimate reasons for rejecting the

3

opinion of Dr. Bagner.

4

F.3d

5

rejecting treating physician’s opinion was harmless because the ALJ

6

otherwise provided legally sufficient reasons to reject opinion).

error

to

1050,

be

1054

(9th

since,

as

discussed

above,

the

ALJ

See Stout v. Comm'r, Soc. Sec. Admin., 454
Cir.

2006)(ALJ’s

erroneous

rationale

for

7
8

VI.

CONCLUSION

9
10
11

For

the

foregoing

reasons,

the

decision

of

Commissioner

is

AFFIRMED.

12
13

LET JUDGMENT BE ENTERED ACCORDINGLY.

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15

Dated: January 19, 2017

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17

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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19
20
21
22
23
24
25
26

5

The harmless error rule applies to the review of
administrative decisions regarding disability.
See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
reversed for errors that are harmless).

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