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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 ) No. CV 16-01004-AS ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) ) MARC LEDERER, 13 Plaintiff, v. 14 15 16 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 17 Defendant. 18 19 I. PROCEEDINGS 20 21 On February 12, 2016, Plaintiff Marc Lederer (“Plaintiff”) 22 filed a Complaint, seeking review of the Commissioner’s denial of 23 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). 28 1 The parties 1 have consented to proceed before a United States Magistrate Judge. 2 (Docket Entry Nos. 11-12). 3 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). 5 6 7 For the reasons discussed below, the decision of the Administrative Law Judge is AFFIRMED. 8 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 9 10 11 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). 19 20 The ALJ applied the five-step sequential process in evaluating 21 Plaintiff’s case. (AR 26-43). 22 Plaintiff had not engaged in substantial gainful activity after the 23 alleged onset date. 24 Plaintiff has the severe impairments of personality disorder, mood 25 disorder, and impulse control disorder. 26 the ALJ found that Plaintiff’s impairments did not meet or equal a 27 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 28 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; 15 and no thought content abnormalities or perceptual disturbances.” 16 (AR 17 sadness, 18 psychological treatment until April 2012. 19 surmised that during visits related to Plaintiff’s physical health, 20 he had a “normal mood, affect, memory, and judgment.” 21 Plaintiff stated that he was “anxious” about having prostitis in a 22 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). 24 25 1 26 27 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). 28 3 1 The ALJ also discussed Plaintiff’s 2012 psychiatric evaluation 2 at S & L Medical Group. 3 complained of mental health issues, but the ALJ determined that 4 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 10 judgment, and limited insight. 11 Plaintiff neither returned for his follow-up appointment with Dr. 12 Reynolds, 13 Plaintiff’s alleged obsessive compulsive disorder and anxiety. 14 36, 867). 15 called 16 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). 17 18 The ALJ gave examining little weight psychiatrist, to Dr. the opinion Ernest of the state- Bagner, and relied 19 appointed 20 instead, on the opinions of non-examining psychiatric consultants, 21 David Deaver, Ph.D. and Pamela Hawkins, Ph.D. 22 116-23). 23 before Dr. Bagner on April 2, 2013. 24 Plaintiff complained of mood swings, depression, nervousness, and 25 low motivation. 26 with good eye contact, alert, oriented to time, place, person and 27 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 28 4 1 irritable, tangential, and experiencing “paranoid delusions.” 2 694-96). 3 immediately and 3 out of 3 objects in 5 minutes,” “what he had for 4 breakfast,” 5 regarding basic knowledge, perform “serial sevens,” spell the word 6 “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 9 10 psychotic disorder 11 related to his social environment, occupation, health, and economic 12 well-being. 13 60,3 (AR 695-96), and found Plaintiff to be markedly limited in the 14 ability to respond to changes or work pressure in a routine work 15 setting; moderately limited in complying with job rules such as 16 safety and attendance; interacted appropriately with the public, co- 17 workers and supervisors; followed detailed instructions; and mildly 18 limited 19 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.). 20 21 2 22 23 24 25 26 27 “NOS” is an abbreviation used by health professionals that stands for “not otherwise specified.” 3 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). 28 5 1 The ALJ gave “little probative weight” to Dr. Bagner’s 2 evaluation for the following reasons: (1) Dr. Bagner’s “observations 3 and findings are anomalous when viewed in the context of other 4 medical evidence of record . . . ”; (2) evaluation notes indicated 5 normal behavior, thus demonstrating that his opinion was largely 6 based 7 credible; and 8 briefly,” he 9 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. 11 Deaver, a non-examining psychiatrist, found Plaintiff 12 markedly limited in interacting appropriately with the public, and 13 moderately limited in the ability to ask questions, accept and carry 14 out 15 attention and regular attendance, sustain an ordinary routine, and 16 respond appropriately to criticism. 17 Plaintiff was not significantly limited in his ability to remember 18 locations 19 instructions; and work in coordination with, or in proximity to, 20 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). 21 22 Dr. Hawkins in that Plaintiff was ability to maintain social persistence, or only 23 limited 24 concentration, 25 Plaintiff’s activities of daily living. 26 indicated that she had “adopted” Dr. Bagner’s opinion. 27 However, Dr. his determined Hawkins found pace, Plaintiff 28 6 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, 4 5 persistence, and limiting 6 credible 7 allegedly disabling symptoms,” which suggested that his “symptoms 8 have not been particularly troubling or at least not as serious as 9 has been alleged.” because effects Plaintiff had of “not his symptoms received not treatment entirely for the (AR 35). 10 At step four, the ALJ determined that Plaintiff was not able 11 12 to perform his past relevant work. 13 found that Plaintiff was able to perform jobs consistent with his 14 age, education, work experience, and RFC existing in significant 15 numbers 16 testimony of the VE, who considered all of Plaintiff’s limitations 17 in 18 perform the requirements of representative light or medium unskilled 19 occupations 20 Occupational Titles (“DOT”) No. 706.84-022), housekeeping cleaner 21 (DOT 323 678-014), and warehouse worker (DOT 922.687-058). 22 As a result of these findings, the ALJ found that Plaintiff was not 23 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). 24 25 Plaintiff requested that the Appeals Council review the ALJ’s 26 decision. (AR 1). The request was denied on December 15, 2015. 27 (AR 1-5). The ALJ’s decision then became the final decision of the 28 7 1 Commissioner, allowing this Court to review the decision. 2 U.S.C. §§ 405(g), 1383(c). See 42 3 4 III. STANDARD OF REVIEW 5 6 This Court reviews the Administration’s decision to determine 7 if it is free of legal error and supported by substantial evidence. 8 See Brewes v. Commissioner of Social Sec. Admin., 682 F.3d 1157, 9 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). 16 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, 20 21 IV. PLAINTIFF’S CONTENTION 22 23 Plaintiff contends that the ALJ failed to provide clear and 24 convincing reasons to reject the opinion of consultative examiner, 25 Dr. Bagner, in assessing Plaintiff’s residual functional capacity. 26 (Joint Stip. 4-8, 16-19). 27 28 8 1 V. DISCUSSION 2 3 A. The ALJ Properly Evaluated Dr. Bagner’s Opinion 4 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 9 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). 25 opinion is contradicted by another doctor, the opinion may only be 26 rejected if the ALJ provides specific and legitimate reasons that 27 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 28 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 28 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. 14 15 Dated: January 19, 2017 16 17 _____________/s/______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 18 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). 27 28 14

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