Jamal Greenfield v. Carolyn W. Colvin

Filing 28

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. Plaintiff Jamal Greenfield filed a Complaint 1 on October 7, 2016, seeking review of the denial by the Commissioner of the Social Security Administration ("SSA") of his application for Title XVI Supplemental Security Income ("SSI") benefits. (See Dkt. No. 1.) IT IS ORDERED that the decision of the Commissioner is AFFIRMED, and Judgment shall be so ENTERED. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum Opinion and Order and the Judgment on the respective counsel for Plaintiff and Defendant. LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE ORDER FOR FURTHER INFORMATION) (gr)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

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) NO. CV 16-7525-KS
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Plaintiff,
) MEMORANDUM OPINION AND ORDER
v.
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NANCY A. BERRYHILL,1 Acting
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Commissioner of Social Security,
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Defendant.
________________________________ )
JAMAL GREENFIELD,

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INTRODUCTION

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Plaintiff Jamal Greenfield filed a Complaint on October 7, 2016, seeking review of the

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denial by the Commissioner of the Social Security Administration (“SSA”) of his application

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for Title XVI Supplemental Security Income (“SSI”) benefits. (See Dkt. No. 1.) On

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September 8, 2017, the parties filed a Joint Stipulation (“J. Stip.”) setting forth the disputed

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The Court notes that Nancy A. Berryhill is now the Acting Commissioner of the Social Security Administration.
Accordingly, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court orders that the caption be amended
to substitute Nancy A. Berryhill for Carolyn Colvin as the defendant in this action.

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issues in the case. (Dkt. No. 27.) Pursuant to 28 U.S.C. § 636(c), all parties have consented

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to proceed before the undersigned United States Magistrate Judge for all further proceedings,

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including entry of Judgment. (See Dkt. Nos. 11, 13.) The matter is now under submission

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and ready for decision.

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SUMMARY OF ADMINISTRATIVE PROCEEDINGS

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Plaintiff was born on March 14, 1995. When he was 6 years old, his mother, Shirley

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Reed, filed an application on his behalf for SSI benefits, which were awarded on October 31,

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2001 based on the disability criteria for children. (See AR 16.) Plaintiff was initially

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determined to be disabled due to: (1) attention deficit hyperactivity; and (2) asthma. (AR

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16.) When Plaintiff turned 18 on March 14, 2013, his eligibility for SSI benefits was

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redetermined under adult disability rules.

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determined that Plaintiff was no longer disabled, and the “cessation date” for the termination

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of his SSI benefits was set at August 1, 2013. (See AR 16, citing 20 C.F.R. § 416.987(e).)

(AR 16.)

On August 9, 2013, the agency

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Plaintiff’s August 1, 2013 cessation date was upheld upon reconsideration after a

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disability hearing by a State Agency Disability Hearing Officer. (AR 16.) On March 12,

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2014, Plaintiff filed a written request for a hearing before an Administrative Law Judge

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(“ALJ”). (AR 16.)

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An initial hearing was held before an ALJ on June 25, 2014, and Plaintiff and his

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mother appeared at that hearing. (See AR 16, 83 et seq.) The ALJ apprised Plaintiff and his

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mother of Plaintiff’s right to be represented by an attorney, but they elected to proceed

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without representation. (AR 16.) Plaintiff did not testify at that initial hearing. (AR 16.)

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The ALJ continued that initial hearing to allow Plaintiff and his mother time to provide

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additional evidence, and the ALJ ordered a new consultative psychological evaluation.

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(AR 16.)

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A second hearing was held on October 21, 2014. (See AR 16, 40 et seq.) Both

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Plaintiff and his mother testified at the second hearing. (AR 48-65.) A psychological

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expert, Dr. Betty Borden, a medical expert, Dr. Henry Maimon, and a vocational expert

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(“VE”), Jane Haile, also testified. (AR 16.) The ALJ again apprised Plaintiff and his mother

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of their right to counsel at the hearing, but they still elected to proceed without

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representation. (See AR 16, 43-45.)

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The VE testified, based on a hypothetical from the ALJ, that with limitations to

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“simple, routine tasks in a non-public setting” and “occasional contact with coworkers and

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supervisors,” Plaintiff could perform three “medium unskilled jobs”: (1) “laborer, stores,”

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DOT 922.687-058, medium unskilled, SVP 2; (2) “hand packager,” DOT 920.587-018,

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medium unskilled, SVP 2; and (3) “cook helper,” DOT 317.687-010, medium unskilled,

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SVP 2. (AR 79-80.) After the VE’s testimony, Plaintiff’s mother protested, saying “I don’t

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understand why she [i.e., the VE] would say that he could get out there and work. I clearly

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don’t believe he can get out there and work.” (AR 81.)

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SUMMARY OF ADMINISTRATIVE DECISION

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On January 29, 2015, the ALJ issued a decision denying Plaintiff’s application for SSI
disability benefits. (See AR 16-32.)

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The ALJ began with the observation that “[m]any of the medical records predate

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August 2013, the month the claimant’s disability status ceased” and noted that “[w]hile I

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have considered those documents, particularly the documents that describe the claimant’s

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mental condition, I focus on evidence that describes the claimant during the period under

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consideration.” (AR 17.)

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The ALJ found that Plaintiff had two “severe” impairments:

(1) “asthma/mild

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obstructive pulmonary disease,” and (2) “a learning disorder.” (AR 19.) The ALJ also noted

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that Plaintiff “may have obstructive sleep apnea,” but he found “that there is insufficient

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evidence to establish obstructive sleep apnea as a medically determinable impairment.” (AR

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19-20.) The ALJ noted that Plaintiff “was in the obese range,” and had “mildly elevated

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blood pressure” but concluded that these conditions could not be considered “severe.” (AR

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20.) The ALJ found that since August 1, 2013, the cessation of benefits date, Plaintiff did

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not have an impairment or combination of impairments that met or equaled a listed

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impairment. (AR 22, citing 20 C.F.R. Part 404, Subpart P, Appendix 1.)

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The ALJ determined that since August 1, 2013, Plaintiff had the residual functional

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capacity (“RFC”) to do a reduced range of medium work (see 20 C.F.R. § 416.967(c)), with

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certain additional limitations, including lifting and/or carrying 50 pounds occasionally and

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25 pounds frequently, and “perform[ing] simple repetitive tasks in an environment that

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requires no public contact and no more than occasional contact with supervisors and co-

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workers.” (AR 23.)

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The ALJ determined that Plaintiff has no past relevant work but that there are jobs that

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exist in significant numbers in the national economy that Plaintiff could perform, including

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the representative occupations of: (1) store laborer; (2) hand packager; or (3) cook’s helper.

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(AR 31-32.) Accordingly, the ALJ found that “[t]he claimant’s disability ended on August

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1, 2013, and the claimant has not become disabled again since that date.” (AR 32, citing 20

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C.F.R. §§ 416.987(e), 416.920(g).)

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to

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determine whether it is free from legal error and supported by substantial evidence in the

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record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence

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is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.’” Gutierrez v. Comm'r of

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Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (internal citations omitted). “Even when the

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evidence is susceptible to more than one rational interpretation, we must uphold the ALJ's

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findings if they are supported by inferences reasonably drawn from the record.” Molina v.

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Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

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Although this Court cannot substitute its discretion for the Commissioner’s, the Court

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nonetheless must review the record as a whole, “weighing both the evidence that supports

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and the evidence that detracts from the [Commissioner’s] conclusion.” Lingenfelter v.

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Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal quotation marks and citation omitted);

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Desrosiers v. Sec’y of Health and Hum. Servs., 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ

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is responsible for determining credibility, resolving conflicts in medical testimony, and for

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resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

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The Court will uphold the Commissioner’s decision when the evidence is susceptible

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to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

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2005). However, the Court may review only the reasons stated by the ALJ in his decision

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“and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at

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630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). Nevertheless, the

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Court will not reverse the Commissioner's decision if it is based on harmless error, which

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exists if the error is “‘inconsequential to the ultimate nondisability determination,’ or if

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despite the legal error, ‘the agency’s path may reasonably be discerned.’” Brown-Hunter v.

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Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal citations omitted).

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DISCUSSION

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I.

Disputed Issue

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The parties’ Joint Stipulation presents a single disputed issue: “Whether the ALJ

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considered Nurse Practitioner Sanchez’s opinion?” (J. Stip. at 4.) Plaintiff asserts that on

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December 18, 2014, a nurse-practitioner at Pacific Clinics whose last name was “Sanchez,”

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completed a form “Medical Source Statement of Ability To Do Work-Related Activities

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(Mental)” (the “Sanchez Statement”), which the ALJ ignored. (See J. Stip. at 5-6.) Plaintiff

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argues that the ALJ’s failure to address the Sanchez Statement was legal error, was not

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harmless, and requires reversal. (See J. Stip. at 10.) Plaintiff further argues that “the ALJ

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never considered the evidence submitted in Exhibit 29 [AR 1038-78],” which includes

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Sanchez’s opinion, a December 18 2014 note indicating a continued diagnosis of

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schizophrenia, paranoid type, a GAF score of 32, and the prescription of Abilify. (See J.

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Stip. at 6; bracketed material in original.)

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For the reasons discussed below, the Court affirms the Commissioner’s decision.

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II.

Relevant Records And Opinion

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As stated above, at issue is a 3-page Medical Source Statement of Ability to Do

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Work-Related Activities that is dated December 18, 2014 (the “Sanchez Statement”). The

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Sanchez Statement is a “check-the-box” form that indicates Plaintiff has “extreme”

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limitations in work-related activities such as the ability to carry out “detailed instructions”

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and to make judgments about “simple” or “complex” work-related decisions. (AR 1038.) In

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response to a question on the form, “What medical/clinical findings support this

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assessment?” the NP Sanchez wrote simply “schizophrenia, hallucinations, paranoia” with

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no additional notations, comments or details about these diagnoses. (Id.)

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Immediately following the Sanchez Statement is an “Evaluation Form for Mental

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Disorders.” (AR 1041-44; also part of Ex. 29F.) The signature page for that evaluation form

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shows December 18, 2014 as the “date of Most Recent Examination,” is signed in the same

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distinctive handwriting as the Sanchez Statement at AR 1040, and bears a notation of “NP”

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and a stamp reading “Pacific Clinics.” (AR 1044.) “Andrew Sanchez” is written in block

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uppercase letters on that signature page. (See AR 1044.) The only information provided in

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any of the specific areas of inquiry on the mental evaluation form are: (1) a handwritten

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notation under “Prognosis” stating “fair if client continues [illegible] medication and

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therapy” and (2) under “Additional Comments” it says “See attached medication evaluation
form.” (AR 1044.)

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Immediately following the evaluation form is a 3-page form entitled “Initial

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Medication Support Service.” (AR 1045-47.) The first page of that form is dated September

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16, 2014, and the last page of that 3-page form appears to be dated December 18, 2014.”

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(See AR 1045, 1047.) That form is signed in the same distinctive signature that apparently

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belongs to Andrew Sanchez and bears a notation “NP.” (AR 1047.)

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III.

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Applicable Law

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Under the applicable Social Security regulations and rulings, a nurse practitioner is not

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an “acceptable medical source.”2 See Social Security Ruling (“SSR”) 06-03p, citing 20

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C.F.R. § 416.913(d); see also Britton v. Colvin, 787 F.3d 1011, 1013 (9th Cir. 2015) (nurse

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practitioner is not “acceptable medical source” (citation omitted)). Nevertheless, a nurse

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practitioner’s opinion is entitled to the weight that is warranted by the facts of the case, 20

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C.F.R. § 416.927(f)(1), and the ALJ was permitted to discount Nurse Sanchez’s opinion

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Because Plaintiff’s efforts to reverse the agency’s ineligibility determination date back to 2013, the new
regulations governing opinions from “acceptable” medical sources and other sources that apply to applications filed after
March 17, 2017, do not apply here. See 20 C.F.R. § 416.927, (“Evaluating opinion evidence for claims filed before
March 27, 2017.”).

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after articulating “germane” reasons for doing so. See Britton, 787 F.3d at 1013; Molina,

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674 F.3d at 1111 (ALJ may discount testimony from “other sources” that are not “acceptable

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medical sources” if he “gives reasons germane to each witness for doing so” (citations and

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internal punctuation omitted)).

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Where an ALJ fails to discuss an opinion from a nurse practitioner, such a failure may

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be analyzed for harmlessness. See, e.g., Whitford v. Barnhart, 133 F. App’x 388, 389-90

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(9th Cir. 2005) (where ALJ failed to discuss opinion from psychiatric nurse practitioner,

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error was nevertheless harmless where ALJ provided “lengthy and detailed analysis in

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support of his ultimate conclusion” and “result would have been the same even if he had

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done so,” that is, discussed nurse practitioner’s opinion); Nestle v. Astrue, No. CIV. 10-

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6203-JE, 2011 WL 7082542, at *13 (D. Or. Dec. 30, 2011) (where ALJ did not address

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opinion from nurse practitioner, error may still be analyzed for harmlessness (citing Stout v.

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Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)).

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inconsequential to the ultimate determination, or if, despite the error, the Agency’s path may

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be reasonably discerned. Brown-Hunter, 806 F.3d at 492.

An error is harmless if it is

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IV.

Discussion

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As an initial matter, the Court’s review of the record indicates that, contrary to

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Plaintiff’s contentions, the ALJ cited and discussed records provided by Nurse Practitioner

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Sanchez and Pacific Clinics. The ALJ stated in his opinion that “[t]here is no evidence of

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psychiatric treatment between March 2014 and August 2014, when Mr. Greenfield began

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treatment at Pacific Clinics.” (AR 21) (emphasis added). The ALJ went on to state that “[a]

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doctor diagnosed schizophrenia and paranoia, and estimated the claimant’s GAF at 32,”

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citing to “Exhibit 24F, p.8” in support of that assertion. (AR 21.) The Court’s review

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reveals that Exhibit 24F at page 8 is at AR 834, which is part of the 3-page report from

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Pacific Clinics entitled “Initial Medication Support Service” and signed with the distinctive

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signature that this Court has identified as the signature of Nurse Practitioner Sanchez. (See

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AR 832-34 and compare id. with AR 1040, 1044, 1047.) The ALJ also noted that “[t]he

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initial notes from Pacific Clinics confirm that Ms. Reed [sic] ‘has not been compliant with

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med[ication] management.” (AR 21, citing Ex. 24F at 6 [AR 832]; “sic” added; other

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bracketed material in original.) Thus, to the extent that Plaintiff may assert that the ALJ did

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not consider any opinions of Pacific Clinics or Nurse Practitioner Sanchez, that assertion

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appears to be contradicted by the record.

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Further, while the ALJ apparently mischaracterized the report at AR 832-34 as being

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from a “doctor,” the ALJ nonetheless discussed the findings contained in that report in his

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overall opinion. (See AR 21.) Indeed, the ALJ discussed the record evidence of Plaintiff’s

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complaints of mental disorder(s), including possible schizophrenia, paranoia and hearing

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voices, in considerable detail. (See, e.g., AR 20-22; 24-28.). First, the ALJ noted that while

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Plaintiff and his mother “consistently state that he is disabled due to symptoms of paranoia

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and schizophrenia, which problems manifested when he was a young child,” the medical

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records from ENKI documenting treatment from 2004 until 2006 reveal that “the only

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complaint was a learning disability and attention deficit hyperactivity disorder.” (AR 20,

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citing Ex. 28F.) The ALJ further explained that because Plaintiff’s mother “specifically

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reported no history of psychiatric disorders” during that period, “[t]he evidence from ENKI

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does not support the allegation of paranoia and schizophrenia since childhood.” (Id.)

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The ALJ also noted that in July 2013, Plaintiff reported to the consultative

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psychologist that he was “not in mental health treatment and was not taking any psychiatric

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medication” despite reporting a diagnosis of schizoaffective disorder. (AR 20-21.) The ALJ

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also noted that in 2014 when Plaintiff was referred to two urgent care facilities for

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psychiatric medication, “there is no evidence he pursued diagnosis at either facility.” (AR

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21.) Further, the ALJ found “the diagnosis of psychotic disorder and paranoid schizophrenia

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are not well established” because of credibility issues raised by Dr. Riahinejad, who

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diagnosed possible malingering, and medical expert in psychology, Dr. Borden, who found

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“little evidence of treatment for psychotic symptoms.” (A.R 21- 22.) Finally, based on his

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review of the records, the ALJ explained that “[e]ven if schizophrenia were established as a

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medically determinable impairment, it would not be considered disabling.” (AR 25.) Taken

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together, the Court finds that these are germane reasons for discounting the nurse

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practitioner’s cursory references to diagnoses of “schizophrenia, hallucinations, paranoia.”

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See Britton, 787 F.3d at 1013; Molina, 674 F.3d at 1111. Accordingly, while the ALJ may

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have misidentified Nurse Practitioner Sanchez’s Medication Support documentation as

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having been written by a “doctor”, the record plainly establishes that the ALJ considered this

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information and provided germane reasons for discounting its notations regarding

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“schizophrenia, hallucinations, paranoia.”

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The Court also concludes that any errors regarding the ALJ’s discussion of the records

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from Nurse Practitioner Sanchez or Pacific Clinics more generally were harmless. As

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Defendant reasonably argues, the Sanchez Statement cited by Plaintiff at AR 1038-40 is a

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standardized “check the box” form that offers virtually no explanation for its findings, and

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that type of form report is typically entitled to little weight. See, e.g., Molina, 674 F.3d at

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1111-12 (ALJ may permissibly reject check-off report that does not contain explanation of

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the bases for conclusions). Furthermore, as noted above, even though the ALJ does not

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explicitly mention the Sanchez Statement at AR 1038, the ALJ’s opinion discusses in detail

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Plaintiff’s history of mental health complaints, the lack of evidence of consistent treatment

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for any psychotic disorder, and the overall absence of evidence to support the schizophrenia,

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hallucinations, and paranoia diagnosis listed on the Sanchez Statement.

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Finally, to the extent that the ALJ erred in failing to explicitly discuss all 41 pages of

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records in Exhibit 29F, which Plaintiff characterizes as including in relevant part “not only

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Sanchez’s opinion but a December 18, 2014 note indicating a continued diagnosis of

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schizophrenia, paranoid type, a global assessment of functioning (GAF) of 32, and the

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prescription of Abilify” (J. Stip. at 6), the error is also harmless. As discussed above,

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although the ALJ did not discuss these 41 pages specifically, the ALJ did acknowledge

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Plaintiff’s use of antipsychotic medication (Risperdal, Latuda, and, most recently, Abilify)

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(see AR 21, 25), and he provided an extensive rationale for discounting other medical

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professionals’ diagnoses of schizophrenia and/or psychosis not otherwise specified (AR 21).

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The ALJ’s reasons for not crediting these diagnoses include the absence of any “records of

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counseling or therapy for a psychotic disorder until . . . September 2013, after [Plaintiff] was

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notified that his SSI benefits would cease” (AR 21) (emphasis added). The ALJ also cited

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the findings of the consultative psychologist, Dr. Riahinejad, who saw Plaintiff twice – first

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in July 2013 before Plaintiff’s August 1, 2013 eligibility cessation date, and second, a year

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later in July 2014 (AR 21) (citing AR 426-29 and AR 564-68) – and at both examinations

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observed possible malingering and did not diagnose schizophrenia. (See AR 21) (discussing

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Exhs. 6F at 2-5, 21F at 2-6). The psychological expert, Dr. Borden, also stated that “the

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diagnosis of psychotic disorder and paranoid schizophrenia are not well established.” (AR

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22.) Finally, the record reflects that Plaintiff was discharged from mental health treatment

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through Foothill Family Services in March 2014 because his mother declined further

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treatment (AR 21) (discussing Exhs. 23F at 38, 47-48, 50), Plaintiff then went without any

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psychiatric treatment for nearly six months (id.), and there are no mental status examinations

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or other psychological test results during the relevant period that would support a diagnosis

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of psychosis or schizophrenia.

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In light of the foregoing, even if the ALJ had explicitly discussed the Sanchez

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Statement and the Pacific Clinics records at issue, it would have had no effect on the

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ultimate nondisability determination. Accordingly, any error is harmless and the ALJ’s

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decision must be affirmed. See Brown-Hunter, 806 F.3d at 492 (error is harmless when

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inconsequential to ultimate disability determination).

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CONCLUSION

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IT IS ORDERED that the decision of the Commissioner is AFFIRMED, and Judgment
shall be so ENTERED.

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IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this

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Memorandum Opinion and Order and the Judgment on the respective counsel for Plaintiff

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and Defendant.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATE: October 27, 2017
_________________________________
KAREN L. STEVENSON
UNITED STATES MAGISTRATE JUDGE

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