Kathryn E. Congellie v. Michael J. Astrue

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Ralph Zarefsky. The decision of the Commissioner is affirmed. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KATHRYN E. CONGELLIE,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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CASE NO. ED CV 12-02103 RZ
MEMORANDUM OPINION
AND ORDER

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The Administrative Law Judge determined that Plaintiff Kathryn Elaine

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Congielliere suffered from a severe physical impairment, but not a mental one, and that she

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was disabled for a discrete period of time due to her physical impairment. Plaintiff argues

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that the Administrative Law Judge wrongly disregarded the opinion of the physician who

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treated her mental impairment, and wrongly concluded that Plaintiff’s mental impairment

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was not severe. These two arguments are intertwined.

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The regulations do not define a “severe” impairment. Instead, they state what

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a non-severe impairment is: one that does not significantly limit physical or mental ability

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to do basic work activities. 20 C.F.R. §§ 404.1521, 416.921. The basic work activities are

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“the abilities and aptitudes necessary to do most jobs,” including various physical and

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mental activities. Id. The requirement of having a severe impairment performs a

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gatekeeping function, screening out frivolous complaints. Bowen v. Yuckert, 482 U.S. 137,

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153 (1987). In its internal procedures, the Social Security Administration assesses an

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impairment as “non-severe” if it has no more than a minimal effect on the individual’s

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ability to do basic work functions. SSR 85-28. This minimalist treatment has received the

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Courts’ imprimatur. Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988); Smolen v.

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Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Thus, the requirement that a claimant have

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a severe impairment has been transmogrified into a requirement that the claimant have an

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impairment that is not very severe at all — it simply must have more than a minimal effect

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on his or her ability to do basic work functions. When the Commissioner rests his decision

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on the failure to satisfy the severity requirement, that decision, as with any other, must rest

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on substantial evidence within the record. Smolen v. Chater, supra, 80 F.3d at 1289-90.

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The Administrative Law Judge proceeded through the so-called B criteria

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found in the regulations governing the Listing of Impairments, and the similar statements

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found in 20 C.F.R. § 404.1520a. [AR 16] He found only mild limitations in the first three

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categories — activities of daily living, social functioning, and concentration, persistence

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and pace — and no episodes of decompensation. Therefore, he determined that Plaintiff’s

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mental impairment was not severe.

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The regulations require that “[t]he decision must show the significant history,

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including examination and laboratory findings, and the functional limitations that were

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considered in reaching a conclusion about the severity of the mental impairment(s).” 20

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C.F.R. § 404.1520a(e)(4). As support for his finding that Plaintiff’s limitations were only

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mild in the first three categories, the Administrative Law Judge cited to isolated portions

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of Plaintiff’s written function report. Thus, as to activities of daily living, he referenced

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the portion of the report in which Plaintiff said that she had no difficulty with personal care

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and that she cared for pets; as to social functioning, he referenced the portion of the report

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in which Plaintiff said that she was able to shop in stores and that she went outside a couple

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time a week; and as to concentration, persistence or pace, he referenced the portion of the

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report in which Plaintiff said that she was able to complete household chores, such as the

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laundry and putting dishes into the dishwasher. [AR 16] None of this by itself can stand

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as substantial evidence.

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The Administrative Law Judge selected those portions of the function report

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that appeared to suit his conclusion, but he did not reference others. Under “Information

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About Daily Activities,” for example, Plaintiff stated, in response to the directive to

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describe what she did from the time she awoke to the time she went to bed, that she “lay

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[sic] on couch, sleep, cry.” [AR 188] She also stated that she did not care for anyone else,

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that previously she could do anything and that her mother and husband helped her in the

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care of other people or animals. As for social functioning, Plaintiff did say that she

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shopped in stores, but, in response to the question “how often,” she appeared to say once

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a month [AR 191], and, when asked directly whether she spent time with others, she said

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“no;” in terms of places she visited, she listed the doctor and the post office, but only when

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needed. [AR 192] As for concentration, persistence and pace, it is hard to see how doing

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laundry and putting dishes into a washer are activities that demonstrate these traits in a way

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that could be generalized to the workplace but, even if so, there were directly contrary

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statements in this same report: Plaintiff said that she needed reminders to do things [AR

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190], and that she could not pay bills, handle a savings account or use a checkbook/money

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orders because she did not have the patience or concentration to do so. [AR 191]

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It is error for the Administrative Law Judge to misstate or ignore competent

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evidence in order to justify a conclusion. Gallant v. Heckler, 753 F.2d 1450, 1456 (9th Cir.

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1984). By the same token, the Court must evaluate both the evidence that supports and the

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evidence that detracts from the Administrative Law Judge’s decision. Gonzalez v. Sullivan,

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914 F.2d 1197, 1200 (9th Cir. 1990). One cannot read the function report in its entirety

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and come away with the conclusions that the Administrative Law Judge reached based on

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portions within that report.

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If the function report had been the sole evidentiary matter referenced in the

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decision, therefore, the Court would be obligated to reverse and send the matter back for

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further adjudication as to Plaintiff’s mental impairment. But the Administrative Law Judge
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also had before him other evidence, including the reports of two examining physicians and

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one treating physician. The treating physician opined that Plaintiff could perform very

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little in the way of work-like functions [AR 445-46], while each of the examining

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physicians found that Plaintiff understated her capabilities and embellished her maladies

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[AR239, 243-44; AR 498]. The Administrative Law Judge referred to all three physicians,

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and preferred the opinions of the examining physicians over those of the treating physician.

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[AR 15-17]

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The opinion of a treating physician usually is given greater weight than the

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opinion of other physicians. Aukland v. Massanari, 257 F.3d 1033, 1036 (9th Cir. 2001).

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However, in Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007), the Court of Appeals described

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the interaction between an opinion from a consultant and an opinion from a treating

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physician:

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When an examining physician relies on the same clinical

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findings as a treating physician, but differs only in his or her

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own conclusions, the conclusions of the examining physician are

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not “substantial evidence.”

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495 F.3d at 632. The Court went on to contrast that situation with the situation where the

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examining physician made his own independent findings, in which case the findings can

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stand as substantial evidence. The Court then explained that “[i]ndependent clinical

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findings can be either (1) diagnoses that differ from those offered by another physician and

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that are supported by substantial evidence . . . or (2) findings based on objective medical

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tests that the treating physician has not herself considered . . . .” Id. (citations omitted).

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Both the examining physicians here administered tests, and obtained results,

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that the treating physician did not see. Even though their examinations were separated by

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a period of two years, each examining physician also concluded that Plaintiff was either

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overstating her case or malingering. Each reached different diagnoses from the treating
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physician, and each suggested that Plaintiff had the capability to function in the workplace,

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in some places directly contrary to what Plaintiff had said in her written function report.

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[AR 500] While the treating physician’s opinion usually is owed deference, in this case

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the Administrative Law Judge acted within his authority in preferring the opinions of the

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consultants instead.

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Those opinions, in turn, stand as substantial evidence supporting the finding

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of non-severity as to Plaintiff’s mental condition. They do differ, of course, from

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Plaintiff’s own statements as set forth in her written function report, but the Administrative

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Law Judge was not required to accept those statements in the face of the contrary medical

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evidence.
In accordance with the foregoing, the decision of the Commissioner is

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affirmed.

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DATED: October 1, 2013

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RALPH ZAREFSKY
UNITED STATES MAGISTRATE JUDGE

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