Lisa Dawn Gitchel v. Carolyn W Colvin

Filing 21

MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 LISA DAWN GITCHEL, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. EDCV 13-1136-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income (“SSI”). 21 The parties consented to the jurisdiction of the undersigned U.S. 22 Magistrate Judge under 28 U.S.C. § 636(c). This matter is before 23 the Court on the parties’ Joint Stipulation, filed May 12, 2014, 24 which the Court has taken under submission without oral argument. 25 For the reasons stated below, the Commissioner’s decision is 26 affirmed and this action is dismissed. 27 28 1 1 II. BACKGROUND 2 On August 11, 2009, Plaintiff filed an application for SSI, 3 alleging a disability onset date of February 2, 2002. 4 The application was denied on January 13, 2010. (AR 48.) (AR 20.) 5 Plaintiff requested reconsideration (AR 24), which also was 6 denied (AR 25). She then requested review by an ALJ (AR 32), and 7 a hearing was held on October 17, 2011 (AR 292). Plaintiff, who 8 was represented by counsel, testified at the hearing, as did a 9 vocational expert. (Id.) In a written decision issued November 10 17, 2011, the ALJ determined that Plaintiff had no severe 11 impairments and thus was not disabled. (AR 11-17.) On May 15, 12 2013, the Appeals Council denied her request for review. 13 6.) (AR 4- This action followed. 14 III. STANDARD OF REVIEW 15 Under 42 U.S.C. § 405(g), a district court may review the 16 Commissioner’s decision to deny benefits. The ALJ’s findings and 17 decision should be upheld if they are free of legal error and 18 supported by substantial evidence based on the record as a whole. 19 Id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 20 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence 21 means such evidence as a reasonable person might accept as 22 adequate to support a conclusion. Richardson, 402 U.S. at 401; 23 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It 24 is more than a scintilla but less than a preponderance. 25 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 26 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 27 substantial evidence supports a finding, the reviewing court 28 “must review the administrative record as a whole, weighing both 2 1 the evidence that supports and the evidence that detracts from 2 the Commissioner’s conclusion.” 3 720 (9th Cir. 1996). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 4 either affirming or reversing,” the reviewing court “may not 5 substitute its judgment” for that of the Commissioner. Id. at 6 720-21. 7 IV. THE EVALUATION OF DISABILITY 8 People are “disabled” for purposes of receiving Social 9 Security benefits if they are unable to engage in any substantial 10 gainful activity owing to a physical or mental impairment that is 11 expected to result in death or which has lasted, or is expected 12 to last, for a continuous period of at least 12 months. 42 13 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 14 (9th Cir. 1992). 15 A. 16 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 17 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 18 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 19 amended Apr. 9, 1996). In the first step, the Commissioner must 20 determine whether the claimant is currently engaged in 21 substantial gainful activity; if so, the claimant is not disabled 22 and the claim must be denied. § 416.920(a)(4)(i). If the 23 claimant is not engaged in substantial gainful activity, the 24 second step requires the Commissioner to determine whether the 25 claimant has a “severe” impairment or combination of impairments 26 significantly limiting her ability to do basic work activities; 27 if not, a finding of not disabled is made and the claim must be 28 denied. § 416.920(a)(4)(ii). If the claimant has a “severe” 3 1 impairment or combination of impairments, the third step requires 2 the Commissioner to determine whether the impairment or 3 combination of impairments meets or equals an impairment in the 4 Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part 5 404, Subpart P, Appendix 1; if so, disability is conclusively 6 presumed and benefits are awarded. 7 § 416.920(a)(4)(iii). If the claimant’s impairment or combination of impairments 8 does not meet or equal one in the Listing, the fourth step 9 requires the Commissioner to determine whether the claimant has 10 sufficient residual functional capacity (“RFC”)1 to perform her 11 past work; if so, she is not disabled and the claim must be 12 denied. § 416.920(a)(4)(iv). The claimant has the burden of 13 proving she is unable to perform past relevant work. 14 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 15 case of disability is established. Id. If that happens or if 16 the claimant has no past relevant work, the Commissioner bears 17 the burden of establishing that the claimant is not disabled 18 because she can perform other substantial gainful work available 19 in the national economy. § 416.920(a)(4)(v). That determination 20 comprises the fifth and final step in the sequential analysis. 21 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 22 B. 23 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 24 any substantial gainful activity since August 11, 2009. (AR 13.) 25 At step two, he concluded that Plaintiff had “medically 26 27 28 1 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 4 1 determinable” impairments of “mood disorder, not otherwise 2 specified, and history of irritable bowel syndrome” but that 3 neither was severe. (Id.) 4 severe in combination. He also concluded that they were not (Id.) Because Plaintiff had no severe 5 impairment or combination of impairments, the ALJ determined at 6 step two of the analysis that she was not disabled and did not go 7 on to the other steps in the evaluation process. (AR 17.) 8 V. DISCUSSION 9 The ALJ Did Not Err in Finding Plaintiff’s Mood 10 Disorder Not Severe 11 Plaintiff challenges only the ALJ’s determination that she 12 failed to establish a severe impairment of mood disorder. 13 Stip. at 3-6.)2 (J. She argues that he (1) applied the wrong law and 14 (2) erred in finding that nonseverity was “clearly established.” 15 (Id. at 4-5.) 16 17 A. Applicable law At step two of the sequential evaluation process, the 18 claimant has the burden to show that she has one or more “severe” 19 medically determinable impairments that can be expected to result 20 in death or last for a continuous period of at least 12 months. 21 22 23 24 25 26 27 28 2 Although Plaintiff cites law for the proposition that the ALJ must consider whether impairments are severe in combination as well as separately (see J. Stip. at 3-4), she nowhere even mentions her irritable bowel syndrome. Accordingly, the Court examines only the ALJ’s findings concerning her mental impairment. In any event, nothing in the record other than Plaintiff’s own testimony showed any functional limitation during the relevant time period stemming from Plaintiff’s IBS, and the ALJ expressly found Plaintiff not credible, a finding she has not challenged on appeal. Thus, because she suffered no functional limitations from the IBS, considering it in combination with the mood disorder would not have resulted in a severity finding. 5 1 See Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (claimant 2 bears burden at step two); Celaya v. Halter, 332 F.3d 1177, 1180 3 (9th Cir. 2003) (same); 20 C.F.R. § 416.908 (defining “physical 4 or mental impairment”); § 416.920(a)(4)(ii) (claimants not 5 disabled at step two if they “do not have a severe medically 6 determinable physical or mental impairment that meets the 7 duration requirement”). A medically determinable impairment must 8 be established by signs, symptoms, and laboratory findings; it 9 cannot be based solely on a claimant’s own statement of her 10 symptoms. § 416.908; Ukolov v. Barnhart, 420 F.3d 1002, 1004-05 11 (9th Cir. 2005); SSR 96–4p, 1996 WL 374187, at *1 (July 2, 1996); 12 see also 42 U.S.C. § 423(d)(3) (“physical or mental impairment” 13 “results from anatomical, physiological, or psychological 14 abnormalities which are demonstrable by medically acceptable 15 clinical and laboratory diagnostic techniques”). A “medical 16 sign” is “an anatomical, physiological, or psychological 17 abnormality that can be shown by medically acceptable clinical 18 diagnostic techniques.” Ukolov, 420 F.3d at 1005 (quoting SSR 19 96-4p, 1996 WL 374187, at *1 n.2 (internal quotation marks 20 omitted)); accord 20 C.F.R. § 416.928(b). 21 To establish that a medically determinable impairment is 22 “severe,” moreover, the claimant must show that it “significantly 23 limits [her] physical or mental ability to do basic work 24 activities.”3 § 416.920(c); accord § 416.921(a). “An impairment 25 26 27 28 3 “Basic work activities” include, among other things, “[u]nderstanding, carrying out, and remembering simple instructions”; using judgment; “[r]esponding appropriately to supervision, co-workers and usual work situations”; and “[d]ealing with changes in a routine work setting.” 6 1 or combination of impairments may be found not severe only if the 2 evidence establishes a slight abnormality that has no more than a 3 minimal effect on an individual’s ability to work.” Webb v. 4 Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (emphasis in 5 original, internal quotation marks omitted); see also Smolen v. 6 Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (“[T]he step-two 7 inquiry is a de minimis screening device to dispose of groundless 8 claims.”). Thus, a court must determine whether an ALJ had 9 substantial evidence to find that the record clearly established 10 the claimant did not have a medically severe impairment or 11 combination of impairments. 12 13 14 B. Webb, 433 F.3d at 687. Analysis 1. The ALJ used the correct legal standard Plaintiff contends that the ALJ erred in rejecting her claim 15 of a severe mental impairment as not “significantly” limiting her 16 “function [so as] to be considered severe.” (J. Stip. at 4.) 17 She argues that the actual test is whether the impairment “more 18 than minimally affects” the claimant’s abilities. (Id.) In 19 fact, both are correct, and the ALJ recognized as much. 20 Section 416.921(a) provides that an impairment is not severe 21 “if it does not significantly limit your physical or mental 22 ability to do basic work activities.” In 1985, because different 23 courts were interpreting “significant” in different ways, the 24 Social Security Administration issued a “policy clarification,” 25 stating that for an impairment to be nonsevere, it must have “no 26 more than a minimal effect” on the claimant’s ability to do basic 27 28 § 416.921(b); accord Yuckert, 482 U.S. at 141. 7 1 work activities. SSR 85-28, 1985 WL 56856, at *3 (Jan. 1, 1985); 2 see also Webb, 433 F.3d at 686. Thus, SSR 85-28 and its progeny 3 “clarify” the standard in § 416.921(a), which remains the law. 4 Although the ALJ most often cited the language from 5 § 416.921(a), he also recognized that “[a]n impairment or 6 combination of impairments is ‘not severe’ when medical and other 7 evidence establish only a slight abnormality or a combination of 8 slight abnormalities that would have no more than a minimal 9 effect on an individual’s ability to work.” 10 85-28).) (AR 12 (citing SSR Accordingly, the ALJ did not apply the wrong legal 11 standard. 12 13 2. Nonseverity was clearly established The ALJ determined that Plaintiff’s mood disorder was not 14 severe because it was well controlled with medication. 15 16.) (AR 15- He also noted that the record contained “essentially 16 nothing in terms of formal mental status examinations with formal 17 diagnoses and global assessment of functioning (GAF) scores” 18 demonstrating any mental impairment. 19 (AR 15.) As the ALJ noted, Plaintiff’s treating doctor routinely 20 remarked that she was “doing well” on her prescribed medications. 21 (See AR 16; see, e.g., AR 191, 195, 197, 198, 202, 205, 208, 209, 22 243, 245-47; see also AR 235 (treating doctor’s request for 23 reauthorization of services, noting that Plaintiff’s mood was 24 “stable” when on medication).) Impairments that are effectively 25 controlled with medication or other medical treatment are not 26 severe. See Sample v. Schweiker, 694 F.2d 639, 642-43 (9th Cir. 27 1982) (mental impairment that was “amenable to control” and 28 “minimized” with medication not disabling); Kassebaum v. Comm’r 8 1 of Soc. Sec., 420 F. App’x 769, 772 (9th Cir. 2011) (ALJ did not 2 err in finding that carpal tunnel syndrome was not severe 3 impairment because wrist operation had been successful, “at least 4 as much as necessary to ensure that the ailment was not so severe 5 as to interfere significantly with [claimant’s] ability to 6 work”). Indeed, as the ALJ found, Plaintiff’s “medication 7 regimen has remained essentially unchanged for years.” (AR 16.) 8 Although Plaintiff contends that in February 2010 Wellbutrin and 9 Ambien were “added” to her prescribed medicines (J. Stip. at 5 10 (citing AR 193)), in fact she was taking both of them in December 11 2009 (AR 195) and June 2009 (AR 198), the latter before the 12 relevant time period for which Plaintiff could be entitled to 13 benefits, and had been taking them off and on for years (see, 14 e.g., AR 201, 208, 286). Although Plaintiff is correct that the 15 dosages of her drugs were occasionally tinkered with (see J. 16 Stip. at 5 and cited AR pages), the medicines themselves rarely 17 changed – most likely because Plaintiff was almost always “doing 18 well.” In any event, as Plaintiff acknowledged upon being 19 questioned by the examining psychiatrist, she sometimes did not 20 take all her medicine. (AR 172; see also AR 171 (referring to 21 “history of non-compliance with treatment”).) Thus, any changes 22 in her dosages may have been the result of her failing to take 23 all her prescribed medicines. 24 The ALJ also did not err in noting that there existed in the 25 record virtually none of the test results or diagnostic findings 26 necessary to support a determination of impairment severity, 27 which cannot be based on subjective symptoms alone. 28 420 F.3d at 1004-05. See Ukolov, The ALJ noted that the one low GAF score in 9 1 the record – a 40 recorded in March 2008 (AR 239), before the 2 date as of which benefits could be awarded – “was inconsistent 3 with the history of unremarkable monthly sessions for medication 4 refills” and therefore rejected it (AR 15). He did not err in 5 doing so, because other than an occasional indication that 6 Plaintiff reported she was feeling “depressed” or was “not 7 sleeping” (see, e.g. AR 193, 194, 201, 203, 207, 212, 244), her 8 treating psychiatrist’s notes routinely indicated that she was 9 “doing well,” as noted above.4 No treating doctor ever ascribed 10 any specific functional limitations to Plaintiff as a result of 11 her alleged mental impairment. The examining consultant 12 psychiatrist, on the other hand, conducted diagnostic tests and 13 affirmatively found no limitations in any area of functioning (AR 14 176), a finding confirmed by the reviewing consultant (AR 187); 15 the ALJ gave their opinions “greater weight” (presumably than the 16 GAF score of 40) (AR 16), a finding Plaintiff has not challenged. 17 The ALJ did not err in concluding that the record clearly 18 established that Plaintiff’s mood disorder was not severe. 19 When, as here, substantial evidence supported the ALJ’s 20 finding that an impairment was not severe, this Court may not 21 substitute its judgment for that of the Commissioner. See 22 Reddick, 157 F.3d at 720-21. 23 24 25 26 27 28 4 At the same time he assessed a GAF of 40, which indicates impaired functioning, Plaintiff’s doctor noted that she was “reasonably expected to benefit and improve.” (AR 238.) In any event, the most recent edition of the DSM “dropped” the GAF scale, citing its lack of conceptual clarity and questionable psychological measurements in practice. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 16 (5th ed. 2013). 10 1 Remand is not warranted.5 2 VI. CONCLUSION 3 Consistent with the foregoing, and pursuant to sentence four 4 of 42 U.S.C. § 405(g),6 IT IS ORDERED that judgment be entered 5 AFFIRMING the decision of the Commissioner and dismissing this 6 action with prejudice. IT IS FURTHER ORDERED that the Clerk 7 serve copies of this Order and the Judgment on counsel for both 8 parties. 9 10 11 DATED: June 11, 2014 12 _____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 5 Even had the ALJ erred in finding Plaintiff’s mood disorder 21 not severe, any error was likely harmless because the vocational 22 expert testified that someone with Plaintiff’s characteristics 23 24 25 26 27 28 and who could perform only simple, repetitive tasks with occasional public contact could still work at least three identified jobs. (See AR 317.) Thus, even if the ALJ had continued through the five-step sequential analysis, his finding that Plaintiff was not disabled would not likely have changed. 6 This sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 11

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