Joseph L. Smith v. Commissioner of SSA

Filing 63

DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (wr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No. 5:14-CV-01911 (VEB)

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JOSEPH L. SMITH,
DECISION AND ORDER

Plaintiff,

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vs.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

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I. INTRODUCTION

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In May of 2011, Plaintiff Joseph L. Smith applied for Disability Insurance

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Benefits under the Social Security Act. The Commissioner of Social Security denied

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the application. Plaintiff, represented by Kenneth W. Drake, Esq., commenced this

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DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)

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action seeking judicial review of the Commissioner’s denial of benefits pursuant to

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42 U.S.C. §§ 405 (g) and 1383 (c)(3).

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The parties consented to the jurisdiction of a United States Magistrate Judge.

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(Docket No. 8, 52). On July 6, 2016, this case was referred to the undersigned

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pursuant to General Order 05-07. (Docket No. 54).

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II. BACKGROUND

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Plaintiff applied for benefits on May 31, 2011, alleging disability beginning

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August 1, 2009, due to various impairments. (T at 19).1 The application was denied

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initially and on reconsideration.

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Administrative Law Judge (“ALJ”). On December 6, 2012, a hearing was held

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before ALJ Tamara Turner-Jones. (T at 31). Plaintiff appeared with his attorney and

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testified. (T at 34-52). The ALJ also received testimony from Gloria Lasoff, a

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vocational expert (T at 52-56).

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Plaintiff requested a hearing before an

On December 28, 2012, the ALJ issued a written decision denying the

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application for benefits.

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Commissioner’s final decision on July 18, 2014, when the Appeals Council denied

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Plaintiff’s request for review. (T at 1-6).

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(T at 16-30).

The ALJ’s decision became the

Citations to (“T”) refer to the administrative record at Docket No. 16
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On September 14, 2014, Plaintiff, acting by and through his counsel, filed this

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action seeking judicial review of the Commissioner’s decision. (Docket No. 1). The

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Commissioner interposed an Answer on February 12, 2015. (Docket No. 15). The

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parties filed a Joint Stipulation on May 23, 2016. (Docket No. 51). Pursuant to an

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Order of this Court, the parties filed supplemental memoranda of law in October of

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2016. (Docket Nos. 61, 62).

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After reviewing the pleadings, Joint Stipulation, supplemental memoranda of

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law, and administrative record, this Court finds that the Commissioner’s decision

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should be affirmed and this case should be dismissed.

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III. DISCUSSION
A.

Sequential Evaluation Process

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The Social Security Act (“the Act”) defines disability as the “inability to

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engage in any substantial gainful activity by reason of any medically determinable

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physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than twelve

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months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a

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claimant shall be determined to be under a disability only if any impairments are of

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such severity that he or she is not only unable to do previous work but cannot,

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considering his or her age, education and work experiences, engage in any other

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substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A),

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1382c(a)(3)(B). Thus, the definition of disability consists of both medical and

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vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001).

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The Commissioner has established a five-step sequential evaluation process

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for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step

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one determines if the person is engaged in substantial gainful activities. If so,

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benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the

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decision maker proceeds to step two, which determines whether the claimant has a

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medically severe impairment or combination of impairments. 20 C.F.R. §§

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404.1520(a)(4)(ii), 416.920(a)(4)(ii).

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If the claimant does not have a severe impairment or combination of

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impairments, the disability claim is denied. If the impairment is severe, the

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evaluation proceeds to the third step, which compares the claimant’s impairment(s)

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with a number of listed impairments acknowledged by the Commissioner to be so

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severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii),

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416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or

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equals one of the listed impairments, the claimant is conclusively presumed to be

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disabled. If the impairment is not one conclusively presumed to be disabling, the

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evaluation proceeds to the fourth step, which determines whether the impairment

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prevents the claimant from performing work which was performed in the past. If the

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claimant is able to perform previous work, he or she is deemed not disabled. 20

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C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual

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functional capacity (RFC) is considered. If the claimant cannot perform past relevant

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work, the fifth and final step in the process determines whether he or she is able to

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perform other work in the national economy in view of his or her residual functional

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capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v),

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416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987).

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The initial burden of proof rests upon the claimant to establish a prima facie

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case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th

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Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden

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is met once the claimant establishes that a mental or physical impairment prevents

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the performance of previous work. The burden then shifts, at step five, to the

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Commissioner to show that (1) plaintiff can perform other substantial gainful

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activity and (2) a “significant number of jobs exist in the national economy” that the

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claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

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B.

Standard of Review

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Congress has provided a limited scope of judicial review of a Commissioner’s

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decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision,

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made through an ALJ, when the determination is not based on legal error and is

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supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir.

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1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999).

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“The [Commissioner’s] determination that a plaintiff is not disabled will be

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upheld if the findings of fact are supported by substantial evidence.” Delgado v.

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Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial

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evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119

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n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d

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599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a

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reasonable mind might accept as adequate to support a conclusion.” Richardson v.

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Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and

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conclusions as the [Commissioner] may reasonably draw from the evidence” will

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also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review,

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the Court considers the record as a whole, not just the evidence supporting the

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decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir.

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1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)).

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It is the role of the Commissioner, not this Court, to resolve conflicts in

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evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational

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interpretation, the Court may not substitute its judgment for that of the

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Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th

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Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be

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set aside if the proper legal standards were not applied in weighing the evidence and

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making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d

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432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the

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administrative findings, or if there is conflicting evidence that will support a finding

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of either disability or non-disability, the finding of the Commissioner is conclusive.

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Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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C.

Commissioner’s Decision

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The ALJ determined that Plaintiff met the insured status requirements of the

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Social Security Act through March 31, 2010 (the “date last insured”) and did not

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engage in substantial gainful activity between August 1, 2009 (the alleged onset

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date) and, March 31, 2010, the date last insured. (T at 21). The ALJ found that

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Plaintiff’s hypertension, hernias, and diverticulitis were “severe” impairments under

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the Act. (Tr. 21).

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However, the ALJ concluded that, as of the date last insured, Plaintiff did not

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have an impairment or combination of impairments that met or medically equaled

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one of the impairments set forth in the Listings. (T at 22).

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The ALJ determined that, as of the date last insured, Plaintiff retained the

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residual functional capacity (“RFC”) to perform a range of light work as defined in

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20 CFR § 416.967 (b), as follows: he can lift/carry 20 pounds occasionally and 10

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pounds frequently; stand/walk for 6 hours in an 8-hour workday with regular breaks;

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sit for 6 hours in an 8-hour workday with regular breaks; unlimited pushing/pulling;

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frequent kneeling, stooping, crouching, crawling; frequent climbing ramps and

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stairs; occasional climbing ladders, ropes, or scaffolds; no restrictions on fine or

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gross manipulation with hands; must avoid pulmonary irritants; can maintain

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concentration, attention, persistence, pace in at least 2 hour blocks of time to

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complete a normal workday; can interact and respond appropriately to co-workers,

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supervisors, and the public; can perform detailed and complex tasks; must be

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without 50 feet of a restroom and have it accessible to him. (T at 23).
The ALJ found that, as of the date last insured, Plaintiff could perform his past

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relevant work as vice president of a film studio. (T at 25).

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found that Plaintiff was not entitled to benefits under the Social Security Act from

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August 1, 2009 (the alleged onset date) through March 31, 2010 (the date last

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insured). (T at 26). As noted above, the ALJ’s decision became the Commissioner’s

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final decision when the Appeals Council denied Plaintiff’s request for review. (T at

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1-6).

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As such, the ALJ

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D.

Disputed Issues

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The briefing in this case left much to be desired. The portion of the Joint

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Stipulation drafted by Plaintiff’s counsel used very small font, narrow line spacing,

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excessive bolding and block quotations, and very disjointed argumentation. The

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sections prepared by the Commissioner’s counsel were conclusory and consisted of

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significant “boilerplate” citations to general legal authority. The quality of the

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briefing did not improve much, even after this Court issued an Order directing

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supplemental memoranda of law.

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carefully consider the record and discern the arguments of counsel, as amplified by

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Nevertheless, this Court has endeavored to

the supplemental briefing.
IV. ANALYSIS

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An ALJ’s assessment of a claimant’s residual functional capacity (“RFC”)

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must be upheld if the ALJ has applied the proper legal standard and substantial

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evidence in the record supports the decision. Bayliss v. Barnhart, 427 F.3d 1211,

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1217 (9th Cir. 2005). The ALJ must consider all the medical evidence in the record

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and “explain in [her] decision the weight given to . . . [the] opinions from treating

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sources, nontreating sources, and other nonexamining sources.” 20 C.F.R. §

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404.1527(e)(2)(ii); see also § 404.1545(a)(1).

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In determining a claimant’s RFC, an ALJ considers those limitations for

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which there is support in the record and need not consider properly rejected

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evidence. See Bayliss, 427 F.3d at 1217.

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In the present case, the period at issue (the “relevant time period”) spans eight

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months – August 1, 2009 (the alleged onset date) through March 31, 2010 (the date

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last insured). The parties agree that Plaintiff is not entitled to benefits unless he

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became disabled, as defined under the Social Security Act, prior to the date last

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insured.

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The ALJ concluded that Plaintiff retained the RFC to perform his past relevant

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work through the date last insured. (T at 25). Plaintiff worked as vice president of

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sales for a film company until 2009, when he was laid off. (T at 23). His primary

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allegation of disability relates to diverticulitis.

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colostomy bag, which sometimes leaks fecal matter. (T at 23-24).

In particular, Plaintiff wears a

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In September of 2009 (which is during the relevant time period), Plaintiff

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sought treatment for painful urination and feces in his urine. (T at 45, 48). During

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late 2009 and early 2010, he was treated several times for complaints of painful

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urination. (T at 1037, 1039-40, 1041-42). Plaintiff was hospitalized on March 18,

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2010, where he was diagnosed with sepsis, diverticulitis with contained perforations,

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and renal failure. (T at 783). Abdominal and pelvis CT scans were significant in

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their finding of diverticulitis and issues with Plaintiff’s colon. (T at 783).

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On March 20, 2010, Dr. Brad Wolfson removed a portion of Plaintiff’s

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descending colon and found feces entering the bladder from an abnormal opening in

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the colon. (T at 792). “[E]xtensive fibrosis” was noted along the sigmoid colon. (T

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at 795). Post-surgical pathology noted evidence of “extensive diverticular disease

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with diverticultis” and “severe acute and chronic inflammation and hemorrhage

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consistent with fistula.” (T at 80).

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In November of 2010 (after the relevant time period), Plaintiff experienced

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severe symptoms, including abdominal sepsis, necrotic bowel, respiratory distress,

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and atrial fibrillation. (T at 572, 934, 941, 947-48). He was in a coma for an

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extended period. (T at 572).
Plaintiff also alleges disabling mental health symptoms.

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Plaintiff had an

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extensive history regarding mental illness prior to the alleged onset date, including

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nine hospitalizations in 2008. (T at 222, 226, 230, 239, 241, 248, 251, 259, 260-61,

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264, 266, 272, 275). He was assigned Global Assessment of Functioning (“GAF”)

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scores2 of 15, 30, 40, and 50 (T at 222, 224, 228, 232, 237, 263).3

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“A GAF score is a rough estimate of an individual's psychological, social, and occupational
functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161,
1164 n.2 (9th Cir. 1998).
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DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)

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A CT scan of the brain taken in March of 2011, after the date last insured,

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showed moderate cerebral atrophy with findings consistent with more remote

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ischemic change involving frontoparitel regions bilaterally left greater than right. (T

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at 613).

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The ALJ was faced with the task of determining whether Plaintiff was

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disabled during the relevant 8-month period. The ALJ provided a detailed summary

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and analysis of the evidence. She noted that Plaintiff continued participating in

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bodybuilding activities after the date last insured and stated that he would have

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worked during the relevant time period if work had been available. (T at 24). The

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ALJ noted that a significant majority of the evidence of alleged disability related to

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the period after the relevant time period. (T at 24).

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The record shows severe symptoms prior to the alleged onset date (primarily

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mental health symptoms) and significant symptoms after the date last insured

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(primary related to diverticulitis and bowel issues), but almost no actual evidence of

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disabling symptoms during the relevant time period.

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“A GAF of 15 means ‘[s]ome danger of hurting self or others (e.g., suicide attempts without
clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain
minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e.g., largely
incoherent or mute).’” Springfield v. Singh, No. CV 07-5059, 2012 U.S. Dist. LEXIS 88498, at
*64 n. 15 (C.D. Cal. Apr. 30, 2012)(citation omitted). “A GAF score of 31-40 indicates some
impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or
irrelevant) or major impairment in several areas such as work or school, family relations,
judgment, thinking or mood.” Tagin v. Astrue, No. 11-cv-05120, 2011 U.S. Dist. LEXIS 136237 at
*8 n.1 (W.D.Wa. Nov. 28, 2011)(citations omitted).

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DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)

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This Court issued a specific Order directing Plaintiff to provide citations to

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evidence showing disability during the relevant period or, in the alternative,

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evidence that conditions or treatments that post-dated the relevant time period

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nevertheless established disability during that period.

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Plaintiff responded by essentially reiterating the extensive evidence that post-

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dates and pre-dates the relevant time period. Although that evidence is troubling and

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causes this Court to sympathize with Plaintiff’s plight, it does not establish a basis to

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disturb the ALJ’s conclusion that there was insufficient evidence of disabling

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limitations during the relevant time period. Indeed, there is evidence supporting the

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ALJ’s conclusion that Plaintiff was not disabled, as defined under the Social

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Security Act, during this period.

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significant objective findings ….” (T at 24, 1037-38).

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hospitalized and had surgery in March of 2010, shortly after his surgery, he

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“reported no complaints, … was alert and oriented” and an examination was

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“unremarkable other than his blood pressure.” (T at 25, 733, 736, 738-38, 744).

A December 2009 examination noted “no
Although Plaintiff was

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With regard to his mental health impairments, Plaintiff cites to extensive

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evidence of serious issues that pre-dated the relevant time period, but no evidence

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demonstrating disabling mental health limitations during the relevant time period.

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The fact that Plaintiff resumed his employment after the 2008 period of significant

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mental health symptoms indicates that those symptoms were not disabling after that

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period.

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Plaintiff notes, correctly, that the mere fact that evidence was generated before

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or after the date last insured does not render such evidence per se irrelevant to

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determining disability during the relevant time period. However, the ALJ offered a

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detailed rationale, rooted in the evidence, as to why the evidence from before and

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after the relevant time period did not establish disabling limitations during the

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relevant time period.

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Although provided with more than one opportunity, Plaintiff has not

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articulated a cogent case, supported by citations to the record, to establish that the

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ALJ erred in this regard.

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differently is not enough. It is the role of the Commissioner, not this Court, to

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resolve conflicts in evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir.

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1989); Richardson, 402 U.S. at 400. If the evidence supports more than one rational

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interpretation, this Court may not substitute its judgment for that of the

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Commissioner. Allen v. Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial

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evidence to support the administrative findings, or if there is conflicting evidence

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that will support a finding of either disability or nondisability, the Commissioner’s

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finding is conclusive. Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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The fact that Plaintiff may interpret the evidence

DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)

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Here, the ALJ’s decision was supported by substantial evidence and must therefore

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be sustained. See Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that

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if evidence reasonably supports the Commissioner’s decision, the reviewing court

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must uphold the decision and may not substitute its own judgment).

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This Court expresses concern and sympathy for Plaintiff, who appears to have

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experienced a serious mental health episode prior to the alleged onset date and who

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definitely has significant health challenges after the date last insured. However, this

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Court’s review is constrained by the deferential standard of administrative review

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and by the clear requirement of establishing disability during a time period defined

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by the applicable law.
V.

CONCLUSION

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After carefully reviewing the administrative record, this Court finds

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substantial evidence supports the Commissioner’s decision, including the objective

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medical evidence and supported medical opinions. It is clear that the ALJ thoroughly

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examined the record, afforded appropriate weight to the medical evidence, including

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the assessments of the examining medical providers and the non-examining

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consultants, and afforded the subjective claims of symptoms and limitations an

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appropriate weight when rendering a decision that Plaintiff is not disabled. This

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Court finds no reversible error and because substantial evidence supports the

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DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)

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Commissioner’s decision, the Commissioner is GRANTED summary judgment and

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that Plaintiff’s motion for judgment summary judgment is DENIED.

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VI. ORDERS

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IT IS THEREFORE ORDERED that:

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Judgment be entered AFFIRMING the Commissioner’s decision and

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DISMISSING this action, and it is further ORDERED that
The Clerk of the Court file this Decision and Order and serve copies upon
counsel for the parties.
DATED this 31st day of March, 2017,
/s/Victor E. Bianchini
VICTOR E. BIANCHINI
UNITED STATES MAGISTRATE JUDGE

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DECISION AND ORDER – SMITH v COLVIN 5:14-CV-01911 (VEB)