Susana Malig Mangune v. Carolyn W. Colvin

Filing 21

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, serve copies upon counsel for the parties, and CLOSE this case. (wr)

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1 O 2 3 4 UNITED STATES DISTRICT COURT 5 CENTRAL DISTRICT OF CALIFORNIA 6 Case No. 5:16-CV-00632 (VEB) 7 8 SUSANA MALIG MANGUNE, DECISION AND ORDER Plaintiff, 9 10 vs. 11 NANCY BERRYHILL, Acting Commissioner of Social Security, 12 Defendant. 13 I. INTRODUCTION 14 15 In December of 2014, Plaintiff Susana Malig Mangune applied for Disability 16 Insurance benefits and Supplemental Security Income benefits under the Social 17 Security Act. The Commissioner of Social Security denied the applications.1 18 1  On January 23, 2017, Nancy Berryhill took office as Acting Social Security Commissioner. The 19 Clerk of the Court is directed to substitute Acting Commissioner Berryhill as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure. 20 1 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 Plaintiff, by and through her attorney, Lawrence D. Rohlfing, Esq. 2 commenced this action seeking judicial review of the Commissioner’s denial of 3 benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 11, 12). On February 17, 2017, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 19). 7 8 II. BACKGROUND 9 Plaintiff applied for Disability Insurance benefits and SSI benefits on 10 December 19, 2014, alleging disability beginning June 19, 2013. (T at 164-67).2 11 The applications were denied initially and on reconsideration. Plaintiff requested a 12 hearing before an Administrative Law Judge (“ALJ”). 13 On June 12, 2015, a hearing was held before ALJ Dante Alegra. (T at 45). 14 Plaintiff appeared with an attorney and testified. (T at 49-65). 15 received testimony from Victoria Ray, a vocational expert. (T at 66-69). 16 17 The ALJ also On September 2, 2015, the ALJ issued a written decision denying the applications for benefits. (T at 18-43). The ALJ’s decision became the 18 19 20 2  Citations to (“T”) refer to the administrative record at Docket No. 17. 2 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 Commissioner’s final decision on February 4, 2016, when the Appeals Council 2 denied Plaintiff’s request for review. (T at 1-7). 3 On April 6, 2016, Plaintiff, acting by and through her counsel, filed this action 4 seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 1). 5 The Commissioner interposed an Answer on August 31, 2016. (Docket No. 16). 6 The parties filed a Joint Stipulation on November 30, 2016. (Docket No. 18). 7 After reviewing the pleadings, Joint Stipulation, and administrative record, 8 this Court finds that the Commissioner’s decision must be affirmed and this case be 9 dismissed. 10 11 III. DISCUSSION A. Sequential Evaluation Process 12 The Social Security Act (“the Act”) defines disability as the “inability to 13 engage in any substantial gainful activity by reason of any medically determinable 14 physical or mental impairment which can be expected to result in death or which has 15 lasted or can be expected to last for a continuous period of not less than twelve 16 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 17 claimant shall be determined to be under a disability only if any impairments are of 18 such severity that he or she is not only unable to do previous work but cannot, 19 considering his or her age, education and work experiences, engage in any other 20 3 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 2 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 3 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 4 The Commissioner has established a five-step sequential evaluation process 5 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 6 one determines if the person is engaged in substantial gainful activities. If so, 7 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 8 decision maker proceeds to step two, which determines whether the claimant has a 9 medically severe impairment or combination of impairments. 20 C.F.R. §§ 10 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 11 If the claimant does not have a severe impairment or combination of 12 impairments, the disability claim is denied. If the impairment is severe, the 13 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 14 with a number of listed impairments acknowledged by the Commissioner to be so 15 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 16 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 17 equals one of the listed impairments, the claimant is conclusively presumed to be 18 disabled. If the impairment is not one conclusively presumed to be disabling, the 19 evaluation proceeds to the fourth step, which determines whether the impairment 20 4 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 prevents the claimant from performing work which was performed in the past. If the 2 claimant is able to perform previous work, he or she is deemed not disabled. 20 3 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 4 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 5 work, the fifth and final step in the process determines whether he or she is able to 6 perform other work in the national economy in view of his or her residual functional 7 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 8 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 9 The initial burden of proof rests upon the claimant to establish a prima facie 10 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 11 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 12 is met once the claimant establishes that a mental or physical impairment prevents 13 the performance of previous work. The burden then shifts, at step five, to the 14 Commissioner to show that (1) plaintiff can perform other substantial gainful 15 activity and (2) a “significant number of jobs exist in the national economy” that the 16 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 17 B. Standard of Review 18 Congress has provided a limited scope of judicial review of a Commissioner’s 19 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 20 5 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 made through an ALJ, when the determination is not based on legal error and is 2 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 3 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 4 “The [Commissioner’s] determination that a plaintiff is not disabled will be 5 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 6 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 7 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 8 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 9 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 10 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 11 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 12 conclusions as the [Commissioner] may reasonably draw from the evidence” will 13 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 14 the Court considers the record as a whole, not just the evidence supporting the 15 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 16 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 17 It is the role of the Commissioner, not this Court, to resolve conflicts in 18 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 19 interpretation, the Court may not substitute its judgment for that of the 20 6 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 2 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 3 set aside if the proper legal standards were not applied in weighing the evidence and 4 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 5 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 6 administrative findings, or if there is conflicting evidence that will support a finding 7 of either disability or non-disability, the finding of the Commissioner is conclusive. 8 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 C. Commissioner’s Decision 10 The ALJ determined that Plaintiff had not engaged in substantial gainful 11 activity since June 19, 2013, the alleged onset date, and met the insured status 12 requirements of the Social Security Act through December 31, 2018 (the “date last 13 insured”). (T at 23). The ALJ found that Plaintiff’s lumbar spine degenerative disc 14 disease was a “severe” impairment under the Act. (Tr. at 23). 15 However, the ALJ concluded that Plaintiff did not have an impairment or 16 combination of impairments that met or medically equaled one of the impairments 17 set forth in the Listings. (T at 25). 18 The ALJ determined that Plaintiff retained the residual functional capacity 19 (“RFC”) to perform light work, as defined in 20 CFR §404.1567 (b), with the 20 7 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 following limitations: she can lift/carry 20 pounds occasionally and 10 pounds 2 frequently; stand/walk for 6 hours in an 8-hour workday; and sit for 6 hours in an 8- 3 hour workday. The ALJ found that Plaintiff could frequently climb, but could not 4 climb ladders, ropes, or scaffolds; she can frequently balance, stoop, kneel, crouch, 5 and crawl. (T at 25). 6 The ALJ concluded that Plaintiff could not perform her past relevant work as 7 a nurse. (T at 36). Considering Plaintiff’s age (54 years old on the alleged onset 8 date), education (at least high school), work experience (some skills acquired from 9 past relevant work), and residual functional capacity, the ALJ found that jobs exist 10 in significant numbers in the national economy that Plaintiff can perform. (T at 36). 11 Accordingly, the ALJ determined that Plaintiff was not disabled within the 12 meaning of the Social Security Act between June 19, 2013 (the alleged onset date) 13 and September 2, 2015 (the date of the decision) and was therefore not entitled to 14 benefits. (T at 37). As noted above, the ALJ’s decision became the Commissioner’s 15 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 16 1-7). 17 D. Disputed Issues 18 As set forth in the Joint Stipulation (Docket No. 18, at p. 4), Plaintiff offers 19 two (2) main arguments in support of her claim that the Commissioner’s decision 20 8 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 should be reversed. First, she challenges the ALJ’s assessment of the medical 2 opinion evidence. 3 ability to walk was flawed. This Court will address each argument in turn. Second, Plaintiff argues that the ALJ’s consideration of her 4 5 6 IV. ANALYSIS A. Medical Opinion Evidence 7 In disability proceedings, a treating physician’s opinion carries more weight 8 than an examining physician’s opinion, and an examining physician’s opinion is 9 given more weight than that of a non-examining physician. Benecke v. Barnhart, 10 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 11 1995). If the treating or examining physician’s opinions are not contradicted, they 12 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 13 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 14 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 15 1035, 1043 (9th Cir. 1995). 16 An ALJ satisfies the “substantial evidence” requirement by “setting out a 17 detailed and thorough summary of the facts and conflicting clinical evidence, stating 18 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 19 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 20 9 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 “The ALJ must do more than state conclusions. He must set forth his own 2 interpretations and explain why they, rather than the doctors,’ are correct.” Id. 3 In the present case, Dr. Khushro Unwalla performed a consultative psychiatric 4 examination in July of 2015. Dr. Unwalla diagnosed major depressive disorder with 5 psychotic features and post-traumatic stress disorder by history. (T at 627). He 6 assigned a Global Assessment of Functioning (“GAF”) score3 of 61 (T at 627). “A 7 GAF of 61-70 indicates ‘[s]ome mild symptoms (e.g., depressed mood and mild 8 insomnia) or some difficulty in social, occupational, or school functioning (e.g., 9 occasional truancy, or theft within the household), but generally functioning pretty 10 well, has some meaningful interpersonal relationships.’” Tagger v. Astrue, 536 F. 11 Supp. 2d 1170, 1174 n.8 (C.D. Cal. 2008). 12 Dr. Unwalla assessed mild limitations with regard to Plaintiff’s ability to 13 perform simple and repetitive tasks, as well as detailed and complex tasks; mild 14 difficulties with regard to the performance of work activities on a consistent basis 15 without special or additional supervision; mild limitation as to completing a normal 16 workday and workweek; mild limitation with regard to accepting instructions from 17 supervisors and interactions with co-workers and the public; and mild difficulties as 18 3  “A GAF score is a rough estimate of an individual's psychological, social, and occupational 19 functioning used to reflect the individual's need for treatment." Vargas v. Lambert, 159 F.3d 1161, 1164 n.2 (9th Cir. 1998).  20 10 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 to handling customary stresses, changes, and demands of gainful employment. (T at 2 627). He described Plaintiff’s prognosis as “guarded.” (T at 628). 3 Relying on Dr. Unwalla’s assessment and other evidence of record, the ALJ 4 concluded that Plaintiff did not have a “severe” mental health impairment, as defined 5 under the Social Security Act. (T at 24). 6 considered the evidence regarding Plaintiff’s mental health functioning when 7 determining her RFC. (T at 24-25, 31-36). This Court finds the ALJ’s assessment 8 consistent with the applicable legal standard and supported by substantial evidence. However, as required, the ALJ still 9 Treatment notes from Dr. Syam Kunam, Plaintiff’s treating psychiatrist, were 10 largely unremarkable, describing Plaintiff as cooperative, properly oriented, with 11 logical thought processes and appropriate behavior. (T at 461-68). 12 Dr. Paula Kresser and Dr. R.E. Brooks, non-examining State Agency review 13 consultants, reviewed the record in May and November of 2014, respectively, and 14 opined that there was no evidence of significant mental health limitations. (T at 80- 15 81, 98-99). State Agency review physicians are highly qualified experts and their 16 opinions, if supported by other record evidence, may constitute substantial evidence 17 sufficient to support a decision to discount a treating physician’s opinion. See Saelee 18 v. Chater, 94 F.3d 520, 522 (9th Cir. 1996); see also 20 CFR § 404.1527 19 (f)(2)(i)(“State agency medical and psychological consultants and other program 20 11 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 physicians, psychologists, and other medical specialists are highly qualified 2 physicians, psychologists, and other medical specialists who are also experts in 3 Social Security disability evaluation.”). 4 As discussed above, Dr. Unwalla performed a consultative examination and 5 assessed no more than mild mental health limitations. (T at 627-28). Dr. Unwalla 6 personally observed and examined Plaintiff and his findings were consistent with the 7 objective evidence of record, including the treatment notes. As such, his opinion 8 was sufficient to constitute substantial evidence in support of the ALJ’s decision. 9 See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (holding that 10 examining physician’s “opinion alone constitutes substantial evidence, because it 11 rests on his own independent examination of [claimant]”). 12 Dr. Unwalla’s report was submitted after the administrative hearing was 13 closed. Plaintiff contends that the ALJ erred by failing to provide her the 14 opportunity to address Dr. Unwalla’s opinion before rendering a decision. 15 particular, Plaintiff argues that she should have been given the opportunity to 16 question Dr. Unwalla regarding the potential impact of even mild limitations on her 17 ability to perform work in the health care field. Plaintiff contends that this violated 18 the Commissioner's Hearings, Appeals, and Litigation Law Manual (“HALLEX”), 19 which requires the proffer of post-hearing evidence to the claimant or her 20 12 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB In 1 representatives, so as to provide the claimant with an “opportunity to examine the 2 evidence and comment on, object to, or refute the evidence by submitting other 3 evidence, requesting a supplemental hearing, or if required for a full and true 4 disclosure of the facts, cross-examining the author(s) of the evidence.” HALLEX I- 5 2-7-30. 6 However, the Ninth Circuit has held that HALLEX does not impose 7 “judicially enforceable duties.” Lowry v. Barnhart, 329 F.3d 1019, 1023 (9th Cir. 8 2003). As such, courts will not “review allegations of noncompliance with the 9 manual” because it “does not have the force and effect of law [and] is not binding on 10 the Commissioner.” Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000). 11 Moreover, even granting that the ALJ’s failure to proffer Dr. Unwalla’s report 12 prior to issuing a decision was error (and this Court certainly does not intend to 13 endorse the ALJ’s apparent disregard for HALLEX’s proffer provision), Plaintiff 14 has not established prejudice warranting remand. “Reversal on account of error is 15 not automatic, but requires a determination of prejudice.” Ludwig v. Astrue, 681 16 F.3d 1047, 1054 (9th Cir. 2012). “The burden is on the party claiming error to 17 demonstrate not only the error, but also that it affected his ‘substantial rights,’ which 18 is to say, not merely his procedural rights.” Id. Here, Plaintiff had the opportunity to 19 present her arguments regarding Dr. Unwalla’s report to the Appeals Council, but 20 13 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 chose not to do so. Further, Plaintiff has presented her arguments to this Court, 2 which has considered them and found them unavailing for the reasons stated herein. The ALJ’s decision was supported by the record, including the treatment notes 3 4 and assessments of the consultative examiner and State Agency review consultants. 5 It is the role of the Commissioner, not this Court, to resolve conflicts in 6 evidence. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 7 U.S. at 400. If the evidence supports more than one rational interpretation, this 8 Court may not substitute its judgment for that of the Commissioner. Allen v. 9 Heckler, 749 F.2d 577, 579 (9th 1984). If there is substantial evidence to support the 10 administrative findings, or if there is conflicting evidence that will support a finding 11 of either disability or nondisability, the Commissioner’s finding is conclusive. 12 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s decision 13 was supported by substantial evidence and must therefore be sustained. 14 B. ALJ’s Consideration of Plaintiff’s Ability to Walk 15 The ALJ determined that Plaintiff retained the RFC to perform light work, as 16 defined in 20 CFR §404.1567 (b), with some limitations. With regard to walking, 17 the ALJ found that Plaintiff could walk for 6 hours in an 8-hour workday. (T at 25). 18 The ALJ’s finding was supported by the assessment of Dr. Ruben Ustarius, a 19 consultative examiner. Dr. Ustarius opined that Plaintiff could walk for 6 hours in 20 14 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 an 8-hour workday. (T at 495). Plaintiff does not challenge Dr. Ustarius’s 2 assessment or the ALJ’s reliance thereon, but does argue that the ALJ should have 3 given more specific consideration to evidence of record, including Dr. Ustarius’s 4 clinical findings, regarding the pace of Plaintiff’s ambulation. 5 This Court finds Plaintiff’s argument unavailing. The ALJ’s assessment of 6 Plaintiff’s ability to walk was supported by substantial evidence, including Dr. 7 Ustarius’s report, as well as the opinions of Dr. Panek and Dr. Steinsapir, non- 8 examining State Agency review physicians. (T at 82-85, 97-98). 9 thoroughly considered all of the evidence of record, including the evidence 10 regarding the impact of Plaintiff’s impairments on her walking pace, when 11 determining Plaintiff’s RFC. This Court finds no basis for a remand. See Tackett v. 12 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably 13 supports the Commissioner’s decision, the reviewing court must uphold the decision 14 and may not substitute its own judgment). The ALJ 15 16 V. CONCLUSION 17 After carefully reviewing the administrative record, this Court finds 18 substantial evidence supports the Commissioner’s decision, including the objective 19 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 20 15 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB 1 examined the record, afforded appropriate weight to the medical evidence, including 2 the assessments of the treating and examining medical providers and medical 3 experts, and afforded the subjective claims of symptoms and limitations an 4 appropriate weight when rendering a decision that Plaintiff is not disabled. This 5 Court finds no reversible error and because substantial evidence supports the 6 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 7 that Plaintiff’s motion for judgment summary judgment is DENIED. 8 9 10 11 12 13 14 15 16 17 VI. ORDERS 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, serve copies upon counsel for the parties, and CLOSE this case. DATED this 25th day of July, 2017, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 18 19 20 16 DECISION AND ORDER – MANGUNE v BERRYHILL 5:16-CV-00632-VEB

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