Zina Steagall v. Carolyn W Colvin

Filing 22

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner.(See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ZINA STEAGALL, 12 Plaintiff, 13 14 15 Case No. EDCV 16-00976 SS v. MEMORANDUM DECISION AND ORDER NANCY BERRYHILL, Acting Commissioner of the Social Security Administration, 16 Defendant. 17 18 19 20 I. 21 INTRODUCTION 22 23 24 Zina Steagall (“Plaintiff”) brings this action seeking to 25 overturn the decision by the Commissioner of the Social Security 26 Administration (hereinafter the “Commissioner” or the “Agency”) 27 denying her application for Supplemental Security Income (“SSI”). 28 The parties consented, pursuant to 28 U.S.C. § 636, to the 1 jurisdiction of the undersigned United States Magistrate Judge. 2 For the reasons stated below, the decision of the Commissioner is 3 AFFIRMED. 4 5 II. 6 PROCEDURAL HISTORY 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Plaintiff filed an application for SSI on July 23, 2012. (Administrative Record (“AR”) 166). The Agency initially denied Plaintiff’s claim for SSI on November 7, 2012. (AR 197). filed a Request for Reconsideration. (AR 203). the request for reconsideration. (AR 204). Plaintiff The Agency denied Plaintiff filed a Request for Hearing by Administrative Law Judge on July 26, 2013. (AR 211). On April 18, 2014, Administrative Law Judge (“ALJ”) Tamara Turner-Jones conducted a hearing to review Plaintiff’s claim. (AR 28-44). On October 23, 2014, ALJ Dana McDonald conducted a supplemental hearing. (AR 45-56). McDonald found that Plaintiff was On November 7, 2014, ALJ not disabled. (AR 7, 22). Plaintiff sought review of the ALJ’s decision before the Appeals Council on November 26, 2014. (AR 5). On April 18, 2016, the Appeals Council denied review. (AR 1-3). As such, the ALJ’s decision became the final decision of the Commissioner. Plaintiff commenced the instant action on May 12, 2016. 1). 25 26 27 28 2 (AR 1). (Dkt. No. 1 III. 2 FACTUAL BACKGROUND 3 4 A. Plaintiff’s History 5 6 Plaintiff was born on July 13, 1967. (AR 20, 33). Plaintiff 7 left 8 Plaintiff worked as a hairstylist until 2007. (AR 508). 9 April 2014 hearing, Plaintiff testified that she also previously 10 worked in childcare, watching two young children for her sister- 11 in-law. (AR 35-36). Plaintiff testified, however, that she stopped 12 working because she heard voices telling her not to work. Plaintiff 13 has not sought work since 2005 or 2006. school after completing the eleventh grade. (AR 876). At the (AR 36). 14 15 Medical records dated July 2, 2014 note that Plaintiff has 16 seven children between the ages of 14 and 26. 17 Plaintiff testified to living with her daughters (AR 34), medical 18 records state that she lives with one daughter, her sister, her 19 sister’s children, as well as several pets. (AR 876). While (AR 876). 20 21 Plaintiff’s May 17, 2013 medical records list “TANF, Food 22 Stamps” under “Current Source of Income”. 23 Plaintiff testified 24 children. (AR 38). that she receives (AR 508). benefits Additionally, for her minor 25 26 Medical records from the Riverside County Department of Mental 27 Health, Alcohol and Drug Services, dated January 14, 2013 state 28 that Plaintiff’s mother denied that Plaintiff had any current or 3 1 past use of alcohol or street drugs. 2 Emergency Room Continuation of Care Report dated February 9, 2013 3 notes that Plaintiff “was brought in by Emergency Medical Services, 4 secondary to doing PCP today” (AR 800) and that Plaintiff “stated 5 she smoked some PCP and [] doesn’t remember what happen[ed].” 6 804). 7 “Past Medical History”. (AR 716). However, an (AR Medical records from this date also list “drug use” under (AR 803). 8 9 On May 17, 2013, Plaintiff denied substance abuse to 10 consultative physician Dr. Paul Martin. 11 comments state that “her behavior on exam certainly raises concerns 12 regarding this area.” However, Dr. Martin’s (AR 507-508). 13 14 On August 5, 2013, an Emergency Room Continuation of Care 15 Report notes that Plaintiff’s “urine drugs screen” tested positive 16 for PCP. 17 Room Report notes PCP abuse under past medical history. 18 This same report states that Plaintiff had been discharged from 19 Menifee Valley Medical Center a few days prior with a diagnosis of 20 “altered level of consciousness and delirium, secondary to PCP [] 21 abuse.” (AR 774). Additionally, an August 10, 2013 Emergency (AR 766). (AR 767). 22 23 On August 13, 2013, another Emergency Room Report states that 24 Plaintiff came in complaining of severe pain and wanting pain 25 medications, however had “slurred speech” and “was positive for 26 PCP”. (AR 763). 27 28 4 1 Mental health records from August 16, 2013 note that 2 Plaintiff’s landlord reported concerns about Plaintiff’s well- 3 being. 4 seen Plaintiff and that she “could hardly talk and appeared to be 5 under the influence of medications that made her look ‘out of it’. 6 [The Landlord] verbalized concern that [Plaintiff] was driving in 7 this condition and that she also drove her two children this way 8 as well.” 9 indicate that Plaintiff received a DUI while driving under the 10 Specifically, the landlord reported that she had recently (AR 691). Case management records from January 2013 influence of her prescription medications. (AR 684). 11 12 On October 8, 2013, Plaintiff stated during an interview that 13 she “‘had just started using PCP this past year’, but that she ‘has 14 been clean for x4 months.’ 15 stated that she ‘has been using [PCP] a long time.’” 16 She further stated that she “hears voices (‘not now, I took my 17 meds’) that tell her to use.” 18 “stated that she has been clean and sober for x45 days from PCP” 19 and expressed “how she feels she ‘gets worse when using’ and ‘the 20 voices tell her to do bad things, worse when on PCP.’” 21 also denied auditory or visual hallucinations. 22 that she experiences hallucinations when not on her medication. 23 (AR 688). 24 service on April 8, 2014 state that Plaintiff “checked into group, 25 introduced herself, drug of choice as PCP”. Later, during the interview [Plaintiff] (Id.). (AR 687). That same day, Plaintiff Plaintiff However, she stated Additionally, notes from Plaintiff’s group mental health (AR 894). 26 27 Notes from Plaintiff’s orthopedic consultation with Dr. Mario 28 Luna on June 30, 2014 report, however, that Plaintiff “has never 5 1 used drugs”. 2 a psychological evaluation with Dr. Kathy Vandenburgh. 3 “Habits,” Dr. Vandenburgh’s report states that Plaintiff “denies a 4 history of drug or alcohol abuse.” (AR 864). Likewise, on July 2, 2014, Plaintiff had Under (AR 877). 5 6 Under “Legal,” this report also states that Plaintiff “reports 7 a history of incarceration in prison for two years in 2003 due to 8 trying to hurt somebody else.” 9 17, 2013 similarly state (Id.). that Medical records from May plaintiff “acknowledged some 10 involvement with the legal system, including serving a prison term, 11 but she would not elaborate on the details.” (AR 508). 12 13 Plaintiff’s July 23, 2012 application for SSI alleged 14 disability 15 conditions, 16 tunnel syndrome. (AR 166). 17 sought mental health treatment and participated in group therapy. 18 (AR 648-720, 891-898). 19 exhibited restless motor activity, illogical thought processes, 20 bizarre thought content, paranoid delusions, auditory and visual 21 hallucinations, poor eye contact, irritability and a depressed 22 mood. (AR 648-702). 23 diagnosis of “psychosis, NOS.” (AR 675). beginning on including March asthma, 27, 2007 due hypertension, to and a variety severe of carpal Beginning in January 2013, Plaintiff Treatment notes indicate that Plaintiff On February 20, 2013, Plaintiff received a 24 25 B. Plaintiff’s Testimony 26 27 On April 18, 2014, Plaintiff testified about her work history, 28 symptoms, and limitations in response to the ALJ’s questions. (AR 6 1 32-43). 2 back pain, auditory hallucinations and difficulty being around 3 others. 4 Plaintiff stated that “Susan tells me don’t work. 5 me to do anything. 6 there and we talk to each other and we talk to each other and those 7 people and stuff in my head.” (AR 42). 8 she does not “like to be around a lot of people. 9 tells me to – she just wants me all to herself and she doesn’t want 10 Plaintiff testified that she could no longer work due to (AR 42-43). In reference to her imaginary person, She doesn’t want Susan just wants me all to herself and we sit She further stated that They put – Susan me to be around a lot of people.” (Id.). 11 12 Plaintiff testified about her daily living, stating that she 13 could not do household chores. (AR 38). 14 mother and daughters help her to get dressed and take care of her 15 personal hygiene needs. (AR 37-38). 16 to the grocery store once a month with her family. 17 does not walk around the store but, rather, sits in a “wheelie 18 cart.” (AR 39). 19 day” and likes to lay down. (AR 39). She testified that her She testified that she goes However, she She further testified that she watches TV “all 20 21 C. Treating Physicians 22 23 1. Niraj Gupta, M.D. 24 25 26 27 28 Plaintiff had a mental health appointment with her treating physician, Dr. Niraj Gupta, on September 17, 2014. (AR 891-898). During this appointment, Dr. Gupta diagnosed Plaintiff with “Schizophrenia, Paranoid Type” and “Mental Retardation, Severity 7 1 Unspecified.” 2 based on this appointment, noting that Plaintiff suffered from 3 auditory and visual hallucinations, that delusions and paranoid 4 thoughts influenced her actions or behavior, that she had a severe 5 memory deficit and a moderate judgment deficit, that she was not 6 able to complete a forty-hour work week without decompensating, 7 and that her diagnosis was “chronic.” (AR 895). 8 noted, however, that Plaintiff was able to manage her own funds in 9 her best interest. (AR 895). (AR 896). Dr. Gupta completed a “Narrative Report” Dr. Gupta also At this appointment, Dr. Gupta 10 provided a Global Assessment of Functioning (“GAF”) score of 50 11 for Plaintiff, indicating that her mental impairment symptoms fell 12 within the “serious” range of severity. (AR 896). 13 14 2. Marianne Tahl, M.D. 15 16 On October 10, 2011, Plaintiff’s treating Physician, Dr. 17 Marianne Tahl, wrote a letter on Plaintiff’s behalf stating that 18 Plaintiff was currently under her care and “may not return to work 19 at this time.” (AR 482). 20 Tahl’s office “requesting a letter stating she needs to be off work 21 from January 2013 [until] . . . further notice.” (AR 576). 22 March 29, 2013, Dr. Tahl wrote a letter on Plaintiff’s behalf 23 stating that she “may not return to work indefinitely as of 24 1/13/2013, due to a medical condition.” (AR 862). 25 2014, Dr. Tahl wrote a third letter stating that Plaintiff “may 26 not return to work indefinitely as of 04/11/2014, due to a medical 27 condition.” (AR 861). On March 15, 2013, Plaintiff called Dr. 28 8 On On April 11, 1 D. Consultative Examinations 2 3 Plaintiff underwent two consultative psychological 4 examinations, one in May 2013 and the other in July 2014. (AR 507- 5 510, 875-879). 6 7 1. Paul Martin, Ph.D. 8 9 On May 17, 2013, Dr. Paul Martin, a licensed psychologist, 10 conducted a psychological evaluation of Plaintiff. (AR 507-510). 11 Plaintiff was 45 years old on the date of the evaluation. 12 507). (AR 13 14 Dr. Martin found that Plaintiff was “very unhelpful on 15 interview, and appeared to be exaggerating the severity of her 16 deficits. Very little useful information could be obtained on 17 interview. She reported previously using mental health services, 18 but could not provide details or describe her symptoms.” 19 He further stated that Plaintiff “presented in a manner that raised 20 concerns about her genuine effort versus exaggeration of symptoms.” 21 (Id.). (AR 507). 22 23 Under the report topic entitled “Substance Abuse,” Dr. Martin 24 wrote: 25 concerns regarding this area.” 26 entitled “Forensic,” Dr. Martin wrote: 27 involvement with the legal system, including serving a prison term, 28 but she would not elaborate on the details.” “Denied. However, her behavior on exam certainly raises (AR 508). 9 Under the report topic “She acknowledged some (AR 508). 1 Dr. Martin noted deficits in attention, memory, fund of 2 knowledge, calculations, abstractions, thought process, insight, 3 and judgment. (AR 508). 4 Intelligence Scale (WAIS) IV, on which Plaintiff obtained a full 5 scale IQ score of 40, indicating that her intellectual functioning 6 was in the impaired range. (AR 509). 7 that the score was invalid because Plaintiff was “unable/unwilling 8 to perform the simplest tasks.” (Id.). 9 administered the Weschler Memory Scale (WMS) IV, with Plaintiff’s Dr. Martin administered the Weschler Adult However, Dr. Martin stated Dr. Martin similarly 10 results 11 information was in the impaired range. (Id.). 12 considered 13 malingering and that she had a GAF score of 701 (id.), indicating 14 mild symptoms or difficulty functioning. 15 Martin stated that “[d]ue to the unreliability of the claimant’s 16 self-reported history and level of functioning, it is presumed that 17 her actual level of functioning is better than her self-reported 18 level of functioning.” (Id.). indicating these that results her ability invalid, to learn noting that and recall new Dr. Martin also Plaintiff was In his assessment, Dr. 19 20 Under the report topic entitled “General Observations,” Dr. 21 Martin stated that Plaintiff’s “expressive and receptive language 22 skills were adequate” and that her “gross motor function was 23 24 25 26 27 28 A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships (American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR), 34 (2000)). 1 10 1 normal” and that she was “able to ambulate without assistance.” 2 (AR 508). 3 4 2. Kathy Vandenburgh, Ph.D. 5 6 On July 2, 2014, Dr. Kathy Vandenburgh, a psychologist, 7 conducted a psychological evaluation of Plaintiff. (AR 875-883). 8 Plaintiff was 46 years old on the date of the evaluation. 9 876). (AR 10 11 Under the report topic entitled “Habits,” Dr. Vandenburgh 12 wrote: “The [plaintiff] denies a history of drug or alcohol abuse.” 13 (AR 877). 14 wrote: “The [Plaintiff] reports a history of incarceration in 15 prison for two years in 2003 due to trying to hurt somebody else. 16 She reported, ‘Susan hit someone with a screwdriver.’ 17 ever being in trouble with the law since that time.” Under the report topic entitled “Legal,” Dr. Vandenburgh She denies (Id.). 18 19 Dr. Vandenburgh noted deficits in memory, attention, 20 concentration, 21 Vandenburgh was unable to complete the WAIS-IV and WMS-IV because 22 Plaintiff could not answer any questions correctly or remember any 23 of 24 Plaintiff’s “presentation was consistent with an individual who 25 was 26 [friend] named Susan ... Her presentation clearly was not genuine.” 27 (AR 876). 28 answer simple questions that even those who have mild mental the and information. feigning fund (AR psychosis. of knowledge. 878). She Dr. pretended (AR 877-878). Vandenburgh to have noted an Dr. that imaginary Dr. Vandenburgh further noted that Plaintiff could not 11 1 retardation 2 Vandenburgh stated that Plaintiff was “likely capable of handling 3 funds” and that she “was clearly malingering.” (AR 879). and psychosis are able to answer. (Id.). Dr. 4 5 Under the report topic entitled “Speech,” Dr. Vandenburgh 6 stated that Plaintiff’s speech was normal, however she “was acting 7 in a childlike manner, and her speech reflected this. The evaluator 8 was 9 productions. 10 able to understand 100% of the [plaintiff’s] Tone was adequately modulated. was adequate.” verbal Verbal response time (AR 877). 11 12 E. Adult Function Report 13 14 On March 22, 2013, Plaintiff completed an Adult Function 15 Report. (AR 366-374). 16 understanding, 17 instructions, among other things. (AR 371). 18 that she could not pay bills, count change, or handle a savings 19 account. (AR 369). Plaintiff alleged that she had difficulty completing tasks, concentrating, and following She further alleged 20 21 F. Vocational Expert’s Testimony 22 23 Dr. Luis Mas, a vocational expert (“VE”) testified at the 24 October 23, 2014 hearing. (AR 49-54). 25 consider 26 determining Plaintiff’s ability to work. (AR 50-52). 27 hypothetical 28 environmental limitations. (AR 52). a series of included factors a in person 12 The ALJ asked Dr. Mas to creating with a hypothetical certain for The ALJ’s postural and Dr. Mas testified that he 1 could 2 consistent with these limitations, including ticket taker, small 3 parts assembler, sales attendant, and inspector/hand packager. (AR 4 52-53). identify work in the national economy that would be 5 6 IV. 7 THE FIVE STEP SEQUENTIAL EVALUATION PROCESS 8 9 To qualify for disability benefits, a claimant must 10 demonstrate a medically determinable physical or mental impairment 11 that prevents him from engaging in substantial gainful activity2 12 and that is expected to result in death or to last for a continuous 13 period of at least twelve months. 14 721 (9th Cir. 1998) (citing 42 U.S.C. § 15 impairment must render the claimant incapable of performing the 16 work he previously performed and incapable of performing any other 17 substantial gainful employment that exists in the national economy. 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 19 U.S.C. § 423(d)(2)(A)). Reddick v. Chater, 157 F.3d 715, 423(d)(1)(A)). The 20 21 To decide if a claimant is entitled to benefits, an ALJ 22 conducts a five-step inquiry. 23 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 24 25 26 27 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1520, 416.910. 2 13 1 (1) Is the claimant presently engaged in substantial 2 gainful activity? 3 not disabled. If so, the claimant is found If not, proceed to step two. 4 5 (2) Is the claimant’s impairment severe? 6 claimant is found not disabled. 7 step three. If not, the If so, proceed to 8 9 (3) Does the claimant’s impairment meet or equal one 10 on the list of specific impairments described in 11 20 C.F.R. Part 404, Subpart P, Appendix 1? 12 the claimant is found disabled. 13 to step four. If so, If not, proceed 14 15 (4) Is the claimant capable of performing his past 16 work? 17 If not, proceed to step five. If so, the claimant is found not disabled. 18 19 (5) Is the claimant able to do any other work? 20 the 21 If not, claimant is found not disabled. claimant is found disabled. If so, the 22 23 24 25 26 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); 20 C.F.R. §§ 404.1520(b)-404.1520(f)(1) & 416.920(b)-416.920(f)(1). 27 28 14 1 The claimant has the burden of proof at steps one through four 2 and 3 Bustamante, 262 F.3d at 953-54. 4 meets his burden of establishing an inability to perform past work, 5 the Commissioner must show that the claimant can perform some other 6 work that exists in “significant numbers” in the national economy, 7 taking into account the claimant’s residual functional capacity 8 (“RFC”), age, education, and work experience. 9 at the Commissioner 1098, 1100; has Reddick, the burden of proof at step five. If, at step four, the claimant 157 F.3d at Tackett, 180 F.3d 721; 20 C.F.R. §§ 10 404.1520(f)(1), 416.920(f)(1). 11 testimony of a vocational expert or by reference to the Medical- 12 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 13 Appendix 2 (commonly known as “the grids”). 14 240 F.3d 1157, 1162 (9th Cir. 2001) (citing Tackett). When a 15 claimant has both exertional (strength-related) and nonexertional 16 limitations, the Grids are inapplicable and the ALJ must take the 17 testimony of a vocational expert. 18 869 (9th Cir. 2000). The Commissioner may do so by the Osenbrock v. Apfel, Moore v. Apfel, 216 F.3d 864, 19 20 V. 21 THE ALJ’S DECISION 22 23 24 25 26 On November 7, 2014, after employing the five-step sequential evaluation process, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the Social Security Act. (AR 21). 27 28 15 1 At step one, the ALJ observed that Plaintiff had not engaged 2 in substantial gainful activity since July 23, 2012, the date on 3 which she filed an application for SSI. (AR 13). 4 5 6 7 8 9 At step two, the ALJ found that Plaintiff’s severe impairments were obesity, lumbago, hypertension, chronic kidney disease, and sleep apnea. (Id.). medically The ALJ found, however, that Plaintiff’s determinable mental impairment of psychosis was nonsevere. (Id.) 10 11 12 13 14 15 16 At step three, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (AR 15). At step four, the ALJ found that Plaintiff was “unable to perform any past relevant work.” (AR 20). 17 18 19 20 21 22 23 24 25 26 Finally, at step five, the ALJ concluded that Plaintiff had the residual functioning capacity (“RFC”) to “lift and/or carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for 6 hours in an 8-hour workday; she can sit for 6 hours in an 8-hour workday; she can push and pull within the weight limits; she cannot climb ladders, ropes, or scaffolds; she can frequently kneel, stoop, balance, crawl, and crouch; she can frequently handle, finger, and feel with the bilateral upper extremity; she should avoid even moderate exposure to fumes, odors, dust, gases, 27 28 16 1 or poor ventilation; and she should avoid even moderate exposure 2 to hazards, such as machinery and heights.” (AR 16). 3 4 The ALJ elaborated that, based on the testimony of the VE and 5 considering Plaintiff’s age, education, work experience, and RFC, 6 Plaintiff is capable of making a successful adjustment to other 7 work that exists in significant numbers in the national economy 8 and, in sum, a finding of “not disabled” was appropriate. (AR 21). 9 10 VI. 11 STANDARD OF REVIEW 12 13 Under 42 U.S.C. § 405(g), a district court may review the 14 Commissioner’s decision to deny benefits. 15 the Commissioner’s decision when the ALJ’s findings are based on 16 legal error or are not supported by substantial evidence in the 17 record as a whole.” 18 (9th Cir. 2001) (citing Tackett, 180 F. 3d at 1097); Smolen v. 19 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing Fair v. Bowen, 20 885 F.2d 597, 601 (9th Cir. 1989)). “The court may set aside Auckland v. Massanari, 257 F.3d 1033, 1035 21 22 “Substantial evidence is more than a scintilla, but less than 23 a preponderance.” 24 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 25 evidence which a reasonable person might accept as adequate to 26 support a conclusion.” 27 Smolen, 28 evidence supports a finding, the court must “‘consider the record 80 F.3d Reddick, 157 F.3d at 720 (citing Jamerson v. at It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To 17 determine whether substantial 1 as a whole, weighing both evidence that supports and evidence that 2 detracts from the [Commissioner’s] conclusion.’” 3 F.3d at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 4 1993)). 5 or reversing that conclusion, the court may not substitute its 6 judgment for that of the Commissioner. 7 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 8 1457 (9th Cir. 1995)). Auckland, 257 If the evidence can reasonably support either affirming Reddick, 157 F.3d at 720- 9 10 VII. 11 DISCUSSION 12 13 Plaintiff contends that the ALJ’s decision should be reversed 14 and 15 immediate payment of benefits should be ordered. (Mtn. at 8). 16 Court disagrees. remanded for further administrative proceedings or that The The ALJ’s decision must be affirmed. 17 18 19 A. The ALJ’s Findings Regarding Plaintiff’s Alleged Mental Impairment Do Not Require Remand 20 21 22 23 24 25 26 27 28 Plaintiff complains that the ALJ erred at step two of the sequential evaluation process in holding that she has no severe mental impairments. (Mtn. at 4). Specifically, Plaintiff argues that her “well-documented psychotic symptoms, consistently low GAF scores, and the numerous resulting limitations identified by treating physician Dr. Gupta establish that her chronic psychosis would impose more than a minimal effect on her ability to do basic work activities.” (Id.). It is unclear that any error occurred. 18 1 However, to the extent that the ALJ erred in assessing Plaintiff’s 2 alleged mental impairment, any error was harmless. 3 analyzed the alleged impairment according to the Regulations. 4 Second, the jobs identified by the VE are applicable to someone 5 with low level mental functioning. 6 Plaintiff’s alleged mental impairment to be severe, the outcome 7 here would be the same. First, the ALJ Thus, even if the ALJ had found 8 9 10 11 12 13 14 15 16 17 18 19 20 By its own terms, the evaluation at step two is a de minimis test intended to weed out the most minor of impairments. See Bowen v. Yuckert, 482 U.S. 137, 153-154 (1987); Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir.2005) (stating that the step two inquiry is a de minimis screening device to dispose of groundless claims) (quoting Smolen, 80 F.3d at 1290). An impairment is not severe only if the evidence establishes a slight abnormality that has only a minimal effect on an individual's ability to work. Smolen, 80 F.3d at 1290 (internal quotations and citations omitted). Here, the ALJ applied more than a de minimis test when she determined that Plaintiff's alleged mental impairment is not severe. However, the error was harmless. 21 “A decision of the ALJ will not be reversed for errors that 22 are harmless.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 23 2005). 24 not reverse for errors that are ‘inconsequential to the ultimate 25 nondisability determination.’” Molina v. Astrue, 674 F.3d 1104, 26 1117 (9th Cir. 2012) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055 27 (9th Cir. 2006)). It is established that an ALJ's failure to find Moreover, in the Social Security context, the court “will 28 19 1 an impairment severe, even if erroneous, is harmless error where 2 at the later RFC stage of the analysis, the ALJ discusses the 3 impairment, the medical findings, the pertinent symptoms, and the 4 applicable opinions concerning functional limitations. Lewis v. 5 Astrue, 498 F.3d 909, 911 (9th Cir. 2007). 6 found 7 functional areas (the “paragraph B” criteria) set out in the 8 disability Regulations for evaluating mental disorders and in 9 section that Plaintiff 12.00C of had the no At step two, the ALJ limitations Listing of in the four Impairments. broad (AR 13). 10 Specifically, 11 activities of daily living, social functioning, concentration, 12 persistence or pace, and no episodes of decompensation. she found that Plaintiff had no limitations in (Id.). 13 Under the Regulations, after rating the degree of loss at step 14 15 16 17 18 19 20 21 22 23 24 25 two, the ALJ must determine whether the plaintiff has a severe impairment. 20 C.F.R. § 416.920a(d). Once the ALJ has determined that a mental impairment is severe, the ALJ must then determine if it meets or equals a listing in 20 C.F.R. Part 404, Subpart P, Appendix I. 20 C.F.R. § 416.920a(d)(2). Finally, if a listing is not met, the ALJ must then assess the plaintiff’s RFC, and the ALJ’s decision conclusions” “must incorporate regarding the the pertinent plaintiff’s findings mental and impairment, including “a specific finding as to the degree of limitation in each of the functional areas 416.920a(d)(3), (e)(2). 26 27 28 20 described.” 20 C.F.R. § 1 Here, the ALJ explained that the RFC assessment “used at steps 2 4 and 5 of the sequential evaluation process requires a more 3 detailed assessment by itemizing various functions contained in 4 broad categories found in paragraph B.” (AR 14). The ALJ continued 5 that, therefore, Plaintiff’s RFC assessment “reflects the degree 6 of limitation” found in the paragraph B mental function analysis 7 (id.) and subsequently provided a thorough overview of Plaintiff’s 8 longitudinal mental health treatment records. 9 First, it is not clear that the ALJ erred when finding that 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s mental impairment was “not severe.” The ALJ noted that one of the consultative examining physicians, Dr. Martin, assessed a GAF score of 70, functioning. (Id.). indicating mild symptoms or difficulty The ALJ also considered Dr. Gupta’s opinion that Plaintiff could not complete a 40-hour work week without decompensating, but found it less persuasive because it contrasted sharply with the other evidence of record. (AR 15). The ALJ similarly considered the findings of both consultative examiners, who concluded that Plaintiff had “no mental limitations” despite mental status examinations revealing deficits with attention, memory, fund of knowledge, calculations, abstractions, thought processes, insight, judgment, and attention. (AR 14, 15). The ALJ also considered the fact that, in 2013, Plaintiff sought monetary assistance when she was unable to pay her rent. (AR 17, 689-690, 694). Medical records indicate that hospital staff instructed Plaintiff to have her landlord complete HHOPE rental assistance documents. (AR 694). Plaintiff responded that she “understood” and attempted to contact her landlord in an effort to 21 1 have these documents completed. (Id.). 2 these facts were inconsistent with Plaintiff’s Adult Function 3 Report, wherein she claimed to have difficulty understanding, 4 completing tasks, concentrating, following instructions (AR 17, 5 371), and claimed that she could not pay bills, handle a savings 6 account, 7 instructions. 8 Plaintiff’s 9 evidence when determining Plaintiff’s RFC and it is not clear that 10 the ALJ erred by finding Plaintiff’s mental impairment to be non- 11 severe. remember to take medications, (AR 17, 369). medical symptoms The ALJ determined that or follow spoken Thus, the ALJ fully considered and the applicable opinions and 12 13 Moreover, while the ALJ did not incorporate Plaintiff’s 14 alleged mental impairment into the hypothetical that she posed to 15 the VE, the jobs identified by the VE are capable of performance 16 by someone with low level mental functioning. 17 ALJ fully credited Plaintiff’s evidence, found a severe mental 18 impairment, and incorporated the impairment into the hypothetical, 19 the result would be the same. 20 “[t]icket taker, DOT 344.667-010” and “[s]mall parts assembler”, 21 associated with DOT 739.687-030. 22 require a reasoning level of 2, meaning they require an ability to 23 “apply 24 uninvolved written or oral instructions … [d]eal with problems 25 involving 26 situations.” APPENDIX C - COMPONENTS OF THE DEFINITION TRAILER, 27 1991 WL 688702. 28 to be severe, these jobs would still be appropriate, particularly commonsense a few Specifically, the VE identified understanding concrete Thus, even had the (AR 21). to variables carry in or Both of these jobs out from detailed but standardized If the ALJ had found Plaintiff’s mental impairment 22 1 in light of the ALJ’s finding that Plaintiff could understand and 2 follow 3 documents. 4 is not required. instructions for (AR 17, 694). the completion of rental assistance Thus, any error was harmless and remand 5 6 B. The ALJ Properly Considered The Treating Physicians’ Opinions 7 8 Plaintiff complains that the ALJ failed to properly consider 9 Dr. Gupta’s medical opinion (Mtn. at 4) as well as Dr. Tahl’s 10 letters. (Mtn. at 6). 11 provide any specific and legitimate reasons” for rejecting these 12 opinions. (Mtn. at 6, 8). 13 must be accepted as a matter of law, resulting in a finding of 14 disability, or in the alternative, remand. (Mtn. at 6, 8). 15 Court disagrees. Plaintiff contends that the ALJ “failed to Plaintiff asserts that both opinions The 16 17 Although a treating physician’s opinion is entitled to great 18 deference, it is not necessarily conclusive as to either a physical 19 condition or the ultimate issue of disability. 20 Bowen, 881 F.2d 747, 751 (9th Cir.1989). The ALJ may reject the 21 opinion of a treating physician in favor of another conflicting 22 medical opinion, if the ALJ makes findings setting forth specific, 23 legitimate reasons for doing so that are based on substantial 24 evidence in the record. 25 2007). 26 opinions that are conclusory, brief, and unsupported by the record 27 as a whole.” 28 1195 (9th Cir. 2004). Magallanes v. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. Moreover, the ALJ “may discredit treating physicians' Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 23 1 1. The ALJ Properly Considered Dr. Gupta’s Opinion 2 3 The ALJ’s decision contains a thorough summary of the medical 4 evidence in the record. (AR 13-20). The ALJ considered Dr. Gupta’s 5 opinion that Plaintiff could not complete a 40-hour work week 6 without decompensating. (AR 14). 7 however, to the opinions of the two psychological consultative 8 examiners who opined that Plaintiff has no mental limitations 9 although mental status examinations showed deficits with memory, The ALJ afforded greater weight, 10 concentration, 11 appropriately set forth specific and legitimate reasons, based on 12 substantial evidence in the record, for affording greater weight 13 to these opinions. and fund of knowledge. (AR 15). The ALJ 14 15 The ALJ noted that, while Plaintiff complained of problems 16 with memory, concentration, and mood swings and participated in 17 group therapy for auditory hallucinations, she was not taking any 18 psychotropic medications to control her mental symptoms. 19 Parra, 20 treatment” 21 regarding severity of an impairment.”) 481 F.3d as at 751 “sufficient (finding to evidence discount a of (AR 14). “conservative claimant's testimony 22 23 The ALJ also weighed the fact that both psychological 24 consultative reports found Plaintiff to be malingering. (AR 15). 25 Further, the ALJ examined the reasons underlying Dr. Vandenburgh’s 26 opinion that Plaintiff was malingering, including that she could 27 not answer simple questions that even those who have mild mental 28 retardation and psychosis are able to answer, was unable to point 24 1 to body parts, could not correctly identify colors, was unable to 2 count correctly from 1 to 10, and pretended to have an imaginary 3 friend. (AR 15). 4 5 The ALJ similarly considered the fact that Plaintiff’s alleged 6 functional 7 demonstrating that she was able to follow hospital instructions to 8 have paperwork completed by her landlord in order to receive 9 financial assistance for rent. (AR 17). limitations were contradicted by medical records 10 11 Thus, the ALJ carefully examined the record as a whole and 12 articulated specific and legitimate reasons for finding that Dr. 13 Gupta’s opinion undermined by other evidence and was therefore less 14 persuasive. 15 16 2. The ALJ Properly Considered Dr. Tahl’s Letters 17 18 As with Dr. Gupta’s opinion, the ALJ gave specific and 19 legitimate 20 letters. 21 which did not show more than mild-to-moderate findings associated 22 with the chest/heart and abdomen, a lumbar spine X-ray that was 23 unremarkable, 24 abdominal pain were treated conservatively. (AR 17). 25 described the opinion of Dr. Mario Luna, M.D., Board eligible in 26 orthopedic surgery, noting that it was consistent with objective 27 findings. (AR 19). 28 that, despite allegations of symptoms and limitations preventing reasons for affording little weight to Dr. Tahl’s Among other things, the ALJ cited to diagnostic studies and the fact that Plaintiff’s chest, back, and The ALJ The ALJ also considered evidence in the record 25 1 all work, Plaintiff planned to travel across the country for the 2 holidays. (AR 17). 3 4 The ALJ properly considered Dr. Tahl’s letters by providing a 5 detailed summary of evidence contradicting these letters and by 6 pointing to evidence that demonstrated Plaintiff had not been 7 deprived of the ability to work. 8 discredited 9 unsupported by the record as a whole. Dr. Tahl’s Thus, the ALJ appropriately conclusory statements, which were See Batson 359 F.3d at 1195. 10 11 VIII. 12 CONCLUSION 13 14 Consistent with the foregoing, IT IS ORDERED that Judgment be 15 entered AFFIRMING the decision of the Commissioner. 16 the Court shall serve copies of this Order and the Judgment on 17 counsel for both parties. The Clerk of 18 19 DATED: May 16, 2017 20 /S/ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 26

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