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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ZINA STEAGALL,

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Plaintiff,

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Case No. EDCV 16-00976 SS

v.
MEMORANDUM DECISION AND ORDER

NANCY BERRYHILL,
Acting Commissioner of the
Social Security Administration,

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Defendant.

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I.

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INTRODUCTION

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Zina Steagall (“Plaintiff”) brings this action seeking to

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overturn the decision by the Commissioner of the Social Security

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Administration (hereinafter the “Commissioner” or the “Agency”)

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denying her application for Supplemental Security Income (“SSI”).

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The

parties

consented,

pursuant

to

28

U.S.C.

§ 636,

to

the

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jurisdiction of the undersigned United States Magistrate Judge.

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For the reasons stated below, the decision of the Commissioner is

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AFFIRMED.

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II.

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PROCEDURAL HISTORY

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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).

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(AR 1).
(Dkt. No.

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III.

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FACTUAL BACKGROUND

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A. Plaintiff’s History

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Plaintiff was born on July 13, 1967. (AR 20, 33).

Plaintiff

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left

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Plaintiff worked as a hairstylist until 2007. (AR 508).

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April 2014 hearing, Plaintiff testified that she also previously

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worked in childcare, watching two young children for her sister-

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in-law. (AR 35-36). Plaintiff testified, however, that she stopped

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working because she heard voices telling her not to work. Plaintiff

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has not sought work since 2005 or 2006.

school

after

completing

the

eleventh

grade.

(AR

876).
At the

(AR 36).

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Medical records dated July 2, 2014 note that Plaintiff has

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seven children between the ages of 14 and 26.

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Plaintiff testified to living with her daughters (AR 34), medical

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records state that she lives with one daughter, her sister, her

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sister’s children, as well as several pets.

(AR 876).

While

(AR 876).

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Plaintiff’s May 17, 2013 medical records list “TANF, Food

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Stamps” under “Current Source of Income”.

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Plaintiff

testified

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children.

(AR 38).

that

she

receives

(AR 508).
benefits

Additionally,
for

her

minor

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Medical records from the Riverside County Department of Mental

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Health, Alcohol and Drug Services, dated January 14, 2013 state

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that Plaintiff’s mother denied that Plaintiff had any current or
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past use of alcohol or street drugs.

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Emergency Room Continuation of Care Report dated February 9, 2013

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notes that Plaintiff “was brought in by Emergency Medical Services,

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secondary to doing PCP today” (AR 800) and that Plaintiff “stated

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she smoked some PCP and [] doesn’t remember what happen[ed].”

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804).

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“Past Medical History”.

(AR 716).

However, an

(AR

Medical records from this date also list “drug use” under
(AR 803).

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On

May

17,

2013,

Plaintiff

denied

substance

abuse

to

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consultative physician Dr. Paul Martin.

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comments state that “her behavior on exam certainly raises concerns

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regarding this area.”

However, Dr. Martin’s

(AR 507-508).

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On August 5, 2013, an Emergency Room Continuation of Care

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Report notes that Plaintiff’s “urine drugs screen” tested positive

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for PCP.

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Room Report notes PCP abuse under past medical history.

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This same report states that Plaintiff had been discharged from

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Menifee Valley Medical Center a few days prior with a diagnosis of

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“altered level of consciousness and delirium, secondary to PCP []

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abuse.”

(AR 774).

Additionally, an August 10, 2013 Emergency
(AR 766).

(AR 767).

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On August 13, 2013, another Emergency Room Report states that

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Plaintiff came in complaining of severe pain and wanting pain

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medications, however had “slurred speech” and “was positive for

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PCP”.

(AR 763).

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4

1

Mental

health

records

from

August

16,

2013

note

that

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Plaintiff’s landlord reported concerns about Plaintiff’s well-

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being.

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seen Plaintiff and that she “could hardly talk and appeared to be

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under the influence of medications that made her look ‘out of it’.

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[The Landlord] verbalized concern that [Plaintiff] was driving in

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this condition and that she also drove her two children this way

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as well.”

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indicate that Plaintiff received a DUI while driving under the

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Specifically, the landlord reported that she had recently

(AR 691).

Case management records from January 2013

influence of her prescription medications.

(AR 684).

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On October 8, 2013, Plaintiff stated during an interview that

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she “‘had just started using PCP this past year’, but that she ‘has

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been clean for x4 months.’

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stated that she ‘has been using [PCP] a long time.’”

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She further stated that she “hears voices (‘not now, I took my

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meds’) that tell her to use.”

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“stated that she has been clean and sober for x45 days from PCP”

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and expressed “how she feels she ‘gets worse when using’ and ‘the

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voices tell her to do bad things, worse when on PCP.’”

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also denied auditory or visual hallucinations.

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that she experiences hallucinations when not on her medication.

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(AR 688).

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service on April 8, 2014 state that Plaintiff “checked into group,

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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).

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Notes from Plaintiff’s orthopedic consultation with Dr. Mario

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Luna on June 30, 2014 report, however, that Plaintiff “has never
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used drugs”.

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a psychological evaluation with Dr. Kathy Vandenburgh.

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“Habits,” Dr. Vandenburgh’s report states that Plaintiff “denies a

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history of drug or alcohol abuse.”

(AR 864).

Likewise, on July 2, 2014, Plaintiff had
Under

(AR 877).

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Under “Legal,” this report also states that Plaintiff “reports

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a history of incarceration in prison for two years in 2003 due to

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trying to hurt somebody else.”

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17,

2013

similarly

state

(Id.).

that

Medical records from May

plaintiff

“acknowledged

some

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involvement with the legal system, including serving a prison term,

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but she would not elaborate on the details.”

(AR 508).

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Plaintiff’s

July

23,

2012

application

for

SSI

alleged

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disability

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conditions,

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tunnel syndrome. (AR 166).

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sought mental health treatment and participated in group therapy.

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(AR 648-720, 891-898).

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exhibited restless motor activity, illogical thought processes,

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bizarre thought content, paranoid delusions, auditory and visual

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hallucinations, poor eye contact, irritability and a depressed

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mood. (AR 648-702).

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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

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B. Plaintiff’s Testimony

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On April 18, 2014, Plaintiff testified about her work history,

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symptoms, and limitations in response to the ALJ’s questions. (AR
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32-43).

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back pain, auditory hallucinations and difficulty being around

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others.

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Plaintiff stated that “Susan tells me don’t work.

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me to do anything.

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there and we talk to each other and we talk to each other and those

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people and stuff in my head.” (AR 42).

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she does not “like to be around a lot of people.

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tells me to – she just wants me all to herself and she doesn’t want

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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.).

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Plaintiff testified about her daily living, stating that she

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could not do household chores. (AR 38).

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mother and daughters help her to get dressed and take care of her

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personal hygiene needs. (AR 37-38).

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to the grocery store once a month with her family.

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does not walk around the store but, rather, sits in a “wheelie

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cart.” (AR 39).

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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

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C. Treating Physicians

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1.

Niraj Gupta, M.D.

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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
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Unspecified.”

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based on this appointment, noting that Plaintiff suffered from

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auditory and visual hallucinations, that delusions and paranoid

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thoughts influenced her actions or behavior, that she had a severe

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memory deficit and a moderate judgment deficit, that she was not

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able to complete a forty-hour work week without decompensating,

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and that her diagnosis was “chronic.” (AR 895).

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noted, however, that Plaintiff was able to manage her own funds in

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her best interest. (AR 895).

(AR 896).

Dr. Gupta completed a “Narrative Report”

Dr. Gupta also

At this appointment, Dr. Gupta

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provided a Global Assessment of Functioning (“GAF”) score of 50

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for Plaintiff, indicating that her mental impairment symptoms fell

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within the “serious” range of severity. (AR 896).

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2.

Marianne Tahl, M.D.

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On October 10, 2011, Plaintiff’s treating Physician, Dr.

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Marianne Tahl, wrote a letter on Plaintiff’s behalf stating that

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Plaintiff was currently under her care and “may not return to work

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at this time.” (AR 482).

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Tahl’s office “requesting a letter stating she needs to be off work

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from January 2013 [until] . . . further notice.” (AR 576).

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March 29, 2013, Dr. Tahl wrote a letter on Plaintiff’s behalf

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stating that she “may not return to work indefinitely as of

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1/13/2013, due to a medical condition.” (AR 862).

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2014, Dr. Tahl wrote a third letter stating that Plaintiff “may

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not return to work indefinitely as of 04/11/2014, due to a medical

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condition.” (AR 861).

On March 15, 2013, Plaintiff called Dr.

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On

On April 11,

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D. Consultative Examinations

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Plaintiff

underwent

two

consultative

psychological

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examinations, one in May 2013 and the other in July 2014. (AR 507-

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510, 875-879).

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1.

Paul Martin, Ph.D.

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On May 17, 2013, Dr. Paul Martin, a licensed psychologist,

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conducted a psychological evaluation of Plaintiff. (AR 507-510).

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Plaintiff was 45 years old on the date of the evaluation.

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507).

(AR

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Dr.

Martin

found

that

Plaintiff

was

“very

unhelpful

on

15

interview, and appeared to be exaggerating the severity of her

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deficits.

Very little useful information could be obtained on

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interview.

She reported previously using mental health services,

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but could not provide details or describe her symptoms.”

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He further stated that Plaintiff “presented in a manner that raised

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concerns about her genuine effort versus exaggeration of symptoms.”

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(Id.).

(AR 507).

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Under the report topic entitled “Substance Abuse,” Dr. Martin

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wrote:

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concerns regarding this area.”

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entitled “Forensic,” Dr. Martin wrote:

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involvement with the legal system, including serving a prison term,

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but she would not elaborate on the details.”

“Denied.

However, her behavior on exam certainly raises
(AR 508).

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Under the report topic
“She acknowledged some

(AR 508).

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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

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scale IQ score of 40, indicating that her intellectual functioning

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was in the impaired range. (AR 509).

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that the score was invalid because Plaintiff was “unable/unwilling

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to perform the simplest tasks.” (Id.).

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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

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information was in the impaired range. (Id.).

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considered

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malingering and that she had a GAF score of 701 (id.), indicating

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mild symptoms or difficulty functioning.

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Martin stated that “[d]ue to the unreliability of the claimant’s

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self-reported history and level of functioning, it is presumed that

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her actual level of functioning is better than her self-reported

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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.

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Under the report topic entitled “General Observations,” Dr.

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Martin stated that Plaintiff’s “expressive and receptive language

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skills were adequate” and that her “gross motor function was

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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)).
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normal” and that she was “able to ambulate without assistance.”

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(AR 508).

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2.

Kathy Vandenburgh, Ph.D.

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On

July

2,

2014,

Dr.

Kathy

Vandenburgh,

a

psychologist,

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conducted a psychological evaluation of Plaintiff. (AR 875-883).

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Plaintiff was 46 years old on the date of the evaluation.

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876).

(AR

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Under the report topic entitled “Habits,” Dr. Vandenburgh

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wrote: “The [plaintiff] denies a history of drug or alcohol abuse.”

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(AR 877).

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wrote: “The [Plaintiff] reports a history of incarceration in

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prison for two years in 2003 due to trying to hurt somebody else.

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She reported, ‘Susan hit someone with a screwdriver.’

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ever being in trouble with the law since that time.”

Under the report topic entitled “Legal,” Dr. Vandenburgh

She denies
(Id.).

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19

Dr.

Vandenburgh

noted

deficits

in

memory,

attention,

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concentration,

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Vandenburgh was unable to complete the WAIS-IV and WMS-IV because

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Plaintiff could not answer any questions correctly or remember any

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of

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Plaintiff’s “presentation was consistent with an individual who

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was

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[friend] named Susan ... Her presentation clearly was not genuine.”

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(AR 876).

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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

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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.

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5

Under the report topic entitled “Speech,” Dr. Vandenburgh

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stated that Plaintiff’s speech was normal, however she “was acting

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in a childlike manner, and her speech reflected this. The evaluator

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was

9

productions.

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able

to

understand

100%

of

the

[plaintiff’s]

Tone was adequately modulated.

was adequate.”

verbal

Verbal response time

(AR 877).

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E. Adult Function Report

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14

On March 22, 2013, Plaintiff completed an Adult Function

15

Report. (AR 366-374).

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understanding,

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instructions, among other things. (AR 371).

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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

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F. Vocational Expert’s Testimony

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23

Dr. Luis Mas, a vocational expert (“VE”) testified at the

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October 23, 2014 hearing. (AR 49-54).

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consider

26

determining Plaintiff’s ability to work. (AR 50-52).

27

hypothetical

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environmental limitations. (AR 52).

a

series

of

included

factors

a

in

person

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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

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52-53).

identify

work

in

the

national

economy

that

would

be

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IV.

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THE FIVE STEP SEQUENTIAL EVALUATION PROCESS

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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

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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

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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

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To decide if a claimant is entitled to benefits, an ALJ

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conducts a five-step inquiry.

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steps are:

20 C.F.R. §§ 404.1520, 416.920.

The

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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.

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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).

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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