Christina L. Cosgrove v. Carolyn W. Colvin

Filing 24

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See order for details. (hr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTINA L. COSGROVE, Plaintiff, 12 v. 13 14 15 18 19 20 21 22 23 24 25 26 MEMORANDUM OPINION NANCY A. BERRYHILL,1 Acting Commissioner of Social Security, Defendant. 16 17 Case No. EDCV 16-2551 JC I. SUMMARY On December 12, 2016, plaintiff Christina L. Cosgrove filed a Complaint seeking review of the Commissioner of Social Security’s denial of plaintiff’s application for benefits. The parties have consented to proceed before the undersigned United States Magistrate Judge. This matter is before the Court on the parties’ cross motions for summary judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”) (collectively “Motions”). The Court has taken the Motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; December 14, 2016 Case Management Order ¶ 5. 27 1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is 28 hereby substituted as the defendant in this action. 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 (“ALJ”) are supported by substantial evidence and are free from material error. 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On February 11, 2013, plaintiff filed an application for Supplemental 7 Security Income alleging disability beginning on August 22, 2012, due to 8 tendinitis in both elbows, diabetes, high blood pressure, and asthma. 9 (Administrative Record (“AR”) 34, 189, 208). The ALJ examined the medical 10 record and heard testimony from plaintiff (who was represented by counsel) and a 11 vocational expert on April 29, 2015. (AR 52-86). 12 On June 29, 2015, the ALJ determined that plaintiff was not disabled 13 through the date of the decision. (AR 34-47). Specifically, the ALJ found: 14 (1) plaintiff suffered from severe impairments of tendinitis of both elbows, status 15 post bilateral elbow surgeries in 2012, and cervical spine radiculopathy (AR 36), 16 and nonsevere impairments including a medically determinable mental impairment 17 of pain disorder with psychological factors (AR 37); (2) plaintiff’s impairments, 18 considered singly or in combination, did not meet or medically equal a listed 19 impairment (AR 39); (3) plaintiff retained the residual functional capacity to 20 perform a range of light work (20 C.F.R. § 416.967(b)) with additional limitations2 21 (AR 39); (4) plaintiff was unable to perform any past relevant work (AR 45); 22 (5) there are jobs that exist in significant numbers in the national economy that 23 24 2 Specifically, the ALJ determined that plaintiff could (i) lift and/or carry 20 pounds 25 occasionally and 10 pounds frequently; (ii) stand and/or walk for six hours out of an eight-hour workday with regular breaks; (iii) sit for six hours out of an eight-hour workday with regular 26 breaks; (iv) occasionally climb ladders, ropes, and scaffolds; (v) frequently perform pushing and 27 pulling with the upper extremities; (vi) frequently use hand controls bilaterally; (vii) frequently climb ramps and stairs; and that plaintiff (viii) needed to avoid concentrated exposure to extreme 28 cold, fumes, odors, dusts, gases, poor ventilation, and hazards. (AR 39). 2 1 plaintiff could perform (AR 46); and (6) plaintiff’s statements regarding the 2 intensity, persistence, and limiting effects of subjective symptoms were less than 3 fully credible (AR 40, 42). 4 On October 18, 2016, the Appeals Council denied plaintiff’s application for 5 review. (AR 1). 6 III. APPLICABLE LEGAL STANDARDS 7 A. 8 To qualify for disability benefits, a claimant must show that he or she is Administrative Evaluation of Disability Claims 9 unable “to engage in any substantial gainful activity by reason of any medically 10 determinable physical or mental impairment which can be expected to result in 11 death or which has lasted or can be expected to last for a continuous period of not 12 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 13 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be 14 considered disabled, a claimant must have an impairment of such severity that he 15 or she is incapable of performing work the claimant previously performed (“past 16 relevant work”) as well as any other “work which exists in the national economy.” 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)). 18 To assess whether a claimant is disabled, an ALJ is required to use the five- 19 step sequential evaluation process set forth in Social Security regulations. See 20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 21 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process) 22 (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at 23 steps one through four – i.e., determination of whether the claimant was engaging 24 in substantial gainful activity (step 1), has a sufficiently severe impairment (step 25 2), has an impairment or combination of impairments that meets or equals a listing 26 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (step 3), and retains the residual 27 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400 28 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the 3 1 burden of proof at step five – i.e., establishing that claimant could perform other 2 work in the national economy. Id. 3 B. 4 A federal court may set aside a denial of benefits only when the Federal Court Review of Social Security Disability Decisions 5 Commissioner’s “final decision” was “based on legal error or not supported by 6 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871 7 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The 8 standard of review in disability cases is “highly deferential.” Rounds v. 9 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir. 10 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be 11 upheld if the evidence could reasonably support either affirming or reversing the 12 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s 13 decision contains error, it must be affirmed if the error was harmless. Treichler v. 14 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir. 15 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability 16 determination; or (2) ALJ’s path may reasonably be discerned despite the error) 17 (citation and quotation marks omitted). 18 Substantial evidence is “such relevant evidence as a reasonable mind might 19 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation 20 and quotation marks omitted). It is “more than a mere scintilla, but less than a 21 preponderance.” Id. When determining whether substantial evidence supports an 22 ALJ’s finding, a court “must consider the entire record as a whole, weighing both 23 the evidence that supports and the evidence that detracts from the Commissioner’s 24 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation 25 and quotation marks omitted). 26 /// 27 /// 28 /// 4 1 C. 2 Step two of the sequential evaluation process functions as “a de minimis Evaluation of Impairment Severity (Step 2) 3 screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 4 1273, 1290 (9th Cir. 1996) (citation omitted). To proceed beyond step two, a 5 claimant essentially must present evidence that he or she has a medically 6 determinable physical or mental impairment which is severe, and which has lasted 7 (or can be expected to last) for a continuous period of twelve months or more. 20 8 C.F.R. § 416.920(a)(4)(ii); see Bowen v. Yuckert, 482 U.S. 137, 148 (1987); 9 Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (citing Social Security 10 Ruling 96-3p); Averbach v. Astrue, 731 F. Supp. 2d 977, 981 (C.D. Cal. 2010) 11 (citations omitted). An impairment may be deemed “not severe” only when it 12 involves a “slight abnormality” that has “no more than a minimal effect” on a 13 claimant’s “physical or mental ability to do basic work activities.” 20 C.F.R. 14 § 416.921(a) (1991); Webb, 433 F.3d at 686 (9th Cir. 2005) (citations omitted); 15 Bowen, 482 U.S. at 153-54 & n.11 (Social Security claimants must make “de 16 minimis” showing that impairment interferes with ability to engage in basic work 17 activities) (citations omitted; emphasis in original). When reviewing an ALJ’s 18 findings at step two, the district court “must determine whether the ALJ had 19 substantial evidence to find that the medical evidence clearly established that [the 20 claimant] did not have a medically severe impairment or combination of 21 impairments.” Webb, 433 F.3d at 687 (citing Yuckert v. Bowen, 841 F.2d 303, 22 306 (9th Cir. 1988) (“Despite the deference usually accorded to the Secretary’s 23 application of regulations, numerous appellate courts have imposed a narrow 24 construction upon the severity regulation applied here.”)). 25 When determining at step two whether a plaintiff’s mental impairment is 26 severe, an ALJ must evaluate the four broad functional areas known as “paragraph 27 B” criteria, namely (1) activities of daily living; (2) social functioning; 28 (3) concentration, persistence, or pace; and (4) episodes of decompensation. 5 1 20 C.F.R. § 416.920a(c)(3). If the degree of limitation in the first three functional 2 areas is “none” or “mild,” and there are no episodes of decompensation, a 3 plaintiff’s mental impairment is generally found “not severe” unless there is 4 evidence indicating a more than minimal limitation in the plaintiff’s ability to 5 perform basic work activities.3 See 20 C.F.R. § 416.920a(d)(1) (2011). 6 IV. DISCUSSION 7 Here, after the ALJ issued his decision, plaintiff presented new medical 8 opinion evidence – which the Appeals Council made part of the Administrative 9 Record when deciding whether to grant plaintiff’s request for review – including 10 (1) a Medical Source Statement of Ability to Do Work-Related Activities (Mental) 11 dated November 13, 2015 from Mr. Franklin Tse, PA-C – a treating certified 12 physician’s assistant (“Tse Statement”); and (2) an Evaluation Form for Mental 13 Disorders dated March 31, 2016 from Ms. Mindy Richard – a licensed clinical 14 social worker (“Richard Statement”) (collectively “new evidence”). This Court 15 also must consider such evidence in determining whether the ALJ’s decision was 16 supported by substantial evidence and free from legal error. See Brewes v. 17 Commissioner of Social Security Administration, 682 F.3d 1157, 1162-63 (9th 18 Cir. 2012); Taylor v. Commissioner of Social Security Administration, 659 F.3d 19 1228, 1231 (9th Cir. 2011) (citation omitted). Plaintiff argues that in light of such 20 new evidence the ALJ’s step two determination that plaintiff’s mental impairment 21 was nonsevere is no longer supported by substantial evidence. (Plaintiff’s Motion 22 at 5-11). A reversal or remand is not warranted on the asserted basis. 23 First, substantial evidence supports the ALJ’s step two determination. Here, 24 the ALJ found no limitations in plaintiff’s activities of daily living and social 25 functioning, only mild limitation in plaintiff’s concentration, persistence, and 26 27 28 3 Basic mental work activities include (1) understanding, carrying out, and remembering simple instructions; (2) responding appropriately to supervision, co-workers and usual work situations; and (3) dealing with changes in a routine work setting. See 20 C.F.R. § 416.921. 6 1 pace, and no episodes of decompensation. (AR 37-38). Therefore, the ALJ 2 properly concluded that plaintiff did not have a severe mental impairment. See 3 20 C.F.R. § 416.920a(d)(1) (2011). In addition, the ALJ relied on Dr. M. Skopec, 4 the state agency medical consultant on reconsideration, who noted that, although 5 plaintiff had not originally alleged a mental impairment, an August 20, 2013, 6 psychological evaluation prepared by Wolfgang A. Klebal, Ph.D. (which included 7 a mental status evaluation of plaintiff) reflected the plaintiff had a nonsevere 8 mental impairment. (AR 38, 103, 826-27). Dr. Skopec’s opinion constituted 9 substantial evidence supporting the ALJ’s decision since it was consistent with 10 independent medical evidence in the record, specifically Dr. Klebal’s independent 11 examination of plaintiff. See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 12 2001) (opinions of nontreating or nonexamining doctors may serve as substantial 13 evidence when consistent with independent clinical findings). 14 Plaintiff suggests that Dr. Skopec’s opinion was not substantial evidence 15 because Dr. Skopec had been unable to consider the report of a subsequent 16 consultative examination of plaintiff which noted a “history of depression [and] 17 mood swings.” (Plaintiff’s Motion at 9) (citing AR 966). However, there is no 18 dispute that plaintiff has a medically determinable mental impairment in the first 19 instance. (Plaintiff’s Motion at 9). Moreover, plaintiff does not persuasively 20 explain how such mental health diagnoses suggest any mental limitations that 21 were not already accounted for in the ALJ’s B Criteria findings, or otherwise 22 reflect a more than minimal limitation in the plaintiff’s ability to perform basic 23 mental work activities. 24 The ALJ also considered evidence of plaintiff’s apparent failure fully to 25 follow recommended psychological treatment. (AR 38). Plaintiff argues that the 26 ALJ failed properly to develop the medical record of plaintiff’s mental 27 impairments in this respect because “[t]he ALJ never asked . . . why [plaintiff] 28 never saw someone for her depression or mental impairments or why she never 7 1 went back after August 2013 evaluation [as recommended].” (Plaintiff’s Motion 2 at 11). However, an ALJ’s duty to develop the record is not triggered unless 3 “there is ambiguous evidence or when the record is inadequate to allow for proper 4 evaluation of the evidence.” McLeod v. Astrue, 640 F.3d 881, 885 (9th Cir. 2011) 5 (footnote citations omitted). Here, plaintiff points to no such ambiguity or 6 inadequacy of the record that plausibly triggered the ALJ’s duty as plaintiff 7 contends. 8 The opinions expressed in the Tse Statement and Richard Statement do not 9 undercut the ALJ’s findings at step two. For example, it does not appear that Mr. 10 Tse or Ms. Richard had any basis for providing a medical opinion regarding 11 plaintiff’s mental condition at any point on or before the date of the ALJ’s 12 decision. Cf. Brewes, 682 F.3d at 1162 (Appeals Council only required to 13 consider new evidence that “relates to the period on or before the date of the 14 administrative law judge hearing decision”) (citation omitted); 20 C.F.R. 15 § 416.1470(b) (same). For example, plaintiff points to nothing in the record which 16 plausibly suggests that Mr. Tse treated plaintiff for mental health issues in any 17 material way, much less did so in any manner as to support the Medical Source 18 Statement he prepared almost five months after the ALJ issued his decision. (AR 19 859). In fact, medical records suggest that Mr. Tse, and the medical group with 20 which he was apparently affiliated, primarily treated plaintiff only for physical 21 impairments. (AR 717-46, 817-23, 845-53). In addition, the Tse Statement 22 appears to reflect opinions about plaintiff’s present mental abilities at the time the 23 report was prepared, not retrospectively. (AR 857-59). Similarly, the Richard 24 Statement clearly reflects that Ms. Richard first examined plaintiff over six months 25 after the date of the ALJ’s decision, and that Ms. Richard had provided her 26 evaluation of plaintiff’s mental condition only three months after that. (AR 97027 73). In addition, plaintiff has not shown, and the above evidence does not suggest, 28 that the opinions of either medical provider reflect any mental impairment which 8 1 met the duration requirement (i.e., an impairment which lasted or is expected to 2 last for a continuous period of at least 12 months). See 42 U.S.C. § 423(d)(1)(A); 3 20 C.F.R. § 416.909. 4 Accordingly, a remand or reversal on this basis is not warranted. 5 V. CONCLUSION 6 For the foregoing reasons, the decision of the Commissioner of Social 7 Security is affirmed. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 9 DATED: October 31, 2017 10 11 12 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9

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