Dallas Scott Herring v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (mba)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 DALLAS SCOTT HERRING, 12 Plaintiff, 13 14 15 v. Case No. SA CV 16-01230-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. 17 18 19 Dallas Scott Herring (“Plaintiff”) appeals from the Social Security 20 Commissioner’s final decision denying his application for Supplemental 21 Security Income (“SSI”). For the reasons discussed below, the Commissioner’s 22 decision is affirmed and this matter is dismissed with prejudice. 23 /// 24 /// 25 /// 26 On January 23, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as defendant under Federal Rule of Civil Procedure 25(d). 27 28 1 1 I. 2 BACKGROUND Plaintiff filed an application for SSI on May 3, 2013, alleging disability 3 4 beginning on April 15, 2004. Administrative Record (“AR”) 203-08. After his 5 application was denied, he requested a hearing before an administrative law 6 judge (“ALJ”). AR 83-85. At a November 7, 2013 hearing, the ALJ heard 7 testimony by a vocational expert (“VE”), an impartial medical expert, and 8 Plaintiff, who was represented by counsel. AR 38-54. In a written decision issued January 15, 2015, the ALJ denied Plaintiff’s 9 10 claim for benefits. AR 15-37. He found that Plaintiff had medically- 11 determinable severe impairments consisting of degenerative disc disease, 12 degenerative arthritis of the lumbar spine, and bipolar disorder. AR 20. He 13 found that despite those impairments, Plaintiff retained the residual functional 14 capacity (“RFC”) to perform light work with the following limitations: he can 15 “occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds; 16 he can stand and walk with normal breaks for a total of six hours of an eight- 17 hour day; he can sit with normal breaks for a total of six hours of an eight-hour 18 day; he is limited to simple routine tasks with a reasoning level of 3 or below; 19 object oriented so no work with the general public, in a habitual setting; and no 20 safety related operations.” AR 23. 21 Based on the VE’s testimony, the ALJ found that given Plaintiff’s age, 22 education, work experience, and RFC, Plaintiff would be able to perform the 23 requirements of representative occupations such as packer, with 24 “approximately 344,500 jobs available nationally,” or assembler, with 25 “approximately 83,000 jobs available in the national economy.” AR 32. The 26 ALJ found that because Plaintiff could perform jobs that existed in significant 27 numbers in the national economy, he was not disabled. AR 32-33. 28 /// 2 The Appeals Council denied review of the ALJ’s decision, which 1 2 became the final decision of the Commissioner. AR 1-7; see 20 C.F.R. 3 § 416.1481. Plaintiff then sought judicial review in this Court. Dkt. 1. 4 II. 5 DISCUSSION Plaintiff argues that (1) the ALJ failed to properly consider two 6 7 physicians’ opinions on Plaintiff’s mental limitations and (2) the VE’s job 8 availability estimates conflict with County Business Patterns (“CBP”) data. See 9 Joint Stipulation (“JS”) at 4. For the reasons discussed below, the Court finds 10 that the ALJ did not err. 11 A. 12 Evidence of Mental Limitations Plaintiff claims that the ALJ improperly gave greater weight to the 13 opinion of the testifying, impartial medical expert than the opinions of an 14 examining psychologist and a state-agency consulting psychologist. See JS at 15 10-12. 16 17 18 19 1. Relevant Facts a. Dr. Howard S. Leizer: State-Agency Consulting Psychologist Dr. Leizer was the state-agency psychologist who reviewed Plaintiff’s 20 medical records when Plaintiff’s application was initially denied. AR 66. 21 Regarding social interaction limitations, Dr. Leizer determined that Plaintiff 22 was not significantly limited in his ability to ask simple questions, request 23 assistance, and maintain socially appropriate behavior. Id. He found that 24 Plaintiff was moderately limited in his ability to interact appropriately with the 25 general public, accept instructions, respond appropriately to criticism from 26 supervisors, and get along with coworkers or peers without distracting them. 27 Id. In sum, he found that Plaintiff “would be able to interact with the public 28 only for brief periods. Criticism from supervisors would likely exacerbate 3 1 [Plaintiff’s] symptoms. His best performance would be realized in a well- 2 spaced location with only a few co-workers.” Id. Regarding adaptation limitations, Dr. Leizer found that Plaintiff was not 3 4 significantly limited in his ability to be aware of normal hazards, take 5 appropriate precautions, travel in unfamiliar places, and use public 6 transportation; he found that Plaintiff was moderately limited in his ability to 7 respond appropriately to changes in the work setting, set realistic goals, and 8 make plans independently of others. Id. In sum, he found that Plaintiff “would 9 need assistance in adapting to change, unless infrequent or implemented 10 gradually.” Id. 11 b. Dr. Sohini P. Parikh: Examining Psychiatrist Dr. Parikh conducted a full psychiatric examination of Plaintiff. AR 336- 12 13 43. She found that “from a psychiatric standpoint, [Plaintiff] did not seem to 14 have moderate impairment in the ability to reason and make social, 15 occupational, and personal adjustments.” AR 342. Further, she found no 16 mental limitations in social functioning, daily activities, concentration, 17 persistence, pace, and emotional deterioration in work-like situations. AR 342. 18 Dr. Parikh found moderate impairments in Plaintiff’s ability to understand, 19 carry out, and remember both simple and complex instructions, respond to 20 coworkers, supervisors, and the general public, respond appropriately to usual 21 work situations, and deal with changes in a routine work setting. AR 342-43. 22 Additionally, she found that Plaintiff had a good relationship with family and 23 friends, was cooperative during the examination, was able to focus attention, 24 had normal speech patterns, and could follow simple instructions, although his 25 attention was poor and his mood was depressed. AR 338-40. She noted that in 26 addition to her own examination, she had reviewed records from another 27 physician’s examination. AR 337. 28 /// 4 1 2 c. Dr. Joseph Malancharuvil: Impartial Medical Expert Dr. Malancharuvil is a licensed clinical psychologist. AR 42. At 3 Plaintiff’s hearing, Dr. Malancharuvil testified that Plaintiff has no limitations 4 of daily living, mild-to-moderate limitations in social functioning, and “retains 5 the capacity for simple work, up to four or five step instructions in a routine 6 setting.” AR 43-44. Dr. Malancharuvil came to this conclusion based on a 7 review of the entire record. AR 42-45. He disagreed with an assessment by 8 Plaintiff’s treating physician that Plaintiff could not work steadily because it 9 contradicted Dr. Parikh’s psychiatric evaluation, which found that Plaintiff 10 had moderate, but not marked, functional limitations. AR 42-45. He further 11 noted that Plaintiff has a recorded history of faking symptoms and should have 12 been able to continue taking his medication. AR 43-45. Dr. Malancharuvil 13 noted that Plaintiff “has a word problem and . . . some bipolar features to his 14 mental status. But [in] other ways, his mental status is intact.” AR 46. He 15 therefore concluded that Plaintiff could consistently work without being 16 frequently absent. AR 46. 17 d. 18 ALJ Decision The ALJ found that Plaintiff’s mental impairments did not constitute a 19 disability despite his moderate social limitations. AR 21-22. He noted that 20 “[t]he opinions of the impartial psychological medical expert, independent 21 psychiatric consultative examiner, and the [state-agency] psychological 22 consultants support this finding” and were consistent with the record. AR 22, 23 27-28. The ALJ also noted that on a daily basis, Plaintiff finds food, 24 panhandles, travels alone, does not bother others, gets along with authority 25 figures, and has never been dismissed from a job because of his trouble with 26 other people. AR 22. The ALJ’s RFC to perform light work with some 27 limitations was “supported by the opinions of the impartial medical expert, 28 independent consultative examiners and the [state-agency] medical 5 1 consultants, the treatment record, the claimant’s [activities of daily living], the 2 Social Security Administration field office interviewer’s observations, and the 3 claimant’s demeanor and testimony at the hearing.” AR 31. 4 The ALJ assessed the opinions of Dr. Malancharuvil, Dr. Parikh, and 5 Dr. Leizer as follows. The ALJ gave Dr. Malancharuvil’s opinion “great 6 weight because he is an impartial medical expert, he is a licensed clinical 7 psychologist, he reviewed the [Plaintiff’s] records, and he is familiar with the 8 Social Security Administration’s precise disability guidelines. More 9 importantly, his opinion is consistent with the medical record as a whole.” AR 10 27. The ALJ gave “Dr. Parikh’s opinion significant weight (less than great, but 11 more than substantial or little) because she is an independent consultative 12 examiner, she examined the [Plaintiff], she is familiar with the Social Security 13 Administration’s precise disability guidelines, and her opinion is consistent 14 with her exam findings and the medical evidence record as a whole. Dr. 15 Parikh’s opinion is reasonable but given less weight than Dr. Malancharuvil’s 16 opinion because Dr. Malancharuvil is an impartial medical expert who 17 reviewed the entire medical record.” AR 28. Finally, the ALJ gave Dr. Leizer’s 18 opinions “substantial weight because he reviewed the [Plaintiff’s] records, he is 19 familiar with the Social Security Administration’s precise disability guidelines, 20 and his opinion is consistent with the medical record as a whole. His opinion is 21 reasonable based on the medical evidence record but it is given less weight 22 because he is not an impartial medical expert and he did not examine the 23 claimant.” AR 28. 24 2. 25 Three types of physicians may offer opinions in Social Security cases: Applicable Law 26 those who treated the plaintiff, those who examined but did not treat the 27 plaintiff, and those who did neither. See 20 C.F.R. § 416.927(c); Lester v. 28 6 1 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996).2 The 2 weight accorded to each physician’s opinion depends on several factors, 3 including whether the opinion is consistent with the record and accompanied 4 by adequate explanation, the nature and extent of the treatment relationship, 5 and the degree to which it provides supporting explanations that consider all 6 pertinent evidence in a Plaintiff’s claim. § 416.927(c). A treating physician’s 7 opinion is generally entitled to more weight than an examining physician’s 8 opinion, which is generally entitled to more weight than a nonexamining 9 physician’s. Lester, 81 F.3d at 830. 10 “To evaluate whether an ALJ properly rejected a medical opinion, in 11 addition to considering its source, the court considers whether (1) 12 contradictory opinions are in the record, and (2) clinical findings support the 13 opinions. An ALJ may reject an uncontradicted opinion of a treating or 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 15-05925, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”); cf. Revised Medical Criteria for Determination of Disability, Musculoskeletal System and Related Criteria, 66 Fed. Reg. 58010, 58011 (Nov. 19, 2001) (“With respect to claims in which we have made a final decision, and that are pending judicial review in Federal court, we expect that the court’s review of the Commissioner’s final decision would be made in accordance with the rules in effect at the time of the final decision.”). Accordingly, the Court applies the versions of 20 C.F.R. §§ 416.927 that was in effect at the time of the ALJ’s August 2014 decision. 2 7 1 examining medical professional only for ‘clear and convincing’ reasons.” 2 Nicholas v. Colvin, No. 13-2551, 2014 WL 5242584, at *2 (E.D. Cal. Oct. 14, 3 2014) (quoting Lester, 81 F.3d at 830-31); see Bayliss v. Barnhart, 427 F.3d 4 1211, 1216 (9th Cir. 2005). 5 “In contrast, a contradicted opinion of a treating or examining 6 professional may be rejected for ‘specific and legitimate’ reasons that are 7 supported by substantial evidence.” Nicholas, 2014 WL 5242584, at *2 8 (citation omitted). “Where the opinion of the claimant’s treating physician is 9 contradicted, and the opinion of a nontreating source is based on independent 10 clinical findings that differ from those of the treating physician, the opinion of 11 the nontreating source may itself be substantial evidence; it is then solely the 12 province of the ALJ to resolve the conflict.” Andrews v. Shalala, 53 F.3d 1035, 13 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 14 1989)); Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 15 1999) (testifying medical-expert opinions may serve as substantial evidence 16 when “they are supported by other evidence in the record and are consistent 17 with it”); Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) (as 18 amended) (noting that the findings of a nontreating physician can amount to 19 substantial evidence so long as other evidence in the record supports those 20 findings). 21 3. 22 Plaintiff claims that the ALJ “rejected” without explanation Dr. Parikh’s Analysis 23 and Dr. Leizer’s findings of moderate limitations in social functioning and 24 adaptation at work in favor of Dr. Malancharuvil’s finding of no such 25 limitations. JS at 10, 18. Contrary to Plaintiff’s claim, the ALJ did not reject 26 the opinions of Dr. Parikh and Dr. Leizer. He simply gave them less weight. 27 See AR 28. The ALJ gave Dr. Parikh’s opinion “significant weight” and 28 formulated an RFC incorporating her findings of moderate limitations in 8 1 following simple instructions, dealing with coworkers and the public, and 2 responding to changes in work situations. AR 27. The RFC limiting Plaintiff to 3 simple, routine tasks in a habitual setting with no work with the general public 4 also incorporated Dr. Leizer’s findings of moderate impairment in responding 5 to changes at work and making plans independently of others. 6 The physicians’ opinions do not contain any major inconsistencies about 7 Plaintiff’s social functioning and adaptation limitations. The ALJ concluded 8 that Plaintiff could not perform more than simple, routine tasks away from the 9 general public. This conclusion is consistent with all three medical opinions. 10 See Lester, 81 F.3d at 830. Additionally, the ALJ’s decision to give less weight 11 to Dr. Parikh’s and Dr. Leizer’s opinions accrued to Plaintiff’s benefit. Dr. 12 Parikh found no limitations in social functioning while Dr. Malancharuvil 13 found mild-to-moderate limitations. Dr. Malancharuvil’s finding likely 14 contributed to the ALJ’s decision that Plaintiff could not perform work with 15 the general public. 16 To the extent that the ALJ appears to have discredited Dr. Parikh’s 17 opinion, he did so only where Dr. Malancharuvil’s opinion contradicted it. Dr. 18 Malancharuvil’s assessment that Plaintiff’s mental status was largely intact 19 such that he could work consistently does not seamlessly align with Dr. 20 Parikh’s opinion that Plaintiff had moderate impairments in his ability to carry 21 out simple instructions and respond appropriately to the usual work situations. 22 See AR 46, 337. Yet where their opinions differed, Dr. Malancharuvil’s 23 findings were consistent with the record as a whole and took into account 24 Plaintiff’s well-documented history of faking symptoms and inexplicable 25 failure to take medication or undergo consistent treatment. See AR 43-45. 26 Moreover, the record shows Dr. Parikh did not have access to this 27 history when conducting her examination. As a result, the ALJ discounted her 28 opinion “in reliance on the testimony of a nonexamining advisor,” Dr. 9 1 Malancharuvil, whose opinion was “supported by other evidence in the record 2 and [is] consistent with it.” See Andrews, 53 F.3d at 1041. The ALJ thus gave 3 “specific and legitimate” reasons for giving Dr. Malancharuvil’s opinions 4 greater weight. See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 5 1164 (9th Cir. 2008). Dr. Malancharuvil’s opinion also benefits from the fact 6 that greater weight may be given to a nonexamining doctor who is subject to 7 cross-examination, as he was during Plaintiff’s hearing. Andrews, 53 F.3d at 8 1042. Thus, his opinion “need not be discounted and may serve as substantial 9 evidence.” Id. 10 As to Plaintiff’s claim that Dr. Leizer’s opinion warranted greater weight 11 than Dr. Malancharuvil’s or Dr. Parikh’s opinions, nothing in the record 12 supports this conclusion. Unlike Dr. Parikh, Dr. Leizer did not examine 13 Plaintiff, and examining physicians are generally entitled to more weight. 14 Lester, 81 F.3d at 830. The ALJ followed the general rule when weighing the 15 two medical opinions. AR 28. The ALJ also explained that she gave Dr. 16 Leizer’s opinion less weight than Dr. Malancharuvil’s opinion because he was 17 not an impartial medical expert. AR 28. Substantial evidence within the record 18 supported the decision, including Plaintiff’s medical records, testimony, and 19 the opinions of several other doctors. 20 Even if giving Dr. Malancharuvil’s opinion greater weight than Dr. 21 Parikh’s opinion had not been supported by substantial evidence, any error 22 was harmless. Plaintiff’s RFC was for simple and routine tasks with no public 23 interaction, to be performed in a habitual setting. This takes into account the 24 moderate limitations found by both Dr. Parikh and Dr. Leizer. See Stubbs- 25 Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) (finding that an 26 RFC limiting a plaintiff to “simple tasks” adequately translated the plaintiff’s 27 “moderate” limitations in adaptation and concentration); Lawhorn v. Colvin, 28 609 Fed. App’x 449, 450 (9th Cir. 2015) (finding that RFC for simple, routine 10 1 tasks encompassed medical opinion that plaintiff could perform both simple, 2 repetitive tasks and detailed, complex ones despite difficulty concentrating). 3 In sum, the ALJ’s RFC assessment was supported by substantial 4 evidence. Remand is not warranted on this basis. 5 B. 6 VE Testimony Regarding Job Numbers Plaintiff contends that the ALJ improperly accepted the VE’s testimony 7 that he would be able to perform unskilled positions of light exertional level 8 such as packer/hand packager (DOT 920.687-166), which has “approximately 9 344,500 jobs available nationally,” and assembler (DOT 701.687-010), which 10 has “approximately 82,000 jobs available in the national economy.” AR 32. 11 1. 12 At Plaintiff’s hearing, the VE testified that a hypothetical person with Relevant Facts 13 Plaintiff’s RFC could perform representative jobs such as packer or assembler. 14 AR 52-53. He stated that there were approximately 344,500 packer jobs and 15 83,000 assembler jobs nationally and that his testimony was consistent with the 16 Dictionary of Occupational Titles (“DOT”). AR 53. Plaintiff’s attorney did not 17 challenge the VE’s job numbers, ask about their source, or present any 18 alternative job data. 19 In his written decision, the ALJ determined that under SSR 00-4P, the 20 VE’s testimony was “consistent with the information contained in the [DOT] 21 and the record.” AR 32. Based on the VE’s testimony, the ALJ found that 22 Plaintiff was “capable of making a successful adjustment to other work that 23 exists in significant numbers in the national economy.” Id. 24 2. 25 At step five of the sequential evaluation process, an ALJ must determine Applicable Law 26 whether a disability claimant who cannot perform past relevant work is 27 nevertheless capable of performing other work that exists in significant 28 numbers in the national economy. 20 C.F.R. § 404.1520(a). The DOT is the 11 1 best source of information about how a job is generally performed. Carmickle, 2 533 F.3d at 1166; see also 20 C.F.R. § 416.966(d)(1) (noting that the Social 3 Security Administration takes administrative notice of DOT). To rely on a 4 VE’s testimony regarding the requirements of a particular job, an ALJ must 5 first inquire as to whether the testimony conflicts with the DOT. Massachi v. 6 Astrue, 486 F.3d 1149, 1152-53 (9th Cir. 2007) (citing SSR 00-4p, 2000 WL 7 1898704, *4 (Dec. 4, 2000)). When such a conflict exists, the ALJ may accept 8 VE testimony that contradicts the DOT only if the record contains “persuasive 9 evidence to support the deviation.” Pinto v. Massanari, 249 F.3d 840, 846 (9th 10 11 Cir. 2001) (citing Johnson v. Shalala, 60 F.3d 1428, 1435 (9th Cir. 1995)). Claimants may challenge an ALJ’s acceptance of a VE’s testimony, but 12 “they must raise all issues and evidence at their administrative hearings in 13 order to preserve them on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th 14 Cir. 1999) (as amended). Although a plaintiff may challenge the reliability or 15 evidentiary basis for a VE’s job numbers, “when a claimant fails entirely to 16 challenge a [VE’s] job numbers during administrative proceedings before the 17 agency, the claimant waives such a challenge on appeal, at least when the 18 claimant is represented by counsel.” Shaibi v. Berryhill, 870 F.3d 874, 881 (9th 19 Cir. 2017). This “encompasses challenges based on an alleged conflict with 20 alternative job numbers gleaned from the CBP,” which is published by the 21 U.S. Census Bureau. Id.; see also Valenzuela v. Colvin, No. 12-0754, 2013 22 WL 2285232, at *3 (C.D. Cal. May 23, 2013) (rejecting argument that ALJ 23 erred in relying on VE’s job estimate testimony in part because “plaintiff 24 waited until after the ALJ’s adverse decision to submit alternative jobs data”). 25 3. 26 Plaintiff argues that the ALJ erred in relying on the VE’s testimony that 27 the representative jobs existed in significant numbers in the national economy. 28 See JS at 21. He “requests that the court take judicial notice of administratively Analysis 12 1 noticed facts pursuant to 20 CFR § 416.966(d).” Dkt. 20 at 1. Plaintiff attached 2 CBP data indicating that the cutlery and handtool manufacturing industry has 3 34,970 paid employees and the footwear manufacturing industry has 11,414 4 paid employees as of 2014. Dkt. 20 at 4, 9. Noting that the DOT describes the 5 two representative occupations as occurring in these industries, Plaintiff 6 suggests that the VE’s job numbers are mathematically impossible and “no 7 reasonable person would believe that the national economy supports 83,000 8 assemblers of cutlery and hardware tools when the entire cutlery and hardware 9 industry employees 34,970 people in all designations.” JS at 19-21. 10 Plaintiff failed to raise this issue or submit the CBP data to the Social 11 Security Administration at any point during administrative proceedings. 12 Because Plaintiff was represented by counsel yet failed to address any 13 inconsistent job numbers, he was “waive[d] such a challenge on appeal.” 14 Shaibi, 870 F.3d at 881. Thus, remand is not warranted. 15 III. 16 CONCLUSION 17 18 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 19 20 Dated: October 16, 2017 __________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 21 22 23 24 25 26 27 28 13

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