Shelly B. Medina v. Commissioner of Social Security

Filing 16

ORDER Regarding Plaintiff's Complaint, signed by Magistrate Judge Sheila K. Oberto on 5/13/2014. The Court DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social Security. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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SHELLY B. MEDINA,

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Plaintiff,

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Case No. 1:13-cv-00664-SKO
ORDER REGARDING PLAINTIFF'S
COMPLAINT

v.

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CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendant.

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____________________________________/

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INTRODUCTION

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Plaintiff Shelly B. Medina ("Plaintiff") seeks judicial review of a final decision of the

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20 Commissioner of Social Security (the "Commissioner" or "Defendant") denying her claim for
21 Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") pursuant to
22 Titles II and XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g), 1383(c)(3). The
23 matter is currently before the Court on the parties' briefs, which were submitted, without oral
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24 argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.

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The parties consented to the jurisdiction of the United States Magistrate Judge for all purposes. (Docs. 7, 9.)

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FACTUAL BACKGROUND

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Plaintiff was born in 1972, graduated high school, received some specialized job training,

3 and worked as an office clerk. (Administrative Record ("AR") 52, 53, 135, 145-45.) On April 2,
4 2010, Plaintiff filed applications for DIB and SSI, alleging disability beginning on June 1, 2004,
5 due to anxiety disorder and panic disorder.

(AR 108-21, 134.)

At the hearing before the

6 administrative law judge ("ALJ") Laura Havens, Plaintiff stated that her alleged disability onset
7 date was October 1, 2004, which is the date the ALJ considered in her decision. (AR 25-32, 44.)
8 A.

Relevant Medical Evidence2

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In January 2006, Plaintiff was admitted to Doctors Medical Center, where she delivered a

10 baby through caesarean section. (AR 242-68.) The records note that she had gestational diabetes.
11 (AR 242.)
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In June 2006, Plaintiff was treated for left knee pain. (AR 305.) A knee x-ray showed no

13 significant bony, soft tissue, or articular abnormality.

(AR 316.)

An August 25, 2006,

14 examination note indicates Plaintiff's knee pain had "improved." (AR 304.)
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On November 13, 2008, Plaintiff was seen by Ernesto Sameno, M.D., at Stanislaus Health

16 Services Agency ("Stanislaus"). (AR 300.) Plaintiff was diagnosed with anxiety but was noted to
17 be less "tearful" than she had appeared at examination on November 6, 2008. (AR 300.) Her
18 dosage of Celexa was increased. Plaintiff had been clean of methamphetamine for two months.
19 (AR 300.)
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Plaintiff was seen by David Sandoval, LCSW, at Stanislaus on November 25, 2008.

21 (AR 299.) Plaintiff reported that she had been clean of methamphetamine for three months and
22 that "things seem to be going better than in the past." (AR 299.) She stated that she has "good
23 support," was attending "welfare to work classes," and that she "would eventually like to get a job.
24 This will help [her] feel better." (AR 299.) Plaintiff indicated that her medication was "helping."
25 (AR 299.)
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Although the Court has reviewed the entire administrative record, only evidence relevant to the disputed issues will
be summarized.

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On December 10, 2008, Plaintiff was seen at Stanislaus. (AR 298.) Plaintiff was deemed

2 "improving overall," and her depression was noted to be "improving." (AR 298.) Plaintiff's
3 medication was refilled. (AR 298.)
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On December 16, 2008, Plaintiff was seen by Mr. Sandoval for a consultation. (AR 297.)

5 Plaintiff stated that she "has lots of anxiety" and "worried about many things." (AR 297.) Mr.
6 Sandoval noted Plaintiff would qualify for educational groups. (AR 297.)
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Plaintiff was seen by Marc Nielsen, D.O., on December 22, 2008, for panic attacks. (AR

8 296.) Plaintiff indicated that she was requesting disability and general assistance for depression
9 and anxiety. (AR 296.) Dr. Nielsen noted that Plaintiff had recently started Celexa and that he
10 would fill out the "general assistance waiver." (AR 296.) Dr. Nielsen opined that Plaintiff would
11 benefit from vocational education and job placement. (AR 296.)
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On December 29, 2008, Plaintiff was seen briefly by Mr. Sandoval, who noted that

13 Plaintiff was "very anxious about her condition as well as the forms that [the doctor] was helping
14 her complete." (AR 295.) While discussing her panic attack, Plaintiff became "tearful and
15 appeared anxious again." (AR 295.) Plaintiff stated that "she does want to work eventually but
16 a[t] present wants to figure out what is wrong with her." (AR 295.)
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On December 30, 2008, Plaintiff met with Dr. Nielsen for an evaluation of anxiety and

18 past history of methamphetamine use. (AR 294.) Plaintiff reported that "she has had difficulty
19 [with] anxiety and maintaining relationships," and "she also had difficulty keeping a job because
20 of her anxiety." (AR 294.) Plaintiff quit using methamphetamines four months prior, and became
21 "tearful when talking about her drug use affecting her children."

(AR 294.)

Dr. Nielsen

22 diagnosed Plaintiff with general anxiety disorder and methamphetamine dependence, brief, in full
23 remission. (AR 294.) Plaintiff was started on Wellbutrin, and her medication usage was to be
24 reassessed in six weeks. (AR 294.) Dr. Nielsen opined that Plaintiff should be "[o]ffer[ed] short
25 (2-3 month) disability until stable on medication." (AR 294.)
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On January 5, 2009, Dr. Nielsen reported Plaintiff had an acute, medically verifiable

27 condition that would limit her from performing certain tasks and that she should be off work for
28 three months, until March 30, 2009, to allow her to seek treatment. (AR 408-11.) Dr. Nielsen

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1 opined that Plaintiff "need[ed] to have psychotropic medications properly titivated prior to being
2 fit to work or take vocational classes," and recommended work restrictions for three months. (AR
3 410.)
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On January 6, 2009, Dr. Nielsen treated Plaintiff for a twisted left knee. (AR 293.)

On

5 September 14, 2009, Plaintiff was seen by Mr. Sandoval. (AR 285.) Plaintiff reported she was
6 "very stressed" due to her family situation and she had suffered a "few relapses." (AR 285.)
7 Plaintiff stated she could not function outside of the home. (AR 285.) Plaintiff was worried about
8 her financial situation and reported that she was "cut off of TANF because [her] boyfriend is on
9 SSI." (AR 285.) Plaintiff reported she was not working, and she was "not sure if she could with
10 the level of anxiety she is experiencing, but she would like to explore this possibility." (AR 285.)
11 Plaintiff stated that "she stopped the medications because she did not feel they were helping her."
12 (AR 285.)
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On March 22, 2010, Plaintiff reported to Mr. Sandoval that she was not taking her

14 medications but she "feels like the Wellbutrin . . . [had] helped her." (AR 282.) Plaintiff stated
15 "she has been having more anxiety attacks and her mood is all over the place." (AR 282.)
16 Plaintiff noted she "has been using some coping skills but feels bad because she fell off the wagon
17 two times in the past." (AR 282.) She had difficulty sleeping. (AR 282.)
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On March 29, 2010, Plaintiff was seen by Mr. Sandoval and reported she was "always

19 worried that something bad is going to happen" and there was "a lot of trauma in the past."
20 (AR 281.) Plaintiff "stated that she had a job in the past and that she just stopped going because it
21 was too hard." (AR 281.) She indicated "medication has helped a little in the past." (AR 281.)
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On April 2, 2010, Plaintiff was seen at Stanislaus for chronic anxiety and depression, and

23 reported she had not used methamphetamines for one month. (AR 280.) Plaintiff was given
24 samples of Abilify. (AR 280.)
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On April 9, 2010, Plaintiff reported to Mr. Sandoval that her treating physician had "called

26 in the medications" and she was "doing much better with things at home." (AR 278.) Plaintiff
27 stated that the medications gave her "a little hope," and it was noted Plaintiff was "happy that
28 things are well." (AR 278.) On April 19, 2010, Plaintiff informed Mr. Sandoval that she was

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1 "almost 'high' like with the medications," but "they still seem to be helping." (AR 274.) She was
2 "still doing okay" but "feeling anxious." (AR 274.) She was doing more around the house. (AR
3 274.) On April 26, 2010, Plaintiff reported she was "doing a little better." (AR 272.) On May 3,
4 2010, Plaintiff stated she was "doing much better," and believed that Zoloft was helping her. (AR
5 271.)
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On June 17, 2010, Christina Ceballos, P.A., completed a form regarding Plaintiff's

7 capabilities. (AR 412-15.) Ms. Ceballos indicated Plaintiff had a medically verifiable condition
8 that would prevent her from performing certain tasks and she was unable to work. (AR 412.) Ms.
9 Ceballos stated Plaintiff "suffers from anxiety [and] depression on a daily basis. This affects her
10 ability to interact with others [and] to be around other people and large crowds." (AR 415.) Ms.
11 Ceballos noted that Plaintiff was "improving [with] current medication [and] counseling."
12 (AR 415.)
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On July 28, 2010, Anna M. Franco, Psy.D., completed a psychiatric review. (AR 339-56.)

14 Plaintiff suffered from general anxiety disorder, panic disorder, avoidant/dependent disorder, and
15 substance abuse disorder. (AR 339-45.) Dr. Franco opined that Plaintiff would have mild
16 restrictions in activities of daily living and maintaining social functioning and moderate
17 difficulties in maintaining concentration, persistence, and pace.

(AR 347.)

Plaintiff was

18 moderately limited in the ability to understand, remember, and carry out detailed instructions, and
19 in her ability to work in coordination with or in proximity to others without distraction. (AR 351.)
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On September 24, 2010, Plaintiff was treated by Alisha Pratt, D.O., at Stanislaus.

21 (AR 378.)

Dr. Pratt noted Plaintiff had quit methamphetamine use two weeks before the

22 examination and had been out of her psychiatric medication for two months. (AR 378.) She
23 admitted to "self-medicating." (AR 378.) Plaintiff was "scared to work, to be out in the world,"
24 and was "teary-eyed." (AR 378.) Dr. Pratt noted Plaintiff's history of "methamphetamine-induced
25 psychosis," and encouraged Plaintiff to quit using methamphetamines. (AR 378.) Plaintiff's
26 medications were re-started and dosage levels increased. (AR 378.) Plaintiff was noted to be
27 obese. (AR 378.) On October 5, 2010, Dr. Pratt noted that Plaintiff had "improved control" on
28 medication. (AR 375.)

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In September and October 2010, Plaintiff was seen by Darlene Thompson, LCSW, at

2 Stanislaus. (AR 372, 374, 376, 377.) Plaintiff stated that the anti-depressant medication helped to
3 stabilize her depression, but she continued to have anxiety.

(AR 372.)

Ms. Thompson

4 recommended behavioral change plans and gave Plaintiff a schedule for AA/NA meetings and
5 "Celebrate Recovery" programs in the area. (AR 372.)
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On November 15, 2010, Dr. Pratt noted Plaintiff demonstrated an "improved mood," with

7 medication.

(AR 371.)

Plaintiff also had a "knee strain" and exercise was recommended.

8 (AR 371.) An x-ray of Plaintiff's left knee was unremarkable. (AR 366.)
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On December 3, 2010, a state agency reviewing physician, A. Garcia, M.D., performed a

10 cases analysis and affirmed Dr. Franco's assessments. (AR 382-83.)
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From January 2011, Plaintiff was seen by Ms. Thompson; Plaintiff reported that she

12 initially felt better after medication changes but believed her symptoms were getting worse.
13 (AR 407.) On February 15, 2011, Plaintiff reported to Ms. Thompson that she avoids social
14 situations or endures them with intense anxiety. (AR 404.) In March 2011, Ms. Thompson noted
15 that Plaintiff's physician increased her Zoloft, but Plaintiff was not taking the increased dosage
16 because she was concerned she would "run out." (AR 401.)
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On March 22, 2011, Fatoumata Lelanta, M.D., at Stanislaus, treated Plaintiff for knee pain.

18 (AR 400.) Plaintiff was advised to apply ice and given a prescription for ibuprofen. (AR 400.) A
19 magnetic resonance imaging ("MRI") scan of Plaintiff's right knee was performed in April 2011
20 and showed no meniscal or ligament tear, two small foci of Grade II to III chondromalaci patella,
21 small joint effusion, and Baker cyst with cyst rupture. (AR 392.)
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On April 1, 2011, Ms. Thompson noted that Plaintiff had "improvement in mood and affect

23 with the increase in Zoloft." (AR 398.) On April 15, 2011, Plaintiff "appeared better than in
24 previous sessions" and reported "some improvement in her depression and energy level with the
25 increase in medication." (AR 397.) Plaintiff was still upset due to stressors in her life. (AR 397.)
26 On April 21, 2011, Plaintiff "was tearful as she talked about symptoms of worry and intense
27 anxiety," but "stated that the depression/anxiety [was] 'less intense' with the increase in Zoloft."
28 (AR 397.) On May 4, 2011, Ms. Thompson noted that Plaintiff "continues to struggle with her

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1 depression and energy level as she is trying to manage being a single mother, pay the bills, and be
2 unsure about the status of [her] relationship" with her boyfriend. (AR 394.)
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On September 3, 2011, Plaintiff was seen by Patricia Spivey, Psy.D., for a psychological

4 disability evaluation. (AR 416-21.) Dr. Spivey performed a mental status exam and determined
5 that Plaintiff's "[t]thought process and content were normal. No evidence of poor reality testing or
6 responding to internal stimuli. She demonstrated normal full affect. Judgment was good. Mood
7 was low." (AR 417.) Dr. Spivey found that "[o]verall [Plaintiff's] cognitive function is within
8 normal limits." (AR 417.) Dr. Spivey opined Plaintiff had mild impairments in her ability to
9 maintain pace or persistence to complete one- or two-step simple and complex tasks; moderate
10 limitation in her ability to withstand the stress of a routine work day; and moderate/marked
11 limitation in her ability to maintain emotional stability/predictability and interact appropriately
12 with co-workers, supervisors, and the public on a daily basis. (AR 418.)
13 B.

The ALJ's Decision

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On October 17, 2011, the ALJ issued a decision finding Plaintiff not disabled from

15 October 1, 2004, through the date of the decision. (AR 20-32.) The ALJ found that (1) Plaintiff
16 had met the insured status requirements of the Act through December 31, 2009; (2) Plaintiff had
17 not engaged in substantial gainful activity since October 1, 2004, the alleged disability onset date;
18 (3) Plaintiff had the following severe impairments: depression, anxiety, and posttraumatic stress
19 disorder based on the requirements in the Code of Federal Regulations, but obesity was not a
20 severe impairment; (4) Plaintiff did not have an impairment or combination of impairments that
21 met or equaled one of the impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1;
22 (5) Plaintiff had the residual functional capacity ("RFC")3 perform a full range of work at all
23 exertional levels that involved only simple repetitive tasks and limited public contact; (6) Plaintiff
24 could not perform her past relevant work; (7) Plaintiff was 32 years old and therefore considered a
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RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a work
setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule. Social
Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result from an
individual’s medically determinable impairment or combination of impairments. Id. "In determining a claimant's
RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay evidence, and
'the effects of symptoms, including pain, that are reasonably attributed to a medically determinable impairment.'"
Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

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1 "younger individual" on the alleged disability onset date; (8) Plaintiff has at least a high school
2 education and can communicate in English; (9) the transferability of job skills was not material to
3 the disability determination because Plaintiff was "not disabled" under the Medical-Vocational
4 Rules whether or not Plaintiff had transferrable job skills, (10) there were jobs that exist in
5 significant numbers in the national economy that Plaintiff could perform; and (11) Plaintiff had
6 not been under a disability, as defined in the Act, at any time from October 1, 2004, the alleged
7 onset date, through the date of the decision. (AR 25-32.)
8 C.

The Appeals Council Decision

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Plaintiff sought review of the ALJ's decision with the Appeals Council, and submitted

10 additional evidence which the Appeals Council incorporated into the administrative record.
11 (AR 6.)
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1.

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On March 22, 2011, Plaintiff was seen by Dr. Lelanta for a medication refill and right knee

Evidence Submitted to the Appeals Council

14 pain. (AR 438.) An x-ray of the knee was ordered. (AR 438.) Plaintiff was given a prescription
15 for ibuprofen and told to apply ice to the knee. (AR 438.) An MRI of the right knee was
16 performed in April 2011 and showed no meniscal or ligament tear, two small foci of Grade II to
17 III chondromalaci patella, small joint effusion, and Baker cyst with cyst rupture. (AR 439.)4
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On April 4, 2011, Dr. Pratt noted that Plaintiff was stable and less depressed on

19 medication, but was still having issues with people being around her. (AR 437.) Plaintiff's
20 medication was refilled. (AR 437.) Plaintiff reported right knee pain. (AR 437.)
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On June 7, 2011, Mr. Thompson noted that Plaintiff appeared depressed and tearful due to

22 "multiple stressors building up." (AR 447.) On June 29, 2011, Dr. Pratt stated that Plaintiff was
23 "overall stable. Improved mood but complicated home situation." (AR 433.) Plaintiff's right knee
24 pain was "stable" and she was being referred to an orthopedist. (AR 433.)
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Plaintiff was seen by John Casey, M.D., on August 12, 2011, for an orthopedic

26 consultation. (AR 441-42.) Dr. Casey noted that Plaintiff was morbidly obese and has "crepitus
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Both the March 2011 visit to Dr. Lelanta and the April 2011 MRI were among the evidence considered by the ALJ.
(See AR 392, 400.)

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1 with both active and passive flexion-extension of her left knee." (AR 441.) Dr. Casey reported
2 that Plaintiff
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has a range of motion from 0-110 with pain on further flexion. Her medial
collateral ligament and lateral collateral ligament are noted to be intact. She has
negative anterior drawer, negative Lachman and negative pivot shift. Her Q angle
is normal. McMurray's test is negative. Neurovascular status distally is otherwise
intact.

6 (AR 441.) Dr. Casey opined that Plaintiff's "primary problem is patallefemoral chondromalacia."
7 (AR 441.) Plaintiff's ligamentous examination was otherwise negative and an MRI scan was
8 unremarkable. Plaintiff was informed that "weight reduction is extremely important," and was
9 prescribed ibuprofen and physical therapy. (AR 441.)
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On October 16, 2011, Dr. Pratt noted that Plaintiff had "severe chronic depression - overall

11 stable but could be better." (AR 436.) Dr. Pratt concurred with the orthopedist's recommendation
12 that Plaintiff lose weight. (AR 436.)
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Mr. Thompson noted on November 11, 2011, that Plaintiff was "feeling more anxious,

14 fearful, and anger within the past few months." (AR 445.) Plaintiff was "fairly consistent with her
15 medications and occasionally will miss a dose." (AR 445.)
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On December 15, 2011, Ms. Thompson wrote a letter on behalf of Plaintiff's claim for

17 disability. (AR 454.) Ms. Thompson indicated that she had been seeing Plaintiff since October
18 2010 for behavioral counseling.

Ms. Thompson opined that, "[d]espite the therapeutic and

19 medication interventions, [Plaintiff's] symptoms and level of function continue to be impaired."
20 (AR 454.) Plaintiff "has several impairments in her ability to handle stress, interact with others,
21 maintain social relationships, manage her depression and anxiety, and go into the community."
22 (AR 454.) Plaintiff became "anxious and agoraphobic" when required to complete small tasks,
23 such as waiting for the bus, and would "either avoid the fearful situations or endure them with
24 intense and overwhelming anxiety." (AR 454.)
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2.

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Although the Appeals Council made the additional evidence part of the administrative

Appeals Council Decision

27 record, it determined review of the ALJ's decision was unwarranted and denied Plaintiff's request
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1 for review on December 14, 2012. (AR 1-6.) Therefore, the ALJ's decision became the final
2 decision of the Commissioner. 20 C.F.R. §§ 404.981, 416.1481.
3 D.

Plaintiff’s Current Appeal

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On May 7, 2013, Plaintiff filed the current complaint before this Court seeking review of

5 the ALJ's decision. (Doc. 1.) Plaintiff contends that (1) new evidence incorporated into the record
6 and considered by the Appeals Council establishes additional severe impairments that affect the
7 RFC, and (2) the ALJ gave insufficient reasons to reject the opinions of Ms. Ceballos, Dr. Spivey,
8 and Dr. Nielsen. (Doc. 13.)
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SCOPE OF REVIEW
The ALJ's decision denying benefits "will be disturbed only if that decision is not

11 supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599,
12 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its
13 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).
14 Instead, the Court must determine whether the Commissioner applied the proper legal standards
15 and whether substantial evidence exists in the record to support the Commissioner's findings. See
16 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
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"Substantial evidence is more than a mere scintilla but less than a preponderance." Ryan v.

18 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). "Substantial evidence" means "such
19 relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
20 Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB,
21 305 U.S. 197, 229 (1938)). The Court "must consider the entire record as a whole, weighing both
22 the evidence that supports and the evidence that detracts from the Commissioner's conclusion, and
23 may not affirm simply by isolating a specific quantum of supporting evidence." Lingenfelter v.
24 Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
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APPLICABLE LAW
An individual is considered disabled for purposes of disability benefits if he is unable to

27 engage in any substantial, gainful activity by reason of any medically determinable physical or
28 mental impairment that can be expected to result in death or that has lasted, or can be expected to

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1 last, for a continuous period of not less than twelve months.

42 U.S.C. §§ 423(d)(1)(A),

2 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The impairment or
3 impairments must result from anatomical, physiological, or psychological abnormalities that are
4 demonstrable by medically accepted clinical and laboratory diagnostic techniques and must be of
5 such severity that the claimant is not only unable to do his previous work, but cannot, considering
6 his age, education, and work experience, engage in any other kind of substantial, gainful work that
7 exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3), 1382c(a)(3)(B), (D).
8

The regulations provide that the ALJ must undertake a specific five-step sequential

9 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine
10 whether the claimant is currently engaged in substantial gainful activity.

20 C.F.R. §§

11 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the claimant
12 has a severe impairment or a combination of impairments significantly limiting her from
13 performing basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). If so, in the Third Step,
14 the ALJ must determine whether the claimant has a severe impairment or combination of
15 impairments that meets or equals the requirements of the Listing of Impairments ("Listing"), 20
16 C.F.R. 404, Subpart P, App. 1. 20 C.F.R. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step,
17 the ALJ must determine whether the claimant has sufficient residual functional capacity despite
18 the impairment or various limitations to perform her past work. 20 C.F.R. §§ 404.1520(f),
19 416.920(f). If not, in Fifth Step, the burden shifts to the Commissioner to show that the claimant
20 can perform other work that exists in significant numbers in the national economy. 20 C.F.R. §§
21 404.1520(g), 416.920(g). If a claimant is found to be disabled or not disabled at any step in the
22 sequence, there is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99
23 (9th Cir. 1999); 20 C.F.R. §§ 404.1520, 416.920.
24
25

DISCUSSION
Plaintiff contends that new evidence incorporated into the record and considered by the

26 Appeals Council establishes Plaintiff has additional severe impairments that affect the RFC and
27 make application of the Medical-Vocational Guidelines (the "Grids") as a framework improper
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1 without testimony from a vocational expert ("VE"). Plaintiff further asserts that the ALJ gave
2 insufficient reasons to reject the opinions of Ms. Ceballos, Dr. Spivey, and Dr. Nielsen. (Doc. 13.)
3

Defendant contends the evidence submitted to the Appeals Council does not impact the

4 RFC and remand for consideration of the new evidence is not warranted. Additionally, the ALJ
5 permissibly analyzed the disputed opinions. (Doc. 14.)
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A.

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New Evidence Submitted to the Appeals Council Does Not Render the ALJ's Decision
Unsupported by Substantial Evidence
Plaintiff submitted to the Appeals Council medical records from Paradise Medical Office

9 and Stanislaus, and a letter from Ms. Thompson.

(AR 429-54.)

The Appeals Council

10 incorporated the evidence into the record, considered it in conjunction with the record as a whole,
11 but declined to review the ALJ's decision. (AR 1-6.) Plaintiff contends the new evidence
12 establishes the severe impairments of obesity and chondromalacia,5 which impacts the RFC and
13 requires remand for the ALJ's consideration. (Doc. 13, 7:21-9:7.)
14

Where a claimant submits "new and material evidence" to the Appeals Council relating "to

15 the period on or before the date of the [ALJ's] decision," the Appeals Council must consider the
16 additional evidence in determining whether to grant review.

20 C.F.R. §§ 404.970(b),

17 416.1470(b). When the evidence postdates the ALJ's decision, the Appeals Council must still
18 consider it if it is "related to" the period before the ALJ's decision. Taylor v. Comm'r Soc. Sec.
19 Admin., 659 F.3d 1228, 1233 (9th Cir. 2011). The Appeals Council will grant review if it finds
20 "that the [ALJ's] action, finding, or conclusion is contrary to the weight of the evidence currently
21 of record." 20 C.F.R. §§ 404.970(b); 416.1470(b). Otherwise, the Appeals Council will consider
22 the additional evidence but deny review. Pursuant to Taylor, when the Appeals Council considers
23 a post-hearing treating physician’s opinion, it need not provide a "detailed rationale" or make any
24 particular evidentiary findings as to why it rejected the post-hearing opinion. 659 F.3d at 1232.
25 Here, the Appeals Council considered the additional evidence submitted by Plaintiff, but denied
26 review, rendering the ALJ's decision final. Therefore, the additional evidence is part of the
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5

Chondromalacia is defined as "softening of the articular cartilage, most frequently in the patella."
Illustrated Medical Dictionary ("Dorland's") 358 (31st ed. 2007).

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Dorland's

1 administrative record for purposes of "determin[ing] whether, in light of the record as a whole, the
2 ALJ's decision was supported by substantial evidence." Brewes v. Comm'r Soc. Sec. Admin.,
3 682 F.3d 1157, 1163 (9th Cir. 2012).
4

1.

5

On August 12, 2011, Dr. Casey performed an orthopedic consultation and noted Plaintiff's

Dr. Casey's Examination Report and Findings

6 left knee pain and obesity. (AR 441.) Plaintiff was found to have crepitus6 with both active and
7 passive flexion-extension of her left knee, but all other findings were normal and an MRI scan
8 indicated that the meniscus was intact. (AR 441.) Dr. Casey recommended Plaintiff lose weight,
9 use ibuprofen, and participate in physical therapy. (AR 441.)
10

Plaintiff contends that both obesity and chondromalacia should be assessed as severe

11 impairments, alone and in combination. Plaintiff asserts that, while the ALJ found that Plaintiff's
12 obesity was not severe, the new evidence establishes morbid obesity, which impacted the
13 chondromalacia. As such, further development and analysis of these impairments is required, and
14 the RFC is no longer supported by substantial evidence. (Doc. 13, 8:18-24.)
15

Defendant asserts Dr. Casey's examination findings noted only Plaintiff's subjective pain

16 report but recorded essentially normal objective clinical findings, other than a notation of crepitus.
17 There was no clinical assessment of any physical limitations associated with Plaintiff's reported
18 pain. Further, Plaintiff's knee pain and obesity were mentioned throughout the record, and there is
19 no basis to conclude Dr. Casey's treating notes would have necessitated a different analysis or
20 mandated a different outcome by the ALJ. (Doc. 14, 15:3-26.)
21

The ALJ considered Plaintiff's obesity and determined that it was not severe:

22

The National Institute of Health (NIH) has identified medical criteria for the
diagnosis of obesity (SSR 02-1p.) The NIH uses the Body Mass Index (BMI), a
number that shows body weight adjusted for height. As BMI increases, chances of
an individual developing obesity related diseases and complications increase.
According to the BMI calculator at the website for the National Health, Lung and
Blood Institute, . . . the claimant has a BMI of 39.3. Since obesity is defined by a
BMI of 30 or greater, the claimant's BMI is consistent with obesity. The evidence
does not suggest that the claimant is in any way limited because of her condition.
In addition, no physician has ever placed any functional limitations on her as a
result of her obesity.

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27
28

6

Joint crepitus is defined as "the grating sensation caused by the rubbing together of the dry synovial surfaces of
joints, also called articular." Dorland's 417.

13

1 (AR 25-26.)
2

While Plaintiff's BMI may have increased since the ALJ's consideration of Plaintiff's

3 obesity, Plaintiff does not submit evidence establishing the BMI increase impacted Plaintiff's
4 functional capacity. Plaintiff had a history of knee pain, but this was considered by the ALJ and
5 determined to be not disabling. (See AR 293, 305, 371, 400.) X-rays and MRIs of Plaintiff's
6 knees were unremarkable and essentially normal, including an x-ray reviewed by Dr. Casey. (See
7 AR 316, 366, 392, 441.) Dr. Casey's evaluation does not contain a clinical assessment of any
8 limitations associated with Plaintiff's condition. (AR 441.) While Plaintiff contends "Dr. Casey
9 diagnosed morbid obesity and found it affecting chondromalacia, knee pain, and ambulation," Dr.
10 Casey noted that problems with ambulation and pain were subjective reports of Plaintiff. Dr.
11 Casey offered only that Plaintiff had crepitus and that "weight reduction was extremely
12 important." (AR 441.)
13

Moreover, Dr. Casey's treatment plan for Plaintiff was limited to the use of ibuprofen and

14 physical therapy for "quad strengthening." (AR 441.) Dr. Lelanta's March 22, 2011, clinical
15 findings pertaining to Plaintiff's knee also noted crepitus and pain with extension and flexion and,
16 similar to Dr. Casey, Dr. Lelanta prescribed ibuprofen and instructed Plaintiff to apply ice. (AR
17 400.) Thus, Dr. Casey's report was essentially identical to the clinical findings in the record before
18 the ALJ, and Plaintiff has not shown that there were any additional functional limitations caused
19 by either her increased obesity or chondromalacia that were indicated in Dr. Casey's evaluation.
20 As such, the ALJ's analysis is not undermined by Dr. Casey's report and remains supported by
21 substantial evidence in the record. Accordingly, remand for consideration of Dr. Casey's findings
22 is unsupported.
23

2.

24

Plaintiff also contends remand is required to allow the ALJ to consider the opinions of the

Additional Evidence from Ms. Thompson

25 treating social worker, Ms. Thompson, who wrote a letter on December 15, 2011, and opined that
26 Plaintiff had "several impairments in her ability to handle stress, interact with others, maintain
27 social relationships, manage her depression and anxiety, and go into the community." (AR 454.)
28

14

1

Ms. Thompson is a social worker and, as such, is not an "acceptable medical source" but is

2 considered an "other source." 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (other sources include
3 "nurse-practitioners,

physicians'

assistants,

natropaths,

chiropractors,

audiologists,

and

4 therapists"). Social Security Ruling ("SSR")7 06-03p explains that "only 'acceptable medical
5 sources' can give us medical opinions" pursuant to 20 C.F.R. §§ 404.1513(a) and 416.913(a).
6 Further, "only 'acceptable medical sources' can be considered treating sources, as defined in
7 20 [C.F.R. §] 404.1502 and [§] 416.902, whose opinions may be entitled to controlling weight."
8 Id. Because "other sources" are treated like lay witnesses, the ALJ may disregard their opinions
9 by providing a "germane reason." Turner v. Comm'r, 613 F.3d 1217, 1224 (9th Cir. 2010);
10 Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993).
11

Here, the ALJ considered the medical records from Stanislaus Health Service, which

12 included the treatment records from Ms. Thompson. (AR 28.)

As such, the clinical notes

13 underlying Ms. Thompson's December 2011 letter were before the ALJ. Plaintiff does not argue
14 that the ALJ improperly considered the Stanislaus records, including Ms. Thompson's treatment
15 records, nor does Plaintiff show how Ms. Thompson's December 2011 letter expands on treatment
16 records that were already considered by the ALJ. Ms. Thompson's letter does not present new
17 clinical findings that would render the ALJ's assessment improper. (See AR 454.)
18

As such, when viewing the record as a whole, the new evidence submitted to the Appeals

19 Council does not render the ALJ's decision unsupported by substantial evidence.
20 B.

The ALJ Provided Sufficient Reasons to Reject Medical Opinions

21

Plaintiff contends the ALJ gave insufficient reasons to reject the opinions of Ms. Ceballos,

22 Dr. Spivey, and Dr. Nielsen. (Doc. 13, 9:15-11:14.) Defendant contends that the ALJ permissibly
23 analyzed these opinions. (Doc. 14, 13:1-19:14.)
24

1.

25

Ms. Ceballos is a physician's assistant, and like Ms. Thompson, is not an "acceptable

The ALJ's Consideration of Ms. Ceballos' Opinion

26
27
28

7

Social Security Rulings are "final opinions and orders and statements of policy and interpretations" that the Social
Security Administration has adopted. 20 C.F.R. § 402.35(b)(1). Once published, these rulings are binding precedent
upon ALJs. Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984); Gatliff v. Comm’r of Soc. Sec. Admin., 172 F.3d 690,
692 n.2 (9th Cir. 1999).

15

1 medical source." SSR 06-03p. Accordingly, the ALJ may disregard her opinions by providing a
2 "germane reason." Turner, 613 F.3d at 1224; Dodrill, 12 F.3d at 919.
3

In considering Ms. Ceballos opinions, the ALJ found

4

Ms. Ceballos, P.A.[,] of Paradise Medical Office, stated that the claimant had a
condition that would limit or prevent her from performing certain tasks. She also
noted that the claimant is unable to work and has limitations that would interfere
with education or training. Ms. Ceballos also noted that the claimant's anxiety and
depression affect[] her ability to work with others. She also noted that the
claimant's condition is improving (Exhibit 14F) . . . . Physicians' assistants are not
identified as acceptable medical sources and therefore the undersigned gives this
opinion little weight.

5
6
7
8

9 (AR 29-30.)
10

The ALJ's reason for rejecting Ms. Ceballos' opinion is because she is not an acceptable

11 medical source. The ALJ is required to give a germane reason for rejecting the opinion of
12 someone who is not an acceptable medical source. Turner, 613 F.3d at 1224. The ALJ's mere
13 identification of Ms. Ceballos as a non-acceptable medical source is not a germane reason to reject
14 her opinion.
15

The ALJ, however, provided a germane reason to reject Ms. Ceballos' opinion by noting

16 that Ms. Ceballos found that Plaintiff was "improving." (AR 30; see also AR 415 (Ms. Ceballos
17 finding that Plaintiff was "improving [with] current medication [and] counseling.") The ALJ is
18 not required to recite the "magic words" of "I reject [this] opinion . . . because . . ." Magallanes v.
19 Bowen, 881 F.2d 747, 755 (9th Cir. 1989). "As a reviewing court, we are not deprived of our
20 faculties for drawing specific and legitimate inferences from the ALJ's opinion." Id. Here, the
21 ALJ noted that Ms. Ceballos found Plaintiff was "improving" with medication and counseling.
22 (AR 30, AR 415.) "Impairments that can be controlled effectively with medication are not
23 disabling for the purpose of determining eligibility for SSI benefits." Warre v. Comm'r of Soc.
24 Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). As such, it was reasonable for the ALJ to
25 determine Ms. Ceballos' finding that Plaintiff was improving and the severity of her condition had
26 decreased undercut her opinion that Plaintiff was unable to work and her limitations interfered
27 with education and training. See id. The ALJ's reason for discounting Ms. Ceballos' opinion in
28 this regard was specific and germane.

16

1

2.

2

Plaintiff contends the ALJ gave insufficient reasons to reject Dr. Spivey's opinion. The

The ALJ's Consideration of Dr. Spivey's Opinion

3 medical opinions of three types of medical sources are recognized in Social Security cases:
4 "(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the
5 claimant (examining physicians); and (3) those who neither examine nor treat the claimant
6 (nonexamining physicians)." Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).
7

Generally, a treating physician’s opinion should be accorded more weight than opinions of

8 doctors who did not treat the claimant, and an examining physician’s opinion is entitled to greater
9 weight than a non-examining physician’s opinion. Id. Where a treating or examining physician’s
10 opinion is uncontradicted by another doctor, the Commissioner must provide “clear and
11 convincing” reasons for rejecting the treating physician’s ultimate conclusions. Id. If the treating
12 or examining doctor’s medical opinion is contradicted by another doctor, the Commissioner must
13 provide "specific and legitimate" reasons for rejecting that medical opinion, and those reasons
14 must be supported by substantial evidence in the record. Id. at 830-31; accord Valentine v.
15 Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). The ALJ can meet this burden by
16 setting forth a detailed and thorough summary of the facts and conflicting clinical evidence,
17 stating her interpretation thereof, and making findings. Tommasetti v. Astrue, 533 F.3d 1035,
18 1041 (9th Cir. 2008).
19

In pertinent part, the ALJ discussed Dr. Spivey's findings as follows:

20

Dr. Spivey noted . . . the claimant has moderate to marked limitations in
maintaining emotional stability/predictability and interacting appropriately with
supervisors and the public on a daily basis . . . . The claimant has marked
limitations in interacting with coworkers . . . . Little weight is given to the doctor's
opinion on interacting with supervisors and coworkers because the record indicates
that the claimant is able to adequately interact with individuals. For example, the
claimant cares for her children and interacts with her doctors and some friends.

21
22
23

24 (AR 29.)
25

Plaintiff contends the ALJ's rejection of Dr. Spivey's opinion that Plaintiff had marked

26 limitations in interacting with supervisors and coworkers was not specific and legitimate.
27 Specifically, the ALJ rejected this portion of Dr. Spivey's opinion because the record demonstrated
28 Plaintiff was able to interact appropriately with family, friends, and doctors. (Doc. 13, 10:16-25.)

17

1 Plaintiff asserts her interaction with family, friends, and doctors were not as "formal" as those in a
2 work setting and therefore less demanding. (Doc. 13, 10:19-22.) As such, Dr. Spivey's opinion in
3 this regard should have been credited and included in Plaintiff's RFC. (Doc. 13, 10:23-25.)
4

Defendant contends Plaintiff's interactions with her doctors, particularly Dr. Spivey, were

5 "formal" interactions, and Plaintiff was "cooperative and pleasant" during her visit to Dr. Spivey.
6 (Doc. 14, 18:1-6; see also AR 417.) Plaintiff thus demonstrated an ability to interact with others
7 during her doctors' visits, and the ALJ provided sufficient reasons to reject the portion of Dr.
8 Spivey's opinion regarding Plaintiff's limitations concerning interacting with supervisors and
9 coworkers. (Doc. 14, 18:6-11.)
10

Here, the ALJ reviewed the record and found Plaintiff was not markedly limited in her

11 interaction with others, including interactions with her doctors. (AR 29.) The ALJ explained that
12 Plaintiff's demonstrated abilities to interact with others, such as doctors, friends, and family, would
13 allow her to interact with coworkers and supervisors, and Dr. Spivey's finding that Plaintiff's
14 ability in this area was markedly limited was not supported by the evidence in the record. Because
15 the ALJ reasonably interpreted the record based on Plaintiff's numerous public interactions, the
16 Court must affirm the ALJ's finding regarding Dr. Spivey's opinion. See Rollins v. Massanari,
17 261 F.3d 853, 857 (9th Cir. 2001) (citation omitted) ("the ALJ’s interpretation . . . may not be the
18 only reasonable one," so long as it is "still a reasonable interpretation and is supported by
19 substantial evidence" it is not the Court’s "role to second-guess it").
20

3.

21

Dr. Nielsen treated Plaintiff in association with her mental conditions. He indicated on

The ALJ's Consideration of Dr. Nielsen's Opinion

22 January 5, 2009, that Plaintiff had an acute, medically verifiable condition that would limit her
23 from performing certain tasks and that she should be off of work for three months to allow her to
24 seek treatment. He opined that she needed to have psychotropic medications properly "titivated"
25 prior to being fit to work or take vocational classes, and recommended work restrictions for three
26 months. (AR 410.)
27

The ALJ considered Dr. Nielsen's opinion and determined as follows:

28

18

1
2
3
4
5
6
7

Marc Nielsen, D.O., the claimant's treating doctor, stated that the claimant is not
able to work and has limitations that affect her ability to work or participate in
education or training. The doctor recommended that the claimant be restricted
from work for three months and get the psychiatric medications she needs. Dr.
Nielsen also noted that the claimant has no present day activity restrictions, but her
severe anxiety does result in limited social functioning. He also pointed out that
the claimant would have impaired memory and cognition until treatment is
complete. (Exhibit 13F). The undersigned accords little weight to this opinion
because Dr. Nielsen only restricts the claimant for a three-month period in
September 2009 and implied that his opinion could change whether or not the
claimant undertakes proper treatment. There were no other opinions in the record
from Dr. Nielsen.

8 (AR 29.)
9

Plaintiff contends Dr. Nielsen's opinion was ambiguous, and the ALJ should have re-

10 contacted the doctor rather than reject the opinion. Specifically, Plaintiff notes Dr. Nielsen's
11 opinion was "not firm on the duration, only speculative if Plaintiff successfully titrated
12 psychotropic medication."

(Doc. 13, 11:10-11.)

Defendant contends that the ALJ properly

13 rejected Dr. Nielsen's opinion because he found Plaintiff's condition was only expected to last for
14 three months. (Doc. 14, 18:17-28.)
15

Unless an impairment is expected to result in death, it must have lasted or be expected to

16 last a continuous period of at least twelve months in order to be considered a disabling
17 impairment. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. §§ 404.1509, 416.909. Here,
18 Dr. Nielsen's opinion to restrict Plaintiff from work for only three months was reasonably
19 interpreted by the ALJ as indicating Dr. Nielsen believed Plaintiff's mental limitations would not
20 preclude her from work for a longer duration than 3 months. Moreover, Dr. Nielsen characterized
21 Plaintiff's condition as "acute" and expressly stated that it was only expected to last until March
22 30, 2009. (AR 408.) Thus, even crediting Dr. Nielsen's statement that Plaintiff's condition
23 precluded her from work, the opinion did not indicate Plaintiff's preclusion from work met the
24 durational requirement. This was a rational interpretation of Dr. Nielsen's opinion and constitutes
25 a rational basis to conclude any finding of disability by Dr. Nielsen was limited to a 3-month
26 period, which does not meet the requirements of the Act.
27

Additionally, the ALJ noted Dr. Nielsen implied his opinion would change if Plaintiff

28 received proper treatment and medication, and that such improvement would not support a

19

1 disability finding. (AR 29; see also AR 410.) The record provides substantial evidence that
2 Plaintiff’s condition improved with medication. (See AR 271, 274, 298, 299, 371, 375, 398, 415,
3 437.) These reasons were a legally sufficient basis for the ALJ to determine Dr. Nielsen's
4 conclusion that Plaintiff was unable to work was not entitled to deference.
5

Plaintiff contends Dr. Nielsen's findings were ambiguous and the ALJ should have

6 re-contacted the doctor to further develop the record. "Ambiguous evidence, or the ALJ's own
7 finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the
8 ALJ's duty to conduct an appropriate inquiry." Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th
9 Cir. 2001). The duty to develop the record can be satisfied by (1) making a reasonable attempt to
10 obtain medical evidence from the claimant's treating sources; (2) ordering a consultative
11 examination when the medical evidence is incomplete or unclear and undermines the ability to
12 resolve the disability issue; (3) subpoenaing or submitting questions to the claimant's physicians;
13 (4) continuing the hearing; or (5) keeping the record open for more supplementation. Id. at 1150.
14 Even if Dr. Nielson's opinion was ambiguous with regard to how Plaintiff would fare on
15 medication, the ALJ satisfied any further duty to develop the record by ordering a subsequent
16 consultative evaluation with Dr. Spivey. Id.
17
18

CONCLUSION
Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial

19 evidence in the record as a whole and is based on proper legal standards. Accordingly, the Court
20 DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social
21 Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn
22 W. Colvin, Acting Commissioner of Social Security, and against Plaintiff.
23
24
25
26

IT IS SO ORDERED.
Dated:

May 13, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

27
28

20