Day v. Commissioner of Social Security

Filing 21

ORDER on Plaintiff's Social Security Appeal, signed by Magistrate Judge Sheila K. Oberto on 5/10/16. CASE CLOSED. (Verduzco, M)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

EASTERN DISTRICT OF CALIFORNIA

11
LAURIE LYNN DAY,

12
13

Case No. 1:15-cv-00479-SKO
ORDER ON PLAINTIFF’S SOCIAL
SECURITY APPEAL

Plaintiff,
v.

14
15

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

16
17

Defendant.

18

____________________________________

19
20
INTRODUCTION

21

Plaintiff Laurie Lynn Day ("Plaintiff") seeks judicial review of a final decision of the

22

23 Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application
24 for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act. 42 U.S.C.
25 §§ 405(g); 1383. The matter is currently before the Court on the parties' briefs, which were
26 submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate
27 Judge.1
28

1

The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 7, 8.)

1

FACTUAL BACKGROUND

2

Plaintiff was born on June 12, 1962, and alleges disability beginning on November 27,

3 2011, due to stroke, depression, memory loss, ringing in her ears with headaches, no retention of
4 information, facial numbness, inability to focus, numbness from the knees down her legs, and
5 incontinence. (Administrative Record ("AR") 29; 193.)
6 A.

Relevant Evidence

7

On November 11, 2010, Plaintiff underwent a stroke "event" and cerebrovascular accident

8 with mild expressive aphasia for which she was hospitalized. (AR 303-04, 321). She was
9 discharged on November 13, 2010. (AR 321.) She followed up with a cardiac evaluation on
10 December 21, 2010, where Dalpinder Sandhu, M.D., recommended Plaintiff use a Holter monitor
11 to assess for any cardiac source.
12

On November 30, 2011, Plaintiff was examined by Jeffery Hubbard, M.D., and

13 complained of shoulder pain and neurological issues. (AR 325.) Dr. Hubbard's examination
14 showed Plaintiff had a normal range of motion in her musculoskeletal system; was alert and
15 oriented to person, place, and time; and had normal reflexes. (AR 326.) Plaintiff had a cranial
16 nerve deficit and abnormal muscle tone, coordination, and gait, as well as normal behavior, mood,
17 affect, and thought content. Dr. Hubbard diagnosed Plaintiff with hyperalphalipoproteinemia,2
18 cerebral infarction, and shoulder instability, and he recommended orthopedic surgery. (AR 32519 26.)
20

On February 23, 2012, Plaintiff underwent a pre-operative evaluation with David Taylor,

21 M.D., for left-shoulder instability. (AR 422-23.) At that time, her extremities appeared normal,
22 she was alert and oriented, and she did not display any signs of anxiety or depression. (AR 423.)
23 She was positive, however, for memory loss although she had a normal mood and affect.
24 (AR 446.) Plaintiff underwent surgery on February 28, 2012 (AR 426-29), and on March 9, 2012,
25 Plaintiff was feeling better, had no post-operative pain, and reported she had not been using any
26 assistive devices. (AR 424.)
27
28

2

Hyperalphalipoproteinemia is defined as the presence of abnormally high levels of high-density lipoproteins in the
blood. Dorland's Illustrated Medical Dictionary 898 (31st ed. 2007).

2

1

On April 3, 2012, Plaintiff underwent a psychological assessment with Steven C. Swanson,

2 Ph.D. (AR 456-62). Dr. Swanson noted Plaintiff was independently able to partake in all
3 activities of daily living, which included driving a car. (AR 457.) Plaintiff reported she was able
4 to pay bills, cook, and watch television. (AR 458.) On examination, Plaintiff was sufficiently
5 oriented to person, time, place, and situation, and she was cooperative during the assessment.
6 Plaintiff's level of eye contact, general fund of knowledge, and short-term recent and remote
7 memories were within normal limits. Plaintiff ambulated independently, and Dr. Swanson did not
8 observe any unusual patterns in her gait or postural presentation. Plaintiff did not have any
9 peculiarities in her speech, her form and thought content were normal, and she did not exhibit any
10 signs of delusion, disorder of perception, psychosis, or suicidal or homicidal thoughts. (AR 458.)
11 Vegetative signs of depression were mostly absent as well. Her concentration was adequate for
12 performing simple mathematical calculations, and her judgment and insight were intact. On the
13 Wechsler Adult Intelligence Scale, 4th Edition (WAIS-IV), Plaintiff scored a 72. Dr. Swanson
14 noted that "[Plaintiff's] effort was not optimal; consequently this may be a low representation of
15 her true intelligence." (AR 460.)
16

Dr. Swanson opined Plaintiff was capable of maintaining concentration, relating

17 appropriately to others in the workplace, handling funds in her own best interests, and responding
18 appropriately to typical work situations.

(AR 461.)

Dr. Swanson assessed no substantial

19 restrictions in daily activities or in maintaining social relationships. (AR 462.)
20

On April 18, 2012, Plaintiff underwent a neurological evaluation by Fariba Vesali, M.D.,

21 board-certified in internal medicine and rehabilitation. (AR 465-68.) Plaintiff acknowledged that
22 she occasionally shopped for groceries, cooked, washed dishes, mopped, swept, and vacuumed.
23 (AR 465.)

She was alert and oriented to time, place, and person; spoke fluently with full

24 sentences; had a normal gait; and did not need an assistive device for ambulation. (AR 466.) She
25 was able to untie and take off her shoes and put them back on without difficulty. Dr. Vesali
26 diagnosed Plaintiff with a cerebrovascular accident in November 2010 (AR 467), and opined she
27 could walk, stand, and sit for six hours in an eight-hour workday with normal breaks; lift and carry
28 50 pounds occasionally and 25 pounds frequently; reach and handle frequently; and finger and feel
3

1 without limitations (AR 468.)
2

On August 10, 2012, Plaintiff saw Richard Alexan, M.D., reporting headaches, trouble

3 walking, weakness on the right, and difficulty with speech. (AR 489.) She did not show any
4 abnormalities in her mental status at that time. (AR 490.) An EEG (electroencephalography)
5 conducted on August 21, 2012, showed a "normal awake, drowsy, and stage 1 sleep EEG
6 recording."

(AR 478.)

An MRA (Magnetic Resonance Angiography) scan of her brain,

7 performed on August 22, 2012, did not detect any abnormalities or evidence of aneurysm, major
8 branch occlusion, or stenosis. (AR 475.) An MRI (Magnetic Resonance Imaging) scan on the
9 same day did not show any abnormalities, but showed Plaintiff had sinus disease. (AR 476-77.)
10 The doctor informed Plaintiff that her symptoms were probably unrelated to her previous stroke at
11 her follow-up appointment on August 31, 2012. (AR 473.) Plaintiff described stress as being a
12 major problem for her, although she denied being depressed and that she had ever sought
13 counseling.
14

On December 27, 2012, Plaintiff followed up with Dr. Alexan to review her MRI results.

15 (AR 572.) Dr. Alexan indicated Plaintiff had recovered from her stroke and that her symptoms
16 were likely non-neurological. (AR 573.) He reiterated his belief in her full recovery again in
17 February 2013. (AR 574.)
18

On March 25, 2013, Plaintiff underwent a neuro-physical consultative evaluation by Dale

19 Sherman, Ph.D. (AR 559.) At the examination, Plaintiff was able to read items at a 20/20 level
20 and correctly name basic colors in a palette. (AR 562.) She appeared to be a moderate historian,
21 and though she had difficulty describing events and accurately providing details about her history
22 and conditions, she described events and responded to questions moderately well. Her activity
23 level was noted to be adequate and within normal limits for her age; her speech was of normal and
24 rhythm; and her thought processes appeared to be goal-directed and linear. However, Plaintiff was
25 easily distracted and required redirection; her attention, concentration, insight, judgment, and
26 abstract thinking were below expectations; and she did not exhibit paranoid thinking,
27 hallucinations, or delusions. (AR 562-63.)
28 //
4

1

Dr. Sherman opined Plaintiff's complaints, history, symptoms, and test scores were

2 consistent with cognitive impairment and depression.

(AR 564.)

The examination results

3 indicated that Plaintiff's mental status, general cognitive state, attention, concentration, motor
4 functioning, non-verbal and verbal memory, executive functions, speed of information processing,
5 language, and functional ability were impaired; her motivation and cooperation were adequate;
6 and her intelligence and visuospatial and constructional abilities were borderline. (AR 562-63).
7 Dr. Sherman further opined Plaintiff would have difficulty with her memory, information of
8 increasing complexity and multi-tasking, and deciphering words spoken to her. (AR 563.)
9

On May 7, 2013, Plaintiff again followed up with Dr. Alexan to review test results.

10 (AR 576-77.) Plaintiff reported no new changes or symptoms. (AR 576.) Plaintiff reported
11 waking up feeling restless, and admitted to stress as a major problem. (AR 576.) She denied
12 feeling depressed, but admitted to frequent crying spells. (AR 576.) On examination, Plaintiff
13 was alter, oriented to person, place, and time; was able to concentrate; and her language was intact
14 to all modalities. Her gait was noted to be narrow based. (AR 577.) Dr. Alexan increased
15 Plaintiff's prescription for Lexapro, and noted Plaintiff would follow up with her doctor at Cedar
16 Sinai. (AR 577.)
17 B.

Administrative Proceedings

18

The Commissioner denied Plaintiff's application initially and again on reconsideration;

19 consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 7620 109, 115-23.) A hearing was held on September 4, 2013. (AR 37-75.)
21

On September 11, 2013, the ALJ issued a decision, finding Plaintiff not disabled from

22 November 27, 2011, through the date of decision. (AR 21-31.) Specifically, the ALJ found that
23 Plaintiff (1) had not engaged in substantial gainful activity since her alleged onset date November
24 27, 2011 (AR 23); (2) Plaintiff had severe impairments: status-post stroke, cervical spine fusion,
25 and depression (AR 23); (3) did not have an impairment or combination of impairments that met
26 or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
27 //
28 //
5

1 (AR 24); and (4) had the residual functional capacity ("RFC")3 to perform less than a full range of
2 light work, could lift 20 pounds, sit, stand, and walk for a total of 6 hours each in an 8-hour work
3 day, and was limited to performing simple, repetitive tasks (AR 26.) The ALJ found that Plaintiff
4 was unable to perform her past relevant work, but could perform other work including that of a
5 photocopier, a housekeeping cleaner, and an office helper. (AR 30.) The ALJ concluded that
6 Plaintiff was not disabled as defined by the Social Security Act at any time from November 27,
7 2011, through the date of decision. (AR 30.)
8

Plaintiff sought review by the Appeals Council on September 20, 2013. (AR 9-11.) The

9 Appeals Council denied Plaintiff's request for review on January 29, 2015. (AR 3-8.) Therefore,
10 the ALJ's decision became the final decision of the Commissioner.

20 C.F.R. §§ 404.981;

11 416.1481.
12 C.

Plaintiff's Argument on Appeal

13

On March 26, 2015, Plaintiff filed a complaint before this Court seeking review of the

14 ALJ's decision.

Plaintiff argues the ALJ failed to properly consider Dr. Sherman's opinion

15 regarding Plaintiff's current level of functioning, accepting some functional limitations while
16 rejecting others.
17

SCOPE OF REVIEW

18

The ALJ's decision denying benefits "will be disturbed only if that decision is not

19 supported by substantial evidence or it is based upon legal error." Tidwell v. Apfel, 161 F.3d 599,
20 601 (9th Cir. 1999). In reviewing the Commissioner's decision, the Court may not substitute its
21 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).
22 Instead, the Court must determine whether the Commissioner applied the proper legal standards
23 and whether substantial evidence exists in the record to support the Commissioner's findings. See
24 Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). "Substantial evidence is more than a mere
25
26
27
28

3

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).

6

1 scintilla but less than a preponderance." Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th
2 Cir. 2008). "Substantial evidence" means "such relevant evidence as a reasonable mind might
3 accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971)
4 (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court "must
5 consider the entire record as a whole, weighing both the evidence that supports and the evidence
6 that detracts from the Commissioner's conclusion, and may not affirm simply by isolating a
7 specific quantum of supporting evidence." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
8 2007) (citation and internal quotation marks omitted).
9
10

APPLICABLE LAW
An individual is considered disabled for purposes of disability benefits if he or she is

11 unable to engage in any substantial, gainful activity by reason of any medically determinable
12 physical or mental impairment that can be expected to result in death or that has lasted, or can be
13 expected to last, for a continuous period of not less than twelve months.

42 U.S.C.

14 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The
15 impairment or impairments must result from anatomical, physiological, or psychological
16 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic
17 techniques and must be of such severity that the claimant is not only unable to do her previous
18 work, but cannot, considering her age, education, and work experience, engage in any other kind
19 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)-(3),
20 1382c(a)(3)(B), (D).
21

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

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

20 C.F.R.

24 §§ 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the
25 claimant has a severe impairment or a combination of impairments significantly limiting her from
26 performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step, the ALJ
27 must determine whether the claimant has a severe impairment or combination of impairments that
28 meets or equals the requirements of the Listing of Impairments ("Listing"), 20 C.F.R. 404,
7

1 Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the ALJ must
2 determine whether the claimant has sufficient residual functional capacity despite the impairment
3 or various limitations to perform her past work. Id. §§ 404.1520(f), 416.920(f). If not, in the Fifth
4 Step, the burden shifts to the Commissioner to show that the claimant can perform other work that
5 exists in significant numbers in the national economy. Id. §§ 404.1520(g), 416.920(g). If a
6 claimant is found to be disabled or not disabled at any step in the sequence, there is no need to
7 consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R.
8 §§ 404.1520, 416.920.
9
10

DISCUSSION
Plaintiff contends the ALJ improperly and selectively relied only on those portions of Dr.

11 Sherman's opinion that supported the ALJ's RFC assessment. (Doc. 15, p. 7.) Plaintiff asserts the
12 ALJ's rationale for rejecting Dr. Sherman's opinion is not based on substantial evidence, arguing
13 that the record clearly supports Dr. Sherman's assessment because Plaintiff was deteriorating
14 cognitively. (Doc. 15, p. 8 (noting Plaintiff's IQ scores in 2012 and 2013 "make clear that she has
15 worsened cognitively").
16

The Commissioner asserts the ALJ properly considered all the medical evidence of record

17 to reach a conclusion supported by substantial evidence. (Doc. 20, pp. 6-11.) The Commissioner
18 contends the ALJ was not required to accept every portion of Dr. Sherman's opinion, and the ALJ
19 provided clear grounds for granting varying weight to different portions of Dr. Sherman's opinion.
20

The ALJ discussed Dr. Sherman's opinion at length:

21

Dr. Sherman, a psychologist, performed a neuropsychological evaluation of the
claimant in March 2013. Following the examination, Dr. Sherman opined that the
claimant is likely to have significant difficulty in most domains of cognitive
functioning and will [] have difficulty following and repeating information spoken
to her. Dr. Sherman also opined that the claimant will also have difficulty with
information of increasing complexity and will have a difficult time with
multitasking. She opined that the claimant should have little difficulty with fluid
problem solving and her ability to think on her feet. (Exhibit 19F, pg. 7). Dr.
Sherman's opinion that the claimant will have difficulty with complex information
is given great weight, as it is consistent with the medical evidence, the opinion of
psychological consultative examiner and the claimant's activities of daily living.
Dr. Sherman's opinion that the claimant is likely to experience difficulty with
comprehending and deciphering elements common to daily activities is given little

22
23
24
25
26
27
28

8

1
2
3
4
5
6

weight because it is inconsistent with the evidence that the claimant is able to
independently complete relatively normal activities of daily living. Dr. Sherman
also opined that the claimant is likely to have difficulty with tasks requiring
manipulating small objects. (Exhibit 19F, pg. 7). However, this opinion is given
little weight, as it is inconsistent with the findings of the neurological consultative
examiner and his observation that the claimant was able to untie her shoes and take
them off and put them back on without difficulty. (Exhibit 8F, pg. 4).
Furthermore, it is important to note that Dr. Sherman [is] a psychologist, not a
medical doctor. Therefore, his opinion regarding the claimant's physical limitations
is given reduced weight.

7 (AR 28-29.)
8

Plaintiff first argues it was improper for the ALJ to only credit those functional limitations

9 which supported his own RFC assessment. However, so long as supported by legally sufficient
10 reasons for doing so, an ALJ may credit only certain portions of a physician's opinion while
11 disregarding other portions. This, in and of itself, is not error. See, e.g., Magallanes v. Bowen,
12 881 F.2d 747, 753 (9th Cir. 1989) (ALJ's supported reliance on selected portions of conflicting
13 opinion constitutes substantial evidence).
14

Plaintiff next argues that Dr. Sherman's entire opinion should have been credited because it

15 was based on the most recent psychological tests. Though probative to evaluating Plaintiff's
16 cognitive decline, the most recent opinion is not entitled to controlling weight merely because it is
17 the most recent. Id., 881 F.2d at 754-55 (noting that where a plaintiff's condition becomes
18 progressively worse, medical reports from a later phase of the disease are likely to be more
19 probative than later reports) (citing Stone v. Heckler, 761 F.2d 530, 532 (9th Cir. 1985)). If it is
20 not supported by other medical evidence or there are other legally sufficient reasons to discount
21 Dr. Sherman's opinion, the mere fact that it is the most recent opinion is not dispositive.
22

The ALJ rejected Dr. Sherman's opinion that Plaintiff is likely to experience difficulty with

23 comprehending and deciphering elements common to daily activities because this opinion is
24 inconsistent with the evidence that Plaintiff is able to independently complete relatively normal
25 activities of daily living. Plaintiff argues the ALJ failed to recognize the downhill spiral of
26 Plaintiff's functioning – i.e., Plaintiff's description of daily activities in the months or years prior to
27 Dr. Sherman's opinion have no bearing on Plaintiff's daily living abilities at the time of the
28 examination, particularly as her condition was worsening. Plaintiff maintains her current activities
9

1 of daily living are not inconsistent with Dr. Sherman's opinion.
2

The Commissioner disputes that the evidence establishes Plaintiff's condition was

3 deteriorating. Plaintiff's treating physician, Dr. Alexan, saw Plaintiff on three occasions between
4 December 2012 and May 2013, and there was no evidence of deterioration. (See AR 572-77.)
5 Plaintiff had fully recovered from her stroke, her speech and movement of her arms and legs was
6 all normal, and she was experiencing a good recovery. (AR 574.) The Commissioner points to
7 these treatment notes from Dr. Alexan, both before and after Dr. Sherman's March 2013 opinion,
8 as demonstrating that there were " [n]o new changes or symptoms" and that Plaintiff "did not
9 specify any particular complaint of worsening symptoms" during the same period of time when
10 Dr. Sherman had opined to disabling symptoms. (Doc. 20, p. 11 (quoting AR 28, 572, 576).) The
11 Court agrees.
12

The medical evidence from Dr. Alexan, which was collected both before and after Dr.

13 Sherman rendered his opinion, did not show any symptoms or complaints that indicated a
14 worsening condition.

Plaintiff reported she shopped for groceries, cooked, washed dishes,

15 mopped, swept, and vacuumed.

Participating in these activities does not comport with Dr.

16 Sherman's opinion Plaintiff would have difficulty comprehending and deciphering elements
17 common to daily activities. Although Plaintiff argues her activities of daily living "fall in line
18 with Dr. Sherman's opinions," she gives no examples of how her daily activities show she has
19 "difficulty comprehending and decipher elements common to daily activities."
20

The ALJ also rejected Dr. Sherman's opinion that Plaintiff would have difficulty with tasks

21 requiring manipulation of small objects. (AR 29.) Plaintiff argues this is error because it is based
22 on the ALJ's failure to recognize Dr. Sherman's opinion related to Plaintiff's functioning in 2013,
23 not in 2012. The ALJ relied on Dr. Vesali's April 2012 opinion that Plaintiff had no postural
24 limitations, and she would be able to do fingering and feeling with no limitations. (AR 468.)
25 Plaintiff points to no evidence to support Dr. Sherman's contrary opinion in March 2013, or what
26 findings indicate her dexterity and handling had worsened since April 2012. It is not clear what
27 tests Dr. Sherman performed to evaluate Plaintiff's dexterity and handling abilities such that there
28 was any objective basis to conclude her handling, fingering, and dexterity abilities had eroded
10

1 since 2012. Moreover, the ALJ noted Dr. Sherman was a psychologist, not a medical doctor, and
2 his opinion in this regard was not entitled to weight. Following Dr. Sherman's examination in
3 March 2013, Plaintiff was examined by her treating physician Dr. Alexan, who did not note
4 Plaintiff had any difficulties with handling or dexterity. The ALJ properly gave more weight to
5 Dr. Vesali and Dr. Alexan's treating notes on the matter of Plaintiff's handling and dexterity than
6 that of Dr. Sherman, a psychologist, who apparently did no physical testing. See Holohan v.
7 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001) ("[T]he regulations give more weight to . . . the
8 opinions of specialists concerning matters relating to their specialty over that of nonspecialists");
9 Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996) (holding that ALJ should have given greater
10 weight to a physician with the expertise that was most relevant to the patient's allegedly disabling
11 condition).
12

In sum, the ALJ did not err in according Dr. Sherman's opinion only partial weight.

13

CONCLUSION

14

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

15 evidence in the record as a whole and based on proper legal standards. Accordingly, the Court
16 DENIES Plaintiff's appeal from the administrative decision of the Commissioner of Social
17 Security. The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn
18 Colvin, Acting Commissioner of Social Security and against Plaintiff.
19
20

IT IS SO ORDERED.

21 Dated:

May 10, 2016

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
11