McCann v. Social Security Administration et al

Filing 21

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/30/12 ORDERING that Plaintiff's motion for summary judgment is denied; The Commissioner's motion for summary judgment is granted; and The Clerk is directed to enter judgment in the Commissioner's favor and close the case. CASE CLOSED(Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA ANN MCCANN,

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Plaintiff,
vs.

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No. CIV S-10-2837 EFB

MICHAEL J. ASTRUE,
Commissioner of Social Security,

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Defendant.

ORDER
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Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”) denying her applications for a period of disability and Disability Insurance

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Benefits (“DIB”) and for Supplemental Security Income (“SSI”) under Titles II and XVI of the

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Social Security Act. The parties’ cross-motions for summary judgment motions are pending.

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For the reasons discussed below, the court grants the Commissioner’s motion and denies

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plaintiff’s motion.

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I.

BACKGROUND
Plaintiff formally applied for DIB and SSI on June 21, 2007, alleging a disability onset

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date of January 29, 2004. AR 8. Plaintiff’s applications were denied initially and on

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reconsideration. Id. On March 24, 2008, a hearing was held before ALJ Michael Seng. Id.

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Plaintiff, who was represented by attorney Ilija Cvetich, testified at the hearing. Id.

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The ALJ’s February 24, 2010 decision found that plaintiff had not been disabled at any
relevant time.1 Id. at 8-15. The ALJ made the following specific findings:

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1. The claimant meets the insured status requirements of the Social Security Act
through September 30, 2009.

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2. The claimant has not engaged in substantial gainful activity since January 29,
2004, her alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
...

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3. The claimant has the following severe impairments: degenerative disc disease
of the lumbar spine (20 CFR 404.1520(c) and 416.920(c)).
...

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4. The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d),
416.926).
...

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Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income is paid to
disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Both provisions define disability,
in part, as an “inability to engage in any substantial gainful activity” due to “a medically
determinable physical or mental impairment. . . .” 42 U.S.C. § 1382c(a)(3)(A). A five-step
sequential evaluation governs eligibility for benefits under both programs. See 20 C.F.R.
§§ 404.1520, 404.1571-76, 416.920 and 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so,
the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a “severe” impairment? If so, proceed
to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant’s impairment or combination of
impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P,
App.1? If so, the claimant is automatically determined disabled. If not, proceed
to step four.
Step four: Is the claimant capable of performing his past work? If so, the
claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to
perform any other work? If so, the claimant is not disabled. If not, the claimant
is disabled.
Lester v. Chater, 81 F.3d 821, 828, n.5 (9th Cir. 1995).
The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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5. After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform the full range of light
work as defined in 20 CFR 404.1567(b) and 416.967(b).

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6. The claimant is capable of performing her past relevant work as a Front Desk
Clerk and Housekeeper. This work does not require the performance of workrelated activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565 and 416.965).
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7. Even if the claimant could not perform past relevant work, there are a
significant number of unskilled jobs available to someone of her age, education
and work experience. See Medical-Vocational Rule 201.21.
8. The claimant has not been under a disability, as defined in the Social Security
Act, at any time from January 29, 2004 through the date of this decision (20 CFR
404.1520(f) and 416.920(f)).
Id. at 10-14.
Plaintiff requested that the Appeals Council review the ALJ’s decision. On August 17,

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2010, the Appeals Council denied review, making the ALJ’s decision the final decision of the

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Commissioner of Social Security. Id. at 1-4.

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II. LEGAL STANDARDS

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The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence,

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are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521

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(9th Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to

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support a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol.

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Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
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“The ALJ is responsible for determining credibility, resolving conflicts in medical

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testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

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ANALYSIS
Plaintiff makes the following arguments: the ALJ erred in failing to explain why he

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adopted the opinions in an examining psychiatrist’s later report rather than the opinions in the

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psychiatrist’s earlier report; failing to provide specific and legitimate reasons for rejecting

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another examining psychiatrist’s opinion; failing to provide legally sufficient reasons for finding

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plaintiff not credible; finding plaintiff’s mental impairments non-severe at step two, and failing

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to consider plaintiff’s mental impairments in determining her RFC; and in finding that plaintiff

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was able to perform her past relevant work. Dckt. No. 16 at 5.

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A.

The ALJ Did Not Commit Reversible Error in Weighing Physician Evidence.

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Plaintiff argues that the ALJ erred in 1) rejecting one of Dr. Cormier’s two reports, and 2)

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rejecting Dr. Mehtani’s opinion. The weight given to medical opinions depends in part on

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whether they are proffered by treating, examining, or non-examining professionals. Lester v.

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Chater, 81 F.3d 821, 830 (9th Cir. 1995). To evaluate whether an ALJ properly rejected a

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medical opinion, in addition to considering its source, the court considers whether (1)

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contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ

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may reject an uncontradicted opinion of a treating or examining medical professional only for

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“clear and convincing” reasons. Lester, 81 F.3d at 831. In contrast, a contradicted opinion of a

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treating or examining professional may only be rejected for “specific and legitimate” reasons,

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that are supported by substantial evidence. Id. at 830. This test is met if the ALJ sets out a

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detailed and thorough summary of the facts and conflicting clinical evidence, states his

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interpretation of the evidence, and makes a supported finding. Magallanes v. Bowen, 881 F.2d
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747, 751–55 (9th Cir. 1989). Absent specific and legitimate reasons, the ALJ must defer to the

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opinion of a treating or examining physician. Lester, 81 F.3d at 830–31.

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Dr. Cormier, a state agency examining psychologist, examined plaintiff on two

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occasions. His first examination was in 2007, when he prepared a report stating, “Structured

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diagnostic interviewing and behavioral observations suggested that Ms. McCann may currently

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meet the criteria necessary for the diagnosis of a major depressive disorder that is recurrent and

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of moderate intensity and prescription opioid dependence.” Id. at 649. Dr. Cormier found that

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plaintiff’s mental impairments might or were likely to significantly impair her ability to perform

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simple and repetitive tasks, maintain attendance, complete a normal workday or workweek, and

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accept and remember instructions from supervisors. Id. at 651. Dr. Cormier wrote that plaintiff

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“is only very marginally functional outside of a moderately supportive situation at the present

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time” but he suspected “that when her probable prescription opioid dependence issues are

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handled and she is a programming [sic] treated with antidepressant medications, her functional

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status may significantly improve.” Id.

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In the next year, 2008, Dr. Cormier again examined plaintiff and gave her a number of

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psychological tests. AR 735-41. He opined that plaintiff “did not appear to be honest in her

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responses. I discerned some obvious indications of symptom magnification and possible

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malingering.” Id. at 737. He found no psychological or psychiatric impairments that would

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prevent plaintiff from performing simple repetitive tasks, impair her ability to maintain regular

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attendance and perform work activities on a consistent basis, require special or additional

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supervision, or prevent her from completing a normal workday or workweek without

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interruptions. Id. at 741. He found that plaintiff “may have mild impairment regarding pace.”

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Id. He acknowledged that he had previously examined plaintiff and had diagnosed her with a

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major depressive disorder with a GAF score of 52, but did not explicitly state why his opinion

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had changed. Id. at 737.

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The ALJ’s opinion does not mention Dr. Cormier’s 2007 opinion. In finding plaintiff’s

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mental impairment of depression non-severe, the ALJ noted that Cormier had not diagnosed a

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severe mental impairment in 2008. However, the ALJ did refer to the conflict between the two

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Cormier reports in the hearing. He asked plaintiff’s attorney “What do I do with those? One’s

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based on testing. One was based on subjective reaction, I think, and the second one that found,

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had profound problems was based on testing.” Id. at 51. The ALJ then questioned plaintiff

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about Dr. Cormier’s opinion that she was exaggerating her symptoms. Id. at 52.

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Plaintiff argues that the ALJ was obligated to provide specific, legitimate reasons for

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crediting Dr. Cormier’s later report rather than his earlier one. But resolving conflicts between

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two reports by the same doctor, where that doctor has changed his opinion over time, is not akin

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to resolving conflicts between two doctors. Dr. Cormier’s second report is clearly inconsistent

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with his first report and the second report was drafted at a later date after further testing. It

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appears that the opinions in the second report supersede the opinions given in the first report. By

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writing his second report, Dr. Cormier implicitly disavowed the inconsistent opinions given in

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his first report. In such a situation there is no legal requirement that an ALJ provide specific and

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legitimate reasons for crediting a later report rather than an earlier, implicitly rejected report.

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Regardless, the ALJ’s discussion of the two reports at the hearing shows that he was aware of

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Dr. Cormier’s first report and rejected it because it was based on “subjective reaction” rather

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than objective testing.

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Plaintiff further argues that the ALJ improperly rejected the opinion of his examining

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physician, Dr. Mehtani. Plaintiff’s attorney arranged for Dr. Mehtani to examine plaintiff in

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November 2007. AR 270. Dr. Mehtani opined that plaintiff “has had chronic depression and

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anxiety,” that “she is not able to stay in any gainful employment,”and that “[i]n spite of any

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psychiatric treatment she is not likely to return to gainful employment.” Id.

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The ALJ rejected Dr. Mehtani’s opinion, writing:

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In a psychological evaluation by Sidney Cormier, Ph.D., in May 2008, the
examiner concluded the claimant was less than honest in her responses and in fact
had shown obvious indications of symptom magnification and possible
malingering. He did not diagnose a severe mental impairment. The contrary
suggestion by Janak Mehtani, M.D., is not persuasive inasmuch as it resulted
from an exam arranged by the claimant’s attorney in furtherance of the claimant’s
pursuit of these benefits and it lacks support elsewhere in the record. (Exhibit
21F, 24F, 27F).

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Note too that analysis of the claimant’s symptoms and limitations under the four
broad functional areas set out in the disability regulations for evaluating mental
disorders...also leads to the conclusion that she does not have a “severe” mental
impairment. It does not appear the claimant has more than “mild,” if any,
limitation in the first three functional areas. In activities of daily living and social
functioning, the claimant appears fully capable of performing all activities of
daily living. She cares for her boyfriend’s son, followings a check list for
maintaining order and ensuring task completion, cleans, drives an automobile to
various life events, shops for groceries, movies and various household needs and
handles the household finances. Neither her history nor her response to
questioning suggests significant impairment sustaining concentration or
persistence; she may have mild impairment regarding pace.

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AR 11. Thus, the ALJ provided the following reasons for rejecting Dr. Mehtani’s opinion: 1) it

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was inconsistent with Dr. Cormier’s opinion; 2) it resulted from an exam arranged by the

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claimant’s attorney; and 3) it lacks support elsewhere in the record, as it is inconsistent with

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plaintiff’s activities of daily living and her history and response to questioning.

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Plaintiff correctly argues that the second reason is not legitimate, as an examining

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doctor’s findings are entitled to the same weight regardless of whether the examination was

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obtained by the plaintiff or by the Commissioner. See Lester, 81 F.3d at 832. Defendant argues

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that the ALJ properly discounted Dr. Mehtani’s opinion because plaintiff’s attorney arranged for

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the examination. Defendants rely on Salee v. Chater, in which the Ninth Circuit upheld an

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ALJ’s rejection of an examining doctor’s opinion not solely because it had been solicited by

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plaintiff’s attorney, but because the ALJ had cited to “actual improprieties” in the report. 94

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F.3d 520, 522-23 (9th Cir. 1996). Specifically, in Salee the report was “worded in such a way

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that it [struck the ALJ] as an effort by the physician to assist a patient even though there is no

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objective medical basis for the opinion.” Id. at 523. Here, the ALJ opinion points to no
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evidence of actual improprieties in Dr. Mehtani’s report. However, because the ALJ provided at

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least one additional specific and legitimate reason for discounting Mehtani’s opinion, this error

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is harmless.

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Plaintiff further argues that the ALJ could not discount Dr. Mehtani’s report on the basis

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that it was inconsistent with Dr. Cormier’s 2008 report because Dr. Mehtani’s opinions were

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consistent with Dr. Cormier’s 2007 report, and were also consistent with the opinion of Dr. Troy,

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a workers compensation agreed medical evaluator. As explained above, the ALJ did not err in

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relying on Dr. Cormier’s 2008 report rather than his 2007 report. It is true that parts of Dr.

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Mehtani’s opinion were actually consistent with some other pieces of evidence in the record, and

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therefore the ALJ’s statement that “it lacks support elsewhere in the record” is inaccurate when

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read in its most literal sense. But the more specific reason that the ALJ gave–that Dr. Mehtani’s

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opinion is inconsistent with plaintiff’s activities of daily living, as well as her history and

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response to questioning–is specific and legitimate, and is therefore a legally sufficient reason to

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reject Dr. Mehtani’s opinion. See Edlund v. Massanari, 253 F.3d at 1156 (an ALJ is responsible

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for “for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities”).
The ALJ Did Not Err in Finding Plaintiff Not Completely Credible.

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B.

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Plaintiff argues that the ALJ erred in finding her testimony not completely credible. In

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rejecting a claimant’s subjective complaints, the administrative law judge “must provide

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‘specific, cogent reasons for the disbelief.’” Lester, 81 F.3d at 834. Without affirmative

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evidence showing that the claimant is malingering, the reasons for rejecting the claimant’s

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testimony must be clear and convincing. See id. The ALJ must specifically identify what

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testimony is credible and what testimony undermines the claimant’s complaints. See id.; see

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also Morgan v. Apfel, 169 F.3d 595, 599 (9th Cir. 1999).

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Plaintiff testified at the administrative hearing that her stress and depression interfered
with her ability to work. AR 41-43. She testified that she had had a psychiatric exam at Fair
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Oaks Psychiatric, that she had lost weight from and was taking Klonopin and Wellbutrin for the

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depression. Id. at 42-43. She testified that the medication “gets me through the day, but I’m still

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depressed.” Id. at 43. She testified that she did not pursue psychiatric treatment because she was

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“depressed and not wanting to do it.” Id. at 45. When asked why she did not continue working

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at her previous job providing in-home support services, she said “I would if . . . my back wasn’t

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in so much pain . . . . I could if it wouldn’t, you know, if my back didn’t hurt so much, I would

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do it, yes.” Id. at 30-31.

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There was evidence that plaintiff was malingering. Notably, the ALJ pointed out that Dr.

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Cormier “concluded that the claimant was less than honest in her responses and in fact had

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shown obvious indications of symptom magnification and possible malingering.” Id. at 11.

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Similarly, the ALJ noted that plaintiff was “described as demonstrating inappropriate illness

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behavior, e.g., reporting very high pain levels but behaving in ways that did not correspond to

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such high level of pain.” Id. at 13. In assessing plaintiff’s credibility, the ALJ wrote that there

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were “noted inconsistencies between the claimant’s alleged symptoms and those typically

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observed in such patients and those observed in her when she was not being directly examined.”

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Id. at 14. Because there is affirmative evidence showing that plaintiff was malingering, the ALJ

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was not obligated to provide clear and convincing reasons for rejecting plaintiff’s testimony.

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Instead, he needed to provide only “specific, cogent reasons for the disbelief.” Lester, 81 F.3d at

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834.

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In evaluating plaintiff’s credibility, the ALJ wrote:

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. . . considering the various medical opinions, the clinical and radiographic
findings, and the noted inconsistencies between the claimant’s alleged symptoms
and those typically observed in such patients and those observed in her when she
was not directly being examined, it must be concluded that her claims of a
disabling level of pain and limitation simply are not credible at least insofar as
they suggest inability to do even light work activities. In addition to the
foregoing, it is noted that the claimant’s allegedly disabling injuries and
symptoms long predate her alleged onset of disability. She worked in spite of
back and knee problems which she relates back to 2001. Even after the alleged
2004 aggravation of her condition, the claimant worked 3 ½ hours a day bathing,
dressing, and doing household work for a 175 disabled woman. Moreover,

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despite some slight opinion variations, no examining or non-examining physician
has suggested that the claimant is precluded from performing the full range of
light work.

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AR 14. Earlier in the opinion, the ALJ also noted that plaintiff’s activities of daily living,

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history, and responses to questioning did not show more than a mild mental impairment. Id. at

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11. Thus, the ALJ gave the following reasons for finding plaintiff’s testimony not completely

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credible: 1) her testimony was inconsistent with the medical opinions in the record; 2) her

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testimony was inconsistent with the clinical and radiographic findings; 3) she appeared to

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exaggerate her symptoms on examination; 4) the injuries that she claims render her unable to

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work predate her alleged date of onset of disability; 5) she in fact worked 3 ½ hours a day during

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the period of time that she claimed to be disabled; 6) no doctor opined that she could not do a

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full range of light work; and 7) her activities of daily living, history and responses to questioning

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do not show more than a mild mental impairment. Thus, the ALJ provided a number of specific,

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cogent reasons for finding plaintiff not completely credible. Plaintiff does not explain why each

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of these reasons is not legally sufficient.

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Instead, plaintiff argues that the ALJ failed to consider the side-effects of her medication

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in assessing her credibility. She notes that she was taking “numerous medications” and that

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three doctors “expressed concerns about [her] opioid dependency.” Dckt. No. 16 at 20. She

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writes that her “depression and opioid dependency may have been a major factor that influenced

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her subjective pain complaints and her credibility that the ALJ erroneously failed to consider

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entirely.” Id. Similarly, plaintiff argues that her ability to engage in certain daily activities and

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to work 3 ½ hours a day do not translate to an ability to engage in substantial gainful activity.

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Id. But these arguments amount to nothing more than plaintiff’s disagreement with the ALJ’s

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weighing of the evidence. See Edlund v. Massanari, 253 F.3d at 1156 (an ALJ is responsible for

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“for determining credibility, resolving conflicts in medical testimony, and resolving

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ambiguities”).

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Plaintiff also argues that the ALJ “did not go through the reasons why Ms. McCann’s

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subjective complaints about her depression were not credible.” Dckt. No. 16 at 18. To the

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contrary, the ALJ found that plaintiff’s activities of daily living, history and responses to

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questioning did not show more than a mild mental impairment. AR 11. To the extent that this

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finding was inconsistent with plaintiff’s testimony regarding her depression, the ALJ provided

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specific, cogent reasons for rejecting the testimony.

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C.

The Commissioner Did Not Err in Finding that Plaintiff’s Mental Impairments
Were Non-Severe, or in Assessing Plaintiff’s Residual Functional Capacity.

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Plaintiff argues that the ALJ erred in 1) finding that her mental impairments were non-

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severe at step two and 2) in not considering her mental impairments in assessing her residual

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functional capacity.

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The ALJ found at step two that plaintiff suffered from the medically determinable

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impairment of depression, but that it was non-severe. A severe impairment is one that

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“significantly limits” a claimant’s “physical or mental ability to do basic work activities.” 20

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C.F.R. § 404.1520(c). An ALJ must consider all of the evidence at step two to determine

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whether a medically determinable impairment significantly limits the claimant’s ability to

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perform basic work activities. Id. § 404.1520(a); Bowen v. Yuckert, 482 U.S. 137, 145 (1987).

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“An impairment or combination of impairments may be found ‘not severe only if the evidence

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establishes a slight abnormality that has no more than a minimal effect on an individual’s ability

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to work.’” Webb v. Barnhart, 433 F.3d 683, 686–87 (9th Cir. 2005) (citation omitted). Step two

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is “a de minimis screening device [used] to dispose of groundless claims” and the ALJ’s finding

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must be “clearly established by medical evidence.” Id. at 687 (citations and quotation marks

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omitted).

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Plaintiff argues that the record shows that her mental impairments of depression and

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anxiety had more than a de minimis effect on her ability to work. She cites Dr. Cormier’s

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opinion in his first report and Dr. Mehtani’s opinion. As explained in detail above, the ALJ did
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not err in not crediting these opinions. Similarly, as explained above, the ALJ provided legally

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sufficient reasons for rejecting plaintiff’s testimony regarding the severity of her depression and

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its impact on her ability to work.

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Plaintiff further argues that “Dr. Troy, and the doctors at Anderson Medical Center

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believed that Ms. Mann’s need [sic] psychological help when it came to her mental condition.”

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Dckt. No. 16 at 22. But Dr. Troy’s ultimate opinion was,”Frankly I am not sure what anyone is

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going to do for her as she is now describing all of her physicians as incompetent. I think that

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given her history and claims of depression that that however might be a good place to start.

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However, I see no reason for any such treatment on an industrial basis. If there is a problem it is

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likely psychosocial . . . I do not find any need for further treatment.” AR 442. Thus, while Dr.

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Troy suggested that plaintiff be treated for depression, if anything at all, he ultimately

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recommended no further treatment. Dr. Troy did not find plaintiff’s mental impairments

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significantly limited her ability to work. Plaintiff has not met her burden of showing that the

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ALJ erred in finding her mental impairments non-severe.

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Plaintiff further argues that, regardless of whether her mental impairments were severe or

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non-severe, the ALJ erred in failing to consider her mental impairments in assessing her RFC. It

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is true that an ALJ must consider the effect of all impairments, both severe and non-severe, in

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assessing an RFC. See 20 CFR § 404.1523. But there is no indication that the ALJ failed to

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include plaintiff’s mental limitations–specifically, his finding that plaintiff’s depression “does

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not cause more than minimal limitation in [her] ability to perform basic mental work

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activities”–in determining that plaintiff had the RFC to perform a full range of light work. See

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AR 11. Although plaintiff disagrees with the ALJ’s weighing of the evidence, plaintiff has not

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shown that the ALJ made a legal error or that his RFC finding was not supported by substantial

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evidence.

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D.

The ALJ Did Not Err in Determining that Plaintiff Could Perform Her Past
Relevant Work.

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Plaintiff argues that because the ALJ did not adopt Dr. Cormier’s first opinion and Dr.

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Mehtani’s opinion regarding her mental limitations, the ALJ erred in finding that she could

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perform her past relevant work. As explained above, the ALJ did not err in rejecting the doctors’

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opinions.

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IV.

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CONCLUSION
The ALJ’s decision is based on the proper legal standards and is supported by substantial

evidence. Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment is denied;

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2. The Commissioner’s motion for summary judgment is granted; and

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3. The Clerk is directed to enter judgment in the Commissioner’s favor and close the

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case.

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DATED: March 30, 2012.

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