Trefcer v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Gregory G. Hollows on 6/26/12: Plaintiff's Motion for Summary Judgment is GRANTED in part pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner's Cross Motion for Summary Judgment is GRANTED in part and DENIED in part, and this matter is remanded for further findings in accordance with this order. The Clerk is directed to enter Judgment for plaintiff. (Kaminski, H)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOANN GARCIA TREFCER,
Plaintiff,

12

CIV S-11-1436 GGH

vs.

13
14
15

MICHAEL J. ASTRUE,
Commissioner of Social Security,

ORDER

Defendant.

16

/
17
18

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

19

Security (“Commissioner”) denying her application for Disability Insurance Benefits (“DIB”)

20

under Title II of the Social Security Act (“Act”). For the reasons that follow, plaintiff’s Motion

21

for Summary Judgment is GRANTED IN PART, the Commissioner’s Cross Motion for

22

Summary Judgment is GRANTED in part and DENIED in part, and this matter is remanded to

23

the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment

24

for plaintiff.

25

///

26

///
1

1

BACKGROUND

2

Plaintiff, born November 10, 1953, applied on April 14, 2008, for disability

3

benefits, with a protective filing date of March 31, 2008. (Tr. at 57, 120.) In her application,

4

plaintiff alleged she was unable to work since December 15, 2007, due to her need to walk with

5

a cane, memory loss, stomach problems and “limited ability to move around.” (Id. at 120, 142.)

6

Plaintiff also alleged mental health problems. In a decision dated April 28, 2010, ALJ William

7

C. Thompson, Jr., determined that plaintiff was not disabled. (Id. at 14-24.) The ALJ made the

8

following findings:1

9

///

10
11
12
13
14

1

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. §§ 423(d)(1)(a) & 1382c(a)(3)(A).
A parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-142, 107 S. Ct. 2287 (1987). The following summarizes the sequential evaluation:

15
16
17
18
19
20
21
22
23

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.

24

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

25

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, 107 S. Ct. at 2294 n.5. The Commissioner bears the
burden if the sequential evaluation process proceeds to step five. Id.

26

2

1

1.

The claimant last met the insured status requirements of the
Social Security Act on June 30, 2008.

2.

The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of
December 15, 2007 through her date last insured of
June 30, 2008 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the
following severe impairments: degenerative disc disease of
the cervical spine; minimal degenerative spurring of the
shoulder; cognitive disorder; bipolar disorder, depressive
type; and history of drug and alcohol abuse in purported
remission (20 CFR 404.1520©).

4.

Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or
medically equaled one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d),
404.1525 and 404.1526).

5.

After careful consideration of the entire record, I find that,
through the date last insured, the claimant had the residual
functional capacity to perform medium work as defined in
20 CFR 404.1567©. She could lift 50 pounds occasionally
and 25 pounds frequently. She could stand and walk in
combination at least 6 hours in a workday and sit at least 6
hours in a workday. She should not have been required to
climb ladders, ropes, or scaffolding. She should not have
worked at heights or around hazardous machinery. She
would be limited to work involving simple instructions.

6.

Through the date last insured, the claimant was unable to
perform any past relevant work (20 CFR 404.1565).

7.

The claimant was born on November 10, 1953 and was 54
years old, which is defined as an individual “closely
approaching advanced age,” on the date last insured. The
claimant subsequently changed category to “advanced age”
(20 CFR 404.1563).

8.

The claimant has at least a high school education and is
able to communicate in English (20 CFR 404.1564).

9.

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding that
the claimant is “not disabled,” whether or not the claimant
has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).

2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
3

1

10.

Through the date last insured, considering the claimant’s
age, education, work experience, and residual functional
capacity, there were jobs that existed in significant
numbers in the national economy that the claimant could
have performed (20 CFR 404.1569 and 404.1569(a)).

11.

The claimant was not under a disability, as defined in the
Social Security Act, at any time from December 15, 2007,
the alleged onset date, through June 30, 2008, the date last
insured (20 CFR 404.1520(g)).

2
3
4
5
6
7

(Tr. at 16-24.)

8

ISSUES PRESENTED

9

Plaintiff has raised the following issues: A. Whether the Commissioner’s Finding

10

that Plaintiff Retained the Residual Functional Capacity for Medium Work Prior to the

11

Expiration of Her Insured Status, is not Based on Substantial Evidence and is Speculative

12

Without Analytical Foundation; B. Whether the Commissioner Failed to Explain Why he

13

Selectively Relied on Dr. Richwerger’s Opinion or the State Agency Psychologist’s Opinion;

14

and ©, Whether the Commissioner Failed to Articulate Specific and Legitimate Reasons for

15

Discrediting Dr. Kalman’s Opinion
LEGAL STANDARDS

16

The court reviews the Commissioner’s decision to determine whether (1) it is

17
18

based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in

19

the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999).

20

Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v.

21

Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence

22

as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d

23

625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The

24

ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and

25

resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations

26

///
4

1

omitted). “The court will uphold the ALJ’s conclusion when the evidence is susceptible to more

2

than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

3

ANALYSIS

4

A. Medium Work

5

Plaintiff contends that the ALJ’s finding that plaintiff could do medium work

6

prior to the expiration of her insured status was not based on substantial evidence and was

7

speculative.

8

Medium work is defined as “lifting not more than 50 pounds at a time with

9

frequent lifting or carrying of objects weighing up to 25 pounds.” 20 CFR §§ 404.1567©;

10

416.967©. Social Security Ruling 83-10 more specifically outlines the prerequisites of medium

11

work, for which the full range requires “standing or walking, off and on, for a total of

12

approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting

13

or carrying objects weighing up to 25 pounds. As in light work, sitting may occur intermittently

14

during the remaining time.”

15

Here, the ALJ found that plaintiff could do medium work, based on the evidence

16

as a whole, but with no climbing or working at heights or around hazardous machinery. She was

17

also limited to work involving simple instructions. (Tr. at 22.)

18

on the treatment notes and found medium work was not inconsistent with plaintiff’s daily

19

activities and social functioning. (Id.) The ALJ did find that plaintiff’s severe impairments

20

included these physical impairments: degenerative disc disease of the cervical spine and

21

minimal degenerative spurring of the shoulder. (Id. at 16.) In discussing plaintiff’s functional

22

capacity, the ALJ explained that although plaintiff had experienced a stroke in 2004 which

23

caused right- sided weakness prior to the onset date, there was no mention of any residual

24

problems from the stroke prior to her date last insured. (Id. at 16.) In regard to the severe

25

impairments involving plaintiff’s cervical spine and shoulder, the ALJ explained:

26

///
5

The ALJ based this conclusion

1

The claimant has alleged numerous musculoskeletal problems, but
has gotten only minimal treatment. The claimant had an MRI of
her cervical spine prior to her alleged onset date, which showed
degenerative changes and a moderate broad-based bulge of C5-6
disc with a neural foraminal encroachment on the right. ... She had
an x-ray of her left shoulder, also prior to her alleged onset date
which showed only minimal degenerative spurring with greater
tuberosity of the humerus, but no evidence of a fracture. The
claimant had an x-ray in June 2008 of her hip, which was normal
.... Although outside the period of disability, just after her date last
insured the claimant reported a pain level of only 1 out of 10 and
was cleared for regular work.... The claimant continued to seek
physical treatment after her date last insured. The claimant
reported increased problems and limitations with her neck,
shoulders, hips, knees, and feet. However, she did not consistently
report these problems until March 2009, several months after her
date last insured.... While there is only minimal evidence of
cervical problems prior to claimant’s date last insured and, in fact,
prior to 2009, looking at the evidence in the light most favorable to
the claimant, I have accounted for some physical limitations in the
residual functional capacity determined in this decision.

2
3
4
5
6
7
8
9
10
11
12

(Tr. at 19-20.) The ALJ went on to explain that he gave significant weight to the DDS

13

statements that there was insufficient evidence of plaintiff’s physical impairments; however, in

14

regard to the cervical disc disease and shoulder spurring prior to the date last insured, the ALJ

15

gave the DDS opinion reduced weight because there was some objective evidence of these

16

impairments. (Id. at 20.)

17

Plaintiff insists that the ALJ erred in finding she could do medium work, in light

18

of her neck and shoulder severe impairments, and he failed to articulate any evidentiary support

19

for his RFC finding.

20

In regard to the right-sided weakness as a result of a stroke, the ALJ did discuss it

21

as outlined above. The record indicates that on June 14, 2007, there was a treatment note

22

indicating a stroke in 2004 that resulted in right-sided weakness. (Tr. at 457.) On June 16, 2008,

23

plaintiff reported pain in her right arm, right shoulder2 and right hip. At this time, plaintiff

24

reported her pain to be a 10 on a scale from 1 to 10. (Id. at 366.) The clinical impression was

25
2

26

The degenerative spurring found to be a severe impairment was in plaintiff’s left
shoulder. (Tr. at 375.)
6

1

hip pain. (Id. at 367.) There are no records from the actual stroke, which occurred

2

approximately three years prior to plaintiff’s onset date; nor are there treatment records, most

3

likely because any permanent effects of a stroke would not be treatable. See

4

www.webmd.com/stroke/guide/stroke-treatment-overview. Treatment notes over the years do

5

not reflect any complaints of right-sided weakness other than the single report on June 16, 2008,

6

as mentioned above. (Tr. at 342-76, 411-80.)

7

Nor do the medical records reflect much in the way of complaints regarding

8

plaintiff’s degenerative disc disease of the cervical spine or shoulder spurring. The records of

9

San Joaquin General Hospital, and San Joaquin County Correctional Health Services, where

10

plaintiff received much of her treatment, contain only a few records of complaints regarding

11

these impairments, including the visit mentioned above on June 16, 2008, an x-ray of the

12

shoulder on September 20, 2007, before the alleged onset date, which showed minimal

13

degenerative spurring, and a treatment note on August 25, 2008, indicating plaintiff’s complaint

14

of “osteoarthritis” and request for an orthopedic referral. (Id. at 375, 446). In fact, at her health

15

assessment on July 16, 2008, through San Joaquin County Correctional Health Care, plaintiff

16

was specifically asked about all of her medical conditions, and she did not mention any cervical,

17

shoulder or right-sided weakness problems. (Tr. at 419.) At her earlier September 21, 2007,

18

health assessment, prior to her alleged onset date, plaintiff had mentioned only degenerative joint

19

disease as a medical problem. (Id. at 421.)

20

However, a case analysis by the DDS indicates there was an MRI in February

21

2007 which showed degenerative change and moderate broad based posterior bulge at C5-6 of

22

the cervical spine, with neural foraminal encroachment on the right. (Tr. at 399.) The MRI

23

itself, however, is not in the record.

24

Plaintiff references other records from San Joaquin Hospital which indicate

25

treatment for neck problems between March 21 and August 28, 2009; however, these records

26

begin nine months after her date last insured. (Tr. at 498-521.) For example, an x-ray of the
7

1

cervical spine on August 28, 2009, fourteen months after her DLI, indicated “degenerative disc

2

disease at C5-6 and C6-7 with anterior spondylosis, hard disc changes posteriorly particularly at

3

C5-6 with left mild-to-moderate foraminal narrowing and facet arthrosis.” This same record

4

indicated that there had been “further des[s]ic[]ative narrowing of the C5-C6 disc with increased

5

hard disc changes posteriorly and slight increase in the foraminal narrowing on the right,” since

6

February 4, 2005. (Tr. at 499.) An MRI of the cervical spine on November 5, 2009, indicated

7

“C6-7 small left paracentral protrusion partially effaces the lateral recess where it abuts the

8

exiting left C7 nerve root.” (Tr. at 541.) There was a disc bulge osteophyte complex at C5-6

9

that did not appear to cause significant stenosis. (Id.)

10

Plaintiff on March 21, 2009, complained of longstanding neck pain since 1999,

11

and she was seen by an orthopedist on July 22, 2009.3 These later records indicate that

12

plaintiff’s condition prior to her DLI should have been reviewed more closely by the ALJ. In

13

particular, the MRI taken a few months before her onset date indicated neural foraminal

14

encroachment. The later MRI refers to foraminal narrowing, which may be consistent with the

15

earlier MRI. These records indicate that review of plaintiff’s physical condition during the

16

pertinent time period and its effect on her exertional capacity was necessary. A mere and partial

17

reference to the existence of such important records by the ALJ, with no analysis of their

18

significance to the outcome, eviscerates confidence in the conclusion about medium work.4

19

Moreover, the ALJ failed to cite to medical record evidence in support of his finding that

20

plaintiff could do medium work. The evidence before the court indicates that based on

21

plaintiff’s cervical problems, it is possible that she cannot perform medium work. Because the

22
23
24
25
26

3

The orthopedic records indicate that plaintiff complained of right shoulder pain in
addition to knee pain, but she had full range of motion of the shoulder. She was diagnosed only
with “pes anserine bursitis,” but received no diagnosis for the shoulder complaint. (Tr. at 505.)
4

MRI’s are often termed the “gold standard” with respect to diagnosing back/neck
afflictions. The pre-DLI MRI referenced in the records demonstrate an potential, objective basis
for significant pain.
8

1

ALJ failed to consider the effect of plaintiff’s cervical impairment on her exertional capacity, the

2

case will be remanded for a medical expert review of this issue.

3

Plaintiff also contends that the state agency had attempted to arrange a physical

4

consultative exam on two occasions, but plaintiff “appears to have been incarcerated” on these

5

dates. After her release, she willingly attended her consultative mental exam, indicating her

6

willingness to attend such appointments.5 Defendant, on the other hand, argues that her physical

7

consultative exam was originally scheduled for July 12, 2008, and was rescheduled for August 4,

8

2008, when she did not show up. She also failed to arrive for the second appointment. The

9

records reflect that Dr. Nguyen, apparently a DDS examiner, recommended a consultative

10

exam.6 (Tr. at 400.) The DDS case analysis, dated February 11, 2009, indicates that the physical

11

RFC was insufficient. (Tr. at 482.) On July 16 and August 14, 2008, plaintiff was clearly

12

incarcerated. (Tr. at 464, 478.) It is not clear what other dates in July and August 2008 plaintiff

13

was incarcerated. (Tr. at 460-66.) Defendant contends that according to plaintiff’s own records,

14

she was only incarcerated on July 16, 2008, and August 13, 2008, after these scheduled

15

appointments. The record cited in support of this contention contains dates of events recorded

16

by San Joaquin Correctional Health Care, but this list does not necessarily comprise all the dates

17

of plaintiff’s incarceration, but merely the dates of pertinent medical events. (Tr. at 416.)

18

Therefore, it is still not clear if plaintiff was incarcerated on June 12 or August 4, 2008. Plaintiff

19

argues that in any event, the ALJ should have ordered such an exam since plaintiff was no longer

20

incarcerated and now had legal counsel. It does not appear that plaintiff’s counsel requested a

21

///

22
5

23
24
25
26

A case analysis note indicates that plaintiff’s prior CC claim in August 2005 was
denied for failure to go to a CE. (Tr. at 399.)
6

Plaintiff contends that the record does not contain any non-examining state agency
opinions and that the ALJ improperly relied on the opinions of claims examiners; however, the
record indicates that Dr. Harris affirmed the opinion of the claims examiner that the physical
RFC was insufficient. (Tr. at 482.) Dr. Nguyen also recommended an independent physical
exam after plaintiff failed to appear for her two previously scheduled exams. (Tr. at 400.)
9

1

consultative exam since she has been representing plaintiff, and she could have done so as late as

2

the administrative hearing.

3

It is true that plaintiff failed to make two scheduled physical consultative exams,

4

and did not try to reschedule them. Her attorney also could have sought an exam on her behalf.

5

Nevertheless, the evidence concerning plaintiff’s cervical impairment, especially the MRI noted

6

above, warrants review of plaintiff’s residual functional capacity.

7

A remand for the purpose of a present-day consultative exam would be difficult at

8

the present time because plaintiff’s neck and shoulder problems now are not the same as they

9

were prior to her date last insured. Nevertheless, if a consultative exam can shed light on

10

plaintiff’s condition and residual functional capacity during the pertinent period based on a

11

review of the records before and after that period, the ALJ is permitted to order one in addition

12

to, or in conjunction with, the medical expert review ordered above.

13

B.

14

Whether the Commissioner Selectively Relied on Dr. Richwerger’s Opinion and
the State Agency Psychologist’s Opinion, and Failed to Include a Proper
Hypothetical to the Vocational Expert

15

Plaintiff next claims that the ALJ erred in relying selectively on the opinions of

16

consulting psychologist, Dr. Richwerger, and non-examining state agency psychologist,

17

Dr. Klein. Plaintiff notes that these mental health practitioners both found that plaintiff had

18

moderate limitations in completing a normal workday or workweek. She also points out that

19

Dr. Klein additionally found a moderate limitation in plaintiff’s ability to perform work at a

20

consistent pace. Plaintiff claims that the ALJ failed to include these limitations in the

21

hypothetical to the vocational expert.

22

To the contrary, the ALJ stated in summarizing Dr. Richwerger’s opinion,

23

“specifically, [plaintiff] had no impairment in her ability to perform simple and repetitive tasks

24

and maintain regular attendance. She had only slight impairment in her ability to perform work

25

activities on a consistent basis.” (Tr. at 21.) In fact, the ALJ also noted that there was minimal

26

mental health treatment in the record during the disability period. (Id. at 20.) The ALJ
10

1

additionally summarized the DDS opinions, including Dr. Klein’s, noting that these non-

2

examining specialists found that plaintiff’s memory and understanding were adequate, and that

3

she had “sustained concentration, persistence, and pace for simple 1-2 tasks.” (Tr. at 22.) The

4

ALJ added the finding that plaintiff was adequate in social interaction, and could adapt to change

5

in most routine work like settings. This DDS opinion was confirmed on reconsideration. (Id.)

6

The ALJ concluded by finding that these opinions, along with Dr. Richwerger’s opinion, should

7

be given significant weight. (Id.)

8

Plaintiff refers to Dr. Klein’s Mental RFC in which he checked the box indicating

9

that plaintiff was moderately limited in “the ability to complete a normal workday and workweek

10

without interruptions from psychologically based symptoms and to perform at a consistent pace

11

without an unreasonable number and length of rest periods. (Tr. at 397.) In his written

12

functional capacity assessment portion of this form, however, Dr. Klein concluded that plaintiff

13

had an “adequate sustained concentration, persistence, and pace for simple 1-2 step tasks only.”

14

(Tr. at 398.) Dr. Klein’s conclusion was that plaintiff could do work involving simple 1-2 step

15

tasks only, and could socially interact and adapt to change in most routine work settings. (Id.)

16

Therefore, even though Dr. Klein checked the box for a moderate limitation in pace, his

17

functional capacity assessment was that plaintiff had an adequate sustained pace. This

18

conclusion, along with Dr. Richwerger’s opinion of only a slight impairment in ability to work

19

on a consistent basis and no impairment in maintaining regular attendance, were appropriately

20

relied upon by the ALJ.

21

Although both Drs. Richwerger and Klein found that plaintiff was moderately

22

impaired in her ability to complete a normal workday and workweek without interruption, they

23

did not find that plaintiff had moderate limitations in pacing, as noted above. To the extent that

24

Dr. Klein’s check-marked box may have been inconsistent with his RFC assessment,

25

Dr. Richwerger’s examining opinion carries more weight and is not internally inconsistent. He

26

found plaintiff to be slightly impaired in her ability to perform work on a consistent basis, and he
11

1

also found her to be moderately impaired in her ability to complete a normal workday or

2

workweek without interruption from a psychiatric condition. (Tr. at 382.) Consistency evokes

3

the manner in which plaintiff can get through a workday or workweek on a sustained basis

4

without having to take breaks or losing endurance. Plaintiff’s ability to get through work

5

without a psychiatric issue interrupting her is a different issue.

6

Plaintiff points to the testimony of the vocational expert in support of her claim

7

that any error was not harmless. Plaintiff’s counsel questioned the VE by asking whether, if

8

plaintiff had moderate limitations in ability to complete a normal work week, and moderate

9

limitations in pacing, would that erode the jobs mentioned. The VE responded that both of these

10

limitations involving an unskilled job would preclude plaintiff from sustained employment. This

11

hypothetical is not supported by the evidence, however.

12

Furthermore, even if the more restrictive limitation is considered in terms of

13

functional capacity, the VE only found a preclusion from sustained employment if both

14

limitations, moderate limitation in ability to complete a normal work week, and moderate

15

limitations in pacing, were imposed. (Tr. at 55-56.) Both Drs. Richwerger and Klein agreed that

16

limitations in plaintiff’s pace was only slight and that it was adequate.

17

Assuming arguendo that there is an inconsistency in the records, and the more

18

restrictive “moderate” limitation is considered, the ALJ’s failure to include it in his hypothetical

19

was proper. The Ninth Circuit has already held that moderate mental limitations do not even

20

require vocational expert testimony. Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir. 2007). In

21

Hoopai, a medical source determined that the claimant was moderately limited in “his ability to

22

maintain attention and concentration for extended periods; his ability to perform activities within

23

a schedule, maintain regular attendance, and be punctual with customary tolerance; and his

24

ability to complete a normal workday and workweek without interruption from psychologically-

25

based symptoms and to perform at a consistent pace without an unreasonable number and length

26

of rest periods.” Id. After the ALJ utilized the grids at step five to determine that the claimant
12

1

was not disabled, plaintiff contended on appeal that the ALJ was required to seek vocational

2

expert testimony regarding the limitations assessed. Id. at 1075. The Ninth Circuit rejected this

3

argument, holding that these moderate limitations were not sufficiently severe to prohibit the

4

ALJ from relying on the grids without the assistance of a vocational expert. Id. at 1077. Here,

5

likewise, the ALJ could properly decline to include a moderate mental limitation in regard to

6

ability to complete a workday or workweek without interruption in the hypothetical question.

7

C. Failure to Credit the Opinions of Dr. Kalman

8
9

Plaintiff contends that the ALJ failed to articulate specific and legitimate reasons
for failing to credit the opinion of consulting psychologist Dr. Kalman.

10

The weight given to medical opinions depends in part on whether they are

11

proffered by treating, examining or non-examining professionals. Holohan v. Massanari,

12

246 F.3d 1195, 1201 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).7

13

Ordinarily, more weight is given to the opinion of a treating professional, who has a greater

14

opportunity to know and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d

15

1273, 1285 (9th Cir. 1996).
To evaluate whether an ALJ properly rejected a medical opinion, in addition to

16
17

considering its source, the court considers whether (1) contradictory opinions are in the record;

18

and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of

19

a treating or examining medical professional only for “clear and convincing” reasons. Lester,

20

81 F.3d at 831. In contrast, a contradicted opinion of a treating or examining professional may

21

be rejected for “specific and legitimate” reasons. Lester, 81 F.3d at 830. While a treating

22
23
24
25
26

7

The regulations differentiate between opinions from “acceptable medical sources” and
“other sources.” See 20 C.F.R. §§ 404.1513 (a),(e); 416.913 (a), (e). For example, licensed
psychologists are considered “acceptable medical sources,” and social workers are considered
“other sources.” Id. Medical opinions from “acceptable medical sources,” have the same status
when assessing weight. See 20 C.F.R. §§ 404.1527 (a)(2), (d); 416.927 (a)(2), (d). No specific
regulations exist for weighing opinions from “other sources.” Opinions from “other sources”
accordingly are given less weight than opinions from “acceptable medical sources.”
13

1

professional’s opinion generally is accorded superior weight, if it is contradicted by a supported

2

examining professional’s opinion (supported by different independent clinical findings), the ALJ

3

may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing

4

Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to

5

weigh the contradicted treating physician opinion, Edlund v. Massanari, 253 F.3d 1152 (9th Cir.

6

2001),8 except that the ALJ in any event need not give it any weight if it is conclusory and

7

supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir.1999)

8

(treating physician’s conclusory, minimally supported opinion rejected); see also Magallanes,

9

881 F.2d at 751. The opinion of a non-examining professional, without other evidence, is

10

insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.
Here, the ALJ discounted Dr. Kalman’s report because it was internally

11
12

inconsistent and not well supported by the medical evidence. After providing a thorough

13

summary of this consulting psychologist’s November 6, 2009 report, the ALJ explained that the

14

report contains only minimal objective findings. (Tr. at 21-22.) The ALJ noted the report’s

15

finding that “claimant’s impairment would not be exacerbated by a routine, repetitive, entry level

16

job, but then indicates that the claimant would miss work more than 3-4 times a month. The ALJ

17

further explained that although Dr. Kalman opined that plaintiff’s impairment existed since

18

1999, this time period was not supported by the medical evidence, or plaintiff’s statements to the

19

Social Security Administration. (Tr. at 22.)

20

Compared to Dr. Richwerger, who had diagnosed cognitive disorder, with mild

21

deficits possibly secondary to history of stroke and seizure and three-day coma; Bipolar II,

22

depressed; and Cluster B predominately borderline personality traits, Dr. Kalman diagnosed

23

schizoaffective disorder, PTSD, opioid dependence in full sustained remission, and rule out

24
25
26

8

The factors include: (1) length of the treatment relationship; (2) frequency of
examination; (3) nature and extent of the treatment relationship; (4) supportability of diagnosis;
(5) consistency; (6) specialization. 20 C.F.R. § 404.1527
14

1

mixed personality disorder with borderline and antisocial traits. (Tr. at 382, 526.) Whereas

2

Dr. Richwerger assessed a GAF of 55-60,9 Dr. Kalman assigned a GAF of 50. (Id. at 382, 527.)

3

In regard to internal inconsistencies in Dr. Kalman’s report, it is true that this

4

psychologist found that plaintiff’s impairment would not be exacerbated by a routine, repetitive,

5

simple, entry level job. (Tr. at 531.) He also found that her impairments were severe enough to

6

prevent her from working more than three or four times per month. (Tr. at 532.) Elsewhere,

7

Dr. Kalman noted that plaintiff could, without significant limitation, understand, remember, and

8

carry out very short and simple repetitive instructions, perform activities within a schedule,

9

maintain regular attendance, sustain an ordinary routine without special supervision, and respond

10

appropriately to changes in the work setting, among others. (Tr. at 529-31.) Plaintiff was found

11

to be only mildly limited in being able to complete a normal workday and workweek without

12

interruptions form psychological symptoms, and she could work at a consistent pace without an

13

unreasonable number and length of rest periods. (Id. at 530.) All of these insignificant to mild

14

limitations were inconsistent with Dr. Kalman’s opinion that plaintiff would miss work more

15

than three or four times per month.

16

Plaintiff points out that she was found to be moderately limited in other areas that

17

touch on plaintiff’s emotions, such as the ability to get along with the public and coworkers, and

18

accepting instructions and criticism, and these areas of social interaction are probably the basis

19

for Dr. Kalman’s finding that plaintiff would miss work a few days per month. As a result,

20

plaintiff argues, there was no inconsistency in Dr. Kalman’s opinion because slight limitations in

21

performing simple tasks involves a different area of functioning than social functioning.

22

Dr. Kalman’s report, however, does not state why plaintiff would miss work three or more days

23
24
25
26

9

GAF is a scale reflecting the “psychological, social, and occupational functioning on a
hypothetical continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed.1994) (“DSM IV”). According to the DSM IV, a GAF of 51-60 indicates
moderate symptoms such as flat affect, circumstantial speech, occasional panic attacks, or
moderate difficulty in functioning as in few friends or conflicts with peers or co-workers.
15

1

per month. Only if plaintiff’s interpretation of the report is accepted would Dr. Kalman’s report

2

be considered consistent. The ALJ’s construction of this report is just as reasonable.

3

In any event, the ALJ was permitted to rely on one consultative opinion over

4

another, especially where Dr. Kalman’s opinion was rendered a year and four months after

5

plaintiff’s date last insured, and Dr. Richwerger examined plaintiff only two and a half months

6

after her date last insured. It is well established that retrospective opinions are even less

7

persuasive in the specialty of mental health. “The opinion of a psychiatrist who examines the

8

claimant after the expiration of his disability insured status, however, is entitled to less weight

9

than the opinion of a psychiatrist who completed a contemporaneous exam.” Macri v. Chater,

10

93 F.3d 540, 545 (9th Cir. 1996); Vincent v. Heckler, 739 F.2d 1393, 1395 (9th Cir. 1984)

11

(“After-the-fact psychiatric diagnoses are notoriously unreliable”); Weetman v. Sullivan,

12

877 F.2d 20, 23 (9th Cir.1989) (new medical report following adverse administrative decision

13

denying benefits carries little, if any, weight) (citing Key v. Heckler, 754 F.2d 1545, 1550 (9th

14

Cir.1985)).
The ALJ was entitled to rely on the more timely report of Dr. Richwerger who

15
16

thought that plaintiff had no impairment in maintaining regular attendance at work. (Tr. at 382.)

17

In regard to the ALJ’s explanation that Dr. Kalman found plaintiff to be impaired

18

since 1999, the record supports his statement that in her application, plaintiff alleged disability

19

only since December 15, 2007.10 (Tr. at 120.) The treating mental health records in the file

20

begin only in June 2006.11 (Tr. at 303.) Furthermore, as pointed out by defendant, plaintiff held

21

jobs after 1999 when Dr. Kalman opined her limitations began. She was a drug and alcohol

22
10

23

The ALJ’s failure to cite the record to support this statement is of no consequence. He
cited to Exhibit 14F in support of his entire paragraph explaining why he was discounting
Dr. Kalman’s report, which report was the correct citation.

24
11

25
26

Dr. Kalman’s report, which states that his record review included records beginning
November 26, 2001, is mistaken. (Tr. at 528.) The jail records he refers to may appear to state,
“11-26-01," but the chart notes surrounding these dates reflect dates close to November 26,
2007. See e.g., tr. at 437, 450.
16

1

counselor from 1993 until November 1, 2000, and she was a certified nurses’ assistant from 1982

2

until 2003.12 (Tr. at 149.)

3

Finally, there is a dearth of mental health treatment records, as the ALJ suggested.

4

He noted that although plaintiff was diagnosed with major depressive disorder and history of

5

drug dependence on June 21, 2006, (Tr. at 296), these records were dated approximately a year

6

and a half prior to her alleged onset date. (Tr. at 20.) During the period from October 2006 to

7

October 2008, however, the record indicates minimal treatment. (Id.) Although plaintiff was

8

incarcerated during this time and sought treatment for physical problems, there was minimal

9

mental health treatment. (Tr. at 411-80.) Plaintiff was prescribed Paxil, but received no other

10

treatment. (Tr. at 439.) The ALJ additionally noted that although plaintiff obtained mental

11

health treatment after her date last insured, any diagnosis at that time was not pertinent to the

12

time period at issue, from December 15, 2007, to June 30, 2008. (Id. at 20.) The records support

13

these findings. Plaintiff received treatment from San Joaquin County Mental Health from

14

October 27, 2008, to November 26, 2008, from January 8, 2009, to July 29, 2009, and from

15

November 18, 2009, to November 22, 2009. (Tr. at 402-07, 483-95, 533-37.) All of these dates

16

are after the pertinent period.
Therefore, the ALJ’s reasons for discounting Dr. Kalman’s opinion were specific

17
18

and legitimate and supported by the record.

19

///

20

///

21

///

22

///

23

///

24

///

25
26

12

There is no explanation for the overlap in time periods for different jobs.
17

1

CONCLUSION

2

Accordingly, plaintiff’s Motion for Summary Judgment is GRANTED in part

3

pursuant to Sentence Four of 42 U.S.C. § 405(g), the Commissioner’s Cross Motion for

4

Summary Judgment is GRANTED in part and DENIED in part, and this matter is remanded for

5

further findings in accordance with this order. The Clerk is directed to enter Judgment for

6

plaintiff.

7

DATED: June 26, 2012

8

/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

9
GGH/076

10

Trefcer1436.ss.wpd

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
18