Flenner v. Commissioner of Social Security

Filing 18

ORDER denying 15 Motion for Summary Judgment and granting 16 Motion for Summary Judgment signed by Magistrate Judge Kendall J. Newman on 8/28/13: Judgment is entered for the Commissioner. The Clerk of Court is directed to close this case and vacate all dates. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VICTORIA ANN FLENNER,

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Plaintiff,

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No. 2:12-cv-0897-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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

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(“Commissioner”) denying plaintiff’s application for Disability Insurance Benefits (“DIB”) under

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Title II of the Social Security Act (“Act”).1 In her motion for summary judgment, plaintiff

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principally contends that the Commissioner erred by finding that plaintiff was not disabled from

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May 3, 2003, plaintiff’s alleged disability onset date, through September 30, 2008, the date on

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which plaintiff was last insured. (ECF No. 15.) The Commissioner filed a cross-motion for

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summary judgment and an opposition to plaintiff’s motion. (ECF No. 16.) Thereafter, plaintiff

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filed a reply brief. (ECF No. 17.)

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This action was initially referred to the undersigned pursuant to E.D. Cal. L.R. 302(c)(15), and
both parties voluntarily consented to proceed before a United States Magistrate Judge for all
purposes. (ECF Nos. 7, 9.)
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For the reasons that follow, the court denies plaintiff’s motion for summary judgment,

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grants the Commissioner’s cross-motion for summary judgment, and enters judgment for the

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Commissioner.

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I.

BACKGROUND

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Plaintiff was born on April 28, 1961, has at least a high school education, and previously

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worked as a credit manager, office manager, branch manager, office supervisor, and accounting

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supervisor.2 (Administrative Transcript (“AT”) 40, 44, 51, 55, 142.) Around November 28,

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2007, plaintiff applied for DIB, alleging that she was unable to work as of May 3, 2003, primarily

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due to problems in her ankles and knees, diabetes, and depression. (AT 37, 51, 135.) On

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September 8, 2008, the Commissioner determined that plaintiff was not disabled. (AT 37, 51, 56-

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60.) Upon plaintiff’s request for reconsideration, the determination was affirmed on April 20,

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2009. (AT 37, 55, 65-69.) Thereafter, plaintiff requested a hearing before an administrative law

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judge (“ALJ”), which took place on April 28, 2010, and at which plaintiff (represented by

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counsel), plaintiff’s husband, and a vocational expert (“VE”) testified. (AT 13-31, 37.)

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In a decision dated August 11, 2010, the ALJ determined that plaintiff had not been under

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a disability, as defined in the Act, from May 3, 2003, plaintiff’s alleged disability onset date,

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through September 30, 2008, plaintiff’s date last insured. (AT 37-45.) The ALJ’s decision

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became the final decision of the Commissioner when the Appeals Council denied plaintiff’s

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request for review on February 10, 2012. (AT 1-5.) Thereafter, plaintiff filed this action in

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federal district court on April 6, 2012, to obtain judicial review of the Commissioner’s final

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decision. (ECF No. 1.)

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II.

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ISSUES PRESENTED
Plaintiff has raised the following issues: (1) whether the ALJ violated Social Security

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Ruling 02-1p in analyzing plaintiff’s obesity and its impact on her functioning; and (2) whether

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the ALJ improperly discounted the opinion of consultative examining psychiatrist Dr. Wong.

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Because the parties are familiar with the factual background of this case, including plaintiff’s
medical and mental health history, the court does not exhaustively relate those facts in this order.
The facts related to plaintiff’s impairments and treatment will be addressed insofar as they are
relevant to the issues presented by the parties’ respective motions.
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III.

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

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

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

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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

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

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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The

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court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational

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

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IV.

DISCUSSION
Summary of the ALJ’s Findings

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A.

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The ALJ evaluated plaintiff’s entitlement to DIB pursuant to the Commissioner’s standard

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five-step analytical framework.3 As an initial matter, the ALJ found that plaintiff remained

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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. §§ 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, 14042, 107 S. Ct. 2287 (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 relevant work? If so, the
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insured for purposes of DIB through September 30, 2008. (AT 39.) At the first step, the ALJ

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concluded that plaintiff had not engaged in substantial gainful activity during the period from her

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alleged disability onset date of May 3, 2003, through her date last insured of September 30, 2008.

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(Id.) At step two, the ALJ determined that plaintiff had the following severe impairments through

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the date last insured: left knee ligament dysfunction and a fracture of the left tibia-fibula. (Id.)

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However, at step three, the ALJ determined that plaintiff did not have an impairment or

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combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part

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404, Subpart P, Appendix 1. (AT 40.)

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Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity
(“RFC”) as follows:

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After careful consideration of the entire record, the undersigned
finds that, through the date last insured, the claimant had the
residual functional capacity to perform a wide range of light work
as defined in 20 CFR 404.1567(b). [S]he can lift 20 pounds
occasionally and 10 pounds frequently, stand and/or walk 2 hours in
an 8-hour workday, and sit 6 hours in an 8-hour workday.

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(AT 40.)
At step four, the ALJ found, based on plaintiff’s RFC and the vocational expert’s

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testimony, that plaintiff was capable of performing her past relevant work as a credit manager,

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office manager, branch manager, office supervisor, and accounting supervisor (which were all

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sedentary occupations) through the date last insured. (AT 44.) Accordingly, the ALJ concluded

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that plaintiff had not been under a disability, as defined in the Act, from May 3, 2003, plaintiff’s

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alleged disability onset date, through September 30, 2008, the date last insured. (Id.)

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claimant is not disabled. If not, proceed to step five.

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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.

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

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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.
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B.

Plaintiff’s Substantive Challenges to the Commissioner’s Determinations
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Whether the ALJ violated Social Security Ruling 02-1p in analyzing

plaintiff’s obesity and its impact on her functioning
In this case, plaintiff’s treatment records document her complaints of knee, leg, ankle,

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foot, hip, back, hand, elbow, arm, neck, and shoulder pain; surgeries related to a left knee

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ligament reconstruction, left knee arthroscopy, and a fracture of her left leg; and diagnoses of

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degenerative arthritis, degenerative joint disease, diabetes, and potential carpal tunnel syndrome.

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(See generally AT 213-347, 389-406, 432-62.) The record contains numerous diagnostic imaging

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studies which, apart from plaintiff’s ultimately repaired fracture injuries, mostly documented

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normal or relatively mild degenerative findings. (Id.)
At the time of the administrative hearing, plaintiff was 5’ 2’’ tall and weighed 250 pounds,

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which amounted to a Body Mass Index (“BMI”) of approximately 45.7, with a BMI of 30 or

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greater indicating obesity. (AT 16, 464.) There is no serious dispute that plaintiff’s obesity

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exacerbates the symptoms attributable to her other conditions to some extent. For example, the

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treatment notes document that plaintiff has been advised to lose weight in order to reduce her

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leg/knee pain. (See, e.g., AT 271 [“Pt has DJD and there is not much that could be done except

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supartz injections…She can also lose weight. She is about a hundred pounds overweight.”]; AT

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273 [“She has osteoarthritis in the knee which will continue to give her pain unless she loses

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significant weight.”].)

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The pertinent question in this case is the degree to which plaintiff’s obesity impacts her

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other symptoms and functional limitations, and whether their combined effect renders her

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disabled. Although none of plaintiff’s treating physicians submitted assessments of her physical

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functional capacity, plaintiff was evaluated by two consultative examiners – Dr. Jenna Brimmer

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(who was board certified in internal medicine) and Dr. Fariba Vesali (who was board certified in

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physical medicine and rehabilitation)—on whose opinions the ALJ substantially relied to

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formulate plaintiff’s RFC. (AT 348-53, 409-13.)

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On this appeal, plaintiff does not challenge the substance of the consultative examiners’
opinions or the weight that the ALJ gave those opinions. Instead, plaintiff contends that the ALJ
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failed to consider the interactive effects of plaintiff’s obesity on her other impairments, in

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violation of SSR 02-1p. For the reasons discussed below, that argument lacks merit.

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SSR 02-1p provides, in part, as follows:
Obesity can cause limitation of function. The functions likely to be
limited depend on many factors, including where the excess weight
is carried. An individual may have limitations in any of the
exertional functions such as sitting, standing, walking, lifting,
carrying, pushing, and pulling. It may also affect ability to do
postural functions, such as climbing, balance, stooping, and
crouching. The ability to manipulate may be affected by the
presence of adipose (fatty) tissue in the hands and fingers. The
ability to tolerate extreme heat, humidity, or hazards may also be
affected.
The effects of obesity may not be obvious. For example, some
people with obesity also have sleep apnea. This can lead to
drowsiness and lack of mental clarity during the day. Obesity may
also affect an individual’s social functioning.
An assessment should also be made of the effect obesity has upon
the individual’s ability to perform routine movement and necessary
physical activity within the work environment. Individuals with
obesity may have problems with the ability to sustain a function
over time...In cases involving obesity, fatigue may affect the
individual’s physical and mental ability to sustain work activity.
This may be particularly true in cases involving sleep apnea.
The combined effects of obesity with other impairments may be
greater than might be expected without obesity. For example,
someone with obesity and arthritis affecting a weight-bearing joint
may have more pain and limitation than might be expected from the
arthritis alone.

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SSR 02-1p, at *6. For these reasons, when a claimant raises an issue concerning her obesity, or

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the record evidence reasonably triggers the ALJ’s duty to independently inquire into the potential

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effects of a claimant’s obesity, the ALJ must consider the interactive effect between the

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claimant’s obesity and other conditions. Celaya v. Halter, 332 F.3d 1177, 1182 (9th Cir. 2003).

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Nevertheless, as SSR 02-1p also makes clear, certain BMI levels may indicate obesity and

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the extent of obesity, but they “do not correlate with any specific degree of functional loss.” SSR

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02-1p, at *2. SSR 02-1p further notes that the Commissioner “will not make assumptions about

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the severity or functional effects of obesity combined with other impairments. Obesity in

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combination with another impairment may or may not increase the severity or functional

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limitations of the other impairment. We will evaluate each case based on the information in the
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case record.” SSR 02-1p, at *6.
Here, the ALJ’s decision explicitly considered plaintiff’s obesity, noting that “the claimant

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has a Body Mass Index of 45.7 [Ex. 21F2], indicating extreme obesity. However, no treating or

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examining physician herein has opined obesity causes more than a minimal loss of function.

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Accordingly, the undersigned finds obesity is not a severe impairment, even assuming it

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exacerbates the claimant’s symptoms.” (AT 44.) Based on this isolated portion of the ALJ’s

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decision, plaintiff argues that the ALJ only considered limitations caused by plaintiff’s obesity

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alone and failed to consider their interactive effect with limitations caused by other impairments.

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However, plaintiff’s argument ignores the ALJ’s thorough summary of the treatment records and

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other medical evidence that preceded that portion of the decision, including the ALJ’s

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consideration of the opinions of consultative examiners Drs. Brimmer and Vesali, which clearly

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took account of plaintiff’s obesity. (AT 41-44.)

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Consultative examiner and board certified internal medicine physician, Dr. Brimmer, who

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reviewed plaintiff’s medical records and examined plaintiff on June 23, 2008, specifically noted

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that plaintiff was obese with a height of 5’2’’ and a weight of 229 pounds. (AT 348, 350, 353.)

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Based on a physicial examination of plaintiff, Dr. Brimmer diagnosed plaintiff with (1) left knee

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pain status post two arthroscopic surgeries, with some decreased knee range of motion, decreased

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strength, atypical exam, and abnormal station and gait; (2) recent left tibia and fibula fracture

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requiring surgery, with hardware in place and some ankle swelling; (3) type II diabetes; and (4) a

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history of depression and anxiety (with assessment deferred to a mental health specialist). (AT

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352.) Dr. Brimmer opined that plaintiff could stand/walk for 6 hours in an 8-hour workday; sit

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without limits; lift and carry 20 pounds occasionally and frequently; and bend or stoop without

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limits, but crouch only occasionally. (Id.) Dr. Brimmer assessed no manipulative, visual,

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communicative, or environmental limitations, but indicated that plaintiff would benefit from a

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cane for long distances and uneven terrain. (AT 352-53.) According to Dr. Brimmer, these

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limitations would be present for at least six months after plaintiff’s surgery. (AT 352.)

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Consultative examiner Dr. Vesali, who was board certified in physical medicine and
rehabilitation, reviewed plaintiff’s medical records, and performed an orthopedic evaluation of
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plaintiff on March 31, 2009, likewise noted plaintiff’s height of 5’2’’ and weight of 220 pounds.

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(AT 409-10, 413.) After completing her physical examination, Dr. Vesali diagnosed plaintiff

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with (1) chronic left knee pain status post left knee ligament reconstruction in 2008, status post

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left tibia-fibular fracture status post open reduction internal fixation; (2) possible left knee

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osteoarthritis; and (3) myofascial neck and right upper extremity pain. (AT 412.) Dr. Vesali

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opined that plaintiff could stand/walk for 4 hours in an 8-hour day; sit for 6 hours in an 8-hour

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day, with breaks every two hours for stretching; and lift/carry 10 pounds frequently and 20

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pounds occasionally. (AT 412-13.) Plaintiff did not need an assistive device for ambulation and

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had no manipulative or environmental limitations, but Dr. Vesali noted that plaintiff should not

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engage in frequent climbing, crouching, kneeling, and crawling. (AT 413.)

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Both consultative examiners personally examined plaintiff and reviewed plaintiff’s

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medical records, and, as such, these examiners were well aware of plaintiff’s obesity when they

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assessed plaintiff’s functional limitations. Indeed, their reports set forth detailed and thorough

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clinical findings, including notations regarding plaintiff’s height, weight, and resultant obesity. It

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is certainly well within their clinical expertise to opine as to the functional limitations resulting

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from all of plaintiff’s combined impairments, including plaintiff’s obesity. In formulating

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plaintiff’s RFC, the ALJ substantially relied on these opinions and in fact gave plaintiff the

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benefit of the doubt by assessing slightly more restrictive limitations than those assessed by Drs.

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Brimmer and Vesali – in particular, finding that plaintiff could lift 20 pounds occasionally and 10

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pounds frequently, stand/walk for only 2 hours in an 8-hour workday, and sit for 6 hours in an 8-

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hour workday. (AT 40.)4

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Although the ALJ did not expressly incorporate Dr. Vesali’s limitation of breaks every 2 hours
for stretching, this was not necessary, because normal breaks include “a morning break, a lunch
period, and an afternoon break at approximately 2-hour intervals.” SSR 96-9p, at *6.
Furthermore, even though the ALJ did not include the consultative examiners’ suggested postural
limitations (limitations to occasional or less than frequent postural activities) in plaintiff’s RFC,
any error in that regard was harmless, because plaintiff’s past relevant work was comprised of
sedentary occupations, and significant postural activities are not usually required in sedentary
work. SSR 96-9p, at **7-8.
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Therefore, the court finds that the combined or interactive effect of plaintiff’s obesity and

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other impairments was appropriately considered in formulating plaintiff’s RFC. As such, any

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failure by the ALJ to more precisely articulate the obesity impact analysis in the decision was

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harmless error. See Curry v. Sullivan, 925 F.2d 1127, 1129 (9th Cir. 1990) (harmless error

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analysis applicable in judicial review of social security cases).5

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Whether the ALJ improperly discounted the opinion of consultative

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examining psychiatrist Dr. Wong

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The record in this case also contains no mental functional capacity assessment by a

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treating source, but plaintiff underwent a consultative psychiatric examination by board certified

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psychiatrist Dr. Patrick Wong. (AT 354-56.) Plaintiff contends that the ALJ failed to provide

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specific and legitimate reasons for discounting the opinion of Dr. Wong.

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

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treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195,

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1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more

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weight is given to the opinion of a treating professional, who has a greater opportunity to know

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and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

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1996).

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To evaluate whether an ALJ properly rejected a medical opinion, in addition to

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

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

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treating or examining medical professional only for “clear and convincing” reasons. Lester, 81

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F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be

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

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

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

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To the extent that plaintiff contends that the ALJ erred in not finding plaintiff’s obesity to be a
severe impairment at step two, any such error was also harmless, because, for the reasons
discussed above, plaintiff’s obesity was appropriately considered at subsequent steps in the
sequential evaluation process.
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may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing

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

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weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157,6 except that the ALJ

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in any event need not give it any weight if it is conclusory and supported by minimal clinical

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findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician’s conclusory,

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minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a

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non-examining professional, without other evidence, is insufficient to reject the opinion of a

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treating or examining professional. Lester, 81 F.3d at 831.

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Consultative examining psychiatrist Dr. Wong examined plaintiff on July 2, 2008. (AT

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354, 356.) In the course of his evaluation, Dr. Wong reviewed plaintiff’s medical records and

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noted plaintiff’s chief mental complaints to be depression and anxiety resulting from conflicts

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with her son and her health problems. (AT 354.) Plaintiff reported wanting to stay in bed and

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sleep all the time, withdrawing from contact with other people and her family, and experiencing a

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general loss of interest, but attempting to stay active by watching TV, reading, and sometimes

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writing cards to friends. (Id.)
Upon examination, Dr. Wong observed that plaintiff was “quite overweight” at about

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5’3’’ tall and a weight of around 230 pounds. (AT 354-55.) However, he found plaintiff to be

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neatly dressed and groomed, oriented with no fluctuation in her level of consciousness, easily

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engaged, and socially appropriate and cooperative. (AT 355.) She exhibited no psychomotor

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hyperactivity and had good eye contact, a full and well modulated affect, and a mildly depressed

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mood. (Id.) Her thought form was noted to be linear and well organized, and her thought content

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was normal. (Id.) Plaintiff’s fund of knowledge was intact for current events and her personal

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history, and she had capacity for “good insight and judgment based on well thought through

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responses in regards to how [s]he might handle various emergency situations. Response is

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coherent, logical and shows good prioritization, hence good judgment.” (Id.) Dr. Wong found

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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;
and (6) specialization. 20 C.F.R. § 404.1527.
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plaintiff’s attention and concentration to be very good and her memory to be intact. (Id.)
Dr. Wong diagnosed plaintiff with “depression not otherwise specified, relatively chronic

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and situationally related to her health problems” and a GAF of 70 (at the time of the evaluation

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and in the previous year).7 (AT 355-56.) He assessed plaintiff’s mental functional capacity as

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follows:

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This is a woman who has some depressive symptoms. The
depressive symptoms are largely in reaction to situational stresses
primarily her health problems. At this time, she is cognitively
intact and capable in carrying out simple and complex instructions
with no limitations. Her ability to relate to coworkers in the public
is perhaps mild to moderately impaired by her decreased stress
tolerance, her tendency to get upset, her tendency to just try to
withdraw from people. Her ability to maintain an adequate pace
and level of endurance in a workplace is mild to moderately
impaired by this same pattern. Her ability to relate to supervisor is
generally intact. Her ability to adapt to changes in the workplace is
mildly to moderately impaired by the factors previously discussed.
At this time, her ability to stay consistently aware of safety issues in
the workplace is intact. The probability of functional deterioration
due to typical workplace stresses is elevated.

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(AT 356.)
The ALJ gave reduced weight to Dr. Wong’s opinion, in particular his statement that

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“[t]he probability of functional deterioration due to typical workplace stresses is elevated,” noting

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that plaintiff never sought mental health treatment other than reporting stress to her primary care

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physician, suggesting her depression is not as severe as she suggests.” (AT 43-44, 356.) The

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ALJ also pointed to the opinion of non-examining state agency psychiatrist Dr. Walk, who

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reviewed plaintiff’s medical records and Dr. Wong’s report, and opined that plaintiff’s mental

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impairment was not severe and that plaintiff only had mild limitations with respect to activities of

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daily living, maintaining social functioning, and maintaining concentration, persistence, or pace.

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(AT 44, 357-67, 369, 371.)

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GAF is a scale reflecting “psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders 34
(4th ed. 2000). A GAF score of 61-70 indicates “[s]ome mild symptoms (e.g., depressed mood
and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.” Id.

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The court agrees with plaintiff, at least in part, that the ALJ’s characterization of plaintiff

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merely “reporting stress” to her primary care physician somewhat understates the history of

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plaintiff’s mental impairments. Plaintiff’s treatment records note that she had a long-standing

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history of depression, was at times tearful, and received prescription medication for depression

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and anxiety. (See, e.g., AT 264-68, 354.) Nevertheless, remand is not warranted here, because

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substantial evidence in the record as a whole indicates that plaintiff’s mental impairments do not

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preclude work encompassed by the assessed RFC.

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As Dr. Wong himself observed, plaintiff had no history of psychiatric hospitalization, did
not seek any treatment from a mental health specialist, and the bulk of her medical records related

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to her orthopedic problems. (AT 354.) Although plaintiff’s primary healthcare provider

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diagnosed plaintiff with recurrent major depression (AT 266), plaintiff was also noted to be stable

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on her medications, and Dr. Wong actually opined that plaintiff did not have a “history of

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persistent changes in vegetative function necessary to suggest the presence of a major depressive

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episode.” (AT 354.) Dr. Wong himself essentially assessed mild to moderate mental limitations,

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and the Ninth Circuit Court of Appeals has previously held that moderate mental limitations do

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not even require vocational expert testimony. Hoopai v. Astrue, 499 F.3d 1071, 1077 (9th Cir.

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2007) (“We have not previously held mild or moderate depression to be a sufficiently severe non-

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exertional limitation that significantly limits a claimant’s ability to do work beyond the exertional

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limitation.”)

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To the extent that Dr. Wong’s extremely vague reference to an “elevated” probability of

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functional deterioration due to typical workplace stresses can be construed as imposing more than

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mild to moderate mental limitations, that opinion is conclusory and minimally supported, and can

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be rejected on that basis. (AT 356.) See Meanel, 172 F.3d at 1114; Magallanes, 881 F.2d at 751.

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The opinion is contradicted by Dr. Wong’s own benign clinical findings and the relatively high

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GAF score he assessed, as outlined above. It is also inconsistent with the treatment notes of

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plaintiff’s primary care treating physician, Dr. Flores, who generally, apart from discrete periods

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involving acute stressors such as family issues and surgeries, described her depression as

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controlled with medication. (See, e.g., AT 266, 457.) On December 16, 2008, Dr. Flores
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described plaintiff’s mental status as “alert, oriented to person, place, and time, normal mood,

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behavior, speech, dress, motor activity, and thought processes.” (AT 400.) As of September 30,

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2009, Dr. Flores noted that plaintiff was essentially “negative for depression” and again described

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her mental status as “alert, oriented to person, place, and time, normal mood, behavior, speech,

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dress, motor activity, and thought processes.” (AT 457-58.) Notably, during her June 23, 2008

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consultative evaluation of plaintiff, Dr. Brimmer also observed that plaintiff was “very pleasant

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and cooperative and seemed to give an adequate history. She speaks in full sentences, uses

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bilateral hand gestures while talking. She smiles and laughs easily.” (AT 350.)
In light of the above, substantial evidence supports the ALJ’s determination to give

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reduced weight to Dr. Wong’s opinion, at least to the extent that the opinion significantly limits

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plaintiff’s ability to work beyond the assessed RFC.

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Plaintiff argues that because the ALJ herself did not specifically cite all of the above-

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mentioned reasons for discounting Dr. Wong’s opinion, the court should not consider such post-

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hoc rationalizations for the ALJ’s decision. However, the gist of the ALJ’s reasoning for

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discounting Dr. Wong’s opinion was that the medical evidence and treatment records did not

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support the alleged severity of plaintiff’s depression and related mental symptoms. (AT 43-44.)

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Thus, by considering the record evidence outlined above, the court is not inventing a new ground

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of decision; rather, such evidence is additional support for the ALJ’s decision. See Warre v.

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Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1005 n.3 (9th Cir. 2006). In any event, because

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harmless error analysis applies in judicial review of social security cases, see Curry, 925 F.2d at

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1129, the court will not remand a case to an ALJ simply to write up a more detailed decision

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when the record evidence as a whole clearly shows that remand would be futile.

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V.

CONCLUSION
For the foregoing reasons, the court finds that the ALJ’s decision was free from

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prejudicial error and supported by substantial evidence in the record as a whole. Accordingly, IT

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IS HEREBY ORDERED that:
1. Plaintiff’s motion for summary judgment (ECF No. 15) is DENIED.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 16) is

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GRANTED.

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3. Judgment is entered for the Commissioner.

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4. The Clerk of Court is directed to close this case and vacate all dates.

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IT IS SO ORDERED.

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Dated: August 28, 2013

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