Clark v. Commissioner of Social Security

Filing 23

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 8/22/14 Recommending that Plaintiff's MOTION for Summary Judgment [ 21] be denied; Defendant's MOTION for Summary Judgment 22 be granted. The Clerk be directed to enter judgment and close this file. These Findings and Recommendations are submitted to Chief Judge Morrison C. England, Jr. Objections to these F&R due within 14 days. (Mena-Sanchez, L)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

HOWARD M. CLARK, JR.,

12
13
14

No. 2:12-cv-2550-MCE-CMK

Plaintiff,
vs.

FINDINGS AND RECOMMENDATION

COMMISSIONER OF SOCIAL
SECURITY,

15
Defendant.
16
17

/
Plaintiff, who is proceeding without counsel, brings this action for judicial review

18

of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pending

19

before the court are plaintiff’s motion for summary judgment (Doc. 21) and defendant’s cross-

20

motion for summary judgment (Doc. 22).

21
22

I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on June 8, 2009, alleging an onset of

23

disability on March 14, 2009, due to disabilities including HIV infection, asthma, depression,

24

hypertension, and stress. (Certified administrative record (“CAR”) 32-35, 130-31, 137-40, 161-

25

65). Plaintiff’s claim was denied initially and upon reconsideration. Plaintiff requested an

26

administrative hearing, which was held on April 13, 2011, before Administrative Law Judge
1

1

(“ALJ”) Allan K. Goldhammer. In a May 6, 2011, decision, the ALJ concluded that plaintiff is

2

not disabled1 based on the following findings:

3

1.

The Claimant filed applications for a period of disability and
disability insurance benefits for supplemental security income on
June 8, 2009.

2.

The Claimant meets the insured status requirements of the Social
Security Act through the date of this decision (Exhibit 3D).

3.

The evidence does not show that the Claimant has engaged in
substantial gainful activity since March 14, 2009, the alleged onset
date (Exhibit 3D) (20 CFR 404.1571 et seq., and 416.971 et seq.).

4.

The Claimant has the following severe impairments: asthma;
depression; and, obesity (Exhibit 7F, p. 14-15)(20 CFR
404.1520(c) and 416.920(c)).

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

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 (“SSI”) is
paid to disabled persons with low income. 42 U.S.C. § 1382 et seq. Under both provisions,
disability is defined, 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 five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 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.

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. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.

26

2

1

5.

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), 416.925 and
416.926).

6.

After careful consideration of the entire record, I find that the
Claimant has the residual functional capacity to perform medium
work as defined in 20 CFR 404.1567(c) and 416.967(c) with no
exposure to concentrated atmospheric irritants such as dusts,
fumes, gases, etc., and no work with the public.

7.

The Claimant is unable to perform any past relevant work (20 CFR
404.1565 and 416.965).

8.

The Claimant was born on August 3, 1982 and was 26 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

9.

The Claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

10.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational 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).

11.

Considering the Claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the Claimant can perform
(20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).

12.

The Claimant has not been under a disability, as defined in the
Social Security Act, from March 14, 2009, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).

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

After the Appeals Council declined review on August 9, 2012, this appeal followed.
II. STANDARD OF REVIEW

22

The court reviews the Commissioner’s final decision to determine whether it is:

23

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

24

whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

25

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

26

(9th Cir. 1996). It is “such evidence as a reasonable mind might accept as adequate to support a
3

1

conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including

2

both the evidence that supports and detracts from the Commissioner’s conclusion, must be

3

considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v.

4

Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

5

decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

6

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

7

findings, or if there is conflicting evidence supporting a particular finding, the finding of the

8

Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

9

Therefore, where the evidence is susceptible to more than one rational interpretation, one of

10

which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

11

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

12

standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

13

Cir. 1988).

14

III. DISCUSSION

15

To achieve uniformity of decisions, the Commissioner has promulgated

16

regulations which contain, inter alia, a five-step sequential disability evaluation to determine

17

whether a claimant is physically and/or mentally disabled. (20 C.F.R. §§ 404.1520 (a)-(f) and

18

416.920(a)-(f).) If during any point of this review, it is determined that the claimant is not

19

disabled, the claim is not to be considered further. (20 C.F.R. §§ 404.1520(a) and 416.920(a).)

20

The five-step process is summarized as follows:

21

1.

Determination of whether the claimant is engaged in substantial gainful activity,
and if so engaged, the claimant is not presumed disabled and the analysis ends;

2.

If not engaged in substantial gainful activity, determination of whether the
claimant has a severe impairment; if the claimant does not, the claimant is not
presumed disabled and the analysis ends;

22
23
24
25

///

26

///
4

1

3.

If the claimant has a severe impairment, determination of whether any such
severe impairment meets any of the impairments listed in the regulations;2 if the
claimant does have such an impairment, the claimant is disabled and the analysis
ends;3

4.

If the claimant’s impairment is not listed, determination of whether the
impairment prevents the claimant from performing his or her past work;4 if the
impairment does not, the claimant is not presumed disabled and the analysis ends;
and

5.

If the impairment prevents the claimant from performing his or her past work,
determination of whether the claimant can engage in other types of substantial
gainful work that exist in the national economy;5 if the claimant can, the claimant
is not disabled and the analysis ends.

2
3
4
5
6
7
8
9

To qualify for benefits, a claimant must establish that he or she is unable to

10

engage in substantial gainful activity due to a medically determinable physical or mental

11

impairment which has lasted or can be expected to last for a continuous period of not less than 12

12

months. (42 U.S.C. § 1382c(a)(3)(A).) A claimant must show that he or she has a physical or

13

mental impairment of such severity that he or she is unable to do his or her previous work and

14

cannot, considering his or her age, education and work experience, engage in any other kind of

15

substantial gainful work which exists in the national economy. (Quang Van Han v. Bower, 882

16

F.2d 1453, 1456 (9th Cir. 1989).)

17

The claimant has the initial burden of proving the existence of a disability within

18

the meaning of the Act. (Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).) The claimant

19
2

20

See 20 C.F.R. Pt. 404, Subpt. P, App. 1.

3

21
22
23
24
25
26

If a claimant is found to have an impairment which meets or equals one of the
listed impairments, a conclusive presumption of disability applies and the claimant is entitled to
benefits. (See Marcia v. Sullivan, 900 F.2d 172, 174 (9th Cir. 1990) (citing Williams v. Bowen,
853 F.2d 643, 647 (9th Cir. 1987); Key v. Heckler, 754 F.2d 1545, 1548 (9th Cir. 1985).)
4

At this stage of the analysis, the ALJ should consider the demands of the
claimant’s past work as compared with his or her present capacity. (Villa v. Heckler, 797 F.2d
794, 797 (9th Cir. 1986) (citations omitted); 20 C.F.R. § 416.945(a).)
5

At this stage of the analysis, the ALJ should consider the claimant’s residual
functional capacity and vocational factors such as age, education and past work experience. (20
C.F.R. §§ 404.1520(f) and 416.920(f).)
5

1

establishes a prima facie case of disability by showing that a physical or mental impairment

2

prevents him from engaging in his previous occupation (steps 1 through 4 noted above). (Gallant

3

v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f).)

4

However, once the claimant establishes a prima facie case of disability, the burden of going

5

forward with the evidence shifts to the Commissioner. (Burkhart v. Bowen, 856 F.2d 1335, 1340

6

(9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); see Hammock v.

7

Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).) The Commissioner has the burden to

8

establish the existence of alternative jobs available to the claimant, given his or her age,

9

education, and medical-vocational background (step 5 noted above). In an appropriate case, the

10

Secretary may meet this burden through application of the medical-vocational guidelines set forth

11

in the regulations.6 (See 20 C.F.R. Pt. 404, Subpt. P, App. 2; Heckler v. Campbell, 461 U.S. 458

12

(1983); Olde v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983).) If the guidelines do not accurately

13

describe a claimant’s limitations, the Commissioner may not rely on them alone to show

14

availability of jobs for the claimant. (See Desrosiers v. Secretary, 846 F.2d 573, 577 (9th Cir.

15

1988).)7

16

In his motion for summary judgment, the only claim plaintiff appears to argue is

17

that the ALJ erred his evaluation of the medical opinions, specifically his rejection of plaintiff’s

18

treating physician’s opinion. This argument appears to be limited to plaintiff’s mental health, as

19
6

20
21

For any given combination of factors (residual functional capacity, age, education,
and work experience), the guidelines direct a conclusion of disability or nondisability when they
accurately describe a claimant’s particular limitations.
7

22
23
24
25
26

However, the mere allegation of the presence of a non-exertional impairment is
not sufficient to preclude application of guidelines. Such non-exertional impairment must be
found to significantly limit the range of work permitted by a claimant’s exertional limitations
before the Commissioner will be required to obtain expert vocational testimony regarding the
availability of other work. (See, e.g., Polny v. Bowen, 864 F.2d 661, 663 (9th Cir. 1988);
Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 1988); Razey v. Heckler, 785 F.2d 1426, 1430
(9th Cir. 1986) (modified 794 F.2d 1348 (1986)); Perminter v. Heckler, 765 F.2d 870, 872 (9th
Cir. 1985).) Pain has been recognized as a non-exertional limitation which can significantly limit
ability to perform basic work skills. (See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir.
1985).)
6

1

the medical opinion he cites is Dr. Higgins, who opined plaintiff was significantly limited based

2

on his depression.

3

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

4

proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

5

821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

6

professional, who has a greater opportunity to know and observe the patient as an individual,

7

than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285

8

(9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given

9

to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4

10
11

(9th Cir. 1990).
In addition to considering its source, to evaluate whether the Commissioner

12

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

13

in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

14

uncontradicted opinion of a treating or examining medical professional only for “clear and

15

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

16

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

17

by an examining professional’s opinion which is supported by different independent clinical

18

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

19

1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

20

rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

21

81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

22

the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

23

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

24

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

25

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

26

without other evidence, is insufficient to reject the opinion of a treating or examining
7

1

professional. See id. at 831. In any event, the Commissioner need not give weight to any

2

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

3

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

4

see also Magallanes, 881 F.2d at 751.

5

As to the medical opinions relevant to plaintiff’s mental health, the ALJ stated:

6

A consultative examiner Dr. Charles Debattista provided a
psychiatric evaluation in August 2009. The Claimant complained
of stress and emotional instability and reported symptoms of
depressed mood, anxiety, anhedonia, fatigue, decreased appetite,
insomnia, feelings of guilt, and problems with concentration and
memory. On mental status exam, Dr. Debattista found depressed
and anxious mood and somewhat constricted affect, but findings
were otherwise unremarkable. He diagnosed major depressive
disorder mild versus adjustment disorder with mixed emotional
features and assigned a Global Assessment of Functioning (GAF)
score of 59. He opined that the Claimant was able to understand,
remember, and carry out simple one or two-step job instructions
and able to perform detailed and complex instructions. He stated
that the Claimant was mildly impaired in his ability to: relate and
interact with coworkers and the public; maintain concentration,
persistence, and pace; associate with day-to-day work activity,
including attendance and safety; accept instructions from
supervisors; maintain regular attendance in the work place and
perform work activities on a consistent basis; and, perform work
activities without special or additional supervision (Exhibit 3F). A
GAF of 59 is at the highest level of moderate impairment for
social, occupational or school functioning (DSMIV).

7
8
9
10
11
12
13
14
15
16
17

...
18
19
20
21
22
23
24
25
26

Regarding the Claimant’s mental impairment, I give significant
weight to Dr. Debattista and the State agency mental consultants as
their conclusions are consistent with the limited findings and
treatment.
I accord minimal weight to Dr. Higgins’ April 2011 evaluation. He
found extensive marked limitations. Dr. Higgins, who prescribes
marijuana for the Claimant, wrote that the Claimant has depression
coupled with paranoia and a panic disorder and is totally disabled.
Dr. Higgins found a marked impairment even of the ability to ask
simple questions or request assistance, accept instructions and
respond appropriately to supervisors, and to get along with
coworkers. He provided no factual or clinical data in support of
these conclusions and a record from Tri-City Health Center
indicates that the Claimant has a decent support system of friends
and family members (Exhibit 7F, August 28, 2009 note). Dr.
8

1

Higgins also wrote that the Claimant has AIDS whereas there is no
evidence the Claimant has an active case of AIDS. Indeed, the TriCity records reflect that the Claimant does not require medication
and has an acceptable CD4 count. There is no continuing evidence
that the Claimant has any opportunistic infections that might be
associated with AIDS although he is HIV positive (Exhibits 7F,
11F, and 12F).

2
3
4
5

I do not have any reason to believe Dr. Higgins’ evaluation, which
seems so far-fetched as to be incredible, although I do believe the
Claimant is depressed as indicated by Dr. Debattista. Consistent
with his findings, the Claimant maintained good eye contact at the
hearing and was pleasant, cooperative, and appropriate.
Depression is very common and many people work with it. He is
on Paxil currently and also takes a medication for sleeping
(Ambien) and testified that he sleeps well on the medication. As
discussed above he does have activities and is involved with family
and with school and did well last semester. Overall, I believe it
would be best for the Claimant not to work with people currently
even though Dr. Debattista did not limit him from working with
the public. However, based on Dr. Debattista’s evaluation and the
other evidence of record, I see no reason to limit the Claimant from
simple basic work tasks or to believe that his concentration,
persistence, and pace would be so impaired he could not perform
simple basic work tasks.

6
7
8
9
10
11
12
13
14
15

(CAR 44-45).
Here, there are two contradicting medical opinions, based upon independent

16

clinical findings. The examining physician, Dr. Debattista found plaintiff had minimal

17

limitations; Dr. Higgins, presumably a treating physician, found plaintiff severely limited. The

18

ALJ then had to evaluate these conflicting opinions, and resolve that conflict. The ALJ did just

19

than, setting forth several reasons why Dr. Debattista opinion was accepted, and why Dr.

20

Higgins’ opinion was rejected. The ALJ went beyond simply resolving the conflict between the

21

two opinions. He provided specific and legitimate, even clear and convincing, reasons why Dr.

22

Higgins’ opinion was rejected. In addition to the opinion being conclusory and unsupported, the

23

ALJ found Dr. Higgins’ opinion conflicted with plaintiff’s treatment records. As set forth above,

24

these are all proper reasons supporting the ALJ’s determination, which are supported by the

25

record. There are limited treatment records, and plaintiff indicated to the examining psychiatrist

26

that had not seen a mental health professional. The ALJ’s determinaiton regarding the weight of
9

1

the medical opinions is supported by the record, proper reasons, and the undersigned finds no

2

error.

3

IV. CONCLUSION

4

Based on the foregoing, the undersigned concludes that the Commissioner’s final

5

decision is based on substantial evidence and proper legal analysis. Accordingly, the

6

undersigned recommends that:

7

1.

Plaintiff’s motion for summary judgment (Doc. 21) be denied;

8

2.

Defendant’s cross-motion for summary judgment (Doc. 22) be granted;

3.

The Clerk of the Court be directed to enter judgment and close this file.

9
10

and

11
12

These findings and recommendations are submitted to the United States District

13

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days

14

after being served with these findings and recommendations, any party may file written

15

objections with the court. Responses to objections shall be filed within 14 days after service of

16

objections. Failure to file objections within the specified time may waive the right to appeal.

17

See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

18
19
20
21

DATED: August 22, 2014
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
10