Sullivan v. Commissioner of Social Security

Filing 18

ORDER signed by Magistrate Judge Kendall J. Newman on 11/24/14 DENYING Plaintiff's 16 Motion for Summary Judgment and GRANTING Defendant's 17 Motion for Summary Judgment. CASE CLOSED. (Manzer, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LEON E. SULLIVAN,

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Plaintiff,

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No. 2:13-cv-1460-KJN

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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

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(“Commissioner”) denying plaintiff’s application for Supplemental Security Income (“SSI”)

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under Title XVI of the Social Security Act (“Act”).1 In his motion for summary judgment,

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

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disabled from March 3, 2010, the date that plaintiff’s application was filed, through the date of

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the ALJ’s decision. (ECF No. 16.) The Commissioner filed an opposition to plaintiff’s motion

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and a cross-motion for summary judgment. (ECF No. 17.) No optional reply brief was filed by

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plaintiff.

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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 discussed below, the court DENIES plaintiff’s motion for summary

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

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judgment for the Commissioner.

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I.

BACKGROUND

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Plaintiff was born on October 19, 1962, has a limited education, is able to communicate in

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English, and has no past relevant work.2 (Administrative Transcript (“AT”) 18, 27-29, 46, 50,

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128.) On March 3, 2010, plaintiff applied for SSI, alleging that he was unable to work as of

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January 1, 1992, due to back pain, diabetes, high blood pressure, and hepatitis C. (AT 11, 122,

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127.)3 On July 13, 2010, the Commissioner determined that plaintiff was not disabled. (AT 11,

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52-56.) Upon plaintiff’s request for reconsideration, that determination was affirmed on

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September 14, 2010. (AT 11, 60-66.) Thereafter, plaintiff requested a hearing before an

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administrative law judge (“ALJ”), which ultimately took place on August 2, 2011, and at which

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plaintiff, represented by a non-attorney representative, testified. (AT 11, 24-45.)

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In a decision dated November 25, 2011, the ALJ determined that plaintiff had not been

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under a disability, as defined in the Act, from March 3, 2010, the date that plaintiff’s application

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was filed, through the date of the ALJ’s decision. (AT 11-20.) The ALJ’s decision became the

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

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review on May 25, 2013. (AT 2-5.) Thereafter, plaintiff filed this action in federal district court

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on July 19, 2013, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.)

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II.

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ISSUES PRESENTED
Plaintiff has raised the sole issue of whether the ALJ improperly rejected the opinion of

consultative examining psychologist, Dr. Robin Campbell.4
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Because the parties are familiar with the factual background of this case, including plaintiff’s
medical 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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Regardless of the alleged disability onset date, SSI is not payable prior to the month following
the month in which the application was filed. 20 C.F.R. § 416.335.
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In the preliminary statement portion of plaintiff’s motion for summary judgment, plaintiff also
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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 SSI pursuant to the Commissioner’s standard

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five-step analytical framework.5 At the first step, the ALJ concluded that plaintiff had not

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states, in passing, that the ALJ failed to properly consider plaintiff’s testimony. (ECF No. 16 at
3.) However, because plaintiff’s brief provides no substantive argument and legal authorities in
that regard, any such issue is waived. See Officers for Justice v. Civil Serv. Comm’n of San
Francisco, 979 F.2d 721, 726 (9th Cir. 1992) (“We will not ordinarily consider matters on appeal
that are not specifically and distinctly raised and argued in appellant’s opening brief.”).

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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 (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.
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engaged in substantial gainful activity since March 3, 2010, the date that plaintiff’s SSI

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application was filed. (AT 13.) At step two, the ALJ determined that plaintiff had the following

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severe impairments: degenerative disc disease of the lumbar spine, osteopenia and spurring of the

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thoracic spine, aortic stenosis, diabetes mellitus, hypertension, hepatitis C, obesity, depressive

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disorder, anxiety disorder, and cannabis dependence. (Id.) However, at step three, the ALJ

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determined that plaintiff did not have an impairment or combination of impairments that met or

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medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P,

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Appendix 1. (AT 14.)
Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity

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(“RFC”) as follows:

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After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 416.967(b) except: he
could lift, carry, push and/or pull 20 pounds occasionally and 10
pounds frequently; he could stand and/or walk for about 6 hours in
an 8-hour workday; he could sit for about 6 hours in an 8-hour
workday; he could frequently perform postural activities, except
that he could occasionally climb ladders, ropes, and scaffolds; he is
unable to work at heights or around heavy machinery; and he is
limited to performing simple, unskilled work involving no frequent
contact with the public or coworkers.

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(AT 16.)

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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
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.

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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. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
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At step four, the ALJ found that plaintiff had no past relevant work. (AT 18.) Finally, at

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step five, the ALJ determined that, considering plaintiff’s age, education, work experience, and

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RFC, there were jobs that existed in significant numbers in the national economy that plaintiff

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could perform. (AT 19.)

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Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined

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in the Act, from March 3, 2010, the date that plaintiff’s SSI application was filed, through the

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date of the ALJ’s decision. (AT 19.)
Plaintiff’s Substantive Challenge to the Commissioner’s Determinations

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B.

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Plaintiff contends that the ALJ improperly rejected certain portions of the May 20, 2010

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opinion of consultative examining psychologist, Dr. Robin Campbell. That argument is

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unpersuasive.

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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). 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. The opinion of a non-

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

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

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In this case, the ALJ properly gave little weight to the portion of Dr. Campbell’s opinion

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that plaintiff had “moderate to marked difficulty in relating appropriately to the public,

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supervisors, and co-workers due to mood instability” and that plaintiff’s “ability to withstand the

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stress and changes associated with an eight-hour workday and day-to-day work activities [was]
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moderately impaired.” (AT 214.) As the ALJ recognized, Dr. Campbell diagnosed plaintiff with

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an anxiety disorder not otherwise specified, cannabis dependence, and malingering, explaining

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that the results from psychological testing performed during the evaluation were “not considered

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to be a reasonably accurate presentation of the claimant’s cognitive and psychological functioning

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given his very poor effort.” (AT 18, 211, 213.) Thus, Dr. Campbell herself seriously questioned

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the validity of her assessment given plaintiff’s poor effort and malingering. (AT 214 [“The

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findings are limited by the validity of the test results, observations, review of records and

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interaction with the claimant….”].)6

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Furthermore, even assuming arguendo that Dr. Campbell endorsed the social functioning

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and stress limitations without reservation, they were unsupported by Dr. Campbell’s own

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findings. Notably, although Dr. Campbell found plaintiff to have impaired insight and judgment,

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and some impairment in social and common sense understanding, she also noted plaintiff to have

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fair hygiene, normal alertness and orientation, normal psychomotor activity, normal speech and

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language, normal affect, normal thought processes and thought content, no memory impairment,

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no obvious cognitive delays, no attention deficits, adequate concentration, and a fair fund of

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knowledge during the mental status examination. (AT 210-11.) As the ALJ observed, Dr.

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Campbell apparently based the assessed social functioning and stress limitations on plaintiff’s

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“mood instability.” (AT 18, 214.) However, Dr. Campbell provided no explanation, and made

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no specific findings, regarding mood instability, other than noting plaintiff’s own subjective

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statement that his mood was “not good.” (AT 210.) Plaintiff’s subjective reports alone cannot

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support the mental limitations at issue, especially given Dr. Campbell’s diagnosis of malingering.

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See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ may reject a

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medical source’s opinion if it was based to a large extent on the claimant’s self-reports that have

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Plaintiff argues that Dr. Campbell “made clear” that plaintiff’s poor effort during the evaluation
was a manifestation of his mental impairments. (ECF No. 16 at 7.) However, that argument
lacks any support in the record. Even though Dr. Campbell found that plaintiff had impaired
insight and judgment, and some impairment in social and common sense understanding, Dr.
Campbell never attributed plaintiff’s poor effort during the evaluation to his mental impairments.
Instead, she diagnosed plaintiff with malingering. (AT 213.) That diagnosis is entirely
inconsistent with the interpretation of Dr. Campbell’s report suggested by plaintiff.
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been properly discounted as incredible).

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Finally, the ALJ’s decision to discount the social functioning and stress limitations in Dr.

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Campbell’s report is further bolstered by the opinions of the state agency psychiatrists, who, after

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reviewing plaintiff’s records, both concluded that there was insufficient evidence of a mental

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impairment. (AT 215, 260.) Additionally, even though treatment notes by plaintiff’s primary

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care providers sometimes referenced pressured speech and a possible mood disorder, the notes

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frequently reflected that plaintiff had a stable mood, normal affect, normal thought content, and

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appropriate speech. (AT 17, 173, 178, 180, 241, 267, 281.)

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Therefore, the ALJ provided specific and legitimate reasons to reject the more severe

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social functioning and stress limitations contained in Dr. Campbell’s report. Contrary to

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plaintiff’s argument, the ALJ did not improperly substitute his lay opinion for Dr. Campbell’s

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opinion. It is the ALJ’s responsibility to formulate an RFC that is based on the record as a whole,

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and thus the RFC need not exactly match the opinion or findings of any particular medical source.

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See Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (“It is not necessary to agree with

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everything an expert witness says in order to hold that his testimony contains substantial

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evidence”); De Fletes v. Colvin, 2013 WL 1345724, at **2-5 (N.D. Cal. Mar. 31, 2013); Ceballos

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v. Astrue, 2011 WL 3847141, at *8 (E.D. Cal. Aug. 30, 2011). Here, the ALJ considered and

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weighed the conflicting evidence in the record, and ultimately imposed some social functioning

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limitations – limiting plaintiff to simple, unskilled work involving no frequent contact with the

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public or coworkers. (AT 16.) Those social limitations appear reasonable given that plaintiff

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stated that he ran errands, shopped, rode the bus, went to the park, at times lived in a homeless

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mission, went to the movies, visited the library, and sometimes socialized with acquaintances.

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(AT 30, 32, 210.) Moreover, even if this court could have evaluated the evidence differently, the

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court defers, as it must, to the ALJ’s reasonable and rational resolution of any ambiguities and

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inconsistencies.

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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:

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1. Plaintiff’s motion for summary judgment (ECF No. 16) is denied.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 17) is granted.

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3. Judgment is entered for the Commissioner.

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4. The Clerk of Court shall close this case.

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IT IS SO ORDERED.

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Dated: November 24, 2014

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