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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LEON E. SULLIVAN, 12 Plaintiff, 13 14 15 No. 2:13-cv-1460-KJN v. ORDER COMMISSIONER OF SOCIAL SECURITY, Defendant. 16 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security 17 18 (“Commissioner”) denying plaintiff’s application for Supplemental Security Income (“SSI”) 19 under Title XVI of the Social Security Act (“Act”).1 In his motion for summary judgment, 20 plaintiff principally contends that the Commissioner erred by finding that plaintiff was not 21 disabled from March 3, 2010, the date that plaintiff’s application was filed, through the date of 22 the ALJ’s decision. (ECF No. 16.) The Commissioner filed an opposition to plaintiff’s motion 23 and a cross-motion for summary judgment. (ECF No. 17.) No optional reply brief was filed by 24 plaintiff. 25 //// 26 27 28 1 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.) 1 For the reasons discussed below, the court DENIES plaintiff’s motion for summary 1 2 judgment, GRANTS the Commissioner’s cross-motion for summary judgment, and enters 3 judgment for the Commissioner. 4 I. BACKGROUND 5 Plaintiff was born on October 19, 1962, has a limited education, is able to communicate in 6 English, and has no past relevant work.2 (Administrative Transcript (“AT”) 18, 27-29, 46, 50, 7 128.) On March 3, 2010, plaintiff applied for SSI, alleging that he was unable to work as of 8 January 1, 1992, due to back pain, diabetes, high blood pressure, and hepatitis C. (AT 11, 122, 9 127.)3 On July 13, 2010, the Commissioner determined that plaintiff was not disabled. (AT 11, 10 52-56.) Upon plaintiff’s request for reconsideration, that determination was affirmed on 11 September 14, 2010. (AT 11, 60-66.) Thereafter, plaintiff requested a hearing before an 12 administrative law judge (“ALJ”), which ultimately took place on August 2, 2011, and at which 13 plaintiff, represented by a non-attorney representative, testified. (AT 11, 24-45.) 14 In a decision dated November 25, 2011, the ALJ determined that plaintiff had not been 15 under a disability, as defined in the Act, from March 3, 2010, the date that plaintiff’s application 16 was filed, through the date of the ALJ’s decision. (AT 11-20.) The ALJ’s decision became the 17 final decision of the Commissioner when the Appeals Council denied plaintiff’s request for 18 review on May 25, 2013. (AT 2-5.) Thereafter, plaintiff filed this action in federal district court 19 on July 19, 2013, to obtain judicial review of the Commissioner’s final decision. (ECF No. 1.) 20 II. 21 22 23 24 25 26 27 28 ISSUES PRESENTED Plaintiff has raised the sole issue of whether the ALJ improperly rejected the opinion of consultative examining psychologist, Dr. Robin Campbell.4 2 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. 3 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. 4 In the preliminary statement portion of plaintiff’s motion for summary judgment, plaintiff also 2 1 III. LEGAL STANDARD The court reviews the Commissioner’s decision to determine whether (1) it is based on 2 3 proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record 4 as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial 5 evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 6 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable 7 mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th 8 Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is 9 responsible for determining credibility, resolving conflicts in medical testimony, and resolving 10 ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The 11 court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one rational 12 interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). 13 IV. DISCUSSION Summary of the ALJ’s Findings 14 A. 15 The ALJ evaluated plaintiff’s entitlement to SSI pursuant to the Commissioner’s standard 16 five-step analytical framework.5 At the first step, the ALJ concluded that plaintiff had not 17 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.”). 18 19 20 5 21 22 23 24 25 26 27 28 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. 3 1 engaged in substantial gainful activity since March 3, 2010, the date that plaintiff’s SSI 2 application was filed. (AT 13.) At step two, the ALJ determined that plaintiff had the following 3 severe impairments: degenerative disc disease of the lumbar spine, osteopenia and spurring of the 4 thoracic spine, aortic stenosis, diabetes mellitus, hypertension, hepatitis C, obesity, depressive 5 disorder, anxiety disorder, and cannabis dependence. (Id.) However, at step three, the ALJ 6 determined that plaintiff did not have an impairment or combination of impairments that met or 7 medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, 8 Appendix 1. (AT 14.) Before proceeding to step four, the ALJ assessed plaintiff’s residual functional capacity 9 10 (“RFC”) as follows: 11 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. 12 13 14 15 16 17 (AT 16.) 18 //// 19 20 21 22 23 24 25 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. 26 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). 27 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. 4 28 1 At step four, the ALJ found that plaintiff had no past relevant work. (AT 18.) Finally, at 2 step five, the ALJ determined that, considering plaintiff’s age, education, work experience, and 3 RFC, there were jobs that existed in significant numbers in the national economy that plaintiff 4 could perform. (AT 19.) 5 Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined 6 in the Act, from March 3, 2010, the date that plaintiff’s SSI application was filed, through the 7 date of the ALJ’s decision. (AT 19.) Plaintiff’s Substantive Challenge to the Commissioner’s Determinations 8 B. 9 Plaintiff contends that the ALJ improperly rejected certain portions of the May 20, 2010 10 opinion of consultative examining psychologist, Dr. Robin Campbell. That argument is 11 unpersuasive. 12 The weight given to medical opinions depends in part on whether they are proffered by 13 treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 14 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Ordinarily, more 15 weight is given to the opinion of a treating professional, who has a greater opportunity to know 16 and observe the patient as an individual. Id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 17 1996). To evaluate whether an ALJ properly rejected a medical opinion, in addition to 18 considering its source, the court considers whether (1) contradictory opinions are in the record; 19 and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a 20 treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 21 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be 22 rejected for “specific and legitimate” reasons. Lester, 81 F.3d at 830. The opinion of a non- 23 examining professional, without other evidence, is insufficient to reject the opinion of a treating 24 or examining professional. Lester, 81 F.3d at 831. 25 In this case, the ALJ properly gave little weight to the portion of Dr. Campbell’s opinion 26 that plaintiff had “moderate to marked difficulty in relating appropriately to the public, 27 supervisors, and co-workers due to mood instability” and that plaintiff’s “ability to withstand the 28 stress and changes associated with an eight-hour workday and day-to-day work activities [was] 5 1 moderately impaired.” (AT 214.) As the ALJ recognized, Dr. Campbell diagnosed plaintiff with 2 an anxiety disorder not otherwise specified, cannabis dependence, and malingering, explaining 3 that the results from psychological testing performed during the evaluation were “not considered 4 to be a reasonably accurate presentation of the claimant’s cognitive and psychological functioning 5 given his very poor effort.” (AT 18, 211, 213.) Thus, Dr. Campbell herself seriously questioned 6 the validity of her assessment given plaintiff’s poor effort and malingering. (AT 214 [“The 7 findings are limited by the validity of the test results, observations, review of records and 8 interaction with the claimant….”].)6 9 Furthermore, even assuming arguendo that Dr. Campbell endorsed the social functioning 10 and stress limitations without reservation, they were unsupported by Dr. Campbell’s own 11 findings. Notably, although Dr. Campbell found plaintiff to have impaired insight and judgment, 12 and some impairment in social and common sense understanding, she also noted plaintiff to have 13 fair hygiene, normal alertness and orientation, normal psychomotor activity, normal speech and 14 language, normal affect, normal thought processes and thought content, no memory impairment, 15 no obvious cognitive delays, no attention deficits, adequate concentration, and a fair fund of 16 knowledge during the mental status examination. (AT 210-11.) As the ALJ observed, Dr. 17 Campbell apparently based the assessed social functioning and stress limitations on plaintiff’s 18 “mood instability.” (AT 18, 214.) However, Dr. Campbell provided no explanation, and made 19 no specific findings, regarding mood instability, other than noting plaintiff’s own subjective 20 statement that his mood was “not good.” (AT 210.) Plaintiff’s subjective reports alone cannot 21 support the mental limitations at issue, especially given Dr. Campbell’s diagnosis of malingering. 22 See Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (holding that an ALJ may reject a 23 medical source’s opinion if it was based to a large extent on the claimant’s self-reports that have 24 6 25 26 27 28 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. 6 1 been properly discounted as incredible). 2 Finally, the ALJ’s decision to discount the social functioning and stress limitations in Dr. 3 Campbell’s report is further bolstered by the opinions of the state agency psychiatrists, who, after 4 reviewing plaintiff’s records, both concluded that there was insufficient evidence of a mental 5 impairment. (AT 215, 260.) Additionally, even though treatment notes by plaintiff’s primary 6 care providers sometimes referenced pressured speech and a possible mood disorder, the notes 7 frequently reflected that plaintiff had a stable mood, normal affect, normal thought content, and 8 appropriate speech. (AT 17, 173, 178, 180, 241, 267, 281.) 9 Therefore, the ALJ provided specific and legitimate reasons to reject the more severe 10 social functioning and stress limitations contained in Dr. Campbell’s report. Contrary to 11 plaintiff’s argument, the ALJ did not improperly substitute his lay opinion for Dr. Campbell’s 12 opinion. It is the ALJ’s responsibility to formulate an RFC that is based on the record as a whole, 13 and thus the RFC need not exactly match the opinion or findings of any particular medical source. 14 See Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989) (“It is not necessary to agree with 15 everything an expert witness says in order to hold that his testimony contains substantial 16 evidence”); De Fletes v. Colvin, 2013 WL 1345724, at **2-5 (N.D. Cal. Mar. 31, 2013); Ceballos 17 v. Astrue, 2011 WL 3847141, at *8 (E.D. Cal. Aug. 30, 2011). Here, the ALJ considered and 18 weighed the conflicting evidence in the record, and ultimately imposed some social functioning 19 limitations – limiting plaintiff to simple, unskilled work involving no frequent contact with the 20 public or coworkers. (AT 16.) Those social limitations appear reasonable given that plaintiff 21 stated that he ran errands, shopped, rode the bus, went to the park, at times lived in a homeless 22 mission, went to the movies, visited the library, and sometimes socialized with acquaintances. 23 (AT 30, 32, 210.) Moreover, even if this court could have evaluated the evidence differently, the 24 court defers, as it must, to the ALJ’s reasonable and rational resolution of any ambiguities and 25 inconsistencies. 26 //// 27 //// 28 //// 7 1 2 V. CONCLUSION For the foregoing reasons, the court finds that the ALJ’s decision was free from 3 prejudicial error and supported by substantial evidence in the record as a whole. Accordingly, IT 4 IS HEREBY ORDERED that: 5 1. Plaintiff’s motion for summary judgment (ECF No. 16) is denied. 6 2. The Commissioner’s cross-motion for summary judgment (ECF No. 17) is granted. 7 3. Judgment is entered for the Commissioner. 8 4. The Clerk of Court shall close this case. 9 IT IS SO ORDERED. 10 Dated: November 24, 2014 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?