Demers v. Commissioner of Social Security

Filing 22

ORDER signed by Magistrate Judge Kendall J. Newman on 1/21/15 ORDERING that Plaintiff's MOTION for Summary Judgment 19 is DENIED; The Commissioner's Cross-Motion for Summary Judgment 20 is GRANTED; Judgment is entered for the Commissioner. The Clerk shall close this case. CASE CLOSED. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL DEMERS, JR.,

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Plaintiff,

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No. 2:13-cv-2096-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 September 1, 2010, the date that plaintiff’s SSI application was filed, through the

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date of the ALJ’s decision. (ECF No. 19.) The Commissioner filed an opposition to plaintiff’s

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motion and a cross-motion for summary judgment. (ECF No. 20.) No optional reply brief was

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filed by 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, 21.)
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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.

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BACKGROUND
Plaintiff was born on November 17, 1988, has a high school diploma, is able to

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communicate in English, and has no past relevant work.2 (Administrative Transcript (“AT”) 51,

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67, 81.) On September 1, 2010, at the age of 21, plaintiff applied for SSI, alleging that his

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disability began on November 17, 1992, and that he was disabled primarily due to attention

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deficit hyperactivity disorder (“ADHD”) and bipolar disorder. (AT 22, 67, 81, 132, 150.)3 On

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December 24, 2010, the Commissioner determined that plaintiff was not disabled. (AT 22, 82-

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86.) Upon plaintiff’s request for reconsideration, that determination was affirmed on September

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2, 2011. (AT 22, 89-94.) Thereafter, plaintiff requested a hearing before an administrative law

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judge (“ALJ”), which took place on May 22, 2012, and at which plaintiff, represented by a non-

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attorney representative, and a vocational expert (“VE”) testified. (AT 22, 47-66.)

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In a decision dated June 29, 2012, the ALJ determined that plaintiff had not been under a

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disability, as defined in the Act, from September 1, 2010, the date that plaintiff’s SSI application

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was filed, through the date of the ALJ’s decision. (AT 22-29.) 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 August 21, 2013. (AT 1-6.) Thereafter, plaintiff filed this action in federal district

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court on October 10, 2013, to obtain judicial review of the Commissioner’s final decision.

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II.

ISSUES PRESENTED

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Plaintiff has raised the following issues: (1) whether the ALJ improperly rejected portions

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of the consultative psychologist’s opinion; (2) whether the ALJ overstated the effect of plaintiff’s

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Because the parties are familiar with the factual background of this case, including plaintiff’s
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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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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substance abuse on his psychiatric condition; and (3) whether the ALJ erroneously found that

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plaintiff did not meet a Listing.4

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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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Plaintiff’s briefing raised these issues in a somewhat different order.

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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 September 1, 2010, the date that plaintiff’s SSI

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application was filed. (AT 24.) At step two, the ALJ determined that plaintiff had the following

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severe impairments: bipolar disorder not otherwise specified; poly-substance abuse disorder;

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mood disorder; and borderline intellectual functioning. (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. (Id.)

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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 the claimant has the residual functional capacity to
perform a full range of work at all exertional levels but with the
following non-exertional limitations: he is able to understand,
remember and/or carry out simple instructions; make judgments on
simple, work-related instructions; interact appropriately with
supervisors and co-workers and only incidental contact with the
public; he is also able to respond appropriately to usual work
situations and changes in a routine work setting.

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(AT 25.)
At step four, the ALJ found that plaintiff had no past relevant work. (AT 28.) Finally, at

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step five, the ALJ determined, based on the VE’s testimony, that, considering plaintiff’s age,

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education, work experience, and RFC, there were jobs that existed in significant numbers in the

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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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national economy that plaintiff could perform. (Id.)

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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 September 1, 2010, the date that plaintiff’s SSI application was filed, through the

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date of the ALJ’s decision. (AT 29.)
Plaintiff’s Substantive Challenges to the Commissioner’s Determinations

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B.

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1. Whether the ALJ improperly rejected portions of the consultative psychologist’s

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opinion

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On June 15, 2011, plaintiff was evaluated by consultative psychologist, Dr. Troy Ewing,
who reviewed plaintiff’s records, performed a mental status examination, and conducted

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psychological testing. (AT 399-404.) Dr. Ewing diagnosed plaintiff with mood disorder not

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otherwise specified, cocaine abuse in reported remission, cannabis abuse in reported remission,

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rule out reading disorder not otherwise specified, and rule out borderline intellectual functioning,

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with a GAF of 60.6 (AT 403.) Dr. Ewing offered the following opinion concerning plaintiff’s

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work-related abilities:

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The claimant had no difficulty understanding, remembering, and
carrying out simple instructions. Claimant had mild difficulty with
detailed and complex instructions. Claimant had moderate
difficulty maintaining attention and concentration for the duration
of the evaluation. Claimant’s pace was mildly decreased. Claimant
demonstrated mild difficulty with pace and persistence. The
claimant had mild difficulty enduring the stress of the interview.
Claimant is likely to have moderate difficulty adapting to changes
in routine work-related settings. Based upon observations of
current behavior and reported psychiatric history, the claimant’s
ability to interact with the public, supervisors, and coworkers there
appears to be mild impairment. [sic]

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(AT 404.)

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Plaintiff contends that the ALJ improperly rejected Dr. Ewing’s assessed moderate

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limitations in plaintiff’s ability to maintain attention/concentration and adapt to changes in routine

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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 51-60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).” Id.
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work-related settings, because such limitations were not expressly listed in the ALJ’s RFC or

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hypothetical to the VE. That argument is unpersuasive.

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The Ninth Circuit has observed that an ALJ may properly synthesize and translate

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assessed limitations into an RFC assessment without repeating each functional limitation

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verbatim in the RFC assessment. Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir.

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2008); see also 20 C.F.R. § 404.1545 (defining RFC as “the most you can still do despite your

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limitations”). In this case, plaintiff’s assessed RFC adequately captures the moderate functional

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limitations assessed by Dr. Ewing. For example, plaintiff’s moderate limitations with respect to

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attention and concentration are rationally accounted for by the restriction to simple tasks, which

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by their nature require less attention and concentration than complex tasks. Furthermore, it is

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reasonable to conclude that a position involving simple tasks would involve more predictability

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and a reduced amount of change in the work setting, thereby addressing plaintiff’s moderate

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limitations with respect to changes in the work environment. See Stubbs-Danielson, 539 F.3d at

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1174 (holding that an ALJ’s assessment of a claimant adequately captures restrictions related to

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concentration, persistence, or pace where the assessment is consistent with restrictions identified

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in the medical testimony). Notably, the ALJ’s translation of Dr. Ewing’s opinion is also

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consistent with the opinion of the state agency psychiatrist, Dr. Loomis, who reviewed plaintiff’s

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records and opined that plaintiff was able “to maintain concentration, persistence and pace

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throughout a normal workday/workweek as related to simple tasks” and could “make adjustments

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and avoid hazards in the workspace.” (AT 370.)

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Thus, the ALJ did not reject the moderate mental limitations assessed by Dr. Ewing, but

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instead translated, synthesized, and incorporated them into the RFC. Moreover, any technical

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error regarding incorporation of such moderate mental limitations into the RFC was harmless,

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because the Ninth Circuit has held that moderate mental limitations do not even require

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

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

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

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a schedule, maintain regular attendance, and be punctual with customary tolerance; and his ability
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to complete a normal workday and workweek without interruption from psychologically-based

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

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periods.” Id. After the ALJ, at step five, utilized the Grids (which take administrative notice of

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the number of unskilled jobs at different exertional levels) to determine that the claimant was not

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disabled, plaintiff contended on appeal that the ALJ was instead required to seek vocational

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

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

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from relying on the Grids without the assistance of a vocational expert. Id. at 1077.

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For these reasons, the court finds no error in the ALJ’s treatment of Dr. Ewing’s opinion.

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2. Whether the ALJ overstated the effect of plaintiff’s substance abuse on his psychiatric

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condition

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The record in this case indicates that plaintiff has a history of substance abuse involving,

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inter alia, crystal methamphetamine, cocaine, ecstasy, and cannabis. (See,e.g., AT 279, 297, 401,

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420.) During the consultative evaluation with Dr. Ewing, plaintiff denied current drug use, but

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Dr. Ewing stated that plaintiff “may not have been as forth right with drug use as he was

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protective when discussing drug use.” (AT 401.) Dr. Ewing further stated: “[Plaintiff] denied

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substance abuse but almost appeared to be under the influence of something and staggered when

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he walked.” (AT 402.) In discussing plaintiff’s psychological/behavioral functioning, Dr. Ewing

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again noted that it was “unclear if [plaintiff] was under the influence of a controlled substance or

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if a psychiatric process was contributing to his overall presentation.” (AT 403.) Nevertheless,

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Dr. Ewing ultimately issued a functional capacity assessment that accounted for plaintiff’s

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general condition and presentation, regardless of the cause(s) of the functional limitations. (AT

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404.)

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The Act provides that “an individual shall not be considered to be disabled…if alcoholism

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or drug addiction would…be a contributing factor material to the Commissioner’s determination

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that the individual is disabled.” 42 U.S.C. § 1382c(a)(3)(J). Plaintiff contends that the ALJ

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overstated the effect of plaintiff’s substance abuse on his psychiatric condition by improperly

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weighing and interpreting various types of record evidence. However, the effect of plaintiff’s
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substance abuse here is essentially a red herring, because substantial evidence shows that plaintiff

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was not disabled during the relevant period, regardless of the potential impact of substance abuse.

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Specifically, whether arguably attributable to substance abuse or to independent mental

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impairments, the functional limitations outlined in the opinions of consultative psychologist Dr.

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Ewing and state agency psychiatrist Dr. Loomis, on which the ALJ relied in formulating

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plaintiff’s RFC, do not support a finding of disability under the Act, because the VE testified that

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plaintiff could nonetheless perform other work in the national economy.7

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3. Whether the ALJ erroneously found that plaintiff did not meet a Listing

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Finally, plaintiff appears to contend that the ALJ erred in finding that plaintiff did not

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meet or equal a Listing at step three. The claimant “bears the burden of proving that ... she has an

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impairment that meets or equals the criteria of an impairment listed in Appendix 1 of the

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Commissioner’s regulations.” Burch v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Here,

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plaintiff failed to articulate a plausible theory of how the specific criteria of any Listing is met or

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equaled. To the contrary, substantial evidence supports the ALJ’s finding that plaintiff only

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suffers from mild to moderate mental limitations, insufficient to satisfy the criteria of a potentially

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applicable Listing. (AT 24-25.)8

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In one portion of the decision, and in contradiction to the rest of her analysis, the ALJ
confusingly suggested, in conclusory fashion, that plaintiff’s chronic drug usage was material to a
finding of disability, resulting in plaintiff having certain marked limitations and even meeting a
Listing. (AT 28.) However, that cursory suggestion is unsupported by any meaningful rationale
and is plainly inconsistent with the opinions of Drs. Ewing and Loomis, on which the ALJ
substantially relied. In any event, the issue has no impact on the result in this case. If the ALJ’s
materiality finding were correct, plaintiff would be disqualified from benefits by statute. On the
other hand, if the ALJ’s materiality finding were erroneous, it would be harmless error, because,
for the reasons discussed above, substantial evidence shows that plaintiff was not disabled during
the relevant period, regardless of the potential impact of substance abuse.
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Based on plaintiff’s past psychiatric hospitalizations as a child and teenager, it may well be that
plaintiff met the childhood standard for disability for some period in the past. However,
substantial evidence supports the ALJ’s ultimate finding that plaintiff did not meet the adult
standard for disability during the relevant period at issue in this appeal.
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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. 19) is DENIED.

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 20) 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 shall close this case.

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IT IS SO ORDERED.
Dated: January 21, 2015

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