Thomas v. Commissioner of Social Security

Filing 26

ORDER signed by Magistrate Judge Allison Claire on 4/20/15 DENYING 19 Plaintiff's Motion for Summary Judgment; GRANTING Commissioner's 25 Cross-Motion for Summary Judgment. The Clerk of the Court shall ENTER judgment for defendant, and close this case. CASE CLOSED. (Meuleman, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

TAWANNA THOMAS,

12

Plaintiff,

13
14
15

No. 2:14-cv-1099 AC

v.

ORDER

CARONLY W. COLVIN, Acting
Commissioner Of Social Security,
Defendant.

16
17

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

18
19

(“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under

20

Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f. SSI is paid to

21

financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and

22

Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) (“Title XVI of the

23

Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind,

24

or disabled individuals, including children, whose income and assets fall below specified

25

levels . . .”).

26

////

27

////

28

////
1

1

I. PROCEDURAL BACKGROUND

2

Plaintiff applied for SSI on January 24, 2012, alleging a disability onset date of September

3

9, 2011. Administrative Record (“AR”) 12.1 Plaintiff’s application was disapproved initially,

4

AR 96-101 (Exh. 1B), and on reconsideration, AR 102-06 (Exh. 2B). Plaintiff then requested a

5

hearing before an administrative law judge (“ALJ”), to challenge the disapproval. AR 109-10

6

(Exh. 4B). On June 27, 2014, ALJ L. Kalei Fong presided over the requested hearing. AR 27-67

7

(transcript of hearing). Plaintiff, who was represented by counsel, appeared and testified at the

8

hearing. AR 29-54, 54-55. A vocational expert also appeared and testified at the hearing.

9

AR 54, 55-65.

10

In a decision dated September 16, 2013, the ALJ issued an unfavorable decision, finding

11

plaintiff “not disabled” under Section 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A).

12

AR 12-25 (decision and exhibit list). Plaintiff asked the Appeals Council (“Council”) to review

13

the ALJ’s decision, and to consider additional evidence . AR 7 & 8. On March 6, 2014, the

14

Council accepted “[t]reatment records from Paul Romea, M.D., for the period from April 3, 2014

15

to October 4, 2013” as additional evidence, and made it a part of the administrative record. AR 5.

16

However, on the same date, the Appeals Council denied review, leaving the ALJ’s decision as the

17

final decision of the Commissioner of Social Security. AR 1-3.

18

Plaintiff filed this action on May 5, 2014. ECF No. 1; see 42 U.S.C. § 1383c(3). In due

19

course, plaintiff was granted leave to proceed in forma pauperis, the parties consented to the

20

jurisdiction of the magistrate judge, the Commissioner filed the administrative record, and the

21

parties filed and fully briefed the pending cross-motions for summary judgment. ECF Nos. 4, 7,

22

10, 13, 19, 25.

23

Plaintiff seeks reversal and remand for calculation and payment of benefits, or in the

24

alternative, remand to order a consultative examination of the plaintiff regarding her claims of

25

depression and anxiety. Plaintiff argues that the ALJ erred: (1) by finding no evidence of severe,

26

medically determinable mental impairments, namely, depression and anxiety, despite diagnoses

27

1

The Administrative Record is electronically filed at ECF Nos. 13-1 to 13-11.

28
2

1

of those impairments by a nurse-practitioner and a licensed clinical social worker (“LCSW”),

2

who were working as a team with medical doctors; (2) by failing to augment the administrative

3

record with a mental health consultative exam if he found the diagnoses by the nurse-practitioner

4

and the LCSW to be inadequate; and (3) by rejecting the opinions of plaintiff’s treating doctors

5

regarding plaintiff’s pain arising from her rheumatoid arthritis, without providing “clear and

6

convincing” reasons, or even “specific and legitimate” reasons supported by substantial evidence.

7

The Commissioner argues that the ALJ: (1) properly found that there was no record of a

8

diagnosis of a medically determinable mental impairment by an acceptable medical source, and

9

no record of treatment or hospitalization for it; (2) had no duty to order a mental status

10

consultative exam; and (3) properly rejected the opinion of Dr. Mann, one of plaintiff’s treating

11

doctors.

12
13

For the reasons that follow, the court will deny plaintiff’s motion for summary judgment,
and will grant the Commissioner’s cross-motion for summary judgment.

14

II. FACTUAL BACKGROUND

15

Plaintiff was born on September 10, 1967, and was 43 years old on the alleged onset date

16

of her disabilities, September 9, 2011. AR 12 & 19. Plaintiff’s education ended at the eleventh

17

grade, she has no high school diploma or General Equivalency Diploma (“GED”), and can

18

communicate in English. AR 19 & 29. Plaintiff reports a brief work history, from 2006 to

19

October 25, 2009, in which she worked as a recycler, a telemarketer and a caregiver. AR 244-51.

20

III. LEGAL STANDARDS

21

The Commissioner’s decision that a claimant is not disabled will be upheld “if it is

22

supported by substantial evidence and if the Commissioner applied the correct legal standards.”

23

Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the

24

Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews

25

v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).2

26
27
28

2

The right to judicial review of determinations under Title XVI is provided by 42 U.S.C.
§ 1383(c)(3), which provides that “The final determination of the Commissioner of Social
Security after a hearing under paragraph (1) shall be subject to judicial review as provided in
(continued…)
3

1

Substantial evidence is “more than a mere scintilla,” but “may be less than a

2

preponderance.” Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such

3

evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v.

4

Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the

5

record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will

6

suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).

7

Although this court cannot substitute its discretion for that of the Commissioner, the court

8

nonetheless must review the record as a whole, “weighing both the evidence that supports and the

9

evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS,

10

846 F.2d 573, 576 (9th Cir.1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The

11

court must consider both evidence that supports and evidence that detracts from the ALJ's

12

conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”).

13

“The ALJ is responsible for determining credibility, resolving conflicts in medical

14

testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th

15

Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of

16

which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart,

17

278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the

18

ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn

19

v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir.

20

2003) (“It was error for the district court to affirm the ALJ's credibility decision based on

21

evidence that the ALJ did not discuss”).

22

The court will not reverse the Commissioner’s decision if it is based on harmless error,

23

which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the

24

ultimate nondisability determination.’” Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006)

25

(quoting Stout v. Comm’r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400

26
27

______________________
section 405(g) of this title to the same extent as the Commissioner's final determinations under
section 405 of this title.

28
4

1

F.3d 676, 679 (9th Cir. 2005).

2

IV. RELEVANT LAW – TITLE XVI

3

Supplemental Security Income (“SSI”) is available under Title XVI of the Social Security

4

Act (the “Act”) for every income-eligible individual who is “disabled.” 42 U.S.C. § 1381a;

5

Department of HHS v. Chater, 163 F.3d 1129, 1133 (9th Cir. 1998) (“The Social Security Act

6

directs the Commissioner of the Social Security Administration to provide benefits to all

7

individuals who meet the eligibility criteria”). Plaintiff is “disabled” if she is “‘unable to engage

8

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

9

. . ..’” Gutierrez v. Commissioner, 740 F.3d 519, 523 (9th Cir. 2014) (quoting 42 U.S.C.

10

§ 1382c(a)(3)(A)); Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (same).3

11

The Commissioner uses a five-step sequential evaluation process to determine whether an

12

applicant is disabled and entitled to SSI benefits. 20 C.F.R. § 416.920(a)-(g); Barnhart v.

13

Thomas, 540 U.S. 20, 25 & 25 n.1 (2003) (setting forth the “five-step sequential evaluation

14

process to determine disability” under Title XVI, as well as Title II). The following summarizes

15

the sequential evaluation:

16

Step one: Is the claimant engaging in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

17

20 C.F.R. § 416.920(a)(4)(i), (b).
18
Step two: Does the claimant have a “severe” impairment? If so,
proceed to step three. If not, the claimant is not disabled.

19
20

Id., § 416.920(a)(4)(ii), (c).

21

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 disabled. If not,
proceed to step four.

22
23

Id., § 416.920(a)(4)(iii), (d).
24
Step four: Does the claimant’s residual functional capacity make
him capable of performing his past work? If so, the claimant is not

25
26
27

3

Title II of the Act provides for Disability Insurance Benefits, which are paid to eligible disabled
persons who have contributed to the Social Security program. 42 U.S.C. §§ 401 et seq. This
program defines disability in the same way as Title XVI. Bowen, 482 U.S. at 140.

28
5

1
2

disabled. If not, proceed to step five.
Id., § 416.920(a)(4)(iv), (e) & (f).

3

Step five: Does the claimant have the residual functional capacity
perform any other work? If so, the claimant is not disabled. If not,
the claimant is disabled.

4
5
6

Id., § 416.920(a)(4)(v), (g).
The claimant bears the burden of proof in the first four steps of the sequential evaluation

7

process. Bowen, 482 U.S. at 146 n.5; Burch, 400 F.3d at 683 (plaintiff “bears the burden of

8

proving that . . . she has an impairment that meets or equals the criteria of an impairment listed in

9

Appendix 1 of the Commissioner's regulations. . . . This Court has held that a claimant carries

10

the initial burden of proving a disability”) (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th

11

Cir. 1989)). The Commissioner bears the burden if the sequential evaluation process proceeds to

12

step five. Id.

13

When the plaintiff claims a mental impairment, the ALJ is required to follow a “special

14

technique” at Steps Two and Three, to evaluate the plaintiff’s disability. 20 C.F.R. § 419.920a(a).

15

At Step Two, the ALJ first evaluates plaintiff’s “pertinent symptoms, signs, and laboratory

16

findings” to determine whether he has “a medically determinable mental impairment(s).” 20

17

C.F.R. § 419.920a(b)(1); Keyser, 648 F.3d at 725 (interpreting 20 C.F.R. § 1520a, the parallel,

18

and identically worded, regulation under Title II). Second, the ALJ rates “the degree of

19

functional limitation” caused by the mental impairments just identified, in four broad areas of

20

functioning: activities of daily living; social functioning; concentration, persistence or pace; and

21

episodes of decompensation. 20 C.F.R. § 416.920a(b)(2) & (c)(1)-(3); Keyser, 648 F.3d at 725.

22

The degrees can be “none,” “mild,” “moderate,” “marked,” or “extreme.” 20 C.F.R.

23

§ 416.920a(c)(4). Episodes of decompensation are ranked “none,” “one or two,” “three,” and

24

“four or more.” Id. Third, the ALJ determines the severity of the mental impairment, “in part

25

based on the degree of functional limitation.” 20 C.F.R. § 416.920a(d); Keyser, 648 F.3d at 725.

26

The ALJ proceeds to Step Three only if the mental impairment is “severe.” Keyser, 648

27

F.3d at 725. The Commissioner documents this “special technique” in a “Psychiatric Review

28

Technique Form (‘PRTF’).” Id.; see AR 41-51. At Step Three, the ALJ must determine if the
6

1

severe mental impairment identified in Step Two meets or equals the severity of a mental

2

impairment in the Listings. 20 C.F.R. § 416.920a(d)(2); Keyser, 648 F.3d at 725. If it does not,

3

the ALJ goes on to Step Four, returning to the sequential analysis.
V. THE ALJ’s REVIEW OF THE RECORD4

4
5

A. Mental Impairment

6

Plaintiff sought treatment at the Primary Care Clinic. AR 15. The clinic noted that

7

plaintiff’s medications included Seroquel. Id. Plaintiff was seen there by Shirley Rigg, a nurse

8

practitioner, starting on September 22, 2011. Id. After several visits, Rigg diagnosed plaintiff

9

with dysthymic disorder on October 18, 2012. AR 456. Plaintiff was also seen there by Eloisa

10

Yee, a licensed certified social worker (“LCSW”). Under “subjective” findings, Yee’s notes state

11

that plaintiff “daily has anhedonia, feels sad, has poor sleep, has low energy, poor appetite, feels

12

bad about self, has poor concentration, moves slowly.” AR 449. Yee diagnosed plaintiff with

13

major depression and anxiety. AR 450. Yee further noted that plaintiff claims to have “poor

14

concentration,” which is Yee’s only observation relating to any functional limitation arising from

15

the depression.

16

The ALJ noted the lack of evidence in the record of plaintiff needing “any outpatient

17

psychiatric treatment, mental health therapy, crisis interventions, emergency department visits, or

18

psychiatric hospitalizations for her alleged condition.” AR 15. At her mental health exams by

19

her treating physician, Dr. Jaspreet Mann, plaintiff was found to be “oriented to time, place,

20

person, and situation,” to have “normal insight,” to exhibit “normal judgment,” and to

21

demonstrate “the appropriate mood and affect.” AR 503, 514, 518.

22

B. Rheumatoid Arthritis

23

On January 3, 2011, plaintiff was treated by Dr. Ronald T. Whitmore, apparently in

24

connection with an examination for workmen’s compensation arising out of a work injury in

25

October 2009. AR 300-05 (Exh. 2F). Dr. Whitmore’s assessment for “lumbar radiculopathy”

26
27

4

This review is limited to the part of the record relevant to the issues challenged on this appeal,
namely, evidence of plaintiff’s claim of depression, and the rejection of Dr. Mann’s opinion.

28
7

1

was that “positive Waddel[l]s is a red flag.” AR 303.5 He was also “concerned about request for

2

more and stronger medication in light of this.” Id. Dr. Whitmore recommended that plaintiff

3

“[r]eturn to work modified duty,” and prescribed medications. AR 303. Dr. Whitmore again saw

4

plaintiff on January 14, 2011. AR 309-13. Although plaintiff wanted “stronger medication for

5

her back,” Dr. Whitmore’s opinion was that “the MRI does not support the need for stronger

6

medication.” AR 312. Dr. Whitmore noted that plaintiff raised her voice and was “not happy”

7

with his unwillingness to consider other meds. AR 314.

8

Dr. Yi Y Myint saw plaintiff on February 22, 2011. AR 318-21. Dr. Myint, noting

9

plaintiff’s complaints about “unresolved low back pain,” granted plaintiff’s “reasonable” request

10

for referral to a spine specialist. AR 319. Dr. Myint also determined that plaintiff could lift up to

11

10 pounds, and stand for 1 or 2 hours. AR 320. Dr. Myint saw plaintiff again on April 5, 2011.

12

AR 322-24. Dr. Myint noted that plaintiff “stated she is now able to tolerate sitting and standing

13

a little bit longer.” AR 323. Dr. Myint also changed her assessment of plaintiff’s functionality by

14

indicating that plaintiff could lift 10-15 pounds. AR 324. On May 9, 2011, Dr. Myint again saw

15

plaintiff. AR 325-28. After this visit, Dr. Myint noted that plaintiff “has multiple Waddell’s

16

signs.” AR 326. Dr. Myint also noted that plaintiff “does walk up to two miles a day,” and

17

recommended against increasing “her narcotic intake, as this would just need to go further down

18

the path of disability.” AR 326. Dr. Myint saw plaintiff again on June 17, 2011. AR 329-31.

19

The doctor told plaintiff that “there is no need for narcotic pain medications.” AR 330. Plaintiff

20

became “very upset and angry and stated that she will find another doctor for her needs.” Id.

21

Dr. Myint concluded that plaintiff needed no further treatment, discharged plaintiff, and

22

recommended a return to full duty work. AR 330. On August 30, 2011, plaintiff called Kaiser to

23

request a refill on her Vicodin (narcotic) prescription, stating that she just needed the Vicodin but

24

did not need to see the doctor. AR 332. The request was refused, based upon the June 17th

25

discharge. AR 332.

26
27

5

Dr. Whitmore was apparently referring to a set of tests to determine if there are “non-organic”
reasons for the asserted pain, such as psychological reasons.

28
8

1

On May 11, December 17, 2012, plaintiff was seen by Dr. McAlpine, apparently a treating

2

physician. AR 442-46 (Exh. 8F). Dr. McAlpine declined to increase the dose of plaintiff’s

3

Methotrexate “in that it has done what [it] was supposed to do.” AR 448.

4

On May 29, 2012, plaintiff was examined by Dr. Sanford Selcon. AR 420-28 (Exh. 5F).

5

Dr. Selcon concluded that plaintiff “can sit in an 8-hour work period . . . without limitations,” that

6

she can stand/walk up to 2 hours, and that she can lift/carry 10 pounds occasionally. AR 423.

7

On April 8, 2013, Dr. Jaspreet Mann, a treating physician, completed a Medical Source

8

Statement – Physical, a check-off form, regarding plaintiff. AR 494-95 (Exh. 10F). Dr. Mann

9

reported that plaintiff could lift less than 10 pounds (whether frequently or occasionally), could

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

stand and walk less than 2 hours, and could sit less than 6 hours. AR 494.
VI. THE ALJ’s DECISION
The ALJ made the following findings:
1.
The claimant has not engaged in substantial gainful activity
since January 24, 2012, the application date (20 CFR 416.971 et
seq.).
2.
The claimant has the following severe impairment:
rheumatoid arthritis (20 CFR 416.920(c)). . . .
In addition . . . the claimant alleges depression. [T]he record is
devoid of any diagnosis of a medically determinable mental
impairment by an acceptable medical source as required in 20
CFR 416.913(a) (Ex. 1F, 2F, 3F, 4F, 5F, 8F, 10F, 12F, 13F). The
claimant has not required any outpatient psychiatric treatment,
mental health therapy, crisis interventions, emergency department
visits, or psychiatric hospitalizations for her alleged condition. . . .
Accordingly, the undersigned finds no evidence of a severe
medically determinable mental impairment.
3.
The claimant does not have an impairment or combination
of impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
While the claimant has symptoms of back and joint pains, the
claimant’s musculoskeletal impairments have not resulted in motor
loss, reflex changes, sensory deficits or the degree of functional loss
required by the musculoskeletal listings. Her impairments have not
resulted in an inability to ambulate or perform fine and gross
movements.
4.
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
9

1

capacity to perform sedentary work as defined in 20
CFR 416.967(a). Specifically, she can stand 2 hours in an 8-hour
day with normal breaks, walk 2 hours in an 8-hour day with normal
breaks, and sit 6 hours in an 8-hour day with normal breaks. She
can occasionally climb ramps and stairs, balance, kneel, and crouch.
She should avoid stooping and crawling and cannot climb ladders,
ropes or scaffolds. . . .

2
3
4
5

The claimant’s allegations would find support in the opinion of
treating physician Jaspreet Mann, MD. However, Dr. Mann’s
opinion is given little weight. Dr. Mann opined that the claimant
could lift and carry less than 10 pounds, stand and walk less than 2
hours and sit less than 6 hours in an 8-hour day (Ex. 10F).

6
7
8

Dr. Mann’s opinion is unpersuasive for multiple reasons. First,
Dr. Mann noted in his report that the limitations he proposed were
based on “her description” (Ex. 10F/1, 2) rather than on any
objective findings. His examinations include few specific objective
findings to support his opinion (Ex. 13F/4, 15, 19). Indeed, in
April 2013, Dr. Mann noted that there were “no x-ray findings to
explain her back pain, complaints of intractable pain” (Ex. 13F/15).
Further, this opinion is inconsistent with Dr. Mann’s clinic notes in
which he has refused to prescribe[] narcotic pain medications
(Ex 13F/2, 19) as discussed above. Finally, Dr. Mann.s opinion is
not consistent with the other medical evidence and opinions in [the]
file.

9
10
11
12
13
14

5.
The claimant is capable of performing past relevant work as
a telephone solicitor and highway worker. This work does not
require the performance of work-related activities precluded by the
claimant’s residual functional capacity (20 CFR 416.965).

15
16
17

AR 14-21. The ALJ concluded:

18

6.
The claimant has not been under a disability, as defined in
the Social Security Act, since January 24, 2010, the date the
application was filed (20 CFR 416.920(f)).

19
20

AR 21.
VII. ANALYSIS

21

At Step One, the ALJ found that plaintiff has not engaged in substantial gainful activity, a

22
23

finding that is not challenged on this appeal. At Step Two, the ALJ found that plaintiff had the

24

“severe” impairment of rheumatoid arthritis. AR 14. This finding is not challenged on this

25

appeal.

26

A. Step 2: Whether Plaintiff Had a Severe, Medically Determinable Mental Impairment

27

At Step Two, the ALJ also found “no evidence of a severe medically determinable mental

28

impairment.” AR 15. As noted above, at the first part of the Step Two “special technique”
10

1

applicable to mental impairment claims, the ALJ was required to evaluate plaintiff’s “pertinent

2

symptoms, signs, and laboratory findings” to determine whether she has “a medically

3

determinable mental impairment[],” in this case, depression or anxiety. See 20 C.F.R.

4

§ 419.920a(b)(1); Keyser, 648 F.3d at 725.

5

Here, at the first part of the “special technique,” the ALJ found that plaintiff did not have a

6

medically determinable mental impairment. The ALJ’s determination was based upon three

7

factors: (1) the only diagnoses of depression or anxiety were made by a nurse practitioner and an

8

LCSW, rather than by an “acceptable” medical source; (2) plaintiff has not received treatment for

9

depression or anxiety; and (3) the mental examinations of plaintiff were “benign.” AR 15.

10

AR 15. Plaintiff challenges the ALJ’s finding.

11

1. Diagnosis

12

On October 18, 2012, Shirley Rigg, a nurse practitioner at the Primary Care Center,

13

diagnosed plaintiff with dysthymic disorder (persistent depressive disorder). AR 15, 456. On

14

December 12, 2012, Eloisa Yee, an LCSW at the Primary Care Center, diagnosed plaintiff with

15

major depressive disorder and anxiety disorder. AR 15, 450-51. In addition, the ALJ notes that

16

plaintiff was prescribed Seroquel for depression at the Primary Care Clinic. See AR 15.6 The

17

ALJ concluded that “[t]hus, the record is devoid of any diagnosis of a medically determinable

18

mental impairment by an acceptable medical source as required in 20 CFR 416.913(a).” AR 15.

19

Plaintiff argues that medical teams, which included medical doctors, diagnosed plaintiff

20

with depression, prescribed anti-depressants for her, and referred her to a therapist. Plaintiff’s

21

MSJ Points and Authorities (Plaintiff’s Motion) (ECF No. 19-1) at 6-7. The court’s review of the

22

hearing testimony shows that plaintiff was prescribed Seroquel and amitriptyline for her

23

depression. AR 53. The medical records further show that her treating physician at “The Effort,”

24

Jaspreet Mann, M.D., conducted office visits with plaintiff on February 7 and April 8, 2013, at

25

which he “continued” plaintiff’s Seroquel prescription. AR 514, 518 (Exh. 13F). He then had an

26
27

6

“[T]he claimant alleges depression. Primary Care Clinic notes show the claimant is prescribed
Seroquel (Ex. 3F/44, 8F/15, 13F/2).” AR 15.

28
11

1

office visit with plaintiff on June 13, 2013. AR 501-03 (Exh. 13F). At that visit, Mann “added” a

2

prescription of a daily round of “amitriptyline,” and “continued” her prescription of “Seroquel.”

3

AR 503. However, the medical records do not show any diagnosis of depression or anxiety by

4

Dr. Mann or any other doctor, nor explanation of why he was prescribing (or continuing)

5

amitriptyline or Seroquel. Indeed, Dr. Mann’s own notes show that “[t]he patient demonstrates

6

the appropriate mood and affect,” AR 503, apparently indicating that plaintiff’s depression and

7

anxiety were already under control. Also, the medical records do not show who initially

8

prescribed Seroquel or why.7

9

a. Dr. Mann

10

The parties do not dispute that Dr. Mann is an “acceptable medical source.” 20 C.F.R.

11

§ 416.913(a)(1) (“Acceptable medical sources are . . . Licensed physicians (medical or

12

osteopathic doctors)”). However, in order for Dr. Mann’s medical records to be the type of

13

evidence that will establish whether plaintiff has a medically determinable impairment, they must

14

contain, among other things, “clinical findings (such as the results of . . . mental status

15

examinations),” and a “diagnosis (statement of disease or injury based on its signs and

16

symptoms).” Id. § 416.913(b)(2) & (4). Here, Dr. Mann’s medical records contain no diagnosis

17

of depression or anxiety. Moreover, although Dr. Mann apparently prescribed amitriptyline for

18

plaintiff’s depression, AR 503, there is no clinical finding indicating that the prescription was

19

warranted. To the contrary, amitriptyline was prescribed on June 13, 2013, following plaintiff’s

20

office visit with Dr. Mann, at which he reported that plaintiff “is oriented to time, place, person,

21

and situation,” “has normal insight, exhibits normal judgment,” and “demonstrates the

22

appropriate mood and affect.” AR 503. The record contains no clinical finding of depression,

23

nor any explanation for why the prescription was made. The court is not suggesting that the

24

prescription was unwarranted, only that there is nothing in Dr. Mann’s medical records that

25

suggest why amitriptyline was prescribed, especially when plaintiff’s long-standing prescription

26

7

27

The first mention of Seroquel appears to be a medical record from February 9, 2011, which
states that plaintiff “[s]ays mood helped by Seroquel . . . but no relief from back pain.” AR 381
(Exh. 3F).

28
12

1

of Seroquel already appeared to be producing the results Dr. Mann noted.

2
3

In summary, there is no evidence from Dr. Mann that plaintiff has a medically
determinable mental impairment.

4

b. Nurse practitioner and LCSW

5

The ALJ rejected the depression and anxiety diagnoses of the nurse practitioner and the

6

LCSW as not coming from an “acceptable medical source.” AR 15. The ALJ is correct on the

7

law. In order to establish the existence of a medically determinable impairment, the ALJ properly

8

considers only evidence from “acceptable medical sources,” such as licensed doctors. 20 C.F.R.

9

§ 416.913(a). Nurse practitioners are expressly excluded from this category, and are, instead,

10

categorized as “other sources.” 20 C.F.R. § 416.913(d)(1) (“other sources” include “nurse

11

practitioners”) & (d)(3)(“other sources” include “[p]ublic and private social welfare agency

12

personnel”); Turner v. Commissioner of Social Sec., 613 F.3d 1217, 1224 (9th Cir. 2010) (“as a

13

social worker, McFarland is not considered an “acceptable medical source[ ]” under the

14

regulations,” which “treat ‘[p]ublic and private social welfare agency personnel’ as ‘other

15

sources,’” (quoting 20 C.F.R. § 404.1513(d)(3), the identically worded Title II regulation)).8

16

Plaintiff seems to be arguing that the nurse practitioner and the LCSW should be

17

considered “acceptable medical sources” because they worked as part of a team that included

18

doctors, and implies that they were directly supervised by doctors. See Plaintiff’s Motion at 6-9.

19

The legal validity of this argument is currently unclear in this circuit. See Molina v. Astrue, 674

20

F.3d 1104, 1112 n.3 (9th Cir. 2012) (noting that the Ninth Circuit law holding that a nurse

21

practitioner could be an accepted medical source if she works closely with a doctor rested, in part,

22

upon a regulation that has since been repealed). However, the argument fails here on the facts.

23

Plaintiff identifies no part of the record showing that the nurse practitioner or the social worker

24

was directly supervised by a doctor, or worked closely with a doctor, when the diagnoses were

25

issued. Instead, plaintiff asserts merely that the medical records are “a web of review and

26

8

27

Evidence from nurse practitioners and social workers can, however, be used to establish the
severity of an impairment whose existence has already been established. See 20 C.F.R.
§ 416.913(d).

28
13

1

referral.” Plaintiff’s Motion at 9.

2
3

2. Other evidence of depression
The ALJ then turned to other possible sources of evidence of such an impairment. He

4

found that there was no other evidence in the record of plaintiff’s claimed depression. The ALJ

5

specifically mentioned the lack of treatment for depression, and plaintiff’s “appropriate mood and

6

affect” during mental health exams. AR 15. Plaintiff does not argue that the ALJ erred in this

7

finding, and the court’s review of the record shows no error.

8
9

In summary, the ALJ correctly determined that the record contains no diagnosis of
depression or anxiety by an acceptable medical source. Accordingly there was no error in the

10

ALJ’s Step Two finding that there is no evidence of a severe medically determinable mental

11

impairment.

12

B. Augmenting the Record & Part Two of the Special Technique

13

Plaintiff argues that the ALJ should have augmented the record with a mental health

14

consultative exam “if he was dissatisfied with the professionalism of the county psychiatric

15

treatment.” Plaintiff’s Motion at 9-10. Defendant argues that the ALJ had no duty to do so.

16

The ALJ has the authority to order a consultative exam, and indeed should do so when the

17

record is incomplete, the evidence is ambiguous, or where it is necessary to “fully and fairly

18

develop the record” and “‘to assure that the claimant’s interests are considered.’” Webb v.

19

Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting Brown v. Heckler, 713 F.2d 441, 443 9th

20

Cir. 1983) (per curiam)); Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001); Reed v.

21

Massanari, 270 F.3d 838, 841-43 (9th Cir. 2001).

22

Here, the ALJ gave no indication that the record was incomplete or the evidence

23

ambiguous. Nor does the ALJ indicate that more was needed to fully and fairly develop the

24

record. The court finds no error here. Contrary to plaintiff’s argument, the ALJ was not

25

“dissatisfied” with the professionalism of the county staff. Rather, the ALJ correctly found that

26

there was no diagnosis of depression or anxiety from an acceptable medical source. AR 15. Had

27

the ALJ stopped there, plaintiff perhaps could argue that further inquiry was warranted. After all,

28

it is true that Dr. Mann, a treating physician, did prescribe an anti-depression medication for
14

1

plaintiff, leaving open at least the possibility that Dr. Mann had diagnosed depression after

2

making clinical findings of depression. However, there is no indication in the record that this

3

happened, nor does plaintiff assert that it happened. Rather, the record indicates that Dr. Mann

4

prescribed the medication after someone else made the diagnosis for example, the nurse

5

practitioner or the LCSW, neither of whom is an acceptable medical source).

6

In any event, the ALJ did not base his Step Two finding solely on the lack of an

7

acceptable diagnosis. The ALJ also found that the absence of treatment for the depression (other

8

than the medication), and the absence of any consequences arising from the depression (such as

9

emergency room visits or psychiatric hospitalization), also tended to show the absence of

10

depression that was severe enough to significantly limit plaintiff’s basic work activities. In

11

addition, the clinical findings in the record indicated that plaintiff’s depression, even if it existed,

12

was appropriately controlled by the medication she was taking. See Warren v. Comm’r of SSA,

13

439 F.3d 1001, 1006 (9th Cir. 2006) “[i]mpairments that can be controlled effectively with

14

medication are not disabling for the purpose of determining eligibility for SSI benefits”). The

15

ALJ noted that the mental examinations were “benign,” and repeatedly show that plaintiff “was

16

fully oriented, had normal insight, normal judgment, and appropriate mood and affect.” See

17

AR 15, 503, 514, 518.

18

C. Step 4: Plaintiff’s Residual Functional Capacity9

19

At Step 4, the ALJ found that despite plaintiff’s rheumatoid arthritis, she “has the residual

20

functional capacity to perform sedentary work as defined in 20 CFR 416.967(a).” AR 16. In

21

order to be able to perform sedentary work, plaintiff must be able to lift up to 10 pounds. 20

22

C.F.R. § 416.967(a) “[s]edentary work involves lifting no more than 10 pounds at a time”); SSR

23

96-9P, 1996 WL 374185 at *6 (“If an individual is unable to lift 10 pounds . . . the unskilled

24

sedentary occupational base will be eroded”). In addition, she should be able to sit for 6 hours a

25

day, and to stand and walk for 2 hours a day. SSR 96-9P, 1996 WL 374185 at *6 (“In order to

26

perform a full range of sedentary work, an individual must be able to remain in a seated position

27

9

Plaintiff does not challenge the ALJ’s finding at Step 3.

28
15

1

for approximately 6 hours of an 8-hour workday,” and “The full range of sedentary work requires

2

that an individual be able to stand and walk for a total of approximately 2 hours during an 8-hour

3

workday”). Plaintiff challenges this finding solely on the ground that the ALJ improperly

4

rejected the opinion of a treating physician, Dr. Mann. Plaintiff’s Motion at 10-12.

5

Plaintiff’s treating physician, Dr. Mann, determined that plaintiff only had the ability to

6

lift less than 10 pounds, to stand and walk less than 2 hours, based upon her rheumatoid arthritis

7

diagnosis. AR 494 (Exh. 10F). Dr. Mann also determined that plaintiff only had the ability to sit

8

less than 6 hours, and that she needed to change her position every 10 minutes, based upon “her

9

description.” AR 494-95. Thus, if Dr. Mann’s determination were credited, plaintiff could well

10

be disqualified from sedentary work. The ALJ gave Dr. Mann’s opinion “little weight” because

11

(1) it was based upon “‘her description’” rather than objective findings, (2) it was inconsistent

12

with Dr. Mann’s own clinic notes in which he refused to prescribe narcotic pain medications, and

13

(3) it is not consistent with the other medical evidence and opinions in the record. AR 18-19.

14

1. The treating doctor’s opinion

15

“[T]he medical opinions of a claimant's treating physicians are entitled to special weight.”

16

Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988). Indeed, “the ultimate conclusions of those

17

physicians must be given substantial weight.” Id. at 422. However, “[t]he ALJ need not accept

18

the opinion of any physician, including a treating physician, if that opinion is brief, conclusory,

19

and inadequately supported by clinical findings.” Thomas, 278 F.3d at 957.

20

Moreover, if the treating doctor’s opinion is contradicted by another doctor’s opinion, the

21

ALJ may reject it “by providing specific and legitimate reasons that are supported by substantial

22

evidence.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). “An ALJ can satisfy the

23

‘substantial evidence’ requirement by ‘setting out a detailed and thorough summary of the facts

24

and conflicting clinical evidence, stating his interpretation thereof, and making findings.’” Id.

25

(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)).

26

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

27

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

28

////
16

1

and 2) clinical findings support the opinions.” Esposito v. Astrue, 2012 WL 1027601 at *3 (E.D.

2

Cal. 2012).

3

2. Analysis

4

Plaintiff fails to show that the ALJ erred by rejecting Dr. Mann’s opinion. Dr. Mann’s

5

opinion that plaintiff could not sit for 6 hours, and that she needed to change positions every 10

6

minutes, were, according to Dr. Mann’s own notes, based solely upon “her [plaintiff’s]

7

description.” AR 494-95. Dr. Mann identifies no clinical findings that support this conclusion,

8

and plaintiff does not identify any on this appeal.10 Instead, plaintiff relies upon the diagnoses of

9

rheumatoid arthritis and other conditions by Dr. Mann and Dr. Raul Romea, plaintiff’s

10

rheumatologist, and her scores on various health assessments. See Plaintiff’s Motion at 11.

11

However, these arguments address a point on which plaintiff has already prevailed, namely,

12

whether plaintiff has a “severe impairment” for purposes of Step Two, that is, an impairment

13

“which significantly limits” plaintiff’s “physical or mental ability to do basic work activities.”

14

See 20 C.F.R. § 416.920(c). Plaintiff does not identify or explain any clinical findings that

15

support Dr. Mann’s Step Four conclusion that plaintiff cannot sit for 6 hours, or that she must

16

change positions every 10 minutes.

17

Dr. Mann’s opinions that plaintiff could not lift 10 pounds, and could not stand or walk

18

for two hours, were, according to his own notes, based upon the diagnosis of “rheumatoid

19

arthritis.” AR 494. This conclusion fares no better than the other two, because it is based solely

20

upon the fact that plaintiff is diagnosed with an impairment. This is a Step Two issue, and does

21

nothing to show, under Step Four, that plaintiff cannot lift 10 pounds or stand or walk for 2 hours.

22

See, e.g., Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001) (affirming the ALJ’s determination

23

that plaintiff was not disabled despite her rheumatoid arthritis and other conditions, because she

24

could still perform sedentary work). As with the conclusions that were based solely upon

25

plaintiff’s own description, plaintiff here does not identify or explain any clinical findings that

26

10

27

Of course, it is possible that some clinical finding in the medical records does in fact support
these assertions. However, neither the ALJ nor this court should “play doctor” by trying to
identify and then independently interpret clinical findings that are beyond its expertise.

28
17

1

would support the asserted functional limitations beyond the diagnosis itself.11

2

The ALJ also rejected Dr. Mann’s opinion because it was not consistent with the other

3

medical evidence and opinions in the record. The ALJ carefully set out the evidence tending to

4

contradict Dr. Mann’s opinion, including the opinions of other physicians Dr. Myint, a treating

5

physician, and Dr. Selcon, a consultative examiner, that plaintiff could carry 10 pounds, and

6

could stand up to 2 hours. AR 18, 320, 324, 327, 423. The ALJ set forth the reasons plaintiff’s

7

lack of credibility led him to not credit plaintiff’s own assertions of limitations. AR 17-18. These

8

included plaintiff’s lack of cooperation during a consultative examination, the mild findings of

9

that examination, the evidence that medications have been relatively effective, and her “drug

10

seeking” behavior. AR 17-19.

11

The court concludes that both reasons – that Dr. Mann’s conclusions were conclusory and

12

not supported by clinical findings, and that his conclusions contradicted the other evidence in the

13

record – are independently sufficient for the ALJ to have rejected Dr. Mann’s opinion.12

14

In summary, plaintiff has failed to show that the ALJ committed error by rejecting the

15

opinion of Dr. Mann, one of plaintiff’s treating physicians. Without Dr. Mann’s opinion, there is

16

no evidence in the record that plaintiff’s impairments prevent her from doing sedentary work.

17

VIII. CONCLUSION

18

For the reasons set forth above, IT IS HEREBY ORDERED that:

19

1. Plaintiff’s motion for summary judgment (ECF No. 19), is DENIED;

20

2. The Commissioner’s cross-motion for summary judgment (ECF No. 25), is

21

GRANTED; and

22

////

23
24
25
26
27

11

It was therefore harmless error for the ALJ to reject the conclusions regarding the 10 pounds
and the standing and walking limitations as being based upon “‘her description.’” The same
analysis applies, whether the basis for the conclusion was her description or as was the case here,
the mere diagnosis of rheumatoid arthritis.
12
The court therefore finds it unnecessary to address the ALJ’s two other reasons for rejecting
Dr. Mann’s opinion, namely, Dr. Mann’s refusal to prescribe narcotic pain medication, and the
absence of x-ray findings to explain plaintiff’s complaints of intractable pain.

28
18

1
2

3. The Clerk of the Court shall enter judgment for defendant, and close this case.
DATED: April 20, 2015

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
19