Thomas v. Commissioner of Social Security

Filing 20

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/30/2016 ORDERING that Plaintiff's 15 Motion for Summary Judgment is DENIED. The Commissioner's 18 Cross-Motion for Summary Judgment is GRANTED. The Clerk is directed to enter judgment in the Commissioner's favor. CASE CLOSED. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARK A. THOMAS,

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Plaintiff,

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No. 2:14-cv-1878-EFB

v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security
Defendant.

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

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(“Commissioner”) denying his applications for a period of disability and Disability Insurance

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Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the

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Social Security Act. The parties’ cross-motions for summary judgment are pending. For the

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reasons discussed below, plaintiff’s motion is denied and the Commissioner’s motion is granted.

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I.

BACKGROUND

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Plaintiff filed applications for a period of disability, DIB and SSI, alleging that he had

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been disabled since November 1, 2009.1 Administrative Record (“AR”) 223-240. Plaintiff’s

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applications were denied initially and upon reconsideration. Id. at 160-165, 167-172. On

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Plaintiff subsequently amended his alleged onset date to March 10, 2010.
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September 13, 2012, a hearing was held before administrative law judge (“ALJ”) Sara Gillis. Id.

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at 31-92. Plaintiff was represented by counsel at the hearing, at which he and a vocational expert

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(“VE”) testified. Id.

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On December 21, 2012, the ALJ issued a decision finding that plaintiff was not disabled

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under sections 216(i), 223(d), and 1614(a)(3)(A) of the Act.2 Id. at 12-25. The ALJ made the

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following specific findings:

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1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since November 1, 2009, the
alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

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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 (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

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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. Yuckert, 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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3. The claimant has the following severe impairments: diabetes mellitus, morbid obesity,
insomnia, a history of stent placement, sleep apnea and a history of cervical strain (20
CFR 404.1520(c) and 416.920(c)).

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***

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4. 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 404.1520(d), 404.1525, and 404.1526, 416.920(d), 416.925 and
416.926).

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***

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5. After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform medium work as defined in 20 CFR
404.1567(c) and 416.967(c) except for the following limitations: the claimant is unable to
climb ladders, ropes or scaffold. He may occasionally stoop and crouch. The claimant is
limited to frequent overhead lifting and reaching. The claimant must avoid concentrated
exposure to work hazards, such as moving machinery and unprotected heights.

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***

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6. The claimant is capable of performing past relevant work as a customer service clerk,
business manager/store owner, display merchandiser and teacher/childcare. This work
does not require the performance of work-related activities precluded by the claimant’s
residual functional capacity (20 CFR 404.1565 and 416.965).

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***

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7. The claimant has not been under a disability, as defined in the Social Security Act, from
November 1, 2009, through the date of this decision (20 CFR 404.1520(f) and
416.920(f)).

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Id. at 14-24.

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Plaintiff’s request for Appeals Council review was denied on June 23, 2014, leaving the

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ALJ’s decision as the final decision of the Commissioner. Id. at 1-6.

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II.

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LEGAL STANDARDS
The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

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of fact are supported by substantial evidence in the record and the proper legal standards were

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applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

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Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

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180 F.3d 1094, 1097 (9th Cir. 1999).

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The findings of the Commissioner as to any fact, if supported by substantial evidence, are

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conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

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more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

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Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

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conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

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N.L.R.B., 305 U.S. 197, 229 (1938)).

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

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

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2001) (citations omitted). “Where the evidence is susceptible to more than one rational

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interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

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Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

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III.

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ANALYSIS
Plaintiff argues that the ALJ erred in (1) finding at step two that his mental impairments

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were nonsevere, and (2) failing to account for all of plaintiff’s impairments in assessing his

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residual functional capacity (“RFC”).

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A.

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Plaintiff argues that the ALJ erred in finding that his depression, somatization disorder

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and anxiety disorder were nonsevere impairments. ECF No. 15 at 6-12. Specifically, plaintiff

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contends that the ALJ impermissibly (1) disregarded therapy records, (2) rejected the opinion of

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the examining physician without sufficient justification, and (3) improperly assessed plaintiff’s

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limitations as required by 20 C.F.R. §§ 404.1520a and 416.920a. ECF No. 15 at 6-12.

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The ALJ’s step-two findings is supported by substantial evidence

“The step-two inquiry is a de minimis screening device to dispose of groundless claims.”

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Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). The purpose is to identify claimants

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whose medical impairment is so slight that it is unlikely they would be disabled even if age,

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education, and experience were not taken into account. Bowen v. Yuckert, 482 U.S. 137 (1987).

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At step two of the sequential evaluation, the ALJ determines which of claimant’s alleged

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impairments are “severe” within the meaning of 20 C.F.R. § 404.1502(c). A severe impairment is

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one that “significantly limits” a claimant’s “physical or mental ability to do basic work activities.”
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20 C.F.R. § 404.1520(c). “An impairment is not severe if it is merely ‘a slight abnormality (or

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combination of slight abnormalities) that has no more than a minimal effect on the ability to do

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basic work activities.’” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005) (quoting Social

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Security Ruling (“SSR”) 96-3p).

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1. Therapy Records
Plaintiff first contends that the ALJ erred at step-two by giving no weight to treatment

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records from Kathleen Van Wie, LCSW. ECF No. 15 at 6-7. Ms. Van Wie treated plaintiff for

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depression, stress, anxiety, and sleep disturbance from August 1998 to October 2001. AR 1079-

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1262. In assessing plaintiff’s mental impairments at step-two, the ALJ gave no weight to Ms.

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Van Wie’s treatment reports “as she treated [plaintiff] for depression/stress 8-10 years prior to the

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period at issue.” Id. at 17.

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“Medical opinions that predate the alleged onset of disability are of limited relevance.”

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Carmickle v. Comm’r Soc. Sec. Admin., 533 F.3d 1155, 1165 (9th Cir. 2008); see also Burkhart v.

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Bowen, 856 F.2d 1335, 1340 n.1 (9th Cir. 1988) (The ALJ correctly rejected “evidence on the

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ground that it is not probative . . . because it is prior to the relevant time period . . . .”). Plaintiff

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claims that he became disabled on November 1, 2009, more than eight years after the last

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treatment record from Ms. Van Wie. Given that these records pertain to treatment provided well

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before plaintiff’s alleged onset date, they are not probative evidence of plaintiff’s functional

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impairments at the time he allegedly became disabled. See Carmickle, 533 F.3d at 1164–65

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(indicating that evidence from “well before” the alleged onset date is not probative).

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Accordingly, the ALJ properly gave no weight to this evidence.

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2. Dr. Regazzi’s Opinion
Plaintiff next argues that the ALJ’s step-two finding is not supported by substantial

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evidence because the ALJ improperly rejected the opinion from examining physician Dr.

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Regazzi. ECF No. 15 at 7-10.

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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. Lester, 81 F.3d at 834. 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 831. In contrast, a contradicted opinion of a treating or examining medical professional

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may be rejected for “specific and legitimate” reasons that are supported by substantial evidence.

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Id. at 830. While a treating professional’s opinion generally is accorded superior weight, if it is

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contradicted by a supported examining professional’s opinion (e.g., supported by different

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independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d

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1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

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However, “[w]hen an examining physician relies on the same clinical findings as a treating

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physician, but differs only in his or her conclusions, the conclusions of the examining physician

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are not ‘substantial evidence.’” Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007).

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Plaintiff underwent a psychological evaluation, which was performed by Michelina

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Regazzi, Ph.D. AR 1074-1078. Dr. Regazzi diagnosed plaintiff with somatization disorder,

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dyssomnia, depressive disorder, and anxiety disorder. Id. at 1077. It was her opinion that

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plaintiff had marked impairments in maintaining attention and concentration; understanding

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remembering and carrying out complex instructions; and completing a normal workday without

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interference from symptoms. Id. She also opined that plaintiff had moderate impairments in

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understanding, remembering, and carrying out simple instructions; maintaining adequate pace;

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interacting appropriately with supervisors, coworkers, and the public. Id. at 1077-1078.

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A second psychological evaluation was performed by Frank Weber, Ph.D. Id. at 964-969.

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Dr. Weber diagnosed plaintiff with major depressive disorder, recurrent, moderate (by history),

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and generalized anxiety disorder (by history). Id. at 968. He opined that plaintiff was only

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minimally impaired in his ability to understand, remember, and carry out an extensive variety of

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technical and/or complex job instructions; maintain concentration, attention, and pace; respond

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appropriately to co-workers, supervisors, and the public; respond appropriately to usual work
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situations; deal with changes in a routine work setting; and interact in socially acceptable ways.

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Id. at 968-969.

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The record also contains opinions from two state agency non-examining physicians, Drs.

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Regan and Gottschalk. Id. at 102-103, 148-149. Both physicians opined that plaintiff’s mental

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impairments were nonsevere. Id.

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In determining that plaintiff’s mental impairments were not severe, the ALJ accorded little

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weight to Dr. Regazzi’s opinion, while giving great weight to Dr. Weber and the state agency

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physicians’ opinions. Id. at 16-17. Since Dr. Regazzi’s opinion was contradicted by the other

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medical opinions of record, the ALJ was required to give specific and legitimate reasons for

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rejecting her opinion. See Orn v. Astrue, 495 F.3d at 632.
The ALJ provided multiple reasons for rejecting Dr. Regazzi’s opinion. First, the ALJ

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found that Dr. Regazzi’s opinion was inconsistent with her own findings regarding plaintiff’s

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daily activities and normal clinical observations. AR 17. An ALJ may reject a physician’s

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opinion that is inconsistent with other medical evidence, including the physician’s own treatment

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notes. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008). Dr. Regazzi’s report indicated

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that plaintiff played games online, assisted with cooking and household chores, drove a car, and

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“that when he has the energy he does computer graphics and is teaching himself Photo Shop.”

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AR at 1075-1076. Plaintiff obtained a college degree, although it took him 13 years to complete

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“due to his sleep issue, which has improved by using [a CPAP] machine.” Id. at 1076.

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The ALJ properly concluded that Dr. Regazzi’s opinion was inconsistent with these daily

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activities. For instance, Dr. Regazzi opined that plaintiff had marked limitations in attention and

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concentration as well as in understanding, remembering, and carrying out complex instructions,

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while also observing that plaintiff was teaching himself graphic design and Photoshop. Id. at

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1076-1077. The ALJ reasonably concluded that Dr. Regazzi’s opinion was at odds with the

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ability to perform such activities.

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The ALJ also noted that Dr. Regazzi’s clinical observations did not support the assessed

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limitations. Id. at 17. Dr. Regazzi reported that plaintiff was cooperative, spoke with no

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articulation problems, responded promptly and fully, expressed his thoughts in a clear and logical
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fashion, had normal range of affect, but an anxious mood. Id. at 1076. There was also no

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evidence of psychotic symptoms and plaintiff did not express any thoughts of harm towards

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himself of others. Id. These generally normal findings are inconsistent with Dr. Regazzi’s

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opinion that plaintiff had severe mental impairments.

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The ALJ also observed that Dr. Regazzi’s opinion “contrasts sharply with assessments of

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both Weber and treating physicians, the latter of which found the claimant is doing well on

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psychotropic medications.” Id. at 17. Plaintiff argues that the difference with Dr. Weber’s

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opinion alone cannot be a basis for rejecting Dr. Regazzi’s opinion, and that his treating

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physicians reference to “doing well” on medication “more likely means medication helps than it

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means anything so precise as nonseverity.” ECF No. 15 at 9.
Plaintiff’s argument mischaracterizes the ALJ’s decision. The ALJ did not rely solely on

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Dr. Weber’s opinion in finding that plaintiff’s mental limitations were non-severe. The ALJ

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specifically gave great weight not only to Dr. Weber’s opinion, but also to the opinions provided

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by the agency physicians, who each indicated that plaintiff’s mental impairments were not severe.

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AR 16. Given that Dr. Weber’s opinion was consistent with the other medical opinions of record,

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the ALJ permissibly adopted Dr. Weber’s opinion over the Dr. Regazzi’s opinion. See 20 C.F.R.

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§§ 404.1527(c)(4) and 416.927(c)(4) (“the more consistent an opinion is with the record as a

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whole, the more weight we will give to that opinion”); 20 C.F.R. §§ 404.1513(c) (findings by

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state agency physicians constitute proper evidence from non-examining sources); SSR 96–6p

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(“State agency medical . . . consultants are highly qualified physicians . . . who are experts in the

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evaluation of the medical issues in disability claims.”); Thomas v. Barnhart, 278 F.3d 947, 957

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(9th Cir. 2002) (“opinions of nontreating or non-examining physicians may also serve as

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substantial evidence when the opinions are consistent with independent clinical findings or other

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evidence in the record”).

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Furthermore, plaintiff’s quarrel over what his treating physicians meant by “doing well”

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on medication, is based on conjecture and ignores statements made in his medical records.

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Those records acknowledge that plaintiff was seeking SSI based on insomnia, depression, and

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anxiety, but indicate that his past psychiatrists did not believe his impairments warranted
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disability benefits. Id. at 781. Plaintiff’s treating physician, Dr. Doolittle, noted that plaintiff had

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poor compliance with following up with his psychiatrist, and even stated that he did not feel

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conformable providing long term disability. Id. at 783. He also noted no objective evidence of

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depression, and that all symptoms were subjectively reported. Id. Thus, regardless of the precise

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meaning of “doing well” on medication, it is clear from the records that plaintiff’s treating

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physicians did not agree with Dr. Regazzi’s opinion.3

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Accordingly, the ALJ provided legally sufficient reasons for rejecting the severe

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limitations assessed by Dr. Regazzi in favor of the majority view that plaintiff’s mental

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impairments were nonsevere.

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3. Psychiatric Review Technique
Plaintiff also argues that the ALJ’s review of plaintiff’s mental impairments under the
Psychiatric Review Technique should be rejected. ECF No. 15 at 10-11.
When a claimant alleges disability due to a mental impairment, the Commissioner’s

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regulations require the ALJ to follow a special psychiatric review technique in reviewing the

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claim. 20 C.F.R. § 404.1520a. The ALJ must first determine whether a medically determinable

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mental impairment exists (20 C.F.R. § 404.1520a(b)), and then rate the degree of functional

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limitation in four broad areas (activities of daily living; social functioning; concentration,

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persistence, or pace; and episodes of decompensation) (20 C.F.R. § 404.1520a(c)). These steps

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are documented in a Psychiatric Review Technique Form (“PRTF”), and the ALJ’s “written

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decision must incorporate the pertinent findings and conclusions based on the technique” and

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“must include a specific finding as to the degree of limitation in each of the functional areas.” 20

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C.F.R. § 404.1520a(e). Thus, “the regulations contemplate that written decisions at the ALJ and

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Appeals Council levels should contain a narrative rationale, instead of the checklist of . . .

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conclusions found in a PRTF.” Keyser v. Comm’r Soc. Sec. Admin., 648 F.3d 721, 725 (9th Cir.

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2011) (quotation marks omitted).

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None of plaintiff’s treating physicians provided an opinion as to plaintiff’s specific
mental limitations. Given the comments in his treatment records, it is not surprising that plaintiff
did not submit a mental RFC assessment from a treating source in support of his application for
SSI.
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Here, plaintiff does not, nor could he, dispute that the ALJ provided a narrative rationale

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of his findings as to the degree of plaintiff’s limitations in each of the functional areas. Instead,

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plaintiff’s contention that the ALJ erred in performing the Psychiatric Review Technique is based

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heavily on his contention that the ALJ erred in rejecting Dr. Regazzi’s opinion. As explained

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above, the ALJ appropriately disregarded her opinion. Plaintiff also appears to argue that the

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ALJ’s finding that plaintiff only had mild limitations in the first three categories impermissibly

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relied on “non-medical facts,” as opposed to medical evidence. The argument completely ignores

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the ALJ’s reliance on Dr. Weber’s opinion and opinions from the state agency physicians.

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Lastly, plaintiff also appears to contend that the ALJ failed to consider his sleep disorder

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in finding no more than mild impairments in mental functioning. ECF No. 15 at 11 (As for

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“activities of daily living, the decision not only exalts activities [that] don’t even disprove

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disability, but disregards [plaintiff’s] inability to perform them except in a manner radically

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untethered from the diurnal clock.”). Despite plaintiff’s insomnia and sleep apnea, which was

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documented in the medical record, all medical opinions, with the exception of Dr. Regazzi’s

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opinion, concluded that plaintiff’s mental impairments were not severe. Furthermore, the ALJ

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specifically found that plaintiff’s allegations that his insomnia and sleep apnea significantly

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disrupted his ability to function were not credible, noting that he sought little treatment during for

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this condition during the period at issue. AR 22-23; see Light v. Soc. Sec. Admin., 119 F.3d 789,

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792 (9th Cir.1997) (an ALJ my discredit a plaintiff’s subjective complaints based on an

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unexplained or inadequately explained failure to seek treatment). Thus, the ALJ did not fail to

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account for plaintiff’s sleep issues in assessing the severity of his mental impairments.

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For the foregoing reasons, the ALJ applied the proper legal standard at step two and his
findings are supported by substantial evidence.

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B.

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Plaintiff argues that the ALJ’s RFC determination is not supported by substantial evidence

The ALJ’s RFC is supported by substantial evidence

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because the ALJ failed to account for plaintiff’s diabetes mellitus, morbid obesity, insomnia,

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history of stent placement, sleep apnea and history of cervical strain, all impairments found to be

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severe at step-two. ECF No. 15 at 12-14. Plaintiff, however, fails to draw the distinction
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between finding an impairment severe at step-two and determining an individual’s RFC. The

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second step severity determination is merely means that plaintiff has satisfied a de minimis

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screening test for disposing of claims which do not merit further consideration under the

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remaining steps of the sequential analysis. Smolen v. Chater, 80 F.3d at 1290. Thus, an ALJ’s

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finding that an impairment is severe at step two does not compel its inclusion in the RFC at steps

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four and five. Maher v. Commissioner of Social Sec. Admin., 474 F. App’x 609, 2012 WL

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2860751, at *609–10 (9th Cir. July 12, 2012). Accordingly, the ALJ’s finding that plaintiff’s

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diabetes, obesity, insomnia, sleep apnea, and history of stent placement and cervical strain were

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severe impairments did not compel inclusion of limitations based on these impairments.

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Furthermore, the ALJ specifically considered these impairments in assessing plaintiff’s

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RFC. The ALJ found that the evidence failed to demonstrate that these impairments limited

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plaintiff’s ability to perform medium work. For each impairment, the evidence either

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conclusively establishes no limitations, or evidence of a limitation was lacking due to plaintiff’s

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failure to seek medical treatment or continuous noncompliance with his physicians’ prescribed

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course of treatment. See AR 22-23. Furthermore, the medical opinions from both examining and

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non-examining sources concluded that notwithstanding plaintiff’s impairments, he retained the

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ability to perform medium work.4 Id. at 104-106, 136-137, 975.

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Missing from plaintiff’s argument is any discussion or citation to medical evidence

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demonstrating that his diabetes, obesity, insomnia, sleep apnea, and history of stent placement

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and cervical strain limited him to less than the RFC assessed by the ALJ. Accordingly, plaintiff

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fails to identify any error by the ALJ in assessing his RFC. Thomas, 278 F.3d at 957 (“opinions

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of non-treating or non-examining physicians may also serve as substantial evidence when the

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opinions are consistent with independent clinical findings or other evidence in the record”).

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IV.

CONCLUSION

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s motion for summary judgment is denied;

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The record does not contain a treating source opinion as to plaintiff’s physical
limitations.
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2. The Commissioner’s cross-motion for summary judgment is granted; and

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3. The Clerk is directed to enter judgment in the Commissioner’s favor.

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DATED: March 30, 2016.

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