Buchet v. Commissioner of Social Security

Filing 19

MEMORANDUM and ORDER signed by Magistrate Judge Craig M. Kellison on 9/18/17 ORDERING that Plaintiff's MOTION for Summary Judgment 14 is DENIED; Defendant's Cross-MOTION for Summary Judgment 18 is GRANTED; and The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MICHELLE L. BUCHET,

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Plaintiff,

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No. 2:15-CV-2431-CMK

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Plaintiff, who is proceeding with retained counsel, brings this action under

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42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

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Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

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judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending

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before the court are plaintiff’s motion for summary judgment (Doc. 14) and defendant’s cross-

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motion for summary judgment (Doc. 18).

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I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on October 4, 2011. In the

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application, plaintiff claims that disability began on March 1, 2008. Plaintiff’s claim was

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initially denied. Following denial of reconsideration, plaintiff requested an administrative

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hearing, and hearings were held on April 11, 2013, March 19, 2014, and June 24, 2014, before

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Administrative Law Judge (“ALJ”) Peter F. Belli. In an August 11, 2014, decision, the ALJ

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concluded that plaintiff is not disabled based on the following relevant findings:

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1.

Through the date last insured (March 31, 2013), the claimant had the
following severe impairment(s): depression and anxiety;

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Through the date last insured, he claimant did not have an impairment or
combination of impairments that meets or medically equals an impairment
listed in the regulations;

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Through the date last insured, the claimant had the following residual
functional capacity: the claimant could perform a full range of work at all
exertional levels, but with the following non-exertional limitations:

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Considering the claimant’s age, education, work experience, residual
functional capacity, and vocational expert testimony, there are jobs that
exist in significant numbers in the national economy that the claimant can
perform.

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After the Appeals Council declined review on September 23, 2015, this appeal followed.

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II. STANDARD OF REVIEW

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The court reviews the Commissioner’s final decision to determine whether it is:

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(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

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whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

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

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(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

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support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

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including both the evidence that supports and detracts from the Commissioner’s conclusion, must

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be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones
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v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

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decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

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Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

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findings, or if there is conflicting evidence supporting a particular finding, the finding of the

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Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

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Therefore, where the evidence is susceptible to more than one rational interpretation, one of

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which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

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Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

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standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

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Cir. 1988).

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III. DISCUSSION

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Plaintiff argues that the ALJ failed to provide specific and legitimate reasons for

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rejecting the opinions of examining physician Dr. Cormier and treating physician Dr. Swanson.

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The weight given to medical opinions depends in part on whether they are proffered by treating,

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examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir.

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1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a

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greater opportunity to know and observe the patient as an individual, than the opinion of a non-

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treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v.

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Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-

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examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

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In addition to considering its source, to evaluate whether the Commissioner

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properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

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in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

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uncontradicted opinion of a treating or examining medical professional only for “clear and

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convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.
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While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

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by an examining professional’s opinion which is supported by different independent clinical

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findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

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1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

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rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

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81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

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the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

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finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

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legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

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professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

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

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professional. See id. at 831. In any event, the Commissioner need not give weight to any

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conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

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1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

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see also Magallanes, 881 F.2d at 751.

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A.

Dr. Cormier

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As to Dr. Cormier, the ALJ stated:

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During the consultative evaluation on January 30, 2012, Dr. Sid Cormier
gave her a GAF score of 55, and stated that she was very significantly
impaired in the ability to deal with typical stresses that she might
encounter in a competitive work situation, moderately to seriously
impaired in the ability to perform simple and repetitive tasks, maintain
regular attendance and perform her work activities on a consistent basis,
complete a normal workday or workweek without interruption, and that
she was moderately impaired in the ability to interact with coworkers and
general public, and both in pace and persistence. He further stated that she
decompensated significantly near the middle of the evaluation and may
well decompensate if placed in a competitive work situation. Since her
alleged onset date, the highest GAF that has been assessed her was by Dr.
Cormier with a GAF of 55 (Exhibit 4F).

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On February 14, 2012, State agency psychological consultant Adrianne
Gallucci, Psy.D., discussed Dr. Cormier’s exam in determining the
severity of the claimant’s mental impairments. Dr. Gallucci noted that the
claimant was alert and oriented to person, place, time, and situation. Her
sensorium was clear. She denied any history or expense of hallucinations
or delusions, nor was there . . . any in evidence throughout the evaluation.
Her thought processes were logical and sequential with no indications of
significant disorganization of thinking. Her mood appeared to be
significantly depressed and anxious with a labile quality or affect. Her
concentration capacity appeared intact. Her abstract thinking ability
appeared adequate. Her diagnosis was major depressive disorder, panic
disorder, and general anxiety disorder. However, Dr. Gallucci noted that
Dr. Cormier’s MSS was very restrictive and inconsistent with the
evaluation. However, Dr Cormier also indicated that improvement was
expected with ongoing treatment (Exhibits 1A/8, 4F).

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The undersigned concurs with the State agency and accords minimal
evidentiary weight to the opinion of Dr. Cormier who evaluated the
claimant in January of 2012. The doctor accorded her a GAF of 55, which
is indicative of moderate symptoms. However, he found her unable to
function mentally and moderately to seriously impaired in her ability to
even perform simple repetitive tasks (Exhibit 4F).

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Plaintiff argues that “[t]he GAF score in of it self should not discredit, the mental status

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examination. . . .”

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The court does not agree with plaintiff’s reading of the ALJ’s decision. Rather

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than citing the GAF score assessed by Dr. Cormier to “discredit” the doctor’s opinion, the ALJ

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cited the GAF score among other findings by Dr. Cormier to illustrate the internal inconsistency

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in the doctor’s opinion. Specifically, Dr. Cormier opined that plaintiff was significantly impaired

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in a number of functional categories. Yet Dr. Cornier also opined that plaintiff’s overall

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functional ability, as indicated by a GAF score of 55, is only moderately impaired. This is the

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same inconsistency discussed by Dr. Gallucci, who observed that the significant limitations

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opined by Dr. Cormier were not supported by the doctor’s own objective findings. The court

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finds that the ALJ properly noted this inconsistency in assigning Dr. Cormier’s opinion reduced

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weight.

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B.

Dr. Swanson
Plaintiff argues that the ALJ “did not address, discuss, or give any weight to Dr.

Swanson’s April 2014 opinion.” Defendant concedes error, but argues it is harmless.
The Ninth Circuit has applied harmless error analysis in social security cases in a

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number of contexts. For example, in Stout v. Commissioner of Social Security, 454 F.3d 1050

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(9th Cir. 2006), the court stated that the ALJ’s failure to consider uncontradicted lay witness

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testimony could only be considered harmless “. . . if no reasonable ALJ, when fully crediting the

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testimony, could have reached a different disability determination.” Id. at 1056; see also Robbins

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v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 2006) (citing Stout, 454 F.3d at

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1056). Similarly, in Batson v. Commissioner of Social Security, 359 F.3d 1190 (9th Cir. 2004),

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the court applied harmless error analysis to the ALJ’s failure to properly credit the claimant’s

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testimony. Specifically, the court held:

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However, in light of all the other reasons given by the ALJ for
Batson’s lack of credibility and his residual functional capacity, and in
light of the objective medical evidence on which the ALJ relied there was
substantial evidence supporting the ALJ’s decision. Any error the ALJ
may have committed in assuming that Batson was sitting while watching
television, to the extent that this bore on an assessment of ability to work,
was in our view harmless and does not negate the validity of the ALJ’s
ultimate conclusion that Batson’s testimony was not credible.

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Id. at 1197 (citing Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990)).
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In Curry, the Ninth Circuit applied the harmless error rule to the ALJ’s error with respect to the

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claimant’s age and education. The Ninth Circuit also considered harmless error in the context of

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the ALJ’s failure to provide legally sufficient reasons supported by the record for rejecting a

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medical opinion. See Widmark v. Barnhart, 454 F.3d 1063, 1069 n.4 (9th Cir. 2006).

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The harmless error standard was applied in Carmickle v. Commissioner, 533 F.3d

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1155 (9th Cir. 2008), to the ALJ’s analysis of a claimant’s credibility. Citing Batson, the court

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stated: “Because we conclude that . . . the ALJ’s reasons supporting his adverse credibility

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finding are invalid, we must determine whether the ALJ’s reliance on such reasons was harmless
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error.” See id. at 1162. The court articulated the difference between harmless error standards set

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forth in Stout and Batson as follows:

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. . . [T]he relevant inquiry [under the Batson standard] is not
whether the ALJ would have made a different decision absent any error. . .
it is whether the ALJ’s decision remains legally valid, despite such error.
In Batson, we concluded that the ALJ erred in relying on one of several
reasons in support of an adverse credibility determination, but that such
error did not affect the ALJ’s decision, and therefore was harmless,
because the ALJ’s remaining reasons and ultimate credibility
determination were adequately supported by substantial evidence in the
record. We never considered what the ALJ would do if directed to
reassess credibility on remand – we focused on whether the error impacted
the validity of the ALJ’s decision. Likewise, in Stout, after surveying our
precedent applying harmless error on social security cases, we concluded
that “in each case, the ALJ’s error . . . was inconsequential to the ultimate
nondisability determination.”

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Our specific holding in Stout does require the court to consider
whether the ALJ would have made a different decision, but significantly,
in that case the ALJ failed to provide any reasons for rejecting the
evidence at issue. There was simply nothing in the record for the court to
review to determine whether the ALJ’s decision was adequately supported.

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Carmickle, 533 F.3d at 1162-63 (emphasis in original; citations omitted).
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Thus, where the ALJ errs in not providing any reasons supporting a particular determination (i.e.,

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by failing to consider lay witness testimony), the Stout standard applies and the error is harmless

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if no reasonable ALJ could have reached a different conclusion had the error not occurred.

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Otherwise, where the ALJ provides analysis but some part of that analysis is flawed (i.e., some

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but not all of the reasons given for rejecting a claimant’s credibility are either legally insufficient

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or unsupported by the record), the Batson standard applies and any error is harmless if it is

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inconsequential to the ultimate decision because the ALJ’s disability determination nonetheless

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remains valid.

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In this case, the ALJ erred by failing to provide any reasons for rejecting Dr.

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Swanson’s April 2014 opinion. Applying the Stout standard, the court concludes that the error is

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harmless because no reasonable ALJ would have credited Dr. Swanson’s April 2014 opinion

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which was irrelevant to the period of disability at issue in this case which ended in March 2013.
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IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final

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decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

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ORDERED that:

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Plaintiff’s motion for summary judgment (Doc. 14) is denied;

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2.

Defendant’s cross-motion for summary judgment (Doc. 18) is granted; and

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3.

The Clerk of the Court is directed to enter judgment and close this file.

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DATED: September 18, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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