Johnston v. Commissioner of Social Security

Filing 22

MEMORANDUM AND ORDER signed by Magistrate Judge Edmund F. Brennan on 8/15/18, ORDERING that plaintiff's 19 motion for summary judgment is DENIED. The Commissioner's 20 cross-motion for summary judgment is GRANTED. The Clerk is directed to enter judgment in the Commissioner's favor. CASE CLOSED (Kastilahn, A) Modified on 8/16/2018 (Kastilahn, A).

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

JOHN HARMON JOHNSTON,

12
13
14
15

No. 2:17-cv-331-EFB

Plaintiff,
v.

MEMORANDUM AND ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.

16
17
18

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

19

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

20

Benefits (“DIB”) under Titles II of the Social Security Act. The parties have filed cross-motions

21

for summary judgment. ECF Nos. 19 & 20. For the reasons discussed below, plaintiff’s motion

22

for summary judgment is denied and the Commissioner’s motion is granted.
BACKGROUND

23
24

A.

Procedural History

25

Plaintiff filed an application for a period of disability and DIB on August 6, 2013, alleging

26

that he had been disabled since May 19, 2012. Administrative Record (“AR”) at 185-191. His

27

application was denied initially and upon reconsideration. Id. at 107-110, 112-116. On May 5,

28

2015, a hearing was held before administrative law judge (“ALJ”) Mark C. Ramsey. Id. at 41-80.
1

1

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

2

Id. At this hearing plaintiff amended his alleged onset date to December 27, 2013. Id. at 50.

3

On July 21, 2015, the ALJ issued a decision finding that plaintiff was not disabled under

4

sections 216(i) and 223(d) of the Act.1 Id. at 22-34. The ALJ made the following specific

5

findings:

6

1. The claimant last met the insured status requirements of the Social Security Act on
December 31, 2013.

7

***

8
9

/////

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

1

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.

26

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
2

28

1

2. The claimant did not engage in substantial gainful activity during the period from his
amended alleged onset date of December 27, 2013 through his date last insured of
December 31, 2013 (20 CFR 404.1571 et seq.).

2
3

***

4

3. Through the date last insured, the claimant had the following severe impairments: Low
back injury with bulged discs and stenosis at L4-5 and L5-S1, PTSD, bipolar disorder,
anxiety disorder, and dyslexia (20 CFR 404.1520(c)).

5
6

***

7

4. Through the date last insured, the claimant did not have an impairment or combination of
impairments that met or medically equaled 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).

8
9

***

10
11

5. After careful consideration of the entire record, the undersigned finds that, through the
date last insured, the claimant had the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) except, mentally, he was able to perform simple,
unskilled non-public work with only occasional public contact.

12
13

***

14

6. Through the date last insured, the claimant was unable to perform any past relevant work
(20 CFR 404.1565).

15
16

***

17

7. The claimant was born on [in] 1964 and was 49 years old, which is defined as a younger
individual age 18-49, on the date last insured (20 CFR 404.1563).

18
19

8. The claimant has at least a high school education and is able to communicate in English
(20 CFR 404.1564).

20
21

9. Transferability of job skills is not material to the determination of disability because using
the Medical-Vocational Rules as a framework supports a finding that the claimant is “not
disabled,” whether or not the claimant has transferable job skills (See SSR 82-41 and 20
CFR Part 404, Subpart P, Appendix 2).

22
23

10. Through the date last insured, considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant number in the
national economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).

24
25
26
27

***
/////

28
3

1
2
3
4
5

11. The claimant was not under a disability, as defined in the Social Security Act, at any time
from December 27, 2013, the amended alleged onset date, through December 31, 2013 the
date last insured (20 CFR 404.1520(g)).
Id. at 24-34.
Plaintiff’s request for Appeals Council review was denied on December 13, 2016, leaving
the ALJ’s decision as the final decision of the Commissioner. Id. at 1-7.

6

B.

7

From 2012 to 2014, plaintiff received mental health treatment from Drs. Russell Cottrell

8

and James Chard. E.g., id. at 341-42. He also received home visits from licensed social worker

9

Bobby Walden. Id. at 346. Throughout 2013, plaintiff presented with various mental health

10

issues. He reported being depressed in April 2013 after a concert he organized resulted in a

11

financial loss. Id. at 426. In July 2013, he related a plan – which Dr. Chard viewed as unrealistic

12

– to move to Hawaii and forage in the jungle if “things did not pan out.” Id. at 406-07. In August

13

2013, plaintiff told Dr. Chard that he might have been sexually assaulted while he was in the

14

Navy, but he was unsure whether these memories were real or not. Id. at 373.

15

Plaintiff’s Relevant Medical History

On December 27, 2013 – the amended onset date – plaintiff reported having vivid

16

thoughts of harming himself and others. Id. at 341-42. He was not on any psychotropic

17

medication at this time. Id. at 341. Dr. Cottrell advised plaintiff to voluntarily hospitalize

18

himself and plaintiff initially agreed. Id. at 342. A subsequent medical entry indicates, however,

19

that plaintiff merely went to the hospital waiting room for approximately ten minutes before

20

having his girlfriend take him home. Id. at 339.

21

State agency medical consultants reviewed plaintiff’s records in December of 2013 and

22

May of 2014. Dr. L. Colsky conducted the December review and found that treatment notes

23

indicated that: (1) plaintiff was “doing well;” (2) he “want[ed] SSI because it would be more

24

income for him;” (3) a few months earlier he was managing bands in his own business; and (4)

25

plaintiff was capable of at least simple, routine tasks when compliant with medication. Id. at 88-

26

90. Dr. Hillary Weiss conducted the May 2014 review by examining evidence prior to the date

27

last insured. Id. at 99-100. Weiss noted that: (1) plaintiff’s condition vacillated between

28
4

1

November and December of 2013; (2) he was smoking “copious amounts of cannabis” during the

2

period which lead up to his December 2013 episode when he considered voluntary

3

hospitalization; and (3) that plaintiff’s conditions were severe, but under good control when he

4

was compliant with his medications. Id. at 100.

5

LEGAL STANDARDS

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

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

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

ANALYSIS

23

Plaintiff argues that the ALJ erred by: (1) relying primarily on plaintiff’s work activities

24

that preceded the alleged onset date in order to find him not fully credible and (2) failing to

25

provide adequate reasons for discrediting the opinions of his treating physicians.

26

/////

27

/////

28

/////
5

1

A.

2

It was not error for the ALJ to consider medical evidence predating the alleged onset date.

Activities Preceding the Alleged Onset Date and Credibility Determination

3

In Carmickle v. Comm’r of Soc. Sec. Admin., the Ninth Circuit stated that “[m]edical opinions

4

that predate the alleged onset of disability of limited relevance.” 553 F.3d 1155, 1165 (9th Cir.

5

2008). Carmickle also recognized, however, that this principle was most applicable “where

6

disability is allegedly caused by a discrete event.” Id. In a subsequent, unpublished opinion, the

7

circuit emphasized that Carmickle did not relieve the ALJ of his duty to consider all medical

8

evidence. See Williams v. Astrue, 493 F. App’x 866, 868-69 (9th Cir. 2012) (finding the ALJ

9

erred in ignoring medical opinions from up to six years prior to the plaintiff’s alleged onset date);

10

see also Hubble v. Astrue, 467 F. App’x 675, 677 (9th Cir. 2012) (finding that it was permissible

11

for ALJ to conclude that a claimant’s “ability to work with similar impairments in the past

12

undermines [the claimant’s] inability to work now.”).

13

In his motion, plaintiff characterizes December 27, 2013 – the amended onset date – as an

14

inflection point at which his “impairments and limitations . . . worsened significantly” and his

15

psychiatrist recommended that plaintiff voluntarily hospitalize himself. ECF No. 19 at 16. Yet

16

plaintiff’s medical records make clear that he had continuously struggled, sometimes severely,

17

with the same mental health issues that led him to consider hospitalization on December 27, 2013.

18

On that day, plaintiff told Dr. Cottrell that he was hearing voices which urged him to attack

19

others. AR at 341. Plaintiff had presented with similar symptoms in the months and years

20

preceding his alleged onset date. See id. at 373 (treatment notes from 8/22/2013 indicating that

21

plaintiff “reports daily” suicidal ideation); id. at 445 (treatment notes from 12/21/2012 in which

22

plaintiff referred to an alternate personality within himself known as “Al” which “loved” the mass

23

shooting at Sandy Hook); id. at 447-48 (treatment notes from 12/18/2012 indicating that “[i]n

24

recent sessions” plaintiff had been “continuously communicating the potential he has for violence

25

and also threatening future violence if he does not get satisfaction from the benefit claim

26

process.”); id. at 450 (treatment notes from 12/13/2012 stating that alter-ego “Al” is described as

27

a gorilla and that it “likes to kill people.”). While plaintiff makes much of his December 2013

28

“hospitalization,” he was never actually admitted to the hospital. His medical records indicate
6

1

that “[a]fter agreeing to go to the hospital [plaintiff] sat in the waiting room for about 10 minutes

2

then his girlfriend had to go pick up her kids so she took him home.” Id. at 339. The court

3

concludes that plaintiff’s case is not one where his alleged disability was caused by a single,

4

discrete event and the ALJ did not err in considering medical evidence that predated the amended

5

onset date.

6

Having so concluded, the court also finds that the ALJ’s credibility findings should be

7

upheld. The hearing decision notes that plaintiff had stopped taking his psychotropic medications

8

months before the alleged onset date. Id. at 30. The treatment records specifically state that

9

plaintiff had self-discontinued his psychotropic prescription and had, instead, taken to smoking

10

marijuana “every 20 to 40 minutes in order to maintain the effect.” Id. at 340. And both

11

treatment records and the opinion of state agency consultant Weiss indicate that plaintiff’s

12

symptoms were fairly controlled when he was compliant with his medication. Id. at 99, 301-302

13

(treatment notes from 3/5/2014 indicating that “anger is lees (sic) on quetiapine; no longer

14

hallucinating . . . .”). The law is clear that an ALJ may consider such evidence in weighing

15

credibility. See 20 C.F.R. § 416.929(c)(3) (treatments or other methods used to alleviate

16

symptoms is “an important indicator of the intensity and persistence of your symptoms”);

17

Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (ALJ appropriately considers an

18

unexplained or inadequately explained failure to follow a prescribed course of treatment); see

19

also SSR 96-7p, 1996 SSR LEXIS 4 (“the individual’s statements may be less credible if the

20

level or frequency of treatment is inconsistent with the level of complaints, or if the medical

21

reports or records show that the individual is not following the treatment as prescribed and there

22

are no good reasons for this failure.”)2

23

The ALJ also relied on plaintiff’s ability to manage bands during March and April of 2013

24

in assessing the severity of his symptoms. AR at 30. Plaintiff argues that this was error because

25

these activities preceded his alleged onset date. ECF No. 19 at 16. As noted above, the ALJ

26
27
28

2

“SSRs reflect the official interpretation of the [SSA] and are entitled to ‘some deference’
as long as they are consistent with the Social Security Act and regulations.” Bray v. Comm’r of
Soc. Sec. Admin., 554 F.3d 1219, 1224 (9th Cir. 2009).
7

1

properly considered evidence which predated December 27, 2013. Plaintiff also argues that this

2

evidence actually cuts in his favor insofar as he stopped managing bands because doing so caused

3

“too much anxiety for [his] situation.” Id. The Ninth Circuit has held, however, that “[e]ven

4

where . . . [daily] activities suggest some difficulty functioning, they may be grounds for

5

discrediting the claimant's testimony to the extent that they contradict claims of a totally

6

debilitating impairment.” See Molina v. Astrue, 674 F.3d 1104, 1113 (9th Cir. 2012). It may be

7

that plaintiff’s band management enterprise caused him substantial anxiety, perhaps too much

8

anxiety to continue in that specific undertaking. Nevertheless, the ALJ could reasonably interpret

9

plaintiff’s participation in that activity – at a time when he undisputedly suffered from mental

10

health issues - as evidence that he did not suffer from a totally debilitating impairment.3 In

11

reaching this determination the court notes that there is no requirement that the ALJ’s

12

interpretation of the evidence be the only reasonable one. See Batson v. Comm'r Soc. Sec.

13

Admin., 359 F.3d 1190, 1193 (9th Cir. 2004) (“When the evidence before the ALJ is subject to

14

more than one rational interpretation, we must defer to the ALJ's conclusion.”); Magallanes v.

15

Bowen, 881 F.2d 747, 750 (9th Cir. 1989) (“We must uphold the ALJ’s decision where the

16

evidence is susceptible to more than one rational interpretation.”).

17

Some of the ALJ’s other rationales for discounting plaintiff’s credibility are less

18

convincing. For instance, it agrees with plaintiff that his plans for moving to Hawaii – plans his

19

provider deemed unrealistic – are of minimal value in determining his credibility. So too the

20

ALJ’s emphasis on plaintiff visiting the gym four times a week. Unlike his work managing

21

bands, these activities do not obviously or necessarily speak to the intensity or limiting effects of

22
3

23

A case note from plaintiff’s social worker, dated March 15, 2013, states that plaintiff:
Stays active with his business and is making future plans. Is now
managing 4 local bands and showed this SW his business cards and
event flyers his media production business is managing. Veteran was
upbeat talking about his upcoming venues. Appears to be active
socially on the weekends as he described going to all the events he
helps to coordinate as well as other (sic) in hopes the local bands will
sign with him. He described staying out almost the entire night this
coming Friday so that he could see several bands play.

24
25
26
27
28

AR at 432-33.
8

1

his mental health symptoms. Nevertheless, consideration of these factors was net error and was

2

ultimately harmless in any event in light of the stronger evidence detailed supra. See, e.g.,

3

Carmickle, 533 F.3d at 1162-63 (ALJ’s reliance on two unsupported reasons was harmless error

4

where the adverse credibility determination was otherwise supported by legally sufficient

5

reasons).

6

B.

7

The ALJ accorded minimal evidentiary weight to the assessments of plaintiff’s mental

Evaluation of Medical Opinions

8

functioning provided by Drs. Cottrell and Chard. AR at 31. He noted that the assessments –

9

provided on September 10, 2014 and September 23, 2014 respectively – were completed

10

approximately nine months after plaintiff’s date last insured. Id. The ALJ also emphasized that

11

neither Cottrell nor Chard addressed plaintiff’s ability to manage four bands. Id. In the same

12

vein, the ALJ stated that the physicians’ own treatment records did “not support such extreme

13

assessments.” Id. By contrast, the ALJ accorded substantial evidentiary weight to the opinions

14

of State agency consultants Colsky and Weiss. Id.

15

Where an ALJ discounts a treating physician’s opinion in favor of an examining or

16

consulting physician, he is required to provide “specific and legitimate” reasons for doing so.4

17

See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009). The ALJ met this

18

standard here. First, it is permissible for the ALJ to give less weight to retrospective opinions.

19

Plaintiff argues that the Ninth Circuit has held otherwise, but the relevant case law establishes

20

only that retrospective opinions should not be disregarded solely because they are retrospective.

21

Smith v. Bowen, 849 F.2d 1222, 1225 (9th Cir. 1988). It is still permissible for an ALJ to assign

22

them less weight on this basis. See Johnson v. Shalala, 60 F.3d 1428, 1432-33 (9th Cir. 1995).

23

Second, the ALJ persuasively emphasized the inconsistency between plaintiff’s band

24

management activities and the limitations articulated by his treating physicians. See, e.g.,

25

Morgan v. Comm’r of Soc. Sec. Admin, 169 F.3d 595, 601-02 (9th Cir. 1999) (holding that

26

inconsistency with daily activities is a specific and legitimate reason to discount treating-source

27
28

4

In his motion, plaintiff mistakenly asserts that the ALJ was required to provide “clear
and convincing” reasons for rejecting his treating physicians’ opinions. ECF No. 19 at 18-19.
9

1

opinion). It is, for instance, difficult to conceive of how an individual whom both treating

2

physicians described as having “poor/none” ability to deal with the public (AR at 565, 567) could,

3

as plaintiff’s social worker related (see supra, n.3), be socially active on weekends and undertake

4

to convince bands that he was the best choice to represent them. It is similarly difficult to

5

envision such a person successfully organizing a benefit concert, as plaintiff undisputedly did.

6

AR at 426, 440.5 Finally, the Ninth Circuit has “consistently upheld the Commissioner’s

7

rejection of the opinion of a treating or examining physician, based in part on the testimony of a

8

nontreating, nonexamining medical advisor.” Morgan, 169 F.3d at 602 (emphasis in original).

9

Based on the foregoing and taking these justifications together, the court finds that the

10

ALJ offered specific and legitimate reasons for discounting the opinions of Drs. Cottrell and

11

Chard.

12

CONCLUSION

13

Accordingly, it is hereby ORDERED that:

14

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

15

2. The Commissioner’s cross-motion for summary judgment (ECF No. 20) is

16
17
18

GRANTED; and
3. The Clerk is directed to enter judgment in the Commissioner’s favor.
DATED: August 15, 2018.

19
20
21
22
23
24
25
26
27
28

5

Plaintiff does argue that the ALJ failed to offer record support for his statement that the
treating physicians’ “own records do not support such extreme assessments.” ECF No. 19 at 19.
The court interprets this statement as referring to the discrepancy between plaintiff’s band
representation business – a subject which came up several times in his psychiatric treatment
records – and the September 2014 mental functioning assessments. The ALJ had referenced and
cited sources for plaintiff’s band management earlier in the decision (AR at 30) and there was no
requirement that he restate those citations in his rejection of the treating physicians’ opinions.
See Batson, 359 F.3d at 1193 (“[T]he Commissioner's findings are upheld if supported by
inferences reasonably drawn from the record . . . “).
10