Barnes v. Commissioner of Social Security

Filing 21

MEMORANDUM OPINION and ORDER signed by Magistrate Judge Dennis M. Cota on 11/7/2018 DENYING Plaintiff's 13 Motion for Summary Judgment; GRANTING Defendant's 16 Motion for Summary Judgment; AFFIRMING the Commissioner's final decision; and DIRECTING the Clerk to enter judgment and close this file. CASE CLOSED (Becknal, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARAH M. BARNES,
Plaintiff,

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No. 2:17-CV-0458-DMC

v.

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 for judicial

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

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Pursuant to the written consent of all parties (Docs. 7 and 8), this case is before the undersigned

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

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Pending before the court are the parties’ cross-motions for summary judgment (Docs. 13 and 16).

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For the reasons discussed below, Plaintiff’s motion for summary judgement is denied and the

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Commissioner’s cross motion for summary judgment is granted.

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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 support

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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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I. THE DISABILITY EVALUATION PROCESS

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To achieve uniformity of decisions, the Commissioner employs a five-step

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sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R.

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§§ 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows:

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Step 1

Determination whether the claimant is engaged in
substantial gainful activity; if so, the claimant is presumed
not disabled and the claim is denied;

Step 2

If the claimant is not engaged in substantial gainful activity,
determination whether the claimant has a severe
impairment; if not, the claimant is presumed not disabled
and the claim is denied;

Step 3

If the claimant has one or more severe impairments,
determination whether any such severe impairment meets
or medically equals an impairment listed in the regulations;
if the claimant has such an impairment, the claimant is
presumed disabled and the claim is granted;

Step 4

If the claimant’s impairment is not listed in the regulations,
determination whether the impairment prevents the
claimant from performing past work in light of the

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claimant’s residual functional capacity; if not, the claimant
is presumed not disabled and the claim is denied;

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Step 5
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If the impairment prevents the claimant from performing
past work, determination whether, in light of the claimant’s
residual functional capacity, the claimant can engage in
other types of substantial gainful work that exist in the
national economy; if so, the claimant is not disabled and
the claim is denied.

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See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f).

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To qualify for benefits, the claimant must establish the inability to engage in

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

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has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42

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U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental

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impairment of such severity the claimant is unable to engage in previous work and cannot,

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considering the claimant’s age, education, and work experience, engage in any other kind of

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substantial gainful work which exists in the national economy. See Quang Van Han v. Bower,

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882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence

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of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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The claimant establishes a prima facie case by showing that a physical or mental

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impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753

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F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant

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establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant

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can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d

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1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock

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v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989).

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In cases such as the current case where there has been a prior application for

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benefits, an unappealed denial of an application for disability benefits operates as res judicata as

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to the finding of non-disability. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988);

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Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988). The prior determination of non-disability

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also creates a presumption of continuing non-disability. See Lester v. Chater, 81 F.3d 821, 827

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(9th Cir. 1995). The presumption does not apply, however, if there are changed circumstances.
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See Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). Thus, the presumption of continuing

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non-disability may be overcome by a showing of new facts establishing a previously unlitigated

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impairment. See Lester, 81 F.3d at 827-28; see also Gregory, 844 F.2d at 666. The attainment of

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advanced age after the prior decision also constitutes a changed circumstance overcoming the

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presumption of continuing non-disability. See Chavez, 844 F.2d at 693.

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II. THE COMMISSIONER’S FINDINGS
Plaintiff applied for social security benefits on March 22, 2011. See CAR 18.1 In

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the application, plaintiff claims that disability began on January 21, 2011. See id. Plaintiff’s

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claim was initially denied. Following denial of reconsideration, plaintiff requested an

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administrative hearing, which was held on September 27, 2012, before Administrative Law Judge

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(ALJ) Carol A. Eckersen. In a December 7, 2012, decision, the ALJ concluded that plaintiff is

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not disabled. Noting plaintiff had filed a previous application for benefits that was denied, the

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ALJ concluded:

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After having considered all of the evidence and testimony of record, the
undersigned finds that in this case, the claimant has not rebutted the
presumption of continuing non-disability because the record fails to
establish that there has [sic] been any changed circumstances. Thus, it is
concluded that the claimant continues to be not disabled. . . .

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CAR 19.

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Plaintiff sought judicial review of this determination. See Barnes v. Commissioner of Social

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Security, E. Dist. Cal. Case No. 2:14-CV-1071-CKD. The parties stipulated to a remand under 42

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U.S.C. § 405(g). See id., Doc. 23. Specifically, the parties agreed that the matter would be

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remanded with instructions to the ALJ as follows:

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Further develop the record to reconcile the discrepancy between
the ALJ findings and the record that appears to rebut the
presumption of continuing non-disability;

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Make findings consistent with the sequential evaluation process, if
warranted; and

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Otherwise develop the record as needed.

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See id.

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Citations are the to the Certified Administrative Record (CAR) lodged on July 17,
2017 (Doc. 11).
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Pursuant to the parties’ stipulated remand, the Appeals Council directed the ALJ to give further

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consideration to plaintiff’s maximum residual functional capacity and, if warranted, obtain

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supplemental vocational expert testimony to “clarify the effect of the assessed limitations on the

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claimant’s occupational base. . . .” CAR 753.

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The matter was assigned to ALJ L. Kalei Fong, who held a hearing on May 6,

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2016. See id. While plaintiff requested another supplemental hearing, the ALJ denied the request

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because “. . .there is sufficient evidence to render a decision in this case, and because the claimant

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was afforded the opportunity to testify at the [May 6, 2016] hearing.” Id. In an August 4, 2016,

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decision, the ALJ concluded plaintiff had rebutted the presumption of continuing non-disability

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arising from denial of the prior application. The ALJ stated:
Because the claimant has alleged a new impairment (a bipolar disorder),
the undersigned gives the claimant the benefit of the doubt, and finds that
she has successfully rebutted the Chavez presumption. Nonetheless, as
discussed in detail below, the undersigned finds that the claimant has
ultimately failed to meet her burden of proof in establishing disability in
this case.
CAR 754.
The ALJ concluded plaintiff is not disabled based on the following relevant findings:
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The claimant has the following severe impairment(s):
fibromyalgia, bipolar disorder, depression, and anxiety;

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The claimant does not have an impairment or combination of
impairments that meets or medically equals an impairment listed in
the regulations;

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The claimant has the following residual functional capacity: light
work; mentally, the claimant can understand, remember, and carry
out simple work instructions, can maintain concentration,
persistence, and pace for 2-hour blocks of time with customary
breaks, can interact with supervisors, co-workers, and the public,
and can adapt to routine workplace stressors;

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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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See id. at 756-66.
After the Appeals Council declined further review on December 29, 2016, this appeal followed.
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III. DISCUSSION

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In her motion for summary judgment, plaintiff argues the ALJ: (1) failed to

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articulate specific and legitimate reasons for rejecting the opinions of the consultative examining

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psychologist, Dr. Sunde; and (2) made inconsistent findings with respect to her mental

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impairments.

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A.

Evaluation of the Medical Opinions

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The ALJ engaged in a residual functional capacity (RFC) analysis and concluded:

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[A]fter careful review of the entire record. . . the claimant has the residual
functional capacity to perform light work. . .with an ability to lift and/or
carry 20 pounds occasionally and 10 pounds frequently; stand and/or walk
for 6 hours with breaks in an 8-hour workday; sit for 6 hours with breaks
in an 8-hour workday; is unlimited pushing and pulling; has no postural
limitations; has no manipulative limitations; has no visual, audio or
environmental limitations; can understand, remember and carry out simple
work instructions; can maintain concentration, persistence and pace for 2
hour blocks of time with customary breaks; can interact with supervisors,
coworkers and the public; and can adapt to routine work place stressors.

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CAR 759.

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It is in this analysis that the ALJ discounts the examining psychologist, Dr. Sunde, giving only

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“some weight” to his opinion. CAR 764. Plaintiff claims this was in error. Specifically, Plaintiff

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argues the ALJ failed to provide specific and legitimate reasons for rejecting Dr. Sunde’s opinion.

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The weight given to medical opinions depends in part on whether they are

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proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d

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821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating

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professional, who has a greater opportunity to know and observe the patient as an individual, than

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the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th

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Cir. 1996). The least weight is given to the opinion of a non-examining professional. See Pitzer

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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 in

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the record; and (2) clinical findings that 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).

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A contradicted opinion of a treating or examining professional may be rejected

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only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 81 F.3d

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

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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); see

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also Magallanes, 881 F.2d at 751.

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

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giving only “some weight” to Dr. Sunde’s opinion. This Court disagrees with Plaintiff’s

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contention. The ALJ reviewed Dr. Sunde’s clinical observations, diagnosis, and ultimate

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opinions regarding Plaintiffs functional capabilities. CAR 764. In fact, almost every finding

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discussed in section A of Plaintiff’s brief is also discussed in the disputed section of the ALJ’s

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decision. Compare CAR 764 with Doc. 13 at 10-11. The ALJ stated,

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[I]n February 2016, the claimant underwent a psychiatric
consultative evaluation at the request of the Social Security
Administration. Dr. Sunde observed that the claimant’s
concentration was fair, her persistence was good and her pace was
fair. The claimant displayed some psychomotor agitation
throughout the interview, she was hypervigilant but cooperative,
appeared to be reliant information provider, had distracted thoughts
and very circumstantial speech, and was preoccupied with her
anxiety in the interview. The claimant’s mood was mostly anxious,
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somewhat depressed, she was oriented to person, place, time and
situation, and she had slow calculations. Her judgment and insight
appeared grossly intact. Dr. Sunde diagnosed a bipolar disorder
and a generalized anxiety disorder. Dr. Sunde opined that the
claimant has no impairment in the ability to understand, remember
and complete simple commands, mild impairment in the ability to
understand and remember complex commands, moderate
impairment in the ability to interact appropriately with supervisors,
coworkers and the public, moderate impatient in the ability to
respond to change in a normal workplace setting, and marked
impairment in the ability to maintain persistence and pace in a
normal workplace setting. The undersigned only gives some
weight to the opinion of Dr. Sunde, and does not find a marked
impairment in the ability to maintain persistence and pace in a
normal workplace setting or a moderate impairment in the ability to
interact appropriately with supervisors, coworkers and the public,
or in the ability to respond to change in a normal workplace setting
because these findings are not supported by Dr. Sundes’s own mild
observations of the claimant, and because of the dearth of objective
findings documenting the severity of the claimant’s mental
impairments.

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CAR 764.

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As demonstrated above, the ALJ reviewed and summarized Dr. Sunde’s finding, compared it to

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the evidence in the record and the observations made by Dr. Sunde. The ALJ then found, based

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on this evidence, that Plaintiff has “no marked impairment in the ability to maintain persistence

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and pace in a normal workplace setting, or moderate impairment in the ability to interact

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appropriately with supervisors, coworkers and the public or in the ability to respond to change in

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a normal workplace setting.” CAR 764. This court agrees with Plaintiff that the ALJ could have

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been more precise in stating the interpretation of the medical evidence, more clearly analyzing

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why the stated evidence supported the ALJ’s finding over Dr. Sunde’s opinion. However, the

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ALJ’s analysis is not so lacking as to violate the specific and legitimate standard articulated in

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Lester. See Lester, 81 F.3d at 830.

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CAR 756-58, stated her interpretation of the evidence, see CAR 758-64, and made findings based

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on that interpretation, see CAR 759-64, it cannot be said that she acted in error. See Magallanes

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v. Bowen, 881 F.2d at 751-55 (holding a contradicted medical opinion of an examining physician

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may be rejected if the Commissioner sets out a detailed and thorough summary of the facts and

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conflicting clinical evidence, states her interpretation of the evidence, and makes a finding).

Because the ALJ set out a detailed summary of the facts, see

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Thus, the ALJ did not commit legal error by rejecting portions of Dr. Sunde’s

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opinion in this case.
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Findings Regarding Plaintiff’s Mental Impairments

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At Step 2 the ALJ found Plaintiff suffers from severe impairments, meaning

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Plaintiff suffers from impairments that significantly limit her ability to perform basic work

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activities. This finding allowed the ALJ to move to Step 3 to determine the degree of functional

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limitation caused by the severe impairment. At Step 3 the ALJ assessed mild restrictions in

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Plaintiff’s activities of daily living, moderate difficulties in social functioning, moderate

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difficulties in concentration, persistence and pace, and no episodes of decompression. CAR 758-

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59. Plaintiff challenges this finding.
In determining residual functional capacity, the ALJ must assess what the plaintiff

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can still do in light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a),

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416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual

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functional capacity reflects current “physical and mental capabilities”). Where there is a

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colorable claim of mental impairment, the regulations require the ALJ to follow a specific

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procedure. See 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The ALJ is required to record pertinent

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findings and rate the degree of functional loss. See 20 C.F.R. §§ 404.1520a(b), 416.920a(b).

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Plaintiff contends that the finding of severe at Step 2 and the finding of mild and

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moderate at Step 3 are internally inconsistent. This Court disagrees. Plaintiff’s argument seems

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to misunderstand the Step process, taking certain findings from Step 2 and improperly

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superimposing them onto findings at Step 3. A finding of severe at Step 2 is not inconsistent with

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findings of mild or moderate at Step 3. Rather, a finding of severity at Step 2 is necessary for the

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ALJ to make any further findings at Step 3, including findings of mild or moderate. As the

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Defense properly states, impairments are judged as severe or non-severe at Step 2—i.e. whether

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the impairment significantly limits the ability of a claimant to perform basic work activity,

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function, on the other hand, is assessed as mild, moderate, marked, or extreme at Step 3.

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This Court’s review of the record indicates that the ALJ made a proper
determination at Step 2 that Plaintiff has the severe impairments of fibromyalgia, bipolar disorder,
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depression, and anxiety. CAR 756. The ALJ then properly moved to Step 3, reviewed all

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medical and testimonial evidence, and determined that Plaintiff’s impairments did not meet or

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equal any of the impairments in the listings, and concluded that Plaintiff had mild restrictions in

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daily living, moderate restrictions in social functioning, moderate difficulties with concentration,

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persistence and pace and no episodes of decompensation. CAR 758-59. Before moving to Step

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4 the ALJ properly determined that Plaintiff has a RFC to perform light work, with sit/stand

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breaks, and a limitation to simple work instructions. CAR 759. In making this determination the

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ALJ provided a thorough review of the medical evidence, made particularized findings based on

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such evidence, and provided her assessment thereafter. See CAR756-64. For that reason, the

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ALJ’s assessment of Plaintiff is not internally inconsistent, rather it properly follows the

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mandatory five-step analysis, finding severe impairments at Step 2, moving to Step 3, finding

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Plaintiff’s impairments do not to meet the listings and then determining Plaintiff’s RFC. After

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reviewing the record, this Court finds the ALJ’s conclusions are supported by substantial

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evidence and thus the ALJ did not err in assessing Plaintiff’s impairments.

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IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final decision

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

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ORDERED that:

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1.

Plaintiff’s motion for summary judgment (Doc. 13) is denied;

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2.

Defendant’s motion for summary judgment (Doc. 16) is granted;

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3.

The Commissioner’s final decision is affirmed; and

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4.

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

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Dated: November 7, 2018
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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