(SS) Gibson v. Commissioner of Social Security

Filing 18

ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/6/2021 DENYING 11 Motion for Summary Judgment. GRANTING 14 Cross Motion for Summary Judgment, and Judgment is ENTERED for the Commissioner. CASE CLOSED (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAY DEE GIBSON,

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No. 2:19-cv-01860 CKD (SS)

Plaintiff,
v.

ORDER

ANDREW SAUL, 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 an application for Supplemental Security Income (“SSI”) under Title

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XVI of the Social Security Act (“Act”). The parties have consented to Magistrate Judge

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jurisdiction to conduct all proceedings in the case, including the entry of final judgment. For the

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reasons discussed below, the court will deny plaintiff’s motion for summary judgment and grant

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the Commissioner’s cross-motion for summary judgment.

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BACKGROUND

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Plaintiff, born in 1965, applied on February 20, 2018 for SSI, alleging disability beginning

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November 21, 2004. Administrative Transcript (“AT”) 15. Plaintiff alleged he was unable to

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work due to carpal tunnel syndrome, tendonitis, elbow and knee problems, high blood pressure,

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diabetes, depression, and anxiety. AT 280. In a decision dated May 9, 2019, the ALJ determined
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that plaintiff was not disabled.1 AT 15-27. The ALJ made the following findings (citations to 20

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C.F.R. omitted):

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1. The claimant has not engaged in substantial gainful activity since
February 20, 2018, the application date.

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2. The claimant has the following severe impairments: left shoulder
osteoarthritis, history of bilateral carpal tunnel syndrome, chronic
pain syndrome, chronic obstructive pulmonary disease, major
depressive disorder, and anxiety disorder.

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3. The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

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4. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to perform

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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 is paid to
disabled persons with low income. 42 U.S.C. § 1382 et seq. Both provisions define disability, 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 parallel five-step sequential evaluation governs eligibility for benefits under both programs.
See 20 C.F.R. §§ 404.1520, 404.1571-76, 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S.
137, 140-142, 107 S. Ct. 2287 (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. Bowen, 482 U.S. at 146 n.5, 107 S. Ct. at 2294 n.5. The Commissioner bears the
burden if the sequential evaluation process proceeds to step five. Id.
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light work, except frequently stoop and balance but occasionally
kneel, crouch, climb stairs and should avoid crawling, climbing
ladders, heights, and moving machinery. The claimant could
occasionally perform overhead reaching, frequently handle and
finger bilaterally. Mentally, the claimant could understand,
remember, and carry out simple instructions, perform simple routine
tasks, and could occasionally tolerate changes in the work setting.

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5. The claimant has no past relevant work.

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6. The claimant was born on XX/XX/1965 and was 52 years old,
which is defined as an individual closely approaching advanced age,
on the date the application was filed.

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7. The claimant has a limited education and is able to communicate
in English.

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8. Transferability of job skills is not an issue in this case because the
claimant does not have past relevant work.

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

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10. The claimant has not been under a disability, as defined in the
Social Security Act, since February 20, 2018, the date the application
was filed.

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AT 17-26.

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ISSUES PRESENTED

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Plaintiff argues that the ALJ committed the following errors in finding plaintiff not

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disabled: (1) The ALJ erroneously assessed the mental health opinion evidence; and (2) the ALJ

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erroneously evaluated plaintiff’s subjective complaints.

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LEGAL STANDARDS

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The court reviews the Commissioner’s decision to determine whether (1) it is based on

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proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record

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as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial

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evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340

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F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable

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mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th

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Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is

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responsible for determining credibility, resolving conflicts in medical testimony, and resolving
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ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citations omitted).

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“The court will uphold the ALJ’s conclusion when the evidence is susceptible to more than one

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rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

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The record as a whole must be considered, Howard v. Heckler, 782 F.2d 1484, 1487 (9th

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Cir. 1986), and both the evidence that supports and the evidence that detracts from the ALJ’s

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conclusion weighed. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not

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affirm the ALJ’s decision simply by isolating a specific quantum of supporting evidence. Id.; see

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

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administrative findings, or if there is conflicting evidence supporting a finding of either disability

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or nondisability, the finding of the ALJ is conclusive, see Sprague v. Bowen, 812 F.2d 1226,

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1229-30 (9th Cir. 1987), and may be set aside only if an improper legal standard was applied in

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weighing the evidence. See Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).

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ANALYSIS

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A. Mental Health Opinions

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The ALJ relied on one of three doctors’ opinions to support the mental RFC: “Mentally,

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the claimant could understand, remember, and carry out simple instructions, perform simple

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routine tasks, and could occasionally tolerate changes in the work setting.” AT 19. Plaintiff

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asserts that the ALJ erred in evaluating these opinions, such that the mental RFC is not supported

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by substantial evidence.

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1. Legal Standard for Applications Filed On or After March 27, 2017

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“The ALJ is responsible for translating and incorporating clinical findings into a succinct

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RFC.” Rounds v. Comm'r Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015). In doing so,

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the ALJ must articulate a “substantive basis” for rejecting a medical opinion or crediting one

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medical opinion over another. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also

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Marsh v. Colvin, 792 F.3d 1170, 1172-73 (9th Cir. 2015) (“an ALJ cannot in its decision totally

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ignore a treating doctor and his or her notes, without even mentioning them”).

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The Ninth Circuit previously has required that, in order to reject an uncontradicted

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opinion of a treating or examining physician, the ALJ must provide “clear and convincing reasons
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that are supported by substantial evidence.” Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir.

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2017); Ghanim v. Colvin, 763 F.3d 1154, 1160-61 (9th Cir. 2014). Alternatively, “[i]f a treating

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or examining doctor's opinion is contradicted by another doctor’s opinion, an ALJ may only

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reject it by providing specific and legitimate reasons that are supported by substantial evidence.”

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Trevizo, 871 F.3d at 675.

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However, for disability applications filed on or after March 27, 2017, the Commissioner

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revised the rules for the evaluation of medical evidence at the administrative level. See Revisions

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to Rules Regarding the Evaluation of Medical Evidence, 82 Fed. Reg 5844-01 (Jan. 18, 2017).

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Because Plaintiff filed his SSI application on February 20, 2018, it is subject to the new rules for

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the evaluation of medical evidence.
The revised rules provide that adjudicators for the Social Security Administration,

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including ALJs, evaluate medical opinions according to the following factors: supportability;

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consistency; relationship with the claimant; specialization; and other factors such as the medical

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source's familiarity with other evidence in the record or with disability program requirements. 20

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C.F.R. § 416.920c(c)(1)-(5). The most important of these factors are supportability and

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consistency. 20 C.F.R. § 416.920c(b)(2). Supportability is the extent to which an opinion or

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finding is supported by relevant objective medical evidence and the medical source's supporting

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explanations. 20 C.F.R. § 416.920c(c)(1). Consistency is the extent to which an opinion or

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finding is consistent with evidence from other medical sources and non-medical sources,

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including the claimants themselves. 20 C.F.R. §§ 416.920c(c)(2), 416.902(j)(1). The ALJ will

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articulate how she considered the most important factors of supportability and consistency, but an

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explanation for the remaining factors is not required except when deciding among differing yet

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equally persuasive opinions or findings on the same issue. 20 C.F.R. § 416.920c(b). When a

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single medical source provides multiple opinions and findings, the ALJ must articulate how they

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were considered in a single analysis. 20 C.F.R. § 416.920c(b)(1).

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2. Analysis

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Here, the ALJ found that, during plaintiff’s alleged period of disability, “the medical

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records . . . showed that his mental condition was well controlled.” AT 22.
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From September 2018 through October 2018, his mental status
examination was within normal limit [sic] with normal mood and
appropriate responses; he was alert and oriented as to person, place,
and time.2 In December 2018, his mental status examination
revealed he was alert and oriented to person, place and time.3

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In January 2019, . . . [his] mental status examination revealed no
agitation, full affect, intact judgment/insight, and some anxiety. 4 In
March 2019, his examination was within normal limits.5 Diagnosis
was unspecified anxiety disorder.6

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AT 22.
The ALJ next summarized the medical opinions on mental health, beginning with

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examining physician Dr. Sunde.

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[In April 2018, p]sychologist Dr. Chester Sunde observed and noted
that the claimant’s concentration was fair and his persistence and
pace was good. His mental status examination was within normal
limits, except for depressed/anxious mood, distracted thoughts,
impaired memory, low average knowledge, and was somewhat
disheveled. Diagnosis was major depression.

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...

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[P]sychological examiner Dr. Chester Sunde in April 2018 opined
that the claimant could understand, remember, and complete simple
instructions and the claimant’s ability to interact appropriately with
supervisors, coworkers, and the public, respond to changes in a
normal workplace setting, and maintain persistence and pace in a
normal workplace setting were moderately limited.

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AT 22-237.
Turning to the state agency doctors’ opinions, the ALJ wrote:

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Dr. D. Malone from the State agency determined [in April 2018] that
the claimant could perform simple instructions, occasionally
complete a normal workday and workweek and respond
appropriately to changes in the work setting.8

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Dr. J. Collado from the State agency affirmed [in August 2018] Dr.

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Citing AT 404, 420, 424.
Citing AT 398, 401.
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Citing AT 386, 420.
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Citing AT 426.
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Citing AT 427.
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Citing AT 368-371 (April 2018 opinion by Dr. Sunde).
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Citing AT 138-140 (April 2018 opinion by Dr. Malone).
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Malone’s medical opinions but added that the claimant had moderate
limitations maintaining appropriate social behavior.9

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AT 23.
Weighing these opinions in light of the medical evidence, the ALJ wrote:

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The undersigned finds the medical opinions from Dr. Malone were
more persuasive and consistent than the opinions from Dr. Sunde and
Dr. Collado. Dr. Malone’s opinions were consistent with the
discussed treatment notes, which showed that the claimant could
perform simple routine tasks and could occasionally tolerate changes
in the work setting. However, the medical opinions from Dr. Sunde
and Dr. Collado were not consistent with the treatment notes and
showed that the claimant would have social interaction problems.

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AT 25.

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Plaintiff points out that, in fact, the non-examining opinions of Dr. Malone and Dr.
Collado are the same. Both doctors described plaintiff as

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an independently functioning adult who indicates that his physical
impairments/conditions are the primary issue. He reports capable of
performing his ADLs [activities of daily living]. He is able to
understand and remember (and carry out) at least simple instructions
of 3 or more steps. He would make errors on detailed instructions
when mentally preoccupied with his conditions.

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AT 139 (Dr. Malone), 156 (Dr. Collado). Both doctors further opined:

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The claimant’s symptoms of mental impairment are not so numerous,
intense, or pervasive as to seriously limit his ability to perform workrelated tasks in a work-setting [sic] that is not fast paced or that
involves frequent changes of tasks or routines.

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AT 139 (Dr. Malone), 157 (Dr. Collado). Based on the record evidence cited by the ALJ and the
full agreement of another doctor, Dr. Malone’s opinion meets the supportability and consistency
requirements of the revised rules.
Next, plaintiff argues that the RFC did not account for opined limitations as to persistence

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and pace in a work setting. Both Dr. Malone and Dr. Collado opined that plaintiff was
moderately limited in the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace without
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Citing AT 156-158 (August 2018 opinion by Dr. Collado).
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an unreasonable number and length of rest periods. AT 139 (Dr. Malone), 157 (Dr. Collado).

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Both physicians elaborated: “The claimant’s symptoms of mental impairment are not so

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numerous, intense, or pervasive as to seriously limit his ability to perform work-related tasks in a

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work-setting that is not fast-paced or that involves frequent changes of tasks or routines.” AT 139

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(Dr. Malone), 157 (Dr. Collado).

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Examining physician Dr. Sunde, whose opinion was discounted, found plaintiff

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moderately impaired in the ability to maintain persistence and pace in a normal workplace setting

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“due to impaired concentration, depressed mood, anergia and anhedonia, [and] negative

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ruminating thoughts.” AT 371. This assessment is not necessarily inconsistent with the other

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two doctors’ opinions; all three found moderate impairment in persistence and pace and the need

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for related limitations.

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The mental RFC provided that plaintiff could “understand, remember, and carry out

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simple instructions, perform simple routine tasks, and could occasionally tolerate changes in work

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setting.” AT 19. In Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008), the Ninth

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Circuit held that an RFC adequately captures restrictions related to concentration, persistence, or

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pace when the assessment is consistent with restrictions identified in the medical testimony. See

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also, e.g., Schmidt v. Colvin, No. 2:12-cv-00016 KJN, 2013 WL 5372845, at *17 (E.D. Cal. Sept.

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25, 2013) (“‘Moderate’ mental limitations are not necessarily inconsistent with an RFC for

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‘simple’ tasks, as long as such assessment is generally consistent with the concrete restrictions

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identified in the medical evidence.”), citing Stubbs-Danielson, 539 F.3d at 1174. Here, the RFC

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limitations to “simple routine tasks” and “occasional” changes in the work setting are generally

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consistent with the persistence and pace restrictions identified in the medical evidence, and

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plaintiff has not shown reversible error on this basis.

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Plaintiff next argues that the mental RFC does not account for plaintiff’s social

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limitations. Both Dr. Malone and Dr. Collado opined that plaintiff was “not significantly limited”

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in the ability to interact appropriately with the general public, or the ability to ask simple

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questions or request assistance. Both found “no evidence of limitation” in the ability to accept

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instruction and respond appropriately to criticism from supervisors, or the ability to get along
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with peers without distracting them or exhibiting behavioral extremes. AT 139-140 (Dr.

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Malone), 157 (Dr. Collado). Both physicians found plaintiff “moderately limited” in the ability to

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maintain socially appropriate behavior, explaining as follows:
The claimant’s appearance may be optimal, and he may be observed
by others to be preoccupied and not socially responsive. However,
there are no indications that he cannot interact with others in a
socially appropriate manner, at least for limited contacts associated
with work setting and related tasks.

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AT 140 (Dr. Malone), 157 (Dr. Collado).

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In his decision, the ALJ noted that Dr. Malone and Dr. Collado

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determined that the claimant had only mild limitations interacting
with others. At the hearing, the claimant did not testify that he had
problems interacting with others. Treatment notes did not show that
he had abnormal or inappropriate behavior during his examinations.

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AT 18. Though the RFC contains no social limitations, plaintiff has not shown reversible error

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on this basis.

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B. Credibility

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Plaintiff argues that the ALJ erred in evaluating his subjective complaints, in which

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plaintiff alleged limitations from bilateral carpal tunnel syndrome, left elbow tendinitis with some

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nerve damage, left shoulder pain, chronic obstructive pulmonary disease, depression and anxiety.

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See AT 23. The ALJ found that plaintiff’s “statements concerning the intensity, persistence, and

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limiting effects of [his] symptoms are not entirely consistent with the medical evidence and other

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evidence in the record for the reasons explained in this decision.” AT 20.

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The ALJ determines whether a disability applicant is credible, and the court defers to the

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ALJ’s discretion if the ALJ used the proper process and provided proper reasons. See, e.g.,

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Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1995). If credibility is critical, the ALJ must make an

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explicit credibility finding. Albalos v. Sullivan, 907 F.2d 871, 873-74 (9th Cir. 1990); Rashad v.

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Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990) (requiring explicit credibility finding to be

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supported by “a specific, cogent reason for the disbelief”).

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In evaluating whether subjective complaints are credible, the ALJ should first consider

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objective medical evidence and then consider other factors. Bunnell v. Sullivan, 947 F.2d 341,

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344 (9th Cir. 1991) (en banc). If there is objective medical evidence of an impairment, the ALJ

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then may consider the nature of the symptoms alleged, including aggravating factors, medication,

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treatment and functional restrictions. See id. at 345-47. The ALJ also may consider: (1) the

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applicant’s reputation for truthfulness, prior inconsistent statements or other inconsistent

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testimony, (2) unexplained or inadequately explained failure to seek treatment or to follow a

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prescribed course of treatment, and (3) the applicant’s daily activities. Smolen v. Chater, 80 F.3d

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1273, 1284 (9th Cir. 1996); see generally SSR 96-7P, 61 FR 34483-01; SSR 95-5P, 60 FR 55406-

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01; SSR 88-13. Work records, physician and third party testimony about nature, severity and

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effect of symptoms, and inconsistencies between testimony and conduct also may be relevant.

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Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir. 1997). A failure to seek

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treatment for an allegedly debilitating medical problem may be a valid consideration by the ALJ

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in determining whether the alleged associated pain is not a significant nonexertional impairment.

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See Flaten v. Secretary of HHS, 44 F.3d 1453, 1464 (9th Cir. 1995). The ALJ may rely, in part,

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on his or her own observations, see Quang Van Han v. Bowen, 882 F.2d 1453, 1458 (9th Cir.

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1989), which cannot substitute for medical diagnosis. Marcia v. Sullivan, 900 F.2d 172, 177 n.6

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(9th Cir. 1990). “Without affirmative evidence showing that the claimant is malingering, the

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Commissioner’s reasons for rejecting the claimant’s testimony must be clear and convincing.”

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Morgan v. Commissioner of Social Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999).

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The ALJ determined that plaintiff’s statements about his physical symptoms were

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“inconsistent with the treatment notes that show his physical condition was well controlled,”

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citing largely normal examinations and mild clinical findings. AT 21-22. Despite plaintiff’s

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alleged knee problems, high blood pressure, and diabetes mellitus, “[t]here [is] no diagnostic

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testing in the record showing that he had any bilateral knee abnormalities,” nor any evidence of

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diabetes mellitus or “out of control” hypertension. AT 24. The ALJ further noted that “no

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ongoing medical evidence in the records from a pain clinic,” nor any evidence of chiropractic

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care, hospitalizations, physical therapy, a treating neurologist, or diagnostic testing showing that
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he “still struggle[s] with bilateral carpal tunnel syndrome and left elbow nerve damage.” AT 24.

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However, the ALJ found that plaintiff’s “allegations are partially supported by his use of

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prescription medications; he had at least three subacrominal injections in his left shoulder and

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there were some findings of left shoulder slight to limited range of motion . . . and mild left

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shoulder atrophy.” AT 23; see AT 21 (noting 2018 injections for left shoulder pain). The ALJ

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also cited objective evidence that plaintiff had decreased sensation and gripping strength in his

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left hand in 2018. AT 24. The resulting physical RFC allowed for occasional reaching, handling,

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and fingering, and limited plaintiff to light work. AT 19.
“The medical records also showed that his mental condition was well controlled,” the ALJ

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stated, citing normal mental status examinations in 2018 and 2019, and plaintiff’s statement that

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“his primary issue dealing with his physical limitations[.]” AT 22. The ALJ noted plaintiff’s

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statement that he could perform the activities of daily living without assistance, and further noted

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“no evidence of treatment in the record from mental health professionals, psychiatric

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hospitalizations, emergency room treatment, crisis center contacts, and no referrals to county

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mental health facilities.” AT 25. “Thus,” the ALJ concluded, “the claimant’s allegations are not

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consistent with the treatment notes.” AT 25.
Plaintiff presents various arguments as to why the ALJ’s credibility analysis was flawed.

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None are persuasive. Because the ALJ used the proper process and provided proper reasons in

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determining credibility, the undersigned defers to the ALJ’s discretion on this issue.

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CONCLUSION

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For the reasons stated herein, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion for summary judgment (ECF No. 11) is denied;

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2. The Commissioner’s cross-motion for summary judgment (ECF No. 14) is granted;

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and
3. Judgment is entered for the Commissioner.
Dated: January 6, 2021

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2/gibson1860ssi.ckd

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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