Lester v. Colvin

Filing 24

ORDER by Judge Nandor J. Vadas denying 21 Motion for Summary Judgment.(njvlc2, COURT STAFF) (Filed on 3/15/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISION

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ROBERT FRANCIS LESTER,

Case No. 15-cv-00738-NJV

Plaintiff,
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v.

ORDER ON MOTIONS FOR
SUMMARY JUDGMENT

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CAROLYN W. COLVIN,

Re: Dkt. Nos. 21 & 22

United States District Court
Northern District of California

Defendant.
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INTRODUCTION

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Plaintiff, Robert Francis Lester, seeks judicial review of an administrative law judge

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(“ALJ”) decision denying his application for disability benefits under Titles II and XVI of the

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Social Security Act. Plaintiff‟s request for review of the ALJ‟s unfavorable decision was denied

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by the Appeals Council. The decision thus is the “final decision” of the Commissioner of Social

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Security, which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have

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consented to the jurisdiction of a magistrate judge. (Docs. 6 & 7). For the reasons stated below,

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the court will deny Plaintiff‟s motion for summary judgment and grant Defendant‟s Cross-Motion

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for Summary Judgment.

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LEGAL STANDARDS
The Commissioner‟s findings “as to any fact, if supported by substantial evidence, shall be

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conclusive.” 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set

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aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal

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error. Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial

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evidence is “more than a mere scintilla but less than a preponderance; it is such relevant evidence

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as a reasonable mind might accept as adequate to support a conclusion.” Sandgathe v. Chater, 108

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F.3d 978, 979 (9th Cir. 1997). “In determining whether the Commissioner‟s findings are

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supported by substantial evidence,” a district court must review the administrative record as a

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whole, considering “both the evidence that supports and the evidence that detracts from the

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Commissioner‟s conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The

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Commissioner‟s conclusion is upheld where evidence is susceptible to more than one rational

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interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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THE FIVE STEP SEQUENTIAL ANALYSIS FOR DETERMINING DISABILITY
A person filing a claim for social security disability benefits (“the claimant”) must show
that she has the “inability to do any substantial gainful activity by reason of any medically

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Northern District of California

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determinable physical or mental impairment” which has lasted or is expected to last for twelve or

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more months. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the

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claimant‟s case record to determine disability (Id. § 416.920(a)(3)), and must use a five-step

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sequential evaluation to determine whether the claimant is disabled (Id. § 416.920). “[T]he ALJ

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has a special duty to fully and fairly develop the record and to assure that the claimant‟s interests

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are considered.” Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983).

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Here, the ALJ evaluated Plaintiff‟s application for benefits under the required five-step
sequential evaluation. AR. 17-29.
At Step One, the claimant bears the burden of showing he has not been engaged in

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“substantial gainful activity” since the alleged date the claimant became disabled. 20 C.F.R. §

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416.920(b). If the claimant has worked and the work is found to be substantial gainful activity,

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the claimant will be found not disabled. Id. The ALJ found that Plaintiff had not engaged in

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substantial gainful activity since his alleged onset date. AR. 19.

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At Step Two, the claimant bears the burden of showing that he has a medically severe

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impairment or combination of impairments. 20 C.F.R. § 416.920(a)(4)(ii), (c). “An impairment is

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not severe if it is merely „a slight abnormality (or combination of slight abnormalities) that has no

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more than a minimal effect on the ability to do basic work activities.‟” Webb v. Barnhart, 433

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F.3d 683, 686 (9th Cir. 2005) (quoting S.S.R. No. 96–3(p) (1996)). The ALJ found that Plaintiff
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suffered the following severe impairments: schizophrenia and mood disorder. AR. 19.
At Step Three, the ALJ compares the claimant‟s impairments to the impairments listed in

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appendix 1 to subpart P of part 404. See 20 C.F.R. § 416.920(a)(4)(iii), (d). The claimant bears

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the burden of showing her impairments meet or equal an impairment in the listing. Id. If the

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claimant is successful, a disability is presumed and benefits are awarded. Id. If the claimant is

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unsuccessful, the ALJ assesses the claimant‟s residual functional capacity (“RFC”) and proceeds

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to Step Four. Id. § 416.920(a)(4)(iv), (e). Here, the ALJ found that Plaintiff did not have an

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impairment or combination of impairments that met or medically equaled one of the listed

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impairments. AR. 20. Next, the ALJ determined that Plaintiff retained the RFC “to perform

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simple repetitive tasks equating to unskilled work.” AR. 22.
At Step Four, and pursuant 20 C.F.R. 416.965, the ALJ determined that Plaintiff could
perform his past relevant work as a busser. AR. 27-18.
Despite that determination, the ALJ continued to Step Five as an alternative ruling and

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found that considering Plaintiff‟s age, education, work experience, and RFC, and after consulting

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the Medical-Vocational Guidelines, that “there are jobs that exist in significant numbers in the

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national economy” that Plaintiff can perform. AR. 28. Accordingly, the ALJ determined that

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Plaintiff had “not been under a disability, as defined in the Social Security Act” at any time from

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the alleged onset date through the date of the decision. Id.

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SUMMARY OF RELEVANT MEDICAL EVIDECNE

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On June 5, 2012, Plaintiff presented for an initial psychiatric evaluation. AR. 285.

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Plaintiff appeared to have delusions regarding connections between himself and items in the

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media, such as the MSNBC logo. Id. He also believed that he had connections with celebrities

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like Arnold Schwarzenegger and George W. Bush. Id. He had no prior psychiatric treatment

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other than for AHDH as a child. AR. 286. Plaintiff informed David Villasenor, M.D., that he

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experienced auditory hallucinations. AR. 287. Dr. Villasenor diagnosed Plaintiff with

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schizophrenia and prescribed Risperdal. AR. 288.

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On June 22, 2012, Plaintiff presented to Dr. Villasenor for medication management. AR.
339. Dr. Villasenor noted that Plaintiff suffered no hallucinations but had some delusional
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thinking. AR. 340. At a follow up appointment Dr. Villasenor noted that Plaintiff had improved

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while on medication and did not exhibit delusions, hallucinations, or paranoia. AR. 338. On

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September 5, 2012, Dr. Villasenor noted that Plaintiff was well groomed and properly oriented,

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exhibited no hallucinations and fewer delusions. AR. 335.

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On September 22, 2012, Plaintiff presented to Paul Butler, M.D. for a psychological

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consultative examination. AR. 314-318. Dr. Butler opined that Plaintiff would be able to perform

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both simple and complex tasks, have no difficulty accepting instruction or interacting with others,

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and perform routine work activities with minimal disturbance from his mental impairments. AR.

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317.

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On October 10, 2012, Dr. Villasenor noted that Plaintiff was doing well on medication and

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Northern District of California

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no longer researched celebrities online. AR. 386. Dr. Villasenor performed a mental evaluation

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and noted no hallucinations, delusions, or paranoia. Id.

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On December 5, 2012, Plaintiff informed Dr. Villasenor that his symptoms were

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improving and that he did not experience any side effects from his medication. AR. 377-78.

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Upon examination, Dr. Villasenor noted that Plaintiff exhibited normal grooming, orientation, and

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speech and exhibited no hallucinations, delusions, or paranoia. AR. 378.

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On February 6, 2013, Plaintiff presented to Dr. Villasenor for a follow up examination.

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AR. 367. Dr. Villasenor noted that Plaintiff appeared well groomed and exhibited no

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hallucinations, delusions or paranoia. AR. 368. On May 8, 2013, Dr. Villasenor examined

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Plaitnff and again noted that Plaintiff did not experience hallucinations or delusions. AR 356.

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On October 16, 2013, Plaintiff reported that he talked in a sing song manner less

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frequently, which pleased his parents. AR. 434. He also reported that someone had recently

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broken into his home, and in response, Plaintiff calmly escorted the person out of the home and

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called the police. Id. He reported no hallucinations. Id. Dr. Villasenor performed a mental

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evaluation and noted no hallucinations, delusions, or paranoia. AR. 435. Similarly, on November

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20, 2013, Dr. Villasenor performed a mental evaluation and noted no hallucinations, delusions, or

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paranoia. AR. 428. On January 15, 2014, again Dr. Villasenor noted that Plaintiff was stable on

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his medication and exhibited no hallucinations, delusions, or paranoia. AR. 486.
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Ahmed El-Sokkary, Psy.D., a clinical psychologist, examined Plaintiff on March 20, 2014.

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AR. 473-76. Dr. El-Sokkary opined that Plaintiff would be able to perform basic work, but could

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not perform complex work and that Plaintiff would have no more than mild difficulty interacting

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with the public and co-workers. AR. 471.
On May 21, 2014, Dr. Villasenor noted that Plaintiff had resolved his issues with

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hallucinations, cognitive changes, and delusions of special powers. AR. 480-81.

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ISSUES PRESENTED

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Plaintiff presents two issues for this court‟s review: (1) whether the “ALJ committed

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harmful legal error by failing to properly evaluate lay testimony;” and (2) whether “ALJ
committed harmful legal error by failing to include all limitations in the residual functional

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capacity (RFC).” Pl.‟s Mot. (Doc. 21) at 5 & 7.
A.

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The Lay Testimony

Plaintiff asserts that “[t]he ALJ committed legal error by failing to properly evaluate lay

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testimony.” Pl.‟s Mot. (Doc. 21) at 5. Plaintiff argues that “ALJ‟s limited discussion [of the lay

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witness testimony of Erin Lester, Sheila Lester, and Scott Lester] is deficient because it does not

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state reasons to discount the testimony which is germane to each lay witness.” Id. at 7.
“The ALJ must consider competent lay testimony but in rejecting such evidence, he need

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only provide reasons for doing so that are „germane to [the] witness.‟” Carmickle v. Comm’r, Soc.

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Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (quoting Greger v. Barnhart, 464 F.3d 968, 972

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(9th Cir. 2006). In discounting the testimony of the lay witnesses in the present case, the ALJ

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stated:

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Regarding third party allegations, I find credible the reports or testimony of Erin
Lester, Sheila Lester, and Scott Lester, (Exh. 5E; Exh. 17E; Hearing Testimony‐
February 10,2014; Hearing Testimony‐ July 23,2014), only to the extent consistent
with the residual functional capacity finding for the same reasons upon which the
claimant‟s subjective allegations are discounted.

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AR. 26. Thus, this is not a case where the ALJ was silent as to the lay witness testimony. Instead,

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the ALJ provided a basis for his rejection of the testimony: “for the same reasons upon which the

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claimant‟s subjective allegations were discounted.” AR. 26. “[W]hen an ALJ provides clear and

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convincing reasons for rejecting the credibility of a claimant‟s own subjective complaints, and the

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lay-witness testimony is similar to the claimant‟s complaints, it follows that the ALJ gives

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„germane reasons for rejecting‟ the lay testimony.” Williams v. Astrue, 493 F. App‟x 866, 869

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(9th Cir. 2012) (citing Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009)).

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Plaintiff does not challenge the ALJ‟s rejection of his own subjective complaints. Thus, the ALJ

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did provide germane reasons for the rejection of the lay witness testimony and the court finds no

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error.

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Moreover, even were the court to find the ALJ‟s rejection of the lay witness testimony to
be error, “[b]ecause the ALJ had validly rejected all the limitations described by the lay witnesses

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in discussing [Plaintiff‟s] testimony, [the court is] confident that the ALJ‟s failure to give specific

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witness-by-witness reasons for rejecting the lay testimony did not alter the ultimate nondisability

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determination. Accordingly, the ALJ‟s error was harmless.” Molina v. Astrue, 674 F.3d 1104,

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1122 (9th Cir. 2012).

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B.

The limitations in the RFC

First, Plaintiff argues that the ALJ erred in failing to include all of the limitations

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expressed by consultative examiner El-Sokkary, Ph.D. in the RFC, despite giving his opinion

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“substantial weight.” Pl.‟s Mot. (Doc. 21) at 7. Plaintiff points to Dr. El-Sokkary‟s opinions that

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“[c]laimant may have some difficulty from time to time in keeping a regular workday/workweek

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schedule without some brief intermittent interruptions from psychiatric symptoms” . . . and that

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“[c]laimant was able to maintain a sufficient level of concentration, persistence, and pace to do

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basic work in an environment that health condition would allow.” Id. (citing AR. 476).

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“It is not necessary to agree with everything an expert witness says in order to hold that his

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testimony contains „substantial evidence.‟” Calkosz v. Colvin, No. C-13-1624 EMC, 2014 WL

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851911, at *5 (N.D. Cal. Feb. 28, 2014) (quoting Magallanes v. Bowen, 881 F.2d 747, 753 (9th

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Cir. 1989)). The ALJ discussed Dr. El-Sokkary‟s opinion in detail. As to Dr. El-Sokkary‟s

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discussion of Plaintiff‟s psychiatric symptoms, the ALJ countered that “the claimant‟s reported

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delusions [are] largely resolved with psychiatric treatment.” AR. 26. Thus, the ALJ accounted for

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the opinion and explained how he took that opinion into account in formulating the RFC. The

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medical evidence of record, as outlined above, supports the ALJ‟s finding that Plaintiff‟s reported
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delusions were largely resolved with treatment. Dr. El-Sokkary‟s medical source statement is

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based on an exam from March of 2014. The medical records from late June 2012 through 2014,

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show that treatment had abated Plaintiff‟s complaints of hallucinations and delusions, culminating

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in Dr. Villasenor‟s opinion in May 21, 2014, that Plaintiff had resolved his issues with

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hallucinations. Thus, the court finds no error in the ALJ‟s consideration of Dr. El-Sokkary‟s

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opinion.
Plaintiff also argues that the ALJ should have required Dr. El-Sokkary to explain what he

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meant when he opined that Plaintiff could perform basic work in “an environment that health

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condition would allow.” The court finds this argument to be without merit. An environment that

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Plaintiff‟s “health conditions would allow” is the work environment and limitations described by

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Dr. El-Sokkary in the medical source statement.
Second, Plaintiff argues that the ALJ erred by rejecting the Medical Source Statement

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created by Dr. Villasenor, a treating therapist and Ms. McNeill, a counselor. Plaintiff states that

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the rejection of the medical source statement was “done by cataloguing the symptoms presented

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by the claimant and weighing them as if they were of equal importance. For example, delusions

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are frequently mentioned as symptoms, but are negated by other positive factors such as good

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grooming or normal psychomotor activity. (AR 24‐26) These are hardly equivalent.” Pl.‟s Mot.

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(Doc. 21) at 8.
The ALJ rejected the opinion expressed in the medical source statement that Plaintiff

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would have various work-preclusive functional limitations and Dr. Villasenor‟s separate opinion

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that Plaintiff “would have great difficulty maintaining employment.” AR. 27. The reasons set

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forth by the ALJ for the rejection of the opinion were because: (1) “neither Dr. Villasenor nor Ms.

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McNeill provided any explanations to substantiate their conclusions involving the claimant‟s

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functional limitations”; (2) their determination “lacks support from their generally unremarkable

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findings on mental status examination”; (3) their opinion “cannot be reconciled with their progress

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notes”; and (4) “the opinions are inconsistent with the remainder of the medical evidence.” AR.

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Generally, the opinion of a treating physician is afforded great weight. See Magallanes v.
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Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, “the ALJ may disregard the opinion of the

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treating physician only if he sets forth „specific and legitimate reasons supported by substantial

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evidence in the record for doing so.‟” Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001)

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(quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir.1995). “The ALJ rejected [Dr. Villasenor‟s]

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opinion because it was unsupported by rationale or treatment notes, and offered no objective

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medical findings to support the existence of [Plaintiff‟s] alleged conditions.” Id. at 1149. As

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stated above, the substantial evidence of record shows that most of Plaintiff‟s mental symptoms,

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which served as the basis for the limitations expressed in the medical source statement, were

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resolved with treatment. Thus, the court finds no error in the ALJ‟s rejection of the medical

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Northern District of California

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source statement.
Finally, Plaintiff takes issue with the ALJ‟s reliance on Social Security Ruling 85‐15 in

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making his determination. At Step 4 the ALJ found that Plaintiff could perform his past relevant

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work as a busser. In addition, in making an alternative determination, the ALJ continued to Step 5

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and held that “even if the claimant could not perform any past relevant work, Section 204.00 of

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the Medical-Vocational Guidelines and SSR 85-15 support a finding of „not disabled.‟” AR. 28.

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Plaintiff‟s attack on the ALJ‟s application of SSR 85-15 is only an attack on the ALJ‟s alternate

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ruling. The ALJ had no obligation to advance to Step 5 of the sequential process.

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Moreover, Plaintiff‟s attack of the ALJ‟s use of that section is based on “substantial

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evidence, especially from the family members cited above, that Lester would not be able to meet

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[the demands of an unskilled occupation base].” Pl.‟s Mot. (Doc. 21) at 9. As stated above, the

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court found no error with the ALJ‟s rejection of this lay witness testimony and Plaintiff fails to

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point to what other “substantial evidence” undermines the ALJ‟s decision. Accordingly, the court

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finds no error.

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CONCLUSION

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For the above stated reasons it is ORDERED that the Motion for Summary Judgment

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(Doc. 21) is DENIED and Defendant‟s Cross-Motion for Summary Judgment (Doc. 22) is

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GRANTED.

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A separate judgment shall issue.
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IT IS SO ORDERED.
Dated: March 15, 2016
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NANDOR J. VADAS
United States Magistrate Judge

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United States District Court
Northern District of California

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