Petrini v. Colvin

Filing 21

ORDER RE MOTIONS FOR SUMMARY JUDGMENT by Judge James Donato. (jdlc1S, COURT STAFF) (Filed on 8/27/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELISSA B. PETRINI,

Case No. 14-cv-01583-JD

Plaintiff,
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v.

ORDER RE MOTIONS FOR
SUMMARY JUDGMENT

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CAROLYN W. COLVIN,

Re: Dkt. Nos. 16, 19

Defendant.

United States District Court
Northern District of California

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Plaintiff Melissa B. Petrini challenges a decision by a Social Security Administration

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(“SSA”) administrative law judge (“ALJ”) that denied her disability benefits. Plaintiff and

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defendant have cross-moved for summary judgment seeking to overturn or affirm, respectively,

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the ALJ’s decision. The Court has carefully considered the administrative record (“AR”) and the

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parties’ arguments and finds no reversible error in the ALJ’s determinations. Consequently,

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plaintiff’s motion is denied and defendant’s motion is granted.

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BACKGROUND
In December 2010, Petrini filed an application for disability insurance benefits. AR 151-

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59. Petrini, a 31-year-old mother of four, claims disability since June 2009 for depression,

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anxiety, hallucinations, trouble concentrating, mood lability, irritability and discomfort around

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large groups of people. AR 169-70, 173, 216-17, 639. Petrini’s treating physician diagnosed her

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with Bipolar Disorder II in 2010 and prescribed medications. AR 720, 725. Petrini reports that

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the medications stabilized her moods and decreased her anxiety without any side effects. AR 711.

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In November 2011, Petrini requested a hearing on benefits eligibility before an ALJ. AR

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96. Petrini’s request was assigned to ALJ Maxine R. Benmour, an ALJ in the SSA’s Office of

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Disability Adjudication and Review. AR 27, 29. On October 19, 2012, the ALJ held an

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evidentiary hearing on Petrini’s claim at which Petrini appeared and testified. AR 44-78. Rocko

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Mazenski, a vocational expert, also testified at the hearing. AR 72-77. On November 8, 2012, the

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ALJ issued a decision finding that plaintiff was not disabled. AR 30-38. Petrini appealed this

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adverse decision to the SSA Appeals Council, which declined to review it. AR 1-3. Petrini then

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filed this action pursuant to 42 U.S.C. 405(g), which authorizes review of final SSA decisions by a

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district court.
In the decision, the ALJ followed the five-step sequential evaluation process mandated for

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disability claims under 20 C.F.R. § 416.920 and found that the claimant is not disabled. Step one

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requires the ALJ to determine whether the claimant is working in a “substantial gainful activity.”

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AR 31. This step counted in Petrini’s favor because she had been unemployed since applying for

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United States District Court
Northern District of California

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benefits. AR 32. Step two directs the ALJ to determine whether the claimant has a severe

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impairment or combination of impairments that significantly limits the claimant’s ability to work.

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AR 31. The ALJ found that Plaintiff satisfied this step because her bipolar disorder, anxiety

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disorder and opioid dependence more than minimally affect her ability to perform work related

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activities. AR 32.

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The ALJ found against Petrini at step three. In this step, the ALJ determines whether the

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claimant’s impairment meets, or is medically equal to, the criteria of an impairment listed in 20

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C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(d)). “That bureaucratic mouthful

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means the ALJ must see if the claimant’s impairment matches the criteria for disabling conditions

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listed in the regulations.” Presley v. Colvin, No. 14-CV-01814-JD, 2015 WL 2379807, at *2

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(N.D. Cal. May 18, 2015). Here, the ALJ focused on Listing 12.04, which addresses affective

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mental disorders, and concluded that Petrini did not manifest the level of difficulty or

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decompensation required to meet or medically equal the 12.04 criteria. AR 32-33. Specifically,

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the ALJ found that Petrini had moderate restrictions in social functioning and concentration, but

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only mild restrictions in activities of daily living. AR 32. Petrini cares for her young children and

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“had no problems with personal care, helped prepare meals, did cleaning and laundry, and did

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grocery shopping.” Id. And although she has “some problems with interaction with others,” she

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lives with her mother and sister, has lived with her younger children and husband in the past, and
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“can talk to her family when she is taking her medications.” AR 32-33. She “is able to do her

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[autistic] sister’s makeup and hair” and follows written instructions well. AR 33. The ALJ also

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found that Petrini “has experienced no episodes of decompensation of extended duration.” Id.
The ALJ proceeded to step four, which “entails an assessment of the claimant’s ‘residual

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functional capacity’, another bureaucratic turn of phrase which basically means the claimant’s

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ability to work even with some limitations or impairments.” Presley, 2015 WL 2379807, at *2.

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The ALJ spent a considerable portion of the decision analyzing this issue. The ALJ found that,

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based on the evidence in the record, Petrini’s impairments could reasonably be expected to cause

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the claimed symptoms. AR 34. But the ALJ also found that “the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely

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United States District Court
Northern District of California

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credible.” Id. For example, Petrini reported to an examining physician that she used drugs only as

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a teenager, while the record reflects “a great deal of substance abuse.” Id. And Petrini said she

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would stay in bed all day twice a week but described activities inconsistent with that claim, for

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example, that her medications allowed her “to get up and get dressed and be around people.” Id.

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The ALJ found that Petrini has the residual functional capacity to perform a full range of work

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when limited to simple, repetitive tasks with occasional contact with supervisors, co-workers and

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the public. AR 33.
The ALJ then addressed step five, the final step. This step requires the ALJ to determine

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whether the claimant can do any substantial gainful activity in the national economy with her

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limitations. Relying on the testimony of a vocational expert, and “considering the claimant’s age,

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education, work experience, and residual functional capacity,” the ALJ concluded that there are a

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significant number of jobs in the national economy that Petrini can perform. AR 37-38 (citing 20

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C.F.R. § 416.969 and 416.969(a)). These include, as examples, working as a hand packager,

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hospital housekeeper, or office helper. AR 37. With that finding, the ALJ declared Petrini “not

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disabled.” AR 38.

DISCUSSION

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I.

LEGAL STANDARD
The Court’s review of the ALJ’s decision is guided by several well-established principles.
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Presley, 2015 WL 2379807, at *3. The bedrock principle is that the Court does not do a de novo

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review of the disability claim. Id. Rather, the Court may set aside a denial of benefits only when

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it is “not supported by substantial evidence in the record or if it is based on legal error.” Merrill ex

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rel. Merrill v. Apfel, 224 F.3d 1083, 1084–85 (9th Cir. 2000); see also Tommasetti v. Astrue, 533

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F.3d 1035, 1038 (9th Cir. 2008) (same). “Substantial evidence is ‘such relevant evidence as a

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reasonable mind might accept as adequate to support a conclusion.’” Tommasetti, 533 F.3d at

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1038 (internal citation omitted). That evidence “must be more than a mere scintilla but not

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necessarily a preponderance.” Id. The Court may not simply supplant an ALJ’s reasonable

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judgment with its own. “Where evidence exists to support more than one rational interpretation,

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the Court must defer to the decision of the ALJ.” Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th

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United States District Court
Northern District of California

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Cir. 1992).
The Court also defers to the ALJ’s fact and credibility determinations. “Credibility

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questions, conflicts in the medical testimony, and all other ambiguities are resolved by the ALJ.”

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Presley, 2015 WL 2379807, at *3 (citations and quotations omitted). But the Court is no mere

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rubber stamp when reviewing SSA decisions. Id. While subject to these principles of deference,

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it still is charged with reviewing the administrative record as a whole to ensure that substantial

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evidence does in fact support the ALJ’s determinations. Id.

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II.

THE ALJ’S TREATMENT OF MEDICAL OPINIONS

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In the Ninth Circuit, courts “distinguish among the opinions of three types of physicians:

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(1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the

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claimant (examining physicians); and (3) those who neither examine nor treat the claimant

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(nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). The opinion of a

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treating physician is entitled to greater weight than that of an examining physician, and the

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opinion of an examining physician is entitled to greater weight than that of a non-examining

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physician. Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). When a treating physician’s

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opinion is not contradicted by another physician’s opinion, it may be rejected only for “clear and

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convincing” reasons supported by “substantial evidence” in the record. Orn v. Astrue, 495 F.3d

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625, 632 (9th Cir. 2007) (citations and quotations omitted). When a treating or examining
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physician’s opinion is contradicted by another physician’s opinion, an ALJ may only reject it by

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providing “specific and legitimate reasons that are supported by substantial evidence in the

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record.” Lester, 81 F.3d at 830-31.

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Here, in making the disability determination, the ALJ relied on the state agency assessment

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conducted by consulting physician Dr. Harvey Bilik, an assessment conducted by examining

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physician Dr. Richard Palmer, and the record as a whole. Petrini contends that the ALJ should

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have placed greater weight on the medical opinions of her treating physician, Dr. Peter Rutter, and

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the opinions of Dr. Palmer and Dr. Les Kalman, a second examining physician. Dkt. No. 16.

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A.

Dr. Rutter

Petrini began receiving psychiatric medication management with psychiatrist Peter Rutter

United States District Court
Northern District of California

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in July 2010, “over a year after her alleged onset date.” AR 34. In December 2011, Dr. Rutter

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completed a mental impairment questionnaire, diagnosed Petrini with bipolar disorder, and

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assessed a GAF (Global Assessment of Functioning) score of 41 out of 100, which can indicate

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serious symptoms. AR 35; see also 720. The month before, during an office visit with Petrini in

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November 2011, Dr. Rutter opined that Petrini was “disabled” due to her “mood instability” but

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observed at the same time that she was appropriately dressed and groomed, well-organized, goal-

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oriented and free of any “evident cognitive disturbance.” AR 35; see also AR 707, 709. Dr.

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Rutter’s notes also indicate that Petrini expressed “mild mood lability and irritability but denied

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depression, suicidal or homicidal ideation, acting out, loss of impulse control, racing thoughts,

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excessive anger, grandiosity, and auditory or visual hallucinations” and said that she felt “more

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stable than the last visit.” AR 35; see also 707. Her appetite was good and her insight and

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judgment were improving. AR 707. These fairly positive assessments echoed Dr. Rutter’s

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observations from his first meeting with Petrini in July 2010. At that time, Dr. Rutter found that

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Petrini had a “very good memory,” was “attentive,” although her concentration was impaired, and

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had good eye contact and a pleasant and cooperative attitude. AR 742, 744.

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The ALJ cited the disconnect between Dr. Rutter’s disability opinion and the mild and

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benign symptoms expressed by Petrini to discount his conclusion. The ALJ found the opinion “is

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mostly inconsistent with the symptoms that [Dr. Rutter] observed in his treatment notes…and the
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mild symptoms described by the claimant.” AR 35. The ALJ also found that Dr. Rutter “had

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gone over the disability questionnaire with the claimant, which brings into question his ability to

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be completely objective.” Id.

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Petrini’s main argument on appeal is that the ALJ was wrong to limit the force of Dr.
Rutter’s opinion. Specifically, Petrini argues that his disability opinion is entirely consistent with

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his treatment notes, and that the ALJ’s finding of inconsistency mischaracterizes the record. Dkt.

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No. 16 at 12. But Petrini fails to point to any material fact errors or mischaracterizations in the

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ALJ’s decision, and she basically ignores the evidence in the record that supports the ALJ’s reason

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for discounting Dr. Rutter’s opinion. As the record shows, Dr. Rutter’s observations and Petrini’s

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own statements about her condition are in tension with his disability opinion. This incongruity is a

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United States District Court
Northern District of California

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specific and legitimate reason for the ALJ to discount that opinion. See Valentine v. Comm’r Soc.

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Sec. Admin., 574 F.3d 685, 692-93 (9th Cir. 2009); see also Tommasetti, 533 F.3d at 1041; Nelson

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v. Astrue, No. 08-2924 JF, 2009 WL 1699660, at *3 (N.D. Cal. June 17, 2009) (finding a treating

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physician’s report that was contradicted by claimant’s own statements to constitute a specific and

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legitimate reason for discounting the report).

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The ALJ also discredited Dr. Rutter’s opinion because he helped Petrini answer the

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disability questionnaire. AR 35. The Court doubts that is a valid reason to slight the opinions of a

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treating physician but the issue need not be formally addressed because the ALJ provided other

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credible reasons that are supported by law and by substantial evidence. Where, as here, the ALJ’s

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reasons are supported by substantial evidence in the record, the Court defers to the ALJ’s

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resolution of ambiguities and conflicts in Dr. Rutter’s medical testimony, and her decision to give

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his opinion limited weight.

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B.

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In April 2011, examining physician Dr. Richard Palmer conducted an independent

Dr. Palmer

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psychological consultative evaluation of Petrini. Dr. Palmer diagnosed an anxiety disorder and

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major depressive order and assigned a GAF score of 55, indicating moderate symptoms. AR 662;

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see also AR 36. Dr. Palmer opined that the claimant could perform one or two-step simple,

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repetitive tasks as well as complex tasks, but that she had a poor ability to interact with coworkers
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and the public. AR 662. The ALJ afforded partial weight to Dr. Palmer’s evaluation because it

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seemed generally consistent with the record as a whole. AR 36.

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Plaintiff contends that the ALJ improperly incorporated some but not all of Dr. Palmer’s
opinions into the residual functional capacity (“RFC”) determination at step four. Dkt. No. 16 at

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21. Specifically, Petrini argues that the ALJ failed to incorporate Dr. Palmer’s opinions that the

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plaintiff has a “fair ability” to (1) maintain regular attendance in the workplace, (2) complete a

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normal workday or workweek, and (3) to handle normal work related stress. Dkt. No. 16 at 22

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(citing AR 662-63). This contention is not well taken. The ALJ need not recount each of the

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assessed limitations in order to have properly considered them. Rather, the ALJ may synthesize

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and translate the assessed limitations into an RFC. Stubbs-Danielson v. Astrue, 539 F.3d 1169,

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Northern District of California

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1174 (9th Cir. 2008). Here, the RFC limitations to simple, repetitive tasks with occasional contact

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with supervisors, co-workers, and the public “‘[bears] a logical nexus’ to the physician’s opinions

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that the claimant was arguing had been omitted or rejected.” Hann v. Colvin, No. 12-CV-06234-

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JCS, 2014 WL 1382063, at *22 (N.D. Cal. Mar. 28, 2014) (citing Gentry v. Colvin, No. 1:12-CV-

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01825-SKO, 2013 WL 6185170, at *16 (E.D. Cal. Nov. 26, 2013)). The ALJ properly concluded

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that Petrini’s “fair ability” to maintain regular hours and handle workplace stress would be

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mitigated if she were limited to such simple, repetitive tasks involving only occasional social

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interaction.

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C.

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Dr. Kalman was an examining physician who met once with Petrini. Dr. Kalman made a

Dr. Kalman

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diagnosis of bipolar disorder (depressed), panic disorder, generalized anxiety disorder/social

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phobia, and opioid abuse in remission. AR 732. He found a GAF score of 50, which indicates

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serious symptoms, but also found that Petrini had a fairly normal mental status and average

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intellectual functioning. AR 36, 731-32. The ALJ afforded limited weight to Dr. Kalman’s

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opinion, and plaintiff contends that this was improper. Dkt. No. 16 at 17-20.

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The ALJ discounted Dr. Kalman’s opinion because his evaluation was based largely on the
claimant’s self- reporting. AR 36. This reason, in and of itself, is enough to uphold the ALJ’s

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decision.1 Dr. Kalman’s opinion was contradicted by Dr. Bilik’s and Dr. Palmer’s; consequently,

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the ALJ need only offer specific and legitimate reasons supported by substantial evidence to

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properly discount Dr. Kalman’s opinion. Dr. Kalman’s evaluation consisted of quoted excerpts

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from his interview with the claimant along with a checklist that assesses her functioning in twenty

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work-related areas. AR 729-38. He performed no tests on Petrini and his evaluation contains

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almost no analysis or interpretation of Petrini’s statements, just a repetition of her complaints. See

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id. Dr. Kalman’s opinion is conclusory, brief, and unsupported by objective medical findings,

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which is a specific and legitimate reason for the ALJ to discount it. See Batson v. Comm’r of Soc.

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Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); see also Gontes v. Astrue, 913 F. Supp. 2d 913,
923 (C.D. Cal. 2012) (“[the treating physician’s] two RFC forms were in check-box form, were

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Northern District of California

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conclusory, and conflicted with substantial other evidence in the record; the ALJ was entitled to

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reject them on that basis.”).
In addition, the ALJ had serious concerns about the reliability of the statements that Dr.

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Kalman used for his opinions. The ALJ found Petrini’s “statements concerning the intensity,

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persistence, and limiting effects of these symptoms are not entirely credible,” a finding Petrini

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does not contest. AR 34. It is reasonable for the ALJ to discount medical opinions based almost

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exclusively on less than credible statements. Tommasetti, 533 F.3d at 1041 (“An ALJ may reject a

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treating physician’s opinion if it is based ‘to a large extent’ on a claimant’s self-reports that have

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been properly discounted as incredible.”).

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III.

VOCATIONAL EXPERT
Plaintiff’s last argument is that the ALJ posed an incomplete hypothetical to the vocational

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expert because she did not include all the limitations supported by the record. Dkt. No. 16 at 22-

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23. The ALJ’s RFC determination was supported by substantial evidence in the record. It follows

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that the ALJ’s hypotheticals, which included the limitations from her RFC determination, were

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proper. The ALJ was not required to rely on responses from the vocational expert to hypotheticals

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that included other limitations. See Rollins v. Massanari, 261 F.3d 853, 858 (9th Cir. 2001)

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While the ALJ cited several other deficiencies in Dr. Kalman’s report, this reason is the strongest
and clearest, and no other reason cuts against her conclusions or findings.
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(“Because the ALJ included all of the limitations that he found to exist, and because his findings

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were supported by substantial evidence, the ALJ did not err in omitting the other limitations that

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[the plaintiff] had claimed, but had failed to prove.”).

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The vocational expert testified that a person with plaintiff’s RFC as determined by the ALJ

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would be able to perform occupations such as a hand packager, with 400,000 positions nationally

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and 4,200 jobs in the Bay Area, a hospital cleaner with 800,000 jobs nationally and 5,000 in the

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Bay Area, or an office helper with 80,000 jobs nationally and 1,400 in the Bay Area. AR 37, 73-

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74. The ALJ was entitled to rely on the vocational expert’s testimony in response to her

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hypotheticals. See Bayliss v. Barhart, 427 F.3d 1211, 1217–18 (9th Cir. 2005).

CONCLUSION

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Northern District of California

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The Court is sympathetic to Petrini’s conditions and challenges. The ALJ’s decision,

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however, is without legal error and falls within the bounds of substantial evidence. Consequently,

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plaintiff’s motion is denied, defendant’s is granted, and the case is closed.

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IT IS SO ORDERED.
Dated: August 27, 2015

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________________________
JAMES DONATO
United States District Judge

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