Presley v. Colvin

Filing 24

Order by Hon. James Donato denying 21 Plaintiff's Motion for Summary Judgment and granting 22 Defendant's Motion for Summary Judgment. (jdlc3S, COURT STAFF) (Filed on 5/18/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MELANIE CAROL PRESLEY,

Case No. 14-cv-01814-JD

Plaintiff,
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v.

ORDER ON MOTIONS FOR
SUMMARY JUDGMENT

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CAROLYN W. COLVIN,
Defendant.

United States District Court
Northern District of California

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Plaintiff Melanie Carol Presley 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

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In October 2010, Presley filed an application for Title II disability insurance benefits. AR

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164-65. Presley claimed disability based on a number of conditions including irritable bowel

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syndrome (“IBS”), fibromyalgia, neck, back and arm pain, depression and memory problems. AR

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83-84. She reported substantial limitations on her ability to stand, lift and hold objects of more

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than minor weight, concentrate for any period of time, remember lists or instructions, and other

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problems. Id. She also said she suffered from social isolation as the result of depression. Id. The

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SSA denied Presley’s application initially and upon reconsideration. AR 94, 104. In both denials,

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the SSA determined that Presley’s condition was “not severe enough to keep you from working.”

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Id.

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In August 2011, Presley requested a hearing on benefits eligibility before an ALJ. AR

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115. Presley’s request was assigned to K. Kwon, an ALJ in the SSA’s Office of Disability

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Adjudication and Review. AR 37. In August 2012, ALJ Kwon held an evidentiary hearing on

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Presley’s claim at which Presley appeared with a lawyer and testified. Id. Connie Guillory, a

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vocational expert, also testified at the hearing. Id.

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In September 2012, ALJ Kwon issued a 14-page, single-spaced decision finding that

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Presley was not disabled. AR 17-30. Presley appealed this adverse decision to the SSA Appeals

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Council, which declined to review it. AR 7-9. Presley then filed this action pursuant to 42 U.S.C.

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§ 405(g), which authorizes review of final SSA decisions by a district court.

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

United States District Court
Northern District of California

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disability claims under 20 C.F.R. §§ 404.1520 et seq. (2012). See Burch v. Barnhart, 400 F.3d

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676, 679 (9th Cir. 2005) (setting out the five sequential steps). Step one requires the ALJ to

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determine whether the claimant is working in a substantial and gainful way. 20 C.F.R. at §

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404.1520(a); AR 18. This step counted in Presley’s favor because she had been unemployed for

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some time. AR 19. 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 18. The ALJ found that Presley satisfied this step because fibromyalgia, irritable bowel

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syndrome, joint disease and depression “significantly limit the claimant’s physical and mental

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abilities to do one or more basic work activities.” AR 19. The ALJ reached this favorable finding

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even though the record contained evidence indicating that Presley had exaggerated her symptoms,

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AR 23-26, and suffered from memory and concentration issues due to chronic marijuana

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consumption, AR 25.

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The ALJ found against Presley at step three. In this step, the ALJ needs to determine

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whether the claimant’s impairment meets, or is medically equal to, the criteria of an impairment

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listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 404.1520(e)). AR 18. That

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bureaucratic mouthful means the ALJ must see if the claimant’s impairment matches the criteria

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for disabling conditions listed in the regulations. Here, the ALJ focused on listing 12.04, which

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addresses affective mental disorders. AR 20. The ALJ evaluated Presley’s claims of depression,
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concentration and memory problems, and related psychological issues, and determined that she did

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not manifest the level of difficulty or decompensation required to meet or medically equal the

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12.04 criteria. Id. Specifically, based on reports from psychologists and medical doctors who had

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examined Presley, the ALJ found that Presley had moderate depression and concentration and

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memory deficits, but experienced only mild restrictions on daily living activities and was able to

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care for a husband with vision problems, read, play computer games, enjoy occasionally

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socializing at garage sales and karaoke events, and generally attend to all the necessities of life on

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an independent and competent basis. Id.
The ALJ did not expressly analyze Presley’s IBS or fibromyalgia against the listings but

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made a set of detailed findings about these conditions. After reviewing Presley’s medical records,

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United States District Court
Northern District of California

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the ALJ determined that Presley had received routine and conservative treatment for IBS and had

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never reached the point where that condition required surgery or treatment by a specialist. AR 22.

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Diagnostic evaluations showed the IBS was mild and Presley reported times when she felt better

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and gained weight. Id. The ALJ found that Presley’s treatment for fibromyalgia had also been

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routine and conservative. Id. The ALJ noted that Presley’s treating physician. Dr. Tamara

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Dennis, had made a fibromyalgia diagnosis, but found that this physician depended mainly on

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Presley’s subjective description of symptoms, which the ALJ considered to be of questionable

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credibility, and did not use the fibromyalgia diagnostic criteria developed by the American

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College of Rheumatology or refer Presley to a specialist. AR 26. The ALJ afforded Dr. Dennis’s

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opinions minimal weight because they were based on Presley’s questionable self-reporting and not

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on any clinical, objective diagnostic findings. AR 26-27.
The ALJ proceeded to step four, which requires a determination of whether the claimant is

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capable of performing the work she used to do. AR 18. This step entails an assessment of the

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claimant’s “residual functional capacity”, another bureaucratic turn of phrase which basically

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means the claimant’s ability to work even with some limitations or impairments. Once that

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capacity is determined, the ALJ looks at whether it is enough for the claimant to do her old jobs.

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Id.

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The ALJ spent a considerable portion of the decision analyzing the step four issues. AR

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25-30. In a nutshell, the ALJ found that the evidence in the record -- which included medical

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opinions from Presley’s treating physicians as well as from consultative physicians and

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psychologists, a vocational expert’s opinions and observations by Presley’s family members --

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indicated that Presley has legitimate physical exertional limitations and mental “non-exertional”

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limitations that leave her unable to do the type of work she had done in healthier years. AR 28. In

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making this determination, the ALJ expressly rejected a contrary conclusion by the vocational

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expert and found more favorably for Presley than the expert did. Id.
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 other substantial gainful activity in the national economy. The

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United States District Court
Northern District of California

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ALJ again relied on the medical and observational evidence evaluated in the residual capacity

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inquiry and determined that, even with some recognized limitations, Presley has the ability to

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perform unskilled, light-duty jobs of minimal complexity such as working as a packer or security

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gate guard. AR 29. With that finding, the ALJ declared Presley “not disabled.” AR 30.

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DISCUSSION

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The Court’s review of ALJ Kwon’s decision is guided by several well-established

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principles. The bedrock principle is that the Court does not do a de novo review of the disability

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claim. Rather, the Court may set aside a denial of benefits only when it is “not supported by

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substantial evidence in the record or if it is based on legal error.” Merrill ex rel. Merrill v. Apfel,

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224 F.3d 1083, 1084-85 (9th Cir. 2000); see also Tommasetti v. Astru, 533 F.3d 1035, 1038 (9th

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Cir. 2008) (same). “Substantial evidence is ‘such relevant evidence as a reasonable mind might

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accept as adequate to support a conclusion.’” Tommasetti, 533 F.3d at 1038 (internal citation

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omitted). That evidence “must be more than a mere scintilla but not necessarily a preponderance.”

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Id. The Court may not simply supplant an ALJ’s reasonable judgment with its own. “Where

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evidence exists to support more than one rational interpretation, the Court must defer to the

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decision of the ALJ.” Drouin v. Sullivan, 966 F.2d 1255, 1258 (9th Cir. 1992). The Court also

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defers to the ALJ’s fact and credibility determinations. “Credibility questions, conflicts in the

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medical testimony, and all other ambiguities are resolved by the ALJ.” Ma v. Colvin, 2014 WL
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7184455 at *5 (N.D. Cal. 2014) (citing Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)).

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But the Court is no mere rubber stamp when reviewing SSA decisions. While subject to these

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principles of deference, it still is charged with reviewing the administrative record as a whole to

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ensure that substantial evidence does in fact support the ALJ’s determinations.

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Plaintiff’s challenge to the soundness of the ALJ’s decision is not supported by fact or law,

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and is not enough to set the decision aside. As an initial matter, plaintiff misconstrues the Court’s

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role in this case. Plaintiff’s main argument is that the ALJ did not reach the right decision in light

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of the evidence Presley presented. She devotes most of her motion to rehashing the often-vivid

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descriptions of her conditions contained within her medical charts and files, and in statements by
friends and family. These materials clearly show, as the ALJ recognized, that Presley is not in

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United States District Court
Northern District of California

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good physical or mental health. But under governing standards, the Court does not conduct a

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fresh assessment of Presley’s claims as if the ALJ had never made a disability determination. The

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Court is limited to reviewing the ALJ’s decision for legal error or lack of substantial evidence. It

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is not a forum for arguing the disability issue de novo or second-guessing findings supported by

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substantial evidence. Tommasetti, 533 F.3d at 1039.

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This limited scope of review sinks most of Presley’s contentions. As Presley urges, the

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Court recognizes that the ALJ dealt with conflicting evidence and made credibility determinations

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and resolved fact conflicts on the way to finding no disability. The Court also recognizes, as

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Presley does not, that the ALJ’s decision was detailed, specific and clear when stating what the

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ALJ determined and why. Presley has not identified a single instance of the ALJ failing to apply

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the appropriate legal tests or standards, or failing to provide an adequate evidentiary basis for the

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findings made. And while Presley disputes the ALJ’s credibility determinations and resolution of

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ambiguities or conflicts in the medical evidence, the ALJ “is the final arbiter” of those questions.

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Tommasetti, 533 F.3d at 1041.

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Plaintiff’s more specific suggestions of error also do not fly. Presley repeatedly contends

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that the ALJ improperly discounted the opinions of her treating physicians, including Dr. Dennis,

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and erroneously gave them only minimal weight. It is certainly true that, as a general proposition,

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the opinions of a treating physician are ordinarily afforded greater weight than those of non5

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treating physicians. Magallanes, 881 F.2d at 751. But it is equally true, and much more apposite

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here, that the treating physician’s opinions are not conclusive on a physical condition or disability,

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id., and the ALJ may reduce the weight they are afforded when the ALJ finds they are based

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largely on the claimant’s subjective self-reporting and the ALJ provides specific reasons for

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discounting them, Tommasetti, 533 F.3d at 1041. The ALJ here amply satisfied both conditions,

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and did not improperly slight the opinions of the treating physicians.

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Presley argues that the ALJ failed to properly evaluate the fibromyalgia claim against the
disability listings. As plaintiff concedes, “[f]ibromyalgia is not a listed impairment” but the

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parties agree that Social Security Ruling 12-2P, 2012 WL 3104869, allows a claimant to contend

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that fibromyalgia medically equals a listing for another condition. Dkt. No. 21 at 21; Dkt. No. 22

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United States District Court
Northern District of California

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at 2. While the ALJ does not appear to have specifically referenced Ruling 12-2P in the decision,

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the ALJ carefully reviewed and evaluated the medical evidence on Presley’s fibromyalgia claim,

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AR 26-28, and found against disability on that ground. The ALJ explained its reasoning at every

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step and cited to evidence in the record. There is no error here.

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Presley also raises a vague attack on the ALJ’s use of a hypothetical question to the

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vocational expert raised in evaluating Presley’s work capacity. Plaintiff’s specific argument on

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this point is hard to discern -- the briefing is unfocused and unclear. In any event, the use of a

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vocational expert is without a doubt an acceptable practice to determine whether a claimant can

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perform prior work or do other work. Ghanim v. Colvin, 763 F.3d 1154, 1166 (9th Cir. 2014).

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And the ALJ may use a hypothetical question to elicit the expert’s opinion when the hypothetical

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contains “all of the limitations that the ALJ found credible and supported by substantial evidence

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in the record.” Id.

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The ALJ here did what was required and in a manner that actually favored Presley. The

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vocational expert addressed a hypothetical question that assumed Presley’s age, education,

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vocational background but included only physical limitations. AR 28. The ALJ found that

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Presley’s mental limitations, namely a limitation to simple and routine tasks, should also be

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factored in. Id. On that basis, the ALJ found a lesser residual capacity than the expert -- a finding

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in plaintiff’s favor. Id.
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CONCLUSION

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

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

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

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IT IS SO ORDERED.
Dated: May 18, 2015

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________________________
JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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