McMath v. Commissioner of Social Security

Filing 16

ORDER by Judge Maria-Elena James denying 13 Plaintiff's Motion for Summary Judgment;granting 15 Defendant's Cross-Motion for Summary Judgment. (mejlc3, COURT STAFF) (Filed on 11/29/2017)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
MONIQUE LA VADA MCMATH,

8

Case No. 17-cv-00988-MEJ

Plaintiff,
9

ORDER RE: CROSS-MOTIONS FOR
SUMMARY JUDGMENT

v.
10
COMMISSIONER OF SOCIAL
SECURITY,

United States District Court
Northern District of California

11

Re: Dkt. Nos. 13, 15

Defendant.

12
13

INTRODUCTION

14

Plaintiff Monique La Vada McMath (Plaintiff) brings this action pursuant to 42 U.S.C. §

15
16

405(g), seeking judicial review of a final decision of the Acting Commissioner of Social Security

17

(Defendant), denying Plaintiff’s claim for disability benefits. Pending before the Court are the

18

parties’ cross-motions for summary judgment. Pl.’s Mot., Dkt. No. 13; Def.’s Mot., Dkt. No. 15.1

19

Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral

20

argument. Having carefully reviewed the parties’ positions, the Administrative Record (AR), and

21

the relevant legal authority, the Court hereby DENIES Plaintiff’s motion and GRANTS

22

Defendant’s cross-motion for the reasons set forth below.
BACKGROUND

23
24

Plaintiff was born on December 4, 1972. AR 91. She worked as a bilingual independent

25

contractor facilitator, a transitional case manager, and a residential counselor before she stopped

26

working entirely in 2013. AR 60-62.

27
28

1

Plaintiff did not file a response to Defendant’s cross-motion. See Dkt.

1

SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

2

On January 7, 2013, Plaintiff filed a claim for Disability Insurance Benefits, alleging

3

disability beginning on April 1, 2012. AR 11. On July 24, 2013, the Social Security

4

Administration (SSA) denied Plaintiff’s claim, finding that Plaintiff did not qualify for disability

5

benefits. Id. Plaintiff subsequently filed a request for reconsideration, which was denied on

6

February 5, 2014. Id. On April 4, 2014, Plaintiff requested a hearing before an Administrative

7

Law Judge (ALJ). Id. ALJ Maxine R. Benmour conducted a hearing on July 29, 2015. AR 57.

8

Plaintiff testified in person at the hearing and was represented by Dan McCaskell, a non-attorney

9

representative. The ALJ also heard testimony from a Vocational Expert (VE). AR 83.

10

A.

In July 2013, Plaintiff stopped working because she realized that her anxiety was

11
United States District Court
Northern District of California

Plaintiff’s Testimony2

12

overwhelming. AR 64. She has feelings of anxiety every day, describing the feeling as “wanting

13

to withdraw and be by myself.” AR 65. Plaintiff has felt that way since childhood. Id. She

14

suffers from anxiety attacks almost every day, making her feel as if she is “stuck in a ditch; like in

15

a hole.” Id. For about a year starting in 2006, Plaintiff received treatment for her anxiety and

16

PTSD from Jessica Cole, M.D. AR 66. Since that time, Plaintiff has kept in contact with Dr. Cole

17

“probably once a month” through email or telephone. Id. Plaintiff testified she was no longer

18

taking medication for her anxiety or depression, but had taken medication for anxiety or

19

depression in 2012 or 2013. AR 67. At the time of the hearing, Plaintiff was in therapy with

20

Roberta Mineo, M.A.; she has seen Ms. Mineo weekly since 2010. AR 67-68.

21

Plaintiff has trouble sleeping at night due to anxiety and night terrors that occur a couple of

22

nights a week. Id. To help her sleep, Plaintiff has taken calming tea. Id. Plaintiff rarely does any

23

housework, but she tries to cook and clean by pacing herself. AR 75-76. Typically, Plaintiff

24

spends her days reading, going for a walk, interacting with her stepchildren, and encouraging

25
26
27
28

2

Plaintiff suffers from, and testified about, a number of impairments. Because she challenges
only the ALJ’s determination relating to her mental illness (Pl.’s Mot.), the Court only summarizes
her testimony as it relates to that condition.
2

1

herself because she feels unable to do things she was once unable to do. AR 76-77.
Before she stopped working, Plaintiff also reduced her hours at work because she would

2
3

forget where she was going, and she had to take some time to regroup after work before stepping

4

into her home. AR 79. Her anxiety would go up when she dealt with clients and listened to their

5

narratives. AR 80. Her employer accommodated Plaintiff in a number of ways, such as allowing

6

her to go for a walk, sit in the quiet room when speaking to clients would set off her anxiety, take

7

unscheduled breaks, and refrain from teaching a group class, as her coworkers would take over for

8

her. AR 80-81.
Plaintiff also attended Santa Rosa Junior College to obtain her AA degree with a focus on

9

social services. AR 81-83, 521, 524. There, she received a number of accommodations: she had a

11
United States District Court
Northern District of California

10

tutor and a note taker, recorded the lectures, tested in a quiet room, and utilized Dragon Dictate to

12

help her type her papers. AR 81-83. Plaintiff did not testify she utilized these accommodations to

13

aid impairments caused by her post traumatic stress disorder (PTSD); rather, it appears that at least

14

some of these accommodations were necessitated by problems caused by extensive scarring to her

15

hand. See AR 82 (“I was able to take a recorder into the class because I’m not good at taking –

16

my hand, notetaking.”); AR 83 (regarding Plaintiff’s testimony about Dragon Dictate, Plaintiff’s

17

representative stated: “That helps me to understand your hand problems that you were having and

18

how you were able to do that.”).

19

B.

Evidence of Record

20

1.

21

Ms. Mineo submitted a letter to the SSA supporting Plaintiff’s disability application. AR

22

521-23. Plaintiff began attending therapy sessions with Ms. Mineo in 2010, after the Department

23

of Rehabilitation (DOR) referred Plaintiff to Ms. Mineo for twelve weeks. AR 522. After those

24

initial twelve weeks of therapy, Plaintiff continued to attend therapy with Ms. Mineo, but could

25

only do so sporadically due to lack of income. Id.

26

Roberta Latefa Mineo, M.A.

Ms. Mineo opined Plaintiff showed signs of chronic major depression throughout her

27

participation in individual and group therapy. Id. Plaintiff’s depression was described as “severe,

28

3

1

but without psychotic features.” Id. Plaintiff felt panicked and had difficulty sleeping, shortness

2

of breath, poor appetite. Id. Additionally, Plaintiff frequently struggled with feelings of

3

hopelessness and, at times, experienced thoughts of suicide. Id. Stressors such as her children’s

4

at-risk behavior and the surfacing of Plaintiff’s childhood memories increased Plaintiff’s

5

symptoms. Id.

6

Ms. Mineo also opined that Plaintiff has spent the majority of her life “behind a mask” of

7

normalcy, as she is frequently detached and has experienced some episodes of dissociation. Id.

8

Ms. Mineo provided a history of Plaintiff’s impairments stemming from early incidents in her life.

9

AR 521. Such incidents included Plaintiff’s father shooting and killing her mother when Plaintiff
was one-and-a-half years old. Id. It is not certain whether Plaintiff witnessed the incident. Id.

11
United States District Court
Northern District of California

10

Plaintiff’s father remarried a woman who was “consistently emotionally and physically abusive”

12

toward Plaintiff. Id. Plaintiff’s step-mother placed Plaintiff’s hands on a hot stove as punishment,

13

resulting in second and third degree burns. Id. Plaintiff now has scars on her hands. Id. Ms.

14

Mineo opined that Plaintiff’s “ability to trust and form safe attachments has been severely

15

impacted by these early incidents,” and “[e]ffects of PTSD remain with her to date.” Id.

16

Plaintiff was diagnosed with a learning disability in first grade. Id. Ms. Mineo also

17

provided a history of Plaintiff’s employment. Id. Plaintiff worked in a variety of human services

18

positions, including as support staff in a residential program for developmentally delayed adults, a

19

residential treatment program for emotionally disturbed deaf youth, a victim advocate for

20

YWCA’s safe house, and a one-on-one aid for children with special needs. Id. Plaintiff’s longest

21

duration of employment was two years. Id.

22

Ms. Mineo related that it had been increasingly difficult for Plaintiff to attend and remain

23

present for “other people’s disturbing stories and stressors.” AR 522. Ms. Mineo opined that (1)

24

Plaintiff’s “ability to sustain concentration is impaired to the extent that it would affect her

25

participation in a work setting” and (2) Plaintiff would have difficulty adapting to the demands of

26

a new social/work environment. AR 523. Ms. Mineo does not opine Plaintiff’s impairments

27

prevent her entirely from working.

28

4

1

2.

Patricia Stengle

2

Patricia Stengle is a DOR Senior Vocational Rehabilitation Counselor who began working

3

with Plaintiff in April 2007. AR 524; see also AR 667 (3/20/2013 Case Note), AR 663 (5/15/2013

4

Case Note). Ms. Stengle explained that the DOR assisted Plaintiff with two vocational certificates

5

and in her pursuit to earn her AA degree. AR 524. The DOR also provided Plaintiff with

6

“numerous accommodations and helped her with job placement.” Id.

7

On May 15, 2013, Plaintiff wanted to take a break from school and from her job search.

8

AR 663. Ms. Stengle noted that Plaintiff was unable to identify any particular stressors in her life,

9

and in fact appeared to have “less stress in her life now than in the past.” Id. For example,
Plaintiff’s children were out of the house, she lived with her boyfriend, she was doing well in

11
United States District Court
Northern District of California

10

school, and she was working at West County Community Service’s Russian River Employment

12

Center as a peer counselor. Id.; but see AR 667 (after meeting with Plaintiff, rehabilitation

13

counselor Lauren Morales agreed that Plaintiff “has been declining in mental health and has been

14

unable to participate in services such as job placement. [She] reports that she has had issues with

15

her mental health status and with her son who has been in and out of jail for several years now.

16

The issues she has faced at home have caused her to have depression, exacerbate her carpal tunnel,

17

and caused her to do poorly in school. . . .”)

18

Plaintiff reported that listening to stories of her clients with mental issues had become

19

stressful for her and was worsening her PTSD symptoms. AR 524. Plaintiff’s supervisors were

20

very satisfied with her work performance, and upon Plaintiff’s request, they agreed to reduce her

21

work hours. Id.

22

Ms. Stengle stated that Plaintiff “looks around and sees other people with backgrounds

23

similar to hers receiving Social Security benefits. She somehow feels that she too is entitled to

24

these benefits.” Id. Ms. Stengle tried to discourage Plaintiff from applying for disability benefits,

25

as Ms. Stengle opined Plaintiff was “very capable of working as long as she has certain job

26

accommodations.” Id.

27
28

5

1

3.

Jay L. Danzig, Ph.D.

2

Jay Danzig is a clinical psychologist who performed a psychological evaluation of Plaintiff

3

on January 22, 2013. AR 525-532. Dr. Danzig found Plaintiff scored in the 50th percentile in

4

reading comprehension, and would need to have some subject-specific preparation to handle the

5

specialized vocabulary of any new job area; Plaintiff scored in the 5th percentile for expressive

6

vocabulary, suggesting a limited ability by which to communicate with others in an articulate or

7

descriptive manner, but she demonstrated adequate conversational capacities during the clinical

8

interview; Plaintiff’s abstract verbal reasoning performance was at the 15th percentile with poor

9

accuracy, she often became confused, arrived at illogical conclusions when asked to deal with
complicated written materials, and would benefit most from an on-the-job training approach which

11
United States District Court
Northern District of California

10

utilizes rote, repetition, and direct role modeling as learning modalities. AR 525-526. In contrast

12

to her poor verbal skills, Plaintiff scored in the 80th percentile with almost perfect accuracy in her

13

ability to work with detailed clerical material. AR 526 (“Her clerical speed and accuracy

14

represents a useful aptitude in terms of her moving into jobs which require her to work with entry

15

level clerical paperwork under a time pressure.”). Dr. Danzig reviewed a 2002 assessment of

16

Plaintiff’s performance and observed her “nonverbal spatial reasoning abilities as well as her

17

nonverbal concept reasoning potentials represent her most important problem solving strengths.

18

This represents an important constellation of strengths in terms of her moving into an entry level

19

mechanical or technical related occupation[].” AR 526-27. However, based on Plaintiff’s report

20

that she suffered from bilateral carpal tunnel syndrome and a pinched nerve in her right shoulder,

21

Dr. Danzig opined the feasibility of Plaintiff pursuing competitive employment in these areas in

22

the immediate future was in question, and recommended she be evaluated by Social Security for

23

benefits. AR 527; see also AR 532.

24

Dr. Danzig noted Plaintiff’s thought processes were easily followed and moderately

25

concrete in quality; he observed no psychotic processes. AR 528. The personality findings were

26

deemed not valid because “there is an extremely high probability that [Plaintiff] endorsed items

27

inaccurately by reporting symptoms and behaviors that are rarely seen even in hospitalized

28

6

1

psychiatric patients.” AR 527. He observed, “It is quite possible that Ms. Mc Math believes that

2

she needs to exaggerate health and psychological issues in order to be eligible for services. . . . In

3

my opinion . . . she is selectively reporting information and as such is not forthcoming.” AR 530.

4

Dr. Danzig opined that Plaintiff’s test results “are associated with individuals whose

5

frustration tolerance for handling interpersonal demands is significantly impaired. In everyday

6

life, others will find [her] to be less than tactful, diplomatic, or empathetic . . . . Even in benign

7

work situations, she has a basic wariness of others, a wariness that can reach paranoid proportions

8

when others make even a modicum of demands upon her. These findings clearly contraindicate

9

her returning to human services or any job which requires her to work in a close interdependent

10

manner with others.” AR 532.

United States District Court
Northern District of California

11

4

Gerald D. Jacobs, MFT

12

Plaintiff’s primary care physician, Jessica Cole, referred Plaintiff to Mr. Jacobs when

13

Plaintiff asked Dr. Cole “to write a letter to her employer excusing her from work due to her . . .

14

being triggered by her clients who have trauma.” AR 513. Dr. Cole referred Plaintiff to Mr.

15

Jacobs because Dr. Cole “is not treating [Plaintiff] for PTSD.” Id. Mr. Jacobs noted Plaintiff was

16

“mainly interested in getting a doctor to excuse her from working, though her employers have

17

given her no negative feedback about her work.” Id.

18

On May 9, 2013, Mr. Jacobs completed an Initial Adult Assessment of Plaintiff. AR 513-

19

20. He diagnosed Plaintiff with PTSD and disorder of written expression; he noted a number of

20

symptoms which “cause clinically significant distress and impairment in social, occupational, and

21

other important areas of functioning.” AR 517. He noted “mild” and “moderate” problems in a

22

number of categories relating to employment and mental health, but no severe problems. AR 518.

23

He opined Plaintiff had “significant strengths and relatively few obvious functional impairment,”

24

but that without treatment, Plaintiff “risk[ed] relapsing on substances, losing support system,

25

homelessness, [and] losing her children.” AR 520. He referred Plaintiff back to the DOR “where

26

they will work with her on disability or finding a less stressful work situation.” Id. Plaintiff did

27

not want Mr. Jacob’s services at that point in time. Id.

28

7

1

5.

Santa Rosa Memorial Hospital DBT Intensive Outpatient Program

2

Plaintiff requested to be evaluated by the Santa Rosa Memorial Hospital Outpatient

3

Behavioral Health Services program in October 2013; she complained of PTSD, depression, and

4

anxiety. AR 548. Her intake form, completed the following day, showed that Plaintiff was

5

anxious, depressed, and sad, and that her memory was impaired. AR 550. The preliminary

6

diagnosis showed PTSD and major depressive disorder, severe, recurrent. AR 552; see also AR

7

559. The initial treatment plan addressed symptoms for severe depression, poor sleep with

8

nightmares, poor energy, inability to work, poor appetite and concentration, and easily triggered

9

PTSD. AR 553. Plaintiff was scheduled to return to the program twice weekly for twelve weeks.

10

United States District Court
Northern District of California

11

Id.
During her initial assessment on October 9, 2013, Plaintiff’s affect was anxious, her mood

12

was depressed, her thought process was clear, linear, and goal directed. AR 559. She had suicidal

13

ideation but did not plan or intend to commit suicide, as she would not do that to her children. Id.

14

Plaintiff also had appropriate thought content, had good insight and memory, and fair judgment.

15

Id. The evaluator noted that Plaintiff was “clearly” suffering from depression, anxiety, and

16

symptoms of PTSD. Id. Plaintiff wanted to refrain from taking psychiatric medication, but she

17

was open-minded to taking medication in the near future. Id.

18

For multiple group sessions in October 2013, Plaintiff exhibited no impairment in

19

cognitive function and showed normal thought process, appropriate perception, appropriate

20

affect/mood, and cooperative behavior. AR 622-24. She was depressed and quiet during an

21

October 16, 2013 group session, but she remained engaged and attentive. AR 625-27. During a

22

group session on October 30, 2013, Plaintiff presented as anxious but engaged. AR 621.

23

In a November 4, 2013 group session, Plaintiff exhibited no impairment and concrete

24

thought process, appropriate perception, cooperative behavior, and anxious affect/mood. AR 544.

25

Plaintiff also engaged in group discussion of concepts and application by making eye contact with

26

peers and staff, and appeared tearful when another person did not role play during a portion of the

27

session. Id. However, Plaintiff was able to contain herself. Id. On November 6, 2013, Plaintiff

28

8

1

was active and engaged during group session but at times appeared depressed and overwhelmed.

2

AR 543, 602. On November 13, 2013, Plaintiff was quiet in group, appeared fatigued, and did not

3

exhibit impairment in cognitive function; she was easily distracted but had normal thought

4

process, appropriate perception, cooperative behavior, and appropriate but depressed and anxious

5

affect/mood. AR 541, 600. In a November 18, 2013 group session, Plaintiff was quiet and

6

appeared depressed, but during a different session on the same day, Plaintiff was “alive in group,”

7

participating and sharing her homework. AR 540, 599. Plaintiff exhibited no impairment in

8

cognitive function and exhibited normal thought process, appropriate perception, cooperative

9

behavior, and appropriate but anxious mood. Id. On November 20, 2013, Plaintiff engaged
slightly more and demonstrated marginal attention. AR 539. In addition, Plaintiff was quiet and

11
United States District Court
Northern District of California

10

appeared anxious and depressed. Id.

12

During group sessions in December 2013, Plaintiff was depressed and anxious, shared

13

minimally, and was tearful. AR 583, 587. During a group session on December 4, 2013, Plaintiff

14

exhibited no impairment in cognitive function, but she had a thought process of hopelessness and

15

appeared depressed and sad. AR 587. On December 9, 2013, Plaintiff was engaged, attentive, and

16

quiet, but she was also anxious and depressed. AR 586. On December 11, 2013, Plaintiff had no

17

impairment in her cognitive function, had a normal thought process, was cooperative, was engaged

18

and attentive, but she continued to demonstrate signs of depression. AR 585. On December 20,

19

2013, Plaintiff was calm and had an even affect, her memory was intact, her judgment and insight

20

were fair, and she was less depressed. AR 590.

21

In another group session, Plaintiff was dissociative, had a thought process of hopelessness,

22

had an appropriate perception, had a cooperative behavior, and her affect/mood were depressed

23

and anxious. AR 583.

24
25

In July 2014 and September 2014, Plaintiff was alert and her mood and affect were
appropriate during a physical examination. AR 1256, 1475.

26

6.

27

Dr. Gross is the psychological State reviewing physician who assessed Plaintiff’s

28

David Gross, M.D.

9

1

application for disability benefits at the Initial level. AR 91-104. Dr. Gross considered the

2

medical and other information received and Plaintiff’s age, education, training, and work

3

experience to determine how Plaintiff’s conditions affected her ability to work. AR 104. He

4

determined that Plaintiff’s condition should permit sustained public, simple, and complex work.

5

AR 96-97. He opined that Plaintiff’s restriction of activities of daily living (ADLs) and

6

difficulties in maintaining social functioning, concentration, persistence, or pace were mild. AR

7

97. Dr. Gross noted Plaintiff attended community college part-time and counseled teens part-time.

8

AR 100. He found no evidence of cognitive issues. Id.

9

Dr. Gross opined Plaintiff may have some difficulties with consistent work. AR 100-01.
Plaintiff’s Mental Residual Functional Capacity Assessment showed that Plaintiff may have some

11
United States District Court
Northern District of California

10

difficulties with consistency due to self-reported PTSD-like symptoms, but the overall evidence

12

showed Plaintiff’s willingness to attend and persist at desired goals. AR 101. Dr. Gross

13

determined Plaintiff appeared capable of adequate social interaction and appeared capable of

14

adapting. Id. Plaintiff demonstrated a maximum sustained work capability of light. AR 103. Dr.

15

Gross recognized that the medical evidence supported Plaintiff’s allegations but not to the level of

16

total disability. Id. Dr. Gross acknowledged that Plaintiff may be anxious and depressed at times,

17

but the records showed that Plaintiff was able to think, communicate, and act in her own interest

18

(AR 103-04), as well as maintain pace, persistence, and concentration needed to perform work

19

over a forty-hour week (AR 104). Evidence showed that Plaintiff was able to adjust to ordinary

20

emotional stresses, get along with others, do her regular activities, care for her own daily personal

21

needs, and remember and follow simple and complex instructions. AR 104.

22

Additionally, Dr. Gross opined Plaintiff has “the ability to maintain the pace, persistence,

23

and concentration needed to perform work, with appropriate breaks, over a forty-hour week.” Id.

24

While Plaintiff has some limitations to performing work related activities and may not be capable

25

of performing the type of work she had done in the past, she is able to do work that is less

26

demanding. Id. Ultimately, Dr. Gross determined that Plaintiff was not disabled. AR 103.

27
28

10

1

7.

Tawnya Brode, Psy. D.

2

Dr. Brode is the State agency reviewing physician who assessed Plaintiff’s application for

3

disability benefits at the Reconsideration level. AR 19, 106. Dr. Brode opined Plaintiff had some

4

moderate limitations. AR 118-19. While Plaintiff’s restriction of activities of daily living and

5

difficulties in maintaining social functioning were mild, her difficulties in concentration,

6

persistence, or pace were moderate. AR 115. Dr. Brode acknowledged Plaintiff attended

7

community college part-time and counseled troubled teens part-time, without evidence of

8

cognitive issues. AR 118. As to Plaintiff’s sustained concentration and persistence limitations,

9

Dr. Brode found Plaintiff may have some difficulties with consistent work for anything more than
semi-skilled (3-4 step) tasks, as she has PTSD symptoms while counseling troubled teens, and a

11
United States District Court
Northern District of California

10

history of depression, anxiety, and abuse as a child. AR 118-19.

12

Plaintiff was not significantly limited in her ability to carry out very short and simple

13

instructions, detailed instructions, maintain attention and concentration for extended periods,

14

sustain an ordinary routine without special supervision, and make simple work-related decisions.

15

AR 118. On the other hand, Dr. Brode determined that Plaintiff’s ability to perform activities

16

within a schedule, maintain regular attendance, be punctual within customary tolerance, work in

17

coordination with or in proximity to others without being distracted by them, complete a normal

18

workday and work week without interruption from psychologically based symptoms, and perform

19

at a consistent pace without an unreasonable number and length of rest periods were moderately

20

limited. Id. With regards to Plaintiff’s social interaction limitations, Plaintiff may have some

21

difficulties with consistent work due to PTSD symptoms, and a history of depression, anxiety, and

22

abuse as a child. AR 119.

23

C.

The ALJ’s Findings

24

Plaintiff has participated in a number of assessments and has attended group therapy

25

sessions. The regulations promulgated by the Commissioner of Social Security provide for a five-

26
27
28

11

1

step sequential analysis to determine whether a Social Security claimant is disabled.3 20 C.F.R. §

2

404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or

3

negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer

4

v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential

5

inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm’r

6

Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the

7

Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v.

8

Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).
The ALJ must first determine whether the claimant is performing “substantial gainful

10

activity,” which would mandate that the claimant be found not disabled regardless of medical

11
United States District Court
Northern District of California

9

condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). Here, the ALJ

12

determined that Plaintiff had not performed substantial gainful activity since April 1, 2012. AR

13

13.
At step two, the ALJ must determine, based on medical findings, whether the claimant has

14
15

a “severe” impairment or combination of impairments as defined by the Social Security Act. 20

16

C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20

17

C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe

18

impairments: repetitive strain injury, pulmonary sarcoidosis, status post hand burns since age six,

19

depression, and PTSD. AR 13.
If the ALJ determines that the claimant has a severe impairment, the process proceeds to

20
21

the third step, where the ALJ must determine whether the claimant has an impairment or

22

combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt.

23

P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant’s

24

impairment either meets the listed criteria for the diagnosis or is medically equivalent to the

25
26
27
28

3

Disability is “the inability to engage in any substantial gainful activity” because of a medical
impairment which can result in death or “which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
12

1

criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age,

2

education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff

3

did not have an impairment or combination of impairments that meets the listings. AR 13.

4

Before proceeding to step four, the ALJ must determine the claimant’s Residual Function
Capacity (RFC). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work

6

setting, despite mental or physical limitations caused by impairments or related symptoms. 20

7

C.F.R. § 404.1545(a)(1). In assessing an individual’s RFC, the ALJ must consider all of the

8

claimant’s medically determinable impairments, including the medically determinable

9

impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that Plaintiff

10

has the RFC to perform light work as defined by 20 CFR §§ 404.1567(b) and 416.967(b). AR 15.

11
United States District Court
Northern District of California

5

Specifically, Plaintiff can lift and/or carry 10 pounds frequently, 20 pounds occasionally, sit for 6

12

hours out of an 8-hour workday, stand and/or walk for 6 hours out of an 8-hour workday, and

13

frequently handle bilaterally. AR 15-16. She must also avoid concentrated exposure to fumes,

14

odors, dusts, gases, and poor ventilation; and she is limited to simple, repetitive tasks and to

15

occasional contact with co-workers and the public. AR 16.

16

The fourth step of the evaluation process requires that the ALJ determine whether the

17

claimant’s RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv);

18

404.1520(f). Past relevant work is work performed within the past 15 years that was substantial

19

gainful activity, and that lasted long enough for the claimant to learn to do it. 20 C.F.R. §

20

404.1560(b)(1). If the claimant has the RFC to do his past relevant work, the claimant is not

21

disabled. 20 C.F.R. § 404.1520(a)(4)(iv). Here, the ALJ determined that Plaintiff could not

22

perform past relevant work as a residential counselor and school adjustment counselor. AR 21.

23

In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there

24

are other jobs existing in significant numbers in the national economy which the claimant can

25

perform consistent with the claimant’s RFC, age, education, and work experience. 20 C.F.R. §§

26

404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of

27

a VE or by reference to the Medical-Vocational Guidelines at 20 C.F.R. pt. 404, Subpt. P, App. 2.

28

13

1

Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the testimony of the

2

VE, Plaintiff’s age, education, work experience, and RFC, the ALJ determined there are jobs that

3

exist in significant numbers in the national economy that the claimant can perform pursuant to 20

4

CFR §§ 404.1569, 404.1569(a), 416.969, and 416.969(a) such as marker, retail, housekeeping

5

cleaner, and router. AR 21-22.

6

D.

ALJ’s Decision and Plaintiff’s Appeal

7

On November 13, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was

8

not disabled. AR 23. This decision became final when the Appeals Council declined to review it

9

on December 23, 2015. AR 1-3. Having exhausted all administrative remedies, Plaintiff

10

United States District Court
Northern District of California

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). On July 7, 2017,
Plaintiff filed the present Motion for Summary Judgment. On August 9, 2017, Defendant filed a
Cross-Motion for Summary Judgment.
LEGAL STANDARD
This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42
U.S.C. § 405(g). The ALJ’s decision must be affirmed if the findings are “supported by
substantial evidence and if the [ALJ] applied the correct legal standards.” Holohan v. Massanari,
246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). “Substantial evidence means more than a
scintilla but less than a preponderance” of evidence that “a reasonable person might accept as
adequate to support a conclusion.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002)
(quoting Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The
court must consider the administrative record as a whole, weighing the evidence that both supports
and detracts from the ALJ’s conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989).
However, “where the evidence is susceptible to more than one rational interpretation,” the court
must uphold the ALJ’s decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989).
Determinations of credibility, resolution of conflicts in medical testimony, and all other
ambiguities are to be resolved by the ALJ. Id.
Additionally, the harmless error rule applies where substantial evidence otherwise supports
14

1

the ALJ’s decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not

2

reverse an ALJ’s decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d

3

1104, 1111 (9th Cir. 2012) (citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56

4

(9th Cir. 2006)). “‘[T]he burden of showing that an error is harmful normally falls upon the party

5

attacking the agency’s determination.’” Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409

6

(2009)).
DISCUSSION

7

The parties contest one issue: whether the ALJ properly rejected Roberta Mineo’s opinion.

8
9

See Pl.’s Mot. at 5; see also Opp’n at 2. Plaintiff argues the ALJ’s final decision failed to
adequately consider the record as a whole and failed to articulate germane reasons supported by

11
United States District Court
Northern District of California

10

substantial medical evidence for rejecting Ms. Mineo’s opinion. See Pl.’s Mot. at 6-7. Defendant

12

argues the ALJ properly rejected Ms. Mineo’s opinion, as the ALJ’s decision was supported by

13

substantial evidence, and it was free from legal error. See Opp’n at 2-8. The Court addresses the

14

sufficiency of each of the reasons articulated by the ALJ.

15

A.

Standard Applicable to Evaluating Ms. Mineo’s Opinion

16

The ALJ rejected Ms. Mineo’s opinion and gave little weight to the statement, as “an

17

opinion that is not from an acceptable medical source is not entitled to be given the same weight as

18

a qualifying medical source opinion.” AR 20. Ms. Mineo is Plaintiff’s therapist but she is not a

19

medical doctor; it is undisputed that she is not considered an “acceptable medical source.” See

20

Pl.’s Mot. at 6. Ms. Mineo may not be an “acceptable medical source,” but is nevertheless an

21

“other source.” See also 20 C.F.R. §§ 404.1513(a)(3), 416.913(d); see also Stephens v. Colvin,

22

2014 WL 6982680, at *4 (N.D. Cal. Dec 9, 2014). “Other sources” are not entitled to the same

23

deference afforded to “acceptable medical sources.” Molina, 674 F.3d at 1111. The ALJ thus

24

may accord opinions from “other sources” less weight than opinions from acceptable medical

25

sources. Stephens, 2014 WL 6982680, at *4 (citing Gomez v. Chater, 74 F.3d 967, 970-71 (9th

26

Cir. 1996)).

27
28

However, lay witness testimony may not be disregarded without comment; to do so, an
15

1

ALJ “‘must give reasons that are germane to each witness.’” Nguyen v. Chater, 100 F.3d 1462,

2

1467 (9th Cir.1996) (quoting Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir. 1993)); see Molina,

3

674 F.3d at 1111; Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005) (“An ALJ need only

4

give germane reasons for discrediting the testimony of lay witnesses.”).

5

B.

6

Analysis
The ALJ articulated the following reasons for disregarding Ms. Mineo’s testimony: she did

7

not provide an explanation for her assessment or any specific functional limitation that prevented

8

Plaintiff from working; her opinion is inconsistent with the objective findings that show mild to

9

moderate findings; and her opinion is inconsistent with the claimant’s admitted activities. AR 20.
1.

11
United States District Court
Northern District of California

10

Explanation for Assessment or Functional Limitations

The ALJ rejected Ms. Mineo’s opinion because Ms. Mineo did not opine Plaintiff suffers

12

from specific functional limitations that prevent her from working. AR 20. This is an accurate

13

characterization of Ms. Mineo’s opinion. See AR 521-23. Ms. Mineo chronicles Plaintiff’s

14

learning disability and impairments, including PTSD, the effects of which remain with Plaintiff to

15

this date. AR 521. She reports that Plaintiff has “shown signs of chronic Major Depression[,

16

which] has been severe, but without psychotic features. Anxious thoughts make sleep difficult.

17

At times she feels panicked and has shortness of breath.” AR 522. She explains Plaintiff is

18

“frequently detached and experiences some episodes of dissociation.” Id. But Ms. Mineo does

19

not state the frequency of Plaintiff’s impairments nor the impact of those impairments on any

20

aspect of her ability to work. In discussing Plaintiff’s prognosis, Ms. Mineo opines that Plaintiff’s

21

“ability to sustain concentration is impaired to the extent that it would affect her participation in a

22

work setting” and that she “would have difficulty to adapting to the demands of a new

23

[social/work] environment.” AR 523. Ms. Mineo does not explain whether she finds Plaintiff’s

24

ability to sustain concentration is “severely,” “moderately,” or merely “mildly” impaired—only

25

that it is “impaired to the extent it would affect her participation.” She similarly does not opine

26

about the level of difficulty Plaintiff would have in adapting to a new work environment. Ms.

27

Mineo does not opine Plaintiff’s conditions prevent her from performing any type of work.

28

16

1

Ms. Mineo’s statement is insufficiently detailed to allow the ALJ to determine whether

2

Plaintiff is disabled. “Other source” opinions such as Ms. Mineo’s “must be complete and

3

detailed enough to allow [the ALJ] to make a determination or decision about whether [a claimant]

4

is disabled.” 20 C.F.R. § 404.1513(e). Plaintiff does not argue this was not a germane reason for

5

rejecting the opinion in her Motion, nor does she respond to Defendant’s Opposition on this point.

6

See Mot. The undersigned finds the ALJ’s first reason for giving little weight to Ms. Mineo’s

7

letter is germane.

8

2.

9

The ALJ also rejected Ms. Mineo’s opinion because it was inconsistent with the objective

Inconsistency with Objective Findings

findings, which showed mild to moderate impairments. AR 20. Inconsistency with medical

11
United States District Court
Northern District of California

10

evidence is a germane reason for rejecting the opinion of a non-medical source. Bayliss, 427 F.3d

12

at 1218 (citing Lewis v. Apfel, 236 F.3d 503, 511 (9th Cir. 2001)).

13

The ALJ gave significant weight to the opinions of the two SSA reviewing physicians,

14

Drs. Gross and Brode. AR 19. At the initial level, Dr. Gross found the record only supported

15

mild limitations. AR 97. On reconsideration, Dr. Brode re-reviewed the claim with the benefits

16

of Dr. Danzig’s January 22, 2013 evaluation and found Plaintiff’s presentation supported mild to

17

“wnl” [within normal limits] impairments. AR 114. Dr. Brode confirmed Plaintiff had affective

18

disorders, anxiety-related disorders, and personality disorders, but found the record showed these

19

only caused mild restrictions in ADLs, mild difficulties in maintaining social functioning, and

20

moderate difficulties in maintaining concentration, persistence or pace. AR 115.

21

In addition, the ALJ reviewed Plaintiff’s psychological records from January 8, 2013

22

through December 16, 2013; the ALJ summarized multiple unremarkable mental status

23

examinations, the results of Dr. Danzig’s evaluation, and Plaintiff’s decision to forego psychiatric

24

treatment because she could not treat her mental illness with natural remedies. AR 18-19; see also

25

AR 20 (“In this case, the mental status examinations were mostly within normal limits; they did

26

not document claimant’s experiencing suicidal ideation, obsessional rituals, serious impairment in

27

social functioning, or conflicts with peers or coworkers. In fact, claimant lives with family,

28

17

1

engages in [ADLs], and even holds down a job and takes classes.”). The ALJ also noted that Dr.

2

Danzig’s evaluation could not be used for diagnostic purposes because, he opined, Plaintiff may

3

have endorsed testing items inaccurately because she believes she needs to exaggerate health and

4

psychological issues to receive services. AR 18.

5

Plaintiff argues the ALJ erred by discussing only the evidence that tended to support denial

6

of benefits. Pl.’s Mot. at 6. She illustrates her point by arguing that her symptoms were not

7

always within normal limits, and that she appeared depressed or anxious during certain group

8

sessions; presented as tearful during one session; and presented as easily distracted and fatigued in

9

another. Id. The ALJ did not find Plaintiff was free of symptoms; on the contrary, she found
Plaintiff suffered from PTSD and depression and experienced mild to moderate limitations in her

11
United States District Court
Northern District of California

10

ADLs; social functioning; and concentration, persistence, or pace. AR 13-15. The ALJ did not,

12

however, find that the record supported limitations greater than the mild or moderate impairments

13

described by Drs. Gross and Brode. That Plaintiff exhibited symptoms consistent with her

14

diagnoses during group sessions does not undermine the ALJ’s conclusions, nor those of Drs.

15

Gross and Brode. The ALJ’s second reason for discounting Ms. Mineo’s opinion was germane.

16

3.

17

Finally, the ALJ discounted Ms. Mineo’s opinion because it was inconsistent with

18

Plaintiff’s admitted activities of daily living. AR 20. “The Social Security Act does not require

19

that claimants be utterly incapacitated to be eligible for benefits, and many home activities may

20

not be easily transferable to a work environment where it might be impossible to rest periodically

21

or take medication.” See Smolen, 80 F.3d at 1284 n.7. However, “[w]hile a claimant need not

22

vegetate in a dark room in order to be eligible for benefits, the ALJ may discredit a claimant’s

23

testimony when the claimant reports participation in everyday activities indicating capacities that

24

are transferable to a work setting.” Molina, 674 F.3d at 1111 (internal quotation marks and

25

citations omitted).

26

Inconsistency with admitted activities

Here, the ALJ listed Plaintiff’s admittedly “somewhat normal level of daily activity and

27

interaction”: interacting with her stepchildren, living with her boyfriend and his children, going for

28

18

walks, and reading; going to class, driving, going out alone, using public transportation; shopping

2

in stores and by computer, preparing meals, doing light cleaning, doing yoga, playing light sports;

3

research writing, writing poetry, reading; going to lunch with friends; spending time with others

4

one to two times a day; and being busy working and going to school. AR 16-17; see also AR 14

5

(finding Plaintiff had “mild” limitations in ADLs); AR 15 (listing ADLs, including Plaintiff’s

6

work as a peer counselor, and her supervisor’s satisfaction with her performance). The ALJ did

7

not discredit Plaintiff’s testimony because she occasionally engaged in social outings or went for

8

walks; the ALJ instead noted that “the physical and mental capabilities requisite to performing

9

many of the tasks described above, as well as the social interactions, replicate those necessary for

10

obtaining and maintaining employment.” AR 17. While the undersigned may have weighed this

11
United States District Court
Northern District of California

1

evidence differently, the ALJ’s conclusion is supported by more than a scintilla of evidence, and

12

the undersigned cannot find the ALJ erred in this assessment.4 See Garrison, 759 F.3d at 1009-10.

13

Plaintiff also argues the ALJ erred in failing to address Drs. Gross and Brode opined

14

Plaintiff may have some difficulties with consistent work. Opp’n at 7-8. The ALJ gave

15

significant weight to the opinions of Drs. Gross and Brode, and adopted their assessments of

16

Plaintiff’s limitations, including the moderate impairments Dr. Brode assessed in Plaintiff’s ability

17

to maintain sustained concentration and persistence. AR 21; see AR 118-19 (Dr. Brode explained

18

the “sustained concentration and persistence capacities and/or limitations” as follows: “reports

19

PTSD-[symptoms] while counseling troubled teens. [R]eports [history of] depression & anxiety &

20

[history of] abuse as a child. [M]ay have some difficulties [with] consistent work for anything

21

more than semi-skilled (3-4 step) tasks”). Consistent with Dr. Brode’s assessment, the ALJ found

22

Plaintiff experienced moderate limitations in the functional area of “concentration, persistence and

23
24
25
26
27
28

4

Plaintiff argues the ALJ failed to acknowledge she received accommodations while in school,
and sought to take a break from school and to reduce her hours at work. Pl.’s Mot. at 7. The fact
Plaintiff was able to work and go to school with accommodations does not establish she cannot
engage in work of any type. The ALJ did not find Plaintiff could perform her past relevant work
as a counselor, but rather that she could perform less than the full range of light work, and
included non-exertional limitations that reflected Plaintiff’s limitations in social interaction and
concentration, persistence, or pace.
19

1

pace” and accommodated that limitation by limiting Plaintiff to simple, repetitive tasks. AR 15.

2

The RFC the ALJ adopted limits Plaintiff to simple, repetitive tasks, and to occasional contact

3

with co-workers and the public. AR 16. Far from ignoring Dr. Brode’s findings regarding

4

Plaintiff’s difficulties with consistent work, the ALJ adopted the limitations Dr. Brode assessed in

5

full. Those limitations are also consistent with the opinions of Dr. Danzig and Mr. Jacobs, who

6

agreed Plaintiff would have difficulty performing her current work as a counselor, but did not

7

opine Plaintiff’s conditions prevented her from performing any type of work. See AR 520 (Mr.

8

Jacobs: DOR “will work with [Plaintiff] on disability or finding a less stressful work situation.”);

9

AR 532 (Dr. Danzig: “These findings clearly contraindicate her returning to human services or

10

any job which requires her to work in a close interdependent manner with others.”).
CONCLUSION

United States District Court
Northern District of California

11
12

The ALJ applied the correct legal standard, and her decision was supported by substantial

13

evidence. The Court accordingly DENIES Plaintiff’s Motion for Summary Judgment and

14

GRANTS Defendant’s Cross-Motion for Summary Judgment. The Court will enter a separate

15

judgment.

16

IT IS SO ORDERED.

17
18
19
20

Dated: November 29, 2017
______________________________________
MARIA-ELENA JAMES
United States Magistrate Judge

21
22
23
24
25
26
27
28

20