Sims v. Colvin

Filing 18

REPORT AND RECOMMENDATION (Re Dkt #s 15 , 16 ): Objections to R&R due by 8/18/2017. Replies due by 9/1/2017. Signed by Magistrate Judge Jan M. Adler on 7/27/2017. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 RAY P. SIMS, 11 Case No.: 16-cv-02237-WQH-JMA 12 Plaintiff, 13 vs. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant.1 17 REPORT & RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT [ECF Nos. 15, 16] 18 19 Plaintiff Ray P. Sims (“Plaintiff”) seeks judicial review of Defendant Social 20 Security Commissioner Nancy A. Berryhill’s (“Defendant”) determination that he 21 is not entitled to disability insurance benefits (“DIB”) and supplemental security 22 income (“SSI”). The parties have filed cross-motions for summary judgment. 23 [ECF Nos. 15, 16.] For the reasons set forth below, the Court recommends 24 Plaintiff’s motion for summary judgment be DENIED and Defendant’s cross- 25                                                                   26 1 27 Nancy A. Berryhill, the new Acting Commissioner of Social Security, is substituted as the Defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d). 1 16-cv-02237-WQH-JMA 1 motion for summary judgment be GRANTED. 2 I. BACKGROUND Plaintiff Ray P. Sims was born on June 16, 1969 and is a high school 3 4 graduate. (Admin. R. at 198, 220.) Until January 10, 2012, the alleged onset 5 date, Plaintiff worked as a home inspector. (Id. at 53, 221.) Plaintiff stopped 6 working in January 2012 due to an aortic dissection that was caused by blunt 7 force trauma from a physical altercation. (Id. at 54.) 8 On March 5, 2012, Plaintiff filed an application for a period of disability and 9 disability insurance benefits. (Id. at 71.) On March 6, 2012, Plaintiff protectively 10 filed an application for supplemental security income. (Id. at 28, 78.) In both 11 applications, Plaintiff alleged a disability onset date of January 10, 2012. (Id. at 12 71, 78, 196-201.) The Social Security Administration (“SSA”) denied the claim 13 initially on June 20, 2012 and again upon reconsideration on July 10, 2013. (Id. 14 at 114-17, 122-27.) On July 31, 2013, Plaintiff filed a written request for an 15 administrative hearing. (Id. at 128-29.) On November 14, 2014, a hearing was 16 conducted by Administrative Law Judge (“ALJ”) Keith Dietterle, who determined 17 on January 5, 2015 that Plaintiff was not disabled within the meaning of the 18 Social Security Act. (Id. at 28-42.) On February 8, 2015, Plaintiff requested a 19 review of the ALJ’s decision. (Id. at 23.) The Appeals Council for the SSA 20 denied Plaintiff’s request for review on July 5, 2016. (Id. at 1-7.) Plaintiff then 21 commenced this action pursuant to 42 U.S.C. § 405(g). Plaintiff raises only one 22 issue: that the ALJ failed to properly consider Plaintiff’s memory loss in 23 assessing Plaintiff’s ability to work. 24 II. MEDICAL EVIDENCE 25 A. Sharp Grossmont Hospital (January 2012) 26 On January 9, 2012, Plaintiff presented to Sharp Grossmont Hospital 27 2 16-cv-02237-WQH-JMA 1 with unprovoked chest pain. (Id.) He was found to have a type A dissecting 2 aortic aneurysm. (Id.) He was then admitted to the Intensive Care Unit 3 (“ICU”) and underwent surgical intervention by Dr. Yuan Lin the same day. 4 (Id. at 291.) After surgery, Plaintiff had a prolonged postoperative ICU 5 course due to hypoxemia, which was the apparent result of chronic 6 marijuana use. (Id.) Once this was resolved, Plaintiff underwent physical 7 therapy and rehabilitation. (Id.) Plaintiff was discharged on January 19, 8 2012 with a number of medications: Coreg 25mg, Lisinopril 20mg, Lipitor 9 40mg, Enteric-coated aspirin 81mg, and Norvasc 10 mg. (Id.) After being 10 discharged from the ICU, and undergoing further physical therapy, Plaintiff 11 consequently regained his function and was again able to ambulate 12 normally. (Id.) 13 B. 14 Indian Health Council (Febrary 2012 – August 2012) On Febrary 3, 2012, Plaintiff presented to Dr. Charlene Tobin at 15 Southern Indian Health Council. (Id. at 524.) Plaintiff complained of 16 weakness, dizziness, sleeplessness due to medication, and discomfort 17 from the aortic dissection surgery, and that his C Pap machine for sleep 18 apnea had been stolen. (See Id. at 524-25.) Dr. Tobin noted that Plaintiff 19 was a pleasant man with a slight slur to his speech. (Id. at 525.) She 20 found Plaintiff to have the following ailments: 1) aortic dissection with 21 clinical death for 20 minutes and surgery; in a coma for 7 days, 2) brain 22 injury from the coma resulting in some slurred speech, 3) anemia from 23 blood loss in surgery, 4) fatigue, 5) sleep apnea with need for C Pap 24 machine, and 6) elevated blood sugar. (Id. at 525-26.) Over the following 25 months, he was treated for these ailments at this facility. (See Id. at 521- 26 541.) 27 3 16-cv-02237-WQH-JMA 1 2 C. Albert Sharf, M.D. (May 2012 – July 2014) On October 16, 2012, Plaintiff presented to Dr. Albert Sharf 3 complaining of chest pain lasting 15-20 minutes and palpitations lasting five 4 minutes. (Id. at 554.) Plaintiff also complained of dizziness, occasional 5 claudication, and trouble remembering things. (Id.) Dr. Sharf diagnosed 6 Plaintiff with “unspecified hypertensive heart disease without heart failure.” 7 (Id. at 555.) On March 12, 2013, Plaintiff presented to Dr. Sharf 8 complaining of tunnel vision with lighting flashes and dizziness for the last 9 month. (Id. at 556.) He denied any chest pain, though he did complain of 10 “chest pressure” similar to cramping. (Id. at 556, 591.) Dr. Sharf’s 11 diagnosis remained the same and he put in an urgent referral to 12 ophthalmology (Id.) On June 18, 2013, Plaintiff presented to Dr. Sharf 13 complaining of mild palpitations about once per day. (Id. at 589.) Plaintiff 14 denied any chest pain, but said he suffered from dizziness with sudden 15 movements. (Id.) Dr. Sharf added “other acute and subacute forms of 16 ischemic heart disease” to Plaintiff’s diagnosis. (Id. at 589.) On July 8, 17 2013, Plaintiff again presented to Dr. Sharf, stating that his palpitations had 18 improved. (Id. at 587.) He denied any chest pain, dizziness or 19 claudication. (Id.) Dr. Sharf’s diagnosis remained the same through 20 November 2013. (Id.) 21 On February 24, 2014, Plaintiff underwent the following procedures at 22 Alvarado Hospital: (1) selective coronary arteriography, (2) left 23 ventriculography, and (3) thoracic and abdominal aortography. (Id. at 640.) 24 The procedures were successful. (See id. at 640-41.) The post-operative 25 plan consisted of long acting nitrates to be added to his medical regimen. 26 (Id. at 641.) Contrary to many of Plaintiff’s other medical histories, during 27 4 16-cv-02237-WQH-JMA 1 2 pre-op, Plaintiff stated that he was a regular marijuana user. (Id. at 642.) On May 20, 2014, Plaintiff presented to Dr. Sharf for a cardiovascular 3 exam, complaining of chest pressure, numbness of both legs at night, 4 claudication, a hernia that he recently noticed, dyspnea on exertion, 5 palpitations in the morning, and edema. (Id. at 638.) Dr. Sharf’s diagnosis 6 again was unspecified hypertensive heart disease without heart failure, and 7 other acute and subacute forms of ischemic heart disease. (Id. at 639.) 8 Plaintiff’s medications as of this visit included: Lisinopril, aspirin, nitrostat, 9 and carvedilol. (Id.) 10 On July 29, 2014, Dr. Sharf completed a Residual Functional 11 Capacity (“RFC”) Questionnaire for Plaintiff, in which he described 12 Plaintiff’s diagnoses as: aortic dissection, hypertension, and chest pain. 13 (Id. at 650.) There was no diagnosis of any mental impairments. (Id.) Dr. 14 Sharf identified Plaintiff’s symptoms as: chest pain, angina, shortness of 15 breath, fatigue, weakness, edema, nausea, palpitations, dizziness, and 16 sweatiness, and indicated these symptoms were brought on by stress. (Id. 17 at 650-51.) Dr. Sharf indicated that Plaintiff had marked limitations of 18 physical activity and was incapable of even “low stress” jobs due to his 19 aortic dissection. (Id. at 651.) Dr. Sharf also found that Plaintiff’s physical 20 symptoms led to emotional difficulties including depression, which in turn 21 contributed to the severity to Plaintiff’s subjective symptoms and functional 22 limitations. (Id.) 23 Dr. Sharf opined that during a typical work day, Plaintiff’s cardiac 24 symptoms were constantly (meaning more than 66% of an 8-hour workday) 25 severe enough to interfere with attention and concentration needed to 26 perform even simple work tasks. (Id.) Dr. Sharf indicated the following with 27 5 16-cv-02237-WQH-JMA 1 respect to Plaintiff’s functional limitations in a competitive work situation: 2 (a) He was unable to walk even one city block without rest or severe pain, 3 (b) he could not sit even two hours in an 8-hour workday and could not 4 stand/walk for two hours in an 8-hour workday, (c) he needed a job that 5 permitted shifting positions from sitting to standing at will, (d) he would 6 need to take unscheduled breaks during an 8-hour workday, (e) he could 7 never lift even weights less than 10 lbs, (f) he could never twist, stoop, 8 crouch, climb ladders, or climb stairs, and (g) he needed to avoid all 9 exposure to extreme cold, extreme heat, high humidity, wetness, cigarette 10 smoke, perfumes, soldering fluxes, solvents/cleaners, fumes/odors, dust, 11 and chemicals. (Id. at 652-53.) Dr. Sharf estimated that Plaintiff would 12 likely be absent for more than four days per month due to his impairments 13 and noted he was “unable to work.” (Id.) 14 D. Amy L. Kanner, M.D., Examining Physician (May 2013) 15 Plaintiff presented to Dr. Amy Kanner for an internal medicine 16 examination on May 13, 2013. (Id. at 558.) He complained of chest pain, 17 shortness of breath, hypertension, eye problems, and abdominal aortic 18 dissection. (Id.) Dr. Kanner observed Plaintiff to be a well-developed, well- 19 nourished, obese male in no acute distress. (Id. at 560.) She observed 20 Plaintiff to have no problem getting in and out of a chair and noted no 21 apparent ataxia or dyspnea. (Id.) Dr. Kanner conducted a full physical 22 examination, which resulted in mostly normal findings. (See id. at 560-64.) 23 Her functional assessment was that Plaintiff could lift and carry 20 pounds 24 occasionally and 10 pounds frequently, could stand or walk for 6 hours of 25 an 8 hour work day, and could sit for 6 hours of an 8 hour work day. (Id. at 26 564.) Dr. Kanner believed Plaintiff’s limitations were due to his history of 27 6 16-cv-02237-WQH-JMA 1 abdominal aortic dissection. (Id.) 2 E. 3 Gitane Patel, M.D., Ophthalmologist (May 2013) Plaintiff presented to ophthalmologist Dr. Gitane Patel for an eye 4 examination on May 20, 2013. (Id. at 571.) Dr. Patel found that Plaintiff 5 had 20/20 visual acuity in both eyes. (Id.) Dr. Patel suggested that his 6 visual disturbances were likely the result of migraine headaches and 7 recommended evaluation by a neurologist. (Id. at 572.) 8 F. 9 Dan Whitehead, Ph.D. (April 2013 – June 2013) Plaintiff presented to Dr. Dan Whitehead for a mental status 10 evaluation on June 17, 2013. (Id. at 578.) Plaintiff told Dr. Whitehead that 11 the reason for his social security claim was because he had an aortic 12 dissection and because his “memory is shot.” (Id.) Dr. Whitehead 13 extracted a brief history from Plaintiff, and then conducted a mental status 14 evaluation and various psychological and neuropsychological tests. (See 15 id. at 578-83.) 16 Plaintiff was fully alert and coherent during the evaluation and was 17 oriented to time, space, place, person, and situation. (Id. at 580.) Plaintiff 18 demonstrated a good ability to remember recent events and circumstances 19 in his life. (Id.) Plaintiff appeared neat and clean, well groomed and 20 presentable. (Id.) He was able to perform “Serial 7’s” (a concentration 21 test) at a good ability level. (Id.) Motor activity, speech, mood, and affect 22 were all within normal levels. (Id.) Plaintiff was able to spell WORLD 23 correctly backwards and forwards, was able to perform basic 24 addition/subtraction and multiplication/division in his head, and was able to 25 identify similarities between items. (Id.) Plaintiff did not have any issues 26 with comprehension of test instructions. (Id. at 581.) He did not show any 27 7 16-cv-02237-WQH-JMA 1 signs of problems with his thought processes. (Id.) 2 The Trails A&B test conducted by Dr. Whitehead indicated no 3 impairment. (Id.) On the Wechsler Memory Scales-4 test, Plaintiff had an 4 immediate memory index score of 75 (5th percentile, borderline), a delayed 5 memory score of 80 (9th percentile, low average), an auditory memory 6 score of 81 (10th percentile, low average), and a visual memory score of 79 7 (8th percentile, borderline). (Id.) 8 9 Dr. Whitehead made the following assessment of Plaintiff based on his psychological testing and mental evaluation: 10 …. 11 Based on the memory and cognitive abilities demonstrated by the claimant during this evaluation, he seems capable of performing a variety of work activities that require simple tasks at a constant level of performance. Persons with intelligence and memory functions in the borderline range and above are typically able to perform a wide variety of simple work functions of a constant nature, as long as there are no other major problems or concerns. 12 13 14 15 16 17 18 19 (Id. at 582.) G. 20 21 22 23 24 25 26 Centro Medico (March 2012 – August 2013) Between March 2012 and August 2013, Plaintiff presented to Centro Medico a number of times. (See id. at 622-35.) These visits were made in order to obtain ophthalmologist, cardiologist, and dental referrals, as well as x-rays. (See id.) H. Neighborhood Healthcare (July 2014 – September 2014) On July 16, 2014, Plaintiff presented to Dr. Nathan McFarland at Neighborhood Healthcare regarding his hernia. (Id. at 664.) Plaintiff reported 27 8 16-cv-02237-WQH-JMA 1 no feelings of depression. (Id.) He did, however, report daily knee pain and 2 occasional swelling in his right knee, along with migraines, heartburn, and 3 hypertension. (Id.) After examining Plaintiff, Dr. McFarland made the following 4 assessments: (1) hypertension, (2) aortic dissection, (3) right knee meniscal 5 tear, (4) epigastric hernia, and (5) atypical mole. (Id. at 665-66.) On August 21, 6 2014, Plaintiff again presented to Dr. McFarland for a follow-up on labs. (Id. at 7 658.) Plaintiff complained of anxiety since his surgery and consequently, Dr. 8 McFarland added anxiety to his assessment of Plaintiff. (Id. at 658, 661.) 9 On September 19, 2014, Plaintiff presented to social worker Enzo Arya for 10 a behavioral follow-up for depression and anxiety. (Id. at 671.) Plaintiff 11 reported depressed mood more days than not, constant fatigue, difficulty 12 concentrating, irritability and anger, excessive worrying, anxiety, and inability to 13 feel pleasure. (Id. at 671.) Arya performed a mental examination of Plaintiff 14 and made the following assessments: (1) major depressive disorder, recurrent 15 episode, moderate and (2) anxiety disorder due to medical condition. (Id. at 16 671-72.) 17 III. 18 THE ADMINISTRATIVE HEARING The ALJ conducted an administrative hearing on November 14, 2014. 19 (Id. at 48-70.) 20 A. 21 Plaintiff’s Testimony Plaintiff testified that until January 2012, he had worked as a home 22 inspector. (Id. at 53.) He stopped working in January 2012 due to 23 problems arising from an aortic dissection and the subsequent surgery. (Id. 24 at 53-54.) Plaintiff testified he experiences shortness of breath and has 25 trouble walking and sitting for long periods of time. (Id. at 55.) He 26 attributed the walking trouble to his shortness of breath, though he had not 27 9 16-cv-02237-WQH-JMA 1 taken any medication for this. (Id. at 55-56.) He testified that he could not 2 lift at all due to a hernia in his chest area, for which he was scheduled to 3 have surgery in 2015. (Id. at 57.) 4 Plaintiff testified to having sleep issues, specifically sleep apnea, 5 though he did not have or use a CPAP machine for this. (Id.) Plaintiff also 6 suffered from an inability to sleep through the night, because he was 7 awakened by pain in his sternum and hips, and because he had a fear of 8 not waking up. (Id. at 60.) He did not feel rested when he woke in the 9 morning and testified he must lie down during the day for up to three to four 10 hours. (Id. at 60-61.) 11 Plaintiff then testified about his daily activities. He lives with his 12 sister, who treats him like a heart patient because their mother died from a 13 heart attack. (Id. at 58.) Plaintiff testified he does not have trouble 14 dressing himself, except when it comes to putting on shoes and socks, 15 because bending over is difficult. (Id. at 58-59.) He does not socialize with 16 friends and does not go out to eat or for entertainment. (Id. at 61.) He 17 testified he enjoyed fishing, though he had not gone for three or four years. 18 (Id.) Plaintiff rarely left the house alone. (Id. at 63.) 19 Plaintiff testified he was seeing a psychologist for depression and 20 anxiety. (Id. at 61-62.) This treatment involved mostly just talking, though 21 Plaintiff had also been taking a low dose of Zoloft. (Id.) Plaintiff 22 complained of bowel problems, which he thought may be either a side 23 effect of the Zoloft or possibly Crohn’s disease, though he had not been 24 evaluated for Crohn’s. (Id. at 62-63.) Plaintiff also testified to having had 25 knee problems for a couple of years, for which he believed he would soon 26 need to have surgery. (See id. at 63-64.) However, he indicated he was 27 10 16-cv-02237-WQH-JMA 1 going to try and alleviate those problems through physical therapy to avoid 2 the surgery. (Id. at 65.) Plaintiff stated he had problems with his left 3 shoulder, and could not reach for or lift things without pain. (Id.) He could 4 not even reach for a cereal box with his left arm. (Id.) Furthermore, 5 Plaintiff testified he had numbness and tingling in his legs, though he was 6 uncertain as to the cause. (Id.) 7 Finally, Plaintiff testified regarding his memory and concentration 8 issues. (See id. at 64.) He testified that since his aortic dissection surgery, 9 he has had an inability to remember certain things, such as things he 10 learned in school, including measurements and the like. (Id.) Plaintiff 11 stated his concentration was lowered, such that he could not watch TV for 12 too long without changing the channel. (Id.) He also testified that he felt he 13 could work, but no more than two hours at a time, because he felt that 14 beyond two hours, he would not be able to breathe, because of “too many 15 people.” (Id.) 16 B. 17 Vocational Expert Testimony Vocational Expert (“VE”) Gloria Lasoff testified at the administrative 18 hearing. Ms. Lasoff identified Plaintiff’s past work as inspector as light 19 work. (Id. at 67.) The ALJ then presented the following hypothetical: 20 …. 21 Assume in hypothetical number 1 we have a younger individual. This individual has a 12th grade education, is literate, speaks English and the work experience as outlined by yourself. Hypothetical number 1, this person can sit six hours in an eight-hour day, stand and walk six hours in an eight-hour day; can occasionally lift 20 pounds, frequently lift ten pounds; can occasionally climb stairs; should never climb ladders, scaffolds, ropes; can occasionally balance, stoop, kneel, crouch and crawl. 22 23 24 25 26 27 11 16-cv-02237-WQH-JMA This person can occasionally reach overhead with the left upper extremity; should have no concentrated exposure to unprotected heights, dangerous or fastmoving machinery; should have no concentrated exposure to vibrations. Based on that hypothetical would he be able to return to past work? 1 2 3 4 5 6 (Id. at 67-68.) Ms. Lasoff replied that such a hypothetical individual would 7 not be able to return to Plaintiff’s past work. (Id. at 68.) The ALJ then 8 inquired whether there were other jobs in the labor market this person 9 could perform. (Id.) Ms. Lasoff replied that there were: assembler, hand 10 packager, and cashier, all of which consisted of light work. (Id.) 11 The ALJ then posed a second hypothetical: someone who because of 12 difficulty with concentration would be off task 20 percent of the day. (Id.) 13 Ms. Lasoff stated that such a person would be incapable of performing any 14 work, including the above mentioned jobs. (Id.) In response to the ALJ’s 15 third hypothetical, someone who, because of pain or concentration 16 problems, would miss three or more days per month from work, Ms. Lasoff 17 stated that such a person would be unemployable. (Id. at 68-69.) 18 Plaintiff’s attorney then posed a fourth hypothetical: a person who could 19 only sit for a total of two hours out of eight and could only stand and walk 20 for a total of two hours out of eight. (Id.) Ms. Lasoff replied that such a 21 person would be unemployable. (Id.) 22 IV. 23 24 25 26 THE ALJ DECISION After reviewing the record, ALJ Dietterle made the following findings: …. 1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2013. 27 12 16-cv-02237-WQH-JMA 1 2 2. The claimant has not engaged in substantial gainful activity since January 10, 2012, the alleged onset date [citation omitted]. 3 4 5 6 7 8 3. The claimant has the following severe impairments: aortic aneurysm, right knee medial meniscus tear, and left shoulder derangement [citation omitted]. 4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 [citation omitted]. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: the claimant can sit 6 hours in an 8 hour work day; stand and walk 6 hours in an 8 hour work day; occasionally lift 20 pounds; frequently lift 10 pounds; occasionally climb stairs; never climb ladders, scaffolds, or ropes; occasionally balance, stoop, kneel, crouch, crawl, occasionally reach over head with the left upper extremity; no concentrated exposure to unprotected heights, dangerous or fast moving machinery; and no concentrated exposure to vibrations. 6. The claimant is unable to perform any past relevant work [citation omitted]. 7. The claimant was born on June 16, 1969 and was 42 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date [citation omitted]. 8. The claimant has at least a high school education and is able to communicate in English [citation omitted]. 9. The claimant has acquired work skills from past 27 13 16-cv-02237-WQH-JMA relevant work [citation omitted]. 1 2 10. Considering the claimant’s age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy [citation omitted] . . . Accordingly, although the claimant’s additional limitations do not allow the claimant to perform the full range of light work, considering the claimant’s age, education and transferable work skills, a finding of “not disabled” is appropriate under the framework of MedicalVocational Rule 202.22. 3 4 5 6 7 8 9 10 11. The claimant has not been under a disability, as defined in the Social Security Act, from January 10, 2012, through the date of this decision [citation omitted]. 11 12 13 (Id. at 28-42.) 14 V. 15 STANDARD OF REVIEW To qualify for disability benefits under the Social Security Act, an 16 applicant must show: (1) He or she suffers from a medically determinable 17 impairment that can be expected to result in death or that has lasted or can 18 be expected to last for a continuous period of twelve months or more, and 19 (2) the impairment renders the applicant incapable of performing the work 20 that he or she previously performed or any other substantially gainful 21 employment that exists in the national economy. See 42 U.S.C. § 22 423(d)(1)(A), (2)(A). An applicant must meet both requirements to be 23 “disabled.” Id. Further, the applicant bears the burden of proving that he or 24 she was either permanently disabled or subject to a condition which 25 became so severe as to disable the applicant prior to the date upon which 26 his or her disability insured status expired. Johnson v. Shalala, 60 F.3d 27 14 16-cv-02237-WQH-JMA 1 1428, 1432 (9th Cir. 1995). 2 A. Sequential Evaluation of Impairments The Social Security Regulations outline a five-step process to 3 4 determine whether an applicant is "disabled." The five steps are as follows: 5 (1) Whether the claimant is presently working in any substantial gainful 6 activity. If so, the claimant is not disabled. If not, the evaluation proceeds 7 to step two. (2) Whether the claimant’s impairment is severe. If not, the 8 claimant is not disabled. If so, the evaluation proceeds to step three. (3) 9 Whether the impairment meets or equals a specific impairment listed in the 10 Listing of Impairments. If so, the claimant is disabled. If not, the evaluation 11 proceeds to step four. (4) Whether the claimant is able to do any work he 12 has done in the past. If so, the claimant is not disabled. If not, the 13 evaluation continues to step five. (5) Whether the claimant is able to do 14 any other work. If not, the claimant is disabled. Conversely, if the 15 Commissioner can establish there are a significant number of jobs in the 16 national economy that the claimant can do, the claimant is not disabled. 20 17 C.F.R. § 404.1520; see also Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th 18 Cir. 1999). 19 B. Judicial Review 20 Sections 205(g) and 1631(c)(3) of the Social Security Act allow 21 unsuccessful applicants to seek judicial review of the Commissioner's final 22 agency decision. 42 U.S.C.A. §§ 405(g), 1383(c)(3). The scope of judicial 23 review is limited. The Commissioner’s final decision should not be 24 disturbed unless: (1) The ALJ's findings are based on legal error or (2) are 25 not supported by substantial evidence in the record as a whole. Schneider 26 v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000). 27 15 16-cv-02237-WQH-JMA 1 Substantial evidence means “more than a mere scintilla but less than a 2 preponderance; it is such relevant evidence as a reasonable mind might 3 accept as adequate to support a conclusion.” Andrews v. Shalala, 53 F.3d 4 1035, 1039 (9th Cir. 1995). The Court must consider the record as a 5 whole, weighing both the evidence that supports and detracts from the 6 ALJ’s conclusion. See Mayes v. Massanari, 276 F.3d 453, 459 (9th Cir. 7 2001); Desrosiers v. Sec'y of Health & Human Servs., 846 F.2d 573, 576 8 (9th Cir. 1988). “The ALJ is responsible for determining credibility, 9 resolving conflicts in medical testimony, and for resolving ambiguities.” 10 Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (citing Andrews, 53 11 F.3d at 1039). Where the evidence is susceptible to more than one rational 12 interpretation, the ALJ’s decision must be affirmed. Vasquez, 572 F.3d at 13 591 (citation and quotations omitted). 14 Section 405(g) permits this Court to enter a judgment affirming, 15 modifying, or reversing the Commissioner’s decision. 42 U.S.C.A. § 16 405(g). The matter may also be remanded to the SSA for further 17 proceedings. Id. 18 VI. 19 DISCUSSION Plaintiff contends the ALJ’s RFC assessment is improper because 20 the ALJ failed to incorporate Plaintiff’s memory impairments. (Pl.’s Reply at 21 2.) Plaintiff does not contend there was any error with respect to 22 consideration of his physical impairments. (See Pl.’s Mem. at 5.) 23 A. 24 Plaintiff’s Memory Impairments Although Plaintiff had subjective complaints of memory loss, there is 25 little in the record to indicate that these issues were disabling. In fact, 26 these subjective complaints arose only on three occasions. First, on one of 27 16 16-cv-02237-WQH-JMA 1 several visits to Dr. Sharf, Plaintiff mentioned having trouble remembering 2 things. (Admin. R. at 554.) However, Dr. Sharf’s assessment of Plaintiff 3 did not include anything about Plaintiff’s memory. (Id. at 556.) Second, 4 during a psychological examination by Dr. Dan Whitehead, Plaintiff stated 5 his memory was “shot.” (Id. at 578.) Third, during the administrative 6 hearing, when Plaintiff was asked about any memory problems, he stated 7 this: “. . . [S]ince the surgery, I lack in some of the things that I learned from 8 my actual schooling. . . . I just don’t remember measurements and stuff like 9 that.” (Id. at 64.) 10 In evaluating Plaintiff’s alleged memory impairment, the ALJ relied 11 upon the findings of Dr. Whitehead, an examining physician, who 12 conducted a psychological examination of Plaintiff on June 17, 2013. 13 (Admin. R. at 31-32.) During this examination, Plaintiff was fully alert and 14 oriented, coherent, and well groomed. (Id. at 580.) Plaintiff was able to 15 perform serial sevens and simple math calculations. (Id.) Plaintiff’s 16 immediate memory was assessed to be in the borderline range, and his 17 delayed memory and memory process in the low average range. (Id. at 18 581.) Dr. Whitehead assessed Plaintiff’s GAF score at 65-75, indicating 19 some mild symptoms. (Id.) Dr. Whitehead found Plaintiff would have very 20 mild restrictions relating to concentration, persistence, and pace, but no 21 significant limitations in his abilities to understand, carry out, and remember 22 simple instructions and detailed tasks, or in responding appropriately to 23 usual work conditions, changes in routine work setting, co-workers, 24 supervisors, and the public. (Id. at 582.) Additionally, notwithstanding 25 Plaintiff’s memory test results, which were in the borderline to low average 26 range, and in which Plaintiff scored in the 10th percentile and below, Dr. 27 17 16-cv-02237-WQH-JMA 1 Whitehead stated, “Persons with intelligence and memory functions in the 2 borderline range and above are typically able to perform a wide variety of 3 simple work functions of a constant nature, as long as there are no other 4 major problems or concerns.” (Id.) Based upon these findings by Dr. 5 Whitehead, the ALJ assessed Plaintiff’s mental impairments, including his 6 memory loss, to cause no more than minimal limitation. (Id. at 31.) The 7 Court finds the ALJ did not err in his evaluation of the evidence of Plaintiff’s 8 memory impairment and that substantial evidence – specifically Dr. 9 Whitehead’s findings – supports the ALJ’s conclusion that Plaintiff’s 10 memory impairment (in combination with his other mental impairments) 11 caused no more than minimal limitation. See Andrews v. Shalala, 53 F.3d 12 1035, 1041 (9th Cir. 1995) (stating that the opinion of an examining 13 physician, if based on independent clinical findings, qualifies as substantial 14 evidence upon which the ALJ can rely). 15 Plaintiff argues the ALJ erred by not including Plaintiff’s memory 16 function findings in his RFC assessment, and more specifically, that his 17 borderline and low average memory function scores should have been 18 included in the hypotheticals to the VE. (Pl.’s Reply at 2, 4.) The record 19 establishes the ALJ did not include Plaintiff’s mild impairments of memory 20 function in his RFC assessment and hypotheticals to the VE because he 21 found these scores to indicate only minimal limitation. (See Admin. R. at 22 31-33.) In so finding, he was not required to include these limitations in his 23 hypotheticals to the VE. See, e.g., Martinez v. Heckler, 807 F.2d 771, 774 24 (9th Cir. 1986) (stating that an ALJ has discretion, based on his review of 25 the evidence, to determine the limitations set forth in a hypothetical). 26 Furthermore, Plaintiff cites no authority to support his contention that 27 18 16-cv-02237-WQH-JMA 1 memory scores in the low average and borderline range limit a person’s 2 ability to work more than minimally, and the evidence in the record reflects 3 that a person with memory function scores in Plaintiff’s range is capable of 4 “simple work functions of a constant nature.” (See Pl.’s Mem. at 6-10; Pl.’s 5 Reply at 2-5; Admin. R. at 582.) The Court therefore finds the ALJ did not 6 err by not including Plaintiff’s minimal limitations relating to memory 7 function in his determination of Plaintiff’s RFC and in the hypotheticals 8 posed to the VE. 9 B. 10 Harmless Error Harmless error principles have long been recognized to apply in 11 Social Security cases. Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 12 2012). The general principle for these cases is that an ALJ’s error is 13 harmless where, looking at the record as a whole, the error does not alter 14 the outcome of the case or the ultimate nondisability determination. (Id.; 15 see also Mangan v. Colvin, 2014 WL 4267496, at *1 (N.D. Ill., Aug. 28, 16 2014) (recognizing that courts may address issues sua sponte in Social 17 Security cases). Here, assuming arguendo the ALJ did commit error by 18 failing to properly consider Plaintiff’s memory loss, it is harmless error. The 19 ALJ determined that Plaintiff was capable of performing light, unskilled 20 work. (Admin. R. at 42; see also 20 C.F.R. pt. 404, subpt. P, app. 2, 21 § 202.22 (Medical-Vocational Guideline referring to unskilled light work).) 22 Unskilled work is defined as: “[W]ork which needs little or no judgment to 23 do simple duties that can be learned on the job in a short period of time . . . 24 a person can usually learn to do the job in 30 days, and little specific 25 vocational preparation and judgment are needed.” 20 C.F.R. 26 § 404.1568(a). Here, the ALJ found Plaintiff’s mental impairments do not 27 19 16-cv-02237-WQH-JMA 1 cause more than minimal limitation in his ability to perform basic mental 2 work activities. (Admin. R. at 31.) In his assessment of Plaintiff’s mental 3 impairments, the ALJ noted that Dr. Whitehead, the examining physician 4 who evaluated Plaintiff’s mental impairments, stated Plaintiff would be able 5 to understand, carry out, and remember simple instructions and detailed 6 tasks and would have no limitations in responding appropriately to co- 7 workers, supervisors, or the public. (Id. at 32.) Dr. Whitehead also stated 8 more generally, “Persons with intelligence and memory functions in the 9 borderline range . . . are typically able to perform a wide variety of simple 10 work functions of a constant nature . . .” (Id. at 582.) This appears to be 11 consistent with work that is “unskilled.” Even if the ALJ’s assessment of 12 Plaintiff’s RFC had included Plaintiff’s borderline to low average memory 13 function, Plaintiff has provided no authority to support the contention that 14 this would preclude him from performing unskilled work. (See Pl.’s Mem. at 15 6-10; Pl.’s Reply at 2-5; see also Bustamante v. Astrue, 2009 WL 112947, 16 at *6 (W.D. Wash. Jan. 13, 2009) (upholding ALJ’s determination that a 17 plaintiff with memory problems was able to perform unskilled work).) 18 Therefore, the Court finds that any error in the omission of Plaintiff’s 19 memory impairment in the ALJ’s RFC assessment is harmless error, 20 because its inclusion would not alter the outcome of the ultimate 21 determination that Plaintiff is not disabled. 22 VII. CONCLUSION 23 For the reasons set forth above, Plaintiff’s motion for summary 24 judgment should be DENIED and Defendant’s cross-motion for summary 25 judgment should be GRANTED. 26 This report and recommendation will be submitted to the Honorable 27 20 16-cv-02237-WQH-JMA 1 William Q. Hayes, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any 2 party may file written objections with the Court and serve a copy on all 3 parties on or before August 18, 2017. The document should be captioned 4 “Objections to Report and Recommendation.” Any reply to the Objections 5 shall be served and filed on or before September 1, 2017. The parties are 6 advised that failure to file objections within the specified time may waive the 7 right to appeal the district court’s order. Martinez v. Ylst, 951 F.2d 1153 8 (9th Cir. 1991). 9 Dated: July 27, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 21 16-cv-02237-WQH-JMA

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