VERNICE S., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
No. CV 17-8688-AGR
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
January 10, 2019
ALICIA G. ROSENBERG, United States Magistrate Judge
Plaintiff1 filed this action on December 1, 2017. Pursuant to
Having reviewed the entire file, the court reverses the decision of the Commissioner and remands for reconsideration of a closed period of disability during the period October 17, 2013 through January 15, 2015.
On May 2, 2014, Plaintiff filed an application for disability insurance benefits and alleged an onset date of October 17, 2013. Administrative Record (“AR“) 20. The application was denied initially and upon reconsideration. AR 20, 94, 107. Plaintiff requested a hearing before an Administrative Law Judge (ALJ). On February 17, 2016, the ALJ conducted a hearing at which Plaintiff and a vocational expert (“VE“) testified. AR 36-82. On May 5, 2016, the ALJ issued a decision denying benefits. AR 17-40. On October 2, 2017, the Appeals Council denied the request for review. AR 1-5. This action followed.
II. STANDARD OF REVIEW
Pursuant to
“Substantial evidence” means “more than a mere scintilla but less than a preponderance – it is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether substantial evidence exists to support the Commissioner‘s decision, the court examines the administrative record as a whole, considering adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than one rational interpretation, the court must defer to the Commissioner‘s decision. Moncada, 60 F.3d at 523.
A. Disability
A person qualifies as disabled, and thereby eligible for such benefits, “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation omitted).
B. The ALJ‘s Findings
The ALJ found that Plaintiff meets the insured status requirements through December 31, 2018. AR 22. Following the five-step sequential analysis applicable to disability determinations, Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),2 the ALJ found that Plaintiff has the severe impairments of anxiety and mood disorder. AR 22. Plaintiff has the residual functional capacity (“RFC“) to perform work at all exertional levels except that she is unable to perform high stress jobs; limited to simple, repetitive tasks; and limited to work activity requiring no more than frequent interactions with supervisors and no more than occasional interactions with coworkers and the general public. AR 25.
Plaintiff is unable to perform any past relevant work but there are jobs that exist in significant numbers in the national economy that she can perform such as hand packager, dishwasher and industrial cleaner. AR 30-31.
The RFC determination measures the claimant‘s capacity to engage in basic work activities. Bowen v. City of New York, 476 U.S. 467, 471 (1986). The RFC is a determination of “the most [an individual] can still do despite [his or her] limitations.”
An opinion of a treating physician is given more weight than the opinion of non-treating physicians. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an uncontradicted opinion of a treating physician, an ALJ must state clear and convincing reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician‘s opinion is contradicted by another doctor, “the ALJ may not reject this opinion without providing specific and legitimate reasons supported by substantial evidence in the record. This can be done by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Orn, 495 F.3d at 632 (citations and quotation marks omitted).
An examining physician‘s opinion constitutes substantial evidence when, as here, it is based on independent clinical findings. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). “When there is conflicting medical evidence, the Secretary must determine credibility and resolve the conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) (citation and quotation marks omitted).
The ALJ found that Plaintiff was unable to perform high stress jobs; was limited to simple, repetitive tasks; and was limited to work activity requiring no more than frequent
The ALJ gave significant weight to the opinion of the examining psychiatrist, Dr. Kanof on February 6, 2016. AR 27, 29. Dr. Kanof noted intermittent periods of depression during a 10-year time frame, and four psychiatric hospitalizations for medication overdoses during episodes of depression. AR 639. Plaintiff reported her activities of daily living were not limited. She took her children to school, did housework, watched TV and cooked. On examination, her eye contact was good, her speech was normal and her affect was euthymic. Her thought process was linear and focused, with no evidence of disorder. She was not delusional. She worried about her psychiatric condition, forgetfulness during episodes of depression and her ability to raise her three children. She remembered two out of three objects after five minutes, had difficulty doing serial 7s and spelled world backwards incorrectly. AR 640.
Dr. Kanof diagnosed recurrent major depressive disorder, currently in relative remission and a Global Assessment of Functioning (“GAF“) score of 65.3 AR 640-41. Dr. Kanof opined that, during the past two years, Plaintiff‘s ability to understand, remember and perform instructions was mildly impaired; her ability to focus and concentrate was moderately impaired; her ability to interact with the public, coworkers and supervisors was mildly impaired; her ability to comply with job rules such as safety and attendance was moderately impaired; and her ability to respond to work pressure in the usual work setting was moderately impaired. “However, her history of recurrent depressive episodes is of concern, and likely compromises her ability to participate in sustained gainful employment.” AR 641. Dr. Kanof estimated that Plaintiff‘s GAF score was 45 during her depressive episode prior to the past two years. Id.
The ALJ also gave great weight to the opinions of the State agency review psychologists in June 2014 and February 2015, the period covered by Dr. Kanof. AR 29. Plaintiff was not significantly limited in her ability to carry out short and simple instructions; make simple work-related decisions; sustain an ordinary routine without special supervision; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; and complete a normal workday and workweek without interruptions from psychologically based symptoms. Plaintiff was moderately limited in her ability to carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with others without being distracted or distracting them; interact appropriately with the public; and accept instructions and respond appropriately to supervisors. She could accept nonconfrontational supervision. AR 90-91, 103-04. Plaintiff argues that the ALJ did not incorporate Dr. Zukowsky‘s opinion that Plaintiff could interact appropriately with coworkers or the public “only on a brief or very casual basis. Routine, frequent, or detailed public contact is precluded.” AR 91. The ALJ, however, limited Plaintiff to no more than occasional interaction with coworkers or the public. AR 25. The term
Plaintiff alleged disability with an onset date of October 17, 2013, which begins before the two-year period covered by Dr. Kanof‘s opinion. AR 20.
The ALJ stated he reviewed the record to determine whether there was “any continuous period of twelve months or more, since the alleged disability onset date,” during which Plaintiff was disabled. The ALJ did not find any such period. AR 30.
Plaintiff argues that the ALJ erred in discounting the opinions of her treating psychiatrist, Dr. Simonds. The ALJ discounted Dr. Simonds’ opinions as inconsistent with his own records. Dr. Simonds’ records “fail to reveal the type of significant clinical abnormalities one would expect if the claimant were in fact disabled” as he opined. AR 29.
The ALJ‘s conclusion that Dr. Simonds’ medical records did not support his limitations is amply supported by substantial evidence for the period beginning February 1, 2015. Beginning in February 2015, Plaintiff reported feeling fairly stable and, for the most part, had not experienced severe anger outbursts or mood swings. Her energy was a little low but she was able to get things done around the house. AR 571. Her mood was euthymic, her insight was appropriate and her memory was intact. AR 572. Her GAF was 70-90.4 AR 573. In March 2015, Plaintiff reported feeling stable without any severe mood swings, anger outbursts, panic attacks or severe depression. AR 568. Her mood was euthymic and her memory was intact. AR 569. Her GAF was 70-90. AR 570. In June 2015, Plaintiff reported feeling much more stable. AR 565. Her mood was euthymic. AR 566. Her GAF was 70-90. AR 567. In July 2015, Plaintiff reported taking at least three tablets of hydrocodone per day to “calm her nerves.” Her
Despite these medical records, in October 2015 Dr. Simonds opined that Plaintiff was completely unable to work. She was easily angered, was often depressed and anxious, and had low frustration tolerance. AR 583. He assessed a GAF of 50. AR 585. She was moderately limited in her ability to understand, carry out and remember instructions; perform work where her contact with others would be minimal; and perform tasks involving minimal intellectual effort. Plaintiff had moderately severe impairment in her ability to respond appropriately to supervision; perform work requiring regular contact with others; perform intellectually complex tasks; perform repetitive or varied tasks; and supervise or manage others. AR 586. Subsequently, in February 2016, Dr. Simonds stated that Plaintiff was reevaluated for the first time since November 2015. AR 644. Dr. Simonds opined that Plaintiff did not have the capacity to return to full time work. He diagnosed bipolar depressed, borderline with recent ileus surgery.5 AR 644. Her restrictions and limitations were “poor peer relations, easily agitated, low energy, distractible” and “poor frustration tolerance.” The ALJ properly discounted Dr. Simonds’ opinions during this period.
Dr. Simonds’ medical records support his assessment during the period October 17, 2013 through January 15, 2015 – a period of more than one year. Plaintiff‘s most
Plaintiff, who was a certified nurse assistant, testified that she stopped working at the hospital on October 17, 2013, the alleged onset date.9 AR 44-45. On November 4, 2013, Plaintiff‘s husband reported that she was considerably improved, but Plaintiff felt
In April 2014, Plaintiff reported feeling better but complained about medication side effects, some cognitive dulling and forgetting “everything.” She did not feel depressed, but felt anxious about social obligations and appointments. She wondered if
It is true that, on October 8, 2014, Plaintiff reported partial remission of her mood swings and depression. She denied severe mood swings, rage episodes or panic attacks. She felt “extremely anxious” about going back to work. AR 486. Plaintiff‘s affect was constricted and her mood was irritable. Her memory was intact but she had impulse control issues. Her GAF was 60-70. AR 487. Plaintiff reported feeling relatively stable on October 14, 2014. She was mildly depressed and anxious, and her motivation was a little low. She was not having any severe mood swings or anger outbursts. AR 477. Her mental status examination was normal except that her insight and judgment were limited. Her GAF was 60-70. AR 478. She complained of right foot pain after playing soccer on the weekend. AR 484. On November 17, 2014, Plaintiff reported that she felt fairly stable and less anxious, and hadn‘t had any severe mood swings or anger outbursts. AR 465. She was well groomed, interacted warmly and had fluent speech. Her mood was euthymic and her memory was intact. She had limited insight and judgment. AR 466.
Nevertheless, in January 2015, Plaintiff reported feeling stable except that she had suspiciousness and irritability. AR 574. Her affect was constricted and her mood was irritable. Her GAF was 50-60 with “serious symptoms.” AR 575. Thus, although the issue is close, the court concludes that the ALJ‘s finding that Plaintiff did not show any continuous period of twelve months or more, since the alleged disability onset date, during which she was disabled is not supported by substantial evidence and remands for reconsideration of a closed period of disability during the period October 17, 2013 through January 15, 2015.
D. Credibility
“To determine whether a claimant‘s testimony regarding subjective pain or symptoms is credible, an ALJ must engage in a two-step analysis.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). At step one, “the ALJ must determine
Second, when an ALJ concludes that a claimant is not malingering and has satisfied the first step, “the ALJ may ‘reject the claimant‘s testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so.‘” Brown-Hunter v. Colvin, 806 F.3d 487, 493 (9th Cir. 2015) (citation omitted); Burrell v. Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014). “A finding that a claimant‘s testimony is not credible ‘must be sufficiently specific to allow a reviewing court to conclude the adjudicator rejected the claimant‘s testimony on permissible grounds and did not arbitrarily discredit a claimant‘s testimony regarding pain.‘” Brown-Hunter, 806 F.3d at 493 (citation omitted). “‘General findings are insufficient; rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant‘s complaints.‘” Id. (citation omitted).
The ALJ concluded that Plaintiff‘s statements concerning the intensity, persistence and limiting effects of her symptoms were not consistent with the objective medical evidence. AR 26. Thus, “while the claimant may not have entered into a complete remission of her symptoms, the records are absent any indication that her condition continues to render her unable to sustain competitive employment.” AR 28. This reason is supported by substantial evidence during the period beginning February 1, 2015 for the reasons discussed above. Although the fact that the objective medical evidence does not support the severity of the subjective allegations cannot form the sole basis for discounting testimony, “it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).
IV. ORDER
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for reconsideration of a closed period of disability during the period October 17, 2013 through January 15, 2015.
DATED: January 10, 2019
ALICIA G. ROSENBERG
United States Magistrate Judge