Opinion
No. 2:14-cv-2246 AC
03-07-2016
SELENA ROSE HERNANDEZ, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER
Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Child's Insurance Benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. § 402(d), and for Supplemental Security Income ("SSI") under Title XVI of the Act, 42 U.S.C. §§ 1381-1383f. For the reasons that follow, the court will deny plaintiff's motion for summary judgment and grant the Commissioner's cross-motion for summary judgment.
Disabled child's insurance benefits are paid to the qualified "child . . . of an individual entitled to old-age or disability insurance benefits, or of an individual who dies a fully or currently insured individual," if the child is 18 years of age, or older, and has a disability that began before she turned 22 years old. 42 U.S.C. § 402(d)(1)(B)(ii); 20 C.F.R. § 404.350(a)(5); Moore v. Comm'r of Soc. Sec. Admin., 278 F.3d 920, 925 (9th Cir. 2002).
SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) ("Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall below specified levels . . .").
I. PROCEDURAL BACKGROUND
Plaintiff applied for child's insurance benefits on June 13, 2011. Administrative Record ("AR") 102 (Exh. 1A). Plaintiff applied for supplemental security income on June 29, 2011. AR 270 (Exh. 1D). The disability onset date for both applications was alleged to be September 1, 2010. The applications were disapproved initially, AR 102-111 (Exh. 1A), 112-121 (Exh. 2A), and on reconsideration, AR 125-35 (Exh. 5A), AR 136-46 (Exh. 6A). On August 29, 2012, and February 25 and September 10, 2013, ALJ Plauche F. Villere Jr. presided over three hearings on plaintiff's challenge to the disapprovals. AR 68-101 (August 29, 2012), 53-67 (February 25, 2013), 35-52 (September 10, 2013). Plaintiff was present at each hearing and testified at the August 29, 2012 hearing. She was represented by attorney Rick Peasley at each hearing. Lisa Suhonos (vocational expert), Charles Wiseman (medical expert), and Robin McDevot (psychological expert), testified at the February 25, 2013 hearing. James Graham (vocational expert), and Faren Akins (psychological expert), testified at the September 10, 2013 hearing.
The AR is electronically filed at ECF Nos. 12-3 to 12-12 (AR 1 to AR 729).
The ALJ makes no reference to any of the testimony taken at the February 25, 2013 hearing, except to state at the beginning of the September 10, 2013 hearing: "What happened last time we had some inaccurate information and so that's why the testimony was invalid and so, we're going to try it one more time." AR 37. Neither party refers to the substance of any of that testimony either, and plaintiff seems to agree that the testimony adduced there was "invalid." See ECF No. 15 at 8. The court accordingly will not consider any testimony taken at that hearing.
On October 31, 2013, the ALJ issued an unfavorable decision, finding plaintiff "not disabled" under Section 223(d) of Title II of the Act, 42 U.S.C. § 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 16-29 (decision). On August 1, 2014, after receiving additional evidence, the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-5 (decision and additional exhibit).
Plaintiff filed this action on September 26, 2014. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties' cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 12 (AR), 15 (plaintiff's summary judgment motion), 18 (Commissioner's summary judgment motion), 19 (plaintiff's reply).
II. FACTUAL BACKGROUND
Plaintiff was born on October 29, 1992, and accordingly had not attained the age of 22 as of September 1, 2010, the alleged onset date of her disabilities. AR 21. Plaintiff has a high school education, and can communicate in English. AR 27.
III. LEGAL STANDARDS
The Commissioner's decision that a claimant is not disabled will be upheld "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). "'The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).
Substantial evidence is "more than a mere scintilla," but "may be less than a preponderance." Molina v. Astrue , 674 F.3d 1104, 1111 (9th Cir. 2012). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). "While inferences from the record can constitute substantial evidence, only those 'reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) ("The court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence."). ////
"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss").
The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate nondisability determination.'" Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
IV. RELEVANT LAW
Child Disability Insurance Benefits and Supplemental Security Income are available for every eligible individual who is "disabled." 42 U.S.C. §§ 402(d)(1)(B)(ii) (DIB), 1381a (SSI). Plaintiff is "disabled" if she is "'unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment . . ..'" Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)).
The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the "five-step sequential evaluation process to determine disability" under Title II and Title XVI). The following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.20 C.F.R. §§ 404.1520(a)(4)(i), (b) and 416.920(a)(4)(i), (b).
Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, the claimant is not disabled.Id., §§ 404.1520(a)(4)(ii), (c) and 416.920(a)(4)(ii), (c).
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four.Id., §§ 404.1520(a)(4)(iii), (d) and 416.920(a)(4)(iii), (d).
Step four: Does the claimant's residual functional capacity make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.Id., §§ 404.1520(a)(4)(iv), (e), (f) and 416.920(a)(4)(iv), (e), (f).
Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.Id., §§ 404.1520(a)(4)(v), (g) and 416.920(a)(4)(v), (g).
The claimant bears the burden of proof in the first four steps of the sequential evaluation process. 20 C.F.R. §§ 404.1512(a) ("In general, you have to prove to us that you are blind or disabled"), 416.912(a) (same); Bowen, 482 U.S. at 146 n.5. However, "[a]t the fifth step of the sequential analysis, the burden shifts to the Commissioner to demonstrate that the claimant is not disabled and can engage in work that exists in significant numbers in the national economy." Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012); Bowen, 482 U.S. at 146 n.5.
V. THE ALJ's DECISION
The ALJ made the following findings:
1. Born on October 29, 1992, the claimant had not attained age 22 as of September 1, 2010, the alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).
2. [Step 1] The claimant has not engaged in substantial gainful activity since September 1, 2010, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. [Step 2] The claimant has the following severe impairments: major depressive disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD) (20 CFR 404.1520(c) and 416.920(c)).
4. [Step 3] 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 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).AR 21-29.
5. [Preparation for Step 4] After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: She is able to understand, remember, and carry out simple to mildly complex tasks.
6. [Step 4] The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. [Step 5] The claimant was born on October 29,1992 and was 17 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. [Step 5, continued] The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. [Step 5, continued] Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 404.1568 and 416.968).
10. [Step 5, continued] Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from September 1, 2010, through the date of this decision (20 CFR 404.350(a)(5), 404.1520(g) and 416.920(g)).
As noted, the ALJ concluded that plaintiff was "not disabled" under Section 223(d) of Title II of the Act, 42 U.S.C. § 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 29.
VI. ANALYSIS
Plaintiff alleges that the ALJ committed the following legal errors: (1) he incorrectly weighed the medical evidence in the record; and (2) he wrongly discredited the testimony of plaintiff and her mother. Plaintiff further alleges that the following findings of the ALJ are not supported by substantial evidence: (1) that plaintiff does not meet or equal Listings ¶ 12.04 (affective disorder); and (2) that plaintiff can perform simple, unskilled work.
See 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings").
A. Claimed Legal Errors
1. Weighing medical evidence
Plaintiff argues that the ALJ erred in considering the medical evidence (a) by discounting the conclusions of plaintiff's treating physician, Benjamin Yu, M.D., (b) by failing to mention what weight he gave to Ms. Laura Owens, whom she refers to as her "treating psychologist," (c) by failing to give "little weight" to the opinions of (i) the consulting examiner Deborah Schmidt, Ph.D., (ii) the "State Agency psychologist," and (iii) the testifying psychological expert, Faren R. Akins, Ph.D., and (d) failing to accord greater weight to the opinion of Eugene Roeder, Ph.D., over that of Dr. Schmidt.
a. Benjamin Yu, M.D.
Dr. Yu was plaintiff's treating psychiatrist who saw plaintiff from September 24, 2010 through June 10, 2011. AR 461-70 (Exh. 5F). Dr. Yu completed an "Initial Psychiatric History and Examination," and kept "Progress Notes." As the ALJ observed, Dr. Yu diagnosed plaintiff with Attention-Deficit Hyperactivity Disorder ("ADHD"), and major depressive disorder ("MDD"), assessed her GAF at 55, and prescribed medication. AR 470. As the ALJ further observed, Dr. Yu's progress notes report progressive improvement with each visit.
"Pt has felt better on these doses, yet has been more depressed with the restrictions placed on her as well as her financial obligations." AR 465 (October 13, 2010). "Pt has felt better on these doses, feels her mood has improved and has been socializing well." AR 464 (November 12, 2010). "Pt has felt well, discussed increased trust at home and a new boyfriend." AR 463 (December 16, 2010). "Patient has been doing well, discussed upcoming high school [graduation]." AR 462 (May 18, 2011). "Patient has been doing well, discussed applying for disability." AR 461 (June 10, 2011).
On July 27, 2011, Dr. Yu completed a Sierra College form entitled "Disabled Student Programs & Services Verification of Qualifying Conditions." AR 686 (Exh. 20F). The form indicates that it is intended to help determine whether the student "may be eligible for special services." Under "Functional/Educational Limitations," Dr. Yu checked off Test Taking, Memory, Poor Concentration, Problem Solving, Note Taking, Cognitive Processing, and Easily Distracted. Id. The form does not indicate whether the limitations indicated were mild, moderate or severe, and there are no notes from Dr. Yu indicating the severity level. In addition, the form makes reference only to the ADHD diagnosis, and does not refer to any diagnostics or treatment notes that supported the checked-off items.
The ALJ gave "little weight" to Dr. Yu's July 27, 2011 assessment. AR 26. In explanation, the ALJ states that the assessment is "not supported by the medical records." AR 26. Specifically, Dr. Yu's "notes indicate the claimant is fairly stable, and her symptoms are under control with the medication she is taking." Therefore, he concludes, the assessment "is not consistent with his treating notes, his treatment to the claimant, or the medical record as a whole." AR 26.
The ALJ was correct to give little weight to the assessment. Dr. Yu's initial report and his progress notes make no reference to any of the specific limitations - all cognitive in nature - that are addressed in his assessment. See AR 460-70 (Exh. 5F). Moreover, Dr. Yu makes no reference, anywhere, to any medical records, diagnostics or assessments that address the limitations he checked off on the Sierra College form. While Dr. Yu's treatment notes are a part of the record, none of them make any reference to the issues checked off on the Sierra College form. AR 461-70. Accordingly, this "opinion" is simply a checked-off set of conclusions unsupported by any medical evidence. The assessments come out of nowhere, and cannot be relied upon to make a disability determination. "The ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings." Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (emphasis added).
b. Laura Owens
Plaintiff asserts that the ALJ erred by failing to mention what weight he gave to what he describes as the "opinion" of Laura Owens, whom plaintiff describes as a "treating school psychologist" or the "treating psychologist" (AR 509, 538-39 (Exh. 8F)). ECF No. 15 at 18. Ms. Owens is a School Psychologist (AR 509, 523), and as such, she is an "acceptable medical source." 20 C.F.R. §§ 404.1513(a)(2), 416.913(a)(2). However, as discussed below, she was not plaintiff's treating psychologist, and she offered no opinion.
Plaintiff argues that the ALJ should have given "great significant weight" to Dr. Owens' statement (AR 509) that plaintiff "has Bi-Polar II and ADHD that were agreed to be limiting her alertness and vitality and affecting her academic performance to the degree that she cannot progress in general education without specialized academic instruction and counseling support." AR 509. This statement, plaintiff argues, shows that plaintiff "is not capable of independent, full-time work of any kind." ECF No. 15 at 18.
The ALJ did not err, because Ms. Owens did not offer an opinion. The statements that Ms. Owens made at AR 509, 538-39 do not purport to be her opinions, and they do not appear to be such. Rather, they summarize what others had to say about plaintiff. Thus, Ms. Owens's statement that plaintiff's diagnoses "were agreed to be limiting her alertness and vitality," does not even purport to be Ms. Owens's opinion, but only a summary of the conclusion that others had reached. The same is true for the report which Ms. Owens "compil[ed]" at AR 523-39. Even if those summaries and compilations could be considered opinions, there is nothing in them that opines on whether plaintiff has an impairment that meets or equals anything in the Listings, and nothing that opines on what work plaintiff could perform given her functional limitations. Rather, both statements are focused on what services the school can provide to enable plaintiff to succeed in school.
Equally important, there is nothing in the record to indicate that Ms. Owens was plaintiff's "treating psychologist." The statements plaintiff cites give no indication of this. See AR 509, 538-39. The remainder of the cited exhibit shows that Ms. Owens's role was that of an assessor, not a treating psychologist. The record indicates that plaintiff received counseling from "School Nursing Services" (AR 516), "School based counseling" (AR 517), and "private outside therapy" (AR 517), but there is no indication that Ms. Owens provided any of that counseling. Indeed, there is nothing in the record to indicate that Ms. Owens was even an examining psychologist, as there is no indication that she ever met or examined the plaintiff. To the contrary, the record indicates that Ms. Owens' role was to assess the behaviors "observed by qualified educational staff in education or other settings" (see AR 514), rather than to examine or treat plaintiff. Even the "Student Interview" referenced in the exhibit does not indicate that the interview was conducted by Ms. Owens. See AR 525. Accordingly, plaintiff is mistaken in arguing that these compilations should be given the "great" or "controlling" weight she argues should be given a treating physician's opinion.
c. Deborah Schmidt, Ph.D.
After the first ALJ hearing (August 29, 2012), the ALJ requested a functional capacity evaluation. See AR 705 (Exh. 23F). The evaluation was provided by Deborah Schmidt, Ph.D., after she had conducted an examination of plaintiff and administered a battery of tests. AR 706-14. As plaintiff notes, however, she did not review any of plaintiff's medical records. AR 709. On May 9, 2013, Dr. Schmidt reported out her results and completed an evaluation. Her evaluation was that plaintiff had moderate impairment in her ability to understand and remember complex instructions, and that she otherwise was not impaired or had only a mild impairment. AR 706-07. Plaintiff argues that this is not substantial evidence, and that it should be accorded "little weight" because Dr. Schmidt "only had one brief encounter" with plaintiff. ECF No. 15 at 19.
Plaintiff's argument is contrary to the facts and the law. Whatever plaintiff might mean by a "brief encounter," the record shows that Dr. Schmidt conducted an independent examination of the plaintiff at the request of the ALJ, administered a battery of psychological tests on the plaintiff, and wrote a comprehensive report setting out her findings and conclusions. Contrary to plaintiff's unsupported statement, Dr. Schmidt's opinion thus constitutes "substantial evidence." Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) ("Dr. Schatz's [an examining physician] opinion alone constitutes substantial evidence, because it rests on his own independent examination of Tonapetyan").
Plaintiff asserts that the lack of medical records is another reason to give Dr. Schmidt's opinion little weight, arguing specifically that Dr. Schmidt acknowledged "that she performed her exam of Ms. Hernandez with no records to review and that the presence of academic records may have helped better evaluate Ms. Hernandez's intellectual capabilities. (AR 709, 713)." Plaintiff offers no authority for his view that the court should discount the opinion of an examining physician who examined plaintiff upon the specific request of the ALJ, who administered a battery of tests, and who wrote a comprehensive report of her clinical findings, but who did not have access to plaintiff's other medical records or her academic records.
In fact, the absence of academic records cuts against plaintiff's position in this case. If the absence of academic records had any effect on Dr. Schmidt's report, it was to cause Dr. Schmidt to under-estimate plaintiff's intellectual abilities. See AR 712 (plaintiff's scores "could have been negatively impacted by the fact that she tended to give up easily on test items and did not appear to put maximum effort into the testing"). However, even using the (possibly) artificially lower test scores, Dr. Schmidt concluded that plaintiff had no functional impairments, or only "mild" functional impairments, except for a "moderate" functional impairment in her ability to understand and remember "complex" instructions. AR 706.
In sum, considering Dr. Schmidt's thorough and recent examination and testing of plaintiff, the ALJ did not err in according her report "great weight." See AR 26.
d. State Agency psychologist
Citing Exhibit 6A, the ALJ gave "great weight" to the "State Agency psychologist" assessment that plaintiff "could perform simple repetitive tasks." AR 26. Plaintiff argues that this was error, and that this assessment was not substantial evidence because that psychologist "only had one brief encounter" with plaintiff. ECF No. 15 at 19. Exhibit 6A contains the assessment made by Preston Davis, Psy.D., on plaintiff's request for reconsideration of the denial of her Title XVI claim by the state agency. AR 136-46. According to Dr. Davis's report, he //// //// reviewed the "pertinent MER" (medical evidence of record) in the patient's file. AR 141. The medical evidence of record he considered is laid out in the administrative record. See AR 137-40 ("Evidence of Record"). To understand Dr. Davis's assessment, a look at what preceded it is warranted.
Exhibit 6A includes the work of Dr. Davis and Mikhail Bargan, M.D. Neither plaintiff nor the Commissioner specify which doctor they have in mind, but the court concludes that both parties must be referring to the assessments made by Preston Davis, Psy.D. Also, the court notes that Exhibit 6A refers only to the reconsideration of plaintiff's Title XVI claim, and that the ALJ makes no reference to Exhibit 5A, which contains the assessments regarding plaintiff's reconsideration of the denial of her Title II child disability benefits claim by the state agency. However, Exhibit 5A contains the same information and assessments as Exhibit 6A, and so the court finds no error in the ALJ's failure to mention Exhibit 5A.
The Social Security Administration helpfully provides a list of acronyms in the Program Operations Manual System ("POMS"), its "internal agency document used by employees to process claims." Carillo-Yeras v. Astrue, 671 F.3d 731, 735 (9th Cir. 2011). See h ttps://secure.ssa.gov/poms.nsf/lnx/0204440001 (last visited by the court on February 25, 2016).
On August 15, 2011, Tim Schumacher, Ph.D. made the initial psychological assessment of plaintiff. AR 116-22. Dr. Schumacher reviewed the medical evidence of record. That evidence is set forth at AR 113-15 ("Evidence of Record"). He concluded that plaintiff could "carry out routine vocational assignments." AR 116. His residual functional capacity evaluation found that plaintiff was "moderately limited" in several areas, and "not significantly limited" in the rest. AR 118-20. Dr. Schumacher concluded that plaintiff could not carry out "difficult-detailed 3 to 4 step work duties over extended periods," but that she could "carry out routine 1 to 2 step assignments for up to 2 hr intervals . . .." AR 119. He also concluded that plaintiff's limitations prevented her from "interacting closely with the general public," but that she could "engage in routine contacts with coworkers and employers in settings where major collaboration with others is not involved." AR 119.
Returning to Dr. Davis, that doctor then concluded that the medical evidence of record supported Dr. Schumacher's initial determination, and that the new medical evidence of record did nothing to change that determination. AR 141 ("New MER did not change the Y determination"). He therefore "adopted" the prior conclusion that plaintiff could carry out "simple wk [work] tasks w/limited GP [general public] contact." AR 141.
As best the court can tell, Dr. Davis uses the terms "Y" and "Y Psychologist MC" to refer to the Psychological Consultant. "MC" refers to Medical Consultant. See, e.g., https://secure.ssa.gov/poms.nsf/lnx/0424501001 (last visited by the court on February 25, 2016).
There is nothing in the record that indicates that Dr. Davis had even "one brief encounter" with plaintiff. To the contrary, the record indicates that Dr. Davis was a non-examining psychologist who based his opinion entirely on the medical evidence of record considered by the initial psychological consultant, and whatever new medical evidence of record was obtained since that determination. Plaintiff's objection - even if it were true - provides no legal basis for rejecting the opinion of a non-examining psychologist whose opinion is based upon the medical record in plaintiff's file. To the contrary, reviewing those records is precisely what a non-examining psychologist is supposed to do.
"When a State agency medical or psychological consultant makes the determination together with a State agency disability examiner at the initial or reconsideration level of the administrative review process . . . he or she will consider the evidence in your case record and make findings of fact about the medical issues, including, but not limited to, the existence and severity of your impairment(s), the existence and severity of your symptoms, whether your impairment(s) meets or medically equals the requirements for any impairment listed in appendix 1 to this subpart, and your residual functional capacity." 20 C.F.R. § 404.1527(e)(1)(i); 20 C.F.R. § 416.1527(e)(1)(i) (same).
"The weight afforded a non-examining physician's testimony depends 'on the degree to which they provide supporting explanations for their opinions.'" Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008); 20 C.F.R. §§ 404.1527(c)(3) ("because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions"), 416.927(c)(3) (same). In this case, Dr. Schumacher's opinion, as adopted by Dr. Davis, discusses the underlying evidence Dr. Schumacher considered (AR 115-16), and fully explains his residual functionality conclusions (AR 119).
The court can find no error in according Dr. Davis's opinion "great weight."
e. Faren R. Akins, Ph.D.
On September 10, 2013, the ALJ held the third, and last, hearing on plaintiff's claims. AR 35-52 (transcript). Faren R. Akins, Ph.D. was called to testify as a "psychological expert." AR 37-40. After reviewing the reports of Drs. Schmidt (Exh. 23F) and Yu (Exh. 20F), Dr. Akins testified as follows:
Plaintiff offered no objection to Dr. Akins's qualifications as an expert. AR 37.
The record as a whole does not support that there is a listing met or equaled. The apron of several of the listings could be said to be met but the severity of the symptoms don't trigger two areas that are marked in impairment level under the B term. . . .
So, in work environments where there would be an issue of complex instructions or directions to be followed or complex decisions to be made, those would be ones where the claimant would have a marked impairment. Otherwise, the remaining categories would either be mild or possibly moderate at best but there wouldn't be anything marked outside of the couple of questions that are usually looked at for complex instructions or decision-making.AR 39-40.
Plaintiff argues Dr. Akins's opinion is not "substantial evidence" because he did not examine plaintiff, and only reviewed her records. ECF No. 15 at 19. This argument ignores the settled law of this circuit. It is true that "[t]he opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician." Lester v. Chater, 81 F.3d 821, 831 (9th Cir. 1995) (emphasis added); Ryan v. Comm'r of Soc. Sec. Admin., 528 F.3d 1194, 1202 (9th Cir. 2008) (same). Also, the opinion of a non-examining physician "with nothing more," is not substantial evidence. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990).
However, that is not the situation here. First, Dr. Akins is explaining the meaning of the treating physician's statement, not contradicting it. Second, Dr. Akins did not offer a bare opinion, "without more." Rather, Dr. Akins relies on the most recent consultative examination available at the time, authored by Dr. Schmidt (Exh. 23F), and the "opinion" of the treating physician, Dr. Yu (Exh. 20F). As the court has already determined, Dr. Schmidt's report is "substantial evidence." Accordingly, Dr. Akins was entitled to offer an opinion based upon a review of that report, and the ALJ was entitled to adopt Dr. Akins's opinion. See Andrews v. Shalala, 53 F.3d 1035, 1037 (9th Cir. 1995) ("[w]e hold that the Secretary was entitled to adopt the opinion of the nonexamining medical advisor, who was present at the hearing and testified").
The court can find no error in the ALJ's according "significant weight" to Dr. Akins's opinion. See AR 27.
f. Eugene Roeder, Ph.D.
Dr. Roeder examined plaintiff on March 10, 2014 (after the ALJ had rendered his decision). See AR 725-29 (Exh. 25F). According to Dr. Roeder's report, plaintiff had been referred to him "for a confidential psychological evaluation under Section 1017 of the Evidence Code . . .." AR 725. Section 1017, in turn, relates to psychotherapist exams that are done "in order to provide the [defense] lawyer with information needed so that he or she may advise the defendant whether to enter or withdraw a plea based on insanity or to present a defense based on his or her mental or emotional condition." Cal. Evid. Code § 1017. There is no indication in the report or the statute that this examination was undertaken to determine whether plaintiff was "disabled" for purposes of Social Security benefits, or for any other purpose.
Dr. Roeder reviewed plaintiff's criminal history documents, but did not review any medical records. AR 725. He conducted a clinical interview and administered two tests on plaintiff, only one of which he ultimately concluded was valid. Id. Dr. Roeder determined that according to the first test, Shipley Institute of Living Scale, plaintiff had an IQ of 78, which "indicates she would be capable of independent living," but that "she is likely to experience challenges with higher-order judgment and decision-making . . .." AR 727. Dr. Roeder found that the results of the second test, the Minnesota Multiphasic Personality Inventory-2-RF (MMPI-2-RF), were "invalid and uninterpretable." AR 727. He concluded that "her limited intellectual capabilities are overshadowed by her severe psychiatric problems, as she acknowledges hearing voices, believes she has multiple personalities, and objective psychological testing is consistent with someone who would receive the diagnosis Psychotic Disorder." AR 728. He also states, apparently contradicting himself, that plaintiff "does not appear to be capable of independent living." AR 728, 729.
Plaintiff argues that this opinion should be given greater weight than Dr. Schmidt's. Surprisingly, the Commissioner argues that "[i]t would be improper to consider this opinion as part of this application" because it was submitted after the ALJ rendered his decision. ECF No. 18 at 8-9 & 9 n.2. The Commissioner's position is surprising, because the Appeals Council was entitled to consider this evidence, and it did consider Dr. Roeder's opinion in reaching its conclusion that the ALJ's decision should be upheld. AR 1, 2, 4 (Dr. Roeder's opinion "does not provide a basis for changing the Administrative Law Judge's decision"). Moreover, this court is required to consider Dr. Roeder's opinion so long as it relates to the period of the claimed disability. Brewes v. Comm'r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012) ("we hold that when the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence").
See 20 C.F.R. §§ 404.970(b), 416.1476(b)(1).
Nothing in Dr. Roeder's opinion indicates that the issues he identifies arose after the date of the ALJ's decision.
Plaintiff does not explain why Dr. Roeder's opinion should change the ALJ's decision, nor does any such reason appear from the record. Dr. Roeder examined plaintiff to determine if her intellectual or mental condition would warrant changing her plea, a matter having no obvious connection to her ability to engage in substantial gainful employment. The report contradicts itself by stating both that plaintiff is capable of independent living, and that she is not. The report states that plaintiff's IQ is 78, which is consistent with the finding of Dr. Schmidt, to which the ALJ correctly gave great weight. Finally, plaintiff objects that the ALJ or Appeals Council did not give greater weight to the report's finding that plaintiff has "'severe psychiatric problems.'" ECF No. 15 at 20. However, the ALJ did find that plaintiff has "severe" psychiatric impairments, namely, "major depressive disorder, bipolar disorder, and attention deficit hyperactivity disorder (ADHD)." AR 21. The ALJ also found that these impairments did not meet or equal the severity of the Listings, and he incorporated those impairments into his residual functional capacity assessment. Plaintiff does not explain how Dr. Roeder's report would have changed those conclusions.
The court can find no error in the Appeals Council's determination that Dr. Roeder's report does not warrant a change in the ALJ's decision. //// ////
2. Crediting testimony
Plaintiff asserts that the ALJ erred in discrediting her and her mother's testimony. ECF No. 15 at 21-22.
a. Plaintiff's testimony
Plaintiff testified at the August 29, 2012 hearing. AR 71-100. Plaintiff also completed a self-assessment. AR 296-303 (Exh. 3E). In challenging the ALJ's decision, plaintiff cites her own testimony that she goes into "a downward spiral" when she experienced stress, that her low level of functioning worsens her stress, and that she has only had one job that lasted three weeks. ECF No. 15 at 9, 19, 24 (citing AR 78-79, 90, 91, 100). Plaintiff's testimony supports her claim that she has cognitive functioning impairment. Among other things, she did not pass a single class in college, despite being in the disabled students program. However, her testimony does not indicate that she has "marked" impairments in any areas, with the possible exception of concentration, persistence and pace. She reported that her medical conditions affect her memory and concentration. AR 301. She reported no difficulties in personal care or taking care of her pets, although she needs reminders to take her medicine. AR 297-98. She reports no problems with meal preparation, house work, getting around, shopping, paying bills, or social activities. AR 298-300. She reports that she is "OK" at following written instruction, follows spoken instructions "not very well," and does not finish what she starts. AR 301. She gets along with authority figures, but doesn't handle stress or changes in routine well. AR 302.
Plaintiff makes no reference to her self-assessment. The court does not know what portion of it plaintiff thinks the ALJ improperly failed to credit.
The ALJ considered and gave some credit to the plaintiff's testimony. After citing her testimony, the ALJ determined that that plaintiff's impairments "pose more than minimal limitations, they are severe." AR 22. The ALJ further considered plaintiff's testimony in considering her residual functional capacity. AR 23-27. The ALJ's residual functional capacity incorporates plaintiff's low level of functioning, and her depression. In considering jobs plaintiff could perform (which conclusion was based on the testimony of the vocational expert), the ALJ acknowledged plaintiff's lack of work history. AR 27. Thus, the ALJ did not entirely discredit plaintiff's testimony. Rather, the ALJ found that her testimony about the "intensity, persistence and limiting effects" of her symptoms were not "entirely" credible, for the reasons he went on to explain. AR 24.
b. Mother's testimony
Plaintiff's mother did not testify at any of the hearings before the ALJ. She did provide a Third Party Function Report. See AR 304-12 (Exh. 4E). The ALJ considered this report. AR 24. However, plaintiff does not identify what assertions in that report (or any other evidence) that ALJ should have found credible but failed to. The court's review of that report shows that it is consistent with plaintiff's assertion that she is limited in cognitive functioning, an impairment that the ALJ considered and included in his residual functional capacity assessment. Plaintiff offers no clue about what part of the mother's testimony she feels was improperly discredited, and does not explain how this report should have changed the ALJ's decision.
The court can find no error in the ALJ's consideration of the mother's testimony.
B. Alleged Lack of Substantial Evidence
1. Listings ¶ 12.04
Plaintiff argues that the ALJ's determination that her impairments do not meet or medically equal the severity of Listings ¶ 12.04 (Affective Disorder), is not supported by substantial evidence. ECF No. 15 at 22-23. In order to meet or medically equal that Listing, plaintiff's symptoms must result in two of the difficulties listed at Listings ¶ 12.04B. Plaintiff asserts that she has (1) marked restriction of activities of daily living, and (2) marked difficulties in maintaining concentration, persistence or pace. ECF No. 15 at 23. In support, plaintiff cites "AR 532-36 and 686," without explanation. However the cited pages of the administrative record do not appear to address the issue of whether plaintiff meets or equals Listings ¶ 12.04B.
In the alternative, plaintiff must meet the requirements of 12.04C, but she does not argue that she meets those requirements.
The first set of pages, AR 532-36, contain something called "Behavior Assessment System" rating scales, and are part of a report compiled by Ms. Owens. These do not even purport to be medical assessments. Instead, they are based upon a "Self Report" by plaintiff (AR 531-32), "Selena's mother's responses" (AR 533), "a Colfax High School math teacher" (AR 534), and "the regular education drama teacher" (AR 535). Plaintiff does not direct the court's attention to any particular rating scale within these pages. However, the court notes that plaintiff's mother rates her "Activities of Daily Living" at the "Clinically Significant" range, indicating "a high level of maladjustment." AR 533. This is the only "evidence" that even suggests that plaintiff could have a marked impairment in activities of daily living. However, it is "based upon" responses given by Selena's mother, and there is no indication of what questions prompted the responses, nor that there is any medical evidence that supports the assessment. In short, plaintiff identifies no medical evidence or opinions that would support her claim that she has a "marked" impairment in the activities of daily living.
Plaintiff's second citation, AR 686, is to Dr. Yu's assessment for Sierra College. Plaintiff cites this as evidence that she has a "marked" limitation in the area of concentration, persistence and pace. As discussed above, the ALJ did not err in giving this report "little weight." It was not supported by any medical evidence, and did not indicate the severity level of the impairments listed.
Dr. Akins did testify that he interprets Dr. Yu's check-off form as indicating that plaintiff had a "marked" impairment in concentration, persistence and pace. The court notes that while the ALJ relied on Dr. Akins's testimony, his decision did not make any reference this. This was not error, as Dr. Yu's evaluation did not actually find that plaintiff had any "marked" impairments. In any event, even a single "marked" impairment is not enough to "meet or medically equal" Listings ¶ 12.04 (the Listings plaintiff claims she meets or equals), and the ALJ considered plaintiff's moderate or mild impairment in concentration, persistence and pace in the residual functional capacity assessment.
The court finds no error in the ALJ's determination that plaintiff did not meet or equal the Listings.
2. Simple, unskilled work
Plaintiff cites "POMS 25025.00(1)(e)," and an exhibit to the brief of her hearing-level attorney, to argue that she does not have the mental traits required for simple, unskilled work. ECF No. 15 at 23-24. The court assumes that plaintiff is referring to POMS DI 25020.010(B)(3), which sets forth the "Mental Abilities Critical For Performing Unskilled Work," and lists the items specified by plaintiff in her brief to this court and in the exhibit to her hearing-level brief.
See https://secure.ssa.gov/apps10/poms.nsf/lnx/0425020010 (last visited by the court on February 25, 2016). As best the court can tell there is no thing as "POMS 25025.00(1)(e)."
The Social Security Administration's Program Operations Manual System ("POMS"), is "an internal agency document used by employees to process claims." Carillo-Yeras, 671 F.3d at 735; Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d 1068, 1072 (9th Cir. 2010) (same), cert. denied, 563 U.S. 975 (2011). POMS "does not impose judicially enforceable duties" on either the court or the ALJ. Lockwood, 616 F.3d at 1073. However, "POMS may be 'entitled to respect' under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to the extent it provides a persuasive interpretation of an ambiguous regulation." Carillo-Yeras, 671 F.3d at 735.
It is not clear why plaintiff is even citing the POMS, as she does not assert that SSA employees used the wrong procedures in processing her claim, nor does she allege that an SSA regulation is ambiguous. Rather, she disagrees with the substantive result, namely the finding of non-disability. --------
Plaintiff argues that she cannot perform the items listed in the POMS, and therefore the ALJ's residual functional capacity finding was erroneous. ECF No. 15 at 23-24. In support, plaintiff cites her "failed high school classes," her failure of all classes in college, and makes general references to plaintiff's and her mother's testimony, unspecified "medical" and academic records, and records from Dr. Yu and Ms. Owens. ECF No. 15 at 24. Plaintiff does not explain why the ALJ should have considered these POMS factors separately from his residual functional capacity evaluation, of which they are a part. In any event, as discussed above, the ALJ considered all these factors in concluding that plaintiff had a severe impairment that did not meet or equal one of the Listings, and he included the limitations of her impairment in his residual functional capacity assessment. Moreover, plaintiff does not explain why failing grades in high school or flunking out of college, even without a single passing college grade, prevents a person from engaging in substantial gainful employment.
C. Substantial Evidence
In fact, the ALJ's decision is supported by the substantial evidence discussed above. The report of Dr. Schmidt was based upon an examination of plaintiff which included administering plaintiff a battery of tests. Dr. Schmidt concluded that plaintiff had only mild or moderate impairments. The report of Dr. Davis (on plaintiff's request for reconsideration) was based upon a review of the medical records and of Dr. Schumacher's assessment. Dr. Schumacher's assessment, in turn, was based upon his review of the medical evidence of record. Both doctors concluded that plaintiff could carry out simple work tasks so long as she had "limited" contact with the general public, thus taking into account her intellectual and social limitations. Dr. Akins testified as a non-examining physician, and based his testimony upon the medical records of Drs. Schmidt and Yu. His testimony found that plaintiff may have a "marked" impairment in the area of taking complex instructions, but that any other impairments were mild or moderate.
These opinions, and the in-person examinations and test results supporting them, are substantial evidence supporting the ALJ's decision.
VII. CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (ECF No. 15), is DENIED;
2. The Commissioner's cross-motion for summary judgment (ECF No. 18), is GRANTED, and the decision of the Commissioner is AFFIRMED; and
3. The Clerk of the Court shall enter judgment for defendant, and close this case. DATED: March 7, 2016
/s/_________
ALLISON CLAIRE
UNITED STATES MAGISTRATE JUDGE