Opinion
Civ. 3:19-cv-00346-CL
03-19-2021
ROBERT MICHAEL L.[1] Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FINDINGS AND RECOMMENDATION
MARK D. CLARKE, MAGISTRATE JUDGE
Plaintiff Robert Michael L. ("Plaintiff) seeks judicial review of the final decision of the Commissioner of the Social Security Administration denying his claim for Supplemental Security Income ("SSI") under the Social Security Act. For the reasons provided below, the Commissioner's decision should be AFFIRMED, and this case should be dismissed.
BACKGROUND
Plaintiff was born July 8, 1962, and he was fifty-four years and nine months old as of his alleged onset date, Tr. 66. He changed age categories, from a person "closely approaching advanced age" to "advanced age" by the date of his hearing, Id.; 20 C.F.R. § 404.1563. Plaintiff alleged that he became disabled by the following medical conditions: Bilateral hearing loss, left' ankle osteochondral defect, sleep apnea, tinnitus, coronary artery disease, injured back, memory loss, anxiety, and a bulging disk, Tr. 170. Plaintiff completed his GED in 1981. Tr. 171. He completed specialized job training at the Air Force NCO Academy in 1997. Id. Plaintiff worked in the military for thirty-three years, worked as a landscaper and performed maintenance for an elderly living facility. Tr. 171. The vocational expert (VE) at the hearing described these jobs as medical assistant (skilled, light); production coordinator (skilled, sedentary), civil engineering technician (skilled, light). Tr.46-47.
On September 14, 2017, Plaintiff filed for disability insurance benefits under Title II of the Social Security Act. Tr. 152. In his application, Plaintiff alleged disability beginning April 30, 2017. Id. His claim was denied initially on October 25, 2017. Tr. 65. His claim was denied upon reconsideration on November 29, 2017. Tr. 81. On February 12, 2018, Plaintiff filed a written request for hearing before an Administrative Law Judge (ALJ). Tr. 98. On August 7, 2017, Plaintiff appeared and testified at a hearing held in Portland, Oregon. Tr. 33. On September 13, 2017, The ALJ rendered an unfavorable decision. Tr. 12. On November 16, 2018, Plaintiff requested review of the ALJ's decision. Tr. 150. On January 1, 2019, the Appeals Council denied Plaintiffs request for review. Tr. 1. Thereafter, Plaintiff timely filed his complaint in this court.
DISABILITY ANALYSIS
A claimant is disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r. Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Each step is potentially dispositive. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The five-step sequential process asks the following series of questions:
1. Is the claimant performing "substantial gainful activity"? 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). This activity is work involving significant mental or physical duties done or intended to be done for pay or profit. 20 C.F.R. §§ 404.1510; 416.910. If the claimant is performing such work, she is not disabled within the meaning of the Act. 20 C.F.R. §§404.1520(a)(4)(i); 416.920(a)(4)(i). If the claimant is not performing substantial gainful activity, the analysis proceeds to step two.
2. Is the claimant's impairment "severe" under the Commissioner's regulations? 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). Unless expected to result in death, an impairment is "severe" if it significantly limits the claimant's physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1521(a); 416.921(a). This impairment must have lasted or must be expected to last for a continuous period of at least 12 months. 20 C.F.R. §§ 404.1509; 416.909. If the claimant does not have a severe impairment, the analysis ends. 20 C.F.R. §§ 404.1520(a)(4)(ii); 416.920(a)(4)(ii). If the claimant has a severe impairment, the analysis proceeds to step three.
3. Does the claimant's severe impairment "meet or equal" one or more of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 ? If so, then the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(iii); 416.920(a)(4)(iii). If the impairment does not meet or equal one or more of the listed impairments, the analysis proceeds to the "residual functional capacity" ("RFC") assessment.
a. The ALJ must evaluate medical and other relevant evidence to assess and determine the claimant's RFC. This is an assessment of work-related activities that the claimant may still perform on a regular and continuing basis, despite any limitations imposed by his or her impairments. 20 C.F.R. §§ 404.1520(e); 404.1545(b)-(c); 416.920(e); 4l6.945(b)-(c). After the ALJ determines the claimant's RFC, the analysis proceeds to step four.
4. Can the claimant perform his or her "past relevant work" with this RFC assessment? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv); 416.920(a)(4)(iv). If the claimant cannot perform his or her past relevant work, the analysis proceeds to step five. 5. Considering the claimant's RFC and age, education, and work experience, is the claimant able to make an adjustment to other work that exists in significant numbers in the national economy? If so, then the claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v); 404.1560(c); 416.960(c). If the claimant cannot perform such work, he or she is disabled. Id.See also Bustamante v. Massanari, 262 F, 3d 949, 954-55 (9th Cir. 2001).
The claimant bears the burden of proof at steps one through four. Id., at 954. The Commissioner bears the burden of proof at step five. Id. at 953-54. At step five, the Commissioner must show that the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999) (internal citations omitted); see also 20 C.F.R. §§ 404.1566; 416.966 (describing "work which exists in the national economy"). If the Commissioner fails to meet this burden, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v). If, however, the Commissioner proves that the claimant is able to perform other work existing in significant numbers in the national economy, the claimant is not disabled. Bustamante, 262 F.3d at 954-55; Tackett, 180 F.3d at 1099.
THE ALJ'S FINDINGS
Applying the five-step analysis, the ALJ made the following findings:
1. Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2021. Tr. 17.
2. Plaintiff has not engaged in substantial gainful activity since April 30, 2017, the alleged onset date. Tr. 18.
3. Plaintiff has the following severe impairments: hearing loss and tinnitus, coronary artery disease, ischemic heart disease status post myocardial infarction and bypass surgery, and musculoskeletal conditions described lumbar degenerative disc disease, and right shoulder tendonitis with adhesive capsulitis. Tr. 18.
4. Plaintiff 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.
5. Plaintiff has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except he can occasionally reach overhead with the right upper extremity; he can frequently climb ramps and stairs, occasionally climb ladders and scaffolds, frequently balance and kneel, occasionally stoop, crouch, and crawl; he needs to wear protective hearing equipment when exposed to loud noise. Tr. 21.
6. Plaintiff is capable of performing past relevant work as a production coordinator (DOT 079.362-010, sedentary, SVP 6) and civil engineering technician (DOT 005.261-014, light, SVP 7). This work does not require the performance of work-related activities precluded by the residual functional capacity.
7. Plaintiff has not been under a disability, as defined by the Social Security Act, from April 30, 2017, through the date of the decision (September 26, 2018).
STANDARD OF REVIEW
The reviewing court must affirm the Commissioner's decision if it is based on the proper legal standards and the legal findings are supported by substantial evidence in the, record. 42 U.S.C. § 405(g); Batson v. Comm `r Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); see also Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). '"Substantial evidence' means 'more than a mere scintilla but less than a preponderance,' or more clearly stated, 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."' Bray v. Comm'rSoc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)), In reviewing the Commissioner's alleged errors, this Court must weigh "both the evidence that supports and detracts from the [Commissioner's] conclusions." Martinez v. Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable interpretations of the evidence are insignificant if the Commissioner's interpretation is rational. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).
Even where findings are supported by substantial evidence, "the decision should be set aside if the proper legal standards were not applied in weighing the evidence and making the decision." Flake v. Gardner, 399 F.2d 532, 540 (9th Cir. 1968). Under sentence four of 42 U.S.C. § 405(g), the reviewing court has the power to enter, upon the pleadings and transcript record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the case for a rehearing.
DISCUSSION
Plaintiff argues the ALJ erred by (1) improperly dismissing Plaintiffs mental health impairments as non-severe at step two; and (2) improperly rejecting the treating and examining doctors' medical opinions. For the reasons below, the Commissioner's decision should be AFFIRMED and this case should be dismissed.
I. The ALJ properly evaluated Plaintiffs mental health impairments at step two.
At step two, the ALJ must determine if the claimant has a medically determinable impairment that meets the durational requirements and "significantly limits [the claimant's] physical or mental ability to do basic work activities" 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c). For example, for a mental impairment to be severe it must affect the claimant's ability to see, hear, and speak; understand, carry out, and remember simple instructions; use judgment; respond appropriately to supervision, co-workers and usual work situations; and deal with routine changes. 20 C.F.R. § 404.1522(b)(2)-(6). The ALJ is required to consider the combined effect of all of the claimant's impairments on his or her ability to function. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003). Thus, if the ALJ determines that a claimant has a severe impairment at step two, the sequential analysis proceeds and the ALJ must continue to consider all of the.claimant's limitations, severe or not. SSR 96-9p, 1996 WL 374184, Where an ALJ fails to identify a severe impairment at step two, but nonetheless considers at subsequent steps all of the claimant's impairments, including the erroneously omitted severe impairment, the error at step two is harmless. See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007).
When a plaintiff makes a claim for a mental impairment, the ALJ is required to make use of the "psychiatric review technique" ("PRT"). 20 C.F.R. §§ 404.1520a; 416.920a. Pursuant to the PRT, the ALJ must determine whether plaintiff had a medically determinable mental impairment, rate the degree of functional limitation for four functional areas: a. Understand, remember, or apply information; b. Interact with others; c. Concentrate, persist, or maintain pace; d. Adapt or manage oneself. If the impairment is deemed "severe," proceed to step three of the disability analysis to determine if the impairment meets or equals a specific listed mental disorder. Id. at (b) & (c).
In this case, at step two, the ALJ found that the claimant had medically determinable mental impairments, including depression, anxiety, and PTSD, Tr. 18. Nevertheless, the ALJ found these impairments caused no more than mild limitations in Plaintiffs ability to perform mental work activities in each of the four functional areas; thus, the impairments were non-severe. Tr, 18.
The crux of Plaintiff s argument is that the ALJ erred in evaluating the medical opinions of treating and examining psychologists in order to determine that Plaintiffs mental impairments were non-severe. For the reasons set forth below, this contention is unavailing. The ALJ did not commit harmful error in evaluating these opinions. The ALJ's decision was reasonable and supported by substantial evidence and should be affirmed.
1) The ALJ did not commit harmful error in evaluating the medical opinions under the new Social Security regulations.
Under prior Social Security regulations, a hierarchy of medical opinions dictated the weight that must be given by an ALJ: treating doctors were generally given the most weight and non-examining doctors were generally given the least weight. See 20 C.F, R. §§ 404.1527, 416.927 (1991); 56 Fed. Reg. 36, 932 (Aug. 1, 1991). For applications filed on or after March 27, 2017, the new regulations eliminate the old hierarchy of medical opinions. 20 C.F.R. §§ 404.1520c(a), 416.920c(a) (2017). Plaintiff applied for Disability Insurance Benefits in September 2017. Tr. 152. Thus, the Commissioner's new regulations apply to the ALJ's assessment of these opinions. See 20 C.F.R. § 404.1520c; 82 Fed. Reg. 5844 (Jan. 18, 2017; see also 82 Fed. Reg. 15, 132 (Mar. 27, 2017) (correcting technical errors).
The new rules no longer provide for any inherent weight: "We [the SSA] will not defer or give any specific evidentiary weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s) including those from your medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The SSA "considers" various medical opinions for claims filed on or after March 27, 2017, and determines which medical opinions are most persuasive. 20 C.F.R. §§ 404.1520c(a), 416.920c(a). In evaluating which opinions are most persuasive, the ALJ considers several factors. The two most important factors are supportability & consistency. Id. Secondary factors include the relationship with the claimant, specialization, and other factors. Id. at 404.1520c(c), 416.920c(c).
a. The ALJ reasonably found the opinion of Bill Hennings, Ph.D persuasive.
Under the new regulations, a non-examining opinion is evidence the ALJ "must consider" because consultants are "highly qualified and experts in Social Security disability evaluation." 20 C.F.R. § 404.1513a(b)(1). State agency consultant Dr. Bill Hennings, Ph.D., reviewed the record in this case, noting Plaintiffs normal mental status examinations and relatively active lifestyle. Tr. 72-73, 414, 1088. Dr. Hennings found that at most Plaintiff had mild mental limitations. Tr. 74. Mild mental limitations are not severe. 20 C.F.R. § 404.1520a(d)(1). The ALJ found Dr. Henning's non-examining opinion persuasive. Tr. 20.
Dr. Hennings explained that there was a conflict between Plaintiffs allegations of memory problems and the fact that all the mental status exams (MSEs) "were intact," including the one performed on November 20, 2017. Tr. 72-73, 1088. Similarly, the ALJ found Plaintiffs claim of memory problems conflicts with mental status exam findings, citing the mental status exam from January 20, 2017. Tr. 19, 1088. The ALJ also found that Plaintiffs allegations were undermined by the exam findings of Dr. Sacks (Tr. 19, 1413), and the exam findings of Dr. Scharf Tr. 19, 1444. By contrast, the ALJ found Dr. Henning's opinion was "consistent with the objective evidence of the [Plaintiffs] mental functioning and his routine and conservative course of mental health treatment." Tr. 20.
Plaintiff does not challenge Dr. Henning's opinion. The Court finds that the ALJ's evaluation of this opinion sufficiently considered supportability and consistency and that it was reasonably supported by substantial evidence.
b. The ALJ reasonably found the opinion of Jenna Van Slyke, Ph.D., unpersuasive.
Dr. Van Slyke completed a questionnaire concerning Plaintiffs mental health and treatment on July 25, 2018. Tr. 1551-54. She indicated that she had treated Plaintiff for individual mental health therapy since November 28, 2017. Tr. 1551. She wrote that Plaintiff experienced anhedonia, low energy, sleep problems, and difficulty concentrating and memory loss as a result of his mental health impairments. Id. Dr. Van Slyke estimated that Plaintiff would be twenty percent off-task in a standard workweek from his mental health impairments due to fatigue, memory problems, and difficulty concentrating. Tr.1553. Further, she estimated that Plaintiff would miss the equivalent of two days of work per month from even a simple, routine job due to fatigue and/or anxiety related to depression. Id. Dr. Van Slyke opined that Plaintiff had been so limited since April 30, 2017. Tr.1554.
The ALJ considered the opinion from Dr. Van Slyke and rejected it as "unpersuasive." Tr. 20. The ALJ found that the opinion was inconsistent with the objective evidence of Plaintiff s mental functioning, and the routine and conservative course of mental health treatment. Id. Specifically, the ALJ found that Plaintiff saw Dr. Van Slyke on less than a monthly basis and that he "has not required symptom evaluation or medication management from a psychiatrist or other specialist." Id. The ALJ found that Plaintiff was observed to have normal concentration and memory. Id.
Plaintiff raises an argument regarding the ALJ's citations to the record, which appear to be typographical errors, but otherwise bases his claim on Dr. Van Slyke's status as a treating psychologist, which is no longer a legally persuasive argument under the new regulations. Moreover, Dr. Van Slyke performed no memory or concentration testing; her assessment of Plaintiffs mood was derived from Plaintiffs self-reported answers to the Patient Health Questionnaire (PHQ-9) and self-reports. Tr. 1424-25, 1434, 1445- 46, 1453-54, 1465-66, 1518- 19. The Court finds that the ALJ's evaluation of Dr. Van Slyke's opinion as unpersuasive is reasonably supported by substantial evidence in the record.
c. The ALJ reasonably found the opinion of Sacks, Ph.D., partially persuasive.
Examining psychologist Dr. Sacks, Ph.D., found that Plaintiff was dysthymic, or mildly depressed. Dr. Sacks noted that Plaintiff completed his activities of daily living independently but he "prefer[red] to be at home .. .." Tr, 1413-14. Dr. Sacks thought Plaintiff should work away from the public and crowds, he had a mildly impaired ability to concentrate, and he "might" have "significant memoiy and concentration" issues if he was in "crowded or performance conditions," Tr. 1414.
The ALJ found parts of Dr. Sack's opinion inconsistent with other evidence in the record, including that Plaintiff rarely complained of problems with crowds and did not seek treatment for this issue. Tr. 20. Furthermore, Plaintiff denied problems getting along with others. Tr. 20, 208. Additionally, the Court finds that any potential error in assessing Dr. Sack's limitations to working with crowds and around the public is also harmless in light of the ALJ's step-four finding. At step four, the ALJ found Plaintiff could return to his position as a civil engineer technician as it was generally performed. Tr. 26; see Civil Engineering Technician, DOT# 005.261-014, available at 1991 WL 646252. Nothing in the DOT's position suggests such a Technician must interact with crowds or the public. Id. (DOT notes indicate that any dealing with people in this position is "N - Not Significant."). Therefore, the ALJ's evaluation of Dr. Sack's opinion was reasonably supported by substantial evidence and included no harmful error.
d, The ALJ's failure to discuss the opinion of Dr. Daniel Scarf, Ph.D. was harmless error.
Dr. Scharf performed an exam of Plaintiff on January 10, 2018. Tr.1439-1444. Dr. Scharf confirmed Plaintiffs PTSD and persistent depressive disorder diagnoses. Tr.1439. Dr. Scharf indicated that Plaintiffs occupational and social impairment with regards to all mental diagnoses could be summarized as follows:
Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation.Tr.1440. He explained that Plaintiffs "depression and PTSD cause equal occupational and social impairment," Id.,
Plaintiff claims that the ALJ's failure to discuss and consider this opinion was harmful error. The Court disagrees. The ALJ found that Plaintiff had medically determinable mental impairments, including depression, anxiety, and PTSD, but found that these impairments caused no more than minimal limitations. Nothing about the summary above contradicts this conclusion. Indeed, the ALJ specifically relied upon Dr. Scharf s medical findings to reject Plaintiffs claim that his mental problems were more than mild. Tr. 19, 1444 (10F256). Thus, any error in the ALJ's failure to discuss this opinion was harmless because it would not have changed the ALJ's conclusions that Plaintiffs mental limitations were mild. Harmless error does not require reversal. See, e.g., Ludwigv. Astrue, 681 F.3d 1047, 1054 (9th Cir. 2012).
e. Plaintiffs alternative interpretation of the medical opinions does not invalidate the ALJ's interpretation.
The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008). Plaintiff argues for a different weighing of the medical opinions discussed above and an alternative, more severe determination of Plaintiff s mental limitations. Plaintiffs interpretation of the evidence is reasonable, but so is the ALJ's interpretation. Therefore, the Court must uphold the ALJ's interpretation.
RECOMMENDATION
The ALJ properly evaluated the medical evidence regarding Plaintiffs mental impairments and limitations and his determination was reasonable. No. harmful error was committed at step two. Based on the foregoing, the Commissioner's decision should be AFFIRMED.
This Findings and Recommendation will be referred to a district judge. Objections, if any, are due no later than fourteen (14) days after the date this recommendation is filed. If i objections are filed, any response is due within fourteen (14) days after the date the objections are filed. See Fed, R, Civ. P. 72, 6. Parties are advised that the failure to file objections within the specified time may waive their right to appeal the District Court's order Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).