Opinion
No. CV 13-7780 FFM
02-11-2015
REGINA RENE ROBERTSON, Plaintiff, v. CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER
PROCEEDINGS IN THIS COURT
Plaintiff seeks to overturn the decision of the Commissioner of the Social Security Administration denying her application for Disability Insurance benefits. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
STANDARD OF REVIEW
Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether the Commissioner's findings are supported by substantial evidence and whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla" but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842 (1971); Desrosiers v. Secretary of Health & Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. This Court must review the record as a whole and consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). Where evidence is susceptible to more than one rational interpretation, the Commissioner's decision must be upheld. Gallant v. Heckler, 753 F.2d 1450, 1452 (9th Cir. 1984). However, even if substantial evidence exists in the record to support the Commissioner's decision, the decision must be reversed if the proper legal standard was not applied. Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996).
CONTENTIONS
Plaintiff raises four issues: 1. Whether the ALJ properly found that plaintiff's mental impairment is not severe; 2. Whether the ALJ erred in failing to account for plaintiff's obesity; 3. Whether the ALJ's residual functional capacity assessment is supported by substantial evidence; and 4. Whether the Appeals Council erred by failing to associate additional documentation with plaintiff's file.
DISCUSSION
1. The proper rating of plaintiff's mental impairment.
In the decision, the ALJ found that plaintiff suffered from a mental impairment, depression, but that the impairment was not severe. (AR 18.) Plaintiff contends that the ALJ erred in finding the impairment not to be severe and in failing to account for the impairment in plaintiff's residual functional capacity ("RFC").
"An impairment or combination of impairments can be found 'not severe' only if the evidence establishes a slight abnormality that has 'no more than a minimal effect on [a claimant's] ability to work.'" Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Social Security Ruling 85-28 and Yuckert v. Bowen, 841 F.2d 303, 306 (9th Cir. 1988)); 20 C.F.R. §§ 404.1521(a), 416.921(a) ("An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities"). Where there is a colorable claim of a mental impairment, the ALJ must evaluate the impairment by following specific steps set forth in the Social Security regulations. 20 C.F.R. §§ 404.1520a(a), 416.920a(a).
A claim is "colorable" if it is not "wholly insubstantial, immaterial, or frivolous." Rolen v. Barnhart, 273 F.3d 1189, 1191 (9th Cir.2001) (citations omitted). By finding that plaintiff suffered from a medically determinable mental impairment (AR 18), the ALJ impliedly found that plaintiff's claim of mental impairment was "colorable."
First, the ALJ must determine whether the claimant has a "medically determinable impairment." If the ALJ finds an impairment, he or she must set forth the evidence substantiating the presence of the impairment. 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1). Here, the ALJ found that plaintiff suffered from the "medically determinable mental impairment of depression." (AR 18.)
Second, the ALJ must utilize the so-called "psychiatric review technique" in order to determine the severity of the alleged mental impairment. Under the technique, adjudicators assess a claimant's mental restrictions in four broad functional areas: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). In evaluating the first three areas, the ALJ must use a five-point scale ("[n]one, mild, moderate, marked, and extreme"). Id. at §§ 404.1520a(c)(4), 416.920a(c)(4). In rating the episodes of decompensation, the ALJ must use a four-point scale ("[n]one, one or two, three, four or more"). Id. If the adjudicator finds that the claimant had no episodes of decompensation and only mild limitations (or none at all) in the other functional areas, the adjudicator will "generally" conclude that the mental impairment is not severe. 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1). Moderate limitations are sufficient to meet the "severe impairment" standard.
Episodes of decompensation are exacerbations of or temporary increases in symptoms or signs, accompanied by a loss of adaptive functioning. 20 C.F.R. Part 404, subpt. P, app. 1, § 12:00(C)(4).
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Here, the ALJ analyzed the four functional areas, as follows:
The first functional area is activities of daily living. In this area, the claimant has mild limitation. She is able to make her bed, vacuum, and take the kids to school. (Exhibits 10E/1, 4E/2 and Hearing Testimony). Also, she is able to go out alone and drive. (Exhibit 10E/4 and Hearing Testimony). The next functional area is social functioning. In this area, the claimant has mild limitation. She stated she spends time with others when her friends visit her. (Exhibit 10E/5). The third functional area is concentration, persistence or pace. In this area, the claimant has mild limitation. During the psychiatric evaluation, she was clearly able to perform mathematical operations involving the counting of money. She was calm and not restless. She was directable, focused, and not distractible. Her eye contact was fair, her speech was spontaneous and fluent, and while her attention and immediate recall were slightly diminished, her past memories were fairly intact. Her thought content, thought process, and insight and judgment were fair. (Exhibit 2F/3-4). The fourth functional area is episodes of decompensation. In this area, the claimant's medical records do not show she has experienced any episode of decompensation of extended duration. In fact, the claimant testified she has not sought psychiatric counseling or treatment. (Hearing Testimony).AR 18.
Plaintiff contends that the ALJ did not properly reject certain functional limitations found by the consultative examining psychiatrist. Specifically, Dr. Goldstein performed a psychiatric consultative examination and opined that plaintiff had marked impairments in her ability to maintain focus and concentration and in her ability to interact with the public. (AR 423.) The remainder of Dr. Goldstein's evaluation showed good functioning ability in all areas. The report also quoted plaintiff's description of her complaints.
The opinion of an examining physician is entitled to greater weight than the opinion of a nonexamining physician. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995); Gallant v. Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984). The Commissioner must provide "clear and convincing" reasons for rejecting the uncontradicted opinion of an examining physician. Lester, 81 F.3d at 830. Even if contradicted by another doctor, the opinion of an examining physician may only be rejected for specific and legitimate reasons that are supported by substantial evidence in the record. Id. at 830-31; Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995).
The ALJ accepted the State Agency assessment and rejected Dr. Goldstein's limitations, as follows:
Great weight was also given to the State Agency mental assessment (Exhibit 4F), because while it is inconsistent with Estelle Goldstein, M.D.'s opinion, it is consistent with her examination findings, which were essentially unremarkable. Also, the State Agency assessment is consistent with the claimant's allegations that she spends time with others and has not sought any psychiatric counseling or treatment. Little weight was given to the opinion of Dr. Goldstein, because it is inconsistent with her own findings, with the claimant's allegations and testimony, and it apparently relied quite heavily on the subjective report of symptoms and
limitations provided by the claimant, and seemed to uncritically accept as true most, if not all, of what the claimant reported. (Exhibit 2F).AR 21.
The State Agency physician concluded:
The psychol CE of 4/26/11 is the only evidence applicable to the impairment. This CE finds the dx of Major Depression, but the MSS finds her able to perform complex tasks with only mild limitations. It finds her able to respond to coworkers and supervisors, and to adapt to work stressors. The MSS states that the claimant would be "markedly" impaired in ability for focus and concentration, as well as dealing with the public. These limits are completely unsupported by the record in general, and even by the content of the CE itself which found the claimant's attention and immedicat recall only "slightly diminished" in the exam, and which saw a pleasant, cooperative and appropriate claimant with no history of interpersonal problems. Additionally, the claimant's ADLs do not indicate significant problems with concentration or focus, or with social interaction.AR 439
Whether or not the State Agency, non-examining physician's statement could be construed as substantial evidence, the rationale is consistent with the ALJ's findings that limitations found by Dr. Goldstein were neither supported by the record in general nor by Dr. Goldstein's objective findings. These findings constitute clear and convincing reasons for rejecting the "marked" limitations opined by Dr. Goldstein. Therefore, remand is not required with respect to this issue. 2. Plaintiff's obesity.
Plaintiff contends that, although the ALJ noted plaintiff's obesity, she did not properly account for any additional limitations caused thereby. However, as defendant points out, nothing in the record supports any additional limitations, whether or not caused by plaintiff's obesity. Therefore, remand is not required. 3. The RFC.
Plaintiff contends that the RFC found by the ALJ is not supported by substantial evidence, that it ignores plaintiff's use of a cane, that it ignore plaintiff's fatigue, and that it fails to take into account the testimony of a third party.
However, the ALJ based her finding of plaintiff's RFC on the medical records and opinions of physicians. The record does not support limitations greater than those found by the ALJ. In addition, the ALJ discounted plaintiff's testimony. Plaintiff has not challenged those findings and the record does not otherwise support restrictions based on the use of a cane or general fatigue.
With respect to the third party witness, the Social Security regulations provide that the ALJ "may . . . use evidence from other sources to show the severity of [an individual's] impairment(s) and how it affects [his] ability to work." 20 C.F.R. §§ 404.1513(d), 416.913(d). In turn, the Ninth Circuit has repeatedly held that "[d]escriptions by friends and family members in a position to observe a claimant's symptoms and daily activities have routinely been treated as competent evidence." Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987); Dodrill v. Shalala, 12 F.3d 915, 919 (9th Cir.1993) (ALJ must consider lay testimony concerning a claimant's ability to work); Stout v. Commissioner, Soc. Sec. Admin., 454 F.3d 1050, 1053 (9th Cir. 2006) (same). This principle applies equally to sworn hearing testimony of witnesses (see Nguyen v. Chater, 100 F.3d 1462, 1467 (9th Cir. 1996)) as well as to unsworn statements and letters of friends and relatives (see Schneider v. Commissioner of the Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000)).
As a general rule, if the ALJ chooses to reject such evidence from other sources, he may not do so without comment (Nguyen, 100 F.3d at 1467) and he must provide "reasons that are germane to each witness" (Dodrill, 12 F.3d at 919; see also Smolen, 80 F.3d at 1289 (dismissing witness testimony simply because witness is family member not sufficiently germane to witness)).
Here, the ALJ provided the following reasons:
Finally, the allegations of Mr. Griffin do not establish that the claimant is disabled. Since Mr. Griffin is not medically trained to make exacting observations as to dates, frequencies, types and degrees of medical signs and symptoms, or the frequency or intensity of unusual moods or mannerisms, the accuracy of his allegations are questionable. Moreover, by virtue of the relationship as a friend of the claimant, Mr. Griffin cannot be considered a disinterested third party witness whose allegations would not tend to be colored by affection for the claimant and a natural tendency to agree with the symptoms and limitations the claimant alleges. Most importantly, significant weight cannot be given to Mr. Griffin's allegations because they, like the claimant's, are simply not consistent with the preponderance of the opinions and observations by medical doctors in this case. (Exhibit 9E).AR 22.
Although the ALJ's observation that the third party was a friend of plaintiff's may not have been a proper basis for rejecting the observations, the other reasons posited by the ALJ were germane and therefore sufficient. 4. The record.
Plaintiff apparently submitted new evidence to the Appeals Council that was not made part of the record by the Appeals Council. Plaintiff now seeks remand for the ALJ to consider this new evidence. However, plaintiff did not submit the new evidence to this Court so it is impossible for the Court to address this issue. Given plaintiff's failure to properly present this issue, the Court concludes that plaintiff has waived the issue.
CONCLUSION
For the foregoing reasons, the decision of the Commissioner is affirmed. DATED: February 11, 2015
/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge