Opinion
Case No. 3:17-cv-0926-AC
10-10-2018
MEY S., Plaintiff, v. COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, Defendant.
MERRILL SCHNEIDER Schneider Kerr & Robichaux P.O. Box 14490 Portland, OR 97293 Of Attorney for Plaintiff BILLY J. WILLIAMS United States Attorney RENATA GOWIE Assistant United States Attorney District of Oregon 1000 SW Third Ave., Suite 600 Portland, OR 97204-1011 RYAN LU Special Assistant United States Attorney Office of the General Counsel 701 Fifth Ave., Suite 2900 M/S 221A Seattle, WA 98104-7075 Of Attorneys for Defendant
FINDINGS AND RECOMMENDATION MERRILL SCHNEIDER
Schneider Kerr & Robichaux
P.O. Box 14490
Portland, OR 97293
Of Attorney for Plaintiff BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
District of Oregon
1000 SW Third Ave., Suite 600
Portland, OR 97204-1011 RYAN LU
Special Assistant United States Attorney
Office of the General Counsel
701 Fifth Ave., Suite 2900 M/S 221A
Seattle, WA 98104-7075
Of Attorneys for Defendant
Findings and Recommendation
ACOSTA, Magistrate Judge:
Mey S. ("Plaintiff") seeks judicial review of the final decision by the Social Security Commissioner ("Commissioner") denying her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("SSA"). This Court has jurisdiction to review the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Based on a careful review of the record, the Commissioner's decision should be AFFIRMED.
Procedural Background
Plaintiff filed for DIB and SSI on February 6, 2006, alleging disability as of April 30, 2005. Tr. 735. Her applications were denied initially and upon reconsideration, and an Administrative Law Judge ("ALJ") found Plaintiff not disabled on February 3, 2009. Tr. 735. On June 3, 2009, the Appeals Council remanded the case to solicit additional vocational expert ("VE") testimony, reconsider opinion evidence, reconsider third-party lay witness testimony, and take additional evidence as needed. Tr. 109-13. After complying with the Appeals Council Order, the ALJ issued a second unfavorable decision on August 26, 2010, and the Appeals Council subsequently denied Plaintiff's request for review. Tr. 43-64. Plaintiff once again appealed the ALJ's decision, and the District Court remanded the case to:
take additional testimony from the claimant, and if it was in part or whole not credible, to specifically identify which portion of the testimony were not credible and provide specific, clear, and convincing reasons explaining why it is not credible; and to reevaluate the opinions of Dr. Kehrli and Dr. Alley to determine
whether to credit their opinions that the claimant was limited to sedentary work, and if so, to decide whether to reformulate a new residual functional capacity and reconsider the last two steps of the sequential evaluation.Tr. 735. While waiting for the resolution of her previous applications, Plaintiff filed separate applications for disability on February 12, 2012, and was found disabled on that date. Tr. 476. Therefore, Plaintiff's remanded applications applied only to the period between Plaintiff's alleged disability onset date of April 30, 2005, and February 12, 2012. On December 6, 2013, the ALJ issued a partially favorable decision, finding Plaintiff disabled as of June 15, 2008. Tr. 777-99. Plaintiff appealed the ALJ's decision to the District Court, which affirmed the decision in part, reversed in part, and remanded for further proceedings to:
further evaluate the claimant's subjective complaints and provide rationale [sic] in accordance with the disability regulations and rulings, offering the claimant the opportunity for a hearing with a Mien language interpreter and obtain testimony from the claimant regarding the relevant period from her alleged onset date of disability of April 30, 2005 through June 14, 2008; and give further consideration to the claimant's maximum residual functional capacity during the entire period at issue.Tr. 736. On remand, the Appeals Council further directed the ALJ to obtain evidence from a vocational expert about Plaintiff's occupational base. Tr. 736.
On May 24, 2016, the ALJ held an administrative hearing. Tr. 760. Plaintiff testified through a Mien interpreter, and was represented by counsel; a VE also testified. Tr. 760-774. The ALJ issued a decision finding Plaintiff not disabled on July 11, 2016. Tr. 735-749. Plaintiff requested timely review of the ALJ's decision and, after the Appeals Council denied her request for review, filed a complaint in this Court. \ \ \ \ \ \ \ \ \ \
The period under review in this action spans from Plaintiff's alleged disability onset date, April 30, 2005, through June 14, 2008, the date Plaintiff previously was found disabled. --------
Factual Background
Born in 1963, Plaintiff was 41 years old on her alleged disability onset date. Tr. 747. Plaintiff emigrated from Southeast Asia and has never attended school. Tr. 17. She speaks minimal English, and cannot read English or her native language. Tr. 17, 765. Plaintiff previously worked as a cloth folder and packager. Tr. 747.
Standard of Review
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotations omitted). The 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).
The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected . . . to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).
The Commissioner has established a five-step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1502 and 404.920. First, the Commissioner considers whether a claimant is engaged in "substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R. § 416.920(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(c), 416.920(a)(4)(h). If the claimant does not have a severe impairment, he is not disabled.
At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity." Yuckert, 482 U.S. at 140-41; 20 C.F.R. §§ 404.1520(d), 416.920(a)(4)(iii). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. §§ 404.1520(f) and 404.920(f), 416.920(a)(4)(iv). If the claimant can work, he is not disabled; if he cannot perform past relevant work, the burden shifts to the Commissioner.
At step five, the Commissioner must demonstrate that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. §§ 404.1520(g), 416.960(c). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. §§ 404.1566, 416.920(a)(4)(v).
The ALJ's Findings
At step one of the sequential evaluation process outlined above, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date. Tr. 738.
At step two, the ALJ determined Plaintiff had the severe impairments of chronic headaches; left knee degenerative joint disease; right shoulder subacromial bursitis; right fourth finger injury; and adjustment disorder with mixed anxiety and depressed mood. Tr. 738.
At step three, the ALJ found that Plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 739-40. Because Plaintiff did not establish disability at step three, the ALJ continued to evaluate how Plaintiff's impairments affected her ability to work during the relevant period. The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform modified light work as defined by 20 C.F.R. §§ 404.1567(b), 416.967(b) except:
[s]he could stand or walk for two hours in an eight-hour day, and could sit for six hours in an eight-hour day. The claimant could not climb ladders, ropes, or scaffolds, and could occasionally climb ramps and stairs. She could occasionally stoop and kneel, but could never balance on narrow beams. The claimant could engage in frequent but not constant fingering and handling and could engage in no more than occasional overhead work. She could perform simple, unskilled work without public interaction, and could not perform work where English literacy was required.Tr. 740.
At step four, the ALJ found that Plaintiff could not perform her past relevant work of cloth folder and packager. Tr. 747.
At step five, the ALJ found that Plaintiff could perform jobs existing in significant numbers in the national economy, including small products assembler and price marker. Tr. 748. Accordingly, the ALJ concluded Plaintiff was not disabled under the Act. Tr. 749.
Discussion
Plaintiff argues the ALJ failed to adopt Dr. Duane Kolilis' opinion restricting Plaintiff's activity level to one-to-two step instructions, despite granting his overall opinion great weight. The ALJ must provide clear and convincing reasons for rejecting the uncontradicted medical opinion of a treating or examining physician, or specific and legitimate reasons for rejecting contradicted opinions, so long as they are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). An ALJ can satisfy the substantial evidence requirement by setting out a detailed summary of the facts and conflicting evidence, stating his interpretation, and making findings. Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 600-01 (9th Cir. 1999).
The regulations require "only that the ALJ discuss how the evidence supports the [RFC] and explain how the ALJ resolved material inconsistencies or ambiguities in the evidence;" the "ALJ is not required . . . to engage in a function-by-function analysis under SSR 96-8p." Mason v. Comm'r, 379 Fed. Appx. 638, 639 (9th Cir. 2010); see also Bayliss, 427 F.3d at 1217 ("[p]reparing a function-by-function analysis for medical conditions or impairments that the ALJ found neither credible nor supported by the record is unnecessary"). Only limitations supported by substantial evidence must be incorporated into the RFC. Lingenfelter v. Astrue, 504 F.3d 1028, 1041 (9th Cir. 2007); Osenbrock, 240 F.3d at 1163-65.
Dr. Duane Kolilis, Ph.D., evaluated Plaintiff in a psychodiagnostic examination on March 21, 2006. Tr. 324. Dr. Kolilis did not review any of Plaintiff's records before conducting the examination. Tr. 324. Dr. Kolilis noted that Plaintiff "appeared to have difficulty comprehending many of the [diagnostic] questions, and most of the tasks," but the doctor was uncertain if the "difficulty was due to the translation process, cultural barriers, or intellectual abilities." Tr. 326. Dr. Kolilis observed no evidence of "psychomotor agitation or retardation," but Plaintiff reported depression, as well as poor sleep and appetite. Tr. 326. Plaintiff also reported anxiety and panic attacks related to "not having an income." Tr. 326. Dr. Kolilis opined that Plaintiff "did not perform at her optimal level" on the tests, as Plaintiff's performance was "marked by inappropriate latencies and slow responses." Tr. 327. Dr. Kolilis also noted that "[t]he lack of pain behavior at all is, in this examiner's opinion, inconsistent with [Plaintiff's] subjective complaints." Tr. 327.
While Dr. Kolilis diagnosed Plaintiff with an adjustment disorder with mixed anxiety and depressed mood, he noted the conditions "would likely resolve" if Plaintiff were employed, as much of Plaintiff's mental impairments stemmed from the loss of her job and living in a stressful environment due to a lack of income. Tr. 327. Dr. Kolilis further observed that Plaintiff's "chaotic living situation" contributed to any deficits in her short-term memory and concentration, but the deficits did not significantly affect Plaintiff. Tr. 327. Dr. Kolilis opined that:
[w]hen translated verbally, [Plaintiff] is capable of: understanding, remembering, and following at least simple one-to two-step instructions; sustaining concentration and attention, persisting in work-related activities, adapting to changes in routine, and engaging in appropriate social interactions. Her overall attention and concentration today appeared to be fairly good. It is estimated that she is functioning the Low Average Range of intellectual abilities.Tr. 327 (emphasis added).
The ALJ gave Dr. Kolilis' report great weight "because it is consistent with the claimant's presentation and performance during mental status examination, as well as with her activities that establish a capacity for simple tasks." Tr. 746. The ALJ assessed an RFC restricting Plaintiff to "simple, unskilled work without public interaction . . . where English literacy was [not] required." Tr. 740.
Plaintiff argues the assessed RFC, restricting her to simple and unskilled work, does not reflect the limitation to one or two step instructions in Dr. Kolisis's wholly credited opinion. Plaintiff contends that if ALJ assessed an accurate RFC, restricting Plaintiff to one to step instructions, the jobs that the VE testified she would be capable of performing would be beyond her abilities because they require Level Two reasoning. See Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1003-4 (9th Cir. 2015) (an RFC restricting the plaintiff to one or two step instructions and jobs requiring Level Two reasoning are inconsistent, and the ALJ must explain the inconsistency).
As the Commissioner argues, however, Dr. Kolisis's opinion actually states that Plaintiff is limited to at least one-to-two-step instructions, indicating that Dr. Kolisis believed Plaintiff capable of performing more complicated tasks than one-to-two-step instructions. Tr. 327. Indeed, Dr. Kolisis's opinion, read holistically, demonstrates that the doctor believed Plaintiff possessed greater capabilities than those shown at the examination. For instance, Dr. Kolisis stated that Plaintiff "did not perform at her optimal level" when completing the examination, and exhibited "inappropriate latencies" and "slow responses" to the tests. Tr. 327. Plaintiff also refused to attempt any of the simple calculation problems, and Dr. Kolisis further noted that much of Plaintiff's anxiety and depressed mood were related to her living situation and unemployment, which he felt would resolve upon her obtaining employment. Tr. 327. Thus, while Dr. Kolisis assessed a conservative opinion of Plaintiff's capabilities due to her poor performance on the tests, he also qualified the opinion because he believed her capable of completing more complicated tasks.
The ALJ was responsible for interpreting ambiguities in Dr. Kolisis's opinion, to the extent that the "at least" portion of the opinion was ambiguous. See Vazquez v. Astrue, 572 F.3d 586, 591 (9th Cir. 2009) (the ALJ is responsible for resolving ambiguities in the medical evidence). Plaintiff argues that the ALJ merely stated his conclusion, but did not explain the ambiguity in the doctor's opinion. However, the Commissioner's logic is readily apparent: Dr. Kolisis opined that Plaintiff was capable of more complicated tasks than those involving one-to-two-step-instructions, as evidenced by the "at least" qualification included in his opinion. See Alaska Dep't. of Envtl. Conserv. v. EPA, 540 U.S. 461, 497 (2004) ("[e]ven when an agency explains its decision with 'less than ideal clarity,' a reviewing court will not upset the decision on that account 'if the agency's path may reasonably be discerned'"). Because a limitation to simple and unskilled work is compatible with Dr. Kolisis's opined restriction, the ALJ did not err in formulating the RFC, because the RFC is the most a claimant can do despite her impairments, rather than the least. See 20 C.F.R. §§ 404.1545(a)(1); 416.945(a)(1).
The Commissioner notes that Orteza involved a similar situation. Orteza v. Shalala, 50 F.3d 748, 750 (9th Cir. 1995). In Orteza, the ALJ fully credited the opinion of a doctor who stated the plaintiff was capable of "sedentary type" work. Id. The ALJ, however, assessed an RFC restricting the plaintiff to light work after concluding that the doctor did not use the term "sedentary type" work as defined in the regulations. Id. The Court agreed, noting the doctor did not reference any social security regulations, and the record did not indicate the doctor was familiar with the regulations. Id. The Court also noted the record did not indicate that the doctor meant the plaintiff could perform only sedentary work as defined in the regulations. Id.
Plaintiff argues that Orteza is distinguishable from the present case because Dr. Kolilis was a consultative medical examiner, and was familiar with the framework of the social security regulations. This, however, actually strengthens Dr. Kolisis's decision to qualify his opinion: the doctor was familiar with the regulations and knew that Plaintiff was capable of completing more than one-to-two-step tasks, and failing to qualify the opinion would inaccurately characterize Plaintiff's capabilities such that many jobs would be foreclosed by a limitation to only one-to-two-step tasks.
Plaintiff also argues the ALJ failed to account for Dr. Kolilis's restriction that Plaintiff was capable of completing at least one to two step tasks "when translated verbally." Tr. 327. The ALJ restricted Plaintiff from jobs requiring English literacy, but Plaintiff argues that Dr. Kolilis's restriction for instructions to be verbally translated reflects that she also cannot understand spoken English. The ALJ, however, interpreted Dr. Kolilis' use of the word "translated" to mean that Plaintiff required written instructions to be read to her in English, i.e. translated from the page, not that she required instructions to be translated from English to her native language. The ALJ's interpretation is reasonable. Plaintiff has not alleged any difficulties with her past jobs as a result of her English language proficiency, she worked in Oregon for six or seven years in a chicken processing factory, and she worked for about six years folding blankets. Indeed, Plaintiff alleges that she cannot work at her former jobs solely due to physical impairments, not because she cannot understand English. Tr. 766-77. While Plaintiff cites to various records indicating that Plaintiff struggled with questions posed to her in English during the course of Dr. Kolilis's examination, the doctor noted that he could not determine whether Plaintiff's difficulty with the examination stemmed from "the translation process, cultural barriers, or intellectual abilities." Tr. 326. Thus, because the ALJ's interpretation was reasonable it must be upheld. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (the ALJ's rational interpretation of the evidence must be upheld, even if the record is susceptible to other rational interpretations).
Conclusion
Based on the foregoing, the Commissioner's decision denying Plaintiff's application for SSI should be AFFIRMED.
Scheduling Order
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 10th day of October, 2018.
/s/_________
John V. Acosta
United States Magistrate Judge