(SS) Nyberg v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TAMMY J. NYBERG, No. 2:20-CV-0338-DMC 12 Plaintiff, 13 v. MEMORANDUM OPINION AND ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Plaintiff, who is proceeding with retained counsel, brings this action for judicial 19 review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). 20 Pursuant to the written consent of all parties, ECF Nos. 7 and 8, this case is before the 21 undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 22 U.S.C. § 636(c). Pending before the court are the parties’ briefs on the merits, ECF Nos. 13 and 23 14. 24 The Court reviews the Commissioner’s final decision to determine whether it is: 25 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 26 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 27 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 28 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to support 1 a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 2 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 3 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 4 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The Court may not affirm the Commissioner’s 5 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 6 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 7 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 8 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 9 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 10 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 11 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 12 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 13 Cir. 1988). 14 For the reasons discussed below, the Commissioner’s final decision is affirmed. 15 16 I. THE DISABILITY EVALUATION PROCESS 17 To achieve uniformity of decisions, the Commissioner employs a five-step 18 sequential evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 19 404.1520 (a)-(f) and 416.920(a)-(f). The sequential evaluation proceeds as follows: 20 Step 1 Determination whether the claimant is engaged in substantial gainful activity; if so, the claimant is presumed 21 not disabled and the claim is denied; 22 Step 2 If the claimant is not engaged in substantial gainful activity, determination whether the claimant has a severe 23 impairment; if not, the claimant is presumed not disabled and the claim is denied; 24 Step 3 If the claimant has one or more severe impairments, 25 determination whether any such severe impairment meets or medically equals an impairment listed in the regulations; 26 if the claimant has such an impairment, the claimant is presumed disabled and the claim is granted; 27 28 / / / 1 Step 4 If the claimant’s impairment is not listed in the regulations, determination whether the impairment prevents the 2 claimant from performing past work in light of the claimant’s residual functional capacity; if not, the claimant 3 is presumed not disabled and the claim is denied; 4 Step 5 If the impairment prevents the claimant from performing past work, determination whether, in light of the claimant’s 5 residual functional capacity, the claimant can engage in other types of substantial gainful work that exist in the 6 national economy; if so, the claimant is not disabled and the claim is denied. 7 See 20 C.F.R. §§ 404.1520 (a)-(f) and 416.920(a)-(f). 8 9 To qualify for benefits, the claimant must establish the inability to engage in 10 substantial gainful activity due to a medically determinable physical or mental impairment which 11 has lasted, or can be expected to last, a continuous period of not less than 12 months. See 42 12 U.S.C. § 1382c(a)(3)(A). The claimant must provide evidence of a physical or mental 13 impairment of such severity the claimant is unable to engage in previous work and cannot, 14 considering the claimant’s age, education, and work experience, engage in any other kind of 15 substantial gainful work which exists in the national economy. See Quang Van Han v. Bower, 16 882 F.2d 1453, 1456 (9th Cir. 1989). The claimant has the initial burden of proving the existence 17 of a disability. See Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990). 18 The claimant establishes a prima facie case by showing that a physical or mental 19 impairment prevents the claimant from engaging in previous work. See Gallant v. Heckler, 753 20 F.2d 1450, 1452 (9th Cir. 1984); 20 C.F.R. §§ 404.1520(f) and 416.920(f). If the claimant 21 establishes a prima facie case, the burden then shifts to the Commissioner to show the claimant 22 can perform other work existing in the national economy. See Burkhart v. Bowen, 856 F.2d 23 1335, 1340 (9th Cir. 1988); Hoffman v. Heckler, 785 F.2d 1423, 1425 (9th Cir. 1986); Hammock 24 v. Bowen, 867 F.2d 1209, 1212-1213 (9th Cir. 1989). 25 / / / 26 / / / 27 / / / 28 / / / 1 II. THE COMMISSIONER’S FINDINGS 2 Plaintiff applied for social security benefits on March 9, 2017. See CAR 19.1 In 3 the application, Plaintiff claims disability began on March 2, 2017. See id. Plaintiff’s claim was 4 initially denied. Following denial of reconsideration, Plaintiff requested an administrative 5 hearing, which was held on February 14, 2019, before Administrative Law Judge (ALJ) David M. 6 Blume. In a March 7, 2019, decision, the ALJ concluded Plaintiff is not disabled based on the 7 following relevant findings: 8 1. The claimant has the following severe impairment(s): cervical lumbar degenerative disc disease, depression, and PTSD; 9 2. The claimant does not have an impairment or combination of 10 impairments that meets or medically equals an impairment listed in the regulations; 11 3. The claimant has the following residual functional capacity: light 12 work; she can perform occasional postural activities; she cannot climb ladders, ropes, scaffolds, or work around hazards; she can 13 perform simple, repetitive tasks in a non-public setting; 14 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, there 15 are jobs that exist in significant numbers in the national economy that the claimant can perform. 16 See id. at 21-28. 17 18 After the Appeals Council declined review on December 10, 2019, this appeal followed. 19 20 III. DISCUSSION 21 In her opening brief, Plaintiff argues: (1) the ALJ failed to properly evaluate the 22 opinion of examining psychologist, Chester Sunde, Psy.D; and (2) the ALJ failed to properly 23 evaluate the opinions of state agency medical consultants, L. Colsky, M.D., and H. Abrahimi, 24 Psy.D. 25 / / / 26 / / / 27 1 Citations are the to the Certified Administrative Record (CAR) lodged on April 28, 28 2020. See ECF No. 11. 1 “The ALJ must consider all medical opinion evidence.” Tommasetti v. Astrue, 2 533 F.3d 1035, 1041 (9th Cir. 2008) (citing 20 C.F.R. § 404.1527(b)). The ALJ errs by not 3 explicitly rejecting a medical opinion. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 4 2014). The ALJ also errs by failing to set forth sufficient reasons for crediting one medical 5 opinion over another. See id. 6 Under the regulations, only “licensed physicians and certain qualified specialists” 7 are considered acceptable medical sources. 20 C.F.R. § 404.1513(a); see also Molina v. Astrue, 8 674 F.3d 1104, 1111 (9th Cir. 2012). Where the acceptable medical source opinion is based on 9 an examination, the “. . . physician’s opinion alone constitutes substantial evidence, because it 10 rests on his own independent examination of the claimant.” Tonapetyan v. Halter, 242 F.3d 1144, 11 1149 (9th Cir. 2001). The opinions of non-examining professionals may also constitute 12 substantial evidence when the opinions are consistent with independent clinical findings or other 13 evidence in the record. See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Social 14 workers are not considered an acceptable medical source. See Turner v. Comm’r of Soc. Sec. 15 Admin., 613 F.3d 1217, 1223-24 (9th Cir. 2010). Nurse practitioners and physician assistants 16 also are not acceptable medical sources. See Dale v. Colvin, 823 F.3d 941, 943 (9th Cir. 2016). 17 Opinions from “other sources” such as nurse practitioners, physician assistants, and social 18 workers may be discounted provided the ALJ provides reasons germane to each source for doing 19 so. See Popa v. Berryhill, 872 F.3d 901, 906 (9th Cir. 2017), but see Revels v. Berryhill, 874 20 F.3d 648, 655 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(f)(1) and describing circumstance 21 when opinions from “other sources” may be considered acceptable medical opinions). 22 The weight given to medical opinions depends in part on whether they are 23 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 24 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 25 professional, who has a greater opportunity to know and observe the patient as an individual, than 26 the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th 27 Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the 28 1 opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th 2 Cir. 1990). 3 At Step 4, the ALJ evaluated the medical opinion evidence to determine Plaintiff’s 4 residual functional capacity. See CAR 25-26. The ALJ gave “some weight” to the opinions of 5 state agency consultants, Drs. Chiang and Eskander, who both opined Plaintiff can perform a 6 range of medium work. Id. at 25. The ALJ gave “great weight” to the opinion of Dr. Sunde, who 7 conducted a mental status examination. Id. at 26. The ALJ also gave “great weight” to the 8 opinions of state agency consultants, Drs. Colsky and Abrahimi, who provided opinions as to 9 Plaintiff’s mental limitations. Id. Plaintiff challenges the ALJ’s analysis as to Drs. Sunde, 10 Colsky, and Abrahimi. Plaintiff raises no argument regarding the ALJ’s partial rejection of the 11 opinions offered by Drs. Chiang and Eskander. 12 As to Drs. Sunde, Colsky, and Abrahimi, the ALJ stated: 13 Consultative psychologist Dr. Sunde opined that the claimant could complete simple tasks with mild limitations and complex tasks with 14 moderate limitations. She could interact with others with moderate limitations. She had moderate deficits in her ability to comply with job 15 rules, changes, and maintaining persistence and pace (Ex. 5F). 16 State agency psychiatric and psychological consultants L. Colsky, M.D., and Heather Abrahimi, Psy.D., agreed with Dr. Sunde and opined the 17 clamant could perform simple work with limited social interaction (Es. 2A, 4A). 18 These opinions are given great weight because they are generally 19 consistent with each other with only minor differences. Dr. Sunde’s opinion was based on direct examination, objective testing, and personal 20 observation. The State agency consultants provided assessments that are consistent with Dr. Sunde’s limitations and the previously discussed 21 treatment and findings in the record. 22 CAR 25. 23 A. Dr. Sunde 24 Dr. Sunde’s report is contained in the record at Exhibit 5F. See CAR 452-55. Dr. 25 Sunde reported the following history of complaints: 26 The claimant states that she had suffered from PTSD for much of her life. She states it started with abuse from her father, who then shot himself in 27 the head with a gun, and she heard the shot. She came out to find out what had happened. She heard and saw him gurgling and dying. She states 28 after that incident, her mother was abusive toward her, her first husband 1 was abusive toward her, and her ex-boyfriend was abusive toward her, so she suffered a lot of physical and emotional abuse over the years. She 2 states she has had problems with anxiety ever since finding her father. She states she did not finish high school after that incident because of 3 being overwhelmed with anxiety. She used to have severe problems with recurrent nightmares, though they have improved over the years, but the 4 anxiety has stayed. She states she has an exaggerated startle response. She is hypervigilant when she is in public. She gets extremely anxious in 5 public and tends to avoid going places as much as possible. She states that she is depressed most of the time, in general, with a history of severe 6 depressive episodes, but mostly it is in the mild to moderate depression that is there all the time. She gets emotional when she thinks about the 7 past, but she states she currently has a husband that does not abuse her, and that has helped. 8 CAR 452. 9 10 Dr. Sunde reported that, at the time of his evaluation in May 2017, Plaintiff was 11 taking two medications for her mental impairment, Cymbalta and a second drug Plaintiff could 12 not name. See id. at 452. Dr. Sunde noted that Plaintiff’s “concentration was impaired 13 throughout the interview” and that persistence was “fair” and pace “slow.” Id. at 454. Dr. Sunde 14 rendered the following opinions: 15 1. Plaintiff’s ability to remember, understand, and complete simple commands is mildly impaired. 16 2. Plaintiff’s ability to remember, understand, and complete complex 17 commands is moderately impaired. 18 3. Plaintiff’s ability to interact appropriately with supervisors, co-workers, and the public is moderately impaired. 19 4. Plaintiff’s ability to comply with job rules is moderately impaired. 20 5. Plaintiff’s ability to respond to changes in a normal workplace setting 21 is moderately impaired. 22 6. Plaintiff’s ability to maintain persistence and pace in a normal workplace setting is moderately impaired. 23 Id. at 455. 24 25 According to Plaintiff, while the ALJ accepted Dr. Sunde’s opinion that Plaintiff is 26 moderately limited in her ability to interact with the public, the ALJ erred in failing to provide 27 any rationale for rejecting the doctor’s opinion that Plaintiff is moderately limited in her ability to 28 interact with supervisors and co-workers. See ECF No. 13, pgs. 6-7. In opposition, Defendant 1 argues: 2 . . .[T]he ALJ’s RFC accounted for Plaintiff’s moderate limitations in social functioning, and Plaintiff cannot establish error. Gann v. 3 Berryhill, No. 1:17-CV-00325-SKO, 2018 WL 2441581, at *10 (E.D. Cal. May 31, 2018) (“A limitation to simple tasks performed in unskilled work 4 adequately encompasses moderate limitations with social functioning including getting along with peers and responding appropriately to 5 supervisors); Guerrero v. Colvin, No. 1:15-CV-0962-BAM, 2016 WL 5661722, at *6 (E.D. Cal. Sept. 29, 2016) (limitation to “‘simple repetitive 6 tasks’ . . . adequately capture[d] Drs. Cushman and Dahl’s opinions that Plaintiff has moderate impairments in social functioning”) see also 7 Ramirez v. Comm’r of Soc. Sec., No. 1:18-CV-01322-SAB, 2019 WL 4201437, at *18 (E.D. Cal. Sept. 5, 2019) (“any error would be harmless 8 because a limitation to simple and routine tasks adequately encompasses a moderate limitation on social functioning”). 9 ECF No. 14, pgs. 7-8. 10 11 The Court agrees with Defendant. Dr. Sunde’s moderate limitations in social 12 interactions are adequately encompassed by the ALJ’s finding that Plaintiff is limited to simple, 13 repetitive tasks. See Thomas v Barnhart, 278 F.3d 947, 955 (9th Cir. 2002); Stubbs-Danielson v. 14 Astrue, 539 F.3d 1169 (9th Cir. 2008); see also Rogers v. Comm’r of Soc. Sec., 490 F. App’x 15, 15 17-18 (9th Cir. 2012); Gann v. Berryhill, 2018 WL 2441581, at *10 (E. Dist. Cal. 2018); Menges 16 v. Berryhill, 2018 WL 1567786, at *8 (E. Dist. Cal. 2018); Messerli v. Berryhill, 2017 WL 17 3782986, at *11 (E. Dist. Cal. 2017); Henry v. Colvin, 2016 WL 164956, at *18 (E. Dist. Cal. 18 2016); Langford v. Astrue, 2008 WL 2073951, at *7 (E. Dist. Cal. 2008). 19 B. Drs. Colsky and Abrahimi 20 The opinions of Drs. Colsky and Abrahimi, who reviewed records, are contained 21 in Exhibits 2A and 4A, respectively. See CAR 65-80, 82-100. Dr. Colsky opined, among other 22 things, that Plaintiff is “[c]apable of 1-2 step tasks with minimal social interaction” based on at 23 most moderate limitations. Id. at 78. Dr. Abrahimi opined, among other things, that Plaintiff “is 24 able to. . . interact with co-workers in a non-collaborative and superficial basis” based on at most 25 moderate limitations. Id. at 97. Plaintiff argues the ALJ erred in rejecting these doctors’ opinions 26 that Plaintiff is limited to one- to two-step tasks and that she can only interact with co-workers in 27 a non-collaborative setting. See ECF No. 13, pgs. 8-9. 28 / / / 1 As to Dr. Colsky, Defendant argues: 2 Dr. Colksy opined that Plaintiff was capable of performing of 1-2 step tasks with minimal social interaction (AR 78). Dr. Colsky also opined 3 that Plaintiff was capable of performing “LPSRT” (AR 74); and had moderate limitations in carrying out detailed instructions; maintaining 4 concentration of extended period; work in coordination with others; complete a normal work week; and interact with peers and the public (AR 5 77-78). So although Dr. Colsky stated that Plaintiff could perform the more restrictive 1-2 step tasks, Dr. Colsky also opined that Plaintiff could 6 perform the less restrictive simple, repetitive tasks. Since the RFC is the maximum capacity, simple repetitive tasks was the most Plaintiff could do 7 based on Dr. Colsky’s opinion. Accordingly, substantial evidence supported the ALJ’s reliance on the maximum capacity contained in Dr. 8 Colsky’s opinion. 9 ECF No. 14, pg. 9. 10 Here, Dr. Colsky opined that Plaintiff is not significantly limited in her ability to 11 carry out very short and simple instructions. See CAR 77. The doctor also opined that Plaintiff is 12 moderately limited in her ability to carry out detailed instructions. See id. As to Plaintiff’s 13 mental residual functional capacity, Dr. Colsky rendered two opinions. She opined both that 14 Plaintiff can engage in “SRT” – simple repetitive tasks – and that Plaintiff could only engage in 15 “1-2 step tasks.” See id. at 74, 78. As Defendant correctly notes, residual functional capacity 16 describes the most the claimant can do despite his or her limitations. See 20 C.F.R. 17 §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 18 1985) (residual functional capacity reflects current “physical and mental capabilities”). It is clear 19 that Dr. Colsky opined that the most Plaintiff can do is simple repetitive work, which is precisely 20 the residual functional capacity described by the ALJ. Because the ALJ accounted for Dr. 21 Colsky’s opinion as to the most Plaintiff can do, the Court finds no error in the ALJ’s analysis. 22 As to Dr. Abrahimi, Defendant asserts: 23 . . .Dr. Abrahimi noted that “[o]verall MER supports SRT with LPC which is consistent with Dr. Sunde’s [opinion]” (AR 93). Dr. 24 Abrihimi further opined that Plaintiff had no significant limitations in her ability to carry out short and simple instructions, but had moderate 25 limitations in carrying out detailed instructions; maintaining concentration of extended period; work in coordination with others; complete a normal 26 work week; and interact with peers and the public (AR 96-97). Dr. Abrihimi opined that Plaintiff was capable of “understanding, 27 remembering, and sustaining concentration, pace and persistence for simple routines thought a normal workday/workweek” (AR 97). SRT is a 28 common abbreviation for simple, repetitive tasks. See, e.g., Samantha 1 Heather B. v. Saul, No. 2:19-CV-04917-KES, 2020 WL 1289169, at *7 (C.D. Cal. Mar. 18, 2020). As discussed above, an RFC for simple, 2 repetitive tasks is consistent with moderate limitations, and there is no conflict between the moderate limitations in the opinions of Dr. Abrimi 3 and Dr. Sunde and the RFC finding for simple, repetitive tasks. . See e.g. Stubbs-Danielson, 539 F.3d at 1174-1176. 4 ECF No. 14, pgs. 8-9. 5 6 Again, the Court agrees with Defendant. Here, Plaintiff contends the ALJ erred in 7 || accounting for Dr. Abrahimi’s opinion that Plaintiff is moderately limited in social interactions. g | That argument, however, is foreclosed because the ALJ’s finding that Plaintiff is limited to 9 | simple, repetitive tasks adequately accounts for such limitations. See Thomas, 278 F.3d at 955; 10 | Stubbs-Danielson, 539 F.3d 1169; see also Rogers, 490 F. App’x at 17-18; Gann, 2018 WL 11 | 2441581, at *10; Menges, 2018 WL 1567786, at *8; Messerli, 2017 WL 3782986, at *11; Henry, 12 | 2016 WL 164956, at *18; Langford, 2008 WL 2073951, at *7. 13 14 IV. CONCLUSION 15 Based on the foregoing, the court concludes that the Commissioner’s final decision 16 | is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 17 | ORDERED that: 18 1. Plaintiff's motion for summary judgment, ECF No. 13, is denied; 19 2. Defendant’s motion for summary judgment, ECF No. 24, is granted; 20 3. The Commissioner’s final decision is affirmed; and 71 4. The Clerk of the Court is directed to enter judgment and close this file. 22 24 DENNIS M. COTA 5 UNITED STATES MAGISTRATE JUDGE 26 27 28 10