Alva v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 NANCY DIANE ALVA, Case No. 18-cv-04502-KAW 8 Plaintiff, ORDER DENYING PLAINTIFF'S 9 v. MOTION FOR SUMMARY JUDGMENT; GRANTING 10 NANCY A BERRYHILL, DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 20, 22 12 13 Plaintiff Nancy Diane Alva seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the 14 Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court DENIES Plaintiff’s motion for summary judgment, and 19 GRANTS Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff filed for Title II benefits on June 23, 2014. (Administrative Record (“AR”) 219.) 22 Plaintiff asserted disability beginning November 1, 2011, based on Temporomandibular Joint 23 Syndrome, neck and back pain, and perforated disks in the upper spine. (AR 219, 233.) The 24 Social Security Administration (“SSA”) denied Plaintiff’s application initially and on 25 reconsideration. (AR 129, 135.) Plaintiff then requested a hearing before an Administrative Law 26 Judge (“ALJ”); the hearing was held on June 24, 2016. (AR 145-46, AR 34.) 27 Following the hearing, the ALJ denied Plaintiff’s application on June 13, 2017. (AR 15- 1 2017. (AR 218.) The Appeals Council denied Plaintiff’s request for review on May 23, 2018. 2 (AR 1.) On July 25, 2018, Plaintiff commenced this action for judicial review pursuant to 42 3 U.S.C. § 405(g). (Compl., Dkt. No. 1.) 4 Plaintiff filed her motion for summary judgment on February 13, 2019. (Pl.’s Mot., Dkt. 5 No. 20.) Defendant filed an opposition and cross-motion for summary judgment on March 12, 6 2019. (Def.’s Opp’n, Dkt. No. 22.) Plaintiff filed her reply on March 26, 2020. (Pl.’s Reply, Dkt. 7 No. 24.) 8 II. LEGAL STANDARD 9 A court may reverse the Commissioner’s denial of disability benefits only when the 10 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 11 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 12 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 13 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 14 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 15 determining whether the Commissioner's findings are supported by substantial evidence, the 16 Court must consider the evidence as a whole, weighing both the evidence that supports and the 17 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 18 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm’r 19 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 20 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 21 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 22 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 23 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 24 step two, the Commissioner determines whether the claimant has a “medically severe impairment 25 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 26 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 27 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 1 met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 2 If a claimant does not have a condition which meets or equals a listed impairment, the 3 fourth step in the sequential evaluation process is to determine the claimant's residual functional 4 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 5 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 6 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 7 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 8 If the claimant meets the burden of establishing an inability to perform prior work, the 9 Commissioner must show, at step five, that the claimant can perform other substantial gainful 10 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 11 burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 12 Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954. 13 III. DISCUSSION 14 Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ did not articulate 15 reasons for rejecting the opinion of Plaintiff’s treating physician as to mental limitations 16 specifically, (2) the ALJ improperly rejected the opinion of the examining doctor, and (3) the ALJ 17 did not propound a complete hypothetical question to the vocational expert. 18 A. Dr. Gruber 19 The court “distinguish[es] among the opinions of three types of physicians: (1) those who 20 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 21 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 22 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight 23 should be given to the opinion of a treating source than to the opinion of doctors who do not treat 24 the claimant.” Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). “At least where 25 the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for 26 ‘clear and convincing reasons.’” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 27 1991)). If a treating physician’s medical opinion is contradicted by another doctor, the ALJ must 1 non-treating doctor’s opinion. Id. 2 Allen G. Gruber, M.D., is Plaintiff’s treating physician, and began treating Plaintiff in 3 September 2013. (AR 645.) On March 7, 2016, Dr. Gruber filled out a Cervical Spine Residual 4 Functional Capacity Questionnaire, in which Dr. Gruber diagnosed myofascial pain, degenerative 5 disc disease of the cervical and lumbar spine, chronic neck and back pain, TMJ, osteoarthritis, and 6 occipital neuralgia. (AR 835.) Dr. Gruber opined that psychological conditions of depression, 7 anxiety, and possible personality disorder contributed to the severity of Plaintiff’s symptoms and 8 functional limits. (AR 837.) Dr. Gruber further opined that Plaintiff’s pain and other symptoms 9 were severe enough to interfere with the attention and concentration needed to perform even 10 simple work tasks on a constant basis. (AR 837.) He also found that Plaintiff was incapable of 11 even low stress jobs because Plaintiff had very poor stress tolerance, and stress would trigger 12 anxiety and pain. (AR 837.) 13 On June 8, 2016, Dr. Gruber filled out a Chronic Pain Residual Functional Capacity 14 Questionnaire, in which Dr. Gruber diagnosed a degenerative cervical spine, cervical and neck 15 pain, headaches, occipital neuralgia, and back pain. (AR 991.) Dr. Gruber also identified 16 associated psychological problems and limitations of impaired attention and concentration, 17 impaired short term memory, reduced ability to attend to tasks reduced ability to persist in tasks, 18 depression, and anxiety. (AR 992.) Dr. Gruber opined that Plaintiff’s experience of pain or other 19 symptoms would interfere with the attention and concentration needed to perform even simple 20 work tasks on a frequent basis. (AR 994.) In contrast to the March 7 Questionnaire, Dr. Gruber 21 found that Plaintiff was capable of low stress jobs. (AR 994.) 22 The ALJ first reviewed Dr. Gruber’s March 2016 opinion, listing Dr. Gruber’s diagnoses 23 and assessed limitations, including those on the ability to concentrate. (AR 24.) The ALJ then 24 gave “partial weight to this opinion, because this opinion is contradicted by the opinions of the 25 medical expert and consultative examiner and the longitudinal examinations.” (AR 24.) The ALJ 26 next reviewed Dr. Gruber’s June 2016 opinion, again identifying both physical and mental 27 limitations, including the associated psychological problems of impaired attention and 1 persist in tasks, depression, and anxiety. (AR 24.) The ALJ again “afforded partial weight to this 2 opinion, for the same reasons as to the prior opinions. In addition, these two opinions were 3 written close in time but are not consistent.” (AR 25.) 4 Plaintiff argues that the ALJ erred because the ALJ did not address the mental limitations 5 separately. (Pl.’s Mot. at 8.) Instead, “the ALJ’s evaluation of Dr. Gruber’s opinions belong in a 6 section where the ALJ was, almost entirely, assessing [Plaintiff]’s physical limitations. The ALJ’s 7 summary of the objective and clinical evidence in this section relates to physical impairments.” 8 (Id.) Plaintiff contends that “[t]he ALJ’s analysis of [Plaintiff’s] mental impairments belong in 9 another section of the decision, which relates to identifying what impairments are severe and non- 10 severe.” (Id.) Thus, Plaintiff argues that “[t]he ALJ failed to articulate specific and legitimate 11 reasons for rejecting Dr. Gruber’s opinions regarding [Plaintiff]’s mental limitations.” 12 The Court finds no error. While the ALJ’s discussion of Dr. Gruber’s opinion was in a 13 section focused on physical limitations, the discussion itself was not limited to the physical 14 impairments only. Instead, the ALJ described all of Plaintiff’s limitations, including those related 15 to attention and concentration, ability to persist, memory, and ability to perform low stress jobs. 16 (See AR 24-25.) There is no suggestion that the ALJ gave Dr. Gruber’s partial weight as to the 17 physical limitations only, and the ALJ’s rationale applies to the mental limitations as well. For 18 example, with respect to mental limitations, the agency doctors found that Plaintiff’s alleged 19 affective and anxiety disorders were non-severe, with only mild restrictions on maintaining 20 concentration, persistence, or pace. (AR 102, 121.) The longitudinal examinations also did not 21 indicate any abnormalities; in the ALJ’s previous description of Plaintiff’s mental health record, 22 the ALJ noted that there was no record of ongoing counseling or treatment, and Plaintiff’s 23 November 2014 mental status exam was “relatively normal.” (AR 18-19.) Further, there were 24 inconsistencies between Dr. Gruber’s March and June 2016 opinions specific to Plaintiff’s alleged 25 mental impairments, including a diagnosis of possible personality disorder in March 2016 but not 26 in June 2016, as well as a finding that Plaintiff could not perform low-stress jobs in March 2016 27 but could perform low-stress jobs in June 2016. (AR 837, 992, 994.) 1 Gruber’s opinion. Instead, Plaintiff challenges the ALJ’s alleged failure to provide reasons 2 specific to the mental impairments. The Court, however, finds that the ALJ has provided specific 3 legitimate reasons supported by substantial evidence. Compare with Sandoval v. Astrue, Case No. 4 EDCV 08-1588-OP, 2009 U.S Dist. LEXIS 102000, at *11-14 (C.D. Cal. Oct. 30, 2009) (finding 5 no error where the ALJ rejected a doctor’s opinion as to both physical and mental limitations 6 where the ALJ only explicitly provided specific and legitimate reasons for rejecting the physical 7 limitations). 8 B. Dr. Yee 9 Bonnie Yee, Psy.D., is an examining doctor. (AR 19.) Dr. Yee conducted a psychological 10 consultative exam on November 7, 2014. (AR 806.) During the exam, Plaintiff’s chief 11 complaints were depression and anxiety. (AR 806.) Plaintiff reported being able to complete 12 most activities of daily living, including washing dishes, grocery shopping, and doing laundry. 13 (AR 807.) Plaintiff was emotional and appeared to cry, but had no tears and would be in a 14 different mood within seconds. (AR 807-08.) Dr. Yee commented that Plaintiff’s “behavior 15 appeared to attempt to portray herself as emotionally impaired, but it lacked credibility.” (AR 16 808.) Dr. Yee further found that Plaintiff “presents with some vague depressive and anxious 17 symptoms,” but that “the symptoms . . . did not appear to be consistent with a diagnosis for 18 depression or anxiety. However, it does appear that the claimant is somewhat anxious and 19 somewhat depressed.” (AR 809.) Dr. Yee opined that Plaintiff would have no difficulty 20 performing simple and repetitive tasks, minor difficulty performing complex and detailed tasks, 21 and no difficulty working with the public or supervisors and co-workers. (AR 809.) Dr. Yee also 22 opined that Plaintiff would have difficulty maintaining attention and concentration, and moderate 23 difficulty handling the stress of employment at the current time. (AR 809.) The ALJ ultimately 24 gave Dr. Yee’s opinion “little weight . . . because the longitudinal evidence does not support 25 severe mental impairments.” (AR 20.) 26 Plaintiff argues that the ALJ failed to articulate specific and legitimate reasons based on 27 substantial evidence in the record. Again, the Court disagrees. The ALJ previously did discuss 1 findings. Contrast with Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988) (“The ALJ must 2 do more than offer his conclusions. He must set forth his own interpretations and explain why 3 they, rather than the doctors’, are correct.”). Specifically, the ALJ found that Plaintiff had only 4 mild limitations in concentrating, persisting, and pace, noting that Plaintiff had reported that she 5 could handle stress and changes in routine. (AR 19.) The ALJ also pointed to Dr. Yee’s 6 examination, where Plaintiff was “able to perform simple mathematical problems and do serial 7 3s.” (AR 19.) While Plaintiff was not able to “correctly subtract 7 serially from 100,” the ALJ 8 noted that Plaintiff “did not attempt the task.” (AR 19.) The ALJ could conclude from such 9 findings that Plaintiff had only mild limitations, and Plaintiff does not argue otherwise. (See Pl.’s 10 Mot. at 12.) 11 The ALJ also cited to Dr. Yee’s consultative examination in finding that Plaintiff had only 12 mild limitations in other functional areas. For example, with respect to understanding, 13 remembering, or applying information, the ALJ explained that during the psychological 14 consultative examination, Plaintiff’s immediate and remote memory were within normal limits 15 and her fund of knowledge was intact. (AR 18-19.) Plaintiff was also able to provide most of her 16 background without any observed limitation and demonstrated adequate insight and judgment. 17 (AR 19.) Likewise, the ALJ pointed to Dr. Yee’s findings in concluding that Plaintiff had mild 18 limitations in the ability to adapt or manage herself. (AR 19.) Taken together, the ALJ did not 19 simply conclude that Dr. Yee’s medical opinions were not supported by the longitudinal evidence, 20 but discussed that evidence and explained why it showed only mild limitations. 21 Accordingly, the Court finds that the ALJ provided specific and legitimate reasons 22 supported by substantial evidence for giving little weight to Dr. Yee’s opinion. 23 C. Hypothetical to the Vocational Expert 24 Finally, Plaintiff argues that the ALJ failed to propound a complete hypothetical to the 25 vocational expert because the ALJ did not include any limitations in Plaintiff’s ability to 26 understand, remember, or apply information; interact with others; concentrate, persist, or maintain 27 pace; or adapt or manage herself. (Pl.’s Mot. at 12-13.) Plaintiff contends this is error because the 1 determinable mental impairments were non-severe. (Id.; see AR 18-19.) 2 In support, Plaintiff relies on Hutton v. Astrue, 491 Fed. Appx. 850 (9th Cir. 2012). (Pl.’s 3 Mot. at 13-14.) There, the ALJ found that the plaintiff’s post-traumatic stress disorder (“PTSD”) 4 was non-severe, and caused no limitations with respect to daily activities or social functioning and 5 only mild limitations in the area of concentration, persistence, or pace. Hutton, 491 Fed. Appx. At 6 850. The Ninth Circuit, however, found that the ALJ erred in determining the plaintiff’s RFC 7 because the ALJ did not consider the plaintiff’s PTSD at all, despite having found that it caused 8 mild limitations in the plaintiff’s ability to concentrate, persist, or pace. Id. at 850-51. In doing 9 so, the Ninth Circuit explained that the ALJ essentially “disregarded his own finding that [the 10 plaintiff]’s nonsevere PTSD caused some ‘mild’ limitations in the areas of concentration, 11 persistence, or pace.” Id. at 851. 12 District courts in this circuit, however, “have generally declined to find reversible error 13 when an ALJ found the claimant’s mental impairments to be non-severe at step two and 14 considered related, additional evidence of the claimant’s mental impairments at step four.” 15 Denney v. Saul, No. 1:18-cv-689-GSA, 2019 U.S. Dist. LEXIS 147760, at *22 (E.D. Cal. Aug. 28, 16 2019) (listing cases); see also George A. v. Berryhill, Case No. 5:18-cv-405-AFM, 2019 U.S. Dist. 17 LEXIS 71138, at *10 (C.D. Cal. Apr. 24, 2019) (“Other courts have found Hutton to be 18 inapplicable where the record demonstrates that the ALJ considered a claimant’s non-severe 19 mental impairments before concluding that they did not cause any significant limitation 20 necessitating inclusion in the RFC.”). Such is the case here. The ALJ did not ignore Plaintiff’s 21 mental limitations at step four, but discussed it further, including explaining that Plaintiff 22 “engaged in a somewhat normal level and range of daily activity and interactions[, and that s]ome 23 of the physical and mental abilities and social interactions required to perform these activities are 24 the same as those necessary for obtaining and maintaining employment.” (AR 23.) The ALJ also 25 noted that the activities of daily living reported to Dr. Yee exceeded that stated by Plaintiff and her 26 husband. (AR 23.) The ALJ then reviewed the Third Party Function Report completed by 27 Plaintiff’s husband, which stated that Plaintiff did not finish tasks, before rejecting it as 1 the alleged mental limitations. (AR 24-25.) Thus, this was not a case where the ALJ simply 2 || ignored prior findings of mild limitations made at step two; the ALJ instead discussed those 3 limitations at step four in determining the appropriate RFC. The ALJ did not err. See Sisco v. 4 || Colvin, Case No. 13-cv-1817-LHK, 2014 U.S. Dist. LEXIS 84614, at *23 (N.D. Cal. June 20, 5 || 2014) (finding Hutton inapposite because “the ALJ specifically addressed [the plaintiff]’s mental 6 || condition at step four of his disability, by evaluating all of the evidence regarding [the plaintiff]’s 7 mental condition... .”). 8 IV. CONCLUSION 9 For the reasons set forth above, the Court DENIES Plaintiff's motion for summary 10 || judgment and GRANTS Defendant’s cross-motion for summary judgment. 11 IT IS SO ORDERED. 12 Dated: March 23, 2020 . 14 United States Magistrate Judge 16 18 19 20 21 22 23 24 25 26 27 28