# (SS) Denney v. Commissioner of Social Security

> District Court, E.D. California · August 29, 2019

URL: https://www.frixlaw.com/law-library/cases/10013545

## Case

- **Court:** District Court, E.D. California
- **Decided:** August 29, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10013545

## How later opinions describe it (automated extraction)

- holding that when there is evidence of an 15 underlying medical impairment, the ALJ may not discredit the claimant’s testimony regarding the 16 severity of his symptoms solely because they are unsupported by medical evidence

## Opinion text

1
2
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6
7 UNITED STATES DISTRICT COURT
8 EASTERN DISTRICT OF CALIFORNIA
9
10 MARY ANNETTE DENNEY, No. 1:18-cv-00689-GSA
11 Plaintiff,
12 v. ORDER DIRECTING ENTRY OF
JUDGMENT IN FAVOR OF
13 ANDREW SAUL,1 Commissioner of COMMISSIONER OF SOCIAL SECURITY
Social Security, AND AGAINST PLAINTIFF
14

15 Defendant.

16

17
I. Introduction
18
Plaintiff Mary Annette Denney (“Plaintiff”) seeks judicial review of a final decision of the
19
Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for
20
supplemental security income pursuant to Title XVI of the Social Security Act. The matter is
21
currently before the Court on the parties’ briefs which were submitted without oral argument to
22
the Honorable Gary S. Austin, United States Magistrate Judge.2 See Docs. 16 and 17. Having
23
reviewed the record as a whole, the Court finds that the ALJ’s decision is supported by substantial
24
evidence and applicable law. Accordingly, Plaintiff’s appeal is denied.
25
///
26
1 Commissioner of Social Security Andrew Saul is substituted as Defendant pursuant to Fed. R. Civ. P. 25(d). See
27
also Section 205(g) of the Social Security Act, 42 USC 405(g) (action survives regardless of any change in the
person occupying the office of Commissioner of Social Security).
28 2 The parties consented to the jurisdiction of the United States Magistrate Judge. See Docs. 7 and 8.
1 II. Procedural Background
2 On May 12, 2014, Plaintiff filed an application for disability insurance benefits alleging
3 disability beginning February 1, 2013. AR 15. The Commissioner denied the application initially
4 on August 4, 2014, and upon reconsideration on October 20, 2014. AR 15. On October 23, 2014,
5 Plaintiff filed a timely request for a hearing before an Administrative Law Judge. AR 15.
6 Administrative Law Judge Timothy S. Snelling presided over an administrative hearing on
7 July 15, 2016. AR 27-77. Plaintiff appeared and was represented by an attorney. AR 27.
8 Impartial vocational expert Jose Chaparro (the “VE”) also testified. AR 27.
9 On November 1, 2016, the ALJ denied Plaintiff’s application. AR 15-22. The Appeals
10 Council denied review on March 22, 2018. AR 1-4. On May 20, 2018, Plaintiff filed a
11 complaint in this Court. Doc. 1.
12 III. Factual Background
13 A. Plaintiff’s Testimony
14 Plaintiff (born September 9, 1960) completed high school and a year and a half of
15 business college. AR 32-33. Later, she trained as a commercial driver and drove a truck cross-
16 country for one year. AR 33. Plaintiff had relinquished her class A driver’s license since she was
17 no longer physically able to drive a truck. AR 33-34.
18 Plaintiff had multiple orthopedic problems including a congenital spine defect, arthritis of
19 the cervical spine and shoulders, degenerative disc disease, scoliosis, degenerative joint disease of
20 her hips, anxiety and depression. AR 59-60. She was overweight (5’7” tall, 224 pounds). AR
21 59.
22 Plaintiff most recently worked as a shift lead at Love’s truck stop. AR 37-38. Her job
23 was to ensure that the drivers received all the customer care that they required. AR 38. Job
24 responsibilities included laundering and providing towels and washcloths for showers, cleaning
25 showers, maintaining the coffee bar, staffing the cashier position, stocking the convenience store,
26 working in the cooler and supervising the other employees.3 AR 38-43. Plaintiff loved her job
27
3 Vocational expert Jose Chaparro characterized the position as management trainee (assistant manager) (DOT No.
28 189.167-018, light work, SVP 6). AR 46.
1 but was fired after she took ten working days off for dental treatment. AR 40, 47-48. Although
2 Plaintiff was disappointed to lose her job she testified that she would not likely have held the job
3 for more than one additional year because the work was physically difficult and caused knee, hip
4 and back pain. AR 52. In particular, her hip and shoulder pain limited her ability to stand at the
5 cash register. AR 53.
6 Plaintiff received chiropractic treatment for her back and hips and saw a medical doctor
7 for treatment of her neck. AR 57. Her knee problems resolved after she realized that her
8 antidepressants caused her legs to swell and made her knees painful. AR 57.
9 Plaintiff could stand about 30 minutes before needing to sit, could walk about 300 feet
10 before needing a break, and could sit for about an hour. AR 64-65. Because Plaintiff’s cervical
11 spine was unstable, walking caused severe facial pain. AR 65. Plaintiff could not look down
12 because she cannot bend her neck forward. AR 66. She could lift a gallon of milk. AR 65-66.
13 Reaching and bending were also difficult. AR 66-67.
14 B. Medical Treatment
15 The record includes notes of chiropractic treatment on four or five occasions in a period
16 beginning December 28, 2012 and ending on June 26, 2013. AR 299-300. The minimal
17 treatment notes are largely illegible.
18 On February 16, 2014, Plaintiff sought treatment in the emergency department of Tulare
19 Regional Medical Center for headache and neck pain that had lasted for three days. AR 522.
20 Medical staff diagnosed a migraine headache and administered Dilaudid and Phenergan. AR 523.
21 The administrative record includes extensive records of Plaintiff’s physical and mental
22 health treatment at the Tulare Community Health Clinic (TCHC). AR 303-04, 318-33, 374-427.
23 Ravi Kumar, M.D., first saw Plaintiff as a new patient on March 12, 2014. AR 308-10. Plaintiff
24 told Dr. Kumar that she had scoliosis for which she had receiver chiropractic neck adjustments
25 three times weekly for thirty years, but was out of work and could no longer pay for chiropractic
26 treatment. AR 308. Plaintiff was in pain and using marijuana to fall asleep at night. AR 308.
27 Dr. Kumar diagnosed pain in Plaintiff’s shoulder joint, cervicalgia, scoliosis and kyphoscoliosis,
28 and referred Plaintiff for a CT scan of her cervical spine. AR 308. The CT scan revealed
1 minimal left-sided neural foraminal narrowing at multiple levels secondary to hypertrophic
2 change, straightened lordosis and degenerative disk space narrowing and spurring at C6-C7. AR
3 311. On March 21, 2014, Dr. Kumar reviewed the scan results with Plaintiff and prescribed
4 cyclobenzaprine and hydrocodone with acetaminophen. AR 305-07.
5 On May 29, 2014, Plaintiff began physical therapy at Tulare Regional Medical Center
6 Rehabilitation Services. AR 507-19. Plaintiff stopped coming to therapy after June 19, 2014.
7 AR 510.
8 Dr. Kumar first noted chronic joint pain in the pelvic region on June 30, 2014. AR 325.
9 X-rays of Plaintiff’s hips revealed (1) mild degenerative changes with no acute fracture,
10 dislocation or unusual effusion and (2) radiodensities of the pelvis consistent with phleboliths.
11 AR 333. On September 3, 2014, Nkiruka Akabike, M.D., noted moderate chronic pain in
12 multiple joints relieved by medication. AR 318.
13 On September 17, 2014, Plaintiff reported depression and bilateral knee pain and
14 instability. AR 427. X-rays of Plaintiff’s left knee revealed minimal joint fluid and posterior
15 superior patellar spurring but no fracture, dislocation or destructive lesion. AR 421. At the
16 follow-up appointment on October 21, 2014, Dr. Akabike noted that Plaintiff’s intermittent knee
17 pain continued and observed that the left knee was mildly swollen and tender. AR 416, 418.
18 Plaintiff limped. AR 418. Plaintiff’s chronic problems included continuous amphetamine or
19 psychostimulant dependence; malaise and fatigue; visual discomfort; cannabis dependence;
20 shoulder joint and neck pain; and, idiopathic scoliosis and/or kyphoscoliosis. AR 416.
21 On September 27, 2014, Plaintiff sought treatment for severe knee pain in the emergency
22 department of Tulare Regional Medical Center. AR 493-504. Dr. Elton R. Tripp administered a
23 Toradol injection and prescribed ibuprofen. AR 496, 500. Plaintiff was discharged with a
24 diagnosis of knee pain of uncertain origin and directions to see her primary physician in the next
25 day or two. AR 499. The record includes no evidence of follow-up treatment.
26 On October 22, 2014, Rosandra Novelo Soleno, L.C.S.W., conducted an intake interview
27 for substance abuse treatment. AR 413-15. Plaintiff had been placed on “no narcotics” status
28 after a urine test. AR 414. Ms. Soleno diagnosed:
1 Axis I and II 296.33 Major depressive affective disorder, recurrent
episode, severe degree, without mention of psychotic
2
behavior
3
305.20 Nondependent cannabis abuse, unspecified use
4
305.00 Nondependent alcohol abuse, unspecified drinking
5 Behavior

6
305.70 Nondependent amphetamine or related acting
7 sympathomimetic abuse, unspecified use

8 Axis III Scoliosis and kyphoscoliosis, idiopathic, chronic
Pain
9
Axis IV Severe. Problems with primary support group,
10
occupation and housing
11
Axis V Current GAF = 50
12 Highest GAF = 50

13 AR 413-14.4

14
Ms. Soleno noted that Dr. Akabike had prescribed Celexa (an antidepressant), which
15
Plaintiff took for three days and stopped. AR 414. She referred Plaintiff back to Dr. Akabike for
16
a prescription of a different antidepressant, and recommended abstinence from all substances,
17
promotion of healthy coping skills, and motivational interviews. AR 415. Plaintiff expressed
18
19 willingness to stop abusing substances. AR 415.
20 The record includes notes from Ms. Soleno’s counseling sessions with Plaintiff from
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November 6, 2014, through March 17, 2015. AR 374-75, 382-89, 396-401, 407-12. On
22
November 24, 2014, Plaintiff reported that Celexa had partially relieved her feelings of
23
depression but that she still felt irritable and worthless. AR 407.
24
///
25
26
4 The Global Assessment of Functioning (GAF) scale is a rating from 0 to 100 and considers psychological, social,
27
and occupational functioning on a hypothetical continuum of mental health-illness. Diagnostic and Statistical
Manual of Mental Disorders, 32-35 (4th ed. American Psychiatric Association 1994). A GAF of 41-50 corresponds
28 to serious symptoms or a serious impairment in social, occupational, or school functioning. Id.
1 On January 5, 2015, Plaintiff began treatment of her knee pain with orthopedist Kenny
2
Mai, M.D., at Adventist Health. AR 438-42. The intake interview notes that there was no
3
alcohol or illicit drug abuse and no smoking in Plaintiff’s household. AR 438-39, 442.
4
On January 9, 2015, Plaintiff received treatment in the emergency department of Tulare
5
Regional Medical Center for weakness, numbness and extreme pain from the waist down. AR
6
7 476-92. Robert Kollen, M.D., prescribed Naproxen and Norco. AR 482. Plaintiff’s discharge
8 directed her to see her own physician the next day. AR 481.
9 On January 16, 2015, Plaintiff told Ms. Soleno that she had stopped taking Celexa, which
10
she blamed for her mood and behavior, including driving recklessly at high speed. AR 388.
11
Plaintiff refused any “psych meds” or a referral to psychiatry, insisting that she did not want to
12
“pop pills.” AR 388. She was using marijuana and drinking alcohol daily. AR 388.
13
X-rays of Plaintiff’ knee taken January 28, 2015, revealed joint effusion and early
14
15 degenerative changes with early osteophyte formation and the appearance of joint space
16 narrowing medially. AR 381. The patella showed early degenerative changes and appeared to be
17 slightly superiorly located which suggested a component of patella alta. AR 381. There was no
18
loose calcification in the joint space nor evidence of fracture, dislocation or area of bony erosion.
19
AR 381. On February 2, 2015, Dr. Mai diagnosed arthritis and opined that surgery was
20
inadvisable. AR 431-32. Dr. Mai injected Plaintiff’s knees with steroids. AR 431-32.
21
On February 11, 2015, Ms. Soleno reported that Plaintiff was making good progress and
22
23 had a GAF of 60.5 AR 382-84. On February 19, 2015, Dr. Akabike described Plaintiff’s neck
24 pain to be intermittent and of mild severity. AR 376. Plaintiff was still not taking her prescribed
25
///
26
27
5 A GAF of 51-60 corresponds to moderate symptoms or moderate difficulties in social, occupational, or school
28 functioning. Diagnostic and Statistical Manual of Mental Disorders at 32-35.
1 antidepressant. AR 379. On March 17, 2015, Plaintiff advised Ms. Soleno that she was
2
transferring mental health treatment to another program. AR 374.
3
From February 20, 2015 through January 11, 2016, Plaintiff received treatment for neck
4
pain from Erik Persell, PA-C, at Family Healthcare Network Woodlake. AR 531-80. Following
5
an intake examination on February 20, 2016, Mr. Persell diagnosed cervicalgia and refilled
6
7 Plaintiff’s prescription for cyclobenzaprine. AR 532. John Reifenberg, D.C., examined Plaintiff
8 on February 25, 2015. AR 533-35. He diagnosed unspecified headache, cervicalgia and
9 backache. AR 534.
10
On April 21, 2015, Plaintiff reported worsening depression. AR 538. She told Mr. Persell
11
that she had briefly taken an antidepressant three months earlier but stopped using it after two
12
weeks because she did not trust her medical provider. AR 538. Mr. Persell prescribed Sertraline.
13
AR 539.
14
15 On May 6, 2015, Plaintiff requested a neck brace. AR 540. Mr. Persel noted that a recent
16 MRI indicated disc herniations at C5-C6 and C6-C7. AR 540.
17 From June 17 through July 7, 2015, Plaintiff received physical therapy. AR 451-71. At
18
intake, Plaintiff reported moderate pain that increased while she was performing self-care and
19
prevented her from working. AR 469. She could not lift heavy weights from the floor, but could
20
lift them if they were conveniently positioned. AR 469. Because of her severe pain, Plaintiff
21
could “hardly read at all” and had frequent moderate headaches, difficulty concentrating and
22
23 greatly disturbed sleep (defined as three to five hours sleepless). AR 469. Nonetheless, Plaintiff
24 could drive her car as long as she wanted with moderate pain in her neck, and was able to engage
25
in a few of her usual recreational activities. AR 469. On July 7, 2015, Kylee J. Roberge, P.T.,
26
D.P.T., discharged Plaintiff to her physician and reported no progress in therapy. AR 455. Dr.
27
///
28
1 Roberge opined that Plaintiff had fair rehabilitation potential due to chronic pain and low pain
2
tolerance. AR 455.
3
On June 20, 2015, Meredith Casares, L.C.S.W., diagnosed major depressive disorder. AR
4
546. On September 11, 2015, Plaintiff reported experiencing unspecified “life-challenging” side
5
effects of her anti-depressive medication which caused Mr. Persel to reduce the dosage by one-
6
7 half. AR 558, 559. Nonetheless, Plaintiff reported that she was experiencing more good days
8 than bad and had done some housework and quilting. AR 559.
9 Plaintiff received pain management treatment at LAGS Spine and Sports Care from
10
January through May 2016. AR 338-67. At the initial examination, Plaintiff complained of 6/10
11
pain. AR 364. Neurological testing yielded mixed results, including abnormal sensation in some
12
dermatomes and limitation of some ranges of cervical and shoulder motion. AR 364-65. A
13
screening questionnaire administered on February 22, 2016, indicated severe depression. AR
14
15 358. Medication reduced Plaintiff’s pain to 5/10. AR 358. Plaintiff received bilateral medial
16 branch block injections and a steroid injection in the left knee. AR 346, 348, 350, 366.
17 Prescriptions included Norco, diclofenac sodium and cyclobenzaprine. AR 339.
18
C. Medical Opinions
19
1. Agency Physicians
20
Agency physician I. Ocrant, M.D., noted that Plaintiff had significant (severe)
21
degenerative disc disease of the cervical spine and took significant pain medication. AR 82, 83.
22
The doctor opined that Plaintiff had the residual functional capacity for light work with
23
restrictions on overhead reaching. AR 82, 84-85. Postural activities were unlimited except she
24
could only occasionally climb ladders, ropes and scaffolds. AR 85. Neck mobility was limited.
25
AR 85. On reconsideration, internist M. Ormsby, M.D., agreed with Dr. Ocrant’s opinion. AR
26
94. Dr. Ormsby added environmental limitations to avoid concentrated exposure to extreme cold,
27
concentrated vibration and hazards such as machinery and heights. AR 97.
28
1 Anna M. Franco, Psy.D., opined that Plaintiff had no medically determined mental
2 impairment. AR 83. On reconsideration, E. Murillo, M.D., agreed. AR 94-95.
3 IV. Standard of Review
4 Pursuant to 42 U.S.C. §405(g), this court has the authority to review a decision by the
5 Commissioner denying a claimant disability benefits. “This court may set aside the
6 Commissioner’s denial of disability insurance benefits when the ALJ’s findings are based on
7 legal error or are not supported by substantial evidence in the record as a whole.” Tackett v.
8 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999) (citations omitted). Substantial evidence is evidence
9 within the record that could lead a reasonable mind to accept a conclusion regarding disability
10 status. See Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but less
11 than a preponderance. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (internal citation
12 omitted). When performing this analysis, the court must “consider the entire record as a whole
13 and may not affirm simply by isolating a specific quantum of supporting evidence.” Robbins v.
14 Social Security Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citations and internal quotation marks
15 omitted).
16 If the evidence reasonably could support two conclusions, the court “may not substitute its
17 judgment for that of the Commissioner” and must affirm the decision. Jamerson v. Chater, 112
18 F.3d 1064, 1066 (9th Cir. 1997) (citation omitted). “[T]he court will not reverse an ALJ’s
19 decision for harmless error, which exists when it is clear from the record that the ALJ’s error was
20 inconsequential to the ultimate nondisability determination.” Tommasetti v. Astrue, 533 F.3d
21 1035, 1038 (9th Cir. 2008) (citations and internal quotation marks omitted).
22 V. The Disability Standard
23 To qualify for benefits under the Social Security Act, a plaintiff must
establish that he or she is unable to engage in substantial gainful
24 activity due to a medically determinable physical or mental
impairment that has lasted or can be expected to last for a continuous
25 period of not less than twelve months. 42 U.S.C. § 1382c(a)(3)(A).
An individual shall be considered to have a disability only if . . . his
26 physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work, but cannot,
27 considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
28 economy, regardless of whether such work exists in the immediate
1 area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
2
42 U.S.C. §1382c(a)(3)(B).
3
To achieve uniformity in the decision-making process, the Commissioner has established
4
a sequential five-step process for evaluating a claimant’s alleged disability. 20 C.F.R. §§
5
416.920(a)-(f). The ALJ proceeds through the steps and stops upon reaching a dispositive finding
6
that the claimant is or is not disabled. 20 C.F.R. §§ 416.927, 416.929.
7
Specifically, the ALJ is required to determine: (1) whether a claimant engaged in
8
substantial gainful activity during the period of alleged disability, (2) whether the claimant had
9
medically determinable “severe impairments,” (3) whether these impairments meet or are
10
medically equivalent to one of the listed impairments set forth in 20 C.F.R. § 404, Subpart P,
11
Appendix 1, (4) whether the claimant retained the residual functional capacity (“RFC”) to
12
perform his past relevant work, and (5) whether the claimant had the ability to perform other jobs
13
existing in significant numbers at the national and regional level. 20 C.F.R. § 416.920(a)-(f).
14
VI. Summary of the ALJ’s Decision
15
The ALJ found that Plaintiff had not engaged in substantial gainful activity since the
16
application date of May 12, 2014. AR 17. Her severe impairments included exogenic obesity,
17
congenital spinal defect with scoliosis and degenerative disc disease of the lumbar spine, arthritis
18
of the cervical spine, depression and anxiety, degenerative changes of the bilateral hip, myalgia,
19
reflux esophagitis in remission, osteoarthritis of the bilateral knees, idiopathic scoliosis and
20
kyphoscoliosis, marijuana, polysubstance and alcohol abuse, a major depressive affective
21
disorder—recurrent and severe versus major depressive disorder—recurrent and moderate. AR
22
17. None of the severe impairments met or medically equaled one of the listed impairments in 20
23
C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d); 404.1525; 404.1526). AR
24
18-19.
25
The ALJ concluded that Plaintiff had the residual functional capacity to perform a wide
26
range of light work as defined in 20 C.F.R. § 416.967(b). AR 19. Plaintiff could lift and carry
27
twenty pounds occasionally and ten pounds frequently; could stand, walk and sit six hours in an
28
1 eight-hour workday; but could not climb ladders, ropes or scaffolds. AR 19. Plaintiff could
2 frequently perform all other postural activities including climbing ramps and stairs, stooping,
3 crouching, crawling and kneeling. AR 19. She must avoid concentrated exposure to temperature
4 extremes, vibration and dampness. AR 19. She can reach overhead and pull and push with her
5 bilateral upper extremities no more than frequently. AR 19.
6 Plaintiff was able to perform her past relevant work as a manager trainee. AR 21-22.
7 Accordingly, the ALJ found that Plaintiff was not disabled from May 12, 2014, through
8 November 1, 2016 (the date of the hearing decision). AR 22.
9 VII. Analysis of Plaintiff’s Severe Mental Impairments
10 Plaintiff contends that the ALJ erred in identifying Plaintiff’s severe mental impairments
11 at step two, but failing to consider those impairments in the residual functional capacity analysis.
12 The Commissioner responds that the ALJ properly addressed Plaintiff’s mental impairments at
13 step two. The Court agrees with the Commissioner that the ALJ’s addressing Plaintiff’s mental
14 impairments at step two did not constitute reversible error.
15 A. The ALJ’s Analysis
16 As summarized above, the ALJ found that Plaintiff had a medically severe combination of
17 multiple impairments: exogenic obesity, congenital spinal defect with scoliosis and degenerative
18 disc disease of the lumbar spine, arthritis of the cervical spine, depression and anxiety,
19 degenerative changes of the bilateral hip, myalgia, reflux esophagitis in remission, osteoarthritis
20 of the bilateral knees, idiopathic scoliosis and kyphoscoliosis, marijuana, polysubstance and
21 alcohol abuse, a major depressive affective disorder—recurrent and severe versus major
22 depressive disorder—recurrent and moderate. AR 17. The ALJ emphasized that a determination
23 of disability required the Commissioner to “consider the combined effect of all of the individual’s
24 impairments without regard to whether any such impairment, if considered separately, would be
25 of such severity.” AR 17 (citing 42 U.S.C. § 423(d)(2)(B)). In this case, Plaintiff’s many
26 physical and mental impairments were “severe in combination” because they collectively were
27 more than slight abnormalities and caused more than minimal limitations in Plaintiff’s ability to
28 perform basic work activities. AR 17. However, not all of Plaintiff’s impairments were severe if
1 considered separately. AR 17. In particular, Plaintiff’s medically determinable mental
2 impairments did not cause more than minimal limitation of Plaintiff’s ability to perform basic
3 mental work activities. AR 18.
4 The ALJ found that Plaintiff’s mental impairments caused no more than mild restriction of
5 her activities of daily living, maintaining social functioning and maintaining concentration,
6 persistence or pace. AR 18. She had no episodes of decompensation. AR 18. The ALJ gave
7 little weight to the medical treatment records relating to Plaintiff’s depression, anxiety and
8 substance use, noting that Plaintiff was noncompliant with medication prescribed for her
9 depression. AR 18. In addition, Plaintiff could care for her pets, perform her own personal care,
10 prepare simple meals, do housework, drive, shop, handle her own finances and socialize with
11 others. AR 18. Despite her reports of defensiveness, anger and difficulty following instructions,
12 Plaintiff paid attention and responded appropriately during the hearing. AR 18. Her mental
13 health records indicated few functional restrictions, if any. AR 18.
14 In analyzing Plaintiff’s residual functional capacity, the ALJ noted that Plaintiff stopped
15 taking anti-depressive medication after experiencing a physical side effect (swollen knees). AR
16 20. He gave some weight to the third-party report that Plaintiff was depressed and in pain, and
17 had difficulty paying attention and following written and spoken instructions. AR 21. He gave
18 little weight to the agency psychological consultants’ opinions that Plaintiff had no medically
19 determinable mental impairment. AR 21.
20 B. Standard of Review
21 “In assessing RFC, the adjudicator must consider limitations and restrictions imposed by
22 all of an individual’s impairments, even those that are not ‘severe.’” Buck v. Berryhill, 869 F.3d
23 1040, 1049 (9th Cir. 2017) (quoting Titles II & XVI: Assessing Residual Functional Capacity in
24 Initial Claims, SSR 96-8p) (internal quotations omitted). As a result, a claimant’s residual
25 functional capacity should be the same whether or not certain impairments are considered severe.
26 Buck, 869 F.3d at 1049. In this case, Plaintiff contends that the ALJ’s failure to consider
27 Plaintiff’s mental impairments in the residual functional capacity analysis violated the agency’s
28 ///
1 own requirement that the ALJ’s residual functional capacity analysis must include consideration of
2 all of a claimant’s limitations including those determined to be non-severe.
3 Plaintiff’s contention relies on Hutton v. Astrue, 491 Fed. Appx. 850, 850-51 (9th Cir.
4 2012). Hutton is an unpublished decision that is not binding on this Court. See generally
5 Fed.R.App.P. 32.1.
6 In Hutton, the ALJ determined at step two of the disability analysis that the claimant’s
7 mental impairment (PTSD) caused mild limitations in one of the functional areas. 491 Fed.Appx.
8 at 850. At step four, however, the ALJ completely excluded the claimant’s mental impairment
9 from consideration. Id. at 851. The Ninth Circuit reversed holding that although the ALJ could
10 give little weight to the claimant’s testimony, the ALJ could not disregard his own finding of a
11 mild mental impairment. Id. at 850-51.
12 The above-captioned case is factually distinguishable from Plaintiff’s case. First, at step
13 two, the ALJ emphasized that although Plaintiff’s mental impairments contributed to a finding
14 that her multiple impairments were collectively severe, they were not severe impairments
15 individually. He found that any limitation resulting from Plaintiff’s mental impairments alone
16 was at most mild. He gave little weight to the treatment records, finding that Plaintiff did not take
17 prescribed anti-depressive medication. In addition, Plaintiff maintained activities of daily living
18 that were inconsistent with a conclusion that her mental impairments severely impacted her
19 functional abilities.
20 The ALJ did not err in addressing Plaintiff’s mental impairments in great detail at step two
21 and briefly at step four. Although an ALJ must discuss and evaluate evidence leading to his
22 conclusion, he is not required to do so under any particular heading in his written decision.
23 Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013) (quoting Lewis v. Apfel, 236 F.3d 503,
24 513 (9th Cir. 2001). An ALJ’s discussion of the relevant medical evidence elsewhere in his
25 decision should be considered in conjunction with a separate but related discussion of residual
26 functional capacity at step four. Evenhus v. Astrue, 815 F.Supp.2d 1154, 1160 (D. Ore. 2011).
27 Any such separate discussion constitutes sufficient consideration. Id. “[A]s long as the ALJ
28 ‘actually reviews the record and specifies reasons supported by substantial evidence supported by
1 substantial evidence for not including the non-severe impairment [in the RFC determination], the
2 ALJ has not committed legal error.’” Lindsay v. Berryhill, 2018 WL 3487167 at *6 (C.D. Cal.
3 July 18, 2018) (No. SACV 17-01545-AFM) (quoting Medlock v. Colvin, 2016 WL 6137399 at *5
4 (C.D. Cal. Oct. 20, 2016) (No. CV 15-9609-KK)).
5 District courts in this circuit have generally declined to find reversible error when an ALJ
6 found the claimant’s mental impairments to be non-severe at step two and considered related,
7 additional evidence of the claimant’s mental impairments at step four. See, e.g., Thompson v.
8 Saul, 2019 WL 3302471 at * 7 (E.D. Cal. July 23, 2019) (No. 1:18-cv-00137-BAM); George A.
9 v. Berryhill, 2019 WL 1875523 at *4 (C.D. Cal. April 24, 2019) (No. 5:18-cv-00405-AFM);
10 Jones v. Berryhill, 2018 WL 3956479 at *3 (C.D. Cal. Aug. 15, 2018) (No. EDCV 17-1138-AS);
11 McIntosh v. Berryhill, 2018 WL 3218105 at *4 (C.D. Cal. June 29, 2018) (No. EDCV 17-1654
12 AGR). In this case, the Court agrees that having set forth his reasons for finding Plaintiff’s
13 mental impairments non-severe, the ALJ adequately considered Plaintiff’s mental impairments in
14 formulating her residual functional capacity.
15 VIII. Credibility of Plaintiff’s Pain Testimony
16 Plaintiff contends that the ALJ erred in failing to articulate his analysis and rejection of
17 Plaintiff’s testimony of excess pain. The Commissioner disagrees contending that in rejecting
18 Plaintiff’s testimony of disabling pain and mental disfunction, the ALJ appropriately considered
19 the record as a whole. Having reviewed the record as a whole, the Court agrees that Plaintiff’s
20 account of disabling pain was inconsistent with the objective evidence of her symptoms and
21 treatment.
22 An ALJ is responsible for determining credibility, resolving conflicts in medical
23 testimony and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).
24 His or her findings of fact must be supported by “clear and convincing evidence.” Burrell v.
25 Colvin, 775 F.3d 1133, 1136-37 (9th Cir. 2014).
26 To determine whether the ALJ’s findings are supported by sufficient evidence a court
27 must consider the record as a whole, weighing both the evidence that supports the ALJ’s
28 determination and the evidence against it. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir.
1 1989). “[A] federal court’s review of Social Security determinations is quite limited.” Brown-
2 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). “For highly fact-intensive individualized
3 determinations like a claimant’s entitlement to disability benefits, Congress places a premium
4 upon agency expertise, and, for the sake of uniformity, it is usually better to minimize the
5 opportunity for reviewing courts to substitute their discretion for that of the agency.” Id. (quoting
6 Treichler v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014), quoting Consolo v.
7 Fed. Mar. Comm’n, 383 U.S. 607, 621 (1966)) (internal quotation marks omitted). Federal courts
8 should generally “’leave it to the ALJ to determine credibility, resolve conflicts in the testimony,
9 and resolve ambiguities in the record.’” Brown-Hunter, 806 F.3d at 492 (quoting Treichler, 775
10 F.3d at 1098).
11 A claimant’s statement of pain or other symptoms is not conclusive evidence of a physical
12 or mental impairment or disability. 42 U.S.C. § 423(d)(5)(A); Soc. Sec. Rul. 16-3p. “An ALJ
13 cannot be required to believe every allegation of [disability], or else disability benefits would be
14 available for the asking, a result plainly contrary to the [Social Security Act].” Fair v. Bowen,
15 885 F.2d 597, 603 (9th Cir. 1989).
16 An ALJ performs a two-step analysis to determine whether a claimant’s testimony
17 regarding subjective pain or symptoms is credible. See Garrison v. Colvin, 759 F.3d 995, 1014
18 (9th Cir. 2014); Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996); S.S.R 16-3p at 3. First, the
19 claimant must produce objective medical evidence of an impairment that could reasonably be
20 expected to produce some degree of the symptom or pain alleged. Garrison, 759 F.3d at 1014;
21 Smolen, 80 F.3d at 1281-1282. In this case, the first step is satisfied by the ALJ’s finding that
22 Plaintiff’s “medically determinable impairments could reasonably be expected to produce the
23 alleged symptoms.” AR 20. The ALJ did not find Plaintiff to be malingering.
24 If the claimant satisfies the first step and there is no evidence of malingering, the ALJ
25 must “evaluate the intensity and persistence of [the claimant’s] symptoms to determine the extent
26 to which the symptoms limit an individual’s ability to perform work-related activities.” S.S.R.
27 16-3p at 2. “[S]ome individuals may experience symptoms differently and may be limited by
28 symptoms to a greater or lesser extent than other individuals with the same medical impairments,
1 the same objective medical evidence and the same non-medical evidence.” S.S.R. 16-3p at 5. In
2 reaching a conclusion, the ALJ must examine the record as a whole, including objective medical
3 evidence, the claimant’s representations of the intensity, persistence and limiting effects of her
4 symptoms, statements and other information from medical providers and other third parties and
5 any other relevant evidence included in the individual’s administrative record. S.S.R. 16-3p at 5.
6 “The determination or decision must contain specific reasons for the weight given to the
7 individual’s symptoms, be consistent with and supported by the evidence, and be clearly
8 articulated so the individual and any subsequent reviewer can assess how the adjudicator
9 evaluated the individual’s symptoms.” SSR 16-3p at *10.
10 Because a “claimant’s subjective statements may tell of greater limitations than can
11 medical evidence alone,” an “ALJ may not reject the claimant’s statements regarding her
12 limitations merely because they are not supported by objective evidence.” Tonapetyan v. Halter,
13 242 F.3d 1144, 1147-48 (2001) (quoting Fair, 885 F.2d at 602 (9th Cir. 1989)). See also Bunnell
14 v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (holding that when there is evidence of an
15 underlying medical impairment, the ALJ may not discredit the claimant’s testimony regarding the
16 severity of his symptoms solely because they are unsupported by medical evidence). “Congress
17 clearly meant that so long as the pain is associated with a clinically demonstrated impairment,
18 credible pain testimony should contribute to a determination of disability.” Id. (internal quotation
19 marks and citations omitted).
20 However, the law does not require an ALJ simply to ignore inconsistencies between
21 objective medical evidence and a claimant’s testimony. “While subjective pain testimony cannot
22 be rejected on the sole ground that it is not fully corroborated by objective medical evidence, the
23 medical evidence is still a relevant factor in determining the severity of claimant’s pain and its
24 disabling effects.” Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001); SSR 16-3p (citing 20
25 C.F.R. § 404.1529(c)(2)). As part of his or her analysis of the record as a whole, an ALJ properly
26 considers whether the objective medical evidence supports or is consistent with a claimant’s pain
27 testimony. Id.; 20 C.F.R. §§ 404.1529(c)(4), 416.1529(c)(4) (symptoms are determined to
28 diminish residual functional capacity only to the extent that the alleged functional limitations and
1 restrictions “can reasonably be accepted as consistent with the objective medical evidence and
2 other evidence”).
3 The ALJ did so here, finding that Plaintiff’s “statements concerning the intensity,
4 persistence and limiting effects of these symptoms are not entirely consistent with medical
5 evidence and other evidence in the record for the reasons explained in this decision.” AR 20.
6 “If the ALJ finds that the claimant's testimony as to the severity of her pain and
7 impairments is unreliable, the ALJ must make a credibility determination with findings
8 sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit
9 claimant's testimony.” Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). “[A] reviewing
10 court should not be forced to speculate as to the grounds for an adjudicator’s rejection of a
11 claimant’s allegations of disabling pain.” Bunnell, 947 F.2d at 346. On the other hand, if the
12 ALJ’s credibility finding is supported by substantial evidence in the record, courts “may not
13 engage in second-guessing.” Thomas, 278 F.3d at 959. As long as the agency decision clearly
14 expresses the basis for the agency’s decision, a federal court will not reverse simply because the
15 agency decision is explained with “less than ideal clarity.” Brown-Hunter, 806 F.3d at 492;
16 Treichler, 775 F.3d at 1099.
17 After indicating his conclusion that Plaintiff’s testimony was not fully consistent with
18 other evidence in the record, the ALJ reviewed in detail the medical evidence of Plaintiff’s severe
19 physical impairments:
20 The treatment record indicates complaints of pain mostly in the
cervical spine, but also in the knees, hips, and upper extremities.
21 Examinations have indicated some tenderness, limitation in range of
motion of the neck, weakness in the upper extremities, and muscle
22 spasms, but also normal sensation, reflexes, and muscle tone. The
claimant participated in physical therapy in 2014 and 2015 without
23 much improvement. The claimant’s Body Mass Index indicates
obesity. She reported using a stationary bicycle for exercise. The
24 claimant recently underwent medial branch blocks in the cervical
spine, and she has used Norco, NSAIDs, and muscle relaxers, as well
25 as chiropractic care to help her symptoms.
26 A CT of the cervical spine in March 2014 indicated minimal left
sided neural foraminal narrowing at multiple levels secondary to
27 hypertrophic changes, straightened lordosis, and C6-7 level
degenerative disc space narrowing and spurring. X-rays of the pelvis
28 and hips in July 2014 indicated mild degenerative changes with no
1 acute fracture, dislocation, or unusual hip effusion, and
radiodensities of the pelvis consistent with phleboliths. X-rays of the
2 left knee in September 2014 indicated minimal joint fluid and
posterior superior patellar spurring. X-rays of the left knee in
3 January 2015 indicated some early degenerative change with early
osteophyte formation and the appearance of joint space narrowing
4 medially, joint effusion, and some early degenerative change
involving the patella that appeared slightly superiorly located,
5 suggesting a component of patella a[lt]a. X-rays of the cervical spine
in February 2015 indicated some degenerative spurring at C5-C7
6 with some disc space narrowing, reverse lordosis suggesting muscle
spasm, intact odontoid, no compression deformity or listhesis, and an
7 [o]void soft tissue density in the posterior aspect of the neck of
uncertain etiology.
8
The claimant takes cyclobenzaprine, hydrocodone, sertraline and
9 Aleve.
10 AR 20-21 (citations to administrative record omitted).
11 “[O]bjective medical evidence is a useful indicator to help make reasonable conclusions
12 about the intensity and persistence of symptoms, including the effects those symptoms may have
13 on the ability to perform work-related activities.” S.S.R. 16-3p at 6. Because objective medical
14 evidence may reveal the intensity, persistence and limiting effects of a claimant’s symptoms, an
15 ALJ must consider whether the symptoms reported by a claimant are consistent with medical
16 signs and laboratory findings of record. Id. For example, “reduced joint motion, muscle spasm,
17 sensory deficit, and motor disruption illustrate findings that may result from, or be associated
18 with, pain.” Id. Conversely, records indicating that a claimant has no muscle wasting bely a
19 claimant’s representation that he or she has been unable to walk no more than a few steps per day.
20 Id.
21 As the ALJ found in this case, Plaintiff’s claims of disabling pain were inconsistent with
22 medical records showing mild and minimal joint degeneration and conservative treatment. The
23 ALJ’s determination was further supported by Plaintiff’s failure to comply with medical
24 treatment and recommendations and evidence of her ability to provide her own personal care and
25 engage in a wide range of activities.
26 As is always the case in an appeal of the Commissioner’s denial of disability benefits,
27 Plaintiff would construe the evidence differently than the ALJ. Nonetheless, the hearing decision
28 ///
1 sets forth sufficient evidence in the record to support the ALJ’s determination that Plaintiff’s
2 representations to the agency were not fully credible. The Court will not second guess the ALJ’s
3 assessment of Plaintiff’s credibility.
4 IX. Impact of Plaintiff’s Drug and Alcohol Abuse
5 Plaintiff also contends that the ALJ erred in failing to follow the procedure set forth in
6 S.S.R. 13-2p for evaluation of a claimant who abuses drugs and alcohol. The Commissioner
7 explains that the ALJ was only required to analyze the contributory effect of Plaintiff’s drug and
8 alcohol abuse if he found that Plaintiff was disabled. Since the ALJ found that Plaintiff’s
9 collective severe impairments did not result in her being disabled, he was not required to
10 determine the extent to which Plaintiff’s drug and alcohol abuse contributed to her disability. The
11 Commissioner’s explanation is correct.
12 The Social Security Act does not consider a claimant to be disabled if his or her
13 alcoholism or drug addiction would be a material contributing factor to the Commissioner’s
14 determination that the claimant is disabled. 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J).
15 Accordingly, if the Commissioner determines that a claimant who abuses drugs or alcohol is
16 disabled after considering all of the claimant’s medically determinable impairments, the
17 Commissioner must then determine whether the claimant’s substance abuse is a material factor in
18 the disability determination by determining whether the claimant would be disables if he or she
19 stopped abusing drugs or alcohol. 20 C.F.R. §§ 404.1503, 416.913. The applicable policy and
20 procedure are detailed in S.S.R. 13-2p.
21 In this case, the ALJ concluded that Plaintiff was not disabled. Accordingly, he was not
22 required to consider the effect of Plaintiff’s drug and alcohol abuse.
23 X. Conclusion and Order
24 Based on the foregoing, the Court finds that the ALJ’s decision that Plaintiff is not
25 disabled is supported by substantial evidence in the record as a whole and based on proper legal
26 standards. Accordingly, this Court DENIES Plaintiff’s appeal from the administrative decision of
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1 ///
2 the Commissioner of Social Security. The Clerk of Court is directed to enter judgment in favor of
3 Defendant Andrew Saul, Commissioner of Social Security, and against Plaintiff Mary Annette
4 Denney.
5
IT IS SO ORDERED.
6

7 Dated: August 28, 2019 /s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE
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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10013545. Public record. Not legal advice.