Mary Linda Robinson v. Andrew Saul

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 MARY R., ) Case No. ED CV 19-2431-SP

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12 Plaintiff, )

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13 v. ) MEMORANDUM OPINION AND

) ORDER

14 )

ANDREW M. SAUL, Commissioner of )

15 Social Security Administration, )

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16 Defendant. )

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17 )

18 I.

19 INTRODUCTION

20 On December 17, 2019, plaintiff Mary R. filed a complaint against

21 defendant, the Commissioner of the Social Security Administration

22 (“Commissioner”), seeking a review of a denial of a period of disability, disability

23 insurance benefits (“DIB”), and supplemental security income (“SSI”). The parties

24 have fully briefed the issues in dispute, and the court deems the matter suitable for

25 adjudication without oral argument.

26 Plaintiff presents two disputed issues for decision: (1) whether the

27 Administrative Law Judge (“ALJ”) properly discounted the opinion of a state

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1 agency physician; and (2) whether the ALJ properly determined that plaintiff did

2 not suffer from a severe mental impairment at step two. Memorandum in Support

3 of Plaintiff’s Complaint (“P. Mem.”) at 5-11; see Memorandum in Support of

4 Defendant’s Answer (“D. Mem.) at 2-9.

5 Having carefully studied the parties’ papers, the Administrative Record

6 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein,

7 the ALJ properly discounted the opinion of the state agency physician and properly

8 determined that plaintiff did not suffer from a severe mental impairment. The

9 court therefore affirms the decision of the Commissioner denying benefits.

10 II.

11 FACTUAL AND PROCEDURAL BACKGROUND

12 Plaintiff was 52 years old on September 15, 2015, the alleged disability

13 onset date.1 AR at 92-93, 120. She has a high school diploma and past relevant

14 work as a childcare attendant and medical assistant. Id. at 96, 110-11.

15 On May 23, 2016, plaintiff filed applications for a period of disability, DIB,

16 and SSI, alleging she was unable to work because of bilateral carpal tunnel in both

17 hands, hyperthyroidism, high blood pressure, and depression. Id. at 120-21, 133-

18 34. The Commissioner denied plaintiff’s application initially and on

19 reconsideration, after which she filed a request for a hearing. Id. at 119-132, 146-

20 57, 204-208.

21 Plaintiff, represented by counsel, appeared and testified at a hearing before

22 the ALJ on December 13, 2018. Id. at 94-109. The ALJ also heard testimony from

23 Joey Kilpatrick, a vocational expert. Id. at 110-17. On January 15, 2019, the ALJ

24 denied plaintiff’s claims for benefits. Id. at 16-29.

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1 Plaintiff initially alleged that she became disabled on June 30, 2013, but at

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the administrative hearing changed her alleged onset date to September 15, 2015.

28 AR at 92-93, 120.

1 Applying the well-known five-step sequential evaluation process, the ALJ

2 found at step one that plaintiff had not engaged in substantial gainful activity since

3 September 15, 2015, the amended alleged onset date. Id. at 19.

4 At step two, the ALJ found that plaintiff suffered from the following severe

5 impairments: bilateral carpal tunnel syndrome and hypertension. Id. at 20. But the

6 ALJ found that plaintiff’s medically determinable mental impairment of depression

7 was not severe, because it did not cause more than minimal limitations in

8 plaintiff’s ability to perform basic mental work activities. Id. at 21-23.

9 At step three, the ALJ found plaintiff’s impairments, whether individually or

10 in combination, did not meet or medically equal one of the listed impairments set

11 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 23.

12 The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),2 and

13 determined that plaintiff had the RFC to perform no greater than light work with

14 the limitations that she could: occasionally climb ladders, ropes, and scaffolds;

15 perform all other postural activities on a frequent basis, including climbing ramps

16 and stairs, balancing, stooping, kneeling, crouching, and crawling; frequently

17 handle and finger with the bilateral upper extremities; and would need to avoid

18 concentrated exposure to hazards in the workplace, such as unprotected heights or

19 dangerous machinery. Id. at 24.

20 The ALJ found, at step four, that plaintiff was able to perform her past

21 relevant work as a medical assistant as generally performed. Id. at 28-29.

22 Consequently, the ALJ concluded plaintiff did not suffer from a disability as

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2 Residual functional capacity is what a claimant can do despite existing

25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 155-

26 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation,

the ALJ must proceed to an intermediate step in which the ALJ assesses the

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claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151

28 n.2 (9th Cir. 2007).

1 defined by the Social Security Act. Id. at 29.

2 Plaintiff filed a timely request for review of the ALJ’s decision, which was

3 denied by the Appeals Council. Id. at 1-6. The ALJ’s decision stands as the final

4 decision of the Commissioner.

5 III.

6 STANDARD OF REVIEW

7 This court is empowered to review decisions by the Commissioner to deny

8 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security

9 Administration must be upheld if they are free of legal error and supported by

10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001)

11 (as amended). But if the court determines the ALJ’s findings are based on legal

12 error or are not supported by substantial evidence in the record, the court may

13 reject the findings and set aside the decision to deny benefits. Aukland v.

14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d

15 1144, 1147 (9th Cir. 2001).

16 “Substantial evidence is more than a mere scintilla, but less than a

17 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such

18 “relevant evidence which a reasonable person might accept as adequate to support

19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276

20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s

21 finding, the reviewing court must review the administrative record as a whole,

22 “weighing both the evidence that supports and the evidence that detracts from the

23 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be

24 affirmed simply by isolating a specific quantum of supporting evidence.’”

25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th

26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing

27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that

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1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir.

2 1992)).

3 IV.

4 DISCUSSION

5 A. The ALJ Properly Rejected State Agency Physician Dr. Lockie’s

6 Opinion

7 Plaintiff argues the ALJ erred by rejecting the opinion of state agency

8 physician, Dr. George N. Lockie. P. Mem. at 5-8. Specifically, plaintiff argues the

9 ALJ’s rejection of Dr. Lockie’s opinion that plaintiff was limited to occasional

10 handling and fingering with her right hand was not supported by substantial

11 evidence. Id.

12 In determining whether a claimant has a medically determinable impairment,

13 among the evidence the ALJ considers is medical evidence. 20 C.F.R.

14 § 404.1527(b).3 In evaluating medical opinions, the regulations distinguish among

15 three types of physicians: (1) treating physicians; (2) examining physicians; and

16 (3) non-examining physicians. 20 C.F.R. § 404.1527(c), (e); Lester v. Chater, 81

17 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating physician’s

18 opinion carries more weight than an examining physician’s, and an examining

19 physician’s opinion carries more weight than a reviewing physician’s.” Holohan v.

20 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2).

21 The opinion of the treating physician is generally given the greatest weight because

22 the treating physician is employed to cure and has a greater opportunity to

23 understand and observe a claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir.

24 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989).

25 Nevertheless, the ALJ is not bound by the opinion of the treating physician.

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3 All citations to the Code of Federal Regulations refer to regulations

28 applicable to claims filed before March 27, 2017.

1 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the

2 ALJ must provide clear and convincing reasons for giving it less weight. Lester,

3 81 F.3d at 830. If the treating physician’s opinion is contradicted by other

4 opinions, the ALJ must provide specific and legitimate reasons supported by

5 substantial evidence for rejecting it. Id. Likewise, the ALJ must provide specific

6 and legitimate reasons supported by substantial evidence for rejecting the

7 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a

8 non-examining physician, standing alone, cannot constitute substantial evidence.

9 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v.

10 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d

11 813, 818 n.7 (9th Cir. 1993). However, the “opinions of non-treating or

12 non-examining physicians may [] serve as substantial evidence when the opinions

13 are consistent with independent clinical findings or other evidence in the record.”

14 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

15 1. State Agency Physicians

16 On July 19, 2016, state agency physician Dr. George N. Lockie reviewed

17 plaintiff’s medical records at the initial level, and issued an RFC assessment. Dr.

18 Lockie opined that plaintiff could lift and carry up to 20 pounds occasionally and

19 10 pounds frequently, occasionally climb ladders, ropes, and scaffolds, and handle

20 and finger frequently with her left hand and occasionally with her right hand. AR

21 at 127-28, 140-41.

22 On November 1, 2016, state agency physician Dr. A. Lizarraras reviewed

23 plaintiff’s medical records on reconsideration, and issued another RFC assessment.

24 Dr. Lizarraras opined that plaintiff could lift and carry 50 pounds occasionally and

25 25 pounds frequently, occasionally climb ladders, ropes, and scaffolds, and handle

26 and finger frequently with both hands. Id. at 154-55, 168-69. In reaching this

27 determination, Dr. Lizarraras explained that more weight was assigned to the

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1 longitudinal evidence that documents mild bilateral carpal tunnel syndrome, and

2 mild L4-5 bilateral denervation without documented functionally significant

3 neurological deficits or mechanical signs of radiculopathy. Id. at 155.

4 2. The ALJ’s Findings

5 The ALJ determined that plaintiff had the RFC to perform no greater than

6 light work with the limitations that she could: occasionally climb ladders, ropes,

7 and scaffolds; perform all other postural activities on a frequent basis; frequently

8 handle and finger with the bilateral upper extremities; and would need to avoid

9 concentrated exposure to hazards in the workplace, such as unprotected heights or

10 dangerous machinery. Id. at 24.

11 In reaching his determination, the ALJ stated he gave substantial weight to

12 the opinions of both state agency medical consultants Drs. Lockie and Lizarraras,

13 finding they both limited plaintiff to a range of light work, including occasionally

14 climbing ladders, ropes, or scaffolds. Id. at 26. The ALJ found both of their

15 opinions “generally consistent with the overall evidence of record.” Id. But the

16 ALJ determined that Dr. Lizarraras’s opinion regarding plaintiff’s ability to

17 frequently handle and finger bilaterally was “more consistent with the current

18 record,” including an August 2016 report that plaintiff had not really been in pain

19 but her wrist hurt that day, and plaintiff’s ability to care for her granddaughter,

20 prepare meals, and do chores. Id. The ALJ also cited to evidence that plaintiff was

21 reported to have full cervical and lumbar spine range of motion and intact

22 neurological findings, with reports of normal musculoskeletal findings, normal

23 gait, fully intact motor strength, and later, full wrist range of motion with 4/5

24 strength. Id. (citing AR at 330, 363-64, 372-73, 433, 515).

25 Plaintiff argues the ALJ’s reasons for rejecting Dr. Lockie’s opinion that

26 plaintiff was limited to occasional handling and fingering with her right hand were

27 not supported by substantial evidence. See P. Mem. at 5-8. But the ALJ

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1 reasonably concluded that Dr. Lizarraras’s opinion that plaintiff could frequently

2 handle and finger bilaterally was more consistent with the record as a whole. See

3 AR at 26.

4 Specifically, in addition to the August 2016 report that plaintiff stated she

5 had not really been in pain apart from her wrist hurting that day (see id. at 418), the

6 ALJ also relied on other probative evidence that was consistent with a limitation of

7 frequent bilateral handling and fingering. This included plaintiff’s testimony that

8 she was able to care for her granddaughter, prepare meals, and do chores. Id. at 24,

9 26, 97, 107-08. Further, as the ALJ recounted, plaintiff’s treatment records

10 regarding examination of her hands and wrists were generally unremarkable. Id. at

11 25-28. For example, in January 2016, plaintiff appeared alert, oriented, and in no

12 acute distress, she had normal musculoskeletal findings, normal gait and station,

13 and fully intact motor strength. Id. at 330, 372-73. In June 2016, plaintiff had

14 tenderness to palpation of the right wrist, but “essentially full” range of motion, 4/5

15 grip strength, and intact sensation and radial pulses. Id. at 363-64. In May and

16 October 2017, plaintiff denied pain or weakness in her extremities, joint pain, or

17 swelling, and she had normal musculoskeletal findings. Id. at 433, 443-44. In

18 May 2018, plaintiff’s examination again revealed normal musculoskeletal findings,

19 and her neurological function was intact. Id. at 515. Plaintiff argues the ALJ

20 failed to consider the EMG test from January 2016 that showed she had mild

21 bilateral carpal tunnel syndrome, worse on the right side, and chronic

22 radiculopathy of the L4-5 nerve root (see P. Mem. at 7-8); however, both the ALJ

23 and Dr. Lizarraras specifically accounted for those findings in determining that

24 plaintiff could frequently handle and finger bilaterally. See AR at 25, 155. As

25 such, the ALJ properly credited Dr. Lizarraras’s finding that plaintiff could

26 frequently, rather than occasionally, handle and finger bilaterally, since it was

27 supported by substantial evidence.

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1 Plaintiff also argues the ALJ erred by determining that Dr. Lizarraras’s

2 opinion was consistent with a finding that plaintiff could perform light work, since

3 Dr. Lizarraras opined that plaintiff could lift up to 50 pounds occasionally and 25

4 pounds frequently, which is indicative of medium work. See P. Mem. at 5-7 (citing

5 20 C.F.R. § 404.1567(b)-(c)); AR 154, 168. While plaintiff correctly asserts that

6 Dr. Lizarraras’s lifting limitations were not consistent with a finding of light work,

7 she fails to establish how this error was harmful, since the ALJ ultimately limited

8 plaintiff to light work. Plaintiff argues this error shows the ALJ failed to consider

9 that Dr. Lizarraras generally overestimated plaintiff’s abilities, but that does not

10 follow. The ALJ carefully considered and explained why he accepted Dr.

11 Lizarraras’s opinion regarding fingering and handling limitations over that of Dr.

12 Lockie, and the ALJ’s mischaracterization of Dr. Lizarraras’s opinion as limiting

13 plaintiff to light work does not alter that. See Molina v. Astrue, 674 F.3d 1104,

14 1115 (9th Cir. 2012) (“[A]n error is harmless so long as there remains substantial

15 evidence supporting the ALJ’s decision and the error does not negate the validity

16 of the ultimate conclusion”).

17 Accordingly, the ALJ properly rejected the portion of Dr. Lockie’s opinion

18 that concerned finger and handling limitations, and the ALJ’s finding that plaintiff

19 could frequently handle and finger bilaterally was supported by substantial

20 evidence.

21 B. The ALJ Properly Found Plaintiff’s Mental Impairment Non-Severe

22 Plaintiff also argues the ALJ’s step-two finding that plaintiff did not suffer

23 from a severe mental impairment was not supported by substantial evidence. See

24 P. Mem. at 8-11. Specifically, plaintiff asserts the ALJ interpreted a large portion

25 of the mental health evidence without the help of a medical expert, which is

26 improper. Id. at 9-11.

27 At step two, the Commissioner considers the severity of the claimant’s

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1 impairments. 20 C.F.R. § 404.1520(a)(4)(ii). “[T]he step-two inquiry is a de

2 minimis screening device to dispose of groundless claims.” Smolen v. Chater, 80

3 F.3d 1273, 1290 (9th Cir. 1996). “An impairment or combination of impairments

4 can be found not severe only if the evidence establishes a slight abnormality that

5 has no more than a minimal effect on an individual’s ability to work.” Id. (citation

6 and quotation marks omitted). Nonetheless, “[t]he claimant [still] carries the initial

7 burden of proving a disability.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir.

8 2005).

9 To establish a medically determinable impairment, it must be supported by

10 objective medical evidence, not only the plaintiff’s statements. See 20 C.F.R.

11 § 416.908 (“A physical or mental impairment must be established by medical

12 evidence consisting of signs, symptoms, and laboratory findings, not only by your

13 statement of symptoms.”); see also Ukolov v. Barnhart, 420 F.3d 1002, 1006 (9th

14 Cir. 2005). “[A]pplying our normal standard of review to the requirements of step

15 two, we must determine whether the ALJ had substantial evidence to find that the

16 medical evidence clearly established that [the claimant] did not have a medically

17 severe impairment or combination of impairments.” Webb v. Barnhart, 433 F.3d

18 683, 687 (9th Cir. 2005).

19 Here, the ALJ found that plaintiff’s medically determinable mental

20 impairment of depression was not severe, because it did not cause more than a

21 minimal limitation in plaintiff’s ability to perform basic mental work activities. Id.

22 at 21. In making this determination, the ALJ “considered the four broad functional

23 areas set out in the disability regulations for evaluation of mental disorders,” which

24 are known as the “paragraph B” criteria. Id. Specifically, the ALJ found plaintiff

25 had no limitations in understanding, remembering, or applying information,

26 interacting with others, maintaining concentration, persistence, or pace, and

27 adapting or managing oneself. Id. at 21-23. Consequently, the ALJ found

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1 plaintiff’s mental impairment was not severe. Id. at 23.

2 In reaching the determination that plaintiff’s mental impairment was not

3 severe, the ALJ considered all of the evidence, including plaintiff’s testimony, the

4 treatment records, and the medical opinions. See id. at 21-23, 26-27. The ALJ

5 found that the opinions of state agency psychological consultants Dr. Barry

6 Rudnick and Dr. K. Gregg supported the finding that plaintiff’s mental impairment

7 was not severe, and he gave “some weight” to the opinions. Id. at 26-27. On July

8 26, 2016, Dr. Rudnick determined at the initial level that plaintiff did not have a

9 medically determinable mental impairment based on a review of plaintiff’s

10 treatment records and activities of daily living. See id. at 124-25. On November 1,

11 2016, Dr. Gregg determined that plaintiff’s mental impairment was not severe,

12 because plaintiff had no more than mild limitations in activities of daily living,

13 maintaining social functioning, and concentration, persistence, and pace, and no

14 repeated episodes of decompensation. Id. at 152.

15 Plaintiff argues the ALJ’s finding that plaintiff did not suffer from a severe

16 mental impairment was not supported by substantial evidence, because he

17 interpreted a large portion of plaintiff’s mental health records – those from after

18 November 1, 2016 – without the help of a medical expert. See P. Mem. at 8-10. It

19 is true that an ALJ may not act as his own medical expert, since he is “simply not

20 qualified to interpret raw medical data in functional terms.” Nguyen v. Chater, 172

21 F.3d 31, 35 (1st Cir. 1999); see Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.

22 1975) (hearing examiner should not go outside the record to medical textbooks to

23 make his “own exploration and assessment” as to a claimant’s impairments); Miller

24 v. Astrue, 695 F. Supp. 2d 1042, 1048 (C.D. Cal. 2010) (it is improper for the ALJ

25 to act as the medical expert). But that is not what the ALJ did here. Rather, the

26 ALJ’s finding that plaintiff’s mental impairment was not severe was supported by

27 the state agency psychological consultants’ opinions, who both found that plaintiff

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1 did not have a severe mental impairment. See id. at 26-27, 152, 166. While their

2 opinions were based on plaintiff’s records from before November 2016, the ALJ

3 properly considered their findings since the ALJ found them to be somewhat

4 consistent with the overall evidence of record, including medical evidence

5 subsequent to their opinions. See id. at 26-27; Andrews v. Shalala, 53 F.3d 1035,

6 1041 (9th Cir. 1995) (“Reports of the nonexamining advisor need not be

7 discounted and may serve as substantial evidence when they are supported by other

8 evidence in the record and are consistent with it”). The ALJ was not required to

9 obtain another medical opinion regarding the evidence not reviewed by the state

10 agency physicians when he found their opinions consistent with that later evidence.

11 See Owen v. Saul, 808 Fed. App’x 421, 423 (9th Cir. 2020) (no error in giving

12 weight to opinions of state agency physicians who did not review later evidence;

13 “there is always some time lapse between a consultant’s report and the ALJ hearing

14 and decision”).

15 While there are references to depression in the record, “[t]he mere existence

16 of an impairment is insufficient proof of a disability.” Matthews v. Shalala, 10

17 F.3d 678 (9th Cir. 1993). Rather, as noted above, the overall treatment record

18 supports the ALJ’s finding that plaintiff’s mental impairment was not severe. For

19 example, in June 2016, physician assistant Andrew Rivas noted that plaintiff was

20 alert and oriented with appropriate mood and affect. Id. at 21, 363. From August

21 to October 2016, social worker Kimberly Cox consistently reported that plaintiff

22 had normal sleep and appetite, normal behavior, normal mood and affect, normal

23 thought processes and content, and intact judgment and insight, although there was

24 a report of suicidal ideation. Id. at 412-13, 414, 418. In September 2016, Dr.

25 Trevender Ahluwalia examined plaintiff and reported that she had a tearful mood,

26 but coherent speech with questionable auditory hallucinations and no suicidal or

27 homicidal ideation. Id. at 21, 547. Dr. Ahluwalia then assessed that plaintiff had

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1 || major depression. /d. But in May 2017, Dr. Dustin Wong examined plaintiff and

2 || reported that she had intact cognitive functioning, and was alert and in no acute

3 || distress. Id. at 443. Additionally, while plaintiff indicated that she sometimes

4 || forgets what she is supposed to do, the medical evidence did not demonstrate that

5 || plaintiff had any difficulties in memory, insight, or judgment. See id. at 21, 372,

6 || 412-13, 414, 418. There was also no evidence that plaintiff had any issues with

7 || interacting with others, or with concentration, persistence, and pace. See id. at

8 || 103-04. Further, the ALJ properly considered plaintiff's ability to take care of

9 || herself and her granddaughter in finding that her mental impairment did not

10 || interfere with her ability to function. See Molina, 674 F.3d at 1113 (finding

11 plaintiffs ability to walk grandchildren to and from school, attend church, go

12 || shopping, and take walks undermined her claims that she was incapable of being

13 || around others without suffering disabling panic attacks). Although plaintiff cites

14 || to a few occasions where she had a “tearful mood” or was “very irritable,” plaintiff

15 || fails to provide any evidence establishing that she had severe work-related

16 || limitations due to her mental impairment.

17 As such, contrary to plaintiff's assertion, the ALJ’s finding that plaintiff did

18 || not have a severe mental impairment was supported by substantial evidence.

19 V.

20 CONCLUSION

21 IT IS THEREFORE ORDERED that Judgment shall be entered

22 || AFFIRMING the decision of the Commissioner denying benefits, and dismissing

23 || this action with prejudice.

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25 || DATED: March 30, 2021 LRP

26 SHERIPYM —————

57 United States Magistrate Judge

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