Opinion
Case No. ED CV 12-1449-SP
05-22-2013
SUZANNE WINCHESTER Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
MEMORANDUM OPINION AND
ORDER
I.
INTRODUCTION
On September 7, 2012, plaintiff Suzanne Winchester filed a complaint against defendant, the Commissioner of Social Security ("Commissioner"), seeking a review of a denial of supplemental security income ("SSI"). Both plaintiff and defendant have consented to proceed for all purposes before the assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the matter suitable for adjudication without oral argument.
Plaintiff presents two disputed issues for decision: (1) whether the finding of the Administrative Law Judge ("ALJ") that plaintiff's mental impairment is not severe was in error; and (2) whether the ALJ's failure to obtain testimony from a mental health expert at step three was in error. Plaintiff's Memorandum in Support of Complaint ("Pl. Mem.") at 4-10; Memorandum in Support of Defendant's Answer and in Opposition to Plaintiff's Memorandum in Support of Complaint ("Def. Mem.") at 2-10.
Having carefully studied, inter alia, the parties's moving papers, the Administrative Record ("AR"), and the decision of the ALJ, the court concludes that, as detailed herein, the ALJ properly found that plaintiff's mental impairment is not severe. It was therefore unnecessary for the ALJ to consult a mental health expert at step three. Consequently, this court affirms the decision of the Commissioner denying benefits.
II.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff, who was fifty-nine years old on the date of her December 13, 2010 administrative hearing, completed some high school. AR at 20, 45, 57-58, 170, 356. Her past relevant work was as an office manager and a security guard. AR at 26-27, 45, 53-54, 57, 173.
On January 30, 2009, plaintiff protectively filed an application for SSI. AR at 20, 110-113. This application alleged that plaintiff suffered from multiple strokes and heart attacks, diminished use of her right arm, and cognitive difficulties, with an onset date of September 11, 2008. AR at 20, 163. The Commissioner denied plaintiff's applications for benefits, after which she filed a request for a hearing. AR at 20, 62-66, 72-77.
On December 13, 2010, plaintiff, represented by counsel, appeared and testified at a hearing before the ALJ. AR at 45, 49-53. The ALJ also heard testimony from Dr. Sami Nafoosi, a medical expert, and Alan Boroskin, a vocational expert. AR at 45, 46-49, 53-55. On January 10, 2011, the ALJ denied plaintiff's claim for benefits. AR at 17-27.
Applying the well-known five-step sequential evaluation process, the ALJ found, at step one, that plaintiff did not engage in substantial gainful activity since January 30, 2009, the protective filing date. AR at 22.
At step two, the ALJ found that plaintiff suffers from the following severe impairments: hypertension with end organ damage, chronic obstructive pulmonary disease, and a compression fracture of the seventh thoracic vertebrae. Id. The ALJ found that plaintiff's mental impairment is not severe. AR at 23.
At step three, the ALJ found that plaintiff's impairments did not meet the listed impairments set forth in section 12.04 of 20 C.F.R. part 404, Subpart P, Appendix 1. AR at 24. As to plaintiff's mental impairment, the ALJ found that it did not meet any of the listed impairments in Listing 12.00 of the Listing of Impairments, including consideration of the "paragraph B" criteria. Id.
The ALJ then assessed plaintiff's residual functional capacity ("RFC"). AR at 24-26. The ALJ found that plaintiff has the RFC to perform light work with the following limitations: she needs to change positions every hour, and is limited to occasional climbing, balancing, stooping, kneeling, crouching, crawling, and squatting. AR at 24. In addition, plaintiff should avoid concentrated exposure to dusts, chemical fumes, vapors, or sudden changes in extreme temperatures. Id.
Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 1155-56 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 claimant's residual functional capacity." Massachi v. Astrue, 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
The ALJ found, at step four, that plaintiff would be capable of performing her past relevant work as a security guard and office manager as actually and generally performed, and that those occupations did not require plaintiff to perform work precluded by her RFC. AR at 26-27.
Consequently, the ALJ concluded that plaintiff did not suffer from a disability as defined by the Social Security Act. AR at 27.
Plaintiff filed a timely request for review of the ALJ's decision, which was denied by the Appeals Council on July 10, 2012. AR at 1, 36. The ALJ's decision stands as the final decision of the Commissioner.
III.
STANDARD OF REVIEW
This court is empowered to review decisions by the Commissioner to deny benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security Administration must be upheld if they are free of legal error and supported by substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) (as amended). But if the court determines that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, the court may reject the findings and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
"Substantial evidence is more than a mere scintilla, but less than a preponderance." Aukland, 257 F.3d at 1035. Substantial evidence is such "relevant evidence which a reasonable person might accept as adequate to support a conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 F.3d at 459. To determine whether substantial evidence supports the ALJ's finding, the reviewing court must review the administrative record as a whole, "weighing both the evidence that supports and the evidence that detracts from the ALJ's conclusion." Mayes, 276 F.3d at 459. The ALJ's decision "'cannot be affirmed simply by isolating a specific quantum of supporting evidence.'" Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence can reasonably support either affirming or reversing the ALJ's decision, the reviewing court "'may not substitute its judgment for that of the ALJ.'" Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 1992)).
IV.
DISCUSSION
A. The ALJ's Findings at Step Two that Plaintiff's Mental Impairment Is Non-Severe Was Not in Error
Plaintiff argues that the ALJ erred when he did not find that plaintiff's mental impairment is severe at step two. Pl. Mem. at 5-9. Plaintiff contends that there is significant evidence in the record to indicate that plaintiff's mental impairment is severe, relying almost entirely upon the medical records proffered by Dr. Gene N. Berg, Ph.D. Id. The Commissioner contends the ALJ properly discounted Dr. Berg's opinion in favor of the findings of the State agency physician Dr. S. Khan, M.D., and the examining physician Dr. Hiruy Gessesse, M.D. Def. Mem. at 2-8. Because the ALJ articulated specific and legitimate reasons to discount Dr. Berg's opinion, and because the opinions of Drs. Khan and Gessesse indicating that plaintiff's mental impairment is non-severe were properly credited, the court finds that the ALJ did not err at step two.
The inquiry at step two is whether or not a claimant is suffering from a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii) & 416.920(a)(4)(ii). The step two inquiry is defined as "'a de minimis screening device to dispose of groundless claims.'" Edlund v. Massanari, 253 F.3d 1152, 1158 (9th Cir. 2001, as amended Aug. 9, 2001) (quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996)). "At step two of the five-step sequential inquiry, the Commissioner determines whether the claimant has a medically severe impairment or combination of impairments." Smolen, 80 F.3d at 1289-90. "Important here, at the step two inquiry, is the requirement that the ALJ must consider the combined effect of all of the claimant's impairments on her ability to function, without regard to whether each alone was sufficiently severe." Id. at 1290. The ALJ is also "required to consider the claimant's subjective symptoms . . . in determining severity." Id.
"An impairment or combination of impairments can be found not severe only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual[']s ability to work." Smolen, 80 F.3d at 1290 (internal quotation marks and citation omitted). "[A]n ALJ may find that a claimant lacks a medically severe impairment or combination of impairments only when his conclusion is 'clearly established by medical evidence.'" Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005) (quoting SSR 85-28). "[A]pplying our normal standard of review to the requirements of step two, we must determine whether the ALJ had substantial evidence to find that the medical evidence clearly established that [the claimant] did not have a medically severe impairment or combination of impairments." Id. In addition, "'if an adjudicator is unable to determine clearly the effect of an impairment or combination of impairments on the individual's ability to do basic work activities, the sequential evaluation should not end with the not severe evaluation step.'" Id. (quoting SSR 85-28) (brackets omitted).
"'Basic work activities' are defined as including such capabilities as use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting." Edlund, 253 F.3d at 1159 (internal citations omitted).
"The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency's policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner's interpretation of the agency's regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations." Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th Cir. 2001) (internal citations omitted).
1. Evidence of Mental Impairment Before Treatment
On September 11, 2008, plaintiff was admitted to the emergency room complaining of an inability to remember simple things and an inability to perform activities of daily living. AR at 226. She was not oriented to date, time, or place. AR at 235. She was admitted to the hospital and diagnosed with an acute mental status change of unknown etiology. AR at 226-27, 234. Upon discharge from the hospital she was stable, and was oriented to person, place, time, and situation, though she did not know what the date was. AR at 236.
2. Dr. Hiruy Gessesse, M.D.
With respect to the severity of plaintiff's mental impairment, the ALJ relied upon and credited the medical opinion of Dr. Hiruy Gessesse. AR at 22. Dr. Gessesse examined plaintiff on May 31, 2009. AR at 283. Dr. Gessesse assigned plaintiff a global assessment functioning score ("GAF") score of 65. AR at 286. According to the evaluation undertaken by Dr. Gessesse, plaintiff maintained good eye contact and established a rapport with him. AR at 285. Plaintiff's thought processes were concrete but linear and were goal directed. Id. Plaintiff was able to state four digits forward and backward and was able to do serial 7's correctly. Id. When asked how much change would be left from one dollar if three oranges were bought at fifteen cents each, plaintiff correctly answered fifty-five cents. Id. Plaintiff could understand and explain proverbs. AR at 286. Dr. Gessesse concluded that plaintiff could regularly perform tasks and attend work. Id. Plaintiff's prognosis was fair. Id.
A GAF score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning . . ., but generally functioning pretty well, has some meaningful interpersonal relationships." American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Edition, Text Revision).
3. The State Agency Physician, Dr. S. Khan M.D.
The ALJ also relied upon the opinion of the State agency physician S. Khan in the determination that plaintiff's mental impairment is not severe. AR at 22. Dr. Khan reviewed plaintiff's medical records and completed a "Psychiatric Review Technique" for plaintiff on June 30, 2009. AR at 301, 313. Dr. Khan noted that plaintiff suffered from adjustive disorder with depressed mood, though that impairment was not severe. AR at 301, 304, 311. Moreover, Dr. Kahn concluded that plaintiff would experience no functional limitations on activities of daily living, maintaining social functioning, maintaining concentration, persistence, or pace, and would not suffer repeated episodes of decompensation of an extended duration. AR at 309. According to Dr. Khan, plaintiff's medical records exhibited no demonstrable impairment in memory or attentional processes. AR at 313. Dr. Khan also noted that plaintiff was only partially credible concerning her ability to work; he concluded that plaintiff's mental impairment would not prevent her from performing "one-two step repetitive tasks with adequate pace and persistence" and would not have an issue "adapt[ing] and relat[ing] to coworkers and supervisors [or] deal[ing] with changes in the routine public work setting." AR at 311.
4. Plaintiff's Statements in Her Application for Benefits Relevant to Her Mental Impairment
In addition to Dr. Gessesse's opinion that plaintiff is able to work, the ALJ relied upon plaintiff's own statements in her application for benefits. AR at 23. In the application, plaintiff stated that she was able to spend time with people daily, use public transportation, did not need to be reminded to go places, and can handle her own finances though that ability has been somewhat diminished. AR at 137-38.
5. Dr. Gene Berg, Ph.D
The ALJ also considered the testimony of Dr. Gene Berg, Ph.D in his assessment of plaintiff's mental impairment. AR at 23. Dr. Berg conducted a psychological evaluation of plaintiff at her counsel's request on October 29, 2010. Dr. Berg found that, although plaintiff was alert and did not appear disorganized, she did have trouble responding to questions and had difficulty maintaining her train of thought. AR at 355. Dr. Berg noted a connection between a possible depressive disorder and plaintiff's previous heart attacks and stroke. AR at 356. During the evaluation, plaintiff could respond appropriately to hypothetical judgment scenarios but could not perform serial 3's or 7's and complained of difficulties with attention and concentration. Id. When given a memory task, she was unable to recall three things after a short period of time. Id. Dr. Berg diagnosed plaintiff with a non-specific cognitive disorder and a non-specific depressive disorder, assigning plaintiff a GAF score of 50. AR at 357. In conclusion, Dr. Berg found that plaintiff's psychological impairment would preclude work. AR at 358.
A GAF score of 41-50 indicates "serious symptoms . . . [or] any serious impairment in social, occupational, or school functioning," such as inability to keep a job. American Psychological Association, Diagnostic and Statistical Manual of Mental Disorders 34 (4th Edition, Text Revision).
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In evaluating medical opinions, the regulations distinguish among three types of physicians: (1) treating physicians; (2) examining physicians; and (3) non-examining physicians. 20 C.F.R. §§ 404.1528(c),(e), 416.927(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended). In this case, plaintiff has not been treated by a physician for her mental health impairment; Drs. Gessesse and Berg each conducted examinations of plaintiff and therefore should be considered examining physicians. Dr. Khan reviewed plaintiff's medical file when making his determination and never examined plaintiff personally. See AR at 313. Therefore, Dr. Khan was a non-examining physician. The opinions of Drs. Gessesse and Berg are thus entitled to more weight than Dr. Khan's. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (holding that the opinion of an examining physician is entitled to greater weight than that of a non-examining physician). "If the . . . examining physician's opinion is contradicted by another doctor, as here, the ALJ may reject that opinion only if he provides specific and legitimate reasons supported by substantial evidence in the record. Combs v. Astrue, 387 F. App'x 706, 708 (9th Cir. 2010) (citing Lester, 81 F.3d 830-31).
Here, Dr. Berg's conclusions were not rejected outright solely because they were sought by plaintiff in connection with her appeal for benefits. AR at 23. Instead, the ALJ noted that Dr. Berg's conclusions were entitled to "due consideration," before ultimately providing specific and legitimate reasons to discount Dr. Berg's conclusions. AR at 23-24.
First, the ALJ noted that there were many aspects of Dr. Berg's opinion that contradicted other medical evidence, including Dr. Gessesse and Dr. Khan's evaluations of plaintiff. AR at 23. The ALJ listed all of the evidence he considered in finding that plaintiff did not suffer from a severe mental impairment. See AR at 22-24. Of particular importance was plaintiff's inconsistent performance during evaluative testing by plaintiff done by Drs. Gessesse and Berg. Plaintiff completed the task of serial 7's without issue when evaluated by Dr. Gessesse and said that her concentration and memory were "okay," but was unable to count serial 3's and 7's when asked by Dr. Berg and complained of a loss in concentration. AR at 285, 356.
Second, the ALJ noted that Dr. Berg's conclusion that plaintiff is unable to work contradicts the statements plaintiff made to Dr. Gessesse as well as the record of daily activities in her application for benefits to the Social Security Administration. AR at 23. For example, when interviewed by Dr. Gessesse, plaintiff was able to correctly solve a math problem involving leftover change. AR at 285. On her application for benefits, plaintiff noted that she did all of her own banking, including paying bills, counting change, handling a savings account, and using a checkbook, though she noted some difficulty writing checks and balancing her checkbook. AR at 137-38. When evaluated by Dr. Berg, however, he noted that plaintiff would be limited in her ability to carry out simple one or two-step instructions or perform activities within schedule. AR at 363
Finally, the ALJ gave less weight to Dr. Berg's opinion because his evaluation of plaintiff was undertaken at the behest of plaintiff's counsel in connection with her claim for SSI and not for purposes of treatment. AR at 23, 355. Although an ALJ may consider the source and context of a doctor's opinion, he may not dismiss it solely because it was solicited by counsel. Lester, 81 F.3d at 832; Saelee v. Chater, 94 F.3d 520, 522-23 (9th Cir. 1996) (per curiam). "Evidence of the circumstances under which the report was obtained and its consistency with other records, reports, or findings [can] form a legitimate basis for evaluating the reliability of the report." Reddick v. Chater, 157 F.3d 715, 726 (9th Cir. 1998). Given the disparity of plaintiff's performance in the psychological evaluations done by Drs. Gessesse and Berg, and because the opinions of Drs. Gessesse and Khan were consistent with other evidence in the record, it was permissible for the ALJ to discount Dr. Berg's testimony on the basis that it was sought in connection with a disability claim.
Even if the ALJ erred in rejecting Dr. Berg's opinion in part because the consultative exam was conducted at the behest of plaintiff's counsel, because the ALJ cited other specific, legitimate reasons for rejecting that testimony there is no error. See Morgan v. Comm'r Soc. Sec. Admin., 169 F.3d 595, 601-02 (9th Cir.1999) (noting that if an ALJ relies upon an impermissible reason to discount a doctor's credibility, there is no error if he also relies upon other, permissible evidence to do so); see also Hammond v. Astrue, 2008 WL 276360, at *24 (D. Ariz. Jan. 29, 2008).
The ALJ's decision to discount Dr. Berg's opinion was permissible and supported by the record. Though plaintiff's briefing devotes much time addressing the findings of Dr. Berg, she completely disregards the findings of Drs. Gessesse and Khan to the contrary. See Pl. Mem. at 5-8 (discussing Dr. Berg's opinion but not Drs. Gessesse or Khan). Plaintiff has at best made an argument that the record supports more than one rational interpretation. Such an argument is insufficient to show legal error because "[i]f the record would support more than one rational interpretation, [the court] defer[s] to the ALJ's decision." Bayliss v. Barnhart, 427 F.3d at 1214 n. 1 (9th Cir. 2005) (citation omitted). Accordingly, the ALJ did not err when he determined that plaintiff's mental impairment is not severe. B. It Was Unnecessary at Step Three for the ALJ to Consult a Mental Health Expert
Plaintiff argues that because the ALJ erred in determining that plaintiff's mental impairment is not severe at step two as discussed above, his failure to consult a mental health expert to determine if plaintiff met or equaled a listing at step three was in error. Pl. Mem. at 9-10. The court disagrees.
As discussed above, the ALJ did not err at step two when he found that plaintiff's mental impairment was not severe. If an impairment is found to be non-severe at step two, that impairment cannot form the basis for a claim of disability. See 20 C.F.R. § 404.1520 ("If you do not have a severe medically determinable physical or mental impairment that meets the duration requirement . . . we will find that you are not disabled."); see also Sutton v. Colvin, 2013 WL 1290802, at *8 (E.D. Wash. Mar. 27, 2013) ("because the ALJ properly found plaintiff's depression is not severe at step two, he could not have erred at step three regarding equivalency of a non-severe impairment."). Thus, an ALJ must only analyze an impairment to determine if it meets or exceeds a listing at step three if that impairment is found to be severe at step two. It was therefore unnecessary for the ALJ to consult a mental health expert at step three, because plaintiff's mental health impairment was found to be non-severe at step two. Accordingly, the ALJ did not err at step three.
V.
CONCLUSION
IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice.
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SHERI PYM
United States Magistrate Judge