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Gnesa v. Commissioner of Social Security

United States District Court, E.D. California

March 31, 2014

ROBIN GNESA, Plaintiff,


CRAIG M. KELLISON, Magistrate Judge.

Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 20).


Plaintiff applied for social security benefits on February 2, 2010. In the application, plaintiff claims that disability began on May 30, 2006. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on August 11, 2011, before Administrative Law Judge ("ALJ") Carol L. Buck. In a September 15, 2011, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): bipolar disorder, depression type, panic attack disorder, posttraumatic stress disorder, alcohol abuse disorder, substance abuse disorder in remission, status post left ankle fracture, and obesity;
2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. The claimant has the following residual functional capacity: the claimant is capable of light work; she can lift/carry 20 pounds occasionally and 10 pounds frequently; she can stand/walk for 2 to 4 hours in an 8-hour day; she can sit for 6 hours in an 8-hour day; she can never climb ladders, ropes, or scaffolds; she can frequently stoop, balance, kneel, crouch, or crawl; the claimant is limited to unskilled work with limited public contact; she cannot perform tandem work, in that she cannot work with another where she is required to work together with another to process the work; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

After the Appeals Council declined review on July 9, 2012, this appeal followed.


The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel , 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater , 94 F.3d 520, 521 (9th Cir. 1996). It is "... such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler , 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler , 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen , 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen , 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart , 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen , 856 F.2d 1335, 1338 (9th Cir. 1988).


In her motion for summary judgment, plaintiff argues: (1) the ALJ's vocational finding is not supported by substantial evidence as to the number of representative jobs; (2) the ALJ erred in giving lay witness evidence from plaintiff's boyfriend, Robert Myers; and (3) the ALJ erred in evaluating the medical opinion evidence as to plaintiff's mental limitations.

A. Evaluation of Medical Opinions

The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater , 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater , 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen , 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan , 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester , 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala , 53 F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. See Lester , 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen , 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester , 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel , 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes , 881 F.2d at 751.

Plaintiff argues that the ALJ erred with respect to evaluation of the medical opinions relating to limitations caused by her mental impairments. Specifically, plaintiff argues that the ALJ "never assigns weight to... treating evidence..." from Sacramento County Mental Health. Plaintiff also argues that the ALJ erred by failing to cite sufficient reasons for rejecting the opinion of Dr. Canty, an agency examining psychiatrist, in favor of the opinion of a non-examining source, Dr. Meenkashi.

1. Sacramento County Mental Health

Plaintiff argues that the ALJ "violated the treating physician rule" by not discussing records from Sacrament County Mental Health, a treating source. Plaintiff, however, has not identified medical opinions regarding plaintiff's ability to function offered by any doctor with Sacramento County Mental Health. The ALJ cannot have erred by failing to discuss an opinion which does not exist.

2. Drs. Canty and Meenkashi

As to Dr. Canty, the ALJ stated:

On June 15, 2010, consultative psychiatrist, Dr. Timothy Canty, examined the claimant for complaints of bipolar disorder, panic disorder, and alcohol abuse disorder....
* * *
Dr. Canty's [mental status examination] revealed the claimant was well groomed and she occasionally smiled. Her speech was clear and she was cooperative. Her thought content was clear, logical, and goal-directed. She denied psychosis, suicidal or homicidal ideation. She described her typical mood as, "I feel like I've lost my spark." Her current mood is flat. During the interview she appeared to be in a fairly even mood with a full affect. Intellectual functioning revealed she was oriented to day, date, month, and year. She had good immediate and recent recall and her fund of knowledge was good. She performed calculations correctly and was able to concentrate in order to complete a drawing exercise. (Ex. 7F/3).
Dr. Canty diagnosed the claimant with bipolar II disorder, anxiety disorder, NOS, versus panic disorder, and intermittent alcohol abuse. He assessed her GAF as variable between 50 and 60. Dr. Canty opined that functionally, "her greatest difficulty stems from anxiety. It is anxiety that leads her to stop attending work. Her anxiety restricts many of her activities and would make consistent work attendance and productivity unrealistic. She may be able to interact appropriately with coworkers and supervisors for brief periods but she would not be able to sustain this for more than a few weeks at a time. Even when at work, I suspect her anxiety would significantly degrade her productivity." (Ex. 7F/5). The undersigned notes that Dr. Canty's finding that the claimant's anxiety would preclude all work is unsupported by the treating records which, as discussed above, show the claimant is psychologically stable while compliant with her medications and that when she has had exacerbations of her mental status they have been due to her intermittent binge-type alcohol abuse and/or recreational use of Soma, and after re-establishment of medications she stabilized. The undersigned therefore rejects Dr. Canty's opinion and assigns it little weight.

As to Dr. Meenkashi, the ALJ stated:

On July 9, 2010, Disability Determination Service reviewing physician Dr. V. Meenkashi, M.D., reviewed the medical evidence of record and prepared a Mental Residual Functional Capacity Assessment. He opined the claimant was not significantly limited in her ability to remember locations and work-like procedures, understand and remember very short and simple instructions. She was moderately limited in her ability to understand and remember detailed instructions. Regarding sustained concentration and persistence, he opined her ability to carry out very short and simple instructions was not significantly impaired as was her ability to maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. She is not significantly limited in her ability to sustain an ordinary routine without special supervision. She was significantly limited in her ability to understand, remember, and carry out detailed instructions and in her ability to work in coordination or proximity to others without being distracted by them. She can make simple work related decisions. She was not significantly limited in her ability to complete a normal workday and workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. She was moderately limited in her ability to interact with the public and respond appropriately to changes in the work setting. Dr. Meenkashi opined the claimant could perform simple tasks with limited public contact. (Ex. 9F). This opinion is well supported by the medical evidence and consistent with other substantial evidence in the record. Accordingly, the undersigned assigns great weight to this opinion.

Plaintiff argues that the ALJ erred by accepting the opinion of a non-examining source - Dr. Meenkashi - over the opinion of an examining source - Dr. Canty. As indicated above, Dr. Canty's opinion can only be rejected for specific and legitimate reasons, which the court finds the ALJ has adequately set forth. In particular, the ALJ noted the inconsistency between Dr. Canty's extreme opinion that anxiety would preclude all work and treating source records which showed that plaintiff's condition improved when she was compliant with medications. Given this inconsistency, the ALJ was entitled to rely on Dr. Meenkashi's opinion.

B. Lay Witness Evidence

In determining whether a claimant is disabled, an ALJ generally must consider lay witness testimony concerning a claimant's ability to work. See Dodrill v. Shalala , 12 F.3d 915, 919 (9th Cir. 1993); 20 C.F.R. §§ 404.1513(d)(4) & (e), 416.913(d)(4) & (e). Indeed, "lay testimony as to a claimant's symptoms or how an impairment affects ability to work is competent evidence... and therefore cannot be disregarded without comment." See Nguyen v. Chater , 100 F.3d 1462, 1467 (9th Cir. 1996). Consequently, "[i]f the ALJ wishes to discount the testimony of lay witnesses, he must give reasons that are germane to each witness." Dodrill , 12 F.3d at 919. The ALJ may cite same reasons for rejecting plaintiff's statements to reject third-party statements where the statements are similar. See Valentine v. Commissioner Soc. Sec. Admin. , 574 F.3d 685, 694 (9th Cir. 2009) (approving rejection of a third-party family member's testimony, which was similar to the claimant's, for the same reasons given for rejection of the claimant's complaints).

As to Mr. Myers, the ALJ stated:

The claimant's long time boyfriend, Robert Myers, testified on behalf of the claimant. He stated he has known the claimant for twelve years. They have cohabitated since 2004. The witness is employed by the Employment Development Department as an employment program representative in a job service office, he testified that he observed that during the last time she was employed in 2006, she would not get up to go to work and this happened at least once per week as far as he could recollect. Regarding her manic episodes of bipolar disorder, he corroborated she stays up for three days at a time and will wake him to share ideas with him or tell him about something she saw on television. He testified that during this phase, she accomplishes chores but the quality of her work is lacking. He stated she will put dishes in the dishwasher but fail to clean up the counters. She talks on the phone a lot. In her depressed state, he observes that she isolates herself in the bedroom and sleeps and she fails to bathe. During this time, he must perform the cooking and cleaning. He reported that he has lent her the car to pick him up from work and she forgets to pick him up. She forgets to put laundry in the dryer or forgets to fold and put away the laundry.

The ALJ then discussed plaintiff's testimony, finding is not credible - a finding plaintiff does not challenge. The ALJ then continued her discussion of Mr. Myers' statements as follows:

... His testimony and statement reiterate the statements from the claimant and support the claimant's allegations. While Mr. Myers' statements are sincere, they reflect his opinion and are inconsistent with the medical evidence and medical opinion in this case. Thus, the undersigned assigns this opinion little weight.

The court finds no error in the ALJ's analysis of Mr. Myers' testimony. It is clear from the hearing decision that the ALJ rejected his statements for the same reasons cited for rejecting plaintiff's own credibility, a finding plaintiff does not challenge. The ALJ was entitled to discount Mr. Myers' testimony for the same reasons given for rejecting plaintiff's statements. See id.

C. Vocational Finding

The ALJ made the following vocational finding:

If the claimant had the residual functional capacity to perform the full range of light work, a finding of "not disabled" would be directed by Medical-Vocational Rule 202.21, however, the claimant's ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations. To determine the extent to which these limitations erode the unskilled light occupational base, the Administrative Law Judge asked the vocational expert whether jobs exist in the national economy for an individual with the claimant's age, education, work experience, and residual functional capacity. The vocational expert testified that given all oft these factors the individual would be able to perform the requirements of representative occupations such as an inspector tester (nut sorter) (DOT #521.687-086) which is a sedentary exertional level semiskilled (SVP 2) job of which there are 1, 400 jobs available in California and 9, 000 jobs available nationally; an assembler (optical goods) (DOT #713.687-018) which is a sedentary exertional level semiskilled (SVP 2) job of which there are 40 jobs available locally, 1, 500 jobs available in California, and 8, 000 jobs available nationally.

Plaintiff argues:

The vocational expert specifically testified job numbers for the two jobs he adduced and the decision relied on the denial were "negligible, " and "small negligible" within "the four county region [of Sacramento], " mentioning the number 40 for the second job. (citation to transcript omitted). The burden at step five of showing jobs exist which a claimant can do is on the Commissioner. While interpretation of the relevant sentence in the Social Security Act's underlying disability definition... has always been fraught and imprecise, it is now clear both that insignificant regional numbers cannot be made up for with significant national numbers (which in any case the VE did not adduce here), and that the VE testimony here cannot support a denial. (citation omitted).

The issue is whether representative jobs exist in "significant numbers" in either the local economy or the national economy. see 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1560(c); see also Beltran v. Astrue , 676 F.3d 1203, 1206-07 (9th Cir. 2012). The Ninth Circuit has never assigned a minimum number which constitutes "significant numbers." See Beltran , 676 F.3d 1206. Plaintiff has cited no cases supporting the conclusion that the numbers of representative jobs identified in this case - 9, 000 and 8, 000 - are not significant. Indeed, in Meanel v. Apfel , 172 F.3d 1111, 1115 (9th Cir. 1999), the court concluded that 1, 000 to 1, 500 jobs constituted significant numbers. Here, the court finds that the numbers identified by the vocational expert are significant and that the ALJ's vocational finding is supported by substantial evidence.


Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY


1. Plaintiff's motion for summary judgment (Doc. 18) is denied;

2. Defendant's cross-motion for summary judgment (Doc. 20) is granted; and

3. The Clerk of the Court is directed to enter judgment and close this file.

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