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Thomas v. Colvin

United States District Court, E.D. California

April 21, 2015

CARONLY W. COLVIN, Acting Commissioner Of Social Security, Defendant.


ALLISON CLAIRE, Magistrate Judge.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("the Act"), 42 U.S.C. §§ 1381-1383f. SSI is paid to financially needy disabled persons. 42 U.S.C. § 1382(a); Washington State Dept. of Social and Health Services v. Guardianship Estate of Keffeler, 537 U.S. 371, 375 (2003) ("Title XVI of the Act, § 1381 et seq., is the Supplemental Security Income (SSI) scheme of benefits for aged, blind, or disabled individuals, including children, whose income and assets fall below specified levels...").


Plaintiff applied for SSI on January 24, 2012, alleging a disability onset date of September 9, 2011. Administrative Record ("AR") 12.[1] Plaintiff's application was disapproved initially, AR 96-101 (Exh. 1B), and on reconsideration, AR 102-06 (Exh. 2B). Plaintiff then requested a hearing before an administrative law judge ("ALJ"), to challenge the disapproval. AR 109-10 (Exh. 4B). On June 27, 2014, ALJ L. Kalei Fong presided over the requested hearing. AR 27-67 (transcript of hearing). Plaintiff, who was represented by counsel, appeared and testified at the hearing. AR 29-54, 54-55. A vocational expert also appeared and testified at the hearing. AR 54, 55-65.

In a decision dated September 16, 2013, the ALJ issued an unfavorable decision, finding plaintiff "not disabled" under Section 1614(a)(3)(A) of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 12-25 (decision and exhibit list). Plaintiff asked the Appeals Council ("Council") to review the ALJ's decision, and to consider additional evidence. AR 7 & 8. On March 6, 2014, the Council accepted "[t]reatment records from Paul Romea, M.D., for the period from April 3, 2014 to October 4, 2013" as additional evidence, and made it a part of the administrative record. AR 5. However, on the same date, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-3.

Plaintiff filed this action on May 5, 2014. ECF No. 1; see 42 U.S.C. § 1383c(3). In due course, plaintiff was granted leave to proceed in forma pauperis, the parties consented to the jurisdiction of the magistrate judge, the Commissioner filed the administrative record, and the parties filed and fully briefed the pending cross-motions for summary judgment. ECF Nos. 4, 7, 10, 13, 19, 25.

Plaintiff seeks reversal and remand for calculation and payment of benefits, or in the alternative, remand to order a consultative examination of the plaintiff regarding her claims of depression and anxiety. Plaintiff argues that the ALJ erred: (1) by finding no evidence of severe, medically determinable mental impairments, namely, depression and anxiety, despite diagnoses of those impairments by a nurse-practitioner and a licensed clinical social worker ("LCSW"), who were working as a team with medical doctors; (2) by failing to augment the administrative record with a mental health consultative exam if he found the diagnoses by the nurse-practitioner and the LCSW to be inadequate; and (3) by rejecting the opinions of plaintiff's treating doctors regarding plaintiff's pain arising from her rheumatoid arthritis, without providing "clear and convincing" reasons, or even "specific and legitimate" reasons supported by substantial evidence.

The Commissioner argues that the ALJ: (1) properly found that there was no record of a diagnosis of a medically determinable mental impairment by an acceptable medical source, and no record of treatment or hospitalization for it; (2) had no duty to order a mental status consultative exam; and (3) properly rejected the opinion of Dr. Mann, one of plaintiff's treating doctors.

For the reasons that follow, the court will deny plaintiff's motion for summary judgment, and will grant the Commissioner's cross-motion for summary judgment.


Plaintiff was born on September 10, 1967, and was 43 years old on the alleged onset date of her disabilities, September 9, 2011. AR 12 & 19. Plaintiff's education ended at the eleventh grade, she has no high school diploma or General Equivalency Diploma ("GED"), and can communicate in English. AR 19 & 29. Plaintiff reports a brief work history, from 2006 to October 25, 2009, in which she worked as a recycler, a telemarketer and a caregiver. AR 244-51.


The Commissioner's decision that a claimant is not disabled will be upheld "if it is supported by substantial evidence and if the Commissioner applied the correct legal standards." Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive....'" Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).[2]

Substantial evidence is "more than a mere scintilla, " but "may be less than a preponderance." Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). "It means such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). "While inferences from the record can constitute substantial evidence, only those reasonably drawn from the record' will suffice." Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir.1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) ("The court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.").

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) ("It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss").

The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was inconsequential to the ultimate nondisability determination.'" Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Comm'r, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).


Supplemental Security Income ("SSI") is available under Title XVI of the Social Security Act (the "Act") for every income-eligible individual who is "disabled." 42 U.S.C. § 1381a; Department of HHS v. Chater, 163 F.3d 1129, 1133 (9th Cir. 1998) ("The Social Security Act directs the Commissioner of the Social Security Administration to provide benefits to all individuals who meet the eligibility criteria"). Plaintiff is "disabled" if she is "unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment....'" Gutierrez v. Commissioner, 740 F.3d 519, 523 (9th Cir. 2014) (quoting 42 U.S.C. § 1382c(a)(3)(A)); Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (same).[3]

The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to SSI benefits. 20 C.F.R. § 416.920(a)-(g); Barnhart v. Thomas, 540 U.S. 20, 25 & 25 n.1 (2003) (setting forth the "five-step sequential evaluation process to determine disability" under Title XVI, as well as Title II). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.

20 C.F.R. § 416.920(a)(4)(i), (b).

Step two: Does the claimant have a "severe" impairment? If so, proceed to step three. If not, the claimant is not disabled.

Id., § 416.920(a)(4)(ii), (c).

Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the claimant is disabled. If not, proceed to step four.

Id., § 416.920(a)(4)(iii), (d).

Step four: Does the claimant's residual functional capacity make him capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.

Id., § 416.920(a)(4)(iv), (e) & (f).

Step five: Does the claimant have the residual functional capacity perform any other work? If so, the claimant is not disabled. ...

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