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Walker v. Colvin

United States District Court, N.D. California

March 13, 2017

CAROLYN WALKER, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT RE: DKT. NOS. 15, 19

          WILLIAM H. ORRICK United States District Judge

         INTRODUCTION

         Plaintiff Carolyn Walker seeks benefits based on her alleged disabilities of depression and rheumatoid arthritis. In finding that she is not disabled, the ALJ made some mistakes that I discuss in this Order. But the mistakes do not amount to legal error that is consequential to the ultimate non-disability determination. Substantial evidence supports the way the ALJ weighed the medical and non-medical opinions. As a result, I DENY plaintiff's motion for summary judgment and GRANT the Commissioner's cross-motion for summary judgment.

         BACKGROUND

         I. PROCEDURAL HISTORY

         On November 15, 2011, plaintiff Carolyn Walker filed an application for supplemental security income (“SSI”), alleging disability starting on November 27, 1996.[1] The application was denied initially on June 14, 2012, and upon reconsideration on January 18, 2013. Walker filed a request for a hearing on January 29, 2013, and she appeared and testified at a hearing before an Administrative Law Judge (ALJ) on April 24, 2014. AR 28. In an opinion dated May 5, 2014, the ALJ denied Walker's claim for benefits, finding that she retained the Residual Functional Capacity (“RFC”) to perform light work with limitations. AR 34. Walker appealed that denial to the Appeals Council on May 28, 2014, and the Appeals Council denied review on October 30, 2015. Walker filed this case on November 24, 2015, and now moves for summary judgment. The Commissioner opposes her motion and cross-moves for summary judgment.

         II. FACTUAL BACKGROUND

         A. Medical Evidence

         On November 2, 2009, examining state agency physician Dr. Farah Rana completed an internal medicine evaluation of Walker. AR 455-59. At the examination, Walker reported having shortness of breath, left knee pain, and a lump in her left breast. AR 455. She denied having any other chronic medical conditions or any history of depression. Id. She also stated that she was not taking any pain medications. Id. Rana found that Walker had some shortness of breath, probably due to her smoking one pack of cigarettes a day, and that she had a “high probability of chronic obstructive pulmonary disease.” AR 457. She also found that Walker has left knee pain, possibly indicating mild arthritis. Id. Rana concluded that Walker could perform the physical requirements of “medium work” and stand and walk for six hours in an eight-hour work day, carry 25 pounds frequently and 50 pounds occasionally, and push and pull devices up to 50 pounds. Id. Walker would have some difficulty bending, climbing and crouching due to her left knee pain, but would not need an assistive device. Id.

         Rana examined Walker for a second time on January 26, 2011. AR 476-78. This time Walker's chief complaints were shortness of breath, hepatitis C, and rheumatoid arthritis. AR 476. Walker reported being diagnosed with rheumatoid arthritis in October 2010, after she was hospitalized with pneumonia. Id. She stated that she was experiencing painful swelling in her hands and right knee, and that the pain sometimes traveled to her elbows and knees. Id. She was taking Motrin and Aleve for her joint aches. Id. Walker reported that she was diagnosed with hepatitis C and that she used to use cocaine but had been clean for a month. AR 477. She had also been trying to cut back on smoking to alleviate her shortness of breath, which limited her to very light chores around the house. AR 476. Rana found that Walker had mild tenderness in her interphalangeal joints but no other swelling or inflammation in her hands and other joints. AR 477. Rana also found that Walker had shortness of breath and “probable chronic obstructive pulmonary disease.” AR 478. Rana concluded that Walker could perform “light work, ” stand and walk for six hours in an eight hour work day with breaks, carry 10 pounds frequently and 20 pounds occasionally, push and pull devices up to 20 pounds, and had no postural limitations. Id.

         On February 8, 2011, non-examining state agency consultant Dr. Beverley Morgan issued a Disability Determination Explanation based on her review of Walker's medical records. AR 72-80. She found that Walker was only partially credible in light of the fact that there were “no significant PE findings” to support her claims of rheumatoid arthritis, pain, and swelling. AR 77. In regards to Walker's RFC, Morgan found that she could lift/carry 10 pounds frequently and 20 pounds occasionally, stand/walk for six hours in an eight hour work day, sit for six hours, and that she had no postural, manipulative, communicative, or environmental limitations. AR 77-78. Morgan concluded that Walker was not disabled and could perform the full range of light work. AR 79-80.

         On October 2, 2011, Walker's 23 year old son was fatally shot while attending a party in San Leandro. AR 635. On January 13, 2012, Dr. Ede Thomsen, a psychological examiner, conducted a comprehensive evaluation of Walker. AR 634-46. Thomsen conducted a clinical interview and tests including but not limited to: Repeatable Battery for the Assessment of Neuropsychological Status (RBANS), Annotated Mini Mental State Examination (AMMSE), Barona Estimate, Beck Depression Inventory, and Millon Clinical Multiaxial Inventory-III (MCMI-III). AR 636. The Beck Depression Inventory results indicated that Walker was experiencing minimal depression. AR 638. However, Thomsen also found that Walker had alexithymia or “a deficiency in the ability to identify and express emotions.” Id. Thomsen stated that the alexithymia may have caused Walker to “under endorse symptoms on [the Beck Depression Inventory]” and that her depression level is likely higher than the Inventory indicated. Id. Walker's MCMI-III results indicated severe depression. Id. Thomsen diagnosed Walker with Major Depressive Disorder, Bereavement, and Cocaine Dependence in Early Full Remission. AR 642-43. She also found that Walker had mild to severe limitations in long-term memory, language, judgment/insight, executive functioning, and social functioning. Id. Additionally, Walker had moderate to marked limitations in her ability to interact with others and perform in a normal work environment. AR 645-46. Thomsen noted that Walker's social and cognitive inabilities “seem to be the result of her psychiatric symptoms” and that her “social isolation and alienation would make working effectively with others difficult.” AR 642.

         On April 17, 2012, Dr. Jenner Brimmer, a state agency examining physician, conducted a comprehensive internal medicine evaluation of Walker. AR 648-53. Walker's chief complaint during the exam was rheumatoid arthritis. AR 648. She reported pain and swelling in her joints, especially her hands and knees, which has limited her to standing 20 minutes, walking two blocks, and lifting 15 pounds. Id. Walker stated that she can cook and do household chores “as long as she takes her medications, ” and that she was currently taking Prednizone and Ibuprofen. AR 648-49. Brimmer did not find “any significant redness, deformities, swelling or crepitus of the joints of [Walker's] hands” or knees, but noted that “[her] left knee has some mild crepitus.” AR 651. She found that Walker had rheumatoid illness but it was “unclear if this is rheumatoid arthritis or PAN, ” and also noted a “[h]istory of hepatitis C virus infection.” Id. Brimmer concluded that Walker could stand and walk for six hours; lift 20 pounds occasionally and 10 pounds frequently; perform postural activities such as climbing and stooping occasionally; and manipulate without limitations. AR 651-52. She also noted that Walker is immune-suppressed on Prednisone and “would need to avoid infectious sources.” AR 652.

         On April 30, 2012, non-examining state agency consultant Dr. E. L. Gilpeer issued a Disability Determination Explanation based on Walker's medical records. AR 82-94. Gilpeer found that Walker could lift/carry 10 pounds frequently and 20 pounds occasionally, stand/walk for six hours in an eight hour work day, sit for six hours, and climb, balance, stoop, kneel, and crouch occasionally. AR 90-91. Gilpeer concluded that Walker was not disabled and could perform the full range of work. AR 92-93.

         On May 20, 2012, Dr. Kyle Van Gaasbeek, a state agency psychiatric examiner, completed a comprehensive psychiatric evaluation of Walker. AR 654-58. Van Gaasbeek found Walker to be a “reliable historian.” AR 654. At the consultation, Walker stated that she had been suffering from rheumatoid arthritis for the past two years but that Prednisone and Ibuprofen had been helping her symptoms. Id. She reported that she had been depressed for the last six months due to the passing of her son, but she had not received treatment for her depression. Id. She also stated that she stopped using cocaine about two years prior and relied on her daughter for most household chores. AR 654-55. Van Gaasbeek diagnosed Walker with adjustment disorder with depressed mood, cocaine dependence in remission, rheumatoid arthritis, hepatitis C, chronic obstructive pulmonary disease, and bereavement. AR 656. He concluded that Walker's depression was treatable and that she was likely to “fully recover, even without treatment.” AR 656-57. In regard to functionality, Van Gaasbeek found that Walker was unimpaired in almost every category except her “ability to complete a normal workday without interruptions from a psychiatric condition is mildly impaired.” AR 657. He also found that Walker had “low-average” intellectual functioning, “limited” fund of knowledge and abstract thinking skills, and “reduced” calculation skills. AR 656.

         On December 18, 2012, Rana completed another internal medicine evaluation of Walker. AR 668-71. Walker reported that her rheumatoid arthritis was causing her significant joint pain in her hands, knees, and feet and that she was taking Aleve for the pain. AR 668. She stated she had not used cocaine for almost a year and denied having hepatitis B or C or excessive shortness of breath. Id. She said that her joint pain limited her to doing minimal chores around the house. Id. Rana found mild tenderness in Walker's interphalangeal joints and both her knees, and limited range of motion in her left knee. AR 669. Rana noted that Walker had a mild limp. Id. Rana concluded that Walker could perform light work, stand and walk for 6 hours with breaks in an 8 hour work day, sit for six hours with breaks, carry 25 pounds frequently and 50 pounds occasionally, push and pull devices up to 50 pounds, and stoop, bend, kneel, crouch, and climb on a frequent basis. AR 670.

         Morgan, a non-examining state agency consultant, issued her second Disability Determination Explanation on January 10, 2013. AR 96-111. She found that Walker had the RFC to lift/carry 10 pounds frequently and 20 pounds occasionally, stand/walk for six hours in an eight hour work day, sit for six hours, and climb, balance, stoop, kneel, and crouch occasionally. AR 107-8. Morgan concluded that Walker was not disabled and could perform the full range of light work. AR 110-11.[2]

         The medical record also contains treatment notes from Highland Hospital from November 2009 to August 2011, and labs and progress reports from June 2012 to October 2013. AR 487-555, 690-700. Most of the notes from November 2009 to August 2011 found that Walker did not have significant joint swelling or arthritis. AR 493, 508 (finding “no swelling\E\tenderness in the extremities, no edema”); 503 (finding “no joint swelling or pain, full range of motion, no [] swelling, largely unremarkable”); 532 (finding that extremities were “[w]arm and well perfused” and there was “no arthritis”). Some treatment notes found mild swelling. AR 500 (finding that right knee was “diffusely tender” with “mild effusion” and “[s]lightly decreased [range of motion]”); 505 (finding “no obvious swelling” in hands but “decreased [range of motion in] fingers and generalized tenderness”). The labs and progress reports from June 2012 to October 2013 found either mild swelling or no swelling. AR 699 (finding “synovitis” as well as “mild effusion” in the right knee and ankle); 700 (noting “[n]o joint swelling, edema, [or] tenderness elicited”).

         On February 3, 2013, Walker's treating nurse practitioner Kelly Manashil (“Manashil”) provided a medical opinion. AR 681-83. Manashil had been treating Walker at Highland Hospital since March 2011. AR 681, 683. Walker complained of pain and stiffness in her hands, elbow, knee, and ankle. Id. Based on an “objective exam of [Walker's] joints, ” Manashil found that Walker had bilateral hand pain and swelling, as well as swelling in her right knee and ankle. AR 681-82. As a result, she concluded that Walker could lift and carry less than10 pounds frequently and occasionally, and stand, walk, and sit less than two hours in an eight hour work day. Id. Manashil found that Walker can sit for 30 minutes and stand for 10 minutes before changing positions. Id. She could perform postural activities such as twisting, crouching, and climbing occasionally. AR 682. Additionally, Manashil found that Walker had difficulty manipulating objects “[d]ue to pain and swelling in both hands.” Id. Manashil also noted that Walker may be sensitive to certain environmental conditions due to “medication that reduces immunity, ” and that she would likely miss work more than three times a month. AR 683. Manashil concluded that Walker's “pain and/or medications” would result in “[m]ild” limitations on her ability to function on a typical work day. Id.

         B. ALJ Hearing and Walker's Testimony

         At the hearing, Walker's attorney objected to the inclusion in the record of the examination records and opinions of Rana, based on a Social Security regulation allowing claimants to object to having an examination conducted by someone who had previously issued a report resulting in an adverse disability determination. AR 51-53. The ALJ explained that in his opinion, under the regulations, “the burden is on the claimant to raise an objection before the examination.” AR 52. Walker's attorney responded that there was no way for Walker to know beforehand who the examiner was going to be, and therefore the regulation should allow for post-examination objections. Id. The ALJ concluded that he “[didn't] see any reason to exclude [the] reports” absent a showing that Rana was “somehow prejudiced” against Walker. AR 53. Walker's attorney admitted that he did not contend that Rana had an adverse interest to Walker or was biased in any way. Id.

         During the ALJ's questioning, Walker testified that she sometimes has trouble taking public transportation due to pain in her left knee. AR 54. Walker testified that she had only used cocaine once or twice in the past year. AR 56. She also stated that before then she had “been using [cocaine for] most of [her] life” about “three times a week, ” with the exception of a brief period of sobriety in the 1980's. Id.

         In response to the ALJ's questions about daily activities, Walker testified that she “love[s] cleaning” but that she “pay[s] for it in the end” because of her arthritis. AR 57. When asked about her medication, Walker testified that she “love[s]” taking Methotrexate because it helps “[keep her] out of pain.” AR 58. She also testified that she “cook[s] every day” and does other chores occasionally, but activities like “pulling the clothes out of the washing machine ” and “chopping up the meat” makes her hands swell. AR 60. She testified that she can only lift about 15 pounds and sit for 15 minutes before she has to get up, but that she enjoys walking. AR 59. Walker also stated that she sometimes needs help getting out of bed. AR 60. When asked if she had any friends, Walker responded, “No, I don't trust nobody” and that she was “scared, ” so her interactions were mostly limited to her sister, children, and grandchildren. AR 61. She said that she used to go to church when she was “clean and sober” but did not do so anymore. Id.

         When asked about household chores by her attorney, Walker testified that she cooks every day and does other chores such as cleaning about once a week. AR 62. She stated that she will be sore the next day if she overexerts herself and “won't get up until… 1:00 or 1:30.” Id. She mentioned that even with medication, she will “pay for it in the end” if she “[does] too much.” AR 62-63. Cooking also exacerbates Walker's arthritis, especially when she has to “[chop] hamburger meat” or drain the skillet for spaghetti. AR 63. Walker also testified that she has difficulty sitting and walking for extended periods due to her arthritis and breathing problems. AR 64. She said she can only be on her feet for “about an hour” before having to sit down and rest for “about an hour and a half.” Id. She stated that she would not be able to cook for more than two hours at a time and that she needs help carrying things. Id.

         The ALJ then accepted testimony from vocational expert Lynda Berkley. AR 66-68. He asked Berkley what work would be available to “a hypothetical younger individual with a limited education and no past work” who is “limited to light work… with occasional stooping, kneeling, crouching, crawling and stair climbing” and “no exposure to unprotected heights.” AR 66. Berkley testified that Walker could do light work as a cleaner or small products assembler, for which there are 800, 000 and 100, 000 jobs in the national economy, respectively. AR 67-68.

         C. Walker's Additional Testimony About Activities

         Walker made multiple statements to her examiners about the effects of her medication and physical symptoms on her daily activities. In a 2009 Function Report, Walker stated that she cooks every day but takes a long time to do other chores due to her pain. AR 346-51. She also had trouble standing, reaching, and kneeling. In November 2009, Walker told Rana that she was experiencing pain in her left knee, but the report indicated that she was “able to do her day to day activities without any problem.” AR 455. In January 2011, Walker told Rana that her hands and right knee were “very swollen and painful” and that she was taking Motrin and Aleve to help cope with the pain. AR 476. In March 2012, Walker submitted another Function Report stating that her joint pain made it hard for her to “dress, ” “carr[y] bags from [the] supermarket, ” and perform postural activities such as lifting, bending, kneeling, and walking. AR 391-98. She also said that “medicine helps somewhat.” Id. at 391. In April 2012, Walker complained to Brimmer of pain and swelling in her “hands, knees and feet, ” which limited her ability to stand, walk, and lift. AR 648-49. Brimmer's report indicated that Walker “can dress herself and perform her own hygiene, ” “cook, ” and “do her dishes, mopping, vacuuming and laundry, as long as she takes her medications.” Id. In December 2012, Walker told Rana that she can only do “minimal chores around the house” due to joint pain. AR 668.

         In March 2012, Walker's daughter Alicia Taylor submitted a Third Party Function Report that echoed Walker's statements from the same period. AR 399-406. Taylor stated that Walker cannot carry anything and sometimes needs help dressing and getting up from the toilet and bathtub. Id. at 399-400. She also stated that Walker cooks “weekly, ” goes out twice a week, and shops twice a month. Id. at 401-2. However, Taylor states that Walker cannot go out alone because she “can[not] walk far” or carry bags. Id. at 402. Taylor listed the same limitations as Walker regarding her ability to lift, bend, squat, climb stairs, and perform other postural activities. Id. at 406.

         D. ALJ Decision

         At step one, the ALJ determined that Walker had not engaged in substantial gainful activity since November 15, 2011, the date of application. AR 30. At step two, the ALJ found that Walker has a severe impairment in the form of rheumatoid arthritis. Id. He also determined that Walker's “medically determinable mental impairment of depression and substance abuse, considered singly and in combination, do not cause more than minimal limitation in her ability to perform basic mental work activities and are thus nonsevere.” AR 32. In reaching this conclusion, the ALJ accorded little weight to examining psychologist Thomsen[3] and great weight to state agency examining psychologist Van Gaasbeek.[4] AR 33.[5]

         The ALJ concluded that Thomsen's opinions relied too heavily on Walker's subjective complaints, were internally inconsistent, and conflicted with Walker's own statements regarding her social functioning. Id. The ALJ believed that “bereavement played an important role in Dr. Thomsen's estimated limitations, ” due to the death of Walker's son a few months before. Id. In contrast, the ALJ found that Van Gaasbeek's opinion was “reasonable and consistent with the record as a whole, ” including findings of intact mental functioning, improving depression, and Walker's reports that she could perform a wide range of daily activities. Id. At step three, the ALJ found that Walker's physical impairment does not meet or medically equal the criteria of any medical listing in 20 C.F.R. Part 404. AR 34.

         At step four, the ALJ found that Walker has the RFC to perform light work, but is limited in her ability to balance, stoop, kneel, crouch, crawl, and climb stairs; she must also avoid working at unprotected heights. AR 34. In reaching this conclusion, the ALJ accorded great weight to state agency non-examining physicians Morgan and Gilpeer, as well as state agency examining physician Brimmer. AR 38. He found that the opinions of Gilpeer and Morgan are “reasonable and consistent with the medical evidence of record as a whole, ” including Walker's reportedly managed pain on Tylenol and Prednisone, her largely unremarkable physical examinations, and her improvement with Methotrexate. Id. He ...


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