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Hubbard v. Commissioner of Social Security

United States District Court, E.D. California

June 28, 2017

DIANA KAY HUBBARD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          FINDINGS AND RECOMMENDATIONS

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         Plaintiff Diana Kay Hubbard seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff's application for Supplemental Security Income under Title XVI of the Social Security Act (“Act”).[1] In her motion for summary judgment, plaintiff principally contends that the Commissioner's decision that she is not disabled is based upon legal errors and lacks substantial evidence to support it. (ECF No. 15.) The Commissioner opposed plaintiff's motion and filed a cross-motion for summary judgment. (ECF No. 22.) Thereafter, plaintiff filed a reply brief. (ECF No. 23.)

         For the reasons that follow, the court recommends that plaintiff's motion for summary judgment be DENIED and the Commissioner's cross-motion for summary judgment be

         GRANTED.

         I. BACKGROUND

         Plaintiff was born on April 3, 1969; attended 11 years of school; obtained a GED and a manicuring license; and previously worked as a driver for Pep Boys. (Administrative Transcript (“AT”) 26-27, 141.)[2] On August 23, 2012, plaintiff applied for SSI, alleging that her disability began on June 30, 2011. (AT 8, 173.) Plaintiff claimed that she was disabled due to major depression, mood disorder, and sleep issues. (AT 68, 80, 160.) After plaintiff's application was denied initially and on reconsideration, an ALJ conducted a hearing on July 1, 2014. (AT 23-40.) The ALJ subsequently issued a decision dated October 31, 2014, determining that plaintiff had not been under a disability as defined in the Act, from August 23, 2012, the date the application was filed, through the date of the ALJ's decision. (AT 8-19.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on January 28, 2016. (AT 1-3.) Plaintiff subsequently filed this action on April 4, 2016, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)

         II. ISSUES PRESENTED

         On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly rejected the opinion of plaintiff's treating psychiatrist, Dr. Pappas; (2) whether the ALJ improperly discounted the credibility of plaintiff and her third-party witness; (3) whether the ALJ failed to make a proper step three determination regarding the listing of impairments; (4) whether the ALJ's residual functional capacity (“RFC”) assessment lacks substantial evidence and is based on legal errors; (5) whether the ALJ's finding that plaintiff can perform other work in the national economy lacks substantial evidence; and (6) whether this case should be remanded for an award of benefits.[3] (ECF No. 15.)

         III. LEGAL STANDARD

         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “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) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         IV. DISCUSSION

         A. Summary of the ALJ's Findings

         The ALJ evaluated plaintiff's entitlement to SSI pursuant to the Commissioner's standard five-step analytical framework.[4] At step one, the ALJ concluded that plaintiff has not engaged in substantial gainful activity since August 23, 2012, that date of her application. (AT 10.) At step two, the ALJ found that the plaintiff “has the following severe impairments: degenerative disease of the cervical spine, cervical spondylosis without myelopathy, spinal stenosis in cervical region, obesity, hypertension, depressive disorder, anxiety disorder, history of attention deficit disorder, and headache impairment.” (Id.) However, at step three the ALJ concluded that the plaintiff “does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.” (AT 11.)

         Before proceeding to step four, the ALJ assessed plaintiff's RFC, finding that plaintiff could perform light work as defined in 20 C.F.R. § 416.967(b), except that plaintiff:

is limited to lifting 20 pounds occasionally and 10 pounds frequently. The claimant can stand or walk for about six hours in an eight-hour workday and sit for about six hours in an eight-hour workday. The claimant can occasionally climb ladders, ropes, and scaffolds. The claimant is limited to jobs where she would be able to understand, remember, and carry out simple and routine instructions. She can pay attention and concentrate in two-hour blocks of time.

(AT 13.) At step four the ALJ determined that the plaintiff is unable to perform any past relevant work. (AT 18.) However, at step five the ALJ found that, in light of plaintiff's age, education, work experience, RFC, and the vocational expert's (“VE”) testimony, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (Id.)

         Thus, the ALJ concluded that the plaintiff “has not been under a disability, as defined in the Social Security Act, since August 23, 2012, the date the application was filed.” AT (19.)

         B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

         1. Whether the ALJ improperly rejected the opinion of plaintiff's treating psychiatrist, Dr. Pappas

         The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. Holohan v. Massanari, 246 F.3d 1195, 1201-02 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). Generally speaking, a treating physician's opinion carries more weight than an examining physician's opinion, and an examining physician's opinion carries more weight than a non-examining physician's opinion. Holohan, 246 F.3d at 1202.

         To evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. An ALJ may reject an uncontradicted opinion of a treating or examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830-31. In contrast, a contradicted opinion of a treating or examining professional may be rejected for “specific and legitimate” reasons. Id. at 830. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by a supported examining professional's opinion (supported by different independent clinical findings), the ALJ may resolve the conflict. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citing Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). The regulations require the ALJ to weigh the contradicted treating physician opinion, Edlund, 253 F.3d at 1157, [5] except that the ALJ in any event need not give it any weight if it is conclusory and supported by minimal clinical findings. Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes, 881 F.2d at 751. The opinion of a non-examining professional, by itself, is insufficient to reject the opinion of a treating or examining professional. Lester, 81 F.3d at 831.

         On June 4, 2012, plaintiff's treating psychiatrist, Lynn Pappas, M.D. opined that plaintiff was suffering from episode of severe depression that rendered her non-functional and unable to get out of bed, and that she was not responding to medication as rapidly as anticipated. (AT 139.) Dr. Pappas estimated that plaintiff would be able to return to regular or customary work by September 1, 2012. (Id.) On June 18, 2013, Dr. Pappas opined that plaintiff is: (1) moderately impaired in her ability to understand, remember, and carry out short, simple instructions; (2) markedly impaired in her ability to make judgments on simple work-related decisions and to interact appropriately with the public, supervisors, and co-workers; and (3) extremely impaired in her ability to respond appropriately to work pressures and changes in a routine work setting. (AT 276-77.)

         Dr. Pappas' opinion was contradicted by an examining psychologist and two reviewing psychologists. (AT 268-73, 177-85, 187-95.) Because Dr. Pappas's opinion was contradicted by other medical opinions in the record, the ALJ was required to provide specific and legitimate reasons for discounting Dr. Pappas's opinion. For the reasons discussed below, the court finds that the ALJ properly discharged that duty.

         First, the ALJ gave little weight to the opinion of Dr. Pappas because it was inconsistent with her own treatment notes that demonstrate plaintiff fails to take action or follow treatment plans to improve her symptoms. (AT 17.) The ALJ's determination is supported by numerous portions of Dr. Pappas's treatment notes: [February 3, 2013] “Patient is realizing that she fights against herself. She knows that not doing anything is making a choice to continue the way[] she is. . .” (AT 340.) [February 28, 2013] “She has had long term hx of poor follow through with treatment recommendations and she has a help rejecting quality to her as she presents.” (AT 330.) [June 6, 2013] “Patient has physical issues that she is not addressing as well. She only occasionally will take her Lasix. She has not yet ...


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