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Ramirez v. Berryhill

United States District Court, C.D. California

November 15, 2017

DAVID RAMIREZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KAREN E. SCOTT UNITED STATES MAGISTRATE JUDGE

         I.

         BACKGROUND

         In June 2012, Plaintiff David Ramirez (“Plaintiff”) applied for Supplemental Security Income (“SSI”) alleging disability beginning July 15, 2010. Administrative Record (“AR”) 30, 167-69. The Administrative Law Judge (“ALJ”) convened a hearing on October 2, 2014, at which Plaintiff, who was represented by a lawyer, appeared and testified. AR 44-63. Plaintiff's counsel told the ALJ that Plaintiff is “disabled mostly due to mental health reasons.” AR 47. On November 20, 2014, the ALJ issued a written decision denying Plaintiff's request for benefits. AR 30-42.

         The ALJ found that Plaintiff suffers from the severe impairments of obesity, hernia, depressive disorder, and anxiety disorder. AR 31, 37. Despite these impairments, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to carry up to twenty pounds occasionally, ten pounds frequently, sit or stand/walk for six hours of an eight-hour workday, and occasionally crouch or climb. AR 32, 37. As non-exertional limits, the ALJ found that Plaintiff is limited to simple, repetitive tasks, no face-to-face public contact, only occasional contact with supervisors and co-workers, and no fast-paced assembly-type work. Id.

         Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ found that Plaintiff could perform his past relevant work as a call center clerk, which the Dictionary of Occupational Titles (“DOT”) classifies as “information clerk, transportation, ” DOT code 237.367-018. AR 36-37. The ALJ therefore concluded that Plaintiff was not disabled. AR 38.

         Plaintiff now raises eight claims of error. Dkt. 31, Joint Stipulation [“JS”] at 21. The Court discusses each, below, and AFFIRMS the ALJ's decision.

         II.

         DISCUSSION

         A. ISSUE ONE: Did the ALJ give adequate reasons for rejecting medical opinions from Plaintiff's treating sources?

         Plaintiff contends that the ALJ failed to explain adequately her rejection of “Treating sources Huthsteiner, Lletget, and [Yegiazaryan].” JS at 47.

         1. The Treating Physical Rule.

         Three types of physicians may offer opinions in Social Security cases: (1) those who directly treated the plaintiff, (2) those who examined but did not treat the plaintiff, and (3) those who did not treat or examine the plaintiff. See 20 C.F.R. § 404.1527(c); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating physician's opinion is generally entitled to more weight than that of an examining physician, which is generally entitled to more weight than that of a non-examining physician. Lester, 81 F.3d at 830. Thus, the ALJ must give specific and legitimate reasons for rejecting a treating physician's opinion in favor of a non-treating physician's opinion or an examining physician's opinion in favor of a non-examining physician's opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citing Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); Lester, 81 F.3d at 830-31 (citing Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983)). If the treating physician's opinion is uncontroverted by another doctor, it may be rejected only for “clear and convincing” reasons. Lester, 81 F.3d at 830 (citing Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 1991)). However, “[t]he ALJ need not accept the opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and inadequately supported by clinical findings.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The factors to be considered by the adjudicator in determining the weight to give a medical opinion include: “[l]ength of the treatment relationship and the frequency of examination” by the treating physician; and the “nature and extent of the treatment relationship” between the patient and the treating physician. Orn, 495 F.3d at 631 (quoting 20 C.F.R. § 404.1527(d)(2)(i)-(ii)).

         2. Overview of Plaintiff's Medical Treating Source Records.

         Dr. Conny Huthsteiner and social worker/therapist Valeria Lletget are both associated with the San Fernando Mental Health Center (“SFMHC”), part of the Los Angeles County Department of Mental Health. Ms. Lletget completed Plaintiff's initial assessment at SFMHC in April 2012. AR 383-87. On May 1, 2012, Plaintiff was assigned to psychiatrist Dr. Huthsteiner “for medication and treatment support services.” AR 390, 407.

         Dr. Huthsteiner complete two “complex medication support service” reports in June and August 2012. AR 434-37. In the June 2012 report under “assessment, ” Dr. Huthsteiner noted that Plaintiff exhibited “symptoms of depression and PTSD” and “may be borderline MR [mentally retarded].” AR 437. She also noted that Plaintiff has a “probable binge eating disorder and is severely morbidly obese.” Id. After noting that Plaintiff would start Wellbutrin and Ativan/Lorazepam, Dr. Huthsteiner opined that Plaintiff “needs to attend groups to address relationship/behavioral issues.” Id.

         In the August 2012 report, Dr. Huthsteiner noted Plaintiff “feels his anxiety is a little better” and “feels he is less angry. Being pushed by a friend to return to work.” AR 434. She also noted, “Pt improving on meds. … Pt doesn't want to take an antipsychotic at this time …. Nevertheless, I have made a prescription available to him to use should he find it useful.” Id. She also noted that Plaintiff had no psychiatric hospitalizations and no “Hx” [history] of psychiatric treatment. AR 435.

         Psychiatrist Dr. Lilit Yegiazaryan was later assigned to Plaintiff's care team, replacing Dr. Huthsteiner. AR 523. It appears (although the signature is illegible) that Dr. Yegiazaryan completed similar medication support reports in October 2012, January 2013, and April 2013. AR 429-33. Similar reports were also completed in August and November 2013. AR 513-15. The record also contains 2014 typed progress notes from Dr. Yegiazaryan. AR 516-18. In those notes, Dr. Yegiazaryan generally recorded that Plaintiff was doing better on medications and reported no side effects. Id. At the hearing, Plaintiff testified that he saw Dr. Yegiazaryan “just for medication.” AR 51.

         3. The ALJ's Discussion of the SFMHC Evidence.

         The ALJ began her analysis by noting that for mental impairments, she was more concerned about identifying their effects on Plaintiff's functioning rather than labeling them with a precise diagnosis. AR 31. The ALJ emphasized that she considered Plaintiff as a “whole person, ” including the interplay between all his medically determinable impairments and their symptoms, whether physical or mental. Id.

         The ALJ found that Plaintiff's depression and anxiety are both “severe” impairments. AR 31. The ALJ discussed SFMHC's treating records. AR 33-36, citing exhibits 3F (AR 380-394), 5F (AR 399-437), and 9F (AR 513-18). The ALJ summarized Dr. Yegiazaryan's 2014 treatment records. AR 36. The ALJ also discussed Ms. Lletget's opinions concerning Plaintiff's mental health, both as documented in her progress notes and a Mental Disorder Questionnaire that she completed in May 2013. Id.

         The ALJ ultimately “concur[ed] with Ms. Lletget to an extent” and therefore assessed “major functional limitations in [Plaintiff's] ability to socialize, the limitation to simple repetitive work (e.g., attaching to problems with changes in routine) and in precluding his ability to handle fast-paced assembly work (e.g., due to the likelihood of heightened anxiety).” AR 36. The ALJ put all these restrictions in Plaintiff's RFC. AR 37.

         4. Analysis of Plaintiff's Claimed Errors.

         a. Dr. Huthsteiner.

         Plaintiff contends that the ALJ erred by failing to address Dr. Huthsteiner's opinions. JS at 40. While the ALJ's decision does not mention Dr. Huthsteiner's name, it does discuss SFMHC's records. The ALJ also discussed Ms. Lletget's progress notes, and Plaintiff admits, “Lletget merely reiterated the same diagnoses [as] Huthsteiner.” JS at 26.

         Plaintiff contends that the ALJ needed to give reasons for rejecting Dr. Huthsteiner's initial assessment that Plaintiff exhibited “symptoms of depression and PTSD” and “may be borderline MR.” JS at 40, citing AR 437. The ALJ, however, did not “reject” the medical evidence that Plaintiff suffers from depression and post-traumatic stress disorder. To the contrary, she found that Plaintiff suffers from the severe impairments of depressive disorder and anxiety disorder. AR 37. She noted that Plaintiff's childhood abuse “might support a diagnosis of PTSD, ” but felt she had adequately addressed the effect of Plaintiff's mental impairments on his functioning regardless of their label. AR 31, 33. Plaintiff has not suggested what restrictions the ALJ should have included in his RFC based on Dr. Huthsteiner's opinions beyond those that the ALJ included, i.e., limitations (1) to simple, repetitive work, (2) on social interactions, and (3) against fast-paced work. AR 37.

         Regarding mental retardation, even if the ALJ had accepted Dr. Huthsteiner's initial impression as a diagnosis, Plaintiff does not persuasively explain how an RFC limited to “simple, repetitive tasks” does not account for Plaintiff's cognitive difficulties. Plaintiff argues that the ALJ erred in finding he could perform even simple, repetitive work because he was laid off from “a simple repetitive” call center job for being “too slow.” JS at 71, citing AR 192 (when asked to explain why he stopped working, Plaintiff said “change in management and he was too slow”). The ALJ, however, found that Plaintiff could do the call center job for four or five years and was laid off when the company moved, not for performance reasons. AR 33. This finding is supported by substantial evidence - i.e., Plaintiff's own hearing testimony. AR 48-49, 50, 59-60 (cited and discussed below). The ALJ was entitled to rely on Plaintiff's hearing testimony that he could do the call center job (both then and now) and therefore Plaintiff's mental impairments do not prevent him from doing even simple, repetitive tasks.

         Plaintiff argues, “Huthsteiner noted that [Plaintiff] was not even able to live independently.” JS at 77, citing AR 435. In fact, the cited record is from Dr. Huthsteiner's first encounter with Plaintiff and merely notes that Plaintiff “has always lived with his parents.” AR 435. This is a far cry from a medical opinion that Plaintiff cannot live independently.

         The JS discusses many patient history facts recorded by Dr. Huthsteiner and others at SFMHC, such as that Plaintiff has an abusive family, required special education services to complete high school, and is ashamed of his weight. Such patient history facts are not medical opinions, and the ALJ had no obligation to give reasons for “rejecting” them. In any event, the ALJ did not disbelieve Plaintiff's self-reported history; she incorporated much of it into her decision. AR 30 (discussing special education), AR 33 (discussing abuse), AR 35 (discussing symptoms Plaintiff reported to SFMHC).

         b. Dr. Yegiazaryan.

         The JS fails to identify a single opinion by Dr. Yegiazaryan in the record before the ALJ that would have required a different RFC, had the ALJ adopted it.

         The JS states, “Robinson, Lletget, and Yegiazaryan gave [Plaintiff] low GAF scores in the 40s, which are listing level and, and presumptively indicate that he is disabled and cannot engage in substantial gainful employment. (AR 380, 456-60, 294-95).” JS at 77. In fact, while AR 380 is a record from Robinson and AR 456-60 are records from Lletget, AR 294-95 are not records from Yegiazaryan. Rather, AR 294-95 is a post-hearing letter brief written by Plaintiff's counsel summarizing a February 24, 2015 opinion by Dr. Yegiazaryan (i.e., an opinion written after the ALJ's November 20, 2014 decision). Plaintiff's argument that this Court should consider Dr. Yegiazaryan's February 24, 2015 opinion as new evidence is discussed below under Issue Seven.

         c. Social Worker/Therapist Lletget.

         Social workers are generally not an “acceptable medical source.” See 20 C.F.R. § 404.1513(a) (listing acceptable medical sources). An opinion from a person who is not an acceptable medical source need not be afforded any deference by the ALJ. See Bunnell v. Sullivan, 912 F.2d 1149, 1152 (9th Cir. 1990), rev'd en banc on other grounds, 947 F.2d 341 (9th Cir. 1991). A social worker can be an acceptable medical source, but only if the social worker acts as an agent of a licensed physician or psychologist. Gomez v. Chater, 74 F.3d 967, 970-71 (9th Cir. 1996). This occurs where the social worker acts so “closely under the supervision” of the treating physician that the social worker's opinion should be “properly considered as part of the opinion” of the treating physician. Id. at 971.

         Plaintiff appears to argue that Ms. Lletget's opinions should be considered part of Dr. Huthsteiner's opinions under this “agency” rule, asserting that Ms. Lletget “merely reiterated the same diagnoses of board-certified treating psychiatrist Huthsteiner, who unequivocally is an acceptable medical source.” JS at 26. This argument does not demonstrate error for at least two reasons. First, Plaintiff has not identified evidence (beyond working at SFMHC) that Dr. Huthsteiner closely supervised Ms. Lletget. Plaintiff saw Ms. Lletget before meeting Dr. Huthsteiner, and Dr. Huthsteiner's role on Plaintiff's care team appears to have been providing prescriptions and medication support services. Second, as discussed above, Plaintiff has not demonstrated that the ALJ's RFC determination failed to account for any of Dr. Huthsteiner's opinions, which Plaintiff argues are essentially the same as Ms. Lletget's. The ALJ included “major functional limitations” in Plaintiff's RFC due to Ms. Lletget's progress notes. AR 36.

         Plaintiff also argues that the ALJ should have considered Ms. Lletget an acceptable medical source because 20 C.F.R. § 404.1513(d)(1) “specifically states that ‘therapists' and others are acceptable medical sources (and such sources have been fully elevated to the status of treating sources under the new regulations.).” JS at 26. When the ALJ wrote her decision in 2014, the cited regulation provided that the only sources who can provide “evidence to establish an impairment” are “acceptable medical sources.” 20 C.F.R. § 404.1513(a). The regulation then listed all acceptable medical sources, which were licensed physicians, psychologists, optometrists, podiatrists, and speech-language pathologists. Id. The regulation also explained that the agency may consider evidence from “other sources” concerning the severity of a claimant's impairments. 20 C.F.R. § 404.1513(d). Such “other sources” included other “medical sources” such as nurse-practitioners, chiropractors, audiologists, and therapists. 20 C.F.R. § 404.1513(d)(1). “Other” sources also included “non-medical sources” such as clergy and family members. 20 C.F.R. § 404.1513(d)(4). Thus, the 2014 version of section 404.1513 did not identify therapists as “acceptable” medical sources; they were identified as “other” medical sources.

         The Social Security Administration has amended certain regulations, effective March 27, 2017, including by broadening the scope of acceptable medical sources to include advanced practice registered nurses, audiologists, and physician assistants. See 20 C.F.R. § 404.1502(a), (d), (e) (2017). The 2017 amendments do not make therapists or social workers acceptable medication sources. Id. Even if they did, Plaintiff has not advanced an argument that they governed the ALJ's 2014 decision. The presumption is against retroactive application.[1] See Lowry v. Astrue, 474 Fed.Appx. 801, 805 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ's decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner's decision became final.”); Duran v. Berryhill, No. 16-7416, 2017 WL 2588069, at *3 n.3 (C.D. Cal. June 14, 2017) (citing same cases for same proposition).

         For all these reasons, the ALJ did not err by declining to apply the treating physician rule to Ms. Lletget.

         B. ISSUE TWO: Did the ALJ give adequate reasons for rejecting Plaintiff's testimony?

         1. Rules for Assessing the Claimant's Testimony.

         Generally, “[i]f the ALJ finds that the claimant's testimony as to the severity of his pain and impairments is unreliable, the ALJ must make a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony.” Thomas, 278 F.3d at 958. An ALJ's assessment of symptom severity and claimant credibility is entitled to “great weight.” Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 1989); Nyman v. Heckler, 779 F.2d 528, 531 (9th Cir. 1986). The ALJ is not “required to believe every allegation of disabling pain, or else disability benefits would be available for the asking, a result plainly contrary to 42 U.S.C. § 423(d)(5)(A).” Molina v. Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (citation omitted).

         In evaluating a claimant's subjective symptom testimony, the ALJ engages in a two-step analysis. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007). “First, the ALJ must determine whether the claimant has presented objective medical evidence of an underlying impairment [that] could reasonably be expected to produce the pain or other symptoms alleged.” Id. at 1036. If so, the ALJ may not reject a claimant's testimony “simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged.” Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996).

         Second, if the claimant meets the first test, the ALJ may discredit the claimant's subjective symptom testimony only if he makes specific findings that support the conclusion. Berry v. Astrue, 622 F.3d 1228, 1234 (9th Cir. 2010). Absent a finding or affirmative evidence of malingering, the ALJ must provide “clear and convincing” reasons for rejecting the claimant's testimony. Lester, 81 F.3d at 834; Ghanim v. Colvin, 763 F.3d 1154, 1163 & n.9 (9th Cir. 2014). The ALJ must consider a claimant's work record, observations of medical providers and third parties with knowledge of claimant's limitations, aggravating factors, functional restrictions caused by symptoms, effects of medication, and the claimant's daily activities. Smolen, 80 F.3d at 1283-84 & n.8. “Although lack of medical evidence cannot form the sole basis for discounting pain testimony, it is a factor that the ALJ can consider in his credibility analysis.” Burch v. Barnhart, 400 F.3d 676, 681 (9th Cir. 2005).

         2. The ALJ's Reasons for Discounting Plaintiff's Testimony.

         The ALJ gave multiple reasons for discrediting Plaintiff's claim that his mental health symptoms render him unable to work. AR 32-34. Those reasons include (1) Plaintiff's hearing testimony was inconsistent with his claim of disability, (2) Plaintiff's hearing testimony was inconsistent with statements given to his health care providers, (3) Plaintiff has received limited mental health treatment, in response to which he improved, (4) discrepancies between Plaintiff's 2012 and 2013 Adult Function reports suggest that Plaintiff minimized his activities in the latter, and (5) Plaintiff's poor work history and recurring travel to Mexico suggest a lack of motivation to work. Id.

         a. Reason One: Plaintiff's Hearing Testimony.

         Plaintiff testified about his ability to perform his past relevant work as a transportation information clerk at a call center, as follows:

Q: How long did you do [the job of call taker]?
A: Five years.
Q: What was the reason that you left?
A: The company moved to another company. …
Q: When you were there did you have any problems doing that job?
A: At that time, no. AR 48-49.
Q: If somebody offered you the same job that you had … before, which was being on the phone, would you be able to do that?
A: Yes, but I think it will come with - it will be more difficult now.
Q: Why is that?
A: Because of mental situation. … I don't like to be around people.
Q: Did you have any trouble communicating with the people that needed rides?
A: No, not at that time. …
Q: So you said if they offered you your old job back, you probably could do it, but you would have problems with other people, right?
A: I would have problems being around people.
Q: What if they offered you a job where there wouldn't be other people around? You would just have tasks to do. … [W]ould you be able to maintain such a job five days a week?
A: Yes and no.
Q: What do you mean by no?
A: … I could do the job, but I don't know if mental like if I could be … like enclosed or something. I don't know.
Q: It doesn't necessarily have to be enclosed. You wouldn't be dealing with other people …. So would you be able to maintain such a job five days a week?
A: Yes.
Q: And you wouldn't miss any time from work?
A: I would miss.
Q: How many days in a typical week you think you would miss?
A: Three.
Q: Why so much?
A: I don't know, because of my mental situation … ...

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