David W. P. v. Saul

          MEMORANDUM OPINION AND ORDER

          KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE.

         INTRODUCTION

         David W. P. (“Plaintiff”) filed a Complaint on September 20, 2018, seeking review of the denial of his application for Supplemental Security Insurance (“SSI”). (Dkt. No. 1.) On October 19, 2018, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. (Dkt. Nos. 11-13.) On June 28, 2019, the parties filed a Joint Stipulation (“Joint Stip.”). (Dkt. No. 24.) Plaintiff seeks an order reversing and remanding the ALJ's decision. (Joint Stip. at 21.) The Commissioner requests that the ALJ's decision be affirmed. (Id. at 20-21.) The Court has taken the matter under submission without oral argument.

         SUMMARY OF PRIOR PROCEEDINGS

         On March 30, 2015, Plaintiff, who was born on February 1, 1969, filed an application SSI.^[3] (See Administrative Record (“AR”) 26, 180-88; Joint Stip. at 2.) Plaintiff alleged disability commencing August 1, 2009. (AR 18, 180.) He previously worked as a drill helper (DOT^[4] 930.684-026), construction worker I (DOT 869.664-014), and boilermaker helper II (DOT 805.664-010). (AR 26.) After the Commissioner initially denied Plaintiff's application (AR 106-15), he requested a hearing (AR 117). Administrative Law Judge Evelyn M. Gunn (the “ALJ”) held a hearing on July 12, 2017. (AR 51.) Plaintiff and a vocational expert testified. (AR 51-70.) On October 5, 2017, the ALJ issued an unfavorable decision. (AR 18-28.) The Appeals Council denied Plaintiff's request for review. (AR 1-6.)

         SUMMARY OF ADMINISTRATIVE DECISION

         The ALJ found that Plaintiff had not engaged in substantial gainful activity from the March 30, 2015 application date through the date of the ALJ's decision. (AR 20.) She determined that Plaintiff had the following severe impairments: affective mood disorder, schizophrenia, and substance abuse. (Id.) After specifically considering listings 12.03 and 12.04, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 416.920(d), 416.925, 416.926). (AR 21.) The ALJ determined that from the application date through the date of the ALJ's decision, Plaintiff had the residual functional capacity (“RFC”) to perform a full range of work at all exertional levels with the following non-exertional limitations: “he can understand, remember and carry out simple instructions. He can maintain concentration, persistence and pace for two-hour periods. He would work better with things than people. He should have no public contact.” (AR 22.) The ALJ found that Plaintiff was unable to perform his past relevant work. (AR 26.) She then found that considering Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of cleaner II (DOT 919.687-014), industrial sweeper (DOT 389.683-010), and scrap sorter (DOT 509.686-018). (AR 27.) Accordingly, the ALJ determined that Plaintiff had not been under a disability, as defined in the Social Security Act, from the SSI application date through the date of the ALJ's decision. (AR 28.)

         STANDARD OF REVIEW

         This Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial evidence is ‘more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) (citation omitted). “Even when the evidence is susceptible to more than one rational interpretation, [the Court] must uphold the ALJ's findings if they are supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012).

         Although this Court cannot substitute its discretion for the Commissioner's, 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.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1988). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in her decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn, 495 F.3d at 630. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists if the error is “‘inconsequential to the ultimate nondisability determination,' or if despite the legal error, ‘the agency's path may reasonably be discerned.'” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations omitted).

         DISCUSSION

         There are two issues in dispute: (1) whether substantial evidence supported the ALJ's RFC determination, and (2) whether the ALJ abused her discretion in failing to propound interrogatories requested by Plaintiff. (Joint Stip. at 4.) For the reasons discussed below, the Court finds that substantial evidence supports the ALJ's RFC determination. Further, although the ALJ erred in denying Plaintiff's request for interrogatories on procedural grounds, the error was harmless and, therefore, not an abuse of the ALJ's discretion.

         I. The ALJ's RFC Assessment

         A. Legal Standard

         A claimant's RFC represents the most a claimant can do despite his or her limitations. 20 C.F.R. § 416.945 (a)(1); Reddick, 157 F.3d at 724; Smolen v. Chater, 80 F.3d 1273, 1291 (9th Cir. 1996). The ALJ's RFC determination “must set out all the limitations and restrictions of the particular claimant.” Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009) (emphasis in original). The ALJ is responsible for determining credibility and resolving conflicts in medical testimony. Reddick, 157 F.3d at 722. An ALJ can satisfy the specific and legitimate reasons standard by “setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretations thereof, and making findings.” Orn, 495 F.3d at 632; see 20 C.F.R. § 416.945(a)(3) (stating that Commissioner will assess RFC “based on all of the relevant medical and other evidence”).

         B. Evidence of Plaintiff's Treatment

         The record shows that in January 2012, Plaintiff was evaluated by Laja Ibraheem, M.D., a board certified psychiatrist. (AR 264-67.) Plaintiff reported experiencing depression, paranoia, memory loss, anxiety, and functional limitations. (AR 266-67.) Dr. Ibraheem observed that Plaintiff was able to dress and bathe himself, he was not disheveled, he had good hygiene, and he took no medications. (AR 264-65.) He was cooperative, and his thought processes were tight and goal-directed, with no flight of thought, looseness of association, thought-blocking, or distractibility. (AR 266) He had normal reality contact; there was no evidence of auditory or visual hallucinations, responses to internal stimuli, or paranoia. (Id.) Dr. Ibraheem reported that Plaintiff described his mood as “depressed” and his affect was appropriate to his mood. (Id.) He diagnosed Plaintiff with psychotic disorder, not otherwise specified (“NOS”) and alcohol dependence. (Id.) He assessed that Plaintiff would be able to focus attention adequately; have no difficulty following one- or two-part instructions or remembering and completing tasks; have no difficulty being able to tolerate stress inherent in work, maintain regular attendance, and/or work without supervision; and be able to interact with supervisors, co-workers, and the general public. (AR 267.)

         In June 2013, Plaintiff's mental status examination showed that his symptoms were “mild, ” despite reporting having experienced auditory hallucinations. (AR 300.) Plaintiff was cooperative, his thought processes were linear and logical, and he had normal cognition, insight, and judgment. (Id.) Plaintiff was incarcerated between July 2013 and December 2014, during which time he had access to mental health services. (See generally AR 320-70.) Plaintiff's progress notes from that time reveal that he displayed psychotic features, including hallucinations, but his cognitive abilities were unimpaired and was not confused. (AR 320-26, 364-65, 370.) Plaintiff's mental status examinations revealed good cognitive functioning and no psychotic behavior. (AR 298, 300, 309, 345, 349, 355-56, 360-62, 368.) While he claimed to experience auditory hallucinations, he also claimed he was able to ignore them and stated that his medications, Zyprexa and Zoloft, were helpful. (AR 333, 341-42, 348.)

         Between January and October 2015, ^[5] Plaintiff's progress notes showed that he reported a depressed affect, experienced hopelessness, helplessness, sleep disturbances, mood swings, paranoia, auditory hallucinations, and, variously, visual hallucinations. (AR 393, 396-99, 404, 407, 414, 420.) At times, Plaintiff reported having anger outbursts, irritable moods, poor concentration, and paranoid thoughts. (AR 397-98, 404, 406.) During the same period, Plaintiff also experienced some improvements in his mood and condition. (AR 401, 410.) Over the course of his assessments, Plaintiff remained cooperative, coherent, and calm. (AR 393, 396-99, 401, 404, 407, 410-11, 416-17, 420.) Plaintiff experienced some relief by using Zoloft and reported feeling good while compliant with his medications. (AR 382, 399, 401, 410.) He was diagnosed with psychotic disorder, NOS. (AR 402, 408, 412, 421, 423.) In July and August 2015, mental examinations also revealed that his cognitive functions were at baseline without existing deficits, and his insight and judgment were fair. (AR 412, 418.) In October 2015, Plaintiff had a global assessment of functioning (“GAF”) score of 40. (AR 423.)

         In June 2015, Plaintiff was evaluated by Ernest A. Bagner III, M.D., a board certified psychiatrist. (AR 388-92.) Plaintiff reported that he experienced auditory hallucinations, helplessness and hopelessness, fatigue, low motivation, social withdrawal, anxiety, paranoia, and depression. (AR 388, 390.) Dr. Bagner reviewed Plaintiff's medical records, including a 2013 report indicating that Plaintiff had been diagnosed with a mood disorder, NOS. (AR 389.) Plaintiff drank two bottles of alcohol per week. (Id.) His mood was “nervous, ” his affect was flat, he denied suicidal or homicidal thoughts, and he did not exhibit looseness of association, thought disorganization, flight of ideas, thought blocking, tangentiality, or circumstantiality. (AR 390.) Dr. Bagner diagnosed Plaintiff with polysubstance dependence; rule out schizoaffective disorder, bipolar type; anti-social personality disorder; and a GAF score of 60. (AR 391.) Plaintiff's ability to follow simple instructions was mildly limited; to follow detailed instruction was moderately limited; to interact appropriately with the public, co-workers, and supervisors was moderately limited due to suspiciousness; to comply with job rules was not limited; to respond to changes in routine work setting was mildly limited; and to respond to work pressure in a usual work setting was moderately limited to due paranoia. (Id.) Plaintiff's daily activities were mildly limited. (AR 392.) His prognosis was fair with polysubstance rehabilitation. (Id.)

         In August 2015, state agency consultant Paula Kresser, Ph.D., evaluated Plaintiff's medical record in connection with Plaintiff's initial disability determination. (AR 77-81.) She first found that Plaintiff had a medically determinable impairment in the form of schizophrenic, paranoid, and other psychotic disorders. (AR 77.) Dr. Kresser found that Plaintiff's medical symptoms could be reasonably expected to produce his symptoms, but his statements about the intensity, persistence, and functionally limiting effects of the symptoms were not substantiated by the objective medical evidence alone. (AR 78.) She found Plaintiff “partially credible, ” noting that despite allegations of depression and auditory hallucinations, he was well-spoken, able to bathe, cook, and shop, had a poor relationship with his family, “fair” relationships with his friends, and a long history of anxiety and psychotic disorder and of substance abuse. (Id.) Dr. Kresser completed a mental RFC assessment, concluding that Plaintiff was able to understand, remember, and carry out simple one- and two-step instructions; he could maintain concentration, persistence, and pace for periods of two hours, perform work activities within a schedule, maintain regular attendance, be punctual, complete a normal workday and workweek, and could make simple work-related ...