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Rutledge v. Berryhill

United States District Court, N.D. California

December 27, 2019



          JACQUELINE SCOTT CORLEY United States Magistrate Judge.

         Plaintiff Darryle Jean Rutledge seeks social security benefits for a variety of physical and mental impairments, including impairments stemming from a stroke in 2005 and a heart attack in 2006. (Administrative Record (“AR”) 119.) Pursuant to 42 U.S.C § 405(g), Plaintiff filed this lawsuit for judicial review of the final decision by the Commissioner of Social Security (“Commissioner”) denying her benefits claim. Now before the Court are Plaintiff's and Defendant's Motions for Summary Judgment.[1] (Dkt. Nos. 21 & 22.) Because the decision of the Administrative Law Judge (“ALJ”) to deny benefits is supported by substantial evidence and otherwise free of legal error, the Court DENIES Plaintiff's motion and GRANTS Defendant's cross-motion.


         A claimant is considered “disabled” under the Social Security Act if she meets two requirements. See 42 U.S.C. § 423(d); Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999). First, the claimant must demonstrate “an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C § 423(d)(1)(A). Second, the impairment or impairments must be severe enough that she is unable to do her previous work and cannot, based on her age, education, and work experience “engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). To determine whether a claimant is disabled, an ALJ is required to employ a five-step sequential analysis, examining: (1) whether the claimant is engaging in “substantial gainful activity”; (2) whether the claimant has a severe medically determinable physical or mental impairment” or combination of impairments that has lasted for more than 12 months; (3) whether the impairment “meets or equals” one of the listings in the regulations; (4) whether, given the claimant's “residual function capacity, ” (“RFC”) the claimant can still do her “past relevant work”' and (5) whether the claimant “can make an adjustment to other work.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012); see also 20 C.R.F. §§404.1520(a), 416.920(a).

         An ALJ's “decision to deny benefits will only be disturbed if it is not supported by substantial evidence or it is based on legal error.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks and citation omitted). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (internal quotation marks and citation omitted). “Where evidence is susceptible to more than one rational interpretation, it is the ALJ's conclusion that must be upheld.” Id. In other words, if the record “can reasonably support either affirming or reversing, the reviewing court may not substitute its judgment for that of the Commissioner.” Gutierrez v. Comm'r of Soc. Sec., 740 F.3d 519, 523 (9th Cir. 2014) (internal quotation marks and citation omitted). However, “a decision supported by substantial evidence will still be set aside if the ALJ does not apply proper legal standards.” Id.


         I. Procedural Background

         On July 8, 2014, Plaintiff filed an application for social security disability benefits, alleging disability beginning April 1, 2014. (AR 23.) The Commissioner first denied the application in November 2014, (AR 149), and again denied the application upon reconsideration in April 2015, (AR 155). Plaintiff then filed a request for a hearing before an ALJ. (AR 160.) In February 2017, Plaintiff appeared and testified before ALJ John J. Flanagan. (AR 42.) Dr. Steven S. Goldstein and Dr. Richard Cohen, qualified medical experts, and Robert Cottle, a vocational expert, also testified at the hearing. (AR 42.) The ALJ held a supplemental hearing in July 2017 to allow Dr. Goldstein to testify with the benefit of the full medical record. (AR 91.) Plaintiff, Dr. Goldstein, and vocational expert Lawrence Haney testified at the second hearing. (AR 91.)

         In August 2017, the ALJ issued an unfavorable decision. (AR 23-32.) The following month, Plaintiff filed a request for review of the ALJ's decision. (AR 305-07.) In August 2018, the Appeals Council determined that it would not review the ALJ's findings, making the ALJ's decision final. (AR 1-7.)

         II. Administrative Record

         Plaintiff was born on February 27, 1954 and resides in Fremont, California. (AR 119.) She asserts that she has been unable to work since April 1, 2014 because of the following physical and mental impairments: “Hemiparesis progression and numbness (Rt); Coronary Artery Disease with peripheral edema; Shortness of breath due to past heart attack; Chronic obstructive Sleep Apnea (CPAP used); Siatic [sic] Nerve Damage; Residual from stroke dysphasia and dysphagia progression; depression; Residual from stroke memory loss progression; chronic pain (Rt side of body) and pins tick sensation; Impaired Vision from stroke.” (See AR 44, 119.)

         A. Medical Evaluations and Physician Statements

         1. Psychological Examination by Dr. Carol Fetterman

Dr. Carol Fetterman is a consultative examining psychologist who met with Plaintiff on September 11, 2014. (AR 673.) Plaintiff reported that she suffers from confusion, depression, and memory loss as a result of her 2005 stroke. (Id.) Dr. Fetterman noted “mild memory impairment” upon testing, and determined that Plaintiff's ability to “understand, remember, and carry out job instructions” would be mildly impaired. (AR 675-76.) Dr. Fetterman found that Plaintiff's “ability to maintain attention, concentration, persistence and pace” was also mildly impaired. (AR 676.) Plaintiff's ability to relate and interact with co-workers and ability to “adapt to day-to-day work activities” were similarly impaired. (Id.) Dr. Fetterman diagnosed Plaintiff with a “Mood Disorder [not otherwise specified] due to General Medical Condition.” (Id.) Dr. Fetterman opined that Plaintiff's “mental health symptoms” appeared “chronic in nature, ” and that Plaintiff would “benefit from starting psychotherapy and medication treatment.” (Id.) Dr. Fetterman characterized Plaintiff's prognosis as “fair.” (Id.)

         2. Physical Examination by Neurologist Dr. Farah Rana

         Dr. Farah Rana is a consultative examining physician who met with Plaintiff on October 21, 2014. (AR 679.) Dr. Rana's report notes Plaintiff's chief complaints were “stroke, coronary artery disease, lower back pain, and mild asthma.” (Id.) Dr. Rana's report includes the following diagnoses: (1) history of stroke, noting right-sided hyperreflexia on examination but “[n]o focal motor or sensory deficit”; (2) history of hypertension and history of coronary artery disease, status post myocardial infarction in 2006 and post angioplasty in October 2014; (3) “[c]hronic lower back pain most probably secondary to mild degenerative disc/degenerative joint disease”; and (4) history of mild asthma. (AR 681.)

         Dr. Rana's “functional capacity assessment” opined that Plaintiff can stand, sit, and walk six hours out of an eight-hour work day, with breaks. (Id.) Further, Plaintiff can carry “10 pounds frequently and 20 pounds occasionally.” (Id.) She is also able to “handle, manipulate, feel, and finger objects without any problem, ” and can occasionally “stoop, bend, kneel, crouch, . . . because of her lower back pain.” (Id.) Dr. Rana opined that Plaintiff does not need an assistive device to ambulate, and “can take public transportation.” (Id.) Dr. Rana also noted that Plaintiff “can manage her day-to-day chores.” (AR 680.)

         3. Non-Examining State Agency Physicians

         In November 2014, non-examining state agency physicians reviewed Plaintiff's medical records and determined that while Plaintiff's impairments cause some limitations on her ability to perform work activities, those limitations do not prevent her from performing her past relevant work. (AR 131.) Thus, the state agency physicians concluded that Plaintiff's “condition is not severe enough to keep [Plaintiff] from working.” (Id.) Two different state agency physicians made the same determination upon reconsideration of Plaintiff's application in March 2015. (See AR 147.)

         4. Statement from Primary Care Physician Edsell Bernardo

         Dr. Edsell Bernardo is Plaintiff's treating physician. (AR 1245.) In a January 2015 “Medical Source Statement, ” Dr. Bernardo reported that he had treated Plaintiff for one year and saw Plaintiff “every 3-4 months.”[2] (AR 1188.) Dr. Bernardo indicated that Plaintiff's reported symptoms include pain, fatigue, confusion, depression, edema, and being “unbalanced.” (Id.) Dr. Bernardo further found that Plaintiff experiences numbness, decreased functionality, and “relative[ly] mild weakness in the right side.” (Id.) Dr. Bernardo indicated that most of Plaintiff's symptoms started in 2010, and that her right-side weakness has grown more pronounced since June 2014. (AR 1192.) Dr. Bernardo further noted that Plaintiff suffered a second heart attack in October 2014. (Id.)

         Dr. Bernardo reported that Plaintiff requires an assistive device for “standing/walking” due to imbalance, pain, weakness, insecurity, and dizziness. (AR 1191.) Dr. Bernardo indicated that Plaintiff could sit or stand/walk for less than two hours total in an eight-hour work day, and that she would need unscheduled breaks during a work day due to muscle weakness, chronic fatigue, pain, paresthesias, numbness, and adverse effects of medication. (AR 1190.) Further, Plaintiff can occasionally lift less than 10 pounds and rarely lift 10 pounds. (AR 1191.) Dr. Bernardo also reported that Plaintiff has “significant limitations with reaching, handling or fingering.” (Id.) Dr. Bernardo opined that Plaintiff's symptoms would likely interfere with her “attention and concentration needed to perform even simple work tasks” for at least 25% of a typical work day. (AR 1192.) Dr. Bernardo further opined that Plaintiff would likely miss more than four days of work per month due to her “impairments or treatment.” (Id.)

         Dr. Bernardo issued a letter in September 2015 stating that Plaintiff has limitations associated with arthritis as well as moderate degenerative disc disease. (AR 1244.) Dr. Bernardo opines that Plaintiff has a limited range of motion and reduced strength which he believes is likely due to her previous stroke. (Id.) As a result, “she experiences pain that radiates down the back of her leg into her foot, causing numbness in that foot.” (Id.) Dr. Bernardo states that Plaintiff was “let go [from her previous employment] in March 2014, ” and that she “is not a candidate for full time work” because she has “increasing difficulty performing work tasks due to pain, weakness, and lack of stamina, making it hard for her to keep up with work pace.” (AR 1246.) Dr. Bernardo opined that if Plaintiff were to attempt to work full-time, Plaintiff would likely “miss work more than four days per month due to her condition.” (Id.)

         5. Medical Interrogatory by Dr. Steven Goldstein

         In a “Medical Interrogatory” dated March 13, 2017, neurologist Steven Goldstein[3] reported that the medical evidence reflects that Plaintiff suffered a stroke and heart attack, has hearing loss, is obese, and has degenerative disc disease of the lumbar spine. (AR 1421.) Dr. Goldstein opined that none of Plaintiff's impairments meet or equal those described in the “Listing of Impairments” that would qualify her as disabled. (AR 1422.) As for Plaintiff's functional limitations, Dr. Goldstein concluded that Plaintiff can lift up to 10 pounds frequently and 20 pounds occasionally, can sit, stand, and walk for six total hours in an eight-hour work day, and that Plaintiff has frequent use of her both her feet and hands. (AR 1424, 1426-27.) Dr. Goldstein also indicated that Plaintiff can frequently climb stairs, and occasionally balance, stoop, kneel, crouch, and crawl. (AR 1428.) Further, Dr. Goldstein noted that Plaintiff: can care for herself and perform tasks such as shopping and preparing meals; can use public transportation; does not require a companion to travel or assistive device to ambulate; and can “sort, handle, [and] use paper/files.” (AR 1430.)

         B. February 2017 ALJ Hearing

         1. Dr. Richard Cohen's Testimony

         Dr. Richard Cohen is a board-certified psychiatrist whose specialties include individual psychotherapy. (AR 1404.) He testified at the February 23, 2017 hearing as a “Psychological Expert.” (AR 45.) Dr. Cohen asked Plaintiff whether she had received treatment from a mental health professional since 2014, and Plaintiff responded: “No, I haven't.” (AR 46.) Dr. Cohen testified that Plaintiff had received “no real mental health treatment” and he characterized Plaintiff's mental condition as a “mood disorder secondary to a stroke.” (Id.) Dr. Cohen further testified that Plaintiff's “problems are mainly physical, ” and that “she may not even have mood ...

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