Summary
holding ALJ properly noted equivocal language in assigning less weight to doctor's opinion that diagnostic testing scores "may be a slightly lower estimate of [the claimant's] ability"
Summary of this case from Guest ex rel. Hopper v. ColvinOpinion
No. 2:14-CV-2785-CMK
03-17-2016
HOLLY JO MERICLE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 14) and defendant's cross-motion for summary judgment (Doc. 17). / / / / / / / / /
I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on January 12, 2011. In the application, plaintiff claims that disability began on November 27, 2009. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on February 19, 2013, before Administrative Law Judge ("ALJ") Mark C. Ramsey. In a May 9, 2013, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:
1. The claimant has the following severe impairment(s): major depressive disorder; panic disorder without agoraphobia; post-traumatic stress disorder in partial remission; affective psychosis; bipolar disorder; cannabis abuse; borderline personality disorder; borderline intellectual functioning; tension headaches and asthma;After the Appeals Council declined review on September 29, 2014, this appeal followed.
2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;
3. The claimant has the following residual functional capacity: the claimant can perform light work; she can stand and walk for 6 hours in an 8-hour workday; she can sit without limitations; she can lift 20 pounds occasionally and 10 pounds frequently; she has no limits with postural activities and manipulation; she is unable to work near chemicals, dusts, fumes, and gases; she can perform simple, unskilled work involving no frequent contact with the public or co-workers; and
4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
II. STANDARD OF REVIEW
The court reviews the Commissioner's final decision to determine whether it is: (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). "Substantial evidence" is more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 (9th Cir. 1996). It is ". . . such evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, including both the evidence that supports and detracts from the Commissioner's conclusion, must be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner's decision simply by isolating a specific quantum of supporting evidence. See Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative findings, or if there is conflicting evidence supporting a particular finding, the finding of the Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Therefore, where the evidence is susceptible to more than one rational interpretation, one of which supports the Commissioner's decision, the decision must be affirmed, see Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988).
III. DISCUSSION
In her motion for summary judgment, plaintiff argues: (1) the ALJ's mental residual functional capacity assessment is not supported by substantial evidence; and (2) the ALJ failed to articulate clear and convincing reasons for rejecting the opinions of Dr. Kemp.
A. Mental Residual Functional Capacity
In determining residual functional capacity, the ALJ must assess what the plaintiff can still do in light of both physical and mental limitations. See 20 C.F.R. §§ 404.1545(a), 416.945(a) (2003); see also Valencia v. Heckler, 751 F.2d 1082, 1085 (9th Cir. 1985) (residual functional capacity reflects current "physical and mental capabilities"). Where there is a colorable claim of mental impairment, the regulations require the ALJ to follow a special procedure. See 20 C.F.R. §§ 404.1520a(a), 416.920a(a). The ALJ is required to record pertinent findings and rate the degree of functional loss. See 20 C.F.R. §§ 404.1520a(b), 416.920a(b).
Plaintiff argues:
With respect to Holly Mericle's mental residual functional capacity ("RFC"), the ALJ stated that he gave significant weight to the opinions of Pamela Hawkins, Ph.D., a non-examining state agency psychologist. AR 18. The question is whether Dr. Hawkins' opinions constitute substantial evidence in support of the ALJ's mental RFC assessment. . . .According to plaintiff, Dr. Hawkins' opinions do not constitute substantial evidence because Dr. Hawkins "did not consider some of Holly Mericle's impairments either singularly or in combination with the other impairments." Specifically, plaintiff states that Dr. Hawkins' review of the medical records pre-dated evidence of borderline personality disorder and borderline intellectual functioning, both of which the ALJ concluded were severe impairments.
Logically, if there is no evidence of the effects of borderline personality disorder and borderline intellectual functioning on plaintiff's ability to perform the mental demands of work, then these impairments would not have factored into an analysis of plaintiff's mental residual functional capacity. Such is the case here. Plaintiff repeatedly argues in her brief that Dr. Hawkins' report does not constitute substantial evidence because it pre-dated Dr. Kemp's diagnoses of borderline personality disorder and borderline intellectual functioning. She does not, however, point to any evidence of record showing what, if any, limiting effects are caused by those impairments. Because the impairments diagnosed by Dr. Kemp did not have any bearing on consideration of plaintiff's mental residual functional capacity, Dr. Hawkins' report is not undermined even though it pre-dated Dr. Kemps' diagnoses. As defendant observes: "A mere diagnosis says nothing about disability or about the severity of a claimant's limitations."
B. Evaluation of Medical Opinions
The weight given to medical opinions depends in part on whether they are proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating professional, who has a greater opportunity to know and observe the patient as an individual, than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).
In addition to considering its source, to evaluate whether the Commissioner properly rejected a medical opinion the court considers whether: (1) contradictory opinions are in the record; and (2) clinical findings support the opinions. The Commissioner may reject an uncontradicted opinion of a treating or examining medical professional only for "clear and convincing" reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. While a treating professional's opinion generally is accorded superior weight, if it is contradicted by an examining professional's opinion which is supported by different independent clinical findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be rejected only for "specific and legitimate" reasons supported by substantial evidence. See Lester, 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and legitimate reasons, the Commissioner must defer to the opinion of a treating or examining professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, without other evidence, is insufficient to reject the opinion of a treating or examining professional. See id. at 831. In any event, the Commissioner need not give weight to any conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999) (rejecting treating physician's conclusory, minimally supported opinion); see also Magallanes, 881 F.2d at 751. / / / / / / / / /
As to Dr. Kemp, the ALJ stated:
Dr. Kemp examined the claimant on April 14, 2013, and opined that even with her impairments, the claimant could perform simple and repetitive tasks; she has only a moderately impaired ability to maintain regular attendance in the workplace; her ability to do work activities in a safe manner is severely impaired due to poor concentration and borderline intelligence; her ability to maintain social functioning is severely impaired; her ability to interact appropriately with supervisors, co-workers, and the public is moderately impaired; and her ability to deal with changes in a routine work setting is severely impaired. (Ex. 14F/6).The ALJ gave Dr. Kemp's assessment little weight, however, because it is "seriously inconsistent with the claimant's progress notes that actually show that she has responded to care." The ALJ added: "Dr. Kemp's opinion was also based on diagnostic testing scores that she interpreted 'may be a slightly lower estimate of her ability.'"
Plaintiff argues:
In rejecting Dr. Kemp's opinions, the ALJ articulated two reasons. First, the ALJ stated that Dr. Kemp's opinions are inconsistent with progress notes that show that Holly Mericle responded to care, and that Mericle acknowledged on "multiple occasions" that her anxiety, hallucinations, and mood improved with medications. AR 19.According to plaintiff, this reason is invalid because none of the functional limitations identified by Dr. Kemp related to anxiety, hallucinations, or mood. Plaintiff also argues:
As a second reason for rejecting Dr. Kempt's opinions, the ALJ stated that Dr. Kemp's opinion was based on diagnostic testing scores that may be "slightly lower" estimate of her ability. AR 19; citing AR 424.Plaintiff contends this reason is invalid because she "put forth her best effort" in testing.
Plaintiff's arguments are unpersuasive. Turning to plaintiff's first argument, she acknowledges that the ALJ assigned Dr. Kemp's opinions little weight because progress notes show "that Holly Mericle responded to care, and that Mericle acknowledged . . . her anxiety, hallucinations, and mood improved with medications." Plaintiff focuses on the second statement regarding anxiety, hallucinations, and mood and ignores the first statement regarding, generally / / / / / / as to all of plaintiff's mental limitations, improvement with medications. Whether an impairment improves or is controlled with medication is a proper consideration in weighing medical opinion evidence. See Crane v. Shalala, 76 F.3d 251 (9th Cir. 1996) (concluding that the ALJ properly rejected a treating source opinion where the evidence illustrated that the claimant's mental impairments were controlled with medication). Turning to plaintiff's second argument, the court finds that the ALJ properly noted Dr. Kemp's equivocal language in assigning the doctor's opinion less weight.
In a somewhat inconsistent argument, plaintiff contends that evidence showed that her hallucinations and anxiety were not, in fact, well controlled with medication. According to plaintiff, however, anxiety, hallucinations, and mood are not related to the limitations assessed by Dr. Kemp. Therefore, whether these problems were controlled with medication would seem to be irrelevant to analysis of the ALJ's findings regarding the limitations opined by Dr. Kemp. --------
IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner's final decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's motion for summary judgment (Doc. 14) is denied;
2. Defendant's cross-motion for summary judgment (Doc. 17) is granted; and
3. The Clerk of the Court is directed to enter judgment and close this file. DATED: March 17, 2016
/s/_________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE