(SS) Vincent v. Commissioner of Social Security

8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ROBIN LYNN BIRDSONG VINCENT, No. 2:21-cv-926-KJN 12 Plaintiff, ORDER 13 v. (ECF Nos. 15/17, 18.)

14 COMMISSIONER OF SOCIAL SECURITY, Defendant.

17 Plaintiff seeks judicial review of a final decision by the Commissioner of Social Security denying her application for Disability Insurance Benefits.1 In her summary judgment motion, plaintiff contends the Administrative Law Judge erred in finding her alleged mental impairments non-severe at step two and in omitting any mental limitations from her residual functional capacity. The Commissioner opposed and filed a cross-motion for summary judgment.

22 For the reasons that follow, the court DENIES plaintiff’s motion for summary judgment, GRANTS the Commissioner’s cross-motion, and AFFIRMS the final decision of the Commissioner.

25 /// /// This action was referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties consented to proceed before a Magistrate Judge for all purposes. (ECF Nos. 5, 7, 8.)

1 I. RELEVANT LAW 2 The Social Security Act provides benefits for qualifying individuals with disabilities.

3 Disability is defined, in p a rt, as an inability to “engage in any substantial gainful activity” due to “a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) (Title II).

5 An ALJ is to follow a five-step sequence when evaluating an applicant’s eligibility for benefits.2 20 C.F.R. § 404.1520(a)(4).

7 A district court may reverse the agency’s decision only if the ALJ’s decision “contains legal error or is not supported by substantial evidence.” Ford v. Saul, 950 F.3d 1141, 1154 (9th Cir. 2020). Substantial evidence is more than a mere scintilla, but less than a preponderance, i.e., “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”

11 Id. The court reviews the record as a whole, including evidence that both supports and detracts from the ALJ’s conclusion. Luther v. Berryhill, 891 F.3d 872, 875 (9th Cir. 2018). However, the court may review only the reasons provided by the ALJ in the decision, and may not affirm on a ground upon which the ALJ did not rely. Id. “[T]he ALJ must provide sufficient reasoning that allows [the court] to perform [a] review.” Lambert v. Saul, 980 F.3d 1266, 1277 (9th Cir. 2020).

16 The ALJ “is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Ford, 950 F.3d at 1154. Where evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion “must be upheld.” Id. Further, the The sequential evaluation is summarized as follows: Step one: Is the claimant engaging in substantial gainful activity? If so, the 21 claimant is found not disabled. If not, proceed to step two.

Step two: Does the claimant have a “severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.

23 Step three: Does the claimant’s impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App. 1? If so, the 24 claimant is automatically determined disabled. If not, proceed to step four.

Step four: Is the claimant capable of performing past relevant work? If so, the claimant is not disabled. If not, proceed to step five.

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995). The burden of proof rests with the claimant through step four, and with the Commissioner at step five. Ford, 950 F.3d at 1148.

1 court may not reverse the ALJ’s decision on account of harmless error. Id. II. BACKGROUND AND ALJ’S FIVE–STEP ANALYSIS 3 On December 27 , 2018, plaintiff applied for Disability Insurance Benefits, alleging disability beginning September 3, 2018. (Administrative Transcript (“AT”) 166-169.) Plaintiff claimed disability due to “Arthritis Back, Arms & Hands; Generalized Anxiety Disorder; Major Depressive Disorder, and [a] Right Shoulder Problem.” (See AT 93.) Plaintiff’s application was denied initially and upon reconside ration, and she sought review with an ALJ. (AT 93; 100; 106.)

8 At an August 2020 telephonic hearing, Plaintiff testified about her conditions, and a vocational expert (“VE”) testified regarding the ability of a person with certain limitations to perform various jobs. (See AT 30-62.)

11 On September 2, 2020, the ALJ issued a decision determining plaintiff was not disabled.

12 (AT 15-25.) At step one, the ALJ concluded plaintiff had not engaged in substantial gainful activity since September 3, 2018. (Id.) At step two, the ALJ determined plaintiff had the following severe impairments: cervical degenerative disc disease; lumbar degenerative disc disease; status-post right humerus fracture; right shoulder degenerative joint disease, status-post arthroscopic surgery. (Id.) 17 Regarding plaintiff’s allegations of mental impairments (depression and anxiety), the ALJ found they caused no more than minimal and were therefore non-severe. The ALJ noted plaintiff’s past treatment, mental status exams, her prior failures to take her medications as prescribed, her physicians’ lack of concerns from her treatment providers, certain daily activities demonstrating intact mental faculties, and the then-recent passing of her husband. (AT 18-19.)

22 The ALJ found mild limitations in each of the Paragraph B criteria, discussing plaintiff’s medical records and subjective reports when considering her ability to understand, remember, and apply information; interact with others; concentrate, persist or maintain pace; and adapt or manage herself. (AT 19-20.) Finally, the ALJ recognized the opinions expressed in the prior administrative medical findings, that plaintiff had severe mental impairments limiting her to “simple, routine tasks and instructions with only routine changes in work environment.” (AT 20.)

28 The ALJ found these opinions unpersuasive, however, reasoning that (1) initial reviewer based this opinion on plaintiff’s emotional state at therapy sessions around the time of her husband’s passing, but the reconsidering reviewer noted stabilization; and (2) neither reviewer discussed plaintiff’s clinical findin g s or more recent-medical evidence. Thus, given the mild paragraph B findings and evidence in the record, the ALJ found plaintiff’s depression and anxiety non-severe.

5 (Id.) 6 At step three, the ALJ determined plaintiff’s impairments did not meet or medically equal the severity of an impairment listed in Appendix 1. (AT 20; citing 20 C.F.R. Part 404, Subpart P, Appendix 1). The ALJ then found plaintiff had the residual functional capacity (“RFC”) to perform light work, except she could: 10 lift and/or carry 10 pounds frequently and 20 pounds occasionally[;] stand and/or walk for six hours in an eight-hour workday with 11 normal breaks and sit for six hours in an eight-hour workday with normal breaks[;] occasionally climb ladders, ropes, and scaffolds[;] 12 frequently climb ramps and stairs, balance, stoop, kneel, crouch, and crawl[; and] occasionally reach overhead with the right upper 13 extremity.

14 (AT 21.) In crafting this RFC, the ALJ stated he considered plaintiff’s intense, persistent, and limiting symptoms alongside the medical evidence and medical opinions. (AT 21-23.) In the RFC section, the ALJ focused almost entirely on plaintiff’s physical impairments, discussing plaintiff’s subjective symptom testimony, the medical evidence, and physicians’ opinions. (See id.) The ALJ concluded plaintiff was capable of performing past relevant work as an accounting clerk and administrative clerk, and was therefore not disabled. (AT 23-24.)

20 Plaintiff then filed this action requesting judicial review of the Commissioner’s final decision; the parties filed cross-motions for summary judgment. (ECF Nos. 1, 15, 17, 18, 19.)

22 III. ISSUE PRESENTED 23 Plaintiff contends the ALJ erred in his step-two analysis regarding her mental limitations, as well as excluding any mental limitations from her RFC, arguing the evidence established more than minimal limitations. Plaintiff seeks a remand for a new hearing. (ECF Nos. 17, 19.)

26 The Commissioner disagrees, arguing the ALJ properly found no severe mental impairments and therefore no mental RFC limitations. Thus, the Commissioner contends the decision as a whole is supported by substantial evidence. (ECF No. 18.)

1 IV. DISCUSSION 2 Legal Standards, Mental Impairment Evaluation at Step Two 3 At step two, the A LJ is to distinguish between those impairments that are “severe” and “non-severe.” See 20 C.F.R. § 404.1520. A “severe” impairment is one that significantly limits the physical or mental ability to perform basic work activities. Id. “An impairment or combination of impairments may be found ‘not severe’ only if the evidence establishes a slight abnormality that has no more than a minimal effect on an individual’s ability to work.” Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). When asserting a condition has more than a minimal effect, the plaintiff must provide medical evidence beyond a mere diagnosis and cannot rely solely on symptom testimony. 20 C.F.R. 404.1529(a). However, the step two assessment is a “de minimus screening device to dispose of groundless claims,” and the ALJ’s conclusion must be supported by the medical evidence in the record. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996). Even when evidence in the record is “susceptible to more than one rational interpretation,” the ALJ’s findings are determinative when “supported by inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012).

16 Allegations of disability due to any mental impairment requires an ALJ “to follow a special psychiatric review technique.” Keyser v. Comm’r, 648 F.3d 721, 725 (9th Cir. 2011); 20 18 C.F.R. § 404.1520a(a). This includes rating the degree of functional limitation resulting from any impairments in four main areas: (1) understanding, remembering, or applying information; (2) interacting with others; (3) concentrating, persisting, or maintaining pace; (4) and adapting or managing oneself. 20 C.F.R. § 404, Subpt. P, Appx. 1 (Paragraph B). To be deemed disabled under the Listings for (relevant here) depression and anxiety, the ALJ checks for an ‘extreme’ limitation of one, or ‘marked’ limitation of two, of the four areas of mental functioning.” See Id. at Listing 12.00A “Mental Disorders”; see also 20 C.F.R. § 404.1520a(c)(4) and (d)(1)-(3) (noting use of a five-point scale of “[n]one, mild, moderate, marked, and extreme,” and generally directing that a rating of “none” or “mild” will result in a non-severe finding, while “severe” findings require a comparison to the Listings and consideration at the RFC stage).

28 /// 1 Legal Standards, Medical Opinions and Prior Administrative Medical Findings 2 For applications filed on or after March 27, 2017, an ALJ need “not defer or give any specific evidentiary weig h t, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s) (“PAMF”) [i.e., state-agency medical consultants], including those from [a claimant’s] medical sources.” See 20 C.F.R. § 404.1520c(a). Instead, an ALJ is to evaluate medical opinions and PAMFs by considering their “persuasiveness.” § 404.1520c(a). In determining how “persuasive” the o pinions of a medical source or PAMF is, an ALJ must consider the following factors: supportability, consistency, treatment relationship, specialization, and “other factors.” § 404.1520c(b), (c)(1)-(5).

10 Despite a requirement to “consider” all factors, the ALJ’s duty to articulate a rationale for each factor varies. § 404.1520c(a)-(b). In all cases, the ALJ must at least “explain how [she] considered” the supportability and consistency factors, as they are “the most important factors.”

13 § 404.1520c(b)(2). For supportability, the regulations state: “[t]he more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive [the opinion or PAMF] will be.” § 404.1520c(c)(1). For consistency, the regulations state: “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive [the opinion or PAMF] will be.” § 404.1520c(c)(2). The ALJ is required to articulate findings on the remaining factors (relationship with claimant, specialization, and “other”) only where “two or more medical opinions or prior administrative medical findings about the same issue” are “not exactly the same,” and both are “equally well-supported [and] consistent with the record.”

23 § 404.1520c(b)(2)&(3). An ALJ may address multiple opinions from a single medical source in one analysis. § 416.920c(b)(1) (“source-level articulation”). “[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.” Howard ex rel.

26 Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)).

27 Analysis 28 Here, plaintiff argues the ALJ erred at step two and at the RFC stage in resolving her mental limitations, pointing to the ALJ’s analysis of the Paragraph B factors and, underlying this, his treatment of the medical evidence and opinions expressed in the prior administrative medical findings (“PAMF”). For s upport, plaintiff points to the longitudinal record and her symptom testimony demonstrating her years-long struggle with anxiety and depression, as well as the finding of “severe” mental health impairments by the reviewing psychological consultants at the initial and reconsideration stages. Plaintiff argues the ALJ made patently false assertions regarding the PAMFs’ analyses, fai led to support his unpersuasive finding regarding these opinions with relevant citations to the record during a 12-month period, and inappropriately disregarded portions of plaintiff’s testimony regarding her ability to live and work. Plaintiff argues the only way to rectify these alleged errors is by remanding to an ALJ for a new decision.

11 (ECF No. 17.)

12 The undersigned finds that, despite some lack of clarity in the written decision, the ALJ’s rationale can be discerned and is supported by substantial evidence. See Treichler v. Comm’r, 775 F.3d 1090, 1099 (9th Cir. 2014) (describing an ALJ error as harmless if “the ALJ’s path may reasonably be discerned despite the error.”). The ALJ’s analysis of plaintiff’s alleged mental limitations is contained wholly in the section dedicated to the step-two section. (AT 18-20.)

17 Given the ALJ’s findings of “mild” in each of the four Paragraph B criteria, as well as his omission of any mental limitations from plaintiff’s RFC, the undersigned reads the decision as one determining plaintiff’s alleged mental impairments have no effect on her ability to work.

20 Treichler, 775 F.3d at 1099. Because plaintiff ultimately disputes whether the ALJ provided an accurate and logical bridge between his findings and the evidence cited, the court focuses on the decision’s treatment of this evidence. See Smolen, 80 F.3d at 1290 (noting that a step-two inquiry must be supported by the medical evidence in the record); Bayliss v. Barnhart, 427 F.3d 24 1211, 1217 (9th Cir. 2005) (noting the RFC determination must consider those limitations for which there was record support).

26 First, as to the ALJ’s treatment of the evidence in the record, the undersigned finds that while his analysis could have been more clear, sufficient discussion of the medical record was provided, such that it does not appear the ALJ was wholly ignoring supportive evidence. See Lambert, 980 F.3d at 1277 (“[T]he ALJ must provide sufficient reasoning that allows [for] review.”). The ALJ noted plaintiff’s treatment regimen for her depression and anxiety, including medication and therapy, a nd considered aspects of those records both supporting and detracting from plaintiff’s alleged mental impairments. (See AT 18-19.) Supporting the ALJ’s findings, this included a discussion of records from 2018 showing plaintiff remained generally cooperative, engaged, and feeling well during therapy. (AT 19, citing AT 257 (plaintiff’s active engagement in treatment “going well for her the rapy”); 268 (plaintiff interactive during group discussion and gave input); 274 (presenting to therapy groomed, clean, oriented, fair attitude, engaged); 287 (noting plaintiff was interactive during therapy session, understood topics); 347 (presenting as well groomed, alert, oriented, fair insight and awareness, clear speech, and feeling like she was able to communicate well in therapy).) The ALJ also noted how plaintiff, in these 2018 sessions, failed to maintain her medication, and this combined with her bereavement of her husband likely exacerbated her symptoms during that time. (AT 18-19, citing AT 283 (noting plaintiff “admits she almost never takes the [medications] prescribed for her”).) The ALJ’s discussion also included records from 2019, where plaintiff’s mental state and medication compliance improved somewhat. (AT 19, citing AT 760 (“Her mood is good and she is taking her medications consistently.”).) Most important, the ALJ’s decision contains explicit cites to records generated between April of 2019 and May of 2020 supporting his analysis (records not available to the PAMFs, as discussed below). This includes a July 2019 record demonstrating plaintiff was “currently working as an accountant” which was “going well” (AT 937); would continue with medications and therapy (AT 938); presented as alert and cooperative with no appearance, behavior, or mood issues (AT 939-40); and had no issues with affect, speech, thought or cognition (AT 941-42). The ALJ cited similar records in June 2019 (AT 949, noting no depression, good mood, and medication compliance); January 2020 (AT 959, noting among other things no depression, good medication compliance, and fair judgment and insight); and May 2020 (AT 970, noting among other things plaintiff was feeling better with medication, less anxious, sleeping better). The ALJ cited at least one of these records in the introductory paragraph leading into the Paragraph B analysis (AT 18-19), as well as in the analysis of each of the four Paragraph B criteria (AT 19-20).3 Finally, throughout this analysis, the ALJ was careful to note plaintiff’s subjective reports of memory problems, heightened emotional state during therapy, and diagnoses of depression and anxiet y , such that the court does not find the ALJ was cherry picking the record by wholly ignoring evidence supporting plaintiff’s claim. (See AT 18-19, citing e.g., AT 257 (2018 record showing depression and anxiety “interfering with daily function”), and AT 32-56 (hearing testimony).)

7 Plaintiff urges the court to c onsider other instances in the record, not cited by the ALJ, demonstrating plaintiff was at times less than 100%. However, these instances supporting plaintiff’s averments are of a similar nature to those explicitly considered by the ALJ. (Cf., e.g., AT 963-67 (noting a variation in both mood and medication compliance between mid-2019 and mid-2020); with, e.g., AT 19, citing AT 959, 970 (noting continued effect of depressive disorder and increase in anxiety).) Thus, court cannot read plaintiff’s call as anything other than a request for the undersigned to reweigh the evidence, which is outside of the court’s purview. Molina, 674 F.3d at 1111 (noting that even when evidence in the record is “susceptible to more than one rational interpretation,” the ALJ’s findings are determinative when “supported by inferences reasonably drawn from the record”); Ford, 950 F.3d at 1154 (reminding that where evidence is susceptible to more than one rational interpretation, the ALJ’s conclusion “must be upheld”).

18 Second, plaintiff argues the ALJ’s treatment of the PAMFs was in error. Specifically, plaintiff challenges the ALJ’s unpersuasive findings regarding the psychological consultants’ assignment of severe mental impairments. (AT 64-74; 76-87.) Plaintiff’s application was denied 3 The Commissioner provides in its cross-motion a string cite to medical records generally supporting the ALJ’s findings. However, the Commissioner cites to more records than what the ALJ explicitly considered. (See ECF No. 18 at 10-11 and 13). Plaintiff takes issue with any reliance on those records not cited by the ALJ. (See ECF 19 at 1-2.)

Plaintiff is correct that the court cannot affirm on a ground not expressed by the ALJ. See Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). However, the court reads the Commissioner’s citation to these records not as an argument to consider an additional “ground,” but simply as additional evidence consistent with the grounds expressed in the ALJ’s decision. The court sees no issue with the Commissioner’s inclusion of these additional citations. See Howard ex rel.

Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (“[I]n interpreting the evidence and developing the record, the ALJ does not need to discuss every piece of evidence.”). Regardless, and for clarity, the court refrains from citing to these additional records in this order—despite their apparent consistency with the ALJ’s explicit findings.

1 at the initial and reconsiderations stages, even though the two psychological consultants each found plaintiff moderately limited in several of the Paragraph B criteria. The first consultant opined, after reviewing r e cords up through early 2019, plaintiff was capable of maintaining concentration, persistence, and pace with “short and simple instructions,” interacting with others “in SRT [simple repetitive task] settings,” and adapting to changes appropriately with “some [unspecified] limitations.” (AT 72.) The second consultant reviewed records through June of 2019, and opined plaintiff could ma intain concentration, persistence, and pace with “a 2-step command involving simple instructions,” and of adapt to “ simple and routine changes.” (AT 85.) The ALJ found these opined limitations unpersuasive for, among other reasons, the fact that neither “had access to more recent evidence, which provide[s] a longitudinal picture and a greater number of data points[and which shows] intact cognition and memory, stabilization of mood and that the claimant was able to live independently and secure employment.” (AT 20.)

13 The court interprets this conclusion as a finding that the opinions in the PAMFs lacked consistency and finds the ALJ’s analysis satisfies the applicable regulations and legal standards.

15 Regarding consistency, the regulations state: “[t]he more consistent a medical opinion(s) or prior administrative medical finding(s) is with the evidence from other medical sources and nonmedical sources in the claim, the more persuasive [the opinion or PAMF] will be.” 20 C.F.R. § 404.1520c(c)(2). As noted above, the ALJ sufficiently discussed plaintiff’s medical records, generated both before and after the PAMF reviews. The ALJ found that while plaintiff was not at all times wholly free of her mental impairments, they appeared to be only mild in nature. Where conflicts exist regarding medical testimony and ambiguities in the record, it is for the ALJ to resolve. Ford, 950 F.3d at 1154. The court has no power to reweigh the evidence. Molina, 674 F.3d at 1111 (noting that even when evidence in the record is “susceptible to more than one rational interpretation,” the ALJ’s findings are determinative when “supported by inferences reasonably drawn from the record.”).

26 Plaintiff is correct that the decision contains some factual inaccuracies and broadly worded statements. For example, the ALJ states in his Paragraph B analysis that “[n]one of [plaintiff’s] treatment providers documented difficulty getting along with the claimant or || appropriate behavior.” (AT 19.) However, plaintiff pointed to at least one instance where | plaintiffs therapist “had [plaintiff] wait for 7 mins [in the waiting area], as she has the ability to || yell and scream at staff when you don’t come to get her right away.” (AT 762.) Despite this fact, | the analysis regarding plaintiffs ability to interact with others cites to other evidence supporting || that determination. (See AT 19.) Also for example, when considering the opinions expressed in || the PAMFs, the ALJ states that “[n]either reviewer discussed actual mental status clinical || findings[.]” (AT 20.) This seems inaccurate, as the initial and reconsideration determinations do | contain the reviewers’ discussions of plaintiffs progress notes across the medical record. (See || AT 67-68; 79-80.) The court supposes the ALJ intended to say that these PAMFs did not provide || a detailed rationale of their severe findings, as each reviewer simply answered yes/no, found | limitations of “moderately” to “not significantly,” or found work-related limitations without || explanation. (See AT 71-72; 84-85.) Thus, even crediting plaintiff's arguments, such errors are | harmless, given that the ALJ provided sufficient reasoning for his unpersuasive findings on the | PAMFs and sufficient citation to the record. Ford, 950 F.3d at 1154 (noting the court may not || reverse the ALJ’s decision on account of harmless error). In reviewing the decision on the record || asa whole, Luther, 891 F.3d at 875, the ALJ’s path can be reasonably discerned. Treichler, 775 | F.3d at 1099.

18 | V. CONCLUSION 19 Having resolved plaintiffs claims of error, the court finds the ALJ’s decision is supported | by substantial evidence in the record as a whole. Buck, 869 F.3d at 1048. Accordingly, IT IS | HEREBY ORDERED that: 22 1. Plaintiff's motion for summary judgment (ECF No. 15/17) is DENIED; 23 2. The Commissioner’s cross-motion (ECF No. 18) is GRANTED; and 24 3. The final decision of the Commissioner is AFFIRMED.

25 || Dated: May 24, 2022 %6 Foci) Aharon 27 KENDALL J. NE vine.926 UNITED STATES MAGISTRATE JUDGE 1]