KAREN E. SCOTT, Magistrate Judge.
Plaintiff Connie Mendoza appeals the decision of the Commissioner denying her application for Social Security benefits. For the reasons stated below, the Commissioner's decision is affirmed.
In June 2009, Plaintiff filed an application for DIB and SSI. AR 110. She alleged disability beginning on March 6, 2000. AR 110. She appeared at a hearing before administrative law judge ("ALJ") Joel B. Martinez, where she was represented by counsel. AR 42-74, 110. On February 15, 2011, ALJ Martinez issued a decision denying benefits. AR 110-22.
ALJ Martinez found that Plaintiff had the following severe impairments: morbid obesity, asthma, history of seizures, degenerative changes of the lumbar spine, depressive disorder, cognitive disorder, and personality disorder with borderline and dependent traits. AR 113. However, he found that the combination of these impairments did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 ("the Listing"). AR 113.
Regarding her mental impairments, ALJ Martinez found Plaintiff had mild restrictions in activities of daily living; mild difficulties in social functioning; moderate difficulties with regard to concentration; and no episodes of decompensation. AR 114. Because her mental impairments did not cause "at least two `marked' limitations or one `marked' limitation and `repeated' episodes of decompensation, each of extended duration," the ALJ found her mental impairments did not meet or medically equal the criteria of Listing 12.04. AR 113-14.
ALJ Martinez found Plaintiff had the residual functional capacity ("RFC") to perform a limited range of medium work. AR 115. He found that she could engage in postural activities only occasionally; could not climb ladders, ropes, or scaffolds; could not be exposed to heights or hazards; could not have concentrated exposure to fumes or gases; and could perform only simple work, with occasional public contact. AR 115.
ALJ Martinez found Plaintiff was born on December 29, 1957 and therefore qualified as a "younger" individual ages 18-49, on the alleged disability onset date. AR 121. Based on the testimony of a vocational expert, ALJ Martinez opined that Plaintiff could perform medium unskilled work, such as a hand packager, laundry worker, and linen room attendant. AR 122.
Plaintiff sought review by the Appeals Council, but it denied review on February 15, 2011. AR 129-32. Plaintiff then filed an action challenging that decision in this court.
On September 4, 2012, Plaintiff filed a new application for SSI. AR 227-35. She did not file a new DIB claim because ALJ Martinez's decision covered the period through her date last insured. AR 23. She alleged a disability onset date of August 29, 2012. AR 227.
A hearing was held before ALJ Richard Urbin on July 3, 2014, at which Plaintiff was represented by counsel. AR 75-106. ALJ Urbin issued a decision denying benefits on October 27, 2014. AR 20-41.
ALJ Urbin gave the prior decision of ALJ Martinez res judicata effect in part, until December 29, 2012. AR 24. ALJ Urbin declined to rely on the prior decision after that date because, as of December 28, 2012, Plaintiff "became a person of advanced age, which constitutes `changed circumstances.'"
ALJ Urbin found that the impairments identified by ALJ Martinez in February 2011—obesity, asthma, a history of seizures, degenerative changes of the lumbar spine, a depressive disorder, a cognitive disorder, and a personality disorder with borderline and dependent traits—continued to be medically determinable impairments and that, in combination, they were severe. AR 32. He found that Plaintiff's new impairments arising after ALJ Martinez's decision—urinary incontinence, bilateral carpal tunnel syndrome, osteoarthrosis of the hands, and hypertension—were not severe. AR 30, 32. He further found that other impairments mentioned in the medical records—fibromyalgia, vertigo, bilateral upper and lower extremity weakness and a sense of imbalance, abdominal pain, and cardiac problems, and hearing problems—were not medically determinable. AR 30-32.
ALJ Urbin concluded that Plaintiff had the RFC to perform a limited range of medium work as follows. AR 33. She can lift and carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk for 6 of 8 hours; and sit for 6 hours in an 8-hour workday. AR 33. She cannot climb ladders, ropes, or scaffolds, and she cannot work in an environment that involves exposure to heights, hazards or concentrated exposure to fumes or gases. AR 33. In addition, she can perform simple work with occasional public contact. AR 33.
This was nearly the same RFC assigned by ALJ Martinez, except that ALJ Urbin removed the limitation regarding postural maneuvers.
Based on this RFC and the testimony of a vocational expert, ALJ Urbin concluded that Plaintiff could perform work such as a stock selector/laborer, stores; hand packager; and laundry worker. AR 41.
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free from legal error and are supported by substantial evidence based on the record as a whole. 42 U.S.C. § 405(g);
"A decision of the ALJ will not be reversed for errors that are harmless."
A person is "disabled" for purposes of receiving Social Security benefits if he is unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A);
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
If the claimant is not engaged in substantial gainful activity, the second step requires the Commissioner to determine whether the claimant has a "severe" impairment or combination of impairments significantly limiting his ability to do basic work activities; if not, a finding of not disabled is made and the claim must be denied.
If the claimant has a "severe" impairment or combination of impairments, the third step requires the Commissioner to determine whether the impairment or combination of impairments meets or equals an impairment in the Listing of Impairments ("Listing") set forth at 20 C.F.R., Part 404, Subpart P, Appendix 1; if so, disability is conclusively presumed and benefits are awarded.
If the claimant's impairment or combination of impairments does not meet or equal an impairment in the Listing, the fourth step requires the Commissioner to determine whether the claimant has sufficient residual functional capacity ("RFC") to perform his past work; if so, the claimant is not disabled and the claim must be denied.
If that happens or if the claimant has no past relevant work, the Commissioner then bears the burden of establishing that the claimant is not disabled because he can perform other substantial gainful work available in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). That determination comprises the fifth and final step in the sequential analysis.
The parties' Joint Stipulation ("JS") presents the following two issues: (1) whether the ALJ properly evaluated the state agency doctors' opinions regarding Plaintiff's mental limitations; and (2) whether the ALJ properly evaluated Dr. Karamlou's opinions. (Dkt. 26 [JS] at 5.)
In his February 2011 decision, at step three of the five-step disability evaluation analysis, ALJ Martinez found that Plaintiff's mental impairments were not severe. AR 113. He found that Plaintiff had "mild" limitations in social functioning, noting that she "resides with her husband, gets along fair with her friends, neighbors, and others, and attends church," and also that "while at the hearing and when examined by medical professionals [she] communicated clearly by answering questions and providing her case history." AR 114. At step four, ALJ Martinez concluded that Plaintiff's "mental impairments limit her to performing simple work, with occasional public contact," and that these two limitations "account for the claimant's treatment history and alleged difficulty concentrating, using her memory, completing tasks, and with being around others." AR 118.
In a December 2012 report, non-examining state agency physician Dr. M. D. Morgan, MD found that Plaintiff had "moderate" difficulties in maintaining social functioning. AR 143. More specifically, Dr. Morgan found Plaintiff had moderate limitations performing the following social interactions:
AR 147-48. In the conclusion of his report, Dr. Morgan opined, "Able to complete a normal workday/workweek performing simple repetitive tasks, in a setting that involves limited contact with others. ALJ Decision of 2/15/11 is adopted[.]" AR 148.
In June 2013, a second mental evaluation was performed by a different non-examining state agency physician, Dr. Harvey Bilik, Psy. D. AR 163-65. Dr. Bilik noted the same "moderate" social interaction limitations as Dr. Morgan and explained, "The claimant can interact appropriately with others, but may benefit from reduced interactions with the public." AR 165. However, Dr. Bilik ultimately concluded, "ALJ [Martinez] not adopted, as benefit of doubt given to [claimant] and somewhat greater limitations in social interaction posited on PRTF [Psychiatric Review Technique Form] and MRFC [Mental Residual Functional Capacity]." AR 165.
In deciding that Plaintiff did not have a severe impairment at step two of the five-step disability analysis, ALJ Urbin expressly declined to rely on Dr. Bilik's opinion, finding:
AR 33. ALJ Urbin discussed the non-examining physicians' opinions again at step four of the analysis, in determining Plaintiff's RFC:
AR 39.
Plaintiff disagrees with Dr. Morgan's conclusion that his own findings were consistent with the RFC assessed by ALJ Martinez for two reasons. (JS at 6-7.) First, Plaintiff argues that Dr. Morgan's findings indicate "an increase in severity" from "mild" to "moderate." (
Because of these differences, Plaintiff argues, ALJ Urbin erred in finding that there had been no significant change in Plaintiff's mental condition since the prior ALJ decision, because ALJ Urbin "failed to recognize that Dr. Morgan offered functional limitations that are different than what . . . ALJ [Martinez] had assessed." (
"The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings."
In the present case, notwithstanding Dr. Morgan and Dr. Bilik's use of the term "moderate" to describe Plaintiff's social limitations (as opposed to the term "mild," used by ALJ Martinez), both Dr. Morgan and Dr. Bilik ultimately concluded that Plaintiff was able to work as long as she had limited interactions with the public. Dr. Morgan opined that Plaintiff was "[a]ble to complete a normal workday/workweek performing simple repetitive tasks, in a setting that involves limited contact with others." AR 148. Dr. Bilik opined that Plaintiff "can interact appropriate with others, but may benefit from reduced interactions with the public." AR 165.
Moreover, even aside from these opinions, there was substantial evidence in the record to support ALJ Urbin's finding that Plaintiff's mental limitations had not changed since February 2011, when ALJ Martinez's decision issued. As discussed at some length by ALJ Urbin, Plaintiff was taking the same medications for her depression and was non-compliant with therapeutic treatment:
AR 27-28.
The Court finds that, notwithstanding the portions of Dr. Morgan's report to which Plaintiff refers, Plaintiff's longitudinal treatment record for depression—as accurately summarized
SSR 96-6p provides that ALJs "are not bound by findings made by State agency or other program physicians and psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions." SSR 96-6p, 1996 WL 374180, at *2. The ruling further provides, "[T]he opinions of State agency medical and psychological consultants . . . can be given weight only insofar as they are supported by the evidence in the case record. . . ."
ALJ Urbin's decision is not contrary to either of these rulings. As recounted above, ALJ Urbin discussed the opinions of Dr. Morgan and Dr. Bilik, and explained the weight given to each opinion. Thus, there is no legal error.
Dr. Karamlou, an internist, examined Plaintiff in December 2012. AR 384. He noted that her past medical history was "significant for seizure disorder, bronchial asthma, numbness in the left side of the body, and borderline hypertension," and that she was "currently taking lorazepam, Vistaril, fluoxetine, amitriptyline, and albuterol inhaler." AR 385. These appear to have been self-reported by Plaintiff, as Dr. Karamlou also noted that "there is no background information for review." AR 388. Dr. Karamlou "considered" the following diagnoses:
AR 388. He also noted, "The claimant has subjectively stated that she has numbness on the left side of the body. However, it cannot be substantiated objectively." AR 387.
During his physical examination of Plaintiff, Dr. Karamlou found that Plaintiff was able to generate 10 pounds of force using her right hand and 0 pounds of force using her left hand. AR 385. He found that she had "few rhonchi and crackles in both lung fields, with no wheezing." AR 386. He found she did not need an assistive device for ambulation; that she had a normal range of motion in the cervical spine; and that she had "local tenderness" in the lumbar spine, but with "no evidence of muscle spasm or radiculopathy" and normal range of motion. AR 386-87. He found she had normal range of motion in the shoulders, elbows, wrists, hands, hips, knees, and ankles. AR 387.
Dr. Karamlou ultimately concluded that Plaintiff had the following physical limitations:
AR 388-89.
ALJ Urbin considered Dr. Karamlou's opinion but decided to give it little weight, as follows:
AR 38-39.
In Findings #2 and #3, ALJ Urbin discussed Plaintiff's treatment for asthma as follows:
AR 27.
Plaintiff argues that the ALJ failed to provide legally sufficient reasons for rejecting Dr. Karamlou's opinion. (JS at 27.) Plaintiff argues that, because Dr. Karamlou opined that Plaintiff should be limited to light work, adopting his opinion would render Plaintiff disabled under Medical Vocational Guideline Rule 202.04. (JS at 23.)
In deciding how to resolve conflicts between medical opinions, the ALJ must consider that there are three types of physicians who 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.
ALJ Urbin rejected Dr. Karamlou's opinion for two reasons: (1) functional limitations cannot be based on unsubstantiated numbness, per Social Security regulations; and (2) Plaintiff's back pain, seizures, and asthma were considered by ALJ Martinez, and there was no evidence these conditions had worsened since then. AR 38-39.
As to the first reason ALJ Urbin gave for assigning Dr. Karamlou's opinion little weight, Plaintiff argues that her "subjective complaint of left-sided weakness was not considered by Dr. Karamlou." (JS at 23-24.) Plaintiff appears to be arguing that, because of this, it was error for ALJ Urbin to reject Dr. Karamlou's opinion on this basis. However, ALJ Urbin was merely reviewing the possible medical bases for the functional limitations assessed by Dr. Karamlou. ALJ Urbin is correct that, without evidence of a medically determinable impairment that could reasonably be expected to cause the numbness, Plaintiff's numbness cannot be the basis of functional limitations.
Plaintiff stipulates "that the medical evidence does not document much change in regards to [Plaintiff's] back pain and seizure disorder between the two [ALJ] decisions." (JS at 24.) However, Plaintiff argues that "the current treatment records document an increase in the severity of [Plaintiff's] asthma" since ALJ Martinez's decision. (JS at 26.) Plaintiff argues that, due to this worsening in her asthma, she is able to perform "light work at most" because "her symptoms of shortness of breath would create a hazardous situation where she may simply drop a 50-pound object, thereby potentially causing serious injury to herself." (JS at 26-27).
In his February 2011 decision, ALJ Martinez made the following findings regarding Plaintiff's asthma:
AR 116-17.
Plaintiff directs the Court to several treatment records allegedly demonstrating that Plaintiff's asthma worsened after ALJ Martinez's decision. Several of these records are from October and November 2010, prior to ALJ Martinez's February 2011 decision. Plaintiff argues that, even though ALJ Martinez could have considered some of these records, "the severity of [Plaintiff's] condition . . . could not be accepted [by ALJ Martinez] since this same severity had not lasted for at least 12 months." (JS at 25 n.6, citing 20 C.F.R. § 416.909.) In the interest of thoroughness, the Court has reviewed all of the records cited by Plaintiff, to determine whether they show that Plaintiff's asthma worsened.
On October 23, 2010, Plaintiff sought treatment for wheezing, chest congestion, and a dry cough. AR 495. The doctor diagnosed "acute exacerbation of asthma," and prescribed Albuterol MDI, Advair diskus, Flonase nasal spray, Doxycycline 100 mg for 10 days, and Phernagen DM.
About a month later, on November 15, 2010, Plaintiff visited the El Monte walk-in clinic. AR 499. The initial intake nurse noted that Plaintiff complained shortness of breath, and also of dizziness, depression, and mid-chest pressure. AR 499. However, the examining doctor did not note shortness of breath: "Patient came for feeling anxiety, headache, [and] chest pain after verbal quarrel with her husband. No physical abuse as per patient. Was given hotline number for support. No suicidal ideation." AR 500. An examination of Plaintiff's lungs revealed that they were clear, with no wheezes or rhonchi.
Seven months later, on June 16, 2011, Plaintiff visited the El Monte clinic complaining of shortness of breath. AR 347. The doctor who examined her lungs found no rales, rhonchi, or wheezing.
Plaintiff returned to the El Monte clinic about two weeks later, on June 29, 2011. AR 352. She complained of, among other things, "asthma attack with sob [shortness of breath] and wheezing[,] no[t] much improve[d] even with Advair diskus. [H]ad several attack[s] at night and has to use inhaler more frequently."
About five months later, on November 19, 2011, Plaintiff visited the pharmacy for an Albuterol inhaler refill and "was told that [she] needed to see [an] MD[.] Per pt [patient], she had few wheezing esp night time [and] slight sob [shortness of breath]. . . . [N]o cough. [N]o fever." AR 359. Plaintiff was given a third nebulizer treatment and reported that she "felt much better" afterwards. AR 358-59. She received a refill of her Albuterol inhaler but was told to stop taking Advair. AR 359. Thus, Plaintiff's reason for initiating this visit appears to have been merely to obtain a medication refill, and she reported only "slight" shortness of breath. She also responded positively to the nebulizer treatment.
Overall, these records do not show an increase in the severity of Plaintiff's asthma since ALJ Martinez's decision. Over a one-year period, Plaintiff sought treatment for her asthma five times, but these were mostly for medication refills. She also responded well to the nebulizer treatment. The RFC assessed by ALJ Urbin included a limitation that Plaintiff not experience "concentrated exposure to fumes or gases." AR 33. Plaintiff cites no authority or record evidence supporting her assertion that she would "simply drop a 50-pound object" due to shortness of breath. (JS at 26.)
Based on the foregoing, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits.
