Lentz v. Commissioner, Social Security Administration

          ORDER

          H. Russel Holland United States District Judge.

         This is an action for judicial review of the denial of disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Plaintiff Rance Lentz has timely filed his opening brief, ^[1] to which defendant, the Commissioner of the Social Security Administration, has timely responded.^[2] Oral argument was requested but is not deemed necessary.

         Procedural Background

         On August 2, 2015, plaintiff filed an application for disability benefits under Title II of the Social Security Act, alleging that he became disabled on February 27, 2015. Plaintiff alleged that he was disabled due to ulcerative colitis, IgA pemphigus, migraines, rheumatoid arthritis, depression, kidney stones, and uveitis. Plaintiff's application was denied initially. Plaintiff requested a hearing. After an administrative hearing on January 31, 2018, an administrative law judge (ALJ) denied plaintiff's application. On May 2, 2018, the Appeals Council denied plaintiff's request for review, thereby making the ALJ's March 5, 2018, decision the final decision of the Commissioner. On July 2, 2018, plaintiff commenced this action in which he asks the court to find that he is entitled to disability benefits.

         General Background

         Plaintiff was born on February 6, 1979. He was 38 years old at the time of the administrative hearing. Plaintiff has a high school education. Plaintiff's past relevant work includes work as an auto mechanic, heavy equipment mechanic, and heavy equipment operator.

         The ALJ's Decision

         The ALJ first determined that plaintiff met “the insured status requirements of the Social Security Act through September 30, 2020.”^[3]

         The ALJ then applied the five-step sequential analysis used to determine whether an individual is disabled.^[4]

         At step one, the ALJ found that plaintiff had “engaged in substantial gainful activity during the following periods: February 27, 2015 through March 31, 2015” but that “there has been a continuous 12-month period[] during which the claimant did not engage in substantial gainful activity.”^[5] The ALJ noted that his “remaining findings address the period[] the claimant did not engage in substantial gainful activity.”^[6]

         At step two, the ALJ found that plaintiff had “the following severe impairments: longstanding history of ulcerative colitis status post bowel resection surgery; hemiplegic headaches and associated mild hemiparesis on the right side; migraine headaches; hypertension; major depressive disorder; generalized anxiety disorder; possible malingering; [and] possible conversion disorder. . . .”^[7] The ALJ found plaintiff's septum secundum and IgA pemphigus non-severe and that rheumatoid arthritis, fibromyalgia, and a seizure-like condition were “nonmedically determinable impairments.”^[8]

         At step three, the ALJ found that plaintiff did “not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. . . .”^[9] The ALJ considered Listings 4.00 (cardiovascular system), 5.00 (digestive system), 12.04 (depressive, bipolar and related disorders), and 12.06 (anxiety and obsessive-compulsive disorders). The ALJ considered the “paragraph B” criteria and found that plaintiff had moderate limitations as to understanding, remembering, and applying information; mild limitations as to interacting with others; moderate limitations with regard to concentration, persistence, or pace; and moderate limitations as to adapting or managing oneself.^[10] The ALJ found that the “paragraph C” criteria were not met.^[11]

         “Between steps three and four, the ALJ must, as an intermediate step, assess the claimant's RFC.” Bray v. Comm'r of Social Security Admin., 554 F.3d 1219, 1222-23 (9th Cir. 2009). The ALJ found that plaintiff had the

residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except the claimant is additionally limited to: sitting for six hours, and standing/walking for a combined total of five hours during an eight-hour workday; occupations that would permit a sit/stand option allowing the claimant to alternate between sitting and standing positions throughout the day without going off task; frequent pushing/pulling with the right upper extremity; occasional overhead reaching with the right upper extremity; occasional stooping, kneeling, crouching, crawling[, ] and climbing of ramps or stairs; no climbing of ladders, ropes, or scaffolds; no exposure to unprotected heights; occasional exposure to moving and hazardous machinery; occupations that would allow reasonable use of the restroom; simple, routine and repetitive tasks; [and] no high-paced production quotas or changes in the workplace setting.^[12]

         The ALJ gave Dr. Lebeau's opinion^[13] great weight.^[14] The ALJ gave little weight to Dr. Hanley's December 2017 opinion.^[15] The ALJ gave Dr. Lace's opinion^[16] great weight.^[17]The ALJ gave little weight to the opinion of Josie Barry, M.A.^[18] The ALJ gave some weight^[19] to the opinions of Dr. Fraser^[20] and Dr. Kiehl.^[21] And, the ALJ gave little weight^[22] to the lay testimony of Lou Ann Fett^[23] and Kim Wood.^[24]

         The ALJ found plaintiff's pain and symptom statements less than credible because they were inconsistent with the medical evidence.^[25]

         At step four, the ALJ found that plaintiff was “unable to perform any past relevant work. . . .”^[26]

         At step five, the ALJ found that “there are jobs that exist in significant numbers in the national economy that the claimant can perform, ” including working as an assembler, basket filler, or garment sorter.^[27]

         Thus, the ALJ concluded that plaintiff had “not been under a disability, as defined in the Social Security Act, from February 27, 2015, through the date of this decision. . . .”^[28]

         Standard of Review

         Pursuant to 42 U.S.C. § 405(g), the court has the “power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner. . . .” The court “properly affirms the Commissioner's decision denying benefits if it is supported by substantial evidence and based on the application of correct legal standards.” Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). “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.'” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). “‘To determine whether substantial evidence supports the ALJ's decision, [the court] review[s] the administrative record as a whole, weighing both the evidence that supports and that which detracts from the ALJ's conclusion.'” Id. (quoting Andrews, 53 F.3d at 1039). If the evidence is susceptible to more than one reasonable interpretation, the court must uphold the Commissioner's decision. Id. But, the Commissioner's decision cannot be affirmed “‘simply by isolating a specific quantum of supporting evidence.'” Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (quoting Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)).

         Discussion

         Plaintiff first argues that the ALJ erred as to Dr. Hanley's January 15, 2017 opinion. On January 15, 2017, Dr. Hanley, who was plaintiff's primary care physician, opined that plaintiff could continuously lift/carry 10 pounds; could frequently lift/carry 20 pounds; could occasionally lift/carry up to 100 pounds; could sit for 4 hours; could stand/walk for 2 hours; could occasionally climb stairs/ramps; could never climb ladders/scaffolds; could frequently balance and stoop; could occasionally kneel, crouch, and crawl; could never be around unprotected heights, dust, fumes, odors, or pulmonary irritants; could occasionally be around moving mechanical parts; could occasionally operate a motor vehicle; could frequently be around humidity and wetness; and could occasionally be around extreme cold, extreme heat, and vibrations.^[29] Dr. Hanley also opined that plaintiff would be unable to work when having a headache and that he would be absent from work more than four times a month because of his headaches.^[30] On December 26, 2017, Dr. Hanley wrote that plaintiff

has a significant inherited disease that has limited his ability to seek employment or remain in a position of employment on a regular basis. He has had numerous hospitalizations over the past years, which have included surgical as well as medical interventions. He has both physical and mental health components to his condition. He is often physically capable, but has unpredictable and frequent exacerbations of his disease process that require urgent medical attention and would indeed prevent him from working. These include transient changes to his eyesight, increased pain, recurrent infections, heart arrhythmias, to name a few of his impairments. He has had these limitations, most of his adult life, but worsened in February 2015 based on my review of the medical record. I would foresee his limitations as outlined above persisting into the foreseeable future.^[31]

         The ALJ rejected Dr. Hanley's December 2017 opinion because it was not supported by his treatment notes.^[32] Plaintiff does not challenge this finding. Rather, plaintiff argues that the ALJ erred as to Dr. Hanley's January 2017 opinion because the ALJ did not even mention this opinion. Defendant concedes that it was error for the ALJ to not consider Dr. Hanley's January 2017 opinion and that this error was not harmless.^[33]

         Plaintiff next argues that the ALJ erred as to Dr. Curns' report. Dr. Curns evaluated plaintiff on November 21, 2017 and wrote that plaintiff had

clinical depression, anxiety, severe somatic symptoms, social withdrawal, and extreme psychological turmoil. He is isolated from others and has unusual beliefs and eccentric behaviors. Mr. Lentz has a strong potential for having a conversion disorder that worsens in times of stress. He has difficulty making decisions and he has low self-esteem. Mr. Lentz is socially awkward and is likely to have problems with work and in relationships. He has limited psychological resources for handling stress and he may have symptoms of PTSD.^[34]

         The ALJ did not address Dr. Curns' report, which was based on a battery of tests, other than to note that Dr. Curns had stated that plaintiff's clinical presentation should be viewed with caution due to an “‘over-reporting of symptoms.'”^[35] Defendant concedes that the ALJ erred in not considering Dr. Curns' evaluation and that this error was not harmless.^[36]

         Plaintiff next argues that the ALJ erred by rejecting Dr. Martino's opinion. Dr. Martino treated plaintiff's headaches and depression.^[37] But, as defendant aptly points out, Dr. Martino did not offer any opinions. What plaintiff takes issue with is the fact that the ALJ did not mention a June 15, 2015 treatment note, in which Dr. Martino noted that plaintiff reported that “diesel fumes can be a trigger” for his headaches.^[38] Plaintiff argues that the ALJ should have considered this notation because it is consistent with Dr. Hanley's opinion that plaintiff should avoid all exposure to fumes.

         There was no error as to Dr. Martino's treatment notes. The reference to diesel fumes being a trigger was a self-report, not a determination that was made by Dr. Martino.

         Finally, plaintiff argues that the ALJ erred in rejecting the opinion of Josie Barry. On January 9, 2018, Barry opined that plaintiff had no limitations in his ability to interact appropriately with the general public, ask simple questions or request assistance, maintain socially appropriate behavior, and adhere to basic standards of neatness and cleanliness; moderate limitations in his ability to understand/remember/carry out very short and simple instructions, sustain an ordinary routine without special supervision, make simple work-related decisions, accept instructions and respond appropriately to criticism from others, get along with coworkers and peers without distracting them or exhibiting behavioral extremes, be aware of normal hazards and take appropriate precautions, and travel in unfamiliar places or use public transportation; and extreme limitations in his ability to remember locations and work-like procedures, understand/remember/carry out detailed instructions, maintain attention and concentration for extended periods of time, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, work in coordination with others or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number of and length of rest periods, respond appropriately to changes in the work setting, set realistic goals or make plans independently of others, and tolerate normal levels of stress.^[39] Barry also opined that plaintiff would miss 28 days of work per month because of his mental impairments and that she did not “believe that he could work on a regular basis” because “[h]is mental impairment is tied to his physical impairments making it very difficult for him to have a lot of ‘good days.'”^[40]

         The ALJ rejected Barry's opinion because Barry opined that plaintiff had extreme ...