Summary
addressing the new regulations that apply to Social Security applications filed on or after March 27, 2017
Summary of this case from Christina S. v. Comm'r, Soc. Sec. Admin.Opinion
Case No. 3:19-cv-01773-SB
03-03-2021
ROBERT S., Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Robert S. ("Plaintiff") brings this appeal challenging the Commissioner of the Social Security Administration's ("Commissioner") denial of his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. The Court has jurisdiction over Plaintiff's appeal pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
For the reasons explained below, the Court recommends that the district judge affirm the Commissioner's decision because it is free of legal error and supported by substantial evidence.
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STANDARD OF REVIEW
The district court may set aside a denial of benefits only if the Commissioner's findings are "'not supported by substantial evidence or based on legal error.'" Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). Substantial evidence is defined as "'more than a mere scintilla [of evidence] 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)).
The district court "cannot affirm the Commissioner's decision '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)). Instead, the district court must consider the entire record, weighing the evidence that both supports and detracts from the Commissioner's conclusions. Id. Where the record as a whole can support either the grant or denial of Social Security benefits, the district court "'may not substitute [its] judgment for the [Commissioner's].'" Bray, 554 F.3d at 1222 (quoting Massachi v. Astrue, 486 F.3d 1149, 1152 (9th Cir. 2007)).
BACKGROUND
I. PLAINTIFF'S APPLICATIONS
Plaintiff was born in September 1992, making him twenty-four years old on October 1, 2016, the alleged disability onset date. (Tr. 15, 234.) Plaintiff received a GED and has past work experience as a dish washer, prep cook, cashier, and janitor. (Tr. 77, 105-06.) In his applications, Plaintiff alleges disability due to Aspbergers syndrome, depression, anxiety, ADHD, and hypothyroidism. (Tr. 95, 214.)
In both of his applications, Plaintiff alleged disability beginning November 15, 2016, however, Plaintiff amended his alleged onset date to October 1, 2016, at his hearing. (Tr. 15.)
The Commissioner denied Plaintiff's applications initially and upon reconsideration, and on September 21, 2017, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 142-43.) Plaintiff and a vocational expert ("VE") appeared and testified at an administrative hearing held on November 1, 2018. (Tr. 33-67.) On December 27, 2018, the ALJ issued a written decision denying Plaintiff's applications. (Tr. 12-32.) On October 11, 2019, the Appeals Council denied Plaintiff's request for review, making the ALJ's written decision the final decision of the Commissioner. (Tr. 1-6.) Plaintiff now seeks judicial review of the ALJ's decision.
II. THE SEQUENTIAL PROCESS
A claimant is considered disabled if he or she is unable to "engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment 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). "Social Security Regulations set out a five-step sequential process for determining whether an applicant is disabled within the meaning of the Social Security Act." Keyser v. Comm'r Soc. Sec. Admin., 648 F.3d 721, 724 (9th Cir. 2011). Those five steps are: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or equals a listed impairment; (4) whether the claimant can return to any past relevant work; and (5) whether the claimant can perform other work that exists in significant numbers in the national economy. Id. at 724-25.
The claimant bears the burden of proof for the first four steps. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001). If the claimant fails to meet the burden at any of those steps, the claimant is not disabled. Id. at 954. The Commissioner bears the burden of proof at step five of the analysis, where the Commissioner must show the claimant can perform other work that exists in significant numbers in the national economy, "taking into consideration the claimant's residual functional capacity, age, education, and work experience." Tackett, 180 F.3d at 1100. If the Commissioner fails to meet this burden, the claimant is disabled. See Bustamante, 262 F.3d at 954.
III. THE ALJ'S DECISION
The ALJ applied the five-step sequential evaluation process to determine if Plaintiff is disabled. (Tr. 12-32.) At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 1, 2016, the alleged disability onset date. (Tr. 17.) At step two, the ALJ determined that Plaintiff suffered from the following severe, medically determinable impairments: obstructive sleep apnea, autism spectrum disorder, unspecified anxiety disorder, unspecified depressive order, and ADHD. (Id.) At step three, the ALJ concluded that Plaintiff did not have an impairment that meets or equals a listed impairment. (Tr. 18.) The ALJ then concluded that Plaintiff had the residual functional capacity ("RFC") to perform a full range of work at all exertional levels, subject to the following nonexertional limitations: (1) Plaintiff is "limited to routine, repetitive tasks that can be learned in a period of 30 days or by demonstration, consistent with occupations of a SVP of 1 or 2"; (2) Plaintiff "should have no interaction with the public"; (3) Plaintiff is "limited to occasional, superficial interaction with coworkers, but no teamwork"; and (4) Plaintiff is limited to "occasional interaction with supervisors." (Tr. 19.) At step four, the ALJ concluded that Plaintiff was not disabled because he retained the RFC to perform his past relevant work as a janitor. (Tr. 25.) In addition, the ALJ made an alternative step five finding that other work existed in significant numbers in the national economy that Plaintiff could perform, including work as a hand packager and lab helper. (Tr. 26.)
DISCUSSION
Plaintiff argues on appeal that the ALJ erred by failing to provide specific and legitimate reasons for discounting the opinion of Plaintiff's examining psychologist, Dr. Robinann Cogburn ("Dr. Cogburn"). (Pl.'s Br. at 6-8.) Defendants counter that the "specific and legitimate reasons" standard is no longer required under new regulations, and that the ALJ properly considered Dr. Cogburn's opinion. (Def.'s Br. at 13.) As explained below, the Court finds that the Commissioner's decision is free of harmful legal error and supported by substantial evidence in the record.
I. APPLICABLE LAW
Plaintiff filed his applications for benefits on April 5, 2017. (Tr. 213, 234.) "For claims filed on or after March 27, 2017, Federal Regulation 20 C.F.R. 416.920c governs how an ALJ must evaluate medical opinion evidence." Tyrone W. v. Saul, No. 3:19-cv-01719-JJVI, 2020 WL 6363839, at * 6 (D. Or. Oct. 28, 2020) (citing Revisions to Rules Regarding the Evaluation of Medical Evidence ("Revisions to Rules"), 2017 WL 168818, 82 Fed. Reg. 5844, at *5867-68 (Jan. 18, 2017)); see also Linda F. v. Saul, No. C20-5076-MAT, 2020 WL 6544628, at *2 (W.D. Wash. Nov. 6, 2020) ("Because plaintiff filed her applications after March 27, 2017, new regulations apply to the ALJ's evaluation of medical opinion evidence.").
Under the new regulations, "the Commissioner will no longer give any specific evidentiary weight to medical opinions; this includes giving controlling weight to any medical opinion." Allen O. v. Comm'r of Soc. Sec., 3:19-cv-02080-BR, 2020 WL 6505308, at *5 (D. Or. Nov. 5, 2020) (citing Revisions to Rules, 2017 WL 168819, at *5867-68). Instead, the ALJ considers all medical opinions and "evaluate[s] their persuasiveness" based on "supportability," "consistency," "relationship with the claimant," "specialization," and "other factors." 20 C.F.R. §§ 404.1520c(a), 416.920c(a).
The new regulations require ALJs to "articulate . . . how persuasive [they] find all of the medical opinions" and "explain how [they] considered the supportability and consistency factors." 20 C.F.R. §§ 404.1520c(b), 416.920c(b). "At the least, this appears to necessitate that an ALJ specifically account for the legitimate factors of supportability and consistency in addressing the persuasiveness of a medical opinion." Linda F., 2020 WL 6544628, at *2. "The 'more relevant the objective medical evidence and supporting explanations presented' and the 'more consistent' with evidence from other sources, the more persuasive a medical opinion or prior finding." Id. at *2 (quoting 20 C.F.R. §§ 404.1520c(c)(1)-(2)).
"The ALJ may but is not required to explain how other factors were considered, as appropriate, including relationship with the claimant (length, purpose, and extent of treatment relationship; frequency of examination); whether there is an examining relationship; specialization; and other factors, such as familiarity with other evidence in the claim file or understanding of the Social Security disability program's policies and evidentiary requirements." Linda F., 2020 WL 6544628, at *2. However, an ALJ is required to explain "how they considered other secondary medical factors [if] they find that two or more medical opinions about the same issue are equally supported and consistent with the record but not identical." Tyrone, 2020 WL 6363839, at *6 (citing 20 C.F.R. §§ 404.1520c(b)(2) and 404.1520c(b)(3)). The Court must "continue to consider whether the ALJ's analysis has the support of substantial evidence." Linda F., 2020 WL 6544628, at *2 (citation omitted).
II. ANALYSIS
As an initial matter, the parties disagree about the relevance of prior Ninth Circuit case law in light of the amended regulations. Specifically, the parties dispute whether an ALJ is still required to provide specific and legitimate reasons for discounting a contradicted opinion from a treating or examining physician.
The Commissioner contends that the new regulations change the standard for rejecting medical providers' opinions. (Def.'s Br. at 11-12.) Specifically, the Commissioner argues that the new regulations eliminate a hierarchy among medical opinions, superseding any priority upon which the Ninth Circuit's current standards were based, including the specific and legitimate reasons standard. (See Def.'s Br. at 11-13.) The Commissioner further argues that the new regulations no longer require an ALJ to reject an opinion at all, but instead require an ALJ merely to address the persuasiveness of the opinion. (See id. at 6, 11.)
Under current Ninth Circuit law, an ALJ must provide "clear and convincing" reasons to reject an uncontradicted opinion from a treating or examining doctor, and "specific and legitimate" reasons to reject a contradicted opinion from such doctor. Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). The regulations applicable to applications filed before March 27, 2017, set out a hierarchy for treatment of opinion evidence that, consistent with Ninth Circuit case law, gives treating sources more weight than non-treating sources, and examining sources more weight than non-examining sources. See Standards for Consultative Examinations and Existing Medical Evidence, 56 Fed. Reg. 36,932, 1991 WL 142361 (Aug. 1, 1991); Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (adopting the "clear and convincing" and "specific and legitimate" standards for rejecting treating and examining source medical opinions); Murray v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983) (holding that "[i]f the ALJ wishes to disregard the opinion of the treating physician, he or she must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evidence in the record"); see also Thomas S. v. Comm'r of Soc. Sec., No. C20-5083 RAJ, 2020 WL 5494904, at *2 (W.D. Wash. Sept. 11, 2020) (noting that the "hierarchy [for treatment of medical opinion evidence] underpinned the requirement in the Ninth Circuit that an ALJ must provide clear and convincing reasons to reject an uncontradicted doctor's opinion and specific and legitimate reason where the record contains contradictory opinion").
In 2017, the Commissioner revised agency regulations to eliminate the hierarchy of medical opinions. See Revisions to Rules, 2017 WL 168819. Under the new rules, the Commissioner "will not defer or give any specific evidentiary weight . . . to any medical opinion(s) . . . including those from [the claimant's] medical sources." 20 C.F.R. §§ 404.1520c(a), 416.920c(a). The Ninth Circuit has not yet addressed whether or how the new regulations alter the standards set forth in prior cases for rejecting a medical opinion. See, e.g., Titus L.S. v. Saul, No. 2:20-cv-04825-AFM, 2021 WL 275927, at *6 (C.D. Cal. Jan. 26, 2021) (noting that "it is not clear whether the Ninth Circuit precedent requiring that an ALJ provide "'clear and convincing' or 'specific and legitimate reasons' before rejecting a treating source's medical opinions remain viable"); Thomas S., 2020 WL 5494904, at *2 ("The Ninth Circuit has not yet stated whether it will continue to require an ALJ to provide 'clear and convincing' or 'specific and legitimate' reasons for rejecting medical opinions given the Commissioner's elimination of the hierarchy."). Nevertheless, the new regulations still require the ALJ to explain her reasoning for discounting a medical opinion from a treating or examining physician to allow for meaningful judicial review. See 20 C.F.R. §§ 404.1520c(a), 416.920c(a); see also Scott D. v. Comm'r of Soc. Sec., No. C20-5354 RAJ, 2021 WL 71679, at *4 (W.D. Wash. Jan. 8, 2021) (noting that "[e]ven under the Commissioner's new regulations, the ALJ must articulate why he has rejected the opinion" and that "the Ninth Circuit's 'specific and legitimate standard' is merely a benchmark against which the Court evaluates that reasoning"). The Court therefore considers whether the ALJ adequately addressed the persuasiveness, including the supportability and consistency, of Dr. Cogburn's opinion.
See also Titus, 2021 WL 275927, at *7 (noting that "the Commissioner's new regulations still require the ALJ to explain his or her reasoning and to specifically address how he or she considered the supportability and consistency of the opinion" and "even assuming that the Ninth Circuit's more stringent requirements are inapplicable here, the Court still must determine whether the ALJ adequately explained how he considered the supportability and consistency factors relative to the physicians' opinions and whether the reasons were supported by substantial evidence"); Thomas, 2020 WL 5494904, at *2 ("The Commissioner's new regulations still require the ALJ to explain his or her reasoning, and to specifically address how he or she considered the supportability and consistency of the opinion" and that "[o]bviously, the ALJ's reasoning must remain legitimate, meaning lawful or genuine.").
The Court finds that the ALJ properly evaluated Dr. Cogburn's medical opinion under the new regulations. Dr. Cogburn examined Plaintiff on October 6, 2015, approximately one year before his alleged disability onset date. (Tr. 594-97.) The evaluation consisted of: (1) a clinical review; (2) mental status observations; (3) a review of records; (4) interviews with Plaintiff's family members; and (5) psychological testing. (Tr. 594.) Dr. Cogburn opined that Plaintiff's performance on the WAIS-IV test revealed his Verbal Comprehension, Perceptual Reasoning, and General Ability Index scores to be in the average range; his Processing Speed and Working Memory scores were in the low average range; memory testing revealed average learning, retention, and recall; executive functioning testing showed Plaintiff to be in the average to low average range for mental flexibility, verbal fluency, and sequencing; additional testing revealed "significant difficulties" in organization, planning, inhibition and shifting sets; and Plaintiff's academic skills ranged from low-average to above average. (Tr. 594-96.) Dr. Cogburn further opined that Plaintiff's ability to sustain focus and pace in productive activity is "impaired," his interpersonal functioning is "markedly impaired," and his adaptive functioning is "significantly impaired." (Id. at 596.)
Dr. Cogburn diagnosed Plaintiff with autism spectrum disorder, unspecified depressive disorder, rule out mental-behavioral disorder due to use of cannabinoids, and ADHD. (Tr. 596.) She noted that Plaintiff's "autistic symptoms present significant challenges in the areas of adult development and occupational function" which "are likely to lead to significant limitations in interpersonal skills, communication, and aspects of self-direction and self-care." (Id.) Dr. Cogburn made several recommendations regarding follow-up actions, including separate evaluations for possible sleep apnea and hypothyroidism, and referrals to a mental health provider, speech and language pathologist, and occupational therapy. (Id.)
Ultimately, Dr. Cogburn concluded that Plaintiff's "capacity to succeed in competitive employment is unclear." (Id.) Dr. Cogburn recommended several workplace accommodations, including, inter alia:
• A quiet work area away from distractions and interruptions and where motion or use of sensory inputs . . . will not be distracting for other employees.(Tr. 597.)
• Increased time for learning new tasks.
• Increased time for completing tasks, checking for accuracy, and making corrections.
• Modifications in break schedules to permit [Plaintiff] to seek support through phone calls or use other coping methods if he is anxious.
The ALJ reviewed Dr. Cogburn's examination report and found it to be "strong persuasive evidence that Plaintiff possessed the cognitive ability to perform fulltime work consistent with the RFC found in the decision, which includes a specific limitation to simple, repetitive tasks that can be learned in 30 days or by demonstration." (Tr. 22.) The ALJ specifically articulated in her decision "how persuasive" she found Dr. Cogburn's opinion, including its supportability and consistency, as required by the new regulations. (See Tr. 21-22; 20 C.F.R. §§ 404.1520c(b), 416.920c(b).) For example, the ALJ found that Dr. Cogburn's opinions were supported by objective medical findings indicating that Plaintiff's Verbal Comprehension, Perceptual Reasoning, and General Ability Index scores were in the average range, his Working Memory and Processing Speed scores were in the low average range, his overall memory testing showed average learning, retention, and recall, and his executive functioning indicated a normal and mildly impaired range. (Tr. 22.) The ALJ found Dr. Cogburn's opinion to be consistent with Dr. Kaper's opinion, who diagnosed Plaintiff with autism, ADHD, and adjustment order with anxiety and depressed mood, and noted that Plaintiff has "serial difficulties adjusting to new circumstances/underlying interpersonal conflict." (Tr. 23.) The ALJ also found Dr. Cogburn's opinion consistent with state psychologist Dr. Bill Hennings' opinion, who opined that Plaintiff had mild limitations in understanding, remembering, or applying information, moderate limitations in interacting with others, concentrating, persisting, or maintaining pace, and is capable of cursory contact with coworkers and supervisors. (Tr. 23-24.) The ALJ's analysis addressed persuasiveness, including supportability and consistency, and the analysis is supported by substantial evidence in the record. Accordingly, the ALJ did not err in evaluating Dr. Cogburn's medical opinion.
Plaintiff argues that the ALJ erred by ignoring Dr. Cogburn's recommendation that Plaintiff would benefit from "increased time for learning new tasks," "increased time for completing tasks, checking for accuracy, and making corrections" and "[a] quiet work area away from distractions and interruptions." (Pl.'s Br. at 3.) Plaintiff contends that the social limitations noted by Dr. Cogburn "necessitate specific accommodations" which, according to the VE's testimony, "preclude all competitive employment." (Pl.'s Reply at 4.) The Court disagrees.
"An ALJ does not err by declining to include physician recommendations, as opposed to imperatives, when formulating a claimant's RFC." Jacob v. Berryhill, 756 F. App'x 709, 713 (9th Cir. 2018) (citing Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017), and Rounds v. Comm'r of Soc. Sec. Admin., 807 F.3d 996, 1006 (9th Cir. 2015)). This is so because "the RFC represents 'the most [a claimant] can still do despite [his or her] limitations,' rather than a claimant's ideal work conditions." Id. Contrary to Plaintiff's assertions, the ALJ accounted for Plaintiff's functional limitations in the RFC. For example, Plaintiff's need for increased time for learning and completing new tasks is reflected in the RFC, which limits Plaintiff to "simple, repetitive tasks that can be learned in 30 days or by demonstration." (Tr. 22; see Jacob, 756 F. App'x at 713 ("Jacob contends that the RFC fails to account for Dr. Cogburn's opinion that 'Jacob would likely succeed most easily with close supervision, was likely to need repeated instructions and frequent reminders, and would benefit from a job coach to learn skills and routines in a work setting.' However, the ALJ did account for Jacob's likely need for repeated instructions and reminders in her RFC by limiting her to 'simple, routine and repetitive work tasks, involving simple work instructions.'"). In addition, Dr. Cogburn's opinion that Plaintiff's "conditions are likely to lead to significant limitations in interpersonal skills, communication, and aspects of self-direction" is reflected in Plaintiff's RFC, which limits Plaintiff to "no interaction with the public," "occasional interaction with supervisors," and "occasional, superficial interaction with coworkers, but no teamwork." (Tr. 19.)
As Plaintiff correctly points out, Dr. Cogburn did not opine that Plaintiff possesses cognitive limitations that preclude him from maintaining full time employment. (See Pl.'s Reply at 3; Tr. 616, noting that Plaintiff has average intelligence as reflected by the WAIS-IV General Ability Index scores, and academic skills ranging from low-average to above average). Rather, Dr. Cogburn concluded that it was "unclear" whether Plaintiff would succeed in competitive full time employment, and recommended several accommodations that would be beneficial to Plaintiff in a competitive work environment. Those recommended accommodations do not reflect an opinion about Plaintiff's functional capacity. See Ernesto S.S. by Ramirez v. Berryhill, No. 2:17-cv-05928-KES, 2019 WL 285796, at *4 (C.D. Cal. Jan. 22, 2019) (noting that, in making recommendations regarding workplace accommodations, the claimant's physician "expressed an opinion about what would be beneficial to Plaintiff-not necessary-for him to work in a competitive environment. This is not an opinion about Plaintiff's functional capacity.").
In addition, Dr. Cogburn's opinion that "a job coach may be helpful when [Plaintiff] is starting a new job" also reflects a recommendation, not a requirement, to enable Plaintiff to succeed at work. See Jacob, 756 F. App'x at 713 (noting that "Dr. Cogburn's conclusions that Jacob 'is likely [to] succeed most easily when performing . . . tasks with close supervision' and 'may benefit from work with a job coach' constitute recommendations, rather than requirements, to enable Jacob to work"); see also Johnson v. Berryhill, No. ED CV 18-1572-E, 2019 WL 858779, at *6 n.6 (C.D. Cal. Feb. 22, 2019) ("The ALJ did not materially err in rejecting the evaluator's suggestion Plaintiff would benefit from a job coach. Even if the evaluator were an acceptable medical source (which this evaluator was not), the ALJ would not err by declining to adopt the evaluator's suggestion."); Ernesto, 2019 WL 285796, at *4 (finding that the doctor's opinion that claimant would "benefit" from a job coach was not an opinion concerning the claimant's residual functional capacity because the doctor did not opine that a job coach was necessary for the claimant to work).
For these reasons, the Court concludes that Plaintiff has failed to demonstrate that the ALJ committed harmful legal error in evaluating Dr. Cogburn's medical opinion.
CONCLUSION
For the reasons stated, the Court recommends that the district judge AFFIRM the Commissioner's decision because it is free of harmful legal error and supported by substantial evidence in the record.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 3rd day of March, 2021.
/s/_________
HON. STACIE F. BECKERMAN
United States Magistrate Judge