Diana Lee Mercer v. Andrew M. Saul

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 DIANA L. M., ) Case No. CV 19-4979-PJW ) 11 Plaintiff, ) ) MEMORANDUM OPINION AND ORDER 12 v. ) ) 13 ANDREW M. SAUL, ) COMMISSIONER OF THE ) 14 SOCIAL SECURITY ADMINISTRATION, ) ) 15 Defendant. ) ) [16] 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying her application for Disability 21 Insurance Benefits (“DIB”). She contends that the Administrative Law 22 Judge (“ALJ”) erred when he determined that she had the capacity to 23 work. For the reasons discussed below, the ALJ’s decision is 24 affirmed. 25 II. 26 SUMMARY OF PROCEEDINGS 27 In May 2014, Plaintiff applied for DIB, alleging that she had 28 been disabled since May 2013, due to anxiety disorder and depression. 1 (Administrative Record (“AR”) 468, 495.) Her application was denied 2 initially and she requested and was granted a hearing before an ALJ. 3 (AR 290-304, 336-37.) In August 2016, the ALJ held a hearing and 4 subsequently issued a decision finding that she was not disabled. (AR 5 185-217, 305-23.) Plaintiff appealed to the Appeals Council, which 6 granted review, vacated the ALJ’s decision, and remanded the case for 7 a new hearing. (AR 326-27.) In February 2018, a different ALJ held a 8 hearing and, thereafter, issued a decision, finding that Plaintiff was 9 not disabled. (AR 81-103, 137-69.) Plaintiff appealed to the Appeals 10 Council, which denied review. (AR 1-7.) This action followed. 11 III. 12 ANALYSIS 13 Plaintiff had been a practicing lawyer for 25 years when she left 14 the profession after feeling overwhelmed. Soon thereafter she filed 15 the instant claim for benefits. In connection with her claim, she was 16 examined by two doctors--a psychologist and a psychiatrist. A third 17 doctor reviewed some of her medical records but did not examine her. 18 All three concluded that she suffered from depression and anxiety but 19 was capable of performing simple, repetitive work. The ALJ reached 20 the same conclusion and found that she could perform the work of, 21 among other things, an office helper and, therefore, was not disabled. 22 Plaintiff argues that the ALJ erred in doing so. For the following 23 reasons, her arguments are rejected. 24 Plaintiff contends that the ALJ erred in assessing the doctors’ 25 opinions. The record does not support this contention. Plaintiff was 26 examined by psychiatrist Jeriel Lorca in January 2015. (AR 790-94.) 27 Dr. Lorca met with Plaintiff and interviewed her. He also 28 administered a number of psychological tests. Dr. Lorca concluded, [2] 1 among other things, that Plaintiff suffered from depressive disorder 2 and anxiety disorder. He opined that, despite these ailments, she was 3 capable of performing detailed and complex tasks, interacting with co4 workers and the public, and completing a normal work day and workweek. 5 Dr. Lorca predicted that Plaintiff’s condition would improve over the 6 following 12 months. (AR 79.) 7 The following month, an Agency reviewing doctor, Dr. Gold, looked 8 at the medical records to date, including Dr. Lorca’s opinion, and 9 concluded that Plaintiff suffered from severe affective and anxiety 10 disorders. (AR 297-303.) He determined that she could perform simple 11 and repetitive tasks but could not perform work requiring public 12 contact. (AR 301.) 13 In December 2017, 34 months after Dr. Gold completed his review, 14 Plaintiff was seen by psychologist Ahmed Riahinejad. Dr. Riahinejad 15 examined Plaintiff, administered a battery of tests, and reviewed the 16 medical records. (AR 1030-38.) He found that Plaintiff suffered from 17 depressive disorder with anxiety and mild psycho-social stressors. He 18 believed that Plaintiff was capable of carrying out simple and 19 repetitive instructions and could relate to others and accept 20 supervision. 21 The ALJ gave the greatest weight to the opinions of the examining 22 doctors, Dr. Riahinejad and Dr. Lorca, and the least weight to the 23 opinion of the non-examining doctor, Dr. Gold. (AR 93-95.) Plaintiff 24 contends that the ALJ should have given Dr. Gold’s opinion the most 25 weight but does not clearly explain why. Presumably, she is arguing 26 that it is because Dr. Gold works for the Agency and understands 27 Social Security law. But that is not a compelling reason to rely on 28 Dr. Gold. And the record does not support Plaintiff’s argument that [3] 1 Dr. Gold’s opinion was entitled to greater weight. He never examined 2 Plaintiff and never considered any records after February 2015, which 3 was more than three years before the ALJ issued his decision. This is 4 important for a number of reasons. For one, there were a lot of 5 medical records created after Dr. Gold offered his opinion, including 6 Dr. Riahinejad’s testing and his opinion. Second, after examining and 7 testing Plaintiff in January 2015, Dr. Lorca believed that she would 8 improve over the following 12 months since she had quit drinking six 9 drinks a day and was undergoing therapy. Dr. Gold never had the 10 opportunity to determine if Dr. Lorca’s prediction had come true. 11 In the end, it seems that Dr. Gold’s February 2015 opinion was 12 almost irrelevant to the ALJ’s May 2018 decision whether Plaintiff was 13 disabled. The ALJ was tasked with assessing the medical opinions. 14 After conducting a thorough review of the medical records and the 15 medical opinions, he chose to side with the examining doctors over the 16 non-examining doctor. The ALJ did not err in doing so. 17 Plaintiff contends that the ALJ’s wording of the residual 18 functional capacity finding is confusing. The Court agrees. The ALJ 19 found that Plaintiff could perform work involving “simple and 20 repetitive instructions and carrying out complex detailed instructions 21 not at a production rate pace.” (AR 89.) As Plaintiff points out, it 22 is not clear whether the ending phrase “not at a production rate pace” 23 applies only to “carrying out complex and detailed instructions” or 24 whether it also applies to work involving simple and repetitive 25 instructions. In reading the record as a whole, however, including 26 the transcript from the administrative hearing, the Court is convinced 27 that the ALJ was qualifying Plaintiff’s ability to carry out “simple 28 and repetitive instructions” with the phrase “not at a production pace [4] 1 rate.” None of the doctors had suggested such a limitation for 2 simple, repetitive work. And when questioning the vocational expert 3 at the hearing, it seems clear that the ALJ and the vocational expert 4 understood that the limitation only applied to the more complex tasks. 5 As such, the Court does not find that the ALJ’s confusing language 6 mandates reversal. 7 Next, Plaintiff argues that a limitation to simple and repetitive 8 instructions is inconsistent with Level 3 reasoning and complains that 9 two of the three jobs that the ALJ determined that she could do (mail 10 clerk and cashier II) require Level 3 reasoning. Here, again, the 11 Court agrees with Plaintiff. Someone limited to simple and repetitive 12 tasks is not capable of performing Level 3 reasoning work. Zavalin v. 13 Colvin, 778 F.3d 842, 847 (9th Cir. 2015); Lara v. Astrue, 305 F. 14 App’x 324, 326 (9th Cir. 2008) (“[S]omeone able to perform simple, 15 repetitive tasks is capable of . . . Level 2 jobs”); and Meissl v. 16 Barnhart, 403 F. Supp. 2d 981, 983-85 (C.D. Cal. 2005) (holding Level 17 2 jobs are consistent with limitation to “simple, repetitive” tasks). 18 Thus, the ALJ erred in concluding that Plaintiff could perform the 19 jobs of mail clerk and cashier II. But, the third job that he found 20 that she could do, the office helper job, requires only Level 2 21 reasoning, which all the doctors agreed Plaintiff is capable of doing. 22 And there are 22,000 office helper jobs in the country, more than 23 enough to qualify as “significant” under Social Security law. See, 24 e.g., Nelson v. Colvin, 2014 WL 372496 , at *4 (W.D. Wash. Feb. 3, 25 2014) (finding 22,000 jobs in nation a significant number); see also 26 Aguilar v. Colvin, 2016 WL 3660296 , at *3 (C.D. Cal. July 8, 2016) 27 (finding 11,850 jobs nationally and 1,080 regionally significant, and 28 observing trend in the Central District of California to find job [5] 1 numbers over 10,000 nationally and 1,000 locally to be sufficient); 2 Yepiz v. Colvin, 2013 WL 1339450 , at *9 (C.D. Cal. Mar. 28, 2013) 3 (finding 15,000 jobs nationally to be significant); Albidrez v. 4 Astrue, 504 F. Supp. 2d 814, 824 (C.D. Cal. 2007) (finding 20,450 jobs 5 nationally to be significant). As such, any error by the ALJ in 6 including the mail clerk and cashier II positions was harmless. See 7 Gray v. Comm’r of Soc. Sec. Admin., 365 F. App’x 60, 63 (9th Cir. 8 2010) (affirming ALJ’s decision where claimant could perform only one 9 of three jobs identified by ALJ but significant number of jobs in 10 national economy for that one job supported ALJ’s decision that 11 claimant was not disabled); see also Lara, 305 F. App’x at 326 (“To 12 the extent the VE was overly broad and included jobs that [claimant] 13 could both perform and not perform, any error is harmless so long as 14 the jobs that could be done are enough to support the ALJ’s 15 decision.”). 16 Finally, Plaintiff points out that the office helper job requires 17 frequently changing from one task to another, see Revised Handbook for 18 Analyzing Jobs, which she contends renders the job more than simple, 19 repetitive work. (JS at 9.) Plaintiff, however, does not cite any 20 authority for that proposition and the authority that exists is to the 21 contrary. See, e.g., Lyn B. v. Comm’r of Soc. Sec., 2019 WL 1491174 , 22 at *8-9 (C.D. Cal. Apr. 3, 2019) (holding ALJ did not err in finding 23 plaintiff could perform office helper job even though it required 24 variety of duties and she was limited to simple, routine, and 25 repetitive tasks); Jerome M. H. v. Berryhill, 2019 WL 994966 , at *2 26 (C.D. Cal. Feb. 7, 2019) (finding office helper position compatible 27 with limitation to simple repetitive tasks and noting plaintiff had 28 “failed to demonstrate why a person limited to simple repetitive tasks [6] 1 || could not also frequently change tasks”); Lewis v. Colvin, 2016 WL 2397626 , at *5 (E.D. Cal. Feb. 2, 2016), aff’d, 708 F. App’x 919 (9th 2018) (finding no conflict between plaintiff’s limitation to 4] simple instructions or simple, repetitive tasks and performing a 5 || variety of job duties as an office helper.) 6 Iv. 7 CONCLUSION 8 For these reasons, the Agency’s decision is affirmed and the case 9 || is dismissed with prejudice. 10 IT IS SO ORDERED. [11] DATED: June 15, 2020 . [12] Kieu Q L2G a 2teg Sf. PATRICK J. WALSH 15 UNITED STATES MAGISTRATE JUDGE [27] 28 |] 0:\PdW\ECF Ready\Memo Opinion and Order.wpd