Stotz v. Colvin

Filing 18

ORDER, the final decision of the Commissioner of Social Security is affirmed; the Clerk shall enter judgment accordingly and terminate this case. Signed by Judge David G Campbell on 4/17/15. (REW)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Lyle David Stotz,

No. CV-14-02180-PHX-DGC
Plaintiff,

10
11

v.

12

ORDER

Carolyn W. Colvin, Acting Commissioner
of Social Security

13

Defendant.

14
15
16

Plaintiff Lyle David Stotz seeks review under 42 U.S.C. § 405(g) of the final

17

decision of the Commissioner of Social Security (“the Commissioner”), which denied

18

him disability insurance benefits and supplemental security income under sections 216(i),

19

223(d), and 1614(a)(3)(A) of the Social Security Act. Because the decision of the

20

Administrative Law Judge (“ALJ”) is supported by substantial evidence and is not based

21

on legal error, the Commissioner’s decision will be affirmed.

22

I.

Background.

23

Plaintiff, a 54-year-old male, has a General Equivalency Degree and previously

24

worked as a mechanic and a correctional officer. In September 2011, Plaintiff applied for

25

disability insurance benefits and supplemental security income, alleging disability

26

beginning August 23, 2011. On April 24, 2013, he appeared with his attorney and

27

testified at a hearing before the ALJ. A vocational expert also testified. On May 21,

28

2013, the ALJ issued a decision that Plaintiff was not disabled within the meaning of the

1

Social Security Act. The Appeals Council denied Plaintiff’s request for review of the

2

hearing decision, making the ALJ’s decision the Commissioner’s final decision.

3

II.

Legal Standard.

4

The district court reviews only those issues raised by the party challenging the

5

ALJ’s decision. See Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001). The court

6

may set aside the Commissioner’s disability determination only if the determination is

7

not supported by substantial evidence or is based on legal error. Orn v. Astrue, 495 F.3d

8

625, 630 (9th Cir. 2007). Substantial evidence is more than a scintilla, less than a

9

preponderance, and relevant evidence that a reasonable person might accept as adequate

10

to support a conclusion considering the record as a whole. Id. In determining whether

11

substantial evidence supports a decision, the court must consider the record as a whole

12

and may not affirm simply by isolating a “specific quantum of supporting evidence.” Id.

13

As a general rule, “[w]here the evidence is susceptible to more than one rational

14

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be

15

upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (citations omitted).

16

III.

The ALJ’s Five-Step Evaluation Process.

17

To determine whether a claimant is disabled for purposes of the Social Security

18

Act, the ALJ follows a five-step process. 20 C.F.R. § 404.1520(a). The claimant bears

19

the burden of proof on the first four steps, but at step five, the burden shifts to the

20

Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).

21

At the first step, the ALJ determines whether the claimant is engaging in

22

substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not

23

disabled and the inquiry ends. Id. At step two, the ALJ determines whether the claimant

24

has

25

§ 404.1520(a)(4)(ii). If not, the claimant is not disabled and the inquiry ends. Id. At step

26

three, the ALJ considers whether the claimant’s impairment or combination of

27

impairments meets or medically equals an impairment listed in Appendix 1 to Subpart P

28

of 20 C.F.R. Pt. 404. § 404.1520(a)(4)(iii). If so, the claimant is automatically found to

a

“severe”

medically

determinable

-2-

physical

or

mental

impairment.

1

be disabled. Id. If not, the ALJ proceeds to step four. At step four, the ALJ assesses the

2

claimant’s residual functional capacity (“RFC”) and determines whether the claimant is

3

still capable of performing past relevant work. § 404.1520(a)(4)(iv). If so, the claimant

4

is not disabled and the inquiry ends. Id. If not, the ALJ proceeds to the fifth and final

5

step, where he determines whether the claimant can perform any other work based on the

6

claimant’s RFC, age, education, and work experience. § 404.1520(a)(4)(v). If so, the

7

claimant is not disabled. Id. If not, the claimant is disabled. Id.

8
9

At step one, the ALJ found that Plaintiff has not engaged in substantial gainful
activity since August 23, 2011.

At step two, the ALJ found that Plaintiff has the

10

following severe impairments: bilateral knee osteoarthritis, right upper extremity

11

tendonitis, chondromalacia patella,1 and major depressive disorder. At step three, the

12

ALJ determined that Plaintiff does not have an impairment or combination of

13

impairments that meets or medically equals an impairment listed in Appendix 1 to

14

Subpart P of 20 C.F.R. Pt. 404. At step four, the ALJ found that Plaintiff has the RFC to

15

perform:

16
17
18
19
20
21
22
23
24
25

light work as defined in 20 CFR 404.1567(b) and 416.967(b) except the
claimant can frequently perform operation of bilateral foot controls. The
claimant should never climb ladders, ropes, or scaffolds and occasionally
climb stairs, crouch, kneel, and crawl; the claimant can frequently balance
and stoop. The claimant can reach overhead with right upper extremity
frequently. The claimant should avoid concentrated exposure to nonweather related extreme temperatures of hot and cold; concentrated
exposure to pulmonary irritants, such as fumes, odors, dusts, gases;
concentrated exposure to poorly ventilated areas. The claimant should
avoid concentrated exposure to dangerous machinery with moving
mechanical part[s], except motor vehicles and should avoid concentrated
exposure to unprotected heights. The claimant is limited to work that is
simple, routine, and repetitive.

26
1

27
28

Chondromalacia patella is a “general term indicating damage to the cartilage
under [the] kneecap.”
It is also known as patellofemoral pain syndrome.
Chondromalacia
patella,
Mayo
Clinic,
http://www.mayoclinic.org/diseasesconditions/chondromalacia-patella/basics/definition/con-20025960 (last visited April 7,
2015).
-3-

1

A.R. 33. The ALJ further found that Plaintiff is unable to perform any of his past

2

relevant work. A.R. 43. At step five, the ALJ concluded that, considering Plaintiff’s age,

3

education, work experience, and residual functional capacity, there are jobs that exist in

4

significant numbers in the national economy that Plaintiff could perform. A.R. 44.

5

IV.

Analysis.

6

Plaintiff argues the ALJ’s decision is defective for two reasons: (1) the ALJ

7

improperly rejected the opinions of Plaintiff’s treating physicians, and (2) the ALJ

8

incorrectly found Plaintiff can perform light work.

9

A.

Weighing Medical Source Evidence.

10

Plaintiff argues that the ALJ improperly weighed the medical opinions of the

11

following medical sources: Dr. Robert Kasa, Dr. Scott Kindler, and Dr. David Downs.

12

The Court will address the ALJ’s treatment of each opinion below.

13

1.

Legal Standard.

14

The Ninth Circuit distinguishes between the opinions of treating physicians,

15

examining physicians, and non-examining physicians. See Lester v. Chater, 81 F.3d 821,

16

830 (9th Cir. 1995).

17

physician’s opinion and more weight to the opinion of an examining physician than to

18

one of a non-examining physician. See Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th

19

Cir. 1995); see also 20 C.F.R. § 404.1527(c)(2)-(6) (listing factors to be considered when

20

evaluating opinion evidence, including length of examining or treating relationship,

21

frequency of examination, consistency with the record, and support from objective

22

evidence). If it is not contradicted by another doctor’s opinion, the opinion of a treating

23

or examining physician can be rejected only for “clear and convincing” reasons. Lester,

24

81 F.3d at 830 (citing Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

25

contradicted opinion of a treating or examining physician “can only be rejected for

26

specific and legitimate reasons that are supported by substantial evidence in the record.”

27

Lester, 81 F.3d at 830-31 (citing Andrews, 53 F.3d at 1043).

28

Generally, an ALJ should give greatest weight to a treating

A

An ALJ can meet the “specific and legitimate reasons” standard “by setting out a

-4-

1

detailed and thorough summary of the facts and conflicting clinical evidence, stating his

2

interpretation thereof, and making findings.” Cotton v. Bowen, 799 F.2d 1403, 1408 (9th

3

Cir. 1986). “The ALJ must do more than offer [her] conclusions. [She] must set forth

4

[her] own interpretations and explain why they, rather than the doctors’, are correct.”

5

Embrey, 849 F.2d at 421-22. The Commissioner is responsible for determining whether a

6

claimant meets the statutory definition of disability and does not give significance to a

7

statement by a medical source that the claimant is “disabled” or “unable to work.” 20

8

C.F.R. § 416.927(d).

9

2.

Robert Kasa, M.D.

10

On September 8, 2011, Dr. Robert Kasa, one of Plaintiff’s treating physicians, saw

11

Plaintiff for knee pain. A.R. 315-17. The physical examination revealed Plaintiff had

12

normal gait, no swelling of either knee, tenderness along the patellofemoral joint, full

13

extension and flexion of both knees, and pain when squatting. A.R. 315. X-rays revealed

14

“good joint spaces” with “early spurring” on the right knee. Id. Dr. Kasa diagnosed

15

Plaintiff with bilateral knee pain and chondromalacia patella, and the radiology report

16

noted Plaintiff had mild osteoarthritis of the right knee. A.R. 316-17. He recommended

17

Plaintiff do strengthening exercises and stay home from work “until further notice.” A.R.

18

317-18. The ALJ afforded the opinion little weight because Dr. Kasa only examined

19

Plaintiff once, the clinical findings were inconsistent with a finding that Plaintiff could

20

not work, and the opinion was conclusory. A.R. 41-42. She noted that Dr. Kasa’s

21

finding of “no work until further notice” may have been in reference to Plaintiff’s work

22

as a correctional officer, not all types of employment. In addition, the ALJ noted that the

23

ultimate determination of whether a claimant can work is relegated to the Commissioner,

24

not a medical source opinion. A.R. 42.

25

Plaintiff asserts that Dr. Kasa’s opinion should have been considered a treating

26

source opinion by the ALJ. The length of the treatment relationship is relevant, and the

27

regulations provide that the more times a claimant has been treated by the same source

28

the more weight will be afforded to the opinion. 20 C.F.R. § 404.1527(c)(2)(i). Plaintiff

-5-

1

submitted evidence establishing that Dr. Kasa only examined him once, and thus Plaintiff

2

did not establish a treating relationship sufficient to demonstrate a “longitudinal picture

3

of [his] impairment[.]” Id.

4

Plaintiff also asserts that Dr. Kasa found that Plaintiff “does not have the knee

5

capacity” to work. Dr. Kasa’s clinical findings, however, differed greatly from his

6

ultimate opinion. He found that Plaintiff can fully extend and flex both knees and had

7

mild pain in the right knee and none on the left, but nonetheless concluded that Plaintiff

8

cannot work. Dr. Kasa’s opinion did not make clear whether Plaintiff was unable to

9

perform his job at the time or work at all. The ALJ’s interpretation is rational given the

10

fact that Plaintiff was working as a correctional officer when he was examined, a job that

11

required much standing and walking. See Burch v. Barnhart, 400 F.3d 676, 680-81 (9th

12

Cir. 2005) (“[W]e must uphold the ALJ’s decision where the evidence is susceptible to

13

more than one rational interpretation.”) (internal quotations omitted). In addition, Dr.

14

Kasa opined that Plaintiff was “unable to work,” a finding that is not entitled to any

15

significance under the regulations. See 20 C.F.R. § 416.927(d). The ALJ therefore

16

discounted Dr. Kasa’s opinion with specific and legitimate reasons supported by

17

substantial evidence. Lester, 81 F.3d at 830-31.

18

3.

Scott Kindler, D.O.

19

Dr. Scott Kindler examined Plaintiff twice. On July 25, 2011, Plaintiff was seen

20

for abdominal pain. A.R. 308. On September 1, 2011, Plaintiff was seen for bilateral

21

knee pain.

22

tenderness on both knees but maintained good range of motion, had unremarkable gait,

23

and had no significant crepitus. Id. Dr. Kindler diagnosed bilateral knee pain, referred

24

Plaintiff to an orthopedist, and prescribed neoprene knee sleeves. Id. In February 2012,

25

Dr. Kindler submitted a four-sentence statement that Plaintiff “suffers from significant

26

knee pain” and “should be excused from work as he undergoes evaluation and treatment

27

for this condition.” A.R. 354. The ALJ gave little weight to this opinion because it was

28

inconsistent with the findings in the treatment notes, not supported by any objective

A.R. 305.

The September treatment notes indicate that Plaintiff had

-6-

1

medical evidence, and conclusory. A.R. 42.

2

In her decision, the ALJ set out a detailed summary and analysis of the record

3

evidence (A.R. 33-43) which indicated that Dr. Kindler’s opinion was contradicted by the

4

opinions of Dr. Matthew Khumalo (A.R. 342-47), Dr. Thomas Disney (A.R. 89-99), and

5

Dr. Nadine Keer (A.R. 103-115). Whereas Dr. Kindler opined Plaintiff was unable to

6

work, all three sources found Plaintiff capable of at least medium work. Dr. Khumalo

7

examined Plaintiff on January 18, 2012, and found Plaintiff could stand/walk 6-8 hours in

8

an 8 hour day, climb stairs frequently, and kneel and stoop occasionally. A.R. 345-46.

9

He noted Plaintiff had full range of motion in his right knee and partially-restricted range

10

of motion in his left knee. A.R. 344. Dr. Disney conducted a records review and opined

11

Plaintiff could stand/walk 6-8 hours in an 8 hour day. A.R. 97. He noted spurring in

12

Plaintiff’s right knee, but also found that Plaintiff could return to work as a correctional

13

officer. A.R. 99. Dr. Keer also found Plaintiff capable of medium work. A.R. 112-15.

14

Plaintiff argues that the ALJ should not have afforded any weight to the opinion of

15

Dr. Keer because she did not review some of Plaintiff’s treatment records. These records

16

were not generated until after Dr. Keer’s review, and the ALJ reasonably relied on Dr.

17

Keer’s findings in light of the evidence available at the time. Plaintiff fails to explain

18

how the later records would have affected Dr. Keer’s findings. In addition, Dr. Keer’s

19

findings were consistent with those of Dr. Khumalo and Dr. Disney, as well as Dr.

20

Kindler’s own clinical findings.

21

Dr. Kindler’s opinion that Plaintiff could not work was conclusory and not based

22

on the evidence in the record. The statement was submitted almost six months after Dr.

23

Kindler last treated Plaintiff where he found minimal limitations. Dr. Kindler’s own

24

clinical findings are consistent with those of three other doctors, all of whom found

25

Plaintiff capable of at least medium work.

26

Kindler’s opinion with specific and legitimate reasons supported by substantial evidence.

27

Lester, 81 F.3d at 830-31.

28

///

-7-

Consequently, the ALJ discounted Dr.

1

4.

David Downs, M.D.

2

On February 11, 2013, Dr. David Downs completed a mental residual functional

3

capacity assessment of Plaintiff. A.R. 560-62. Dr. Downs opined Plaintiff had marked to

4

extreme limitations in a majority of the functional categories, such as responding

5

appropriately to changes in the workplace, understanding and remembering detailed

6

instructions, ability to make judgments on simple work-related decisions, interacting

7

appropriately with the public, and responding appropriately to work pressures. A.R. 560.

8

He also found that Plaintiff would be off-task 30% of the 8 hour workday, miss 5 days or

9

more of work per month, and would be less than 50% efficient during the workday. A.R.

10

561. In the “comments/clinical findings” section, Dr. Downs stated “depressed mood,

11

poor energy, amotivation, disorganized flow of thought.” Id. The ALJ gave this opinion

12

little weight because Dr. Downs only saw Plaintiff one time prior to the assessment, the

13

assessment was completed shortly after Plaintiff was released from the hospital for a

14

suicide attempt, and the opinion was inconsistent with the medical evidence in the record

15

since Plaintiff improved with treatment. A.R. 42.

16

Plaintiff argues that the ALJ gave more weight to the opinions of the state agency

17

reviewing and consulting psychologists/psychiatrists and mental consultative examiner.

18

But the ALJ explicitly afforded minimal weight to all the opinions because they were not

19

privy to additional medical evidence. A.R. 41. Plaintiff offers no evidence that these

20

decisions were given greater weight than Dr. Downs’ opinion. In fact the ALJ notes that

21

“[g]reater weight is afforded to the treating mental health records,” which include the

22

treatment notes from the Phoenix VA Health System where Plaintiff received treatment

23

before and after the suicide attempt.

24

Plaintiff also asserts the ALJ improperly found that Plaintiff’s condition was

25

improving with treatment. But Dr. Downs’ treatment notes dated February 4, 2013,

26

indicate that Plaintiff “feels much better than he did and now he denies any suicidal

27

thoughts telling me he is ashamed he ever ‘did that.’” A.R. 635. A couple weeks later,

28

Dr. Downs noted that Plaintiff’s “mood is better, minimal depression/more stable than it

-8-

1

had been and believes the Perphenazine has been helpful improving his concentration and

2

flow of thought.” A.R. 619. On April 2, 2013, Plaintiff stated that he was doing “pretty

3

good” and engaging in equine therapy for an hour every day. A.R. 815. He reported a

4

euthymic mood and denied thoughts of suicide. Id. In light of this evidence, the ALJ did

5

not err in concluding that Dr. Downs’ opinion was inconsistent with the medical evidence

6

in the record. The ALJ gave specific and legitimate reasons supported by substantial

7

evidence. See Rolston v. Astrue, 298 F. App’x 661, 662 (9th Cir. 2008) (upholding ALJ’s

8

decision to discount treating source opinion because the claimant’s condition improved

9

after the opinion was provided and therefore “undermined” the assessment).

10

B.

11

Plaintiff contends the ALJ committed legal error by finding Plaintiff could

12

perform light work instead of sedentary work. He states Dr. Kasa’s opinion supports a

13

finding that Plaintiff cannot stand long enough to perform light work. This argument is

14

unpersuasive. The ALJ gave Dr. Kasa’s opinion little weight for several reasons, one of

15

which is that it appeared to reference Plaintiff’s job at the time as a correctional officer.

16

As stated above, the ALJ provided other specific legitimate reasons for rejecting the

17

opinion. The medical evidence in the record supports the ALJ’s finding that Plaintiff can

18

perform light work, which is more conservative than the opinions of Drs. Khumalo,

19

Disney, and Neer, all of whom believed Plaintiff could perform at least medium work.

20

Plaintiff does not challenge any of the aforementioned source opinions. Consequently,

21

the ALJ’s finding is supported by substantial evidence.

22
23
24

The ALJ Did Not Err in Finding Plaintiff Could Perform Light Work.

IT IS ORDERED that the final decision of the Commissioner of Social Security
is affirmed. The Clerk shall enter judgment accordingly and terminate this case.
Dated this 17th day of April, 2015.

25
26
27
28

-9-