Pierre L Nance v. Carolyn W Colvin

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (nbo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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PIERRE NANCE,
Plaintiff,

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v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

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Defendant.

) Case No. CV 13-4633-DFM
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) MEMORANDUM OPINION AND
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) ORDER
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Plaintiff Pierre Nance (“Plaintiff”) appeals from the denial of his

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applications for Social Security disability benefits. On appeal, the Court

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concludes that the Administrative Law Judge (“ALJ”) did not err when he

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determined that Plaintiff’s impairments did not meet or equal a listing. The

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Court also concludes that the ALJ properly weighed the opinions of the

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consulting examiners and properly assessed Plaintiff’s residual functional

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capacity (“RFC”). The ALJ’s decision is therefore affirmed and the matter is

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dismissed with prejudice.

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I.

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FACTUAL AND PROCEDURAL BACKGROUND

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Plaintiff filed applications for Disability Insurance and Supplemental

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Security Income benefits on November 12, 2010, alleging that he became

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disabled on October 19, 2005. The ALJ found that Plaintiff had the severe

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impairments of meniscal tears and chondromalacia following arthroscopic

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surgeries in 2007 and 2008 on his knees; mild degenerative lumbar disease;

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asthma; and obesity. The ALJ found that Plaintiff retained the RFC to perform

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a range of light work but with the following relevant limitations: Plaintiff could

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sit, stand, and/or walk for four hours out of an eight-hour workday, and

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Plaintiff must be allowed to have a sit/stand option in which he can alternate

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positions hourly and perform work either sitting or standing. The ALJ

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concluded that Plaintiff was not disabled because there was work available in

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significant numbers in the national and regional economy which he could

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perform. Administrative Record (“AR”) 9-21.

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II.

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ISSUES PRESENTED

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The parties dispute whether the ALJ erred in: (1) not considering

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whether Plaintiff meets or equals listing 1.03 at step three of the sequential

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evaluation process; (2) weighing the opinions of the consultative examining

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physicians; and (3) assessing Plaintiff’s RFC and posing a hypothetical

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question to the vocational expert (“VE”). See Joint Stipulation (“JS”) at 2-3.

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III.

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STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), a district court may review the

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Commissioner’s decision to deny benefits. The ALJ’s findings and decision

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should be upheld if they are free from legal error and are supported by

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substantial evidence based on the record as a whole. 42 U.S.C. § 405(g);
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Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. Astrue, 481 F.3d

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742, 746 (9th Cir. 2007). Substantial evidence means such relevant evidence as

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a reasonable person might accept as adequate to support a conclusion.

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Richardson, 402 U.S. at 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th

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Cir. 2007). It is more than a scintilla, but less than a preponderance.

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Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d

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880, 882 (9th Cir. 2006)). To determine whether substantial evidence supports

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a finding, the reviewing court “must review the administrative record as a

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whole, weighing both the evidence that supports and the evidence that detracts

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from the Commissioner’s conclusion.” Reddick v. Chater, 157 F.3d 715, 720

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(9th Cir. 1996). “If the evidence can reasonably support either affirming or

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reversing,” the reviewing court “may not substitute its judgment” for that of

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the Commissioner. Id. at 720-21.

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IV.

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DISCUSSION

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A.

The ALJ Properly Determined That Plaintiff’s Impairments Do Not

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Meet or Equal Listing 1.03

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Plaintiff contends that the ALJ erred by failing to consider whether, at

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step three of the sequential evaluation process, Plaintiff’s impairments meet or

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equal Listing 1.03. JS at 3-10.

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At step three of the sequential evaluation process, an ALJ considers

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whether an applicant has an impairment or combination of impairments that

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meet or medically equal an impairment included in the federal regulations’

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listing of disabling impairments. If the claimant’s impairment matches or is

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“equal” to one of the listed impairments, he qualifies for benefits without

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further inquiry. 20 C.F.R. §§ 404.1520(d), 416.920(d); Sullivan v. Zebley, 493

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U.S. 521, 525 (1990). The claimant bears the burden of proving that he has an

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impairment that meets or equals the criteria of a listed impairment. Burch v.
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Barnhart, 400 F.3d 676, 683 (9th Cir. 2005) (“An ALJ is not required to

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discuss the combined effects of a claimant’s impairments or compare them to

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any listing in an equivalency determination, unless the claimant presents

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evidence in an effort to establish equivalence.”); Zebley, 493 U.S. at 530 (“For

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a claimant to show that his impairment matches a Listing, it must meet all of

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the specified medical criteria. An impairment that manifests only some of

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those criteria, no matter how severely, does not qualify.”).

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Listing 1.03 requires evidence of “reconstructive surgery or surgical
arthrodesis of a major weight bearing joint, with inability to ambulate

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effectively, as defined in 1.00B2b, and return to effective ambulation did not

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occur, or is not expected to occur, within 12 months of onset.” 20 C.F.R. pt.

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404, subpt. P, app. 1, § 1.03.1 The regulations generally define “ineffective

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ambulation” as “having insufficient lower extremity functioning . . . to permit

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independent ambulation without the use of a hand-held assistive device(s) that

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limits the functioning of both upper extremities.” 20 C.F.R. pt. 404, subpt. P,

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App. 1, § 1.00B2b(1). An example of ineffective ambulation includes “the

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inability to walk a block at a reasonable pace on rough or uneven surfaces.” Id.

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The ALJ specifically indicated that he considered whether Plaintiff’s

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impairments met or equaled Listings 1.02, 1.04, or 3.03. AR 12. He also

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indicated that Plaintiff’s impairments “do not meet or medically the criteria of

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any medical listing.” Id. (emphasis added). The ALJ continued by noting that

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“[n]o treating or examining physician has recorded findings equivalent in

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severity to the criteria of any listed impairment, nor does the evidence show

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medical findings that are the same or equivalent to those of any listed

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“Arthrodesis” is the surgical fixation of a joint by a procedure designed
to accomplish fusion of the joint surfaces by promoting the proliferation of
bone cells. See Cunningham v. Astrue, No. 11-144, 2011 WL 5103760, at *4 n.
3 (C.D. Cal. Oct. 27, 2011).
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impairment.” Id.
The ALJ specifically found that none of Plaintiff’s impairments met or

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equaled Listings 1.02, 1.04, or 3.03, but did not consider whether Plaintiff’s

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impairments met or equaled Listing 1.03. AR 12. Plaintiff contends that this

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failure requires remand. JS at 9-10. An ALJ is required to adequately explain

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the basis for his determination that an applicant's impairments do not equal a

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listing. Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990). However, an

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ALJ is not required to “state why a claimant failed to satisfy every different

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section of the listing of impairments.” Gonzalez v. Sullivan, 914 F.2d 1197,

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1201 (9th Cir. 1990). Accordingly, a well-developed discussion of the factual

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basis of a claimant's impairments elsewhere in a hearing decision may, under

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certain circumstances, support an unexplained finding of no medical

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equivalence at step three. Id. (finding an ALJ's four-page summary of the

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record an adequate basis for unexplained statement that the applicant's

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impairments did not meet or equal any listing).

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Here, the ALJ recounted over more than six pages his analysis of the

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record. See AR 12-19. The ALJ reviewed Plaintiff's medical history in detail,

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including his knee surgeries and the records which indicated that he obtained

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considerable improvement after the surgeries; Plaintiff’s testimony, which he

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discounted (a finding Plaintiff does not challenge in this appeal); and the

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examining physician’s report, including the observation that Plaintiff had full

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range of motion in his joints and walked with no apparent discomfort. Id. This

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review of the evidence supports the ALJ's step three finding under Gonzalez,

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and the ALJ did not err in failing to explain further his finding that Plaintiff's

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impairments were not medically equivalent to any listed impairments. See

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Howard ex. rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003)

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(finding that an ALJ is not required to discuss every piece of evidence in the

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record in reaching a disability determination). The ALJ provided ample
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specific and legitimate reasons, supported by substantial evidence in the

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record, for finding that Plaintiff did not meet or equal a listing.

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More specifically, Plaintiff argues that the ALJ should have found that

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his knee impairments meet or equal Listing 1.03 because (1) he had

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arthroscopic surgery on his left knee in 2007 and on his right knee in 2008; and

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(2) he meets the definition of an inability to ambulate effectively because the

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medical evidence establishes that he cannot walk a block at a reasonable pace

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on rough or uneven surfaces. JS at 5.

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This argument is unpersuasive. As an initial matter, Plaintiff has

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provided no proof that the arthroscopic surgeries on his knees involved

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reconstruction or surgical arthrodesis, as required by Listing 1.03.2 It appears

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from the record that Plaintiff’s arthroscopic knee surgeries were minimally

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invasive. See, e.g., AR 523-28, 818-20.

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Second, the record shows that Plaintiff’s knee surgeries were generally

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successful in treating his knee impairments. For example, seven months after

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his second knee surgery, it was reported that Plaintiff had made “excellent

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progress” and he reported “overall improvement.” AR 531, 535. Such

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successful results are a basis for finding that Plaintiff does not meet Listing

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1.03. See, e.g., Yanez v. Astrue, 252 F. App’x 792, 793 (9th Cir. 2007)

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(concluding that claimant failed to demonstrate he met the criteria for Listing

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1.03 where his knee surgery had been successful).

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Finally, Plaintiff has not demonstrated that he has an inability to

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ambulate effectively for a period lasting at least 12 months. Plaintiff argues that

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the April 2008 report from the worker’s compensation agreed medical

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Knee arthroscopy is “surgery that uses a tiny camera to look inside
[the] knee. Small cuts are made to insert the camera and small surgical tools
into [the] knee for the procedure.” <http://www.nlm.nih.gov/medlineplus/
ency/article/002972.htm>.
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examiner, Dr. David B. Pechman, indicates that he cannot walk on uneven

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surfaces, and he therefore meets the definition of an inability to ambulate

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effectively. JS at 6 (citing AR 926). However, it appears from a review of Dr.

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Pechman’s opinion that he was simply recording the various daily activities

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Plaintiff reported that he was able to perform. See AR 926-27. Thus, this

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alleged inability to walk on uneven surfaces seems to be merely a self-reported

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limitation and not an actual medical opinion provided by Dr. Pechman.

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Moreover, Dr. Pechman’s report appears to pre-date one of Plaintiff’s knee

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surgeries, a surgery which records show resulted in “overall improvement” and

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“excellent progress.”

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Plaintiff also cites to a few medical records in which his treatment

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providers noted that he walked with an unsteady gait or used a cane in support

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of his contention that he cannot ambulate effectively. See JS at 6 (citing AR

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235, 433, 435, 468). Like Dr. Pechman’s report, the majority of these records

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are from before one or both of Plaintiff’s arthroscopic surgeries, which records

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indicate helped alleviate the pain in his knees, as discussed above. See AR 531,

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535. In addition, more recent records, such as the opinion of the consultative

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examining physician, indicate that Plaintiff was able to walk with a “slow but

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normal gait.” See AR 204. Citing pre-surgical medical records which indicate

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some intermittent difficulty in walking is insufficient to demonstrate that

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Plaintiff had an inability to ambulate effectively for at least 12 months.

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Moreover, even if the Court assumes that the record establishes that

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Plaintiff is still, post-surgeries, unable to walk on uneven terrain, such a

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limitation by itself does not establish an inability to ambulate effectively for

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purposes of Listing 1.03. See, e.g., Moreno v. Astrue, 444 F. App’x 163, 164

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(9th Cir. 2011) (concluding that ALJ’s RFC determination that limited

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claimant to walking on even terrain did not establish inability to ambulate

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effectively under the listings); Perez v. Astrue, 831 F. Supp. 2d 1168, 1176
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(C.D. Cal. 2011) (deciding that medical opinion that claimant should not walk

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on uneven terrain did not prove an inability to ambulate effectively);

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Hernandez v. Colvin, No. 12-0773, 2013 WL 1401368, *4 (C.D. Cal. Apr. 4,

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2013) (concluding that ALJ’s RFC determination that plaintiff cannot walk on

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uneven terrain “by itself does not establish an inability to ambulate effectively

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for purposes of the listings”).
When the Court considers the record as a whole, Plaintiff has not met

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his burden of demonstrating that his impairments met or equaled the criteria of

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Listing 1.03. See Bowen v. Yuckert, 482 U.S. 137, 145-152 (1987) (placing

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burden on claimant to produce evidence that his impairment meets a listing).

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The ALJ reviewed all of the medical evidence in detail and correctly found, at

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step three of the sequential analysis, that Plaintiff’s impairments do not meet or

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equal one of the listed impairments. Plaintiff is not entitled to a reversal of the

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ALJ’s decision on this basis.

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B.

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The ALJ Properly Evaluated the Consultative Examiners’ Findings
Plaintiff contends that the ALJ erred in evaluating the opinions of the

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consultative examining physicians. More specifically, Plaintiff argues that,

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although the ALJ accepted some aspects of the opinions of Dr. Pechman and

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of the consultative examining physician, Dr. Yakov Treyzon, he failed to

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expressly state whether he accepted or rejected Dr. Pechman’s opinion that

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Plaintiff is unable to walk on uneven surfaces and Dr. Treyzon’s opinion that

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Plaintiff is moderately restricted with respect to his depth perception and visual

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acuity. JS at 15-16.

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The ALJ extensively addressed the opinions of Drs. Pechman and

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Treyzon and reasonably gave them significant, although not controlling,

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weight. See AR 17 (citing AR 198-205, 925-37). The ALJ declined to give Dr.

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Pechman’s opinion controlling weight because he determined that Dr.

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Pechman’s sitting, standing, and walking limitations were unsupported by the
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medical record and undermined by Plaintiff’s conservative treatment history.

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AR 17. As noted by the ALJ, objective diagnostic evidence of Plaintiff’s back

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and knees indicated “mild findings” after Plaintiff’s knee surgeries. Id. The

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ALJ also noted that, since Plaintiff had his knee surgeries, the medical record

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reflected only conservative treatment. AR 17-18. These are legitimate reasons

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for the ALJ to refuse to give controlling weight to Dr. Pechman’s opinion. See

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Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (finding that ALJ

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properly refused to fully credit treating physician’s opinion where the

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functional limitations were undermined by improvement in the claimant’s

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condition and a conservative course of treatment). Furthermore, as noted

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above, Dr. Pechman’s assessment that Plaintiff was unable to walk on uneven

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surfaces appears to have been based entirely on Plaintiff’s self-reported

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limitations. Because the ALJ found Plaintiff to be not fully credible, a finding

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which Plaintiff does not challenge, the ALJ was not required to include any

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limitations in the RFC assessment which were based upon Plaintiff’s own

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discredited self-reports. See Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d

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595, 602 (9th Cir. 1999) (holding that a “physician’s opinion of disability

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premised to a large extent upon the claimant’s own accounts of his symptoms

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and limitations may be disregarded where those complaints have been properly

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discounted” (internal quotation marks omitted)).

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The ALJ did not give Dr. Treyzon’s opinion controlling weight because

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he determined that Dr. Treyzon’s sitting and standing limitations and his

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assessment that Plaintiff’s work schedule would be disrupted two to three times

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a week was not supported by Plaintiff’s treatment records or the diagnostic

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evidence. AR 17. An ALJ may properly take into account whether an

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examining physician’s opinion is supported by the record when determining

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the weight to give to that opinion. See Thomas v. Barnhart, 278 F.3d 947, 957

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(9th Cir. 2002) (stating that an ALJ “need not accept the opinion of any
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physician, including a treating physician, if that opinion is brief, conclusory,

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and inadequately supported by clinical findings”). Here, as discussed in detail

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above, the medical evidence generally showed unremarkable findings and

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marked improvement after Plaintiff’s knee surgeries, which is at odds with Dr.

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Treyzon’s findings of significant functional limitations.

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Furthermore, the ALJ did not err in failing to expressly discuss Dr.

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Pechman’s limitation on walking on uneven surfaces and Dr. Treyzon’s

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finding that Plaintiff had some mild visual limitations. An ALJ may properly

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rely upon only selected portions of a medical opinion while rejecting other

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parts, Magallanes v. Bowen, 881 F.2d 747, 753 (9th Cir. 1989), but such

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reliance must be consistent with the medical record as a whole. Edlund v.

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Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). “It is not necessary to agree

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with everything an expert witness says in order to hold that his testimony

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contains ‘substantial evidence.’” Magallanes, 881 F.2d at 753 (quoting Russell

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v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988)). Here, the ALJ properly evaluated

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the opinions of Drs. Pechman and Treyzon in detail and adopted those

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limitations he found credible and supported by the medical evidence. See

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Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a

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function-by-function analysis for medical conditions or impairments that the

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ALJ found neither credible nor supported by the record is unnecessary.”).

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Even assuming arguendo that the ALJ erred in failing to discuss Dr.

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Pechman’s limitation on walking on uneven surfaces and Dr. Treyzon’s

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finding that Plaintiff had some visual limitations, any error was harmless.

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When provided with a hypothetical question which included the limitations

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found in the ALJ’s RFC assessment, the VE testified that there were light,

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unskilled jobs available in the regional and national economy which Plaintiff

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could perform, even after erosion of the job base for a sit/stand option, such as

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cashier II and ticket taker. See AR 20, 62-67. Plaintiff has failed to explain how
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inclusion of a limitation on walking on uneven ground or inclusion of some

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mild visual restrictions would have any effect on his ability to perform the jobs

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identified by the VE. Even if the ALJ had fully credited the opinions of Drs.

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Pechman and Treyzon (both of whom ultimately concluded that Plaintiff

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could perform light work), this would not have affected the ALJ’s ultimate

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determination that Plaintiff was not disabled.3 Therefore, any possible error

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was harmless, and Plaintiff is not entitled to relief. See Molina v. Astrue, 674

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F.3d 1104, 1115 (9th Cir. 2012) (“We have long recognized that harmless error

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principles apply in the Social Security Act context.”) (citing Stout v.

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Commissioner, Social Security Administration, 454 F.3d 1050, 1054 (9th Cir.

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2006)).

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C.

The ALJ Properly Assessed Plaintiff’s RFC and Posed a Proper

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Hypothetical to the VE

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Plaintiff argues that the ALJ’s RFC assessment is erroneous because he

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did not include the limitations found by Drs. Pechman and Treyzon, as

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discussed in Section B. Plaintiff also contends that the ALJ improperly

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questioned the VE because the hypotheticals posed to the VE did not include

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these limitations. JS at 21-23.

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Plaintiff alleges that the limitations opined by Drs. Pechman and

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Treyzon would have “significant vocational ramifications,” JS at 22, but fails

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to offer any evidence to demonstrate how these alleged limitations would have

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had any effect on his ability to perform any work-related functions. This is

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The ALJ inquired whether needing a cane to ambulate would affect the
VE’s testimony that Plaintiff could perform the jobs of cashier II and ticket
taker; the VE responded that it would not. AR 64. The DOT listings for these
jobs, which were implicitly adopted by the VE, AR 63-64, do not contain any
vision-related requirements implicated by Plaintiff’s mild limitations. See
DICOT 211.462-010, 1991 WL 671840; DICOT 344.667-010; 1991 WL
672863.
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clearly insufficient to demonstrate that the ALJ’s RFC assessment was in error.

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See Burch, 400 F.3d at 684 (upholding ALJ’s RFC assessment because

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claimant “has not set forth, and there is no evidence in the record, of any

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functional limitations as a result of her obesity that the ALJ failed to

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consider”). Here, the ALJ extensively reviewed the medical evidence,

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including the opinions of Drs. Pechman and Treyzon, in assessing Plaintiff

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with the RFC to perform a range of light work with some functional

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limitations. AR 15-18. Furthermore, the ALJ properly posed to the VE

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hypothetical questions which included only those limitations found by the ALJ

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to be credible and supported by substantial evidence in the record. AR 62-67.

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See Bayliss, 427 F.3d at 1217; Roberts v. Shalala, 66 F.3d 179, 184 (9th Cir.

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1995). The ALJ therefore appropriately relied upon the VE’s testimony in

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determining that Plaintiff was capable of performing the jobs of cashier II and

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ticket taker. See Bayliss, 427 F.3d at 1217 (where the hypothetical the ALJ

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posed to the VE contained all of the limitations found credible and supported

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by substantial evidence, the “ALJ’s reliance on testimony the VE gave in

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response to the hypothetical therefore was proper”). Plaintiff is therefore not

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entitled to relief on this claim of error.

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V.

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CONCLUSION

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For the reasons stated above, the decision of the Social Security
Commissioner is AFFIRMED and the action is DISMISSED with prejudice.

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Dated: July 8, 2014
______________________________
DOUGLAS F. McCORMICK
United States Magistrate Judge

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