Victor Escobedo Padilla v. Carolyn W. Colvin

Filing 18

MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (mrgo)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 VICTOR ESCOBEDO PADILLA,

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CAROLYN W. COLVIN, Acting
15 Commissioner of Social Security
Administration,
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Defendant.
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I.

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INTRODUCTION

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Plaintiff,
v.

Case No. CV 14-145-SP
MEMORANDUM OPINION AND
ORDER

On January 17, 2014, plaintiff Victor Escobedo Padilla filed a complaint

21 against defendant, the Commissioner of the Social Security Administration
22 (“Commissioner”), seeking review of a denial of Disability Insurance Benefits
23 (“DIB”) and Supplemental Security Income (“SSI”) benefits. Both parties have
24 consented to proceed for all purposes before the assigned Magistrate Judge
25 pursuant to 28 U.S.C. § 636(c).
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Plaintiff presents one issue for review: whether the Administrative Law

27 Judge (“ALJ”) improperly rejected the opinion of the agreed upon medical
28 examining physician, Dr. Stephen Suzuki. Amd. Pl. Mem. at 2-7.
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Having carefully studied the parties’ papers, the Administrative Record

2 (“AR”), and the decision of the ALJ, the court concludes that, as detailed herein,
3 the ALJ properly rejected Dr. Suzuki’s opinion. Consequently, the court affirms
4 the decision of the Commissioner denying benefits.
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II.

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FACTUAL AND PROCEDURAL BACKGROUND

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On September 23, 2010, at forty-two years of age, plaintiff filed DIB and

8 SSI applications based on disability. AR 225-35. Plaintiff had past work
9 experience as a wordworking machine feeder and as a jointer operator. AR 56-59,
10 70. Plaintiff, a naturalized citizen, completed the sixth grade in Mexico. AR 54.
11 His subsequent schooling in the United States was limited to English classes;
12 however, plaintiff’s ability to understand, read and speak English is limited, and
13 he cannot write in English. AR 54-55.
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In plaintiff’s DIB and SSI applications, he alleged a disability onset date of

15 April 14, 2009. AR 225, 230. Plaintiff based his claims on lumbar spine
16 protrusion, lumbar spine radiculopathy, right elbow epicondylitis, insomnia, and
17 anxiety. AR 274. The Commissioner denied plaintiff’s applications initially and
18 upon reconsideration, after which he requested a hearing. AR 89-102.
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The hearing before the ALJ was held on August 20, 2012. AR 50-80.

20 Plaintiff was represented by counsel and testified, and was assisted by a Spanish
21 language interpreter. AR 52-68, 77. Vocational expert Rheta King also testified
22 at the hearing. AR 68-77. On September 25, 2012, the ALJ denied plaintiff’s
23 claims for benefits.
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Applying the well-known, five-step sequential test to determine whether

25 plaintiff was disabled, the ALJ found, at step one, that plaintiff had not engaged in
26 substantial gainful activity since April 14, 2009, the alleged onset date. AR 36.
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At step two, the ALJ found that plaintiff had the severe impairments of disc

28 protrusions and facet hypertrophy at multiple levels of the lumbosacral spine with
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1 spondylosis and an annular tear at L5-S1. AR 37.
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At step three, the ALJ found that plaintiff did not have an impairment or

3 combination of impairments that met or medically equaled the severity of one of
4 the listed impairments in 20 C.F.R. pt. 404, subpt. P, app. 1. AR 37-38.
The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and

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6 determined that plaintiff’s RFC enabled him to push, pull, lift, and carry twenty
7 pounds occasionally and ten pounds frequently. AR 38. He also found that
8 plaintiff could sit, stand, and walk without significant limitation. Id. The ALJ
9 limited plaintiff to occasional postural activity, with the exception that plaintiff
10 could balance frequently. Id. He found plaintiff had no other significant
11 limitations. Id.
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At step four, the ALJ found that plaintiff was unable to perform any past

13 relevant work. AR 42.
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At step five, the ALJ found that there were jobs that exist in significant

15 numbers in the national economy that plaintiff could perform. AR 42-43. They
16 included: marker, housekeeping cleaner, and advertising materials distributor.
17 AR 43. These occupations took into consideration plaintiff’s age, education,
18 English language literacy limitations, work experience, and RFC. Id. As a result,
19 the ALJ determined that plaintiff had not been under a disability as defined in the
20 Social Security Act since April 14, 2009. AR 43-44.
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Plaintiff filed a timely request for review of the ALJ’s decision, which was

22 denied by the Appeals Council. AR 7-9, 24-27. The ALJ’s decision stands as the
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Residual functional capacity is what a claimant can do despite existing
exertional and nonexertional limitations. See generally Cooper v. Sullivan, 880
26 F.2d 1152, 1155-56 n.5-7 (9th Cir. 1989). “Between steps three and four of the
27 five-step evaluation, the ALJ must proceed to an intermediate step in which the
ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue,
28 486 F.3d 1149, 1151 n.2 (9th Cir. 2007).
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1 final decision of the Commissioner.
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III.

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STANDARD OF REVIEW

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This court is empowered to review decisions by the Commissioner to deny

5 benefits. 42 U.S.C. § 405(g). The findings and decision of the Commissioner
6 must be upheld if they are free of legal error and supported by substantial
7 evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). But if the
8 court determines that the ALJ’s findings are based on legal error or are not
9 supported by substantial evidence in the record, the court may reject the findings
10 and set aside the decision to deny benefits. Aukland v. Massanari, 257 F.3d 1033,
11 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 1144, 1147 (9th Cir. 2001).
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“Substantial evidence is more than a mere scintilla, but less than a

13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such
14 “relevant evidence which a reasonable person might accept as adequate to support
15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276
16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s
17 finding, the reviewing court must review the administrative record as a whole,
18 “weighing both the evidence that supports and the evidence that detracts from the
19 ALJ’s conclusion.” Id. The ALJ’s decision “‘cannot be affirmed simply by
20 isolating a specific quantum of supporting evidence.’” Aukland, 257 F.3d at 1035
21 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th Cir. 1998)). If the evidence
22 can reasonably support either affirming or reversing the ALJ’s decision, the
23 reviewing court may not substitute its judgment for that of the ALJ. Id. (citation
24 omitted).
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IV.

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DISCUSSION

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Plaintiff contends that the ALJ improperly rejected the medical opinion

28 evidence offered by Dr. Suzuki, an orthopedic surgeon and qualified medical
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1 evaluator for the State of California. See Amd. Pl. Mem. at 3-7; AR 626, 636 (Dr.
2 Suzuki’s occupation and qualifications). Plaintiff contends the ALJ failed to
3 articulate a legally sufficient rationale to reject Dr. Suzuki’s opinion, and this
4 “failure to properly consider the treating opinions is reversible error” pursuant to
5 Lester v. Chater, 81 F.3d 821, 829-30 (9th Cir. 1996) (as amended), and Social
6 Security Ruling (“SSR”) 96-2p and 96-8p.2 Amd. Pl. Mem. at 4. The court
7 disagrees. In the decision, the ALJ provides several specific and legitimate
8 reasons why he rejected Dr. Suzuki’s medical opinion, and these reasons were
9 supported by substantial evidence in compliance with federal law.
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In determining whether a claimant has a medically determinable impairment,

11 among the evidence the ALJ considers is medical evidence. 20 C.F.R.
12 § 404.1527(b). In evaluating medical opinions, the regulations distinguish among
13 three types of physicians: (1) treating physicians; (2) examining physicians; and
14 (3) non-examining physicians. 20 C.F.R. § 494.1527(c), (e); Lester, 81 F.3d at
15 830. “Generally, a treating physician’s opinion carries more weight than an
16 examining physician’s, and an examining physician’s opinion carries more weight
17 than a reviewing physician’s.” Holohan v. Massanari, 246 F.3d 1195, 1202 (9th
18 Cir. 2001); see generally 20 C.F.R. § 404.1527(c)(1)-(2). The opinion of the
19 treating physician is generally given the greatest weight because the treating
20 physician is employed to cure and has a greater opportunity to know and observe a
21 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996), superseded by
22 statute on other grounds, 20 C.F.R. § 404.1529(c)(3); Magallanes v. Bowen, 881
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“The Commissioner issues Social Security Rulings to clarify the Act’s
implementing regulations and the agency’s policies. SSRs are binding on all
components of the SSA. SSRs do not have the force of law. However, because
they represent the Commissioner’s interpretation of the agency’s regulations, we
give them some deference. We will not defer to SSRs if they are inconsistent with
the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1203 n.1 (9th
Cir. 2001) (internal citations omitted).
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1 F.2d 747, 751 (9th Cir. 1989). “[T]he ALJ may only reject a treating or examining
2 physician’s uncontradicted medical opinion based on ‘clear and convincing
3 reasons.’” Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th
4 Cir. 2008) (citing Lester, 81 F.3d at 830-31). “Where such an opinion is
5 contradicted, however, it may be rejected for ‘specific and legitimate reasons that
6 are supported by substantial evidence in the record.’” Id. (quoting Lester, 81 F.3d
7 at 830-31).
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Dr. Suzuki Was Not Plaintiff’s Treating Physician

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In rejecting Dr. Suzuki’s opinion, the ALJ first noted that Dr. Suzuki was

10 not a treating physician and therefore his opinions are not entitled to the same
11 weight afforded treating source opinions, which opinions in this case did not
12 support the limitations opined by Dr. Suzuki. AR 40. Plaintiff argues that Dr.
13 Suzuki’s opinion should have been given greater weight. See Amd. Pl. Mem. at 314 4. Plaintiff conflates the terms “treating physician” and “examining physician,”
15 and also presupposes that Dr. Suzuki’s jointly agreed upon appointment to review
16 plaintiff’s case and assess his disability status for the Worker’s Compensation
17 Board somehow affords his opinion additional weight in this case. Compare Amd.
18 Pl. Mem. 3 (referring to Dr. Suzuki as “the agreed medical examining physician”)
19 with id. at 4 (“failure to properly consider the treating opinions is reversible
20 error”); see id. at 3 n.1 (Dr. Suzuki “is no mere examining physician” but rather a
21 “‘super’ examining physician” and “therefore his opinion should ordinarily be
22 followed”). Plaintiff’s assertion that Dr. Suzuki’s opinion merited greater
23 consideration in the instant matter because plaintiff and the defendant in his
24 worker’s compensation case both agreed to allow Dr. Suzuki to evaluate plaintiff’s
25 disability status for purposes of that action lacks any legal support.3
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Moreover, an ALJ is not bound by disability determinations issued by other
28 government agencies. 20 C.F.R. §§ 404.1504, 416.904 (2001) (stating that a
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As stated earlier, a treating physician’s opinion carries more weight than an

2 examining or reviewing physician’s opinion. Holohan, 246 F.3d at 1202. The
3 record supports the ALJ’s finding that Dr. Suzuki was not plaintiff’s treating
4 physician. On September 19, 2011, Dr. Suzuki conducted an Initial Orthopedic
5 Agreed Panel Qualified Medical Evaluation for plaintiff. AR 626-48. The
6 evaluation was performed to provide disability information in a worker’s
7 compensation suit plaintiff had filed based on an injury that had occurred in
8 January 2008. See AR 626, 648. Plaintiff had been referred to Dr. Suzuki for the
9 evaluation. AR 635. In the report, Dr. Suzuki indicates that he examined plaintiff
10 for one hour, and that the total time spent on the evaluation – including a review of
11 plaintiff’s medical records from 2008 to 2011 and Dr. Suzuki’s dictation – was
12 five hours and forty-five minutes. AR 636. Dr. Suzuki’s ultimate findings were
13 based on other treating and examining physicians’ records. See AR 634, 638-47.
14 Moreover, there is no indication that Dr. Suzuki treated plaintiff for his ailments.
15 See generally AR 626-48.
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In sum, plaintiff had been referred to Dr. Suzuki for evaluation for a specific

17 and limited purpose. Dr. Suzuki’s evaluation of plaintiff was brief in time and
18 scope, and the record does not indicate that plaintiff received any prior or
19 subsequent treatment from Dr. Suzuki. These facts support the ALJ’s finding that
20 Dr. Suzuki was not a treating physician for plaintiff. As a result, the ALJ was not
21 required to assign more weight to his opinion during his initial review of it. See
22 generally Smolen, 80 F.3d at 1285.
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Dr. Suzuki’s Opinion Conflicted with His Examination Findings

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A second reason the ALJ gave for assigning less weight to Dr. Suzuki’s

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26 decision by any other governmental agency about whether one is disabled is based
27 on its rules and is not binding on the Social Security Administration and that the
Social Security Administration must make disability determinations based on
28 Social Security law).
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1 evaluation of plaintiff was that Dr. Suzuki’s disability determination conflicted
2 with his own clinical findings in his examination of plaintiff. AR 40. “‘The ALJ
3 need not accept the opinion of any physician, including a treating physician, if that
4 opinion is brief, conclusory, and inadequately supported by clinical findings.’”
5 Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) (quoting Bray v. Comm’r
6 of Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009)).
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Mild elbow tendinitis and mild tennis elbow strain that was intermittent

8 along with low back strain were Dr. Suzuki’s own diagnoses during his evaluation
9 of plaintiff. AR 635. After plaintiff’s neurologic examination, Dr. Suzuki noted
10 that during resisted testing of plaintiff’s right hip, plaintiff “complained of
11 increased back pain as well as shooting pain down the left leg.” AR 631. During
12 his examination of plaintiff’s spine, he reported that plaintiff had “tenderness over
13 the lumbosacral paraspinals [and] . . . posterior iliac crest,” and “tenderness in the
14 right buttocks region,” but demonstrated no tenderness on palpation about the
15 cervical or thorasic spine or over the sciatic notch. AR 632. He also noted that
16 plaintiff “demonstrated a positive straight leg raise both right and left sides for
17 increased back pain.” Id. Dr. Suzuki further added the June 2008 protruding disc
18 and the June 2009 right-sided lumbar radiculopathy findings to his diagnosis of
19 plaintiff. AR 635. Based on these limitations, Dr. Suzuki determined the
20 following with respect to plaintiff’s work restrictions: “[Plaintiff] should be
21 precluded from any heavy lifting, pushing or pulling of more than five pounds. He
22 should have no requirements for squatting, kneeling, crawling or repetitive
23 bending at the waist.” Id.
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The ALJ found that Dr. Suzuki’s examination diagnoses and work

25 restrictions for plaintiff were incongruent. He found that Dr. Suzuki:
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seems to ignore the fact that his own clinical findings are largely

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benign. Specifically, the only positive clinical findings he notes were

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tenderness and reduced range of motion. He found no evidence of
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motor, sensory, reflex loss, positive straight leg-raising tests, or other

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signs of nerve root or spinal cord involvement, or other significant

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clinical findings that might support such an aggressive assessment.

4 AR 40. The ALJ’s statement that Dr. Suzuki found no evidence of positive
5 straight leg-raising test results is incorrect. See AR 632. But the ALJ otherwise
6 accurately recounted Dr. Suzuki’s clinical findings.
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As such, the ALJ reasonably found Dr. Suzuki’s clinical findings do not

8 warrant the extreme work limitations he prescribed for plaintiff. Plaintiff’s mild
9 elbow tendinitis, mild tennis elbow strain, and low back strain did not appear to be
10 severely restricting during the examination, as evidenced by the generally
11 unremarkable results of the range of motion and lower and upper extremity tests
12 Dr. Suzuki performed on plaintiff. See AR 632-34. The ALJ’s rejection of Dr.
13 Suzuki’s work restriction assessment as inconsistent with his own clinical findings
14 is thus supported by substantial evidence in the record, and is a specific and
15 legitimate reason. See Chaudhry, 688 F.3d at 671.
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Dr. Suzuki Did Not Consider the August 2011 X-Ray Study

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The ALJ further rejected Dr. Suzuki’s opinion because there is no indication

18 he considered or reviewed the August 2011 x-ray study of plaintiff’s lumbar spine.
19 AR 40. Dr. Suzuki examined plaintiff on September 19, 2011, and reported his
20 findings on October 23, 2011. AR 626, 636. As the ALJ noted, the results of an
21 August 25, 2011 x-ray study were “essentially unremarkable.” AR 40, 662. The
22 findings were:
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Negative for fracture or subluxation. Alignment is maintained.

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Lumbar vertebral bodies demonstrate normal height. No significant

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loss of intervertebral disk spaces.

26 AR 662. Dr. Suzuki’s report indicates he did not review this x-ray study or any
27 other medical records after June 2011. AR 638-47.
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Instead, Dr. Suzuki relied on a June 5, 2008 MRI and June 16, 2009
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1 electrodiagnostic studies. AR 635, 639, 641. Dr. Suzuki appears to have
2 presumed that the June 2008 and June 2009 protruding disc and right-sided lumbar
3 radiculopathy findings were still accurate and germane to the symptoms plaintiff
4 manifested during his September 2011 examination. No contemporaneous MRI or
5 electrodiagnostic studies were conducted to confirm the continued existence and
6 nature of those conditions. Dr. Suzuki’s report failed to indicate how those
7 particular physical deficiencies – documented as much as three years earlier –
8 were currently affecting plaintiff to such a degree that plaintiff should be
9 “precluded from any heavy lifting, pushing or pulling of more than 5 pounds.”
10 See AR 635.
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The ALJ found that the August 2011 x-ray study “raises concerns regarding

12 the reliability of the earlier MRI study.” AR 39. Although x-rays and MRIs may
13 reveal different things, the ALJ’s finding was not unreasonable, particularly given
14 the age of the MRI. As such, Dr. Suzuki’s failure to consider the x-ray study was
15 another specific and legitimate reason for the ALJ to give little weight to Dr.
16 Suzuki’s opinion.
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Dr. Suzuki Ignored a Gap in Treatment

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Dr. Suzuki’s review of plaintiff’s medical records reflects no treatment

19 records for more than a year after April 2010. See AR 644-45. Yet as the ALJ
20 found, Dr. Suzuki “seems to ignore the fact that there is a large treatment gap after
21 April 2010.” AR 40. In particular, the ALJ found this treatment gap is
22 inconsistent with Dr. Suzuki’s “aggressive assessment.” Id.
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It is clear that an ALJ may discount a claimant’s credibility based on

24 “unexplained or inadequately explained failure to seek treatment.” Molina v.
25 Astrue, 674 F.3d 1104, 1112 (9th Cir. 2012) (internal quotation marks and
26 citations omitted). Defendant contends an ALJ should likewise be able to
27 “discredit a physician who ignores a prolonged unexplained treatment gap when
28 he should know that a person with disabling impairments could not go for more
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1 than a year without seeking treatment.” D. Mem. at 5. The court agrees this is a
2 proper consideration.
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Moreover, the record reflects that to the extent plaintiff was receiving

4 treatment for his pain, it was conservative, and Dr. Suzuki knew it. See Parra v.
5 Astrue, 481 F.3d 742, 751 (9th Cir. 2007) (“[E]vidence of ‘conservative treatment’
6 is sufficient to discount a claimant’s testimony regarding severity of an
7 impairment.”). Just prior to, during, and right after Dr. Suzuki’s September 2011
8 evaluation, plaintiff was only taking ibuprofen for his back pain and it “help[ed]
9 him.” See AR 650 (August 2, 2011 notes of Dr. Ruben M. Ruiz, III); AR 627
10 (plaintiff’s September 2011 statement to Dr. Suzuki that his back pain symptoms
11 were alleviated with the use of ibuprofen); AR 652-53 (October 4, 2011 notes of
12 treating physician Dr. Ruiz indicating plaintiff had been prescribed ibuprofen and
13 Tylenol Arthritis). This contemporaneous treatment is inconsistent with Dr.
14 Suzuki’s recommendation that plaintiff “be considered a candidate for epidural
15 steroid injections or lumbosacral surgery.” See AR 635.
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In sum, the ALJ provided four reasons for rejecting Dr. Suzuki’s opinion

17 that were specific and legitimate and support by substantial evidence in the record.
18 As such, the ALJ did not err in rejecting Dr. Suzuki’s opinion.
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V.

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CONCLUSION

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IT IS THEREFORE ORDERED that Judgment shall be entered

22 AFFIRMING the decision of the Commissioner denying benefits, and dismissing
23 this action with prejudice.
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25 Dated: June 5, 2015
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SHERI PYM
UNITED STATES MAGISTRATE JUDGE

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