Mary Ann Richardson v. Carolyn W. Colvin

Filing 21

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is affirmed. (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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Case No.: CV 16-4154 AS

MARY ANN RICHARDSON,
Plaintiff,

MEMORANDUM OPINION
v.
NANCY A. BERRYHILL1,
Acting Commissioner of Social
Security,

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Defendant.
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PROCEEDINGS

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On June 10, 2016, Plaintiff Mary Ann Richardson filed a
Complaint seeking review of the denial of her application for a
period of disability, Disability Insurance Benefits (“DIB”), and

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Supplemental Security Income (“SSI”).

(Docket Entry No. 1).

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The parties have consented to proceed before a United States
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1

Nancy A. Berryhill is now the Acting Commissioner of the
Social Security Administration and is substituted in for Acting
Commissioner
Carolyn
W.
Colvin
in
this
case.
See 42 U.S.C. § 205(g).

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Magistrate Judge.

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2016, Defendant filed an Answer to the Complaint along with the

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Administrative Record (“A.R.”).

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The parties filed a Joint Stipulation (“Joint Stip.”) on January

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19,

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Plaintiff’s claim.

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8

2017,

(Docket Entry Nos. 10, 12).

setting

forth

On October 26,

(Docket Entry Nos. 16, 17).

their

respective

positions

(Docket Entry No. 18).

regarding

The Court has taken

this matter under submission without oral argument.

See C.D.

Cal. L.R. 7-15.

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BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
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On June 30, 2012, Plaintiff, formerly employed as an in12
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home care giver as well as in “managing/inventory” at Canvas Art
Painting Company (A.R. 247-249), filed an application for SSI,

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alleging

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Plaintiff alleged disability due to fibromyalgia, disc disease,

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possible lupus, and depression.

disability

beginning

May

1,

2005.

(A.R.

49).

(Id.).

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On January 6, 2015, Administrative Law Judge (“ALJ”) Robert

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A.

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(“VE”) Carmen Roman, and medical expert Dr. Hugh Savage.

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27-48).

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including the October 2012 consultative examination with state

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Evans

heard

testimony

from

Plaintiff,

vocational

expert
(A.R.

Dr. Savage reviewed and summarized the medical record,

agency medical consultant Dr. Elliott Gilpeer.

(Id.).

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25

On February 5, 2015, ALJ Evans issued a decision finding
that Plaintiff was not disabled under the Social Security Act.

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(A.R. 11–21).

The ALJ found that Plaintiff suffered from the

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following

medically

determinable

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2

severe

impairments:

a

back

1

disorder, mild lumbar arthritis, hypertension, obesity.

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13).

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functional capacity (“RFC”)2 to perform light work as defined in

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20 CFR 416.967(b)3, with the following limitations: no climbing

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ladders/ropes/scaffolds;

frequently

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crouch,

concentrated

7

(A.R.

The ALJ then determined that Plaintiff had the residual

crawl;

and

no

heights or moving machinery.

climb

stairs/ramps,

exposure

to

stoop,

unprotected

(A.R. 15).

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Based on Plaintiff’s RFC, as well as her age, education,
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and work experience, and the finding that Plaintiff had no past
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relevant work, the ALJ determined that Plaintiff could perform
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work as a counter clerk (DOT No. 249.366-010), office helper
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(DOT No. 239.567.010), or merchandise marker (DOT No. 209.587034).

(A.R. 19-20).

Accordingly, the ALJ found that Plaintiff

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was not disabled4 within the meaning of The Social Security Act.

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(A.R. 20).

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2

A Residual Functional Capacity is what a claimant can
still
do
despite
existing
exertional
and
nonexertional
limitations. See 20 C.F.R. § 404.1545(a)(1).

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“Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very little, a
job is in this category when it requires a good deal of walking
or standing, or when it involves sitting most of the time with
some pushing and pulling of arm or leg controls.
To be
considered capable of performing a full or wide range of light
work, you must have the ability to do substantially all of these
activities. If someone can do light work, we determine that he
or she can also do sedentary work, unless there are additional
limiting factors such as loss of fine dexterity or inability to
sit for long periods of time.”
20 C.F.R. §§ 404.1567(b)
and 416.967(b).

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4

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Plaintiff amended her disability onset date to May 1,
2012 at the hearing.
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1

In

reaching

his

decision,

the

ALJ

found

that

while

2

Plaintiff’s medically determinable impairments could reasonably

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be

4

statements concerning the intensity, persistence, and limiting

5

effects of these symptoms were not credible to the extent that

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they

7
8

expected

were

(A.R. 16).
finding

cause

her

inconsistent

alleged

with

the

symptoms,

ALJ’s

RFC

Plaintiff’s

assessment.

The ALJ’s credibility determination was based on his

that

inconsistent

to

Plaintiff’s
with

the

alleged

objective

functional
medical

limitations

evidence

as

were

well

as

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Plaintiff’s activities of daily living.

(Id.).

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The ALJ declined to give substantial weight to the opinion
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of

Plaintiff’s

(A.R.

18).

treating

While

physician,

acknowledging

Dr.

that

Thelma
Dr.

T.

Fernandez.

Fernandez

had

the

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opportunity to examine and treat Plaintiff, the ALJ found that

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Dr. Fernandez’s opinion was “not supported with a rationale or

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an

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warranting such an opinion” and was not consistent with the

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medical record as a whole.

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Dr.

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“essentially

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“objectivity or balance”.

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the extent that Dr. Fernandez opined on the ultimate issue of

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identification

Fernandez’s

disability,

of

the

and

(Id.).

conclusion

adopt[ed]”

she

signs

Plaintiff

Plaintiff’s

“tread[ed]

on

findings

Instead, the ALJ found that

that

(Id.).

laboratory

was

disabled

statements

without

The ALJ also noted that, to

an

issue

reserved

for

the

Commissioner.” (Id.).

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On March 2, 2015, Plaintiff sought review of the ALJ’s
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decision before the Appeals Council.

(A.R. 7).

The request was

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denied on April 15, 2016.

(A.R. 1–3).

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4

The ALJ’s decision then

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became the final decision of the Commissioner, allowing this

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Court to review the decision.

See 42 U.S.C. §§ 405(g), 1383(c).

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PLAINTIFF’S CONTENTION

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Plaintiff contends that the ALJ erred in failing to provide

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specific and legitimate reasons for rejecting the opinion of her
treating physician, Dr. Thelma T. Fernandez.

(Joint Stip. 4).

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STANDARD OF REVIEW
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This court reviews the Commissioner’s decision to determine
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if: (1) the Commissioner’s findings are supported by substantial
evidence; and (2) the Commissioner used proper legal standards.

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42 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159

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(9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir.

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2007).

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than a preponderance.”

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(9th Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066

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(9th Cir. 1997).

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person

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Hoopai, 499 F. 3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279

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(9th

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“Substantial evidence is more than a scintilla, but less

might

Cir.

Reddick v. Chater, 157 F.3d 715, 720

It is relevant evidence “which a reasonable

accept

1996).

To

as

adequate

determine

to

support

whether

a

conclusion.”

substantial

evidence

supports a finding, “a court must ‘consider the record as a
whole, weighing both evidence that supports and evidence that
detracts

from

Massanari,

257

the

[Commissioner’s]

F.3d

1033,

1035

conclusion.’”
(9th

Cir.

2001)

Aukland

v.

(citation

26
omitted); see Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir.
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5

1

2006)

2

constitute substantial evidence).

(inferences

“reasonably

drawn

from

the

record”

can

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This Court “may not affirm [the Commissioner’s] decision

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simply by isolating a specific quantum of support evidence, but

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must

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8

also

consider

evidence

Commissioner’s] conclusion.”

that

detracts

from

[the

Ray v. Bowen, 813 F.2d 914, 915

(9th Cir. 1987) (citation and internal quotation marks omitted).
However,

the

Court

cannot

disturb

findings

supported

by

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substantial evidence, even though there may exist other evidence
10
supporting Plaintiff’s claim.

See Torske v. Richardson, 484

F.2d 59, 60 (9th Cir. 1973).

“If the evidence can reasonably

support

reversing

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either

affirming

or

the

[Commissioner’s]

conclusion, [a] court may not substitute its judgment for that

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of the [Commissioner].”

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1998) (citation omitted).

Reddick, 157 F.3d 715, 720-21 (9th Cir.

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DISCUSSION

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After consideration of the record as a whole, the Court

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finds

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evidence and is free from material5 legal error.

that

the

ALJ’s

decision

is

supported

by

substantial

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5

The harmless error rule applies to the review of
administrative decisions regarding disability.
See McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart,
400 F.3d 676, 679 (9th Cir. 2005) (an ALJ’s decision will not be
reversed for errors that are harmless).

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6

1

A.

The

ALJ

Provided

Specific

And

Legitimate

Reasons

For

Rejecting The Opinion Of Plaintiff’s Treating Physician

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3

Plaintiff

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complains

that

the

ALJ

failed

to

provide

any

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specific and legitimate reasons for rejecting treating physician

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Dr. Fernandez’s medical opinion. (Joint Stip. at 4).

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asserts that Dr. Fernandez’s opinion must be accepted as a matter

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of law, resulting in a finding of disability.

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6).

Plaintiff

(Joint Stip. at

The Court disagrees.

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On May 21 and 22, 2012, Dr. Fernandez completed a medical

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12

form

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fibromyalgia,

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in

which

she

noted

neuropathy

that

in

Plaintiff

extremities,

disease, and was being tested for lupus.

suffers

from

degenerative

back

(A.R. 370-372).

Dr.

Fernandez also noted that, in an eight-hour workday, Plaintiff
can only sit or stand for fifteen minutes at a time.

(Id.).

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Dr. Fernandez also checked off boxes on the form indicating that
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Plaintiff

can

fifteen,

pounds

occasionally

lift

ten,

but

never

more

than

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20
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and

can

crouch, crawl, or reach.

never

climb,

(A.R. 372).

balance,

stoop,

kneel,

Dr. Fernandez commented

that Plaintiff is disabled in all factors and needs “in home
care.”

(A.R. 371).

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With respect to Dr. Fernandez’s opinion, the ALJ stated the
following:

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The undersigned gives minimal weight to the claimant’s

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treating source opinion.

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the opportunity to examine and treat the claimant, the

Although this source did have

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1

opinions offered are not supported with a rationale or

2

an identification of the signs and laboratory findings

3

warranting such an opinion.

4

not

5

whole.

6

statements without objectivity or balance.

consistent

with

the

Moreover, the opinion is

other

medical

records

as

a

Instead, it essentially adopts the claimant’s
Finally, to

the extent the source opines on the ultimate issue of

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disability, she treads on an issue reserved for the

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Commissioner.

Hence, the opinion is not entitled to

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controlling

weight

under

20

CFR

Sections

404.1527

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and/or 416.927.
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12

(A.R. 18).

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14

In general, “[t]he opinion of a treating physician is given

15

deference because ‘he is employed to cure and has a greater

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opportunity to know and observe the patient as an individual.’”

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Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th

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Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th

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Cir.

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necessarily conclusive as to either the physical condition or

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the ultimate issue of disability.”

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accept

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24
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1987)).

the

physician,

But

opinion
if

inadequately

a

of

that

supported

treating

any

Id.

physician

opinion
by

physician’s

is

clinical

opinion

not

“The ALJ need not

including

brief,

“is

the

treating

conclusory,

findings.”

Thomas

and
v.

Barnhart, 278 F.3d 947, 957 (9th Cir. 2002).

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When

rejecting

the

uncontroverted

opinion

of

a

treating

27
physician, the ALJ must present “clear and convincing reasons.”
28
8

1

Id.

2

opinions, as is the case here, “the ALJ may reject the opinion

3

of a treating physician in favor of a conflicting opinion of an

4

examining physician if the ALJ makes ‘findings setting forth

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specific, legitimate reasons for doing so that are based on

6

substantial evidence in the record.’”

7

at

957.

However,

where

there

are

conflicting

medical

Id. (quoting Magallanes

v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)).

8
The

ALJ’s

decision

thoroughly

summarized

the

medical

9
evidence

in

the

record

(A.R.

15-19),

found

Dr.

Fernandez’s

10
opinion that Plaintiff was disabled to be inconsistent with the
11
medical record as a whole and unsupported by an identification
12
13
14

of signs or lab findings and, as set forth below, specified the
inconsistencies and lack of support for Dr. Fernandez’s opinion.
The ALJ’s decision was supported by the record.

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16

As

a

threshold

matter,

the

fact

that

Dr.

Fernandez’s

17

opinion was expressed through a standardized, check-the-box form

18

that

19

provides support for affording it minimal weight.

20

Astrue,

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discounted physician's assistant's opinion when it “consisted

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primarily of a standardized, check-the-box form in which she

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24
25

provided

failed

674

to

no

F.3d

provide

supporting

1104,

1111

supporting

reasoning

(9th

Cir.

reasoning

despite being instructed to do so”).

or

clinical

2012)

or

findings

See Molina v.
(ALJ

clinical

properly

findings,

Ultimately, it would be

“error to give an opinion controlling weight simply because it
is the opinion of a treating source if it is not well-supported

26
.

.

.

or

if

it

is

inconsistent

with

27
evidence.”

Social Security Ruling 96-2p.

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9

the

other

substantial

1

The

ALJ

noted

that

on

the

May

2012

medical

form,

Dr.

2

Fernandez stated that Plaintiff suffers from “fibromyalgia,” but

3

“fibromyalgia” is only once mentioned at a May 26, 2010 exam

4

with

5

laboratory

6

support

7
8

no

follow

up

and

findings

such

a

or

Dr.

Fernandez

objective

diagnosis.

did

evidence

(A.R.

17,

not
in

cite

the

to

any

record

to

The

ALJ

371-372).

summarized and discussed the testimony of medical expert Dr.
Hugh Savage, who stated that he “looked very carefully” through
Plaintiff’s

medical

records

for

anything

alarming

regarding

9
fibromyalgia and stated that he “saw no indication of actual
10
examination which would reveal in any consistent matter, but
11
especially so, the consultative exam ... showed no specifically
12
13

stated, no indication of any type of characteristic pain seen
with

FM.”

(A.R.

32).

Dr.

Savage

also

testified

that

14

Plaintiff’s medical records showed a normal sedimentation rate,

15

meaning that there was no inflammation in her body.

16

32, 477-498).

(A.R. 17,

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18

Additionally, while Dr. Fernandez indicated that Plaintiff

19

was being tested for lupus (A.R. 371), Dr. Savage testified that

20

Plaintiff’s

21

results,

22

negative.

2012

which

anti-DNA,
are

anti-smooth

“important

for

muscle,

and

assessing

ANA

test

lupus”,

were

(A.R. 17, 32, 488).

23
Moreover, while Dr. Fernandez stated on the medical form

24
25

that

Plaintiff

suffers

from

neuropathy

in

extremities,

degenerative back disease, and is disabled in all factors (A.R.
26
371),

the

results

from

Plaintiff’s

October

2012

consultative

27
examination

with

state

agency

medical

28
10

consultant

Dr.

Elliott

1

Gilpeer indicate that she had “five out of five” muscle strength

2

and a negative straight-leg raising test. (A.R. 19, 34, 68, 70-

3

72).

4
5

The ALJ also considered an October 24, 2012 CT scan of the

6

abdomen and pelvis which revealed mild degenerative changes of

7
8

the lower lumbar spine as well as an August 21, 2010 lumbar
spine MRI showing only mild discogenic disease with no central
spinal stenosis.

(A.R. 18, 401-402, 420-421).

9
10
Thus, the Court finds that the ALJ provided specific and
11
legitimate
12

reasons

for

affording

minimal

weight

to

Dr.

Fernandez’s opinion.

13
14

The ALJ also rejected Dr. Fernandez’s opinion based on his

15

finding that Dr. Fernandez relied on Plaintiff’s statements of

16

her symptoms and limitations “without objectivity or balance.”

17

(A.R. 18).

18

this

19

whatsoever that would cast doubt on the treating physician’s

20

professionalism or objectivity.”

21

ALJ made this finding after a thorough discussion of the fact

22

that Dr. Fernandez did not cite to any objective evidence to

23
24
25

Plaintiff argues that the ALJ did not elaborate on

conclusory

statement

by

“identifying

any

(Joint Stip. 5).

evidence

However, the

support her opinion and, therefore, reasonably concluded that
Plaintiff’s

statements

were

the

source

of

Dr.

Fernandez’s

opinion.

26
“An ALJ may reject a treating physician’s opinion if it is
27
based to a large extent on a claimant’s self-reports that have
28
11

1

been properly discounted as incredible.”

Tommasetti v. Astrue,

2

533

see

3

Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995) (“[A]n opinion of

4

disability premised to a large extent upon the claimant’s own

5

accounts of his symptoms and limitations may be disregarded,

6

once those complaints have been properly discounted.”)

F.3d

1035,

1041

(9th

Cir.

2008);

also

Andrews

v.

7
Moreover, the ALJ also found Plaintiff’s credibility to be

8

at issue because her pain allegations were not supported by
9
objective evidence and were inconsistent with her activities of
10
daily living.

(A.R. 15-19).

11
12
13

Although

a

claimant’s

subjective

complaint

“cannot

be

rejected on the sole ground that it is not fully corroborated by

14

objective

15

relevant factor . . .” Rollins v. Massanari, 261 F.3d 853, 857

16

(9th Cir. 2001).

17

is a consideration for the ALJ in evaluating credibility.

18

20

19

disability, an ALJ will evaluate a claimant’s statements about

20

the intensity, persistence and limiting effects of her symptoms

21

“in

22

evidence”).

23
24

medical

C.F.R.

evidence,

the

to

evidence

is

still

a

Lack of supporting objective medical evidence

§§ 404.1529(c)(4),

relation

medical

the

416.929(c)(4)

objective

medical

(in

evidence

See

determining

and

other

Here, after reviewing the medical record, the ALJ

found that the objective medical evidence did not fully support
Plaintiff’s complaints of total disability.

25
Plaintiff’s pain allegations were also inconsistent with
26
statements

regarding

her

daily

living.

For

instance,

while

27
Plaintiff testified that she uses her walker “90 percent of the
28
12

1

time” as well as from “room to room” in her home (A.R. 18, 33,

2

43), Dr. Savage testified that there is no mention of a walker

3

from her October 2012 consultative exam with the state agency

4

consultant.

5

Plaintiff’s

6

activities of daily living including dressing, preparing simple

7
8

meals,

(A.R. 18, 34, 70-72).
claims

paying

of

bills,

total

The ALJ also found that

disability

counting

change,

conflicted

handling

with

a

her

savings

account, using a checkbook/money order, shopping, swimming (to
relieve pain), talking with her daughter, making phone calls,

9
reading the bible, and attending bible study.

(A.R. 16, 252-

10
267).

The ALJ further found that Plaintiff’s testimony that she

11
“can’t do laundry” but that she has a neighbor that helps her
12
13
14

lift her laundry into his truck, drives her across the street,
and unloads it for her so that she can do a “couple loads at a
time,” lacked credibility.

(A.R. 16, 42).

15
16

Similarly, while Plaintiff testified that she suffers side

17

effects

18

dizziness (A.R. 38), the ALJ noted that “the treatment notes

19

reflect that the medication was adjusted or changed” in response

20

to side effects.

from

her

medications,

including

vertigo

and

extreme

(A.R. 16).

21
22
23
24
25

Accordingly, the ALJ’s finding that Dr. Fernandez’s opinion
was unpersuasive to the extent that it relied on Plaintiff’s
subjective symptoms was also a specific and legitimate reason
for rejecting Dr. Fernandez’s opinion about the limiting effects
of Plaintiff’s symptoms.

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27
28
13

1

ORDER

2
3
4

For

all

of

the

foregoing

reasons,

the

decision

of

the

Commissioner is affirmed.

5
6

LET JUDGMENT BE ENTERED ACCORDINGLY.

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8
9
10

Dated: March 30, 2017.
___________/s/ ______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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