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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 Case No.: CV 16-4154 AS MARY ANN RICHARDSON, Plaintiff, MEMORANDUM OPINION v. NANCY A. BERRYHILL1, Acting Commissioner of Social Security, 16 Defendant. 17 18 PROCEEDINGS 19 20 21 22 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 23 Supplemental Security Income (“SSI”). (Docket Entry No. 1). 24 The parties have consented to proceed before a United States 25 26 27 28 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). 1 Magistrate Judge. 2 2016, Defendant filed an Answer to the Complaint along with the 3 Administrative Record (“A.R.”). 4 The parties filed a Joint Stipulation (“Joint Stip.”) on January 5 19, 6 Plaintiff’s claim. 7 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. 9 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 10 11 On June 30, 2012, Plaintiff, formerly employed as an in12 13 home care giver as well as in “managing/inventory” at Canvas Art Painting Company (A.R. 247-249), filed an application for SSI, 14 alleging 15 Plaintiff alleged disability due to fibromyalgia, disc disease, 16 possible lupus, and depression. disability beginning May 1, 2005. (A.R. 49). (Id.). 17 18 On January 6, 2015, Administrative Law Judge (“ALJ”) Robert 19 A. 20 (“VE”) Carmen Roman, and medical expert Dr. Hugh Savage. 21 27-48). 22 including the October 2012 consultative examination with state 23 Evans heard testimony from Plaintiff, vocational expert (A.R. Dr. Savage reviewed and summarized the medical record, agency medical consultant Dr. Elliott Gilpeer. (Id.). 24 25 On February 5, 2015, ALJ Evans issued a decision finding that Plaintiff was not disabled under the Social Security Act. 26 (A.R. 11–21). The ALJ found that Plaintiff suffered from the 27 following medically determinable 28 2 severe impairments: a back 1 disorder, mild lumbar arthritis, hypertension, obesity. 2 13). 3 functional capacity (“RFC”)2 to perform light work as defined in 4 20 CFR 416.967(b)3, with the following limitations: no climbing 5 ladders/ropes/scaffolds; frequently 6 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). 8 Based on Plaintiff’s RFC, as well as her age, education, 9 and work experience, and the finding that Plaintiff had no past 10 relevant work, the ALJ determined that Plaintiff could perform 11 work as a counter clerk (DOT No. 249.366-010), office helper 12 13 (DOT No. 239.567.010), or merchandise marker (DOT No. 209.587034). (A.R. 19-20). Accordingly, the ALJ found that Plaintiff 14 was not disabled4 within the meaning of The Social Security Act. 15 (A.R. 20). 16 17 18 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). 19 3 20 21 22 23 24 25 26 “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). 27 4 28 Plaintiff amended her disability onset date to May 1, 2012 at the hearing. 3 1 In reaching his decision, the ALJ found that while 2 Plaintiff’s medically determinable impairments could reasonably 3 be 4 statements concerning the intensity, persistence, and limiting 5 effects of these symptoms were not credible to the extent that 6 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 9 Plaintiff’s activities of daily living. (Id.). 10 11 The ALJ declined to give substantial weight to the opinion 12 13 of Plaintiff’s (A.R. 18). treating While physician, acknowledging Dr. that Thelma Dr. T. Fernandez. Fernandez had the 14 opportunity to examine and treat Plaintiff, the ALJ found that 15 Dr. Fernandez’s opinion was “not supported with a rationale or 16 an 17 warranting such an opinion” and was not consistent with the 18 medical record as a whole. 19 Dr. 20 “essentially 21 “objectivity or balance”. 22 the extent that Dr. Fernandez opined on the ultimate issue of 23 24 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.). 25 On March 2, 2015, Plaintiff sought review of the ALJ’s 26 decision before the Appeals Council. (A.R. 7). The request was 27 denied on April 15, 2016. (A.R. 1–3). 28 4 The ALJ’s decision then 1 became the final decision of the Commissioner, allowing this 2 Court to review the decision. See 42 U.S.C. §§ 405(g), 1383(c). 3 PLAINTIFF’S CONTENTION 4 5 Plaintiff contends that the ALJ erred in failing to provide 6 7 8 specific and legitimate reasons for rejecting the opinion of her treating physician, Dr. Thelma T. Fernandez. (Joint Stip. 4). 9 STANDARD OF REVIEW 10 11 This court reviews the Commissioner’s decision to determine 12 13 if: (1) the Commissioner’s findings are supported by substantial evidence; and (2) the Commissioner used proper legal standards. 14 42 U.S.C § 405(g); see Carmickle v. Comm’r, 533 F.3d 1155, 1159 15 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 16 2007). 17 than a preponderance.” 18 (9th Cir. 1998) (citing Jamerson v. Chater, 112 F.3d 1064, 1066 19 (9th Cir. 1997). 20 person 21 Hoopai, 499 F. 3d at 1074; Smolen v. Chater, 80 F.3d 1273, 1279 22 (9th 23 24 25 “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. 27 28 5 1 2006) 2 constitute substantial evidence). (inferences “reasonably drawn from the record” can 3 4 This Court “may not affirm [the Commissioner’s] decision 5 simply by isolating a specific quantum of support evidence, but 6 must 7 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 9 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 11 12 13 either affirming or the [Commissioner’s] conclusion, [a] court may not substitute its judgment for that 14 of the [Commissioner].” 15 1998) (citation omitted). Reddick, 157 F.3d 715, 720-21 (9th Cir. 16 17 DISCUSSION 18 19 After consideration of the record as a whole, the Court 20 finds 21 evidence and is free from material5 legal error. that the ALJ’s decision is supported by substantial 22 23 24 25 26 27 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). 28 6 1 A. The ALJ Provided Specific And Legitimate Reasons For Rejecting The Opinion Of Plaintiff’s Treating Physician 2 3 Plaintiff 4 complains that the ALJ failed to provide any 5 specific and legitimate reasons for rejecting treating physician 6 Dr. Fernandez’s medical opinion. (Joint Stip. at 4). 7 asserts that Dr. Fernandez’s opinion must be accepted as a matter 8 of law, resulting in a finding of disability. 9 6). Plaintiff (Joint Stip. at The Court disagrees. 10 On May 21 and 22, 2012, Dr. Fernandez completed a medical 11 12 form 13 fibromyalgia, 14 15 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.). 16 Dr. Fernandez also checked off boxes on the form indicating that 17 Plaintiff can fifteen, pounds occasionally lift ten, but never more than 18 19 20 21 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). 22 23 24 With respect to Dr. Fernandez’s opinion, the ALJ stated the following: 25 26 The undersigned gives minimal weight to the claimant’s 27 treating source opinion. 28 the opportunity to examine and treat the claimant, the Although this source did have 7 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 7 disability, she treads on an issue reserved for the 8 Commissioner. Hence, the opinion is not entitled to 9 controlling weight under 20 CFR Sections 404.1527 10 and/or 416.927. 11 12 (A.R. 18). 13 14 In general, “[t]he opinion of a treating physician is given 15 deference because ‘he is employed to cure and has a greater 16 opportunity to know and observe the patient as an individual.’” 17 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th 18 Cir. 1999) (quoting Sprague v. Bowen, 812 F.2d 1226, 1230 (9th 19 Cir. 20 necessarily conclusive as to either the physical condition or 21 the ultimate issue of disability.” 22 accept 23 24 25 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). 26 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 5 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. 15 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, 21 discounted physician's assistant's opinion when it “consisted 22 primarily of a standardized, check-the-box form in which she 23 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. 28 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, 17 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. 26 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. 7 8 9 10 Dated: March 30, 2017. ___________/s/ ______________ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 14

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