Allen Christopher Brown v. Carolyn W. Colvin

Filing 22

MEMORANDUM OPINION by Magistrate Judge Alka Sagar. (See document for complete details) (afe)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION

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ALLEN CHRISTOPHER BROWN,

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Plaintiff,
v.

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NANCY A. BERRYHILL,1
Acting Commissioner of Social
Security,
Defendant.

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) No. CV 16-04379-AS
)
) MEMORANDUM OPINION
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PROCEEDINGS

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20

On

21

June

17,

2016,

Plaintiff

Allen

Christopher

Brown

22

(“Plaintiff”) filed a Complaint seeking review of the Commissioner’s

23

denial of Plaintiff’s application for a period of disability and

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Disability Insurance Benefits (“DIB”).

25

November 16, 2016, Defendant filed an Answer to the Complaint and

26

the Certified Administrative Record (“AR”).

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28

1

(Docket Entry No 1).

On

(Docket Entry Nos. 17-

Nancy A. Berryhill is now the Acting Commissioner of Social
Security and is substituted for Acting Commissioner Carolyn W.
Colvin in this case. See 42 U.S.C. § 205(g).
1

1

18).

2

Magistrate Judge.

(Docket Entry Nos. 13, 14).

3

Joint

(“Joint

4

forth their respective positions on Plaintiff’s claims.

5

Entry No. 19).

The parties have consented to proceed before a United States

Stipulation

Stip.”)

on

The parties filed a

February

21,

2017,

setting
(Docket

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7

SUMMARY OF ADMINISTRATIVE DECISION

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9

On January 2, 2013, Plaintiff, formerly employed as a data

10

entry

clerk,

11

technician, blending tank tender, equipment cleaner and soil tester,

12

(see

13

Benefits

14

2012.

15

(“ALJ”),

16

testimony

17

vocational

18

September 12, 2014, the ALJ denied Plaintiff benefits in a written

19

decision.

AR

phlebotomist,

62-63),

filed

(“DIB”),

alleging

(AR 145).

control

application
disability

for

technician,

Disability

beginning

on

lab

Insurance

September

25,

On July 10, 2014, the Administrative Law Judge

Elizabeth
from

an

quality

R.

Lishner,

Plaintiff,

expert

(“VE”),

who

examined
was

Ronald

the

represented

record

and

heard

counsel,

and

(AR

Hatakeyama.

by

29-69).

On

(AR 9-18).

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The ALJ applied the five-step process in evaluating Plaintiff’s

21
22

case.

(AR 11-18).

At step one, the ALJ determined that Plaintiff

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had not engaged in substantial gainful activity after the alleged

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onset date of September 25, 2012.

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found that Plaintiff had the severe impairments of depression and

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inguinal hernia.

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Plaintiff’s impairments did not meet or equal a Listing found in 20

28

C.F.R. Part 404, Subpart P, Appendix 1.

(AR 11).

(AR 11).

At step two, the ALJ

At step three, the ALJ determined that

2

(AR 11).

1

Before proceeding to step four, the ALJ found that, through the

2

date last insured, Plaintiff had the residual functional capacity

3

(“RFC”)2 to perform light work as defined in 20 C.F.R. 404.1567(b),

4

including

5

frequently;

6

workday; sitting up to 6 hours in an 8 hour workday; limited to

7

occasional complex work; and no fast-paced production work.

8

13).

lifting

up

to

standing

20

and/or

pounds
walking

occasionally
up

to

6

and

hours

10
an

in

pounds
8-hour

(AR

9

In making this finding, the ALJ determined that Plaintiff’s

10
11

statements

12

effects of his symptoms were less than fully credible.

13

The ALJ noted that although Plaintiff asserted he could lift no more

14

than

15

aptitude, his assertions were not supported by the objective medical

16

record.

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status examinations and rarely complained of physical pain after his

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hernia surgery.

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pain

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surgery he had undergone six months ago, he did not regularly see

21

his

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activities, such as cooking, attending group meetings, walking, and

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going to the library.

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that he felt side effects from his medication, the record repeatedly

25

mentioned that there were no side effects.

5

concerning

pounds,

had

(AR 15).

decreased

doctor

for

the

intensity,

difficulty

persistence

concentrating

and

and

limiting
(AR 15).

poor

mental

Medical records indicated he had good mental

(Id.)
and

any

In addition, Plaintiff testified that his

mental

pain,

condition

and

(Id.).

that

improved

he

after

completed

the

normal

hernia

daily

Moreover, while Plaintiff testified

(Id.).

26
2

27
28

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).
3

1

In determining the Plaintiff’s RFC, the ALJ gave more weight to

2

the

3

physician, than to the opinion of Mark Geisbrecht, M.D., Plaintiff’s

4

treating psychiatrist.

report

prepared

by

F.L.

Williams,

M.D.,

a

State

agency

(AR 16).

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6

In a Disability Determination Explanation dated July 8, 2013,

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Dr. Williams found Plaintiff was not significantly limited in his

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ability

9

instructions,

to

understand
perform

and

carry

activities

out

very

within

a

short

and

schedule,

simple

sustain

an

10

ordinary routine without supervision, work in coordination with, or

11

in

12

simple work-related decisions, and complete a normal workday without

13

interruptions

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limited

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maintain

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markedly limited in the ability to understand and remember detailed

17

instructions.

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Plaintiff’s limitations were not severe enough to keep him from

19

working.

proximity

in

to,

others

from

his

without

psychologically

ability

attention

(AR

being

and

to

carry

based
out

concentration

77).

Dr.

distracted

Williams

them,

symptoms;

detailed
for

by

moderately

instructions

extended

periods;

ultimately

make

found

and
and

that

(AR 80).

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21

The

ALJ

gave

little

weight

to

Dr.

Williams’

opinion

that

22

Plaintiff could understand and perform simple instructions, finding

23

that Plaintiff’s testimony and medical records showed that he was

24

capable of performing more than simple, repetitive tasks.

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The ALJ found that Plaintiff had mild restrictions in activities of

26

daily living because he was able to take care of himself, attend

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group meetings, go on walks and visit the library.

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ALJ found that Plaintiff has mild difficulties in social functioning
4

(AR 16).

(AR 12).

The

1

because,

2

others in his disability application, he testified that he has some

3

friends.

4

persistence and pace, Plaintiff has moderate difficulties.

(AR 12).

5

Plaintiff

but

6

medical records described good mental status examinations.

7

The ALJ found only one instance of Plaintiff struggling to stay

8

concentrated and on task.

9

episode of decompensation for an extended period of time.

although

he

(AR 12).

asserted

that

he

has

difficulty

tolerating

The ALJ found that, in regard to concentration,

testified

his

main

problem

was

(See AR 377).

concentration,

his

(AR 12).

The ALJ did not find any
(AR 12).

10

The ALJ found no evidence that Plaintiff’s depression could result

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in any decompensation because he had been able to function outside a

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highly supportive environment.

(AR 12).

13

In

14

a

Residual

Plaintiff’s

Functional

opined

that

Plaintiff could sit for 3 hours in an 8-hour workday and stand/walk

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for 2 hours in an 8-hour workday; occasionally lift less than 10

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pounds; engage in grasping, fine manipulation and reaching for 50

19

percent of the workday; and miss work three or more times per month.

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(AR

21

drowsiness, pain, blurred vision and headaches as side effects of

22

his medication.

reported

Geisbrecht

10,

16

Geisbrecht

Dr.

December

2013,

Dr.

physician,

dated

15

454-55).

treating

Questionnaire,

Plaintiff

experienced

(AR 454).

23

The ALJ rejected the opinion of, Dr. Geisbrecht because it was

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25

inconsistent

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Plaintiff’s medical records.

27

that

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Functional Questionnaire but did not note any side effects in his

Dr.

with

his

Geisbrecht

own

treatment
(AR 16).

mentioned

side

5

notes

and

not

supported

by

For example, the ALJ noted
effects

on

the

Residual

1

examination

2

“medical status examinations were good, with normal speech and eye

3

contact, affect congruent with mood, linear thought process, and no

4

thought content disturbances.”

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during one exam “his insight was adequate and his judgment intact”

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and he had good grooming, stable gait, with an organized and linear

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thought process.

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depression “seemed like it [was] easing.”

notes.

(AR

(AR 14).

16).

The

ALJ

(AR 14).

noted

that

Plaintiff’s

The ALJ highlighted that

In early 2014, Plaintiff stated that his
(AR 14).

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At step four, the ALJ determined that Plaintiff was not able

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11

to perform his past relevant work.

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found Plaintiff was able to perform jobs consistent with his age,

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education and medical limitations existing in significant numbers in

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the national economy.

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Plaintiff could perform the jobs of office helper (DOT 239.567-010),

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mail clerk (DOT 209.687-026) and cleaner housekeeper (DOT 323.687-

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014).

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consistent

19

Occupational

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concluded that Plaintiff was not disabled within the meaning of the

21

Social Security Act and was therefore not entitled to benefits.

22

18).

(AR 17).
with

(AR 17).

(AR 16).

At step five, the ALJ

The ALJ adopted VE testimony that

The ALJ determined that the VE’s testimony was
the

Titles

information
(“DOT”).

contained
(AR

17).

in

the

Dictionary

Accordingly,

the

of
ALJ

(AR

23
24

On

October

25

Council

26

Plaintiff’s request on September 10, 2016.

27

decision

review

then

8,
the

2014,
ALJ’s

became

the

Plaintiff
decision.

final

28

6

requested
The

decision

that

Appeals

the

Council

(AR 5).
of

the

Appeals
denied

The ALJ’s

Commissioner,

1

allowing

2

405(g), 1383(c).

this

Court

to

review

the

decision.

See

42

U.S.C.

§§

3
4

STANDARD OF REVIEW

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6

This court reviews the Administration’s decision to determine

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if it is free of legal error and supported by substantial evidence.

8

See Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th

9

Cir. 2012).

“Substantial evidence” is more than a mere scintilla,

10

but less than a preponderance.

11

1009 (9th Cir. 2014).

12

supports a finding, “a court must consider the record as a whole,

13

weighing both evidence that supports and evidence that detracts from

14

the [Commissioner’s] conclusion.”

15

1033, 1035 (9th Cir. 2001).

16

reasonably

17

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

18

the ALJ.”

19

2006).

support

Garrison v. Colvin, 759 F.3d 995,

To determine whether substantial evidence

either

Aukland v. Massanari, 257 F.3d

As a result, “[i]f the evidence can
affirming

or

reversing

the

ALJ’s

Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir.

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PLAINTIFF’S CONTENTION

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22
23

Plaintiff asserts that the ALJ improperly rejected the opinion

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of treating physician, Dr. Geisbrecht, in favor of the opinion of

25

non-examining medical expert, Dr. Williams.

26

10).

27
28

7

(See Joint Stip. at 4-

1

DISCUSSION

2
3

After reviewing the record, the Court finds that the ALJ gave

4

specific

and

legitimate

5

Geisbrecht,

6

out, the ALJ also rejected the opinion of Dr. Williams, a State

7

agency physician.

Plaintiff’s

reasons

to

treating

reject

the

opinion

As

Defendant

physician.

of

Dr.

points

The Court therefore AFFIRMS the ALJ’s decision.

8
9
10

A.

The

ALJ

Gave

Specific

and

Legitimate

Reasons

to

Reject

The

Opinion Of Treating Physician, Dr. Geisbrecht

11
12

Plaintiff contends that the ALJ did not provide sufficiently

13

specific

14

Geisbrecht in favor of the opinion of Dr. Williams for the following

15

reasons:

16

anticipation of litigation, they were prepared in the context of

17
18

and

(1)

legitimate

Dr.

reasons

to

Geisbrecht’s

reject

notes

the

were

opinion

not

of

prepared

Dr.

in

treatment and thus did not include a description of Plaintiff’s side
effects;

(2)

while

the

record

contains

evidence

of

improvement

19

during the course of treatment, Plaintiff continued to present with
20

symptoms

of

depression,

including

constricted

affect,

dysphoric

21

speech

and

depressed

mood;

(3)

the

ALJ,

in

rejecting

both

Dr.

22

Geisbrecht and Dr. Wiliams’ opinions for being inconsistent with the
23

record as a whole, interpreted the medical evidence on her own as if
24
25
26

she was the medical expert; and (4) the ALJ erred in dividing Dr.
Giesbrecht’s opinion into mental and physical categories but only

27

offered reasons to discount his assigned physical limitations.

28

Joint Stip. at 8-10).
8

(See

1

Defendant

asserts

that

the

ALJ

properly

rejected

Dr.

2

Geisbrecht’s opinion for the following reasons: (1) his opinion was

3

“inconsistent with his own treatment notes and not supported by the

4

[Plaintiff’s] medical records,” (Joint Stip. at 12); (2)

5
6
7

ALJ

gave

more

weight

to

the

opinion

of

Dr.

while the

Williams,

the

ALJ

properly adopted neither Dr. Geisbrecht’s or Dr. Williams’ opinion
because both opinions conflicted with other evidence in the record,

8

(Joint Stip. at 10), and (3) little weight was given to Dr. Williams
9

because the medical records and Plaintiff’s testimony revealed that
10

Plaintiff “is capable of more than simple repetitive tasks.”

(AR

11

16).
12
13

Social

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Security

regulations

require

the

Agency

to

“evaluate

every medical opinion we receive,” giving more weight to evidence
from a claimant’s treating physician.

20 C.F.R. § 404.1527(c).

If

the treating or examining physician’s opinions are not contradicted,
they can only be rejected with clear and convincing reasons.
v. Chater, 81 F.3d 821, 830 (9th Cir. 1995).

Lester

Where a treating or

examining physician's opinion is contradicted by another doctor, the
“[Commissioner]
conflict.”

must

determine

credibility

and

resolve

the

Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685,

692 (9th Cir. 2009) (quoting Thomas v. Barnhart, 278 F.3d 947, 956–
57

(9th

Cir.

2002).

“An

ALJ

may

reject

the

testimony

of

an

examining, but non-treating physician, in favor of a non-examining,
non-treating physician when he gives specific, legitimate reasons
for doing so, and those reasons are supported by substantial record
evidence.”

Lester, 81 F.3d at 831, (as amended) (Apr. 9, 1996)
9

1

(quoting Roberts v. Shalala, 66 F.3d at 179, 184 (9th Cir. 1995)).

2

While

3

constitute substantial evidence that justifies rejecting the opinion

4

of a treating physician,

5

substantial

6

“independent clinical findings or other evidence in the record.”

7

Thomas, 278 F.3d 947 at 957.

8

evidence”

9

summary

the

opinion

of

a

evidence

the

physician

cannot

by

itself

Lester, 81 F.3d at 831, it may serve as

when

requirement
of

nonexamining

by

facts

the

opinion

consistent

with

An ALJ satisfies the “substantial

“setting
and

is

out

a

conflicting

detailed

and

evidence,

thorough

stating

his

10

interpretation thereof and making findings.”

11

759

12

Williams’

13

Accordingly, the ALJ was required to provide specific and legitimate

14

reasons to reject Dr. Geisbrecht’s opinion.

15

763 F.3d 1154, 1161 (9th Cir. 2014).

F.3d

995,

1012

opinion

(9th

Cir.

contradicted

2014)
the

Garrison v. Colvin,

(citations

opinion

of

omitted).
Dr.

Dr.

Geisbrecht.

See Ghanim v. Colvin,

16
17

As set forth below, the ALJ’s findings that Dr. Geisbrecht’s

18

opinion was inconsistent with his own treatment notes, not supported

19

by the medical record as a whole and contradicted by Plaintiff’s own

20

testimony constituted specific and legitimate reasons for rejecting

21

the opinion.

22

The

23

ALJ

properly

found

that

Dr.

Geisbrecht’s

opinion

was

24

contradicted

25

previous

26

clinic

27

appropriate clothing, was well-groomed, made no unusual movements or

28

by

his

own

examinations
indicated

that

treatment

and
the

progress

notes.
notes

Plaintiff

(AR
from

routinely

16).
Dr.
wore

Multiple

Geisbrecht’s
clean

behaviors, smiled and actively participated in treatments.
10

and

(See AR

1

384,

2

Geisbrecht’s opinion that Plaintiff was severely limited in terms of

3

concentration, understanding, social interaction and adaptation, and

4

was a specific and legitimate reason to reject Dr. Geisbrecht’s

5
6
7

387-96,

opinion.
1216

412,

429).

Such

(See AR 458-59).

(9th

Cir.

2005)

normal

behavior

contradicts

Dr.

See Bayliss v. Barnhart, 427 F.3d 1211,

(upholding

ALJ’s

rejection

of

treating

physician’s opinion because his own clinical notes contradicted his

8

own opinion); Noe v. Apfel, 6 Fed.Appx. 587, 588 (9th Cir. 2001)
9

(ALJ’s

examples

of

treating

physician’s

notes

contradicting

her

10

ultimate conclusion was a specific and legitimate reason to reject
11

the opinion).
12
13

Plaintiff asserts that the objective medical record supports

14
15

Dr.

16

Plaintiff

17

However,

18

notes, illustrate only recurring symptoms of moderate depression and

19

sadness with minimal to no mention of any extreme limitations or

20

obstacles.

21

appropriately

22

presenting a clear thought process and no indication of side effects

23

was listed by the treating physician.

24
25
26

Geisbrecht’s

2013,

suffers
the

from

record

as

because

major
a

clinical

findings

depression.

whole,

(Joint

including

Dr.

showed
Stip.

that

at

5).

Geisbrecht’s

own

During a September 25, 2012 examination Plaintiff was
dressed,

follow-up

exhibited

opinion

improved

well-groomed,

appointment,
eye

linear thought process.

contact,

appearing

(AR 409).

Plaintiff
a

(AR 301).

“little

depressed

but

At a January 28,

appeared

well-groomed,

brighter”

affect

and

During a February 22, 2013

27

examination, Plaintiff was alert and oriented and stated that his
28

overall depression had decreased since he began treatment.
11

(AR

1

395).

2

participated and meaningfully contributed to group treatment, was

3

alert and oriented, well-groomed, exhibited normal speech, normal

4

eye contact and described his mood as happy and as an “8 out of 10.”

5
6
7

(AR

During

393).

an

April

These

3,

notes

2013,

directly

meeting

Plaintiff

contradicted

Dr.

actively

Giesbrecht’s

assertion that Plaintiff has extreme limitations in the ability to
adhere to basic standards of cleanliness, get along with others

8

without exhibiting behavioral extremes and that Plaintiff was prone
9

to

“added

anger,

irritability

and

.

.

.

[could]

become

easily

10

frustrated and withdrawn from others.”

(AR 458).

See Connett v.

11

Barnhart,

340

F.3d

871,

specific,

legitimate

874-75

(9th

Cir.

2003)

(ALJ

set

forth

12
13
14

reasons

for

rejecting

opinion because it was “not supported

treating

physician’s

. . . by his own notes. His

15

own conclusions also had multiple inconsistencies with all other

16

evaluations.”); Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.

17

2001)

18

because it was “unsupported by rationale or treatment notes, and

19

offered

20

[Plaintiff’s] alleged conditions”); Morgan v. Comm’r of Soc. Sec.,

21

169 F.3d 595, 600 (9th Cir. 1999) (upholding ALJ’s rejection of

22

treating

physician’s

23

indicated

by

24
25

(upholding

no

ALJ’s

medical

the

rejection

findings

opinion

treating

of

to

treating

support

because

physician

the

was

physician’s

the

level

opinion

existence

of

“unreasonable

of

impairment
given

the

description of [Plaintiff’s] symptoms in [the treating physician’s
reports] and other evidence in the record”).

26
27

Additionally,

during

a

May

of

2013

appointment,

Plaintiff

28

continuously described his mood as either an 8 or 9 out of 10 by the
12

1

end of each examination and continued to actively participate in his

2

treatments.

3

examination,

4

smiling, friendly, had an organized thought process, was without

5
6
7

(See

AR

Plaintiff

324-26).
was

dressed

During

a

January

appropriately,

10,

2014,

well-groomed,

evidence of psychotic behavior or mania and described his mood as
“depressed but easing.”

(AR 429).

These notes were inconsistent

with Dr. Geisbrecht’s contention that Plaintiff may not want to get

8

out of bed, care for his basic needs or interact appropriately with
9

others in a social setting.

(AR 459).

10
11

The ALJ properly discounted Dr. Geisbrecht’s opinion because it
12
13
14

was unsupported by the medical record as a whole.

The side effects

that Dr. Geisbrecht listed in the Residual Functional Questionnaire,

15

such as drowsiness, pain, blurred vision and headaches, were not

16

mentioned in any treatment or progress notes.

17

Geisbrecht’s opinion that Plaintiff had extreme to marked mental

18

limitations,

19

concentration,

20

standards of neatness and cleanliness, and work in coordination with

21

or in proximity to others without being distracted by them, were not

22

mentioned during any treatment examination notes by Dr. Geisbrecht

23

or his staff.

24
25
26

including

the

maintain

ability

appropriate

(AR 459-49).

to

In addition, Dr.

maintain

behavior,

attention

adhere

to

and
basic

Other medical records did not indicate

any mental limitations, physical limitations or pain, except prior
to Plaintiff’s hernia surgery.

(See AR 353).

Plaintiff testified

that the pain in his hernia and his mental problems had decreased

27

since his hernia surgery.

(AR 59-60).

See Rollins v. Massanari,

28

261 F.3d 853, 857 (9th Cir. 2001) (upholding ALJ’s rejection of
13

1

treating physician’s opinion because they “were not supported by any

2

findings made my any doctor, including [the treating physician]”);

3

Allison v. Astrue, 425 Fed.Appx. 636, 639 (9th Cir. 2011) (upholding

4

ALJ’s rejection of treating physician’s opinion after finding that

5
6
7

the

treating

physician

“presented

no

support

for

his

opinion”);

Stout v. Comm’r of Soc. Sec. Admin., 191 Fed.Appx. 554, 555 (9th
Cir.

2006)

(upholding

ALJ’s

decision

to

reject

treating

mental

8

healthcare provider because the provider’s opinion was devoid of any
9

clinical findings or rationale to support his conclusion).
10
11

The ALJ’s finding that Plaintiff’s own testimony contradicted
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13
14

Dr. Geisbrecht’s opinion was also a specific and legitimate reason
to reject Dr. Geisbrecht’s opinion.

During the hearing, Plaintiff

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testified that he had “good days and bad days” but “basically [had]

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improved;” could fix meals for himself; takes care of his personal

17

hygiene and dressing; partake in daily activities, such as group

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meetings; takes the bus; liked to “stay busy;” and attends PTSD,

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stress and mental health meetings approximately once or twice a

20

week.

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not believe he could handle a full-time job, he could possibly work

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part-time.

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would get paranoid and not feel safe leaving the house, but he did

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25
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(AR 53-56).

(AR 61).

Plaintiff also testified that, although he did

Plaintiff also expressed that some days he

go on walks, go to the store and go to the library.

(AR 55).

The

ALJ properly found that Plaintiff’s testimony did not support his
allegations

of

such

extreme

and

limited

mental

and

physical

27

capabilities.

Albeit somewhat limited, Plaintiff was clearly able

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to care for himself and partake in daily life to a degree that would
14

1

be incredibly difficult if his limitations were as severe as he

2

alleged.

3

1989)

4

that contradicted the claimant’s own testimony); Myers v. Barnhart,

5
6
7

See Magallanes v. Bowen, 881 F.2d 747, 751-52 (9th Cir.

(upholding

ALJ’s

rejection

of

treating

physician’s

opinion

2006 WL 1663848, at *6 (C.D. Cal. 2006) (“[A] treating physician’s
assessment

of

a

claimant’s

restrictions

may

be

rejected

to

the

extent it ‘appear[s] to be inconsistent with the level of activity’

8

the claimant maintains, or contradicts Plaintiff’s testimony.”).
9
10

CONCLUSION
11
12

For the foregoing reasons, the decision of the Commissioner is
13

AFFIRMED.
14
15

LET JUDGMENT BE ENTERED ACCORDINGLY.
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17

Dated: June 19, 2017
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20
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22

_____________/s/______________
ALKA SAGAR
UNITED STATES MAGISTRATE JUDGE

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