Martha Ambriz v. Carolyn W. Colvin

Filing 27

MEMORANDUM OPINION AND ORDER by Magistrate Judge Jay C. Gandhi: IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (kh)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 MARTHA AMBRIZ, Plaintiff, 12 v. 13 14 15 NANCY A. BERRYHILL1, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No. LA CV 16-5451 JCG MEMORANDUM OPINION AND ORDER 18 Martha Ambriz (“Plaintiff”) challenges the Social Security Commissioner 19 20 (“Commissioner”)’s decision denying her application for disability benefits. Three 21 issues are presented for decision here: 1. 22 23 treating physician’s opinion (see Joint Stipulation (“Joint Stip.”) at 4-9, 14); 2. 24 25 Whether the Administrative Law Judge (“ALJ”) properly assessed the Whether new evidence submitted for the first time to the Appeals Council supports a remand (id. at 4, 14-15, 17); 26 27 1 28 The Court DIRECTS the Clerk of Court to update the case caption to reflect Nancy A. Berryhill as the proper Defendant. See Fed. R. Civ. P. 25(d); [Dkt. No. 18 at 1 n.1]. 1 3. 1 2 numbers testimony (see id. at 4, 17-20, 24). The Court addresses Plaintiff’s contentions below, and finds that reversal is not 3 4 warranted. A. 5 The ALJ Provided Specific and Legitimate Reasons for Discounting The Treating Physician’s Opinion 6 Plaintiff contends that the ALJ improperly assessed the opinion of treating 7 8 Whether the ALJ properly relied on the vocational expert (“VE”)’s job- physician Dr. Linda Atkinson. (Joint Stip. at 4-9, 14.) As a rule, if an ALJ wishes to disregard the opinion of a treating or examining 9 10 physician, “he or she must make findings setting forth specific, legitimate reasons for 11 doing so that are based on substantial evidence in the record.” Murray v. Heckler, 722 12 F.2d 499, 502 (9th Cir. 1983); accord Carmickle v. Comm’r, Soc. Sec. Admin., 533 13 F.3d 1155, 1164 (9th Cir. 2008). Here, the ALJ properly declined to assign controlling weight2 to Dr. Atkinson’s 14 15 opinion3 for three reasons. First, the opinion was not supported by the clinical findings of the record as a 16 17 whole. (AR at 216); see Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th 18 Cir. 2004) (even opinion of treating physician need not be accepted if inadequately 19 supported by clinical findings); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 20 1989) (reviewing court must affirm Commissioner’s decision if it is based on proper 21 2 22 23 24 25 26 On January 18, 2017, the Commissioner issued new rules that made substantial changes to the way ALJs must evaluate medical opinion evidence going forward. Among other things, these changes eliminate the traditional scheme of deference and greater weight generally assigned to treating physicians, and instead require that all opinion evidence be evaluated on a more equal footing, with a focus on issues such as the supportability of those opinions and consistency with the overall record. See 82 Federal Register 5844-01, 2017 WL 168819, *5844-45, 5853, 5869-71, 588081. However, those particular changes apply only to claims filed on or after March 27, 2017, and thus do not affect Plaintiff’s instant claim filed in 2013. Id.; (Administrative Record (“AR”) at 208). 3 27 28 Dr. Atkinson opined that Plaintiff had rheumatoid arthritis and that: (1) multiple medications were unsuccessful in controlling inflammation of her joints; (2) she was limited to lifting no more than five pounds; and (3) she would have difficulty performing any job that requires repetitive motion and fine manipulation of her hands. (AR at 724.) 2 1 legal standards and findings of fact are supported by substantial evidence in “record as 2 a whole”). For example, (1) a nerve conduction study showed borderline carpal tunnel 3 syndrome of the left extremity and no evidence of the syndrome in the right 4 extremity; (2) Plaintiff was treated conservatively with wrist splints at night and 5 cortisone injection therapy, on an as needed basis4; and (3) an examination showed 6 grip strength of the hands of 5/5 bilaterally. (AR at 211, 215-16, 421-22, 537-38.) 7 Second, Dr. Atkinson’s opinion conflicted with the State agency examining 8 opinion of Dr. Azizollah Karamlou.5 (AR at 27); see Batson, 359 F.3d at 1197 (“[I]t 9 was permissible for the ALJ to give [treating physician opinions] minimal evidentiary 10 weight, in light of . . . opinions and observations of other doctors.”); Kane v. Colvin, 11 2015 WL 5317149, at *3 (E.D. Cal. Sept. 10, 2015) (ALJ properly rejected treating 12 physician’s opinion in part because it was contradicted by state agency physicians’ less 13 severe limitation findings). Third, Plaintiff was able to perform activities of daily living that demonstrated 14 15 she could perform gross handling with little problem, such as: (1) managing a 16 checkbook; (2) using a computer; (3) typing on a keyboard; (4) doing laundry; 17 (5) helping children with homework; (6) driving children to and from school and 18 sporting events; and (7) preparing meals. (AR at 215-16, 238, 241-42, 246, 372, 375, 19 382-85); see Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (inconsistency 20 between physician’s opinion and claimant’s daily activities may justify rejection of 21 22 23 24 25 26 27 28 4 Notably, Plaintiff does not refute the ALJ’s and Commissioner’s characterization of her treatment as conservative. (Joint Stip. at 14); see Nettles v. Colvin, 2014 WL 358398, at *15 (C.D. Cal. Jan. 31, 2014) (knee injection and pain medication is conservative treatment that undermines claim of disabling pain); Hernandez v. Astrue, 2012 WL 4466580, at *9 (N.D. Cal. Sept. 26, 2012) (wrist splints worn at night and use of non-steroidal anti-inflammatory drugs is conservative treatment). 5 Although the ALJ discounted Dr. Karamlou’s finding that Plaintiff could lift and carry 20 pounds, he found the following findings supported the residual functional capacity (“RFC”) and conflicted with the treating opinion: Plaintiff: (1) was able to exert dominant right hand grip force of up to 20 pounds; and (2) retains full muscle and motor function with both hands. (AR at 216, 536, 538.) 3 1 opinion); cf. Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (ALJ properly 2 discounted subjective complaints based in part on claimant’s ability to attend to needs 3 of her two children, cook, and do laundry). The ALJ specifically highlighted the 4 transferability of Plaintiff’s independent ability to do laundry for the five people in her 5 household, usually every day, for two hours straight: this “reasonably suggests that she 6 retains some ability to perform lifting and carrying activities, repetitive motion, and 7 can perform a degree of fine manipulation.” (AR at 215-16.) 8 Thus, the ALJ properly assessed the treating physician’s opinion. 9 B. Light of New Evidence 10 11 The ALJ’s Decision Is Supported by Substantial Evidence Even In Next, Plaintiff contends that the ALJ’s decision is not supported by substantial 12 evidence in light of medical evidence presented for the first time to the Appeals 13 Council. (Joint Stip. at 4, 14-15, 17.) Specifically, Plaintiff points to evidence that, in 14 June 2014, Dr. Atkinson noted that Plaintiff had “[m]inimal wrist motion bilaterally,” 15 and that Plaintiff reported that she lost all mobility in her wrists and ankles, and was 16 experiencing constant pain. (Id. at 15, citing AR at 730, 732, 754.) 17 As a rule, when the Appeals Council “considers new evidence in deciding 18 whether to review a decision of the ALJ, that evidence becomes part of the 19 administrative record, which the district court must consider when reviewing the 20 Commissioner’s final decision for substantial evidence.” Taylor v. Comm’r of Soc. 21 Sec. Admin., 659 F.3d 1228, 1232 (9th Cir. 2011). When the Appeals Council declines 22 review, the ALJ’s decision becomes the final decision of the Commissioner, and the 23 district court reviews that decision for substantial evidence based on the record as a 24 whole. Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1161-62 (9th Cir. 25 2012). 26 27 The medical evidence does not change this Court’s determination that the ALJ’s decision is supported by substantial evidence for two reasons. 28 4 1 First, Dr. Atkinson’s opinion in the new evidence remained the same — that 2 Plaintiff was limited to lifting five pounds — a limitation that the ALJ had already 3 considered and rejected in the decision. (AR at 216, 757); see Decker v. Berryhill, 856 4 F.3d 659, 665 (9th Cir. 2017) (district court not required to remand under Brewes 5 because claimant failed to explain why new evidence submitted to Appeals Council 6 meaningfully differed from previous evidence); Bowlin v. Colvin, 2016 WL 5339591, 7 at *10 (D. Or. Aug. 18, 2016) (ALJ’s decision supported by substantial evidence even 8 in light of new evidence provided to Appeals Council because evidence did not show 9 functional limitations greater than that already considered by ALJ); Broadbent v. 10 Comm’r Soc. Sec. Admin., 2013 WL 1900993, at *4 (D. Or. May 7, 2013) (new 11 evidence did not necessitate reversal under Brewes because, while claimant reported 12 different symptoms, the evidence did not establish any functional limitations that had 13 not already been considered). 14 Second, Plaintiff’s subjective complaints to her doctor in the new evidence echo 15 complaints considered by the ALJ and found only partially credible in the decision, a 16 determination Plaintiff does not challenge. (AR at 214 (ALJ summarizing testimony 17 that Plaintiff “lost all rotation of her wrists and ankles” and finding it “not entirely 18 credible”; 235 (testimony)); see Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006) 19 (claimant waived issues not raised before the district court); Owens v. Colvin, 2014 20 WL 5602884, at *4 (C.D. Cal. Nov. 4, 2014) (claimant’s failure to discuss, or even 21 acknowledge, ALJ’s reliance on certain reasons waived any challenge to those aspects 22 of ALJ’s credibility finding). 23 24 Accordingly, reviewing the record as a whole, the ALJ’s decision is supported by substantial evidence. 25 C. The ALJ Properly Relied on the VE’s Job-Numbers Testimony 26 Plaintiff contends that the ALJ improperly relied on the VE’s testimony to 27 determine that Plaintiff could perform unskilled sedentary work in the position of call- 28 5 1 out operator6, with approximately 1,200 jobs available in California and 12,000 2 nationally. (See Joint Stip. at 17-20, 24.) Plaintiff suggests that the VE’s testimony 3 was in conflict with the Occupational Outlook Handbook (“OOH”) and other related 4 sources because, under Plaintiff’s interpretation of those sources, the occupation no 5 longer exists in unskilled form in the economy. (Id. at 20; Joint Stip. Ex.) 1. 6 Challenge to VE’s Testimony Not Properly Preserved for Appeal 7 Preliminarily, as a rule, “when claimants are represented by counsel, they must 8 raise all issues and evidence at their administrative hearings in order to preserve them 9 on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999). This is particularly 10 true in the case of statistical evidence, as “[t]he ALJ, rather than this Court, [is] in the 11 optimal position to resolve the conflict between [a claimant’s] new evidence and the 12 statistical evidence provided by the VE.” Id. In the instant case, Plaintiff was represented by counsel at the administrative 13 14 hearing and was allowed to pose questions to the VE, but she failed to challenge the 15 VE’s methodology for calculating the number of estimated jobs or offer any evidence 16 supporting a different figure. (AR at 247-50); see Howard v. Astrue, 330 F. App’x 17 128, 130 (9th Cir. 2009) (claimant waived argument that ALJ’s hypotheticals were 18 inadequate where claimant’s attorney had opportunity to pose hypotheticals but never 19 mentioned allegedly erroneously omitted limitation); Meanel, 172 F.3d at 1115 20 (claimant’s argument — that there was insufficient jobs in local area for a particular 21 position — not properly preserved for appeal); Marchbanks v. Colvin, 2014 WL 22 5756932, at *1 (C.D. Cal. Nov. 4, 2014) (argument that OOH statistics conflicted with 23 DOT and VE’s testimony waived because claimant was represented by counsel and 24 failed to raise issue before ALJ). Accordingly, the issue was not properly preserved for appeal. 25 26 27 28 6 Dictionary of Occupational Titles (“DOT”) code 237.367-014. 6 2. 1 No Legal Error Identified 2 Finally, Plaintiff has failed to identify any legal error for two reasons. 3 First, even assuming the OOH established the job no longer existed in 4 significant numbers, Plaintiff has failed to identify any authority that the VE or the 5 ALJ were bound by that source, or that the ALJ was required to ask about any alleged 6 conflict. See Meza v. Berryhill, 2017 WL 3298461, at *8 (C.D. Cal. Aug. 2, 2017) 7 (claimant’s argument that DOT and OOH should be on “equal footing” has been 8 rejected by a number of district courts in Ninth Circuit); Walker v. Berryhill, 2017 WL 9 1097171, at *3 (C.D. Cal. Mar. 23, 2017) (rejecting argument that OOH precludes 10 claimant from performing jobs VE testified he could do because claimant “cites no 11 authority for the proposition that an ALJ must address conflicts between the testimony 12 of the VE and the OOH”); Simpson v. Colvin, 2016 WL 3091487, at *5 (C.D. Cal. 13 May 31, 2016) (finding no error where VE’s job numbers were inconsistent with 14 information from Bureau of Labor statistics in OOH because a VE may rely on any 15 number of sources). Second, Plaintiff has failed to show that the VE’s testimony itself is not 16 17 substantial evidence. (AR at 216-17, 247-50); see Bayliss v. Barnhart, 427 F.3d 1211, 18 1218 (9th Cir. 2005) (ALJ may rely on a VE’s testimony as a reliable source of 19 information about job numbers because a VE’s “recognized expertise provides the 20 necessary foundation for his or her testimony” and “no additional foundation is 21 required”); Howard, 330 F. App’x at 130-31 (argument challenging foundation of 22 VE’s testimony regarding number of jobs available in national and regional economies 23 foreclosed by Bayliss); Moore v. Apfel, 216 F.3d 864, 869-70 (9th Cir. 2000) (VE’s 24 testimony alone was substantial evidence supporting ALJ’s finding that claimant was 25 not disabled because substantial gainful work existed in national economy). Accordingly, Plaintiff has failed to identify any legal error entitling her to relief. 26 27 28 // 7

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