Timothy Lee Randles v. Carolyn W. Colvin

Filing 23

MEMORANDUM OF DECISION by Magistrate Judge Andrew J. Wistrich: The Commissioner's decision is based on substantial evidence and is free of reversible legal error.4 Accordingly, the Commissioner"s decision is affirmed. (see document for further details) (klg)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
TIMOTHY LEE RANDLES,
Plaintiff,

Case No. CV 16-7335 AJW

v
.

MEMORANDUM OF DECISION
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant.

Plaintiffseeks reversal ofthe decision ofdefendant,the Acting Commissioner ofSocial Security(the
"
Commissioner"),denying plaintiff's applications for supplemental security income and disability insurance
benefits. The parties have filed a Joint Stipulation("JS") setting forth their respective contentions.
Administrative Proceedings
The procedural facts are undisputed and are summarized in the Joint Stipulation. [See JS 2-3].
Plaintiff filed his benefits applications in February 2013 alleging that he had been disabled since May 1,
2012. An Administrative Law Judge("ALJ")issued a decision concluding that plaintiff had been disabled
since his alleged onset date.[AR 20-42]. On its own motion, the Appeals Council("AC")reviewed the
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ALJ's decision. It adopted the ALJ's statement of the applicable law, the issues in the case, and the
evidentiary facts, but did not adopt the ALJ's findings or conclusions regarding whether the claimant was

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disabled.[AR 4]. The AC issued a decision dated July 29, 2016 concluding that the ALJ erred in finding

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.The AC
plaintiffdisabled and that the ALJ's decision was not supported by substantial evidence.[AR 4-11]

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determined that plaintiffretained the residual functional capacity("RFC")to perform his past relevant work

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as a telephone solicitor and therefore was not disabled at any time through the date ofthe ALJ's decision.

5 [See AR 4-11, 20-42]. The AC's decision stands as the Commissioner's final decision. See 20 C.F.R. §§
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404.981, 416.1481.

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Standard of Review

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The Commissioner's denial of benefits should be disturbed only ifit is not supported by substantial

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evidence or is based on legal error. Brown-Hunter v. Colvin, 806 F.3d 487,492(9th Cir. 2015); Thomas

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v. Barnhart,278 F.3d 947,954(9th Cir. 2002). "Substantial evidence" means"more than a mere scintilla,

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but less than a preponderance." Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.l (9th Cir. 2005). It is "such

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relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burch v.

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Barnhart,400 F.3d 676,679(9th Cir. 2005). The court is required to review the record as a whole and to

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consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc.

15

Sec. Admin,466 F.3d 880, 882(9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089(9th Cir. 1999).

16 "Where the evidence is susceptible to more than one rational interpretation,one ofwhich supports the ALJ's
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decision,the ALJ's conclusion must be upheld."Thomas,278 F.3d at954(citing Moran v. Comm'r ofSoc.

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Sec. Admin., 169 F.3d 595, 599(9th Cir. 1999)).

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Discussion

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Plaintiff contends that the AC improperly weighed the examining and non-examining source

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opinions. He also contends that the AC erred in omitting the need for a cane from its RFC finding and in

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relying on vocational expert testimony that did not include the need for a cane.

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Ifcontradicted by that ofanother doctor,a treating or examining source opinion maybe rejected for

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specific and legitimate reasons that are based on substantial evidence in the record. Batson v. Comm'r of

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Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004); Tonapetvan v. Halter, 242 F.3d 1144, 1148-1149

2 (9th Cir. 2001); Lester v. Chater, 81 F.3d 821, 830-831 (9th Cir. 1995). The opinion of anon-examining
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physician normally is entitled to less deference than that ofan examining and treating physician because a

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non-examining source does not have the opportunity to conduct an independent examination and does not

.

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have a treatment relationship wit~i the claimant. See Andrews v. Shalala,53 Fad 1035,1040-1041(9th Cir.

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1995). Anon-examining physician's conclusion, "with nothing more, does not constitute substantial

3

evidence, particularly in view of the conflicting observations, opinions, and conclusions of an examining

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physician." Erickson v. Shalala,9 F.3d 813,818 n. 7(9th Cir. 1993)(emphasis omitted)(quoting Pitzer v.

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Sullivan, 908 F.2d 502, 506 n.4 (9th Cir. 1990)).

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The AC found that plaintiff had severe impairments consisting of achondroplasia (a form of

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dwarfism), morbid obesity, degenerative disc disease, degenerative arthritis ofthe cervical spine with left

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cervical spine radiculopathy, right lumbar spine radiculopathy, and degenerative arthritis of both the hips

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and the knees.[AR 10]. The AC determined that plaintiffretained the RFC to perform a range oflight work,

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including standing and walking for only two hours in an eight-hour workday, occasionally reaching

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overhead, and avoiding concentrated exposure to hazards, including machinery and heights.'[AR 10]. In

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f
ormulating plaintiff's RFC,th~AC said that it "adopted" and gave "great weight" to the opinion of Dr.

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Kerr, anon-examining state agency physician; "significant weight" to the opinion of Dr. Bleecker, a

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consultative examining orthopedist; and "little weight" to the opinion of Dr. Linner, a consultative

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examining physician. [AR 4-11].

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The AC reasoned that Dr. Kerr's opinion was entitled to great weight because it was consistent with

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Dr. Bleecker's subsequent consultative examining opinion.[AR 8]. That rationale fails to account for

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inconsistencies between Dr. Kerr'sopinion, on one hand, and the opinions of one or more examining

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sources, including Dr. Bleecker, on the other hand.

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"Light work" involves lifting no more than twenty pounds at a time with frequent lifting or
carrying of objects weighing up to ten 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 ofthe time with some pushing and pulling ofarm or leg controls. The full range oflight work
requires standing or walking, obi and on, for a total of approximately six hours of an eight-hour
workday. Sitting may occur intermittently during the remaining time. In addition, occasional
bending from the waist is required to lift and carry objects. Unlike work at the medium level,
frequent bending or stooping is not required for light work. Moreover,limitations in an individual's
ability to climb, bend, kneel or crawl will not significantly erode the occupational base at either the
light or medium level ofexertion. See 20 C.F.R.§§ 404.1567(b),416.967(b); Social Security Ruling
"SSR")85-15, 1985 WL 56857,at *6-*7; SSR 83-10, 1983 WL 31251,at *5-*6; SSR 83-14,1983
(
WL 31254, at *4-*5.

3

Dr. Kerr, for example,found no need for plaintiff to use a cane. Dr. Kerr acknowledged that the
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Commissioner's consultative examining physician, Dr. Linner,found that plaintiffused a cane that was not

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prescribed but that was "medically necessary" for "pain support while ambulating."[AR 122]. Dr. Kerr

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nonetheless rejected that limitation because plaintiff used the cane "for chronic pain," and because Dr.
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Linner reported that she observed no difference in plaintiff's ambulation without the cane.[AR 127].

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Defendant contends that Dr. Kerr was justified in finding no need for a cane on that basis, but that

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contention lacks merit. Three consultative examining physicians opined that plaintiff had a medical need

0 for a cane: Dr. Chaffee in December 20092,Dr. Linner in October 2013,and Dr. Bleecker in October 2015.
AR
0 [ 367-372, 491-497, 579-583]. The consultative examining psychologist's October 2013 report also
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states that plaintiff used a cane.[AR 487]. Even though Dr. Linner observed that plaintiff's ambulation did

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not change when he walked without the cane during the examination, she endorsed his use of a cane as

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medically necessary for walking on uneven terrain.[AR 495]. Dr. Bleecker opined that plaintiff "requires

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the use ofa cane for short and long distances," without any qualification as to the type ofterrain, while Dr.

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Chaffee opined that plaintiff used a cane for pain that was both prescribed and medically necessary for

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walking on all types of terrain. [AR 371, 583]. Plaintiff testified that his cane had been prescribed by a

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treating nurse practitioner, that ke needed it for stability due to numbness in his back and legs, and that he

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could walk "about 20 minutes without my cane sometimes. With my cane I can do about 25,30."[AR 58].

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The AC erred in failing to provide legally sufficient reasons for rejecting all ofthe examining source

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opinions regarding use of a cane in favor of the conflicting non-examining source opinion. However,

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plaintiffhas not met his burden to show that the error caused prejudice,nor do"the circumstances ofthe case

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show a substantial likelihood of prejudice" that would warrant remanding this case for reconsideration.

2
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McLeod v. Astrue, 640 F.3d 881, 886-888 (9th Cir. 2011). During the hearing, the vocational expert

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examined plaintiff, who was represented by counsel, about the demands of his past work.3 [AR 80-84].

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Although Dr. Chaffee ermined plaintiff prior to his alleged onset date in connection with
an earlier, unsuccessful benefits application,the AC cited his opinion in support ofits decision.[See
AR 6].

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3 Plaintiff did not complete the portions of his work history report asking him to describe the
demands of his past relevant work.[See AR 269-279].
D

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Plaintiff testified that he performed his past job as a telephone solicitor in a seated position, and that no

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significant lifting was required.[AR 81]. He also testified that he could walk for 20 minutes without a cane

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and 25 to 30 minutes with a cane.[AR 58]. Plaintiff's testimony demonstrates that he could perform thejob

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of telephone solicitor as he actually performed it notwithstanding his use of a cane, so plaintiff has not

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shown prejudice or a substantial likelihood ofprejudice due to the AC's error. See Ludwig: v. Astrue, 681

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F.3d 1047, 1053-1055(9th Cir. 2012)
(holding that an ALJ's error was harmless where the claimant did not

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show at least a "substantial likelihood of prejudice" as a result of the error).

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Plaintiff also contends that the ALJ erred in rejecting Dr. Linner's examining source opinion to the

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extent that it was more restrictive than the AC's RFC finding. In particular, plaintiffcontends that the AC
y.

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erred in rejecting Dr. Linner's opinion that plaintiff could sit for four hours total in an eight-hour workday

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With breaks every 30 minutes and instead crediting Dr. Kerr's non-examining opinion that plaintiff could

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sit for six out of eight hours in a workday.[See JS 23; AR 8].

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The AC did not err in weighing Dr. Linner's opinion. Although Dr. Kerr was not an examining

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source, the sitting and standing limitations she assessed were consistent with Dr. Bleecker's examining

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source opinion. [See AR 8]. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) ("Generally, the more

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consistent a medical opinion is with the record as a whole, the more weight we will give to that medical

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opinion."). Dr. Bleecker's opinion,in turn, was based on his own examination and his independent clinical

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findings, which, as plaintiff acknowledges,can constitute substantial evidence supporting his opinion.[JS

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21]. See Tonapetyan, 242 F.3d at 1149. Plaintiff argues that Dr. Linner's opinion was entitled to more

2
0

weight than those of Dr. Bleecker or Dr. Kerr because Dr. Linner provided a narrative explanation for each

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ofthe specific limitations she assessed, and those doctors did not. For example, Dr. Linner said that she

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based her sitting limitation on plaintiffls "decreased range of motion in his lumbar spine, inability to sit

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comfortably during the interview today."[AR 495].

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4

The degree of explanation provided by Dr. Linner is a relevant factor in weighing the medical

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opinion evidence, but it is only one ofseveral factors that are considered. See 20 C.F.R.§§ 404.1527(c)(1)-

26 (6),416.927(c)(1)-(6). Like Dr. Linner,Dr. Bleecker included clinical observations in his report along with
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formal examination findings.[See~e•~•, AR 580(Dr. Bleecker's observations that plaintiff was"able to get

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on and offthe examining chair satisfactorily" and "cannot lie down on the examining table")]. Unlike Dr.

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Linner, however, Dr. Bleecker did not report that plaintiff exhibited discomfort sitting, so one of the two

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findings Dr. Linner relied upon was absent when Dr. Bleecker rendered his less restrictive opinion.
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Moreover,as aboard-certified orthopedic surgeon, Dr. Bleecker was a specialist in the relevant discipline,

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a factor that weighs in favor ofgiving his functional assessment greater weight than that ofDr. Linner, who

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is not identified as a specialist. See 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). [Compare AR 367-372,

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491-497].

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The AC pointed to other factors that tended to support Dr.Kerr's(and Dr.Bleecker's)less restrictive

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sitting limitation, including plaintiffls sparse treatment for back problems during the relevant period, other

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providers' failure to document similar difficulties with sitting, and plaintiff's relatively normal range of

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reported daily activities, which included household chores, performing a vigorous workout routine with his

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niece, and references to experiencing pain when bowling, playing basketball, and wrestling.[See AR 6-8,

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124, 127,572,587]. See 20 C.F.R. §§ 404.1527(c)(5),416.927(c)(5)(stating that the Commissioner "will

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consider any factors your or others bring to our attention, or of which we are aware, which tend to support

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to~contradict the medical opinion"). Plaintiff argues that the AC erroneously relied on plaintiffs lack of

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treatment because, as noted in Dr. Linner's examination report and elsewhere in the record, he had no

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insurance. [JS 24 (citing AR 491, 535, 538, 545, 548, 550)]. However, the AC permissibly relied on

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plaintiffs treatment history because even when plaintiffactually obtained treatment,he did not present with

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back problems prior to March 2013. When plaintiffreceived intermittent treatment for complaints of back

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pain between that date and December 2014,abnormal findings were limited to range of motion limitations,

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and no diagnosis ofa back disorder was made.[See AR 6,394-402, 419-423,442-443, 527-528, 535-536,

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538, 550-551].

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Plaintiffalso contends that his subjective testimony corroborates Dr.Linner's more restrictive sitting

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limitation.[See JS 23]. The AC rejected the alleged severity ofplaintiff's subjective complaints.[AR 7].

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Since plaintiff has not raised or argued the issue of the sufficiency of the AC's analysis of his subjective

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testimony, defendant's argument that plaintiff waived the issue has merit. [JS 33]. Plaintiffcannot rely on
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his subjective testimony to show error in the AC's decision. See Bergfeld v. Barnhart, 361 F. Supp. 2d

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1102, 1110(D. Ariz. 2005)
("A reviewing federal court will only address the issues raised by the claimant

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in his appeal from the ALJ's decision.")(citing Lewis v. Apfel, 236 F.3d 503, 517 n.13 (9th Cir. 2001)).

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Accordingly, plaintiff has shown no basis for reversing the AC's decision.
Conclusion

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The Commissioner's decision is based on substantial evidence and is free of reversible legal error.

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Accordingly, the Commissioner"s decision is affirmed.

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IT IS SO ORDERED.

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,2017

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ANDREW J. WISTRICH
United States Magistrate Judge

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