Arthur Gamez v. Carolyn W. Colvin

Filing 26

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. See order for details. (hr)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ARTHUR GAMEZ,

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Plaintiff,

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v.

Case No. CV 16-7526 JC
MEMORANDUM OPINION

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

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Defendant.

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18 I.
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SUMMARY
On October 7, 2016, plaintiff Arthur Gamez filed a Complaint seeking

20 review of the Commissioner of Social Security’s denial of plaintiff’s applications
21 for benefits. The parties have consented to proceed before the undersigned United
22 States Magistrate Judge.
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This matter is before the Court on the parties’ cross motions for summary
24 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)
25 (collectively “Motions”). The Court has taken the Motions under submission
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Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is

28 hereby substituted as the defendant in this action.

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1 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; October 13, 2016 Case
2 Management Order ¶ 5.
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Based on the record as a whole and the applicable law, the decision of the

4 Commissioner is AFFIRMED. The findings of the Administrative Law Judge
5 (“ALJ”) are supported by substantial evidence and are free from material error.
6 II.

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

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DECISION

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In March 2013, plaintiff filed applications for Supplemental Security

9 Income and Disability Insurance Benefits alleging disability beginning on
10 December 16, 2011, due to carpal tunnel syndrome in both hands, nerve damage to
11 his elbow, and shoulder problems. (Administrative Record (“AR”) 22, 188, 196,
12 262). The ALJ examined the medical record and heard testimony from plaintiff
13 (who was represented by counsel) and a vocational expert on March 6, 2016. (AR
14 40-80).
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On May 4, 2015, the ALJ determined that plaintiff was not disabled through

16 the date of the decision. (AR 22-34). Specifically, the ALJ found: (1) plaintiff
17 suffered from the following impairments that were severe “at least in
18 combination”: bilateral carpal tunnel syndrome, bilateral ulnar entrapment, left
19 shoulder tendinosis, bilateral ganglion cysts, disc protrusions at C5-7, and obesity
20 (AR 25); (2) plaintiff’s impairments, considered singly or in combination, did not
21 meet or medically equal a listed impairment (AR 25-26); (3) plaintiff essentially
22 retained the residual functional capacity to perform light work (20 C.F.R.
23 §§ 404.1567(b), 416.967(b)) with additional limitations2 (AR 26); (4) plaintiff
24 could not perform any past relevant work (AR 31-32); (5) there are jobs that exist
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The ALJ determined that plaintiff could (i) push, pull, lift and carry 20 pounds
occasionally and 10 pounds frequently; (ii) stand and walk for six hours in an eight-hour
workday; (iii) sit for six hours per workday; (iv) do frequent reaching overhead; and (v) do
frequent handling and fingering. (AR 26).

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1 in significant numbers in the national economy that plaintiff could perform (AR
2 33); and (6) plaintiff’s statements regarding the intensity, persistence, and limiting
3 effects of subjective symptoms were not entitled to “full weight” (AR 30-31).
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On August 9, 2016, the Appeals Council denied plaintiff’s application for

5 review. (AR 1).
6 III.

APPLICABLE LEGAL STANDARDS

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A.

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To qualify for disability benefits, a claimant must show that he or she is

Administrative Evaluation of Disability Claims

9 unable “to engage in any substantial gainful activity by reason of any medically
10 determinable physical or mental impairment which can be expected to result in
11 death or which has lasted or can be expected to last for a continuous period of not
12 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
13 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). To be
14 considered disabled, a claimant must have an impairment of such severity that he
15 or she is incapable of performing work the claimant previously performed (“past
16 relevant work”) as well as any other “work which exists in the national economy.”
17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)).
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To assess whether a claimant is disabled, an ALJ is required to use the five-

19 step sequential evaluation process set forth in Social Security regulations. See
20 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
21 Cir. 2006) (citations omitted) (describing five-step sequential evaluation process)
22 (citing 20 C.F.R. §§ 404.1520, 416.920). The claimant has the burden of proof at
23 steps one through four – i.e., determination of whether the claimant was engaging
24 in substantial gainful activity (step 1), has a sufficiently severe impairment (step
25 2), has an impairment or combination of impairments that meets or equals a listing
26 in 20 C.F.R. Part 404, Subpart P, Appendix 1 (step 3), and retains the residual
27 functional capacity to perform past relevant work (step 4). Burch v. Barnhart, 400
28 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The Commissioner has the
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1 burden of proof at step five – i.e., establishing that claimant could perform other
2 work in the national economy. Id.
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B.

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A federal court may set aside a denial of benefits only when the

Federal Court Review of Social Security Disability Decisions

5 Commissioner’s “final decision” was “based on legal error or not supported by
6 substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871
7 F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The
8 standard of review in disability cases is “highly deferential.” Rounds v.
9 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.
10 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be
11 upheld if the evidence could reasonably support either affirming or reversing the
12 decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s
13 decision contains error, it must be affirmed if the error was harmless. Treichler v.
14 Commissioner of Social Security Administration, 775 F.3d 1090, 1099 (9th Cir.
15 2014) (ALJ error harmless if (1) inconsequential to the ultimate nondisability
16 determination; or (2) ALJ’s path may reasonably be discerned despite the error)
17 (citation and quotation marks omitted).
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Substantial evidence is “such relevant evidence as a reasonable mind might

19 accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (citation
20 and quotation marks omitted). It is “more than a mere scintilla, but less than a
21 preponderance.” Id. When determining whether substantial evidence supports an
22 ALJ’s finding, a court “must consider the entire record as a whole, weighing both
23 the evidence that supports and the evidence that detracts from the Commissioner’s
24 conclusion[.]” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation
25 and quotation marks omitted).
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While an ALJ’s decision need not be drafted with “ideal clarity,” at a

27 minimum it must describe the ALJ’s reasoning with sufficient specificity and
28 clarity to “allow[] for meaningful review.” Brown-Hunter v. Colvin, 806 F.3d
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1 487, 492 (9th Cir. 2015) (citations and internal quotation marks omitted); see
2 generally 42 U.S.C. § 405(b)(1) (“ALJ’s unfavorable decision must, among other
3 things, “set[] forth a discussion of the evidence” and state “the reason or reasons
4 upon which it is based”); Securities and Exchange Commission v. Chenery Corp.,
5 332 U.S. 194, 196-97 (1947) (administrative agency’s determination must be set
6 forth with clarity and specificity). Federal courts review only the reasoning the
7 ALJ provided, and may not affirm the ALJ’s decision “on a ground upon which
8 [the ALJ] did not rely.” Trevizo, 871 F.3d at 675 (citations omitted).
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C.

Evaluation of Medical Opinion Evidence

In Social Security cases, the amount of weight given to medical opinions

11 generally varies depending on the type of medical professional who provided the
12 opinions, namely “treating physicians,” “examining physicians,” and
13 “nonexamining physicians” (e.g., “State agency medical or psychological
14 consultant[s]”). 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 404.1513(a);
15 416.927(c)(1)-(2) & (e), 416.902, 416.913(a); Garrison, 759 F.3d at 1012 (citation
16 and quotation marks omitted). A treating physician’s opinion is generally given
17 the most weight, and may be “controlling” if it is “well-supported by medically
18 acceptable clinical and laboratory diagnostic techniques and is not inconsistent
19 with the other substantial evidence in [the claimant’s] case record[.]” 20 C.F.R.
20 § 404.1527(c)(2); Trevizo, 871 F.3d at 675 (citation omitted). In turn, an
21 examining, but non-treating physician’s opinion is entitled to less weight than a
22 treating physician’s, but more weight than a nonexamining physician’s opinion.
23 Garrison, 759 F.3d at 1012 (citation omitted).
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An ALJ is required to consider multiple factors when evaluating medical

25 opinions from examining and nonexamining sources, as well as treating source
26 opinions that have not been deemed “controlling.” Trevizo, 871 F.3d at 675
27 (citation omitted). Appropriate factors include (i) “[l]ength of the treatment
28 relationship and the frequency of examination”; (ii) “[n]ature and extent of the
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1 treatment relationship”; (iii) “supportability” (i.e., the amount of “relevant
2 evidence” the medical source presents, and the quality/extent of the “explanation a
3 source provides for an opinion”); (iv) “[c]onsistency . . . with the record as a
4 whole”; (v) “[s]pecialization” (i.e., “[whether an] opinion [provided by] a
5 specialist about medical issues related to his or her area of specialty”); and
6 (vi) “[o]ther factors . . . which tend to support or contradict the opinion” (i.e., the
7 extent to which a physician “is familiar with the other information in [a
8 claimant’s] case record,” or the physician understands Social Security “disability
9 programs and their evidentiary requirements”). 20 C.F.R. § 404.1527(c)(2)-(6);
10 Trevizo, 871 F.3d at 675.
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An ALJ may reject the uncontroverted opinion of either a treating or

12 examining physician only by providing “clear and convincing reasons that are
13 supported by substantial evidence.” Trevizo, 871 F.3d at 675 (citation omitted).
14 Where a treating or examining physician’s opinion is contradicted by another
15 doctor’s opinion, an ALJ may reject such opinion only “by providing specific and
16 legitimate reasons that are supported by substantial evidence.” Id.
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An ALJ may provide sufficient reasons for rejecting a medical opinion by

18 “setting out a detailed and thorough summary of the facts and conflicting clinical
19 evidence, stating his [or her] interpretation thereof, and making findings.” Id.
20 (citation omitted). An ALJ’s findings must provide more than mere “conclusions”
21 or “broad and vague” reasons for rejecting a particular treating or examining
22 physician’s opinion. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988);
23 McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) (citation omitted).
24 “[The ALJ] must set forth his [or her] own interpretations and explain why they,
25 rather than the [physician’s], are correct.” Embrey, 849 F.2d at 421-22.
26 IV.

DISCUSSION

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Plaintiff contends that the ALJ improperly rejected portions of medical

28 opinions provided by three physicians, namely (1) Dr. Patricia Hong, one of
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1 plaintiff’s treating physicians; (2) Dr. John Sedgh, a consultative examining
2 physician; and (3) Dr. John Cook, an examining physician for plaintiff’s workers
3 compensation case. (Plaintiff’s Motion at 4-9). As discussed below, a remand or
4 reversal is not warranted since the ALJ properly rejected the portions of such
5 opinions that are in issue for specific and legitimate reasons supported by
6 substantial evidence.
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A.

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The ALJ rejected medical opinions Dr. Hong provided in two separate

Dr. Patricia Hong

9 reports (collectively “Dr. Hong’s Opinions”), which opinions the ALJ properly
10 determined were not entitled to controlling weight (i.e., “they [were] controverted
11 by multiple sources”). In a “Medical Source Statement Concerning the Nature and
12 Severity of [Plaintiff’s] Physical Impairments” dated October 24, 2013, Dr. Hong
13 essentially opined that plaintiff was capable of performing no more than sedentary
14 work, and specifically that plaintiff (i) could lift and carry 10 pounds or less
15 occasionally, and 20 pounds rarely; (ii) had “significant limitations in doing
16 repetitive reaching, handling, fingering [and] lifting[]”; (iii) was only capable of
17 tolerating “moderate stress”; and (iv) would likely be absent from work “[a]bout 218 3 times per month.” (AR 707-10). In a “Medical Source Statement Concerning
19 the Nature and Severity of [Plaintiff’s] Manipulative Limitations” dated May 8,
20 2014, Dr. Hong noted that plaintiff had multiple signs and symptoms that affected
21 his wrists, hands or fingers (i.e., tenderness, pain, muscle spasm, paresthesia, soft
22 tissue swelling, muscle weakness, joint deformity, reduced grip strength, and
23 intermittent tremor/stiffness), and that plaintiff had “chronic numbness and pain in
24 both wrists/hands” and “constant numbness over all the fingertips.” (AR 711).
25 Dr. Hong also opined that plaintiff had “significant limitations with reaching,
26 handling, [and] fingering,” specifically that during an eight-hour working day
27 plaintiff could grasp, turn, and twist objects with bilateral hands only 10% of the
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1 time, do fine manipulation with his fingers only 5% of the time, and do reaching
2 (including overhead) only 5% of the time. (AR 712).
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The ALJ properly rejected Dr. Hong’s Opinions because they were not

4 supported by the physician’s own notes or the record as a whole. See Bayliss v.
5 Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“The ALJ need not accept the
6 opinion of any physician, including a treating physician, if that opinion is brief,
7 conclusory, and inadequately supported by clinical findings.”) (citation and
8 internal quotation marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 (9th
9 Cir. 2003) (treating physician’s opinion properly rejected where treating
10 physician’s treatment notes “provide no basis for the functional restrictions he
11 opined should be imposed on [the claimant]”). For example, as the ALJ noted,
12 while Dr. Hong checked boxes indicating that plaintiff’s hands had “muscle
13 spasm” and “joint deformity” (AR 711), the record does not appear to contain (and
14 plaintiff has not pointed to) any objective medical evidence that plaintiff ever
15 experienced such medical signs to any material extent.
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In addition, as the ALJ noted, Dr. Hong indicated that plaintiff reported

17 “constant numbness over all the fingertips” (AR 711), but findings from actual
18 clinical examinations of plaintiff’s hands repeatedly described plaintiff’s hand
19 sensation as “intact.” (AR 29) (citing Exhibit 4F at 4 [AR 411]; Exhibit 5F at 4,
20 29, 72, 73, 82, 83 [AR 422, 447, 490-91, 500-01]); cf. Ghanim v. Colvin, 763 F.3d
21 1154, 1162 (9th Cir. 2014) (ALJ may discount medical opinion based “to a large
22 extent” on a claimant’s “self-reports” that the ALJ found “not credible”) (internal
23 quotation marks and citations omitted); Morgan v. Commissioner of Social
24 Security Administration, 169 F.3d 595, 601-02 (9th Cir. 1999) (ALJ may reject
25 medical opinion that is inconsistent with other evidence of record). Also, Dr.
26 Hong opined that plaintiff was limited in his ability to handle stress due, in part, to
27 “anxiety” (AR 709-10) but, as the ALJ noted, the record lacks evidence that
28 plaintiff was ever diagnosed with an anxiety disorder and/or that plaintiff had any
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1 mental impairment which persisted for more than a brief period. (AR 29; see also
2 AR 25 (citing Exhibit 5F at 108, 110 [AR 526, 528]; Exhibit 6F at 58 [AR 625])).
3 Similarly, the ALJ noted that Dr. Hong’s very limiting functional assessment was
4 inconsistent with the electrodiagnostic evidence in the case. (AR 29) (citing
5 Exhibit 5F at 13, 30, 64, 87 [AR 431, 448, 482, 505]). In fact, Dr. Hong herself
6 noted, in part, “there is no electrophysiological evidence of a L. cervical
7 radiculopathy; there is no evidence of a carpal tunnel syndrome or cubital tunnel
8 syndrome bilaterally.” (AR 431) (emphasis added). See, e.g., Ghanim, 763 F.3d
9 at 1161 (“A conflict between treatment notes and a treating provider’s opinions
10 may constitute an adequate reason to discredit the opinions of a treating physician.
11 . . .”) (citations omitted); Valentine v. Commissioner, Social Security
12 Administration, 574 F.3d 685, 692-93 (9th Cir.2009) (finding conflict with
13 treatment notes specific and legitimate reason for rejecting opinion from treating
14 physician).
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B.

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Plaintiff challenges the ALJ’s evaluation of a single opinion expressed by

Dr. John Sedgh

17 Dr. Sedgh in the report of a June 19, 2013 Internal Medicine Consultation
18 (Plaintiff’s Motion at 7) – specifically, Dr. Sedgh’s opinion that plaintiff’s “[g]ross
19 and fine manipulations with either hand should be limited to occasional[]” (“Dr.
20 Sedgh’s Opinion”). (AR 28, 412) (emphasis added). The ALJ, who instead
21 assessed plaintiff with the residual functional capacity to do frequent handling and
22 fingering (AR 26, 28-29), did not err to the extent he rejected Dr. Sedgh’s
23 Opinion.
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As the ALJ noted, and the state agency medical consultants essentially

25 found based on their review of the medical and other evidence in plaintiff’s file,
26 Dr. Sedgh’s more restrictive limitations on plaintiff’s manipulation abilities were
27 not supported by Dr. Sedgh’s own findings on examination of plaintiff’s upper
28 extremities (which were generally “unremarkable”), and also were not supported

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1 by Dr. Sedgh’s finding of positive Tinel’s signs (which findings, according to the
2 ALJ, had not been replicated by any other medical source since August 2011).3
3 (AR 28-29, 88, 109, 491); see Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir.
4 2002) (ALJ need not accept medical opinion that is “inadequately supported by
5 clinical findings”).
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To the extent plaintiff suggests that the medical evidence otherwise actually

7 supports Dr. Sedgh’s Opinion (Plaintiff’s Motion at 7-8), this Court will not
8 second guess the ALJ’s reasonable determination that it does not, even if such
9 evidence could give rise to inferences more favorable to plaintiff. See Robbins v.
10 Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citation
11 omitted).
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C.

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Dr. Cook found in workers compensation terms the following “work

Dr. John Cook

14 restrictions” for plaintiff:
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[Plaintiff] is prophylactically precluded from very forceful or very

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repetitive performance of the following types of activities with either

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hand; gripping, lifting, pushing, pulling, twisting, or finger dexterity

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activities. [¶] [Plaintiff] is prophylactically precluded from writing with

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his right hand for longer than five continuous minutes and then requires a

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five-minute break before resuming a further five continuous minutes of

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writing.

22 (collectively Dr. Cook’s Opinions”). (AR 380) (emphasis added). Plaintiff –
23 who, in his recitation of Dr. Cook’s Opinions, both omits the word
24 “prophylactically” and uses “two” instead of “five” where italicized above
25 (Plaintiff’s Motion at 6) – challenges the ALJ’s evaluation of Dr. Cook’s opinions
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Tinel's sign is a tingling sensation at the end of a limb produced by tapping the nerve at a
site of compression or injury. See Attorneys’ Dictionary of Medicine, Matthew Bender &
Company (2017).

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1 regarding functional limitations in plaintiff’s hands. The ALJ did not err to the
2 extent he rejected Dr. Cook’s Opinions.
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First, as the ALJ noted, Dr. Cook’s Opinions were provided on August 24,

4 2011 – several months before plaintiff’s December 16, 2011 alleged onset date.
5 (AR 22, 30, 380). See Carmickle v. Commissioner, Social Security
6 Administration, 533 F.3d 1155, 1165 (9th Cir. 2008) (“Medical opinions that
7 predate the alleged onset of disability are of limited relevance.”) (citation omitted);
8 see generally Williams v. Astrue, 493 Fed. Appx. 866, 868 (9th Cir. 2012) (clear
9 that “ALJ must consider all medical opinion evidence” even reports that predate
10 claimant’s alleged onset date) (citations and quotation marks omitted).
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Second, as noted above and not reflected in Plaintiff’s Motion, Dr. Cook’s

12 Opinions actually state that plaintiff was “prophylactically precluded” from the
13 various hand activities. (AR 380) (emphasis added). Since prophylactic measures
14 are intended to prevent injury, recommendation of such measures in workers’
15 compensation cases do not reflect existing limitations that, on their own, would be
16 probative of a claimant’s existing limitation that an ALJ in a Social Security case
17 would be required to consider when evaluating residual functional capacity. Cf.
18 Gelfo v. Lockheed Martin Corp., 140 Cal. App. 4th 34, 48 (2006) (In workers’
19 compensation parlance, physicians recommend “prophylactic” restrictions for a
20 worker who reaches “permanent and stationary” disability in order “to help avoid
21 re-injury.”); see generally Booth v. Barnhart, 181 F. Supp. 2d 1099, 1104 (C.D.
22 Cal. 2002) (terms of art in California workers’ compensation guidelines “not
23 equivalent” to those in Social Security disability cases) (citing Macri v. Chater, 93
24 F.3d 540, 544 (9th Cir. 1996); Desrosiers v. Secretary of Health and Human
25 Services, 846 F.2d 573, 576 (9th Cir. 1988)). Consequently, the ALJ could
26 properly have disregarded Dr. Cook’s recommendations entirely. See Vincent v.
27 Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (ALJ must provide an
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1 explanation only when rejecting “significant probative evidence”) (citation
2 omitted).
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Third, the ALJ also found that the work restrictions in Dr. Cook’s Opinions

4 lacked support in the medical record which, in part, reflected “little subsequent
5 medical treatment and care” related to plaintiff’s hand issues for “some 18
6 months” after Dr. Cook provided his opinions. Cf., e.g., Rollins v. Massanari, 261
7 F.3d 853, 856 (9th Cir. 2001) (ALJ properly rejected a treating physician’s
8 opinion who prescribed conservative treatment and where the plaintiff’s activities
9 and lack of complaints were inconsistent with the physician’s disability
10 assessment).
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Finally, the ALJ properly rejected Dr. Cook Opinions (as well as those of

12 Drs. Hong and Sedgh) in favor of the conflicting opinions of the state agency
13 medical consultants, whose residual functional capacity assessment the ALJ
14 essentially adopted. (Compare AR 26, with AR 87-88, 96-97, 108-09, 118-19).
15 The opinions of the state agency medical consultants constituted substantial
16 evidence supporting the ALJ’s decision since – as the ALJ explained – they were
17 consistent with and/or supported by other independent medical evidence in the
18 record as a whole. (AR 26-28); See Tonapetyan v. Halter, 242 F.3d 1144, 1149
19 (9th Cir. 2001) (opinions of nontreating or nonexamining doctors may serve as
20 substantial evidence when consistent with independent clinical findings); Andrews
21 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (“[R]eports of [a] nonexamining
22 advisor need not be discounted and may serve as substantial evidence when they
23 are supported by other evidence in the record and are consistent with it.”); see,
24 e.g., Sportsman v. Colvin, 637 Fed.Appx. 992, 995 (9th Cir. 2016) (“ALJ did not
25 err in assigning substantial weight to [] state agency medical consultant[] whose
26 opinion relied on and was consistent with the medical evidence of record”)
27 (citation omitted).
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1 V.

CONCLUSION

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For the foregoing reasons, the decision of the Commissioner of Social

3 Security is affirmed.
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LET JUDGMENT BE ENTERED ACCORDINGLY.

5 DATED: October 30, 2017
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______________/s/___________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

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