Daniel Lee Thompson v. Andrew Saul

Filing 20

MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16

DANIEL L. T.,

)
)
Plaintiff,
)
)
v.
)
)
ANDREW SAUL, Commissioner of
)
Social Security,
)
)
Defendant.
)
____________________________________)

NO. CV 20-3651-E

MEMORANDUM OPINION

17
PROCEEDINGS

18
19

Plaintiff filed a complaint on April 20, 2020, seeking review of

20
21

the Commissioner’s denial of benefits.

On May 18, 2020, the parties

22

consented to proceed before a United States Magistrate Judge.

23

Plaintiff filed a motion for summary judgment on October 14, 2020.

24

Defendant filed a motion for summary judgment on November 16, 2020.

25

The Court has taken the motions under submission without oral

26

argument.

27

///

28

///

See L.R. 7-15; “Order,” filed April 22, 2020.

1

BACKGROUND

2
3

Plaintiff asserted disability since December 10, 2015, based on

4

allegations of congestive heart failure and cardiomyopathy

5

(Administrative Record (“A.R.”) 124-26, 142).

6

Judge (“ALJ”) reviewed the record and heard testimony from Plaintiff

7

and a vocational expert (A.R. 11-19, 30-46).

8

Plaintiff has severe “cardiomyopathy status post automated implantable

9

cardioverter defibrillator (“AICD”) placement,” but retains the

An Administrative Law

The ALJ found that

10

residual functional capacity for a limited range of light work (A.R.

11

13, 15). According to the ALJ, Plaintiff is limited to standing and

12

walking four hours in an eight-hour day, sitting six hours in an

13

eight-hour day, no climbing ladders, ropes or scaffolds, occasional

14

climbing of ramps and stairs, balancing, stooping, kneeling, crouching

15

and crawling, frequent fine and gross manipulation, and no exposure to

16

unprotected heights or dangerous machinery (A.R. 15-18 (giving great

17

weight to consultative examiner’s opinions)).

18
19

Treating cardiologist Dr. Mohammad Pashmforoush had provided a

20

“Medical Source Statement, etc.,” opining that Plaintiff would have

21

restrictions largely consistent with the ALJ’s residual functional

22

capacity determination (A.R. 308-17).

23

Statement, etc.” also included opinions that Plaintiff would require

24

an assistive device for occasional standing and walking, would be

25

unable to keep his neck in a constant position, and would have two to

26

three impairment-related work absences per month (A.R. 308-17).

27

ALJ gave “little weight” to these more restrictive limitations,

28

finding the limitations to be “unsupported by any detailed medical
2

However, this “Medical Source

The

1

findings” (A.R. 17).

2
3

The ALJ identified certain light work jobs Plaintiff assertedly

4

could perform.

See A.R. 18-19 (adopting vocational expert testimony

5

at A.R. 39-40).

6

Council denied review (A.R. 1-4).

Thus, the ALJ denied benefits (A.R. 19).

The Appeals

7
STANDARD OF REVIEW

8
9
10

Under 42 U.S.C. section 405(g), this Court reviews the

11

Administration’s decision to determine if: (1) the Administration’s

12

findings are supported by substantial evidence; and (2) the

13

Administration used correct legal standards.

14

Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue,

15

499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner,

16

682 F.3d 1157, 1161 (9th Cir. 2012).

17

relevant evidence as a reasonable mind might accept as adequate to

18

support a conclusion.”

19

(1971) (citation and quotations omitted); see also Widmark v.

20

Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006).

See Carmickle v.

Substantial evidence is “such

Richardson v. Perales, 402 U.S. 389, 401

21
22

If the evidence can support either outcome, the court may

23

not substitute its judgment for that of the ALJ.

24

Commissioner’s decision cannot be affirmed simply by

25

isolating a specific quantum of supporting evidence.

26

Rather, a court must consider the record as a whole,

27

weighing both evidence that supports and evidence that

28

detracts from the [administrative] conclusion.
3

But the

1

Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and

2

quotations omitted).

3
DISCUSSION

4
5

After consideration of the record as a whole, Plaintiff’s motion

6
7

is denied and Defendant’s motion is granted.

The Administration’s

8

findings are supported by substantial evidence and are free from

9

material1 legal error.

Plaintiff’s contrary arguments are unavailing.

10
11

I.

Summary of the Record

12
13

A.

Plaintiff’s Medical Records

14
15

Plaintiff was hospitalized in December of 2015 for chest pain and

16

weakness from cardiomyopathy with a history of SVT (supraventricular

17

tachycardia), COPD (chronic obstructive pulmonary disease) secondary

18

to smoking, and methamphetamine abuse (A.R. 192-226).

19

his admission, Plaintiff had an ejection fraction of 35 (A.R. 195,

20

216-17).

21

prior to experiencing palpitations (A.R. 210).

22

positive for amphetamines, opiates and THC (A.R. 202, 210-11, 222).

23

Plaintiff was diagnosed with severe cardiomyopathy likely secondary to

24

drug use (A.R. 195).

At the time of

Plaintiff admitted having used methamphetamine two hours
Laboratory testing was

He was prescribed medications and a “Life Vest”

25
26
1

27
28

The harmless error rule applies to the review of
administrative decisions regarding disability. See Garcia v.
Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v.
Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011).
4

1

(a defibrillator vest also known as a “Zoll Vest,” see A.R. 234), and

2

Plaintiff also was ordered to avoid cigarettes, methamphetamine and

3

other drugs (A.R. 197, 229-33).

4

another hospital, complaining of chest pain for which he was given

5

medications (A.R. 227-28).

Later in December, Plaintiff went to

6
7

Plaintiff followed up for periodic cardiology treatment with Dr.

8

Pashmforoush, who treated Plaintiff from February of 2016 through at

9

least November of 2018 (A.R. 234-48, 300-07).

Initially, Plaintiff

10

reportedly had experienced a recent Zoll Vest shock and had an

11

ejection fraction of 20 percent, suggesting heart failure (A.R. 234).

12

Plaintiff claimed that he recently had stopped abusing drugs and he

13

claimed he was experiencing shortness of breath when he walked two

14

blocks (A.R. 234-35).

15

medication, and noted that Plaintiff was not a candidate for an AICD

16

implant because of his drug use (A.R. 236).

17

2016, Dr. Pashmforoush had scheduled Plaintiff for an AICD implant

18

(A.R. 240).

Dr. Pashmforoush ordered testing, added one

However, by March of

19
20

When Plaintiff followed up in April of 2016, he had undergone

21

ablation and AICD implantation and he had run out of his medications

22

(A.R. 241).

23

breath on exertion and episodes of palpitations which showed as sinus

24

tachycardia with heart rates exceeding 165 beats per minute (A.R.

25

243).

Plaintiff reported still suffering from shortness of

Dr. Pashmforoush changed Plaintiff’s medications (A.R. 244).

26
27
28

Later in April, Plaintiff reported that he could not tolerate the
higher medication dosage prescribed, and Plaintiff said he had
5

1

developed significant fatigue and shortness of breath (A.R. 245).

2

Plaintiff reportedly had not had any episodes of arrhythmia since his

3

last visit (A.R. 245).

4

medications (A.R. 246).

Dr. Pashmforoush adjusted Plaintiff’s

5
When Plaintiff returned in July of 2016, he reported fatigue and

6
7

having no energy, but Plaintiff then was free from palpitations or any

8

lower extremity edema (A.R. 247).

9

worsening heart failure (A.R. 247).

He reportedly was stable with no
“Interrogation of his AICD”

10

showed normal function with some episodes of sinus tachycardia (A.R.

11

248).

12

heart failure” and the doctor sought authorization to prescribe

13

“Entresto” (A.R. 248).

Dr. Pashmforoush indicated that Plaintiff has “intractable

14
The next treatment note is from December of 2017, when Plaintiff

15
16

reported that he had not had any shocks or significant shortness of

17

breath (A.R. 300).

18

results (A.R. 301).

19

showing no signs of heart failure (A.R. 301).2

20

///

21

///

His AICD was functioning normally with stable
Dr. Pashmforoush noted that Plaintiff then was

22
23
24
25
26
27
28

2

A primary care treatment note from December of 2017,
reports that Plaintiff admitted smoking heavily and using
methamphetamine since age 17 (A.R. 268-69). He reportedly then
denied shortness of breath (A.R. 269). Plaintiff had presented
to this provider in 2016 and 2017 with complaints of leg pain and
swelling, for which he was given Gabapentin and compression
stockings (A.R. 280-87). A bilateral lower extremity ultrasound
was normal (A.R. 298-99). He claimed in February of 2016 that he
had been clean from methamphetamine since November of 2015 when
he went to the emergency room (A.R. 288).
6

In March of 2018, Plaintiff reportedly had no chest pain or

1
2

shortness of breath (A.R. 303).

He then had an ejection fraction of

3

60 percent (A.R. 304).

4

Plaintiff did not have any current evidence of heart failure and

5

stated that Plaintiff’s ejection fraction had markedly improved (A.R.

6

304).

7

304).

Dr. Pashmforoush again indicated that

Plaintiff reportedly then was abstaining from drug use (A.R.

8
When Plaintiff returned in November of 2018, however, Plaintiff

9
10

admitted that he was using methamphetamine, was not taking his

11

medications, and was having fatigue with lack of energy and shortness

12

of breath (A.R. 306-07).

13

multiple episodes of tachycardia from Plaintiff’s AICD (A.R. 307).

14

Dr. Pashmforoush recommended that Plaintiff comply with the prescribed

15

treatment (A.R. 307).3

Dr. Pashmforoush indicated that he could see

16
17

Throughout Dr. Pashmforoush’s treatment in 2016, the doctor

18

observed that Plaintiff walked normally in the examination room (A.R.

19

235, 238, 240, 242, 244, 246, 247).

20

evaluation, Plaintiff also was observed to have a normal gait without

21

the use of an assistive device (A.R. 254).

22

notations concerning Plaintiff’s ambulation.

23

///

At a December, 2016 psychiatric

There are no later
See A.R. 300-07.

24
3

25
26
27
28

At the administrative hearing on December 18, 2018,
Plaintiff testified that he had not worked since 2004 because he
did not have good luck finding jobs (A.R. 34-35). However,
Plaintiff admitted that he had been using drugs for 25 to 30
years, and he also agreed that his drug usage probably explained
why he did not work (A.R. 35). Plaintiff admitted that he still
used methamphetamine up to four times a week (A.R. 41-43).
7

1

B.

Opinion Evidence

2
3

Consultative examiner Dr. Jay Dhiman prepared an “Internal

4

Medicine Evaluation,” dated December 21, 2016 (A.R. 261-65).

Dr.

5

Dhiman reviewed Dr. Pashmforoush’s February, 2016 evaluation (A.R.

6

261).

7

breath, and the ability to walk only one to two blocks because of pain

8

in his lower legs without swelling (A.R. 261).

9

longstanding history of drinking alcohol, but did not then mention his

Plaintiff claimed congestive heart failure with shortness of

Plaintiff admitted a

10

longstanding history drug abuse (A.R. 261).

Examination was normal

11

but for notations of diffuse and laterally displaced “PMI” (point of

12

maximal impulse), multiple missing teeth and trace lower leg edema

13

(A.R. 262-64).

14

assistive device (A.R. 264).

15

Dhiman opined that Plaintiff was capable of light work, standing and

16

walking four hours in an eight hour day, sitting without limitations,

17

and frequent manipulations, bending, crouching and stooping (A.R.

18

265).

Plaintiff’s gait was normal, with no need for an
An EKG was normal (A.R. 264).

Dr.

19
20

State agency physicians reviewed the records as of January of

21

2017, and found, consistent with the opinions of the consultative

22

examiner, that Plaintiff was capable of light work with the

23

limitations the ALJ found to exist (A.R. 48-59).

24
25

Dr. Pashmforoush signed a “Medical Source Statement Concerning

26

Drug and/or Alcohol Abuse” dated May 8, 2017 (at a time when Plaintiff

27

claimed to be abstaining from methamphetamine (A.R. 267; see A.R.

28

276).

Therein, Dr. Pashmforoush stated:
8

1

Due to the claimant’s medical conditions, it is my

2

reasonable medical opinion that the claimant is unable to

3

work on a sustained basis at this time and can be expected

4

to be unable to do so for at least the next 12 months.

5

is due to the claimant’s underlying medical conditions,

6

which are disabling on their own without consideration for

7

any drug and/or alcohol abuse.

8

alcohol abuse, the patient would still be unable to perform

9

any work on a sustained basis.

This

Absent any drug and/or

10
11

(A.R. 267).

Dr. Pashmforoush also completed a “Medical Source

12

Statement, etc.” (A.R. 308-11).

13

one can determine from the context that the doctor completed the

14

statement in or after November of 2018.

15

the doctor treats Plaintiff every four months for congestive heart

16

failure, and most recently had treated Plaintiff in November of 2018

17

(A.R. 308).

18

to Dr. Pashmforoush that Plaintiff was using methamphetamine regularly

19

(A.R. 306).

20

breath, chest pain at 8/10, and fatigue at 10/10, with a supposedly

21

poor prognosis (A.R. 308).

Although this statement is undated,

The statement indicates that

As noted above, at this last visit Plaintiff had admitted

Dr. Pashmforoush reported that Plaintiff has shortness of

22
23

In the statement, Dr. Pashmforoush opined that Plaintiff could

24

rarely lift 20 pounds, occasionally lift 10 pounds, sit for six hours

25

in an eight-hour day (not continuously), and stand and walk for four

26

hours in an eight-hour day (A.R. 309).

27

that Plaintiff could never climb ramps, stairs or ladders, rarely

28

balance, occasionally kneel and crawl, and frequently stoop and crouch
9

Dr. Pashmforoush indicated

1

(A.R. 310).

Dr. Pashmforoush answered “yes” that Plaintiff would have

2

limitations with repetitive handling, reaching, fingering or lifting,

3

supposedly must use a cane or other assistive device for occasional

4

standing/walking, and that Plaintiff’s condition would interfere with

5

the ability to keep his neck in a constant position (A.R. 309).

6

Pashmforoush changed his answer from “yes” to “no” regarding whether

7

Plaintiff could do a full time competitive job that requires “that

8

activity” (presumably keeping the neck in a constant position) on a

9

sustained basis (A.R. 309-10, 312, 315).

Dr.

Dr. Pashmforoush opined that

10

Plaintiff would be absent from work approximately two to three times

11

per month due to his impairment(s) or treatment (A.R. 311).

12
13
14

II.

Substantial Evidence Supports the Conclusion that Plaintiff is
Not Disabled.

15
16

Substantial evidence supports the ALJ’s conclusion Plaintiff is

17

not disabled.

The ALJ properly relied on Dr. Dhiman’s opinions, the

18

state agency physicians’ opinions, and portions of Dr. Pashmforoush’s

19

opinions in determining Plaintiff has the residual functional capacity

20

for a narrowed range of light work.

21

constitute substantial evidence supporting the ALJ’s non-disability

22

determination.

23

2007) (opinion of examining physician based on independent clinical

24

findings can provide substantial evidence to support administrative

25

conclusion of non-disability); Tonapetyan v. Halter, 242 F.3d 1144,

26

1149 (9th Cir. 2001) (examining physician’s opinion alone constitutes

27

substantial evidence “because it rests on his own independent

28

examination”; opinion of non-examining physician “may constitute

See A.R. 17-18.

These opinions

See Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir.

10

1

substantial evidence when it is consistent with other independent

2

evidence in the record”); Andrews v. Shalala, 53 F.3d 1035, 1041 (9th

3

Cir. 1995) (where the opinions of non-examining physicians do not

4

contradict “all other evidence in the record” an ALJ properly may rely

5

on these opinions) (citation and emphasis omitted).

6
The vocational expert testified that a person with the residual

7
8

functional capacity the ALJ found to exist could perform certain jobs

9

existing in significant numbers in the national economy (A.R. 39-40).

10

The ALJ properly relied on this testimony in denying disability

11

benefits.

12

F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771,

13

774-75 (9th Cir. 1986).

See Barker v. Secretary of Health and Human Services, 882

14
Plaintiff faults the ALJ for rejecting Dr. Pashmforoush’s more

15
16

restrictive opinions concerning Plaintiff’s supposed need for an

17

assistive device, purported inability to keep Plaintiff’s neck in a

18

constant position, and predicted work absences.

19

these restrictions as “unsupported by any detailed medical findings”

20

(A.R. 17).

21

given substantial weight.”

22

Cir. 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989)

23

(“the ALJ must give sufficient weight to the subjective aspects of a

24

doctor’s opinion. . . .

25

that of a treating physician”) (citation omitted); see also Garrison

26

v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (discussing deference

27

owed to the opinions of treating and examining physicians).

28

///

The ALJ rejected

Generally, a treating physician’s conclusions “must be
Embrey v. Bowen, 849 F.2d 418, 422 (9th

This is especially true when the opinion is

11

Even

1

where the treating physician’s opinions are contradicted,4 “if the ALJ

2

wishes to disregard the opinion[s] of the treating physician he . . .

3

must make findings setting forth specific, legitimate reasons for

4

doing so that are based on substantial evidence in the record.”

5

Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987) (citation,

6

quotations and brackets omitted); see Rodriguez v. Bowen, 876 F.2d at

7

762 (“The ALJ may disregard the treating physician’s opinion, but only

8

by setting forth specific, legitimate reasons for doing so, and this

9

decision must itself be based on substantial evidence”) (citation and

10

quotations omitted).

Contrary to Plaintiff’s arguments, the ALJ

11

stated sufficient reasons for rejecting Dr. Pashmforoush’s more

12

restrictive opinions.

13
14

As the ALJ reasoned, Dr. Pashmforoush’s more restrictive opinions

15

were inadequately supported by medical findings in the record.

16

Indeed, the medical findings in the record reflect: (1) non-compliance

17

with medical treatment; (2) complaints of fatigue and dyspnea on

18

exertion, with admissions of methamphetamine abuse and smoking which

19

may well have contributed significantly to these alleged symptoms;

20

(3) “unremarkable” cardiac functioning as of March, 2018, when

21

Plaintiff had a normal ejection fraction of 60 percent; and

22

(4) minimal treatment for leg swelling and pain with compression

23

stockings, with no associated gait impairment or lower extremity

24

strength deficits observed by any treating or examining physician.

25
26
4

27
28

Rejection of an uncontradicted opinion of a treating
physician requires a statement of “clear and convincing” reasons.
Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Gallant v.
Heckler, 753 F.2d 1450, 1454 (9th Cir. 1984).
12

1

See A.R. 16-17.

2
3

An ALJ properly may reject a treating physician’s opinion where,

4

as here, the opinion is not adequately supported by treatment notes or

5

objective clinical findings.

6

1041 (9th Cir. 2008) (ALJ may reject a treating physician’s opinion

7

that is inconsistent with other medical evidence, including the

8

physician’s treatment notes); Connett v. Barnhart, 340 F.3d 871, 875

9

(9th Cir. 2003) (treating physician’s opinion properly rejected where

See Tommasetti v. Astrue, 533 F.3d 1035,

10

physician’s treatment notes “provide no basis for the functional

11

restrictions he opined should be imposed on [the claimant]”); see also

12

20 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in weighing

13

treating source opinion include the supportability of the opinion by

14

medical signs and laboratory findings as well as the opinion's

15

consistency with the record as a whole).

16

legitimate reasons for rejecting the more restrictive portions of Dr.

17

Pashmforoush’s opinions.

The ALJ stated specific and

18
19

Plaintiff also takes specific issue with the rejection of Dr.

20

Pashmforoush’s assertedly uncontradicted opinion that Plaintiff would

21

be absent from work approximately two to three times per month due to

22

his condition/treatment.

23

other medical source specifically and expressly opined regarding

24

predicted work absences, the other physicians’ opinions that Plaintiff

25

can perform light work implicitly opined that Plaintiff’s condition

26

would not inordinately interfere with his ability to do so.

27

these circumstances, Dr. Pashmforoush’s opinion concerning work

28

absences should be deemed to have been contradicted rather than

See Plaintiff’s Motion, p. 10.

13

While no

Under

1

uncontradicted.

See, e.g., Gibson v. Commissioner, 2015 WL 4937415,

2

at *3-4 and n.8 (D. Or. Aug. 18, 2015).

3

reference to Dr. Pashmforoush’s lack of detailed medical findings

4

constituted an adequate basis to reject this portion of Dr.

5

Pashmforoush’s opinion, whether the proper standard is “specific and

6

legitimate” or “clear and convincing.”

7

explanation for why or how he determined that Plaintiff would miss so

8

much work due to Plaintiff’s impairments or treatment.

9

is no indication in the undated “Medical Source Statement, etc.”

In any event, the ALJ’s

Dr. Pashmforoush provided no

Further, there

10

whether Dr. Pashmforoush considered Plaintiff’s recent and

11

longstanding methamphetamine abuse when the doctor indicated Plaintiff

12

would be absent two to three times per month.

13

Pashmforoush’s form opinion indicating absences).5

14

opinion had been impacted by Plaintiff’s admitted drug use, the ALJ

15

would have had to factor out Plaintiff’s drug addiction in

16

adjudicating Plaintiff’s disability claim.

17

404.1535(b)(2), 416.935(b)(2) (ALJ must determine which of a

18

claimant’s physical and limitations would remain if the claimant

19

stopped using drugs or alcohol, then determine whether the claimant’s

20

remaining limitations would be disabling).

See A.R. 311 (Dr.
Of course, if this

See 20 C.F.R. §§

21
22

To the extent any of the medical evidence is in conflict, it was

23

the prerogative of the ALJ to resolve such conflicts.

See Lewis v.

24

Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also Treichler v.

25

Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court “leaves it to

26
27
28

5

By contrast, Dr. Pashmforoush did appear to discount
Plaintiff’s drug and/or alcohol abuse in the 2017 “Medical Source
Statement Concerning Drug and/or Alcohol Abuse” (A.R. 267).
14

1

the ALJ” “to resolve conflicts and ambiguities in the record”).

When

2

evidence “is susceptible to more than one rational interpretation,”

3

the Court must uphold the administrative decision.

4

Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995); accord Thomas v.

5

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 108

6

F.3d 978, 980 (9th Cir. 1997).

7

rational interpretation of the evidence in the present case

8

notwithstanding any conflicts in the evidence.

See Andrews v.

The Court will uphold the ALJ’s

9
CONCLUSION

10
11
12

For all of the foregoing reasons, Plaintiff’s motion for summary

13

judgment is denied and Defendant’s motion for summary judgment is

14

granted.

15
16

LET JUDGMENT BE ENTERED ACCORDINGLY.

17
18

DATED: November 18, 2020.

19
20
21

/S/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
15