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)

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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

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