Virginia Marie Yates v. Carolyn W Colvin

Filing 15

MEMORANDUM AND OPINION by Magistrate Judge Victor B. Kenton re: The Court finds no error in the ALJs credibility analysis. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice.(rh)

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION

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VIRGINIA MARIE YATES,

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Plaintiff,
v.

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CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,

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Defendant.

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No. ED CV 14-02442-VBK
MEMORANDUM OPINION
AND ORDER
(Social Security Case)

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This matter is before the Court for review of the Decision by the

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Commissioner of Social Security denying Plaintiff’s application for

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disability benefits.

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consented that the case may be handled by the Magistrate Judge.

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action arises under 42 U.S.C. §405(g), which authorizes the Court to

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enter judgment upon the pleadings and transcript of the record before

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the Commissioner.

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(“JS”), and the Commissioner has filed the certified Administrative

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Record (“AR”).

Pursuant to 28 U.S.C. §636(c), the parties have
The

The parties have filed the Joint Stipulation

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Plaintiff raises the following issues:

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1.

Whether the Administrative Law Judge (“ALJ”) gave proper

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consideration to Ralph Steiger, M.D.; and
2.

Whether the ALJ gave proper consideration to Plaintiff’s

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credibility.
(JS at 4.)

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This Memorandum Opinion will constitute the Court’s findings of

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fact and conclusions of law.

After reviewing the matter, the Court

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concludes that the decision of the Commissioner must be affirmed.

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THE ALJ PROPERLY CONSIDERED THE OPINION OF RALPH STEIGER, M.D.1

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After administrative denials and a hearing before an ALJ (AR 31-

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50), an unfavorable Decision was issued. (AR 12-28.) The ALJ utilized

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the five-step sequential evaluation process described in 20 C.F.R. §§

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404.1520, 416.920, and after determining that Plaintiff had certain

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severe impairments which did not meet or equal any Listings, he

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assessed

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Plaintiff to perform her past relevant work (“PRW”). Thus, the Step

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Four finding resulted in a conclusion of non-disability.

a

residual

functional

capacity

(“RFC”)

which

permitted

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Dr. Steiger completed an orthopedic evaluation and a Multiple

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Impairment Questionnaire.2 Based upon Dr. Steiger’s assessment, he

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Although Plaintiff has limited this issue to the ALJ’s
evaluation of examining doctor Steiger, she also extensively discusses
the ALJ’s evaluation of treating physician Dr. Bovetas. Therefore, the
Court will include in its discussion of issue no. 1 the ALJ’s
evaluation of Dr. Bovetas.
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This Questionnaire was provided to Dr. Steiger by an unknown
third party, perhaps Plaintiff’s prior counsel. Dr. Steiger completed
the form on February 7, 2013. He performed a private orthopaedic
evaluation of Plaintiff on January 15, 2013, resulting in a written
(continued...)
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limited her exertional functional abilities. (AR 481-482.)

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The ALJ rejected Dr. Bovetas’ opinion in the same portion of the

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Decision in which he addressed Dr. Steiger’s opinion. (AR 21.) The ALJ

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indicated that he considered an April 5, 2011 letter and the Multiple

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Impairment Questionnaire referenced above, which he determined to have

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been completed more as an accommodation to Plaintiff and to provide

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conclusions regarding functional limitations without any rationale

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being provided. As the ALJ noted,

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“Dr. Steiger essentially assessed the claimant [sic]

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functional

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performing any work activities on a regular and continuing

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basis. The extreme limitations contrast sharply with the

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other

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treatment records, which renders it less persuasive. The

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treatment record showed essentially no objective clinical

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findings, other than tenderness, relating to the claimant’s

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musculoskeletal

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findings to support Dr. Steiger [sic] conclusions of spine

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degeneration. For these reasons, the undersigned finds this

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evidence has no probative value because it is not supported

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by any objective evidence.”

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limitations

evidence

of

that

record

would

including

impairments.

There

preclude

Dr.

were

her

Steiger

no

from

[sic]

diagnostic

(AR 21.)

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If the ALJ had rejected Dr. Steiger’s conclusions based upon a

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generic statement that they were inconsistent with the medical record

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as a whole, that would not constitute substantial evidence in that

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(...continued)
report (AR 47-48).
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such a conclusory finding would hinder effective judicial review. But

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here, the ALJ did review the medical evidence of record, including Dr.

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Steiger’s own records. If the ALJ was correct in concluding that Dr.

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Steiger’s opinion contained functional limitations inconsistent with

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his overall physical examination findings, this would be a supportable

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conclusion. See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir.

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2005). Here, the Court finds that the ALJ’s conclusion is supportable

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based upon its view of the record evidence. Generally, the examination

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results were unremarkable, with regard to sensation to pain, touch,

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and

proprioception

(AR

329,

333,

335,

340,

342).

Similarly,

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Plaintiff’s back examinations were normal except for some spinal

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tenderness; Dr. Steiger reported her gait to be normal, as well as her

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sensation, strength in upper extremities and lower extremities, and

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bilaterally, deep tendon reflexed as found to be symmetric and normal.

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(See citations to record at JS 17.)

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The ALJ’s further observation that Plaintiff had only received

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conservative treatment in the form of medication for her complaints of

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musculoskeletal pain is also an acceptable basis upon which to

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discount or reject the opinion of an examining physician. (See AR at

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333, 342, 19.) See Jones v. Astrue, 499 Fed.Appx. 676, 677 (9th Cir.

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2012) (unpublished).

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Further, the ALJ did properly rely upon the opinion of medical

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expert (“ME”) Dr. Plotz, who had examined all of the medical evidence

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of record and did not assess any of the functional limitations found

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by Dr. Steiger. Indeed, Dr. Plotz testified there was nothing in the

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record which would explain Plaintiff’s back or neck pain. (AR 40.) He

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found there were no physical abnormalities relating to the neck, back,

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knees, hip or anything else. (Id.)
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As noted, the Court will also address the ALJ’s assessment of

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treating physician Dr. Bovetas. Dr. Bovetas concluded that Plaintiff

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was disabled, but that is the province of the Commissioner, not a

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physician. (See AR 21, 341, 433-440.)

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As with Dr. Steiger’s opinion, the ALJ determined to reject Dr.

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Bovetas’ opinion because it so sharply contrasted with other evidence

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of record, which included Dr. Bovetas’ own treatment records. (Id.)

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Further, the ALJ reasonably concluded that Dr. Bovetas’ opinion was

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inconsistent with her own clinical findings (AR 21), based upon a

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generally normal set of clinical examination findings, except for

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spinal tenderness. (AR 21, 341.) See Tommasetti v. Astrue, 533 F.3d

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1035, 1041 (9th Cir. 2008). Indeed, the Court’s own review of Dr.

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Bovetas’ treatment records is not inconsistent with the ALJ’s own

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review, in that, generally, unremarkable findings were documented.

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(See citations at JS 19-20.)

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For the foregoing reasons, the Court concludes that the ALJ did

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not improperly discount or reject the opinions of Drs. Steiger and

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Bovetas.

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II

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THE ALJ PROPERLY ASSESSED PLAINTIFF’S CREDIBILITY

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Plaintiff herself did not appear at the hearing before the ALJ.

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(AR 49.) The ALJ found that she had waived her right to testify by not

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attending. (AR 15.) Plaintiff notes that the ALJ failed to mention

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that Plaintiff’s representative objected and requested a Notice to

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Show Cause, which the ALJ rejected. (AR 49.) Plaintiff’s counsel

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points out that subsequent correspondence from Plaintiff’s husband and

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cousin revealed that she had experienced multiple seizures resulting
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in injuries to her face due to falls, which prevented her from

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attending the hearing, and that these events were corroborated by

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letters from a nurse and Dr. Bovetas. (See JS at 27.)

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With regard to Plaintiff’s failure to appear at the hearing, the

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ALJ is under certain administrative and regulatory requirements which

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he must follow when this happens. Here, the requirements outlined in

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20 C.F.R. § 404.938 were followed. Plaintiff’s representative was

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unable to locate her at the hearing. The Notice of Hearing had been

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mailed

to

Plaintiff

at

her

last

known

address.

Finally,

an

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Acknowledgment of Notice of Hearing was on record indicating Plaintiff

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actually received and returned the Acknowledgment form. Consequently,

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the ALJ had the discretion to proceed with the hearing, to accept

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testimony of other witnesses, and to allow questioning of those

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witnesses

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hearing, the ALJ took testimony from an ME and Vocational Expert

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(“VE”). (AR 37-42, 44-46. Further, Plaintiff’s representative made

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arguments

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witnesses. Thus, the Court finds that the ALJ properly found that

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Plaintiff had constructively waived her right to attend the hearing.

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As to Plaintiff’s credibility, the ALJ evaluated this based upon

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statements from her disability application and seizure questionnaire.

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(AR 19, 174, 182-184.)

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and

on

argument

her

from

behalf

and

Plaintiff’s

did

representative.

cross-examine

the

At

the

testifying

In evaluating Plaintiff’s credibility, the ALJ set forth a number

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of

reasons.

First,

he

determined

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supported by the objective evidence. (AR 19-22.) A lack of medical

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evidence cannot form the sole basis for discounting a statement of

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alleged symptoms, but it is one factor to be considered in the

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credibility analysis. See Burch v. Barnhart, 400 F.3d 676, 681 (9th
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that

her

complaints

were

not

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Cir. 2005).

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The ALJ also relied upon routine and conservative treatment which

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contrasted with the extreme limitations which Plaintiff claimed. (AR

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19-20.) Again, this is a permissible factor if supported by the

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evidence. See Johnson v. Shalala, 60 F.3d 1428, 1434 (9th Cir. 1995).

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The

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medications were adjusted and she reported feeling better as a result.

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(AR 20, 350.)

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ALJ

noted

that

with

regard

to

Plaintiff’s

seizures,

her

The ALJ also relied upon Dr. Plotz’s (ME) testimony as to
Plaintiff’s functional abilities. (AR 20.)

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All in all, the Court determines that the reasons cited by the

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ALJ are supported by substantial evidence, and are adequate to assess

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credibility.

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For the foregoing reasons, the Court finds no error in the ALJ’s
credibility analysis.
The decision of the ALJ will be affirmed.

The Complaint will be

dismissed with prejudice.
IT IS SO ORDERED.

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DATED: June 8, 2015

/s/
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE

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