Steven Gandarilla v. Carolyn W Colvin

Filing 22

MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm. the judgment of the Commissioner is affirmed. IT IS SO ORDERED. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EASTERN DIVISION

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STEVEN GANDARILLA,
Plaintiff,

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

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Defendant.

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No. EDCV 16-1715 FFM
MEMORANDUM DECISION AND
ORDER

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Plaintiff brings this action seeking to overturn the decision of the Commissioner

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of the Social Security Administration1 denying his application for Disability Insurance

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Benefits and Supplemental Security Income. Plaintiff and defendant consented to the

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jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §

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636(c). Pursuant to the Case Management Order issued on August 15, 2016 and an

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extension granted by the Court, on May 25, 2017, the parties filed a Joint Stipulation

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(“JS”) detailing each party’s arguments and authorities. The Court has reviewed the

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Nancy A. Berryhill became Acting Commissioner of the Social Security
Administration on January 23, 2017, and is hereby substituted as defendant pursuant
to Federal Rule of Civil Procedure 25(d).
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administrative record (the “AR”) and the Joint Stipulation. For the reasons stated

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below, the decision of the Commissioner is AFFIRMED.

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PRIOR PROCEEDINGS

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On December 28, 2012, plaintiff applied for Disability Insurance Benefits and

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Supplemental Security Income, alleging an onset date of July 15, 2009. (AR 176-88.)

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Plaintiff’s applications were denied initially and on reconsideration. (AR 56-116.)

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Thereafter, plaintiff requested a hearing before an administrative law judge (“ALJ”).

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(AR 138.) ALJ Dante M. Alegre held a hearing on December 3, 2014. (AR 36-55.)

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Plaintiff appeared with counsel and testified at the hearing. (See id.) Furthermore,

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Gregory Jones, a vocational expert (“VE”), testified at the hearing. (AR 49-53.)
On February 27, 2015, the ALJ issued a decision denying plaintiff benefits.

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(AR 14-35.) Based on his review of the evidence, the ALJ determined that plaintiff

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has the “following severe impairments: diabetes mellitus type II, peripheral

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neuropathy, degenerative joint disease of the right shoulder, mild lumbar

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osteoarthritis, minimal osteoarthritis of the left knee, obesity, major depressive

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disorder, and bipolar disorder.” (AR 20.) Further, the ALJ found that plaintiff

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possesses the residual functional capacity (“RFC”) to perform “light work” except that

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plaintiff can:

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lift 20 pounds occasionally and 10 pounds frequently, and can

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sit, stand, or walk six hours each out of an eight-hour workday.

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He can occasionally push and pull with the right upper

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extremity. He an [sic] occasionally climb, balance, stoop,

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kneel, crouch, and crawl. He can occasionally reach overhead

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with the right upper extremity. He can perform unskilled,

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nonpublic work.

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(AR 23.)
In making these determinations, the ALJ discredited plaintiff’s claims about the
limitations caused by his impairments. (AR 28.) The ALJ gave great weight to the
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state agency medical and psychiatric consultants and gave little weight to the opinions

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of plaintiff’s treating physician Dr. Arthur Jimenez, M.D., and the GAF scores. (AR

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27-28.) Based on plaintiff’s RFC and the testimony of the VE, the ALJ determined

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that plaintiff is unable to perform any past relevant work, but there are jobs that exist

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in significant numbers in the national economy that plaintiff can perform. (AR 28-

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29.) Accordingly, the ALJ concluded that plaintiff has not been under a disability

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within the meaning of the Social Security Act from the alleged onset date of July 15,

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2009 through the date of the decision. (AR 30.)
On June 29, 2016, the Appeals Council denied plaintiff’s request for review.

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(AR 1-9.) Thereafter, plaintiff filed this action.
CONTENTIONS

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Plaintiff raises two issues in this action:

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the treating doctor.

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Whether the ALJ provided clear and convincing reasons to reject the opinion of

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Whether the ALJ failed to include all of the relevant mental limitations in the
residual functional capacity.
STANDARD OF REVIEW

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Under 42 U.S.C. § 405(g), this Court reviews the Administration’s decisions to

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determine if: (1) the Administration’s findings are supported by substantial evidence;

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and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d

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1273, 1279 (9th Cir. 1996) (citations omitted). “Substantial evidence is more than a

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scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th

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Cir. 1998) (citation omitted). To determine whether substantial evidence supports a

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finding, “a court must consider the record as a whole, weighing both evidence that

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supports and evidence that detracts from the [Commissioner’s] conclusion.” Auckland

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v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted).

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If the evidence in the record can reasonably support either affirming or

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reversing the ALJ’s conclusion, the Court may not substitute its judgment for that of
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the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing

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Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)).

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However, even if substantial evidence exists to support the Commissioner’s decision,

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the decision must be reversed if the proper legal standard was not applied. Howard ex

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rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80

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F.3d at 1279.
DISCUSSION

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A.

The ALJ Properly Evaluated The Treating Physician’s Opinion

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Plaintiff first alleges that the ALJ erred in failing to provide clear and

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convincing reasons to reject the opinion of plaintiff’s treating physician, Dr. Arthur

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Jimenez, M.D. (JS 4.)

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Background

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a.

Opinion of Treating Physician Dr. Jimenez

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Treatment records indicate that Dr. Jimenez treated plaintiff between October

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2009 and September 2014. In November 2014, Dr. Jimenez completed a Physical

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Residual Functional Capacity Questionnaire in connection with plaintiff’s disability

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applications. (AR 535-40.) Based on the treatment history, Dr. Jimenez concluded

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that plaintiff is incapable of performing even low stress jobs. (AR 537.) Specifically,

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Dr. Jimenez opined that plaintiff can walk half a block without rest or severe pain; sit

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for 30 minutes at a time; stand for 15 minutes at a time; and sit, stand, and walk each a

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total of 2 hours in an 8-hour day. (Id.) Further, plaintiff must walk every 15 minutes

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for 15 minutes at a time throughout an 8-hour workday; must be able to shift at will

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from sitting, standing, or walking; must be able to take unscheduled breaks every 30

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minutes for 15-30 minutes at a time; must elevate legs at 90 degrees while sitting for

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half the day; and must use a cane or other assistive device when engaging in

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occasional standing/walking. (AR 538.) Plaintiff is also limited to rarely lifting and

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carrying less than 10 pounds; rarely looking down, turning his head, looking up,

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holding his head in a static position, twisting, stooping, crouching, and climbing
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ladders and stairs. (AR 538-39.) Plaintiff is also restricted from reaching, handling,

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fingering, and pushing/pulling with his right hand. (AR 539.) Finally, plaintiff can

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never use his left foot and can use his right foot occasionally. (AR 540.) Dr. Jimenez

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concluded that because of these limitations, plaintiff is likely to be absent from work

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for more than four days per month. (Id.)

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b.

ALJ Decision

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In his written decision, the ALJ gave little weight to Dr. Jimenez’s opinion.

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(AR 26.) Based on his review of the record as a whole, the ALJ opined that plaintiff

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has the RFC to perform light work except that plaintiff can:

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lift 20 pounds occasionally and 10 pounds frequently, and can

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sit, stand, or walk six hours each out of an eight-hour workday.

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He can occasionally push and pull with the right upper

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extremity. He an [sic] occasionally climb, balance, stoop,

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kneel, crouch, and crawl. He can occasionally reach overhead

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with the right upper extremity. He can perform unskilled,

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nonpublic work.

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(AR 23.) The ALJ rejected the severe limitations imposed by Dr. Jimenez, stating

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that that the doctor’s opinion was “brief, conclusory, and inadequately supported by

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clinical findings.” (AR 26.)

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2.

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Legal Standard
In evaluating physicians’ opinions, the case law and regulations distinguish

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among three types of physicians: (1) those who treat the claimant (treating

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physicians); (2) those who examine but do not treat the claimant (examining

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physicians); and (3) those who neither treat nor examine the claimant (non-examining

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physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other

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grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. §§

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404.1502, 416.902, 404.1527(c), 416.927(c). As a general rule, more weight should

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be given to the opinion of a treating source than to the opinions of physicians who do
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not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); 20 C.F.R.

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§§ 404.1527(c)(2), 416.927(c)(2).

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The Ninth Circuit has held that an ALJ may reject a treating physician’s

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uncontradicted opinion only with “clear and convincing” reasons supported by

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substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir.

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1998) (internal quotation marks omitted). If the treating physician’s opinion is

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controverted, the ALJ must still provide “specific and legitimate” reasons, supported

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by substantial evidence in the record, in order to reject the treating physician’s

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opinion. Lester, 81 F.3d at 830; Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th

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Cir. 2001).

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Analysis
Here, Dr. Jimenez’s opinions are contradicted by the state agency consultants

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on the initial and reconsideration levels. However, “[t]he opinion of a nonexamining

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physician cannot by itself constitute substantial evidence that justifies the rejection of

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the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d

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at 831. The opinion of a non-examining physician may serve as substantial evidence

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when it is consistent with other independent evidence in the record. Id. at 830-31.

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The state agency consultants relied on a review of medical reports from a variety of

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doctors, including but not limited to Dr. Jimenez. Only Dr. Jimenez assigned severe

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restrictions to plaintiff’s ability to work. Therefore, the ALJ must provide “specific

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and legitimate” reasons for discrediting Dr. Jimenez’s opinion. See Lester, 81 F.3d at

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830.
The ALJ stated that he gave little weight to Dr. Jimenez’s opinion “because it is

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brief, conclusory, and inadequately supported by clinical findings.” (AR 26.) The

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ALJ then provided additional reasons for rejecting the specific opinions that plaintiff

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was unable to work; that plaintiff suffered from functional limitations that would

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preclude work; and that plaintiff has significant mental limitations.

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a.

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The Opined Functional Limitations Are Inconsistent With the Objective
Medical Evidence

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The ALJ noted that with regard to claims based on plaintiff’s diabetes mellitus

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and peripheral neuropathy, Dr. Jimenez’s treatment notes reflect that in most visits

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plaintiff did not complain of any related symptoms. (AR 25.) The record indicates

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that plaintiff visited Dr. Jimenez frequently between October 2009 and September

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2014. However, the treatment notes indicate that plaintiff complained of difficulty of

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grasping objects only once in April 2011. (AR 332.) Further, plaintiff complained of

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numbness and tingling in his extremities only twice, once in September 2013 during a

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visit with Dr. Jimenez and again in September 2014 during a neurological

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examination. (AR 461, 493.) The ALJ noted that during the September 2014

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neurological examination, a physical examination of plaintiff reflected that sensation

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in his upper and lower extremities was normal and plaintiff had 5/5 muscle strength

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throughout, including grip strength. (AR 25) (citing AR 494.) The infrequent

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complaints and the inconsistent treatment notes contrast with a finding of ongoing and

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disabling symptoms of diabetes mellitus and peripheral neuropathy.
Second, the ALJ explained that the record reflected routine and conservative

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treatment with regard to plaintiff’s alleged right shoulder degenerative joint disease.

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“A conservative course of treatment can undermine allegations of debilitating pain.”

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Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The

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ALJ noted that plaintiff first complained of shoulder pain in 2011. (AR 25) (citing AR

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329.) Plaintiff subsequently underwent physical therapy, which yielded only slight

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improvements. (AR 349-50.) In 2012, a MRI was performed which yielded benign

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results; there was moderate tendinosis, but no rotator cuff tear. (AR 378.) Plaintiff

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received injections for his shoulder pain and the record reflects that by 2013, plaintiff

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no longer complained of shoulder pain and did not receive any further treatment for it.

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(See AR 389-94.) Plaintiff asserts that steroid injections are not considered

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conservative treatment. The record, however, does not reflect steroid injections;

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rather, the medical record demonstrates only injections of lidocaine.
Third, the ALJ explained that the objective medical evidence regarding

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plaintiff’s mild lumbar osteoarthritis and minimal left knee osteoarthritis does not

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support Dr. Jimenez’s opinion. In December 2010, plaintiff had an X-ray of his

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lumbar spine which revealed mild osteoarthritis with no evidence of spondylosis or

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spondylolisthesis. (AR 385.) Plaintiff had an X-ray of his knee in December 2010,

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which revealed normal results. (AR 386.) In a subsequent X-ray of plaintiff’s left

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knee in April 2011, there were “minimal changes of osteoarthritis,” but the results

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were otherwise normal. (AR 384.) As the ALJ noted, there is no evidence in the

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record suggesting that plaintiff received or was recommended to receive further

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treatment such as physical therapy or injections for either his back or knees. (AR 25.)
Accordingly, inconsistency with the objective medical evidence was a specific

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and legitimate reason the ALJ provided for rejecting Dr. Jimenez’s opinion.

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b.

Inconsistency With Own Progress Notes

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The second reason the ALJ provided for rejecting Dr. Jimenez’s opinion was

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that his opinion was inconsistent with the documented findings in Dr. Jimenez’s own

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progress notes. The progress notes from each visit with Dr. Jimenez include

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comments regarding physical examinations. As the ALJ noted, the progress notes do

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not document any significant functional limitations. In fact, the physical examination

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comments show largely normal results. (See e.g., 324-44, 418-24, 453-57) (physical

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examination comments reflecting “SPINE: no abnormalities, “EXTREMITIES: no

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abnormalities,” “LOW BACK: rom normal.”) These findings are inconsistent with Dr.

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Jimenez’s opinions imposing extreme limitations of plaintiff’s physical capabilities.

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Accordingly, this inconsistency was a specific and legitimate reason the ALJ provided

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for rejecting Dr. Jimenez’s opinion.

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c.

Opinions On Mental Impairments

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Lastly, the ALJ rejected Dr. Jimenez’s opinion regarding plaintiff’s mental

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impairments because Dr. Jimenez is not qualified to assess plaintiff’s mental

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limitations and the record does not contain evidence of Dr. Jimenez performing a

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mental evaluation or clinical assessment. Plaintiff contends that as a treating

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physician, Dr. Jimenez is qualified to opine on plaintiff’s mental impairments even

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though he is not an expert in the field. (JS 17.) Plaintiff is correct, but Dr. Jimenez’s

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records do not support the contention that Dr. Jimenez ever treated plaintiff’s alleged

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mental impairment. In this regard, the record includes a one-page questionnaire Dr.

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Jimenez completed regarding plaintiff’s mental impairments. (AR 491.) Dr. Jimenez

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opined that plaintiff’s mental impairments impose limitations in (a) daily activities and

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task completion resulting from a lack of focus, (b) social function because of isolation,

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and (c) adaptation to work because of behavioral issues. (Id.) Additionally, in the

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Physical Residual Functional Capacity Questionnaire, Dr. Jimenez simply checked off

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depression, anxiety, and schizophrenia as psychological conditions affecting

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plaintiff’s physical condition. (AR 536.) These two questionnaires do not

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demonstrate that Dr. Jimenez ever treated plaintiff’s mental impairments. Therefore,

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the ALJ properly dismissed Dr. Jimenez’s opinion regarding plaintiff’s mental

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impairment.

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B.

The ALJ Properly Evaluated Plaintiff’s Mental RFC
Plaintiff next contends the ALJ erred in his RFC determination by failing to

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include the mental limitations assessed by Dr. Jimenez and the state agency. (JS 13,

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16-18.)

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Legal Standard
It is the solely the ALJ’s responsibility to determine a claimant’s RFC. Vertigan

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v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). RFC is the most the claimant can do

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in a work setting despite the physical and mental limitations caused by the claimant’s

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impairments and related symptoms, such as pain. 20 C.F.R. §§ 404.1545(a)(1),
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416.945(a)(1); see also Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) (residual

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functional capacity is the “maximum degree to which the individual retains the

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capacity for sustained performance of the physical-mental requirements of jobs”)

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(internal quotation marks omitted) (citing 20 C.F.R. Part 404, subpt. P, app. 2 §

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200.00(c)). The ALJ’s RFC finding “must be based on all of the relevant evidence in

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the case record,” including, inter alia, medical signs and laboratory findings; medical

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source statements; and effects of symptoms, including pain, that are reasonably

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attributable to a medically-determinable impairment. Social Security Ruling

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(“S.S.R.”) 96-8p, 1996 WL 374184 (S.S.A.) at *5. However, the ALJ is not required

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to incorporate evidence from opinions of treating physicians which were permissibly

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discounted. Batson v. Commissioner, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.

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2004).

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3.

Analysis

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a.

Dr. Jimenez’s Opinion

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As discussed above, the ALJ properly rejected Dr. Jimenez’s opinions regarding

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plaintiff’s mental impairments. The ALJ is not required to incorporate evidence from

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opinions of treating physicians which were permissibly discounted. Batson v.

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Commissioner, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). Therefore, the

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ALJ did not err by not incorporating Dr. Jimenez’s opinions regarding plaintiff’s

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mental impairments.

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b.

State Agency Opinion

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The state agency psychiatric consultants on the initial and reconsideration levels

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opined that plaintiff suffered from moderate impairments in the ability to perform

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activities within a schedule, sustain ordinary routine without special supervision,

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accept instructions and respond appropriately to criticism from supervisors, and the

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ability to complete normal workweek without an unreasonable number and length of

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rest periods. (AR 77-78, 109-10.) The ALJ gave great weight to the opinions of the

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state agency psychiatric consultants, and along with the medical evidence, the ALJ
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opined that plaintiff’s mental RFC is limited to “unskilled non-public work.” (AR 23.)

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Plaintiff argues that the ALJ committed error by not including all of the limitations

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imposed by the state agency psychiatric consultants. (JS 13.) In particular, plaintiff

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argues the ALJ erred by not including a limitation involving “interacting with

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supervisors.” (JS 19.)

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Although the psychiatric consultants found the moderate impairments

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referenced by plaintiff, all of them agreed that plaintiff’s RFC resulting therefrom was

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non-public, simple repetitive work. The consultants did not impose any restriction

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relating to supervision in their recommended RFCs. Therefore, plaintiff’s claim is

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without merit.

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CONCLUSION

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For the foregoing reasons, the judgment of the Commissioner is affirmed.

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IT IS SO ORDERED.

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DATED: November 20, 2017

/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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