Fawna M. Roberts Murphy v. Carolyn W. Colvin

Filing 19

MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. (dml)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

FAWNDA M. ROBERTS
MURPHY,
Plaintiff,

13

16

MEMORANDUM OPINION

v.

14
15

Case No. EDCV 16-2384 JC

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

17
18
19
20
21
22
23
24
25
26
27
28

I.

SUMMARY
On November 18, 2016, Fawnda M. Roberts Murphy (“plaintiff”) filed a

Complaint seeking review of the Commissioner of Social Security’s denial of
plaintiff’s application for benefits. The parties have consented to proceed before
the undersigned United States Magistrate Judge.
This matter is before the Court on the parties’ cross motions for summary
judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”). The
Court has taken both motions under submission without oral argument. See Fed.
R. Civ. P. 78; L.R. 7-15; November 22, 2016 Case Management Order ¶ 5.
1

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is
hereby substituted for Carolyn W. Colvin as the defendant in this action.

1

Based on the record as a whole and the applicable law, the decision of the

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

BACKGROUND AND SUMMARY OF ADMINISTRATIVE

5

DECISION

6

On April 27, 2011, plaintiff filed an application for Disability Insurance

7 Benefits alleging disability beginning on November 15, 2010, due to severe
8 depression, extreme fatigue, and memory loss. (Administrative Record (“AR”) 98,
9 252, 284). The ALJ examined the medical record and heard testimony from
10 plaintiff (who was not represented by counsel) and vocational and medical experts
11 on January 24, 2013. (AR 27-47).
12

On January 28, 2013, the ALJ determined that plaintiff was not disabled

13 through May 31, 2011, the date last insured2 (“Pre-Remand Decision”). (AR 9814 107).
15

On July 17, 2014, the Appeals Council granted review, vacated the Pre-

16 Remand Decision, and remanded the matter for further administrative proceedings.
17 (AR 112-14).
18

On November 25, 2014, the ALJ again examined the medical record and

19 also heard testimony from plaintiff (who was represented by counsel), and
20 vocational and medical experts (“Post-Remand Hearing”). (AR 48-69).
21

On December 4, 2014, the ALJ determined that plaintiff was not disabled

22 through the date of the decision (“Post-Remand Decision”).3 (AR 9-21).
23 Specifically, the ALJ found: (1) plaintiff suffered from the following severe
24
25
26
27
28

2

The ALJ subsequently determined that plaintiff was actually insured “through September
30, 2017.” (AR 10).
3

The ALJ stated that the Pre-Remand Decision was, in pertinent respects, incorporated by
reference into, and thus supplemented by, the Post-Remand Decision. (AR 15, 16).

2

1 impairments: fatigue, depression, memory loss, back strain, and obesity (AR 12);
2 (2) plaintiff’s impairments, considered singly or in combination, did not meet or
3 medically equal a listed impairment (AR 13-14); (3) plaintiff retained the residual
4 functional capacity to perform light work (20 C.F.R. § 404.1567(b)), with
5 additional limitations4 (AR 14); (4) plaintiff was capable of performing past
6 relevant work as a dealer compliance representative (AR 19); (5) alternatively,
7 there are jobs that exist in significant numbers in the national economy that
8 plaintiff could perform, specifically office helper, mail clerk, and routing clerk
9 (AR 19-20); and (6) plaintiff’s statements regarding the intensity, persistence, and
10 limiting effects of subjective symptoms were not credible to the extent they were
11 inconsistent with the ALJ’s residual functional capacity assessment (AR 15).
12

On September 28, 2016, the Appeals Council denied plaintiff’s application

13 for review. (AR 1).
14 III.

APPLICABLE LEGAL STANDARDS

15

A.

16

To qualify for disability benefits, a claimant must show that the claimant is

Sequential Evaluation Process

17 unable “to engage in any substantial gainful activity by reason of any medically
18 determinable physical or mental impairment which can be expected to result in
19 death or which has lasted or can be expected to last for a continuous period of not
20 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)
21 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The
22 impairment must render the claimant incapable of performing the work the
23 claimant previously performed and incapable of performing any other substantial
24
25
26
27
28

4

The ALJ determined that plaintiff: (i) could lift 20 pounds occasionally and 10 pounds
frequently; (ii) could stand and walk for six hours out of an eight-hour work day with regular
breaks; (iii) could sit for six hours in an eight-hour work day with regular breaks; (iv) needed to
avoid working around unprotected machinery and at unprotected heights; (v) was limited to tasks
not requiring hypervigilance; (vi) was precluded from fast-paced work; and (vii) was limited to
occasional contact with the public. (AR 14).

3

1 gainful employment that exists in the national economy. Tackett v. Apfel, 180
2 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)).
3

In assessing whether a claimant is disabled, an ALJ is required to use the

4 following five-step sequential evaluation process:
5

(1)

6
7

Is the claimant presently engaged in substantial gainful activity? If
so, the claimant is not disabled. If not, proceed to step two.

(2)

Is the claimant’s alleged impairment sufficiently severe to limit

8

the claimant’s ability to work? If not, the claimant is not

9

disabled. If so, proceed to step three.

10

(3)

Does the claimant’s impairment, or combination of

11

impairments, meet or equal an impairment listed in 20 C.F.R.

12

Part 404, Subpart P, Appendix 1? If so, the claimant is

13

disabled. If not, proceed to step four.

14

(4)

Does the claimant possess the residual functional capacity to

15

perform claimant’s past relevant work? If so, the claimant is

16

not disabled. If not, proceed to step five.

17

(5)

Does the claimant’s residual functional capacity, when

18

considered with the claimant’s age, education, and work

19

experience, allow the claimant to adjust to other work that

20

exists in significant numbers in the national economy? If so,

21

the claimant is not disabled. If not, the claimant is disabled.

22 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th
23 Cir. 2006) (citations omitted); see also 20 C.F.R. § 404.1520(a)(4) (explaining
24 five-step sequential evaluation process).
25

The claimant has the burden of proof at steps one through four, and the

26 Commissioner has the burden of proof at step five. Burch v. Barnhart, 400 F.3d
27 676, 679 (9th Cir. 2005) (citation omitted).
28 ///
4

1

B.

2

Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of

Standard of Review

3 benefits only if it is not supported by substantial evidence or if it is based on legal
4 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir.
5 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457
6 (9th Cir. 1995)). Substantial evidence is “such relevant evidence as a reasonable
7 mind might accept as adequate to support a conclusion.” Richardson v. Perales,
8 402 U.S. 389, 401 (1971) (citations and quotations omitted).
9

“Overall, the standard of review is ‘highly deferential.’” Rounds v.

10 Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.
11 2015) (citation omitted). Hence, an ALJ’s decision to deny benefits must be
12 upheld if the evidence could reasonably support either affirming or reversing the
13 decision. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). Even when
14 an ALJ’s decision contains error, it must be affirmed if the error was harmless.
15 Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090,
16 1099 (9th Cir. 2014). An ALJ’s error is harmless if (1) it was inconsequential to
17 the ultimate nondisability determination; or (2) despite the error, the ALJ’s path
18 may reasonably be discerned, even if the ALJ’s decision was drafted with less than
19 ideal clarity. Id. (citation and quotation marks omitted). The claimant has the
20 burden to establish that an ALJ’s error was not harmless. See Molina, 674 F.3d at
21 1111 (citing Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
22

While an ALJ’s decision need not discuss every piece of evidence or be

23 drafted with “ideal clarity,” at a minimum it must explain the ALJ’s reasoning
24 with sufficient specificity and clarity to “allow[] for meaningful review.” Brown25 Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (citations and internal
26 quotation marks omitted); Hiler v. Astrue, 687 F.3d 1208, 1212 (9th Cir. 2012)
27 (citation and quotation marks omitted).
28 ///
5

1 IV.

DISCUSSION

2

A.

The ALJ Properly Evaluated the Opinions of the Internal

3

Medicine Consultative Examiner

4

1.

5

Pertinent Law

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

6 generally varies depending on the type of medical professional who provided the
7 opinions, namely “treating physicians,” “examining physicians,” and
8 “nonexamining physicians” (e.g., “State agency medical or psychological
9 consultant[s]”). 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502, 404.1513(a);
10 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citation and quotation
11 marks omitted). A treating physician’s opinion is generally given the most weight,
12 and may be “controlling” if it is “well-supported by medically acceptable clinical
13 and laboratory diagnostic techniques and is not inconsistent with the other
14 substantial evidence in [the claimant’s] case record[.]” 20 C.F.R.
15 § 404.1527(c)(2); Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citations and
16 quotation marks omitted). In turn, an examining, but non-treating physician’s
17 opinion is entitled to less weight than a treating physician’s opinion, but more
18 weight than a nonexamining physician’s opinion. Garrison, 759 F.3d at 1012
19 (citation omitted).
20

An ALJ may reject the uncontroverted opinion of an examining physician

21 by providing “clear and convincing reasons that are supported by substantial
22 evidence” for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)
23 (citation omitted). Where an examining physician’s opinion is contradicted by
24 another doctor’s opinion, an ALJ may reject such opinion only “by providing
25 specific and legitimate reasons that are supported by substantial evidence.”
26 Garrison, 759 F.3d at 1012 (citation and footnote omitted).
27 ///
28 ///
6

1
2

2.

Analysis

Plaintiff contends that the ALJ improperly rejected certain medical opinions

3 expressed in a July 19, 2011 Complete Internal Medicine Evaluation by Dr. Nizar
4 Salek, a state agency consultative examining physician – specifically that plaintiff
5 was limited to frequent reaching in all directions, frequent gross manipulation, and
6 occasional fine manipulation (collectively “Dr. Salek’s Manipulation
7 Limitations”). (Plaintiff’s Motion at 4-6) (citing AR 348). Plaintiff argues that a
8 remand or reversal is warranted because the foregoing error ran afoul of the
9 Appeals Council’s remand instructions. (Plaintiff’s Motion at 6). The Court
10 disagrees because the ALJ properly rejected Dr. Salek’s Manipulation Limitations
11 for clear and convincing, specific and legitimate reasons supported by substantial
12 evidence.
13

First, the ALJ properly rejected Dr. Salek’s Manipulation Limitations

14 because, as the ALJ noted, they were not supported by the physician’s own clinical
15 findings or the objective medical evidence in the record as a whole. See Connett
16 v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (ALJ properly rejected treating
17 physician’s opinion where “treatment notes provide[d] no basis for the functional
18 restrictions [physician] opined should be imposed on [claimant]”); see also
19 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not accept
20 the opinion of any physician, including a treating physician, if that opinion is
21 brief, conclusory, and inadequately supported by clinical findings.”). For
22 example, as the ALJ noted, Dr. Anthony Francis, a board-certified orthopedist who
23 testified as a medical expert at the Post-Remand Hearing, essentially stated that
24 “[u]pon his review of the consultative examination report and the entire medical
25 record, Dr. Francis [found] . . . no objective diagnostic or clinical findings to
26 support a diagnosis of radiculopathy or carpal tunnel syndrome” and also found
27 nothing “within the four corners of Dr. Salek’s consultative examination report
28 that supported his diagnosis of radiculopathy or carpal tunnel syndrome.” (AR 167

1 17; see AR 54-56). To the extent plaintiff suggests that the medical evidence
2 actually supports such diagnoses and/or Dr. Salek’s Manipulation Limitations
3 (Plaintiff’s Motion at 6), this Court will not second guess the ALJ’s reasonable
4 determination to the contrary, even if such evidence could give rise to inferences
5 more favorable to plaintiff. See Robbins, 466 F.3d at 882 (citation omitted).
6

Second, the ALJ also properly rejected Dr. Salek’s Manipulation

7 Limitations to the extent they were based solely on plaintiff’s subjective
8 complaints, which complaints the ALJ found less credible for clear and convincing
9 reasons (a determination plaintiff has not challenged). (AR 15-17, 103-04); see,
10 e.g., Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014) (ALJ may discount
11 medical opinion based “to a large extent” on a claimant’s “self-reports” that the
12 ALJ found “not credible”) (internal quotation marks and citations omitted). The
13 ALJ properly based this finding, in part, on the testimony provided by Dr. Francis.
14 (AR 16-18); see Morgan v. Commissioner of Social Security Administration, 169
15 F.3d 595, 600 (9th Cir. 1999) (testifying medical expert opinions may serve as
16 substantial evidence when “they are supported by other evidence in the record and
17 are consistent with it”); Sportsman v. Colvin, 637 Fed. Appx. 992, (9th Cir. 2016)
18 (noting “ALJ did not err in assigning substantial weight to the state agency
19 medical consultant, whose opinion relied on and was consistent with the medical
20 evidence of record”) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir.
21 2001)).
22

Accordingly, a remand or reversal on this basis is not warranted.

23

B.

24

Plaintiff appears to contend that the ALJ failed adequately to develop the

The ALJ Did Not Fail Adequately to Develop the Record

25 record of plaintiff’s physical impairments and limitations essentially because
26 (1) the record did not contain any medical evidence documenting plaintiff’s
27 alleged foot condition (i.e., treatment and surgery referral for “deep ulcerated sores
28 that ha[d] to be removed”); (2) the medical record is “blatantly incomplete” (i.e.,
8

1 the record “contains fewer than 30 pages of medical evidence and has no treatment
2 records whatsoever for the years of 2010, 2011, 2012, 2013, and 2015”); and
3 (3) the ALJ should have, sua sponte, ordered an updated internal medicine
4 consultative examination (“CE”) of plaintiff since the internal medicine CE
5 currently in the record was performed more than three years before the Post6 Remand Hearing. (Plaintiff’s Motion at 2-4). A remand or reversal is not
7 warranted on any of the above grounds.
8
9

1.

Pertinent Law

Although a claimant bears the ultimate burden of proving disability, an ALJ

10 still has an “independent duty” to help each claimant “fully and fairly develop the
11 record” at every step of the sequential evaluation process. Tonapetyan, 242 F.3d
12 at 1150 (citations and internal quotation marks omitted). An ALJ’s duty to
13 develop the record further is triggered only when the existing record contains
14 “ambiguous evidence” or is “inadequate to allow for proper evaluation of the
15 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001) (citation
16 omitted). A specific finding by the ALJ of ambiguity or inadequacy is not
17 necessary to trigger the ALJ’s duty. McLeod v. Astrue, 640 F.3d 881, 885 (9th
18 Cir. 2011) (citation omitted). Nonetheless, an ALJ is not obliged to investigate
19 every conceivable condition or impairment a claimant might assert. An ALJ must
20 “conduct an appropriate inquiry” only when the record contains “some objective
21 [medical] evidence” which plausibly suggests the existence of a medically
22 determinable impairment that could have a “material impact” on the ALJ’s
23 decision. See generally id. (citations omitted); Mayes, 276 F.3d at 459-61; Breen
24 v. Callahan, 1998 WL 272998, at *3 (N.D. Cal. May 22, 1998) (citing Smolen v.
25 Chater, 80 F.3d 1273, 1288 (9th Cir. 1996); Wainwright v. Secretary of Health and
26 Human Services, 939 F.2d 680, 682 (9th Cir. 1991)).
27

An ALJ may satisfy the duty to develop the record, in part, by ordering a

28 consultative examination. See 20 C.F.R. §§ 404.1519 et seq.; Reed v. Massanari,
9

1 270 F.3d 838, 841 (9th Cir. 2001) (citing, in part, 20 C.F.R. § 404.1519); Pederson
2 v. Colvin, 31 F. Supp. 3d 1234, 1244 (E.D. Wash. 2014) (citation omitted). An
3 ALJ has “broad latitude” to decide whether or not to order a consultative
4 examination in a particular case. Reed, 270 F.3d at 842 (citation and internal
5 quotation marks omitted).
6
7

2.

Analysis

First, plaintiff has presented no medical evidence which documents her

8 alleged foot condition or any limitations related thereto. Plaintiff’s Post-Remand
9 Hearing testimony regarding such impairment, without more, was insufficient to
10 trigger the ALJ’s duty to develop the record further. See, e.g., Mayes, 276 F.3d at
11 459-61 (ALJ had no duty to develop record regarding physical impairment where
12 claimant presented no medical evidence that such an impairment existed during
13 the relevant time period); Breen, 1998 WL 272998, *3 (N.D. Cal. May 22, 1998)
14 (noting that, in the Ninth Circuit, the ALJ’s obligation to develop the record is
15 triggered by “the presence of some objective evidence in the record suggesting the
16 existence of a condition which could have a material impact on the disability
17 decision”) (citations omitted). Moreover, plaintiff’s testimony in response to the
18 ALJ’s questions at the Post-Remand Hearing, in part, suggested that the foot
19 surgery for which plaintiff allegedly was referred would have only involved “a
20 simple in-and-out procedure” by a podiatrist lasting no more than a few days. (AR
21 66). Hence, it would have been reasonable to infer (as the ALJ apparently did)
22 (AR 15, 66) that any medical evidence related to plaintiff’s alleged foot condition
23 that could have been discovered on further inquiry would not have been material
24 to the ALJ’s ultimate disability decision. See generally Magallanes v. Bowen, 881
25 F.2d 747, 755 (9th Cir. 1989) (court may draw specific and legitimate inferences
26 from ALJ’s opinion). Even assuming the ALJ should have inquired further about
27 plaintiff’s foot condition, plaintiff has not shown that any such error was anything
28 other than harmless. For example, plaintiff fails to demonstrate that her foot
10

1 impairment caused any additional functional limitation that was not already
2 accounted for in the ALJ’s physical residual functional capacity assessment. See,
3 e.g., Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (noting court may
4 affirm non-disability decision where ALJ’s failure properly to consider medical
5 opinion evidence is harmless – i.e., “where the mistake was nonprejudicial to the
6 claimant or irrelevant to the ALJ’s ultimate disability conclusion. . . .”) (citing
7 Stout, 454 F.3d at 1055) (quotation marks omitted).
8

Second, the ALJ did not find, nor does the record otherwise reflect, that the

9 existing medical evidence was ambiguous or insufficient as a whole to permit the
10 ALJ properly to assess plaintiff’s physical residual functional capacity or to make
11 a final disability determination. Plaintiff’s conclusory assertions that the medical
12 record was “blatantly incomplete” and the ALJ failed properly to “ensure that
13 [certain] missing relevant medical evidence was obtained and incorporated into
14 [the] record” (Plaintiff’s Motion at 3-4) do not persuade the Court to so conclude.
15 For instance, although plaintiff complains that the record “currently . . . has no
16 treatment records whatsoever for the years of 2010, 2011, 2012, 2013, and 2015[]”
17 (Plaintiff’s Motion at 3), she does not say when (or even if) she received any
18 medical treatment during such years that necessarily would have generated any
19 material medical records that could have been discovered on further inquiry. Cf.,
20 e.g., McLeod, 640 F.3d at 885-86 (“inadequate” evidence triggered ALJ’s duty to
21 develop the record further where plaintiff’s testimony suggested “likelihood” that
22 other significant probative evidence existed which “might very well matter” to
23 evaluation of Social Security disability claim) (citations omitted). Even so,
24 plaintiff has not identified any particular treatment records among the purportedly
25 “missing” medical evidence which reflect a medically determinable impairment or
26 related functional limitation that was not already accounted for in the ALJ’s
27 residual functional capacity assessment. Cf. Carmickle v. Commissioner, Social
28 Security Administration, 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (courts
11

1 “ordinarily will not consider matters on appeal that are not specifically and
2 distinctly argued in an appellant’s opening brief”) (citation and internal quotation
3 marks omitted).
4

Finally, plaintiff’s current speculation that her impairments could have

5 become worse and/or “new impairments” could have developed over time
6 (Plaintiff’s Motion at 3) is insufficient to trigger a duty to order a second internal
7 medicine CE of plaintiff at government expense. See, e.g., Breen, 1998 WL
8 272998, at *4 (“[A]n ALJ is not required to order a consultative examination
9 solely on the basis of a plaintiff’s allegations unsupported by objective medical
10 evidence. . . .”) (citing 42 U.S.C. § 423(d)(5)(A)); see also Reed, 270 F.3d at 842
11 (“The government is not required to bear the expense of [a consultative]
12 examination for every claimant.”) (citing 20 C.F.R. §§ 404.1517-1519t).
13

Accordingly, a remand or reversal on this basis is not warranted.

14 V.

CONCLUSION

15

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

16 Security is affirmed.
17

LET JUDGMENT BE ENTERED ACCORDINGLY.

18 DATED: April 4, 2017
19
20
21

______________/s/___________________
Honorable Jacqueline Chooljian
UNITED STATES MAGISTRATE JUDGE

22
23
24
25
26
27
28
12