Stacy Lynn Hatfield v. Carolyn W. Colvin

Filing 20

MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 STACY LYNN HATFIELD, Plaintiff, 13 14 15 16 Case No. EDCV 17-0287 SS v. MEMORANDUM DECISION AND ORDER NANCY A. BERRYHILl, Commissioner of the Social Security Administration, Defendant. 17 18 19 I. 20 INTRODUCTION 21 22 Stacy Lynn Hatfield (“Plaintiff”) brings this action seeking 23 to overturn the decision of the Commissioner of the Social Security 24 Administration (the “Commissioner”) denying her application for 25 Disability Insurance Benefits (“DIB”). 26 for a remand. 27 (the “Complaint”) commencing the instant action. 28 Defendant filed an Answer to the Complaint (the “Answer”). Alternatively, she asks On February 16, 2017, Plaintiff filed a complaint On July 11, 2017, The 1 parties have consented to the jurisdiction of the undersigned 2 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 3 the reasons stated below, the decision of the Commissioner is 4 AFFIRMED. For 5 6 II. 7 PROCEDURAL HISTORY 8 9 On January 16, 2013, Plaintiff filed an application for DIB 10 under 11 Plaintiff’s application alleges disability beginning on December 12 27, 2011 due to a left arm injury and residual pain, headaches, 13 anxiety, depression, and suicidal thoughts. 14 DIB application was denied both initially on August 23, 2013 and 15 upon reconsideration on January 6, 2014. Title II. (Administrative Record (“AR”) (AR 173). 144-51). Plaintiff’s (AR 92-95, 99-102). 16 17 On January 15, 2014, Plaintiff requested a hearing by an 18 Administrative Law Judge (“ALJ”). 19 place in San Bernardino, California on February 3, 2015 with ALJ 20 Nancy Stewart presiding. 21 Stewart issued an unfavorable decision, finding Plaintiff able to 22 perform light work but with some additional limitations. 23 33). 24 decision before the Appeals Council. 25 2016, the Appeals Council denied Plaintiff’s request for review 26 and 27 Commissioner. (AR 103-04). (AR 34-58). The hearing took On April 24, 2015, ALJ (AR 12- On June 2, 2015, Plaintiff requested review of the ALJ’s the ALJ’s decision became (AR 1-7). 28 2 the (AR 11). final On December 23, decision of the 1 III. 2 FACTUAL BACKGROUND 3 4 Plaintiff was born on April 7, 1962 and was 50 years old at 5 the time she filed her application for DIB. 6 27, 2011, Plaintiff suffered a work injury. 7 fell off a ladder from a height of approximately two ladder rungs 8 and struck her left elbow. 9 room (“ER”) and had surgery on her left elbow the following morning. 10 (AR 266). (AR 59). On December (AR 266). Plaintiff She went to the emergency (AR 259, 266). 11 12 A. Plaintiff’s Medical History 13 14 When applying for DIB, Plaintiff alleged suffering from 15 “depression, headaches, suicidal, injured left arm, anxiety and 16 constant pain from the arm injury.” (AR 173). 17 18 1. Physical Health History 19 20 a. Left Elbow Condition 21 22 On December 28, 2011, Plaintiff had surgery on her left elbow. 23 (AR 259). 24 where she was diagnosed with “a displaced olecranon fracture and a 25 nondisplaced distal humeral fracture. 26 Dhalla performed surgery on Plaintiff’s left elbow at Riverside 27 Community Hospital. 28 reduction After falling at work, Plaintiff went to the hospital internal (AR 259). fixation of 3 (AR 266, 267). Dr. Raja The procedure involved “open left elbow olecranon process 1 fracture 2 interpretation of fluoroscopy.” 3 procedure, Dr. Dhalla found Plaintiff’s left elbow had “good range 4 of motion” and that there was “no block to the range of motion.” 5 (AR 260). with Acumed plates and screws” (AR 259). with the “use of At the end of the 6 7 On April 3, 2012, Plaintiff underwent an MRI of her left 8 shoulder at SimonMed. 9 and concluded that Plaintiff had “mild bursal sided fraying of the 10 far anterior insertion of the supraspinatus tendon” and “associated 11 tendinopathy” but no “full-thickness tear.” (AR 249). 12 found but 13 fracture, or muscle atrophy.” 14 “degenerative changes as described, mild impingement and mild 15 subacromial/subdeltoid bursitis.” “mild proximal (AR 249). biceps Dr. Jeffrey Dym reviewed the MRI tendinopathy,” (AR 249). no He also “effusion, Additionally, he found (AR 249). 16 17 On June 18, 2012, Plaintiff underwent a series of x-rays of 18 her left elbow. 19 the olecranon fracture had healed. 20 alignment was good with no apparent dislocation or sublaxation. 21 (AR 289). 22 found to still be in place and were not bent, broken, or loose. 23 (AR 289). (AR 289). Dr. Raja Dhalla reviewed them and found (AR 289, 290). The elbow The plates and screws that had been attached were also 24 25 On July 24, 2012, Plaintiff had surgery on her left elbow and 26 shoulder. (AR 251). Dr. Raja Dhalla also performed this outpatient 27 surgery at Riverside Community Hospital. 28 diagnosed with “status post left elbow open reduction internal 4 (AR 251). Plaintiff was 1 fixation of olecranon with Acumed plate and screws” and “frozen 2 shoulder syndrome.” 3 of the Acumed plate and screws from the left elbow, arthroscopic 4 synovectomy 5 superior labrum with arthroscopic capsule release and bursectomy 6 with subacromial decompression.” 7 shoulder were also manipulated during the surgery. 8 During the procedure, the surgeon saw the rotator cuff tendon and 9 there was no rotator cuff tear. of the (AR 251). left The surgery involved the removal shoulder, “debridement (AR 251). of posterior Plaintiff’s elbow and (AR 251). (AR 252). 10 11 On November 18, 2013, Plaintiff had a follow-up appointment 12 with Dr. Dhalla for her left shoulder. 13 Plaintiff had 170 degrees of elevation with her left shoulder and 14 did not have pain or weakness during rotator cuff testing. 15 363). 16 and has done very well.” (AR 636). Part of that treatment included 17 physical therapy which Plaintiff also completed. (AR 635). Dr. Dhalla found (AR Dr. Dhalla also reported Plaintiff “has completed treatment (AR 292-338). 18 19 On February 27, 2014, Dr. Christopher Fleming completed an 20 examination 21 compensation 22 physically examining Plaintiff and reviewing her records. 23 669). 24 connected to her left elbow injury because she was compensating 25 with her right arm. 26 unreasonable” for her to develop pain in her right shoulder despite 27 being right-handed. 28 not just her left shoulder but also her left elbow after her work of Plaintiff calim. (AR in connection 648). This with her workers’ examination included (AR Dr. Fleming opined that Plaintiff’s right shoulder pain was (AR 669). He explained that it was “not (AR 668-69). 5 Because she experienced pain in 1 injury, she would have used her right arm for everything which 2 could have resulted in injury to her right shoulder. 3 Dr. Fleming listed work restrictions for Plaintiff: (AR 668-69). 4 5 6 7 8 For the shoulders, the patient has precluded from repetitive use of the upper extremities at or above shoulder level. For left upper extremity, she has precluded from repetitive heavy lifting, pushing, pulling, gripping, grasping, or other repetitive tasks more than 10 pounds. (AR 666). 9 10 11 12 13 Dr. Fleming recommended an MRI scan for the right shoulder to determine if further treatment was required. (AR 666). He stated Plaintiff should continue to exercise her left shoulder at home. (AR 666). 14 15 16 17 18 19 20 Plaintiff’s treatments prior medical to records her alleged also indicate onset date a of history of disability. Plaintiff had a past cervical spine fusion of the C6 and C7 vertebrae. (AR 283). She also had a previous left shoulder rotator cuff repair. (AR 283). are also listed. Previous right shoulder and arm fractures (AR 283). 21 b. 22 Heart Condition 23 24 25 26 27 28 On December 29, 2012, Plaintiff had an echocardiogram (“ECG”) performed at Riverside Community Hospital. (AR 258). When Plaintiff went to the ER after her work injury, the ER doctor noted a history of cardiac arrhythmia which required Plaintiff to receive medical clearance for surgery by an internal medicine specialist. 6 1 (AR 266-67). 2 surgery but requested an ECG and recommended Plaintiff receive 3 further evaluation. 4 Sivanandan Vasudevan who found that Plaintiff’s cardiac valves were 5 normal. In addition, Plaintiff had normal intracardiac dimensions, 6 her left ventrical wall motion was normal, her Doppler study was 7 within normal limits, there was no pericardial effusion and her RV 8 function was normal. The internal medicine specialist cleared her for (AR 269). The ECG was reviewed by Dr. (AR 258). 9 10 On September 11, 2013, Plaintiff saw Dr. Andrew Ho at 11 Riverside Cardiology Associates. 12 experiencing heart palpitations. 13 Plaintiff has paroxysmal 14 regurgitation. (AR 679). 15 regurgitation as remaining “overall stable” and noted she had an 16 ablation scheduled for the tachycardia. atrial (AR 678). Plaintiff reported (AR 678). tachycardia Dr. Ho indicated and mitral valve Dr. Ho listed Plaintiff’s mitral valve (AR 678). 17 18 On October 28, 2013, Plaintiff had an ablation procedure for 19 supraventricular 20 performed the procedure. 21 November 6, 2013, Plaintiff said she had not had a rapid heartbeat 22 after the ablation “but it feels different.” 23 requested a stress test and informed Plaintiff she may need to have 24 another ablation or she may need a permanent pacemaker. tachycardia. (AR (AR 694). 694). Dr. Vilma Torres At her follow-up visit on (AR 694). Dr. Torres (AR 694). 25 26 On November 6, 2013, Plaintiff underwent a treadmill test at 27 Loma Linda University Health System at the request of Dr. Vilma 28 Torres. (AR 687). Plaintiff’s diagnosis was cardiac arrhythmias, 7 1 unspecified. 2 resting ECG revealed normal sinus rhythm and first degree AV block. 3 (AR 4 premature ventricular contractions. 5 response was negative for ischemia. 687). (AR 687). With her During the stress test, Plaintiff’s arrhythmias, she also showed (AR 687). occasional Her stress ECG (AR 687). 6 7 2. Mental Health History 8 9 On April 15, 2013, Riverside Center for Behavioral Medicine 10 admitted 11 dependence, sedative hypnotic dependence, opioid abuse, bipolar 12 disorder, depressed versus mood disorder secondary to alcohol 13 dependence. 14 on April 17, 2013. 15 (AR 452). 16 413-14). 17 (AR 414). 18 discharged. 19 being suicidal. 20 by the death of her mother in September 2012. Plaintiff, with several (AR 413, 452). (AR 413). diagnoses including alcohol The Riverside Center discharged her Dr. Mekund Deshmukh treated her. She received treatment for alcohol detoxification. (AR When she was admitted, she received a GAF score of 25. Her GAF score improved to 40 by the time she was (AR 413). She claimed she was depressed but denied (AR 414). Her depression appeared to be affected (AR 418). 21 22 On April 24, 2013, Plaintiff was admitted to a partial 23 hospitalization program at Riverside Center for Behavioral Medicine 24 with the same doctor to receive supportive care. (AR 462). 25 26 On February 12, 2014, Plaintiff started receiving treatment 27 from Riverside Psychiatric Medical Group. 28 treated by Nurse Practitioner (“NP”) Kathleen Comer. 8 (AR 646). She was (AR 646-47). 1 NP Comer listed alcohol dependence, anxiety - unspecified, bipolar 2 disorder – mixed unspecified, and adjustment disorder as problems 3 experienced by Plaintiff. 4 Plaintiff had not followed her medication regimen. (AR 646). NP Comer also noted that (AR 646). 5 6 Plaintiff’s next visit with NP Comer was not until June 5, 7 2014. (AR 645). At that time, NP Comer noted Plaintiff had stopped 8 taking her medications for roughly three months. 9 Comer found Plaintiff had no orientation, cognitive, or memory 10 impairments. (AR 645). NP (AR 645). 11 12 On July 22, 2014, Dr. Robin Campbell performed a complete 13 psychological evaluation of Plaintiff. 14 herself to the appointment. 15 552). 16 any trouble walking or standing. (AR 552). She was neatly groomed. 17 (AR 552). 18 Center for Behavioral Medicine but did not have access to any other 19 records. (AR 553). Plaintiff reported the ability to “do household 20 chores, run errands, shop, cook, dress and bathe herself.” 21 554). 22 reported that she likes to watch television and play games. (AR 23 554). She does not need physical assistance to get around. (AR 24 554). She also “gets along fairly well with those people she comes 25 into contact with on a daily basis.” 26 established “a rapport” with Dr. Campbell. 27 reported two prior arrests for DUI as well as methamphetamine and 28 cocaine use in the past. (AR 552). (AR 552). Plaintiff drove She arrived on time. (AR She was wearing a left arm brace but did not appear to have Dr. Campbell reviewed Plaintiff’s records from Riverside Plaintiff manages her own finances. (AR 554). 9 (AR 554). (AR 554). (AR Plaintiff Plaintiff also (AR 554). Plaintiff 1 2 Dr. Campbell ultimately found Plaintiff capable of 3 “understanding, remembering, and carrying out” both simple and 4 detailed instructions. 5 Plaintiff can “make judgments on simple, work-related decisions.” 6 (AR 557). 7 with the public and people at work. 8 “moderately impaired” in dealing with work-related changes and 9 stressors. 10 (AR 557). According to Dr. Campbell, Plaintiff would have “moderate difficulty” interacting (AR 557). (AR 557). She would also be Dr. Campbell also believed Plaintiff is capable of managing her finances. (AR 557). 11 12 B. Treating Physician Opinion 13 14 On March 21, 2014, Plaintiff’s treating physician, Dr. Allen 15 Felix, filled out a medical opinion form related to Plaintiff’s 16 ability to do work-related tasks. 17 can lift and carry less than ten pounds on an occasional basis, 18 meaning no more than one third of an eight-hour day. 19 He indicated Plaintiff can only stand and walk for about three 20 hours and only sit for about two hours during an eight-hour day 21 with normal breaks. 22 Plaintiff can only stand for ten minutes and sit for thirty minutes 23 before needing to alter position. 24 needs to walk around every twenty minutes for five minutes and that 25 she needs to be able to alternate freely between sitting and 26 standing. 27 to lie down once per day during working hours. (AR 676). Plaintiff 28 can only occasionally twist, stoop, crouch and climb stairs and (AR 676). (AR 675). (AR 675). He stated Plaintiff (AR 675). This was further qualified that (AR 675). He stated Plaintiff Dr. Felix also indicated Plaintiff would need 10 1 can never climb ladders. 2 handle, finger, feel, and push/pull are impaired. 3 needs to avoid concentrated exposure to extreme heat, wetness, 4 humidity and noise. 5 ventilation, etc., she needs to avoid even moderate exposure. 6 677). 7 all exposure to extreme cold and hazards such as machinery and 8 heights. (AR 676). (AR 677). Plaintiff’s ability to reach, (AR 676). She Fumes, odors, dusts, gases, poor (AR Finally, according to Dr. Felix, Plaintiff needs to avoid (AR 677). 9 10 Dr. Felix found all of these restrictions were based on 11 Plaintiff’s degenerative joint disease in both knees, cervical 12 fusion, chronic low back pain and limited use of left arm because 13 of the elbow fracture and rotator cuff tendonitis. 14 Additionally, Dr. Felix listed Plaintiff has trouble with dizziness 15 and balancing and that she has auditory hallucinations. (AR 676). (AR 677). 16 17 C. State Agency Doctors 18 19 Two Physical 20 Assessments 21 conducted. and (“Residual Mental Residual Assessment”) of Functional the Capacity Plaintiff were (AR 59-72, 74-90). 22 23 1. Initial Level Residual Assessment 24 25 Dr. Paxton completed the Residual Assessment of the Plaintiff 26 at the initial level on August 23, 2013. 27 physical 28 exertional limitations assessment, limitations, Dr. concerning Paxton 11 (AR 59-72). found the the For the Plaintiff’s Plaintiff can 1 occasionally lift twenty pounds and can frequently lift ten pounds. 2 (AR 67). 3 about six hours in an eight-hour work day and can sit for about 4 six hours in an eight-hour workday. 5 Plaintiff could push and/or pull (including operation of hand and 6 foot controls) subject to the lifting limitations. 7 Plaintiff’s 8 occasionally climb ramps and stairs, balance, stoop, kneel, crouch 9 and crawl. Dr. Paxton also found the Plaintiff can stand and/or walk postural (AR 67). Dr. Paxton found the limitations (AR 67). were such that (AR 67). she could However, Dr. Paxton found the Plaintiff can 10 never 11 manipulative limitations, Dr. Paxton found that Plaintiff’s left 12 overhead 13 manipulation, and skin receptors were not limited. 14 Regarding environmental limitations, Dr. Paxton found Plaintiff 15 should avoid concentrated exposure to vibration and hazards such 16 as heights and machinery. 17 visual or communicative limitations. climb ladders, reach was ropes, limited or but scaffolds. her (AR 68). gross (AR 67). For manipulation, fine (AR 68). Dr. Paxton did not find any (AR 68). 18 19 Dr. Paxton also assessed Plaintiff’s mental limitations. 20 Paxton found Plaintiff’s concentration and persistence limitations 21 are not significantly limited except she is moderately limited in 22 carrying out detailed instructions. 23 social 24 moderately limited in her ability to appropriately interact with 25 the public. 26 any understanding and memory limitations or adaptation limitations. 27 (AR 69, 70). 28 but was limited to unskilled, light work. interaction limitations, (AR 70). (AR 69). Plaintiff Dr. In relation to was found to be Dr. Paxton did not find Plaintiff to have Overall, Dr. Paxton found Plaintiff was not disabled 12 (AR 71). 1 2. Reconsideration Level Residual Assessment 2 3 Dr. DeBorja completed the Residual Assessment of Plaintiff at 4 the reconsideration level on January 2, 2014. (AR 74-90). Starting 5 with 6 Plaintiff had the same exertional limitations as the initial level 7 Residual Assessment except she was also limited in her left upper 8 extremity when pushing and pulling. 9 postural limitations, Dr. DeBorja found the same limitations except the physical limitations assessment, Dr. (AR 84). DeBorja found For Plaintiff’s 10 that Plaintiff could frequently stoop, kneel, and crouch. 11 Dr. DeBorja found the same manipulative limitations but specified 12 that left overhead reaching was limited to occasionally. 13 The environmental limitations were found to be the same with the 14 added statement that “moderate exposure to machineries that require 15 more 16 avoided. than occasional postural activity to operate” (AR 84). (AR 85). should be (AR 86). 17 18 Dr. DeBorja also addressed some of Plaintiff’s allegations 19 regarding her physical limitations, finding them only partially 20 credible. 21 with Plaintiff’s right shoulder or elbow, the pain in her left 22 shoulder and elbow should not prevent her from being able to lift 23 more than 6 pounds. 24 Plaintiff to be experiencing any problems with ambulation such that 25 she would need to rest before walking a quarter of a mile. 26 86). 27 that Plaintiff suffered from headaches. (AR 86). Dr. DeBorja stated because there is no problem (AR 86). Dr. DeBorja found no reason for (AR The doctor also noted that the medical evidence did not show 28 13 (AR 86). 1 The mental limitations of Plaintiff were assessed during the 2 reconsideration 3 performed by a psychological consultant, Dr. Waranch. 4 Dr. 5 limitations to be the same with one addition. (AR 87). Dr. Waranch 6 found that Plaintiff was moderately limited in her ability to both 7 finish 8 psychological impairments interrupting and to maintain a consistent 9 work pace without unreasonable rest periods. Waranch a level found normal Residual Assessment, Plaintiff’s work however concentration schedule without they were (AR 81, 88). and persistence symptoms rooted (AR 87). in However, 10 Dr. 11 maintaining attendance and completing a workweek” but that she 12 would have difficulty “carrying out detailed tasks and maintaining 13 attention and concentration for such tasks on a regular basis.” 14 (AR 87). 15 capable 16 maintaining attention and concentration when doing so.” 17 Dr. 18 included moderate limitations to her ability to take directions 19 and correction from supervisors and to get along with coworkers 20 without distracting them or displaying extreme behaviors. 21 Dr. Waranch explained that Plaintiff can interact with the public 22 and get along with both supervisors and coworkers but only if the 23 contacts are short and intermittent. (AR 87). For adaptation 24 limitations, Plaintiff was 25 limited 26 environment and travel in new places or use public transportation. 27 (AR 88). 28 pressures in the work setting if they are not constant. Waranch explained that Plaintiff would be “capable of Additionally, Dr. Waranch stated that Plaintiff is of Waranch in completing found Dr. both “simple, Plaintiff’s Waranch her social found ability 2-3 that to step instructions interaction handle changes and (AR 87). limitations in (AR 87). moderately the work Dr. Waranch explained Plaintiff can adapt to changes and 14 (AR 88). 1 Dr. Waranch did not find any understanding and memory limitations. 2 (AR 86). 3 4 IV. 5 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 6 7 To qualify for disability benefits, a claimant must 8 demonstrate a medically determinable physical or mental impairment 9 that prevents him from engaging in substantial gainful activity1 10 and that is expected to result in death or to last for a continuous 11 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 12 721 U.S.C. 13 impairment must render the claimant incapable of performing the 14 work he previously performed and incapable of performing any other 15 substantial gainful employment that exists in the national economy. 16 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(citing 42 17 U.S.C. § 423(d)(2)(A)). (9th Cir. 1998)(citing 42 § 423(d)(1)(A)). The 18 19 To decide if a claimant is entitled to benefits, an ALJ 20 conducts a five-step inquiry. 21 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 22 23 (1) Is the claimant presently engaged in substantial gainful 24 activity? If so, the claimant is found not disabled. 25 not, proceed to step two. If 26 27 28 Substantial gainful activity means work that involves doing significant and productive physical or mental duties and is done for pay or profit. 20 C.F.R. §§ 404.1510, 416.910. 1 15 1 (2) 2 Is the claimant’s impairment severe? is found not disabled. 3 (3) If not, the claimant If so, proceed to step three. Does the claimant’s impairment meet or equal one of a list 4 of specific impairments described in 20 C.F.R. Part 404, 5 Subpart P, Appendix 1? 6 disabled. 7 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 8 so, the claimant is found not disabled. 9 If step five. 10 (5) If not, proceed to Is the claimant able to do any other work? 11 claimant is found disabled. 12 If not, the not disabled. If so, the claimant is found 13 14 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 15 262 F.3d 949, 953-54 (9th Cir. 2001)(citing Tackett); 20 C.F.R. §§ 16 404.1520(b) – 404.1520(f)(1) & 416.920(b) – 416.920(f)(1). 17 18 The claimant has the burden of proof at steps one through 19 four, and the Commissioner has the burden of proof at step five. 20 Bustamante, 262 F.3d at 953-54 (citing Tackett). 21 the ALJ has an affirmative duty to assist the claimant in developing 22 the record at every step of the inquiry. 23 four, the claimant meets his burden of establishing an inability 24 to perform past work, the Commissioner must show that the claimant 25 can perform some other work that exists in “significant numbers” 26 in the national economy, taking 27 28 16 into Additionally, Id. at 954. account the If, at step claimant’s 1 residual functional capacity,2 age, education, and work experience. 2 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 3 C.F.R. §§ 404.1520(f)(1), 416.920(f)(1). 4 so by the testimony of a vocational expert or by reference to the 5 Medical-Vocational Guidelines appearing in 20 C.F.R. Part 404, 6 Subpart P, Appendix 2 (commonly known as “the Grids”). 7 v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001)(citing Tackett). 8 When 9 nonexertional limitations, the Grids are inapplicable and the ALJ a claimant has both exertional The Commissioner may do Osenbrock (strength-related) and 10 must take the testimony of a vocational expert. 11 216 F.3d 864, 869 (9th Cir. 2000)(citing Burkhart v. Bowen, 856 12 F.2d 1335, 1340 (9th Cir. 1988)). 13 \\ 14 \\ 15 \\ 16 \\ 17 \\ 18 \\ 19 \\ 20 \\ 21 \\ 22 \\ 23 \\ Moore v. Apfel, 24 25 26 27 28 Residual functional capacity is “what [one] can still do despite [his] limitations” and represents an “assessment based upon all of the relevant evidence.” 20 C.F.R. §§ 404.1545(a), 416.945(a). 2 17 1 V. 2 THE ALJ’S DECISION 3 4 The ALJ used the above five-step process and found Plaintiff 5 was not disabled according to the Social Security Act. 6 28). 7 by the Social Security Act through December 31, 2016. 8 At step one, the ALJ found Plaintiff had not engaged in 9 substantial gainful activity from the alleged disability onset (AR 15- Initially, the ALJ found Plaintiff was insured as required 10 date. 11 (AR 17). multiple severe impairments: (AR 17). At step two, the ALJ found Plaintiff had 12 13 14 15 16 17 “degenerative joint disease of the bilateral knees; cervical fusion with chronic low back pain; disorder of the left elbow secondary to fracture; left shoulder rotator cuff tear; cardio disorder, history of tachycardia, status post ablation of supraventricular tachycardia; bipolar disorder; and a history of alcohol abuse.” (AR 17). 18 The ALJ considered all of Plaintiff’s found impairments for the 19 remaining steps of the evaluation process. 20 three, the ALJ found Plaintiff’s impairments did not meet or 21 medically equal in whole or in part any of the specific impairments 22 as required under this step of the process. 23 ALJ determined Plaintiff’s residual functional capacity for use in 24 steps four and five. 25 functional capacity allows her to perform light work with certain 26 exceptions: (AR 20). (AR 17-28). (AR 17). At step Next, the The ALJ found Plaintiff’s residual 27 28 18 1 2 “occasional pushing and pulling with the upper left extremity and bilateral lower extremities; no operation of foot pedals; standing and/or walking for 6 hours in an 8-hour day, with no prolonged walking greater than an hour at a time; sitting for 6 hours in an 8-hour day, with the ability to stand and stretch as needed, but not to exceed 10% of the day; no climbing ladders, ropes, or scaffolds; no kneeling or crawling; frequent use of left upper non dominant extremity for fine and gross manipulation; no limits to the right extremity; no exposure to work hazards, such as working at unprotected heights or operating fast or dangerous machinery; noncomplex routine tasks; and the claimant can perform jobs that do not require hypervigilance.” (AR 20). 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 In reaching this residual functional capacity, the ALJ gave no weight to the opinion of Plaintiff’s treating doctor, Dr. Felix. (AR 22). Based on this residual functional capacity, at step four the ALJ found Plaintiff is unable to perform her previous work. (AR 26). Finally, at step five the ALJ found there are other jobs in the national economy in significant numbers that Plaintiff could perform. (AR 27). Thus, the ALJ found Plaintiff was not disabled under the Social Security Act from the alleged onset date through the date of the decision. (AR 28). 22 23 24 VI. STANDARD OF REVIEW 25 26 27 28 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s decision to deny benefits. The court may set aside the Commissioner’s decision when the ALJ’s findings are based on 19 1 legal error or are not supported by substantial evidence in the 2 record as a whole. 3 2014)(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 4 (9th Cir. 2006); Auckland v. Massanari, 257 F.3d 1033, 1035 (9th 5 Cir. 2001)(citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 6 F.3d 1273, 1279 (9th Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597, 7 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 8 9 “Substantial evidence is more than a scintilla, but less than 10 a preponderance.” 11 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 12 evidence which a reasonable person might accept as adequate to 13 support a conclusion.” 14 Smolen, 15 evidence supports a finding, the court must “‘consider the record 16 as a whole, weighing both evidence that supports and evidence that 17 detracts from the [Commissioner’s] conclusion.’” Auckland, 257 F.3d 18 at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 19 If 20 reversing 21 judgment for that of the Commissioner. 22 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). the 80 F.3d at evidence that Reddick, 157 F.3d at 720 (citing Jamerson v. Id. (citing Jamerson, 112 F.3d at 1066; 1279). can It is “relevant To determine reasonably conclusion, the support court whether either may not substantial affirming substitute or its Reddick, 157 F.3d at 720- 23 24 VII. 25 DISCUSSION 26 27 28 Plaintiff contends the ALJ failed to properly consider and weigh her treating physician’s 20 medical opinion regarding her 1 physical conditions and limitations.3 2 ALJ did not give sufficiently specific and legitimate reasons that 3 were supported by substantial evidence in her decision to give no 4 weight to Dr. Felix’s opinion. 5 erred in failing to request clarification from Dr. Felix regarding 6 his opinion because there are no records from him in Plaintiff’s 7 record other than his Medical Opinion form. First, Plaintiff argues the Second, Plaintiff claims the ALJ 8 9 The ALJ Provided Specific And Legitimate Reasons To Reject 10 Plaintiff’s Treating Doctor’s Opinion 11 12 Although a treating physician’s opinion is usually entitled 13 to great deference, it is “not necessarily conclusive as to either 14 the 15 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 16 1999). 17 opinion of another doctor, the ALJ may properly reject the treating 18 doctor’s opinion by providing “specific and legitimate reasons 19 supported by substantial evidence in the record for so doing.” 20 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 21 an examining doctor’s opinion is contradicted by another doctor, 22 it too can only be rejected based on the specific and legitimate 23 reasons standard. physical condition or the ultimate issue of disability.” When the treating doctor’s opinion is contradicted by the Similarly, if Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 24 25 26 27 28 While Plaintiff was also diagnosed with mental impairments. In a communication to the Appeals Council, Plaintiff argued that her mental impairments should have been the focus of the ALJ’s decision. However, she failed to raise this issue in her brief before this Court. Accordingly, it is waived. Even if Plaintiff had raised it, the Court finds that the ALJ appropriately considered the evidence regarding mental impairments. 3 21 1 1995). 2 facts and conflicting medical evidence and stating her conclusions. 3 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Garrison 4 v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014). This standard can be met by the ALJ detailing all of the 5 6 “Where the opinion of the claimant’s treating physician is 7 contradicted, and the opinion of a nontreating source is based on 8 independent 9 treating physician, the opinion of the nontreating source may clinical findings that differ from those of the 10 itself be substantial evidence." 11 1041 (9th Cir. 1995). 12 opinions, the ALJ decides how to resolve them based on how credible 13 they are. 14 2008)(citing Andrews, 53 F.3d at 1039-40); Batson v. Comm’r of Soc. 15 Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Matney v. 16 Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)). Andrews v. Shalala, 53 F.3d 1035, If there are conflicts between the medical Tommasetti v. Astrue, 533 F.3d 1035, 1041-42 (9th Cir. 17 18 Here, the ALJ noted conflicts between Plaintiff’s treating 19 physician’s medical opinion and the state agency doctors’ medical 20 opinions and found that the treating doctor’s opinion was too 21 limiting. 22 opinion was not consistent with Plaintiff’s medical records and 23 reported daily activities. 24 the state agency doctors’ opinions were “generally consistent with 25 the medical record as a whole and with the claimant’s reported 26 activities of daily living.” 27 noted between different doctors’ opinions, the ALJ needed to (AR 22-23). The ALJ found the treating doctor’s medical (AR 22). In contrast, the ALJ found (AR 22). 28 22 Because conflicts were 1 2 provide specific and legitimate reasons supported by substantial 3 evidence in the record to reject Plaintiff’s treating physician’s 4 opinion. Lester, 81 F.3d at 830. 5 6 Dr. Felix gave more severe restrictions than did the State 7 agency doctors regarding Plaintiff’s limitations in using her upper 8 extremities. 9 the ALJ noted the medical evidence of Plaintiff’s surgeon, Dr. 10 Dhalla, which stated Plaintiff had healed well following her left 11 shoulder and elbow treatment, supported the state agency doctors’ 12 view of Plaintiff’s abilities. 13 had 170 degrees of elevation in her left shoulder and had no pain 14 or weakness during her left rotator cuff test. 15 an 16 surgeon, and is itself substantial evidence for the ALJ’s decision. 17 The ALJ also noted that x-rays of Plaintiff’s shoulders taken in 18 2014 showed no significant findings. 19 undermined Plaintiff’s allegations of disabling pain. 20 The surgeon’s report as well as the x-rays provide specific and 21 legitimate reasons to reject Dr. Felix’s opinion that Plaintiff is 22 severely limited in her use of her upper extremities. In evaluating the state agency doctors’ opinions, independent clinical (AR 22). finding by a Specifically, Plaintiff (AR 22). treating This is physician, her This objective evidence also (AR 22). (AR 23). 23 24 The ALJ next addressed Plaintiff’s knee and back pain. 25 ALJ noted that Plaintiff was diagnosed with bilateral degenerative 26 joint disease of the knees and chronic low back pain resulting from 27 a previous cervical spine fusion. 28 noted Plaintiff was not receiving treatment for these symptoms. 23 (AR 22). The However, the ALJ also 1 Instead, these conditions were only being “monitored”. 2 This lack of treatment conflicts with Dr. Felix’s opinion that 3 Plaintiff can only stand or walk for three hours in an eight-hour 4 day and only stand for 10 minutes at a time. 5 conflicts with Dr. Felix’s opinion that Plaintiff can only sit for 6 two hours in an eight-hour day and only for thirty minutes at a 7 time. 8 legitimate reason to reject Dr. Felix’s opinion. (AR 23). (AR 22). (AR 23). It also As such, it also serves as a specific and 9 10 The ALJ also considered Plaintiff’s heart condition. The ALJ 11 observed Plaintiff was diagnosed with atrial tachycardia and had 12 an ablation performed in November 2013. 13 ALJ again noted that Plaintiff received no further documented 14 treatment for this condition. 15 mentioned Plaintiff’s cardiac testing returned normal results. (AR 16 22). Accordingly, the ALJ provided specific and legitimate reasons 17 for rejecting limitations based upon Plaintiff’s heart condition. (AR 22). (AR 22). However, the Additionally, the ALJ 18 19 The ALJ also properly relied upon Plaintiff’s self-reported 20 daily activities as a reason to reject the degree of limitation 21 set forth by Dr. Felix. 22 included 23 cooking, playing games, watching TV, and going to her appointments. 24 (AR 25 independent, able to take care of herself and not as physically 26 limited as Dr. Felix claims. 27 have to cease all daily activities before she can be found to be 28 disabled. 23). doing All The ALJ found Plaintiff’s daily activities household of chores, these She is correct. running activities errands, indicate shopping, Plaintiff is Plaintiff argues that she does not However, the ALJ did not look at 24 1 Plaintiff’s daily activities in isolation. 2 them along with the medical evidence and found that Dr. Felix’s 3 opinion regarding Plaintiff’s limitations was further undermined 4 by Plaintiff’s daily activities. Rather, she considered 5 6 The ALJ also considered the opinions of the State agency 7 medical consultants. 8 record and so gave them the most weight. 9 reviewed Plaintiff’s medical record and reached medical opinions 10 regarding her limitations that the ALJ found was consistent with 11 the medical record. 12 medical opinions on clinical findings independent of the treating 13 physician’s findings, their opinions can serve as substantial 14 evidence. She found them to be supported by the medical (AR 22). These doctors Because the State agency doctors based their Andrews, 53 F.3d at 1041. 15 16 Plaintiff’s assertion that the ALJ should have contacted Dr. 17 Felix for clarification on his medical opinion and records is 18 without merit. 19 However, but that duty is only triggered if there is “ambiguous 20 evidence or when the record is inadequate to allow for proper 21 evaluation of the evidence.” 22 460 (9th Cir. 2001)(citing Tonapetyan v. Halter, 242 F.3d 1144, 23 1150 (9th Cir. 2001)). 24 was ambiguous or inadequate. An ALJ does have a duty to develop the record. Mayes v. Massanari, 276 F.3d 453, Here, there is no showing that the record 25 \\ 26 \\ 27 \\ 28 25 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner and dismissing 6 this action with prejudice. 7 of the Court serve copies of this Order and the Judgment on counsel 8 for both parties. IT IS FURTHER ORDERED that the Clerk 9 10 DATED: October 30, 2017 11 /S/ 12 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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