Carey Wendell Price v. Carolyn W. Colvin

Filing 25

MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. (see document for details). (dro)

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1 2 3 4 O 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CAREY WENDELL PRICE, 12 Case No. 5:17-cv-00367-KES Plaintiff, MEMORANDUM OPINION AND ORDER 13 v. 14 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 16 Defendant. 17 18 Carey Wendell Price (“Plaintiff”) appeals the final decision of the 19 Administrative Law Judge (“ALJ”) denying his application for Disability Insurance 20 Benefits (“DIB”). 21 AFFIRMED. For the reasons discussed below, the ALJ’s decision is 22 I. 23 BACKGROUND 24 In July 2013, Plaintiff applied for DIB alleging the onset of disability on May 25 14, 2013. Administrative Record (“AR”) 38, 63. An ALJ conducted a hearing on 26 July 24, 2015, at which Plaintiff, who was represented by an attorney, appeared and 27 testified. AR 7-36. The ALJ issued an unfavorable decision on August 18, 2015. 28 AR 63-72. 1 1 The ALJ found that Plaintiff suffers from the medically determinable severe 2 impairments of “degenerative disc disease; history of aortic valve replacement; and 3 mood and anxiety disorders.” AR 65. Despite his physical impairments, the ALJ 4 found that Plaintiff retained the residual functional capacity (“RFC”) to perform 5 medium work with some additional environmental restrictions. AR 67. Despite his 6 mental impairments, the ALJ found that Plaintiff could perform “non-complex 7 routine tasks,” but was precluded from jobs requiring hypervigilance, being 8 responsible for the safety of others, public interaction, or significant teamwork. AR 9 67. 10 Based on this RFC and the testimony of a vocational expert (“VE”), the ALJ 11 found that Plaintiff could not perform his past relevant work as a customer order 12 clerk/order taker. AR 70. The ALJ found, however, that Plaintiff could perform the 13 medium, unskilled jobs of hand packager, packing machine operator, or warehouse 14 worker. AR 71. Based on these findings, the ALJ concluded that Plaintiff was not 15 disabled. Id. 16 II. 17 ISSUES PRESENTED 18 19 Issue One: Whether the ALJ erred in evaluating the opinion of Plaintiff’s treating psychiatrist, Dr. Kohut. Dkt. 24, Joint Stipulation (“JS”) at 3. 20 Issue Two: Whether the ALJ had a duty to develop the record further 21 concerning Plaintiff’s degenerative disc disease or aortic valve replacement. JS at 4, 22 14. 23 III. 24 DISCUSSION 25 A. Issue One: The ALJ’s Evaluation of Dr. Kohut’s Opinion. 26 1. 27 “As a general rule, more weight should be given to the opinion of a treating 28 source than to the opinion of doctors who do not treat the claimant.” Turner v. Rules for Weighing Conflicting Medical Evidence. 2 1 Comm’r of SSA, 613 F.3d 1217, 1222 (9th Cir. 2010) (citation omitted). This rule, 2 however, is not absolute. Where the treating physician’s opinion is not contradicted 3 by an examining physician, that opinion may be rejected only for “clear and 4 convincing reasons.” Tackett v. Apfel, 180 F.3d 1094, 1102 (9th Cir. 1999). Where, 5 however, the opinions of the treating and examining physicians conflict, if the ALJ 6 wishes to disregard the opinion of the treating physician, the ALJ must give “specific, 7 legitimate reasons for doing so that are based on substantial evidence in the record.” 8 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (citation omitted). See also 9 Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (“If the ALJ wishes to disregard the 10 opinion of the treating physician, he or she must make findings setting forth specific, 11 legitimate reasons for doing so that are based on substantial evidence in the record.” 12 (citation omitted)). 13 “Medical opinions are statements from physicians and psychologists or other 14 acceptable medical sources that reflect judgments about the nature and severity of [a 15 claimant’s] impairment(s), including [a claimant’s] symptoms, diagnosis and 16 prognosis, what [a claimant] can still do despite impairment(s), and [a claimant’s] 17 physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1). Thus, not all statements 18 in medical records are medical opinions. A treating physician may record a patient’s 19 history without stating an opinion. So too, opinions from medical sources “on some 20 issues … are not medical opinions… but are, instead, opinions on issues reserved to 21 the Commissioner because they are administrative findings that are dispositive of a 22 case ….” 20 C.F.R. § 404.1527(d). For this reason, a treating physician’s opinion 23 that the claimant is disabled or unable to work is not a medical opinion. 20 C.F.R. 24 § 404.1527(d)(1). 25 2. 26 Plaintiff points to two, one-page letters written by Dr. Kohut. JS at 3, citing 27 28 Summary of Dr. Kohut’s Letters. AR 977 (“October 2013 Letter”) and AR 967 (“February 2014 Letter”). In the October 2013 Letter, Dr. Kohut explained that Plaintiff’s initial 3 1 psychiatric evaluation occurred on February 23, 2012. AR 977. He recited facts 2 about Plaintiff’s medical, familial, and educational history. Id. He explained that 3 Plaintiff was receiving counselling from psychologist Dr. Shipley who had diagnosed 4 Plaintiff as suffering from major depressive disorder, generalized anxiety disorder, 5 social phobia, and obsessive-compulsive disorder (“OCD”). Id. He listed Plaintiff’s 6 medications and reported the Plaintiff had been compliant with all treatment 7 recommendations. Id. 8 9 Dr. Kohut’s February 2014 Letter is substantially like his October 2013 Letter, but he added the following paragraph: 10 He has had complicating physical symptoms, including essential 11 hypertension. He has been unable to deal with employment issues. 12 AR 967. 13 Plaintiff’s counsel asserts that this paragraph contains a psychiatric opinion 14 from Dr. Kohut, i.e., Dr. Kohut “determined that plaintiff has been unable to deal 15 with employment issues due to” his diagnosed mental impairments. JS at 3. Plaintiff 16 contends the ALJ erred by giving little weight to this opinion. Id. 17 3. 18 Dr. Kohut’s statement that Plaintiff “has been unable to deal with employment 19 issues” is a patient history statement, not a medical opinion. The statement indicates 20 that, during their treating relationship, Plaintiff has been unable to seek or obtain 21 employment. This interpretation is consistent with the statement’s context; it is part 22 of a letter that primarily recites Plaintiff’s history. 23 consistent with the statement’s grammar; it is written in the past tense. Analysis. This interpretation is also 24 If Dr. Kohut’s statement is interpreted as a medical opinion that Plaintiff is 25 unable to work due to his mental impairments, then such an opinion would not be 26 entitled to any deference. Rather, it would constitute an opinion on an issue reserved 27 to the Commissioner. 20 C.F.R. § 404.1527(d)(1). 28 Even if Dr. Kohut’s statement is interpreted as a medical opinion about 4 1 Plaintiff’s symptoms and functional limitations (which would be an unreasonable 2 interpretation), the ALJ did not err in evaluating it. The ALJ gave it “little weight” 3 because the statement was “unsupported by the record as a whole.” AR 70. The ALJ 4 went on to explain that the statement was inconsistent with Plaintiff’s limited 5 treatment history and fairly normal daily activities. Id. 6 This was a specific and legitimate reason supported by substantial evidence. 7 As the ALJ noted, during his treating relationship with Dr. Kohut, Plaintiff could live 8 alone, care for his dog, drive, handle his own money, go out alone, shop in stores, 9 and perform household chores, including cooking, grocery shopping, vacuuming, and 10 laundry. AR 67-69. This level of functioning is inconsistent with someone suffering 11 from disabling mental impairments. Indeed, consultative examining physician Dr. 12 Smith, as well as agency medical consultants Drs. Loomis and Rosenshield, all 13 opined that Plaintiff did not have a severe mental impairment. AR 42-43, 54-55, 321- 14 27; see also AR 69-70 (ALJ’s finding that, notwithstanding these opinions, Plaintiff 15 did have severe mental impairments). 16 B. Issue Two: The ALJ’s Duty to Develop the Record. 17 1. 18 The claimant bears the burden of producing evidence to support a finding of 19 disability. See 42 U.S.C. § 423(d)(5)(A) (“An individual shall not be considered to 20 be under a disability unless he furnishes such medical and other evidence of the 21 existence thereof as the Commissioner of Social Security may require.”). The Code 22 of Federal Regulations further explains: Rules for Developing the Record. 23 [Y]ou have to prove to us that you are blind or disabled. You must 24 inform us about or submit all evidence known to you that relates to 25 whether or not you are blind or disabled. This duty is ongoing and 26 requires you to disclose any additional related evidence about which 27 you become aware. This duty applies at each level of the administrative 28 review process, including the Appeals Council level if the evidence 5 1 relates to the period on or before the date of the administrative law 2 judge hearing decision. We will consider only impairment(s) you say 3 you have or about which we receive evidence. 4 20 C.F.R. § 416.912(a) (version in effect from April 20, 2015 to March 26, 2017).1 5 Nevertheless, the ALJ has a “special duty to fully and fairly develop the record 6 and to assure that the claimant’s interests are considered.” Brown v. Heckler, 713 7 F.2d 441, 443 (9th Cir. 1983) (holding duty not met where ALJ proceeded without a 8 hearing). This duty, however, is “triggered only when there is ambiguous evidence 9 or when the record is inadequate to allow for proper evaluation of the evidence.” 10 Mayes v. Massanari, 276 F.3d 453, 459-60 (9th Cir. 2001); see also Agadzhanyan v. 11 Astrue, 357 F. App’x 148, 150 (9th Cir. 2009) (“The ALJ’s independent duty to 12 develop the record was not triggered, because he did not find any piece of evidence 13 to be ambiguous or difficult to interpret.”). When triggered, the ALJ “may discharge 14 this duty in several ways, including: subpoenaing the claimant’s physicians, 15 submitting questions to the claimant’s physicians, continuing the hearing, or keeping 16 the record open after the hearing to allow supplementation of the record.” 17 Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001). 18 2. 19 Plaintiff testified that he stopped working in 2013 because of depression and 20 because his employer of twenty-three years offered him a severance package. AR 21 10-13. When he applied for disability benefits, Plaintiff identified his physical 22 impairments as high blood pressure, familiar tremors, and back pain. AR 193. As 23 medical evidence of his back impairments, Plaintiff submitted: 24 The Medical Evidence of Plaintiff’s Physical Impairments. • 2012 and 2013 treating progress notes from Dr. Stewart (AR 280- 25 26 27 28 1 The Court applies the version of the regulations in effect when the ALJ issued his decision on August 18, 2015. AR 72. See Rose v. Berryhill, -- F. Supp. 3d --, 2017 WL 2562103 at n.3 (C.D. Cal. June 13, 2017). 6 1 311); 2 • An August 2013 lumbar spine x-ray (AR 287); and 3 • A September 2013 physical examination report by Dr. Pak of Pacific 4 Orthopedic Medical Group (AR 312-16). 5 Plaintiff was hospitalized from October 27 through November 4, 2014 for 6 heart surgery, including aortic valve replacement to address a history of congenital 7 aortic stenosis. AR 69, citing AR 379-82. Upon discharge, he was “advised to 8 progressively ambulate.” AR 382. Although months elapsed between his surgery 9 and the August 2015 hearing, Plaintiff does not point to any post-operative records 10 discussing his recovery or documenting his follow-up appointments. 11 At the hearing when asked what physical impairments interfere with his ability 12 to work, Plaintiff did not initially mention his heart surgery. AR 24. When asked 13 about it later, he testified that it, along with his mental health issues, cause him to be 14 short of breath. AR 25-26. He linked his difficulty lifting more than five pounds to 15 back pain. AR 26. 16 In September 2013, agency physician Dr. S. Brodsky, D.O., opined that 17 Plaintiff suffered from the severe physical impairment of “spinal disorder” but was 18 capable of the full range of medium exertion work. AR 42, 44-45. He specifically 19 commented, “No CE [consultative examination] is necessary.” AR 42. In April 20 2014, agency physician Dr. Teresita Cruz, M.D., again opined that Plaintiff could do 21 medium exertional work, but imposed further environmental restrictions due to his 22 history of asthma. AR 56-58. 23 The ALJ ultimately determined Plaintiff’s RFC consistent with the physical 24 abilities posited by Dr. Cruz, stating that he gave the opinions of both Drs. Brodsky 25 and Cruz “great weight.” AR 69. The ALJ reasoned that these opinions were entitled 26 to great weight because they were consistent with the evidence, specifically, 27 Plaintiff’s history of conservative treatment for his back pain and continuing ability 28 to perform household chores requiring exertional abilities. AR 69. 7 1 3. 2 Plaintiff argues that the ALJ “should have requested a consultative 3 examination to determine the severity of” Plaintiff’s degenerative disc disease and 4 history of aortic valve replacement, as well as what physical limitations stem from 5 those impairments. JS at 14. Analysis. 6 In the Joint Stipulation, Plaintiff does not argue that any evidence is 7 ambiguous. Rather, Plaintiff claims that the ALJ’s duty to develop the record was 8 triggered by the “limited” nature of the evidence concerning Plaintiff’s physical 9 impairments. JS at 14. Plaintiff does not develop an argument as to why the 10 evidence, however limited, was insufficient to evaluate Plaintiff’s claim of disability. 11 Instead, Plaintiff argues, “It would not have been that difficult to request a 12 consultative examination to determine plaintiff’s severe physical impairments, what 13 limitations stem from those impairments, and to determine whether plaintiff 14 meets/equals any listings.” JS at 15. 15 Plaintiff misplaces the burden of proving disability. Per the authorities 16 discussed above, Plaintiff bears the burden of producing evidence proving that he is 17 disabled. That burden does not shift to the ALJ even if it “would not have been that 18 difficult” for the ALJ to request more information. See Leitner v. Comm’r, 361 F. 19 App’x 876, 877 (9th Cir. 2010) (ALJ had no duty to order a consultative examination 20 because claimant “bears the burden” to establish disability). 21 Regarding his back pain, Plaintiff does not present any argument in the Joint 22 Stipulation concerning why the available records were insufficient to assess his 23 condition. 24 Regarding to his aortic surgery, Plaintiff points out that the State Agency 25 medical consultants rendered their opinions prior to his surgery, and their opinions 26 might have changed if they had considered Plaintiff’s medical records post-surgery. 27 JS at 16. Plaintiff, however, points to nothing in the record indicating that the surgery 28 was unsuccessful or caused any physical impairments likely to last a year or more. 8 1 Even after the Commissioner invited Plaintiff to explain what additional, relevant 2 evidence he thought the ALJ could have been obtained via a consultative 3 examination, Plaintiff did not do so. JS at 20 (rather than provide a reply, Plaintiff 4 merely “reiterate[d] his initial contentions”). 5 At his July 2015 hearing before the ALJ, knowing that the state agency 6 physicians had rendered their opinions prior to his surgery, Plaintiff did not request 7 a consultative examination concerning his physical issues. 8 represented, his counsel did not indicate that any further development was warranted 9 (AR 9), nor did he request that the record be held open after the hearing (AR 35-36). 10 This undercuts Plaintiff’s argument that the record before the ALJ was truly 11 insufficient. 12 13 Although he was In sum, Plaintiff has not demonstrated that any circumstances triggering the ALJ’s duty to further develop the record existed in this case. 14 IV. 15 CONCLUSION 16 17 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED. 18 19 Dated: October 30, 2017 _____________________________ __________________________ _ _ KAREN E. SCOTT E United States Magistrate Judge 20 21 22 23 24 25 26 27 28 9

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