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