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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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
E
United States Magistrate Judge

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