Obed B. Quintero v. Nancy A. Berryhill

Filing 23

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. (See document for further details). (mr)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OBED B. QUINTERO, 12 Case No. EDCV 17-0435 SS Plaintiff, 13 v. 14 MEMORANDUM DECISION AND ORDER NANCY A. BERRYHIL,1 Acting Commissioner of the Social Security Administration, 15 16 Defendant. 17 18 19 I. 20 INTRODUCTION 21 22 Plaintiff Obed B. Quintero (“Plaintiff”) brings this action 23 seeking to overturn the decision of the Commissioner of the Social 24 Security 25 denying his application for Supplemental Security Income (“SSI”). Administration (the “Commissioner” or the "Agency") 26 27 28 Nancy A. Berryhill is now the Acting Commissioner of Social Security and is substituted for former Acting Commissioner Carolyn W. Colvin in this case. See Fed. R. Civ. P. 25(d). 1 1 (Dkt. No. 8). 2 March 13, 2017, Plaintiff filed a complaint (the “Complaint”) 3 commencing the instant action. 4 filed an Answer to the Complaint (the “Answer”). 5 The parties have consented to the jurisdiction of the undersigned 6 United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). 7 (Dkt. Nos. 12, 14). 8 the Commissioner is AFFIRMED. Alternatively, he asks for a remand. (Id.). (Id.). On On July 27, 2017, Defendant (Dkt. No. 19). For the reasons stated below, the decision of 9 10 II. 11 PROCEDURAL HISTORY 12 13 On August 29, 2013, Plaintiff filed an application for SSI 14 under 15 Plaintiff’s application alleges disability beginning on February 16 22, 2013 due to “major depression, pain in abdomen, fatigue, 17 prolonged symptoms such as blood in stool, knee and hip and back 18 pain, 19 application was denied both initially on January 10, 2014 and upon 20 reconsideration on March 14, 2014. Title [and] XVI. sleep (Administrative apnea.” (AR Record 75, (“AR”) 215). 75, 180). Plaintiff’s SSI (AR 103-06, 110-14). 21 22 On March 26, 2014, Plaintiff requested a hearing by an 23 Administrative Law Judge (“ALJ”). 24 place in Moreno Valley, California on August 27, 2015 with ALJ 25 Andrew Verne presiding. 26 Verne issued an unfavorable decision, finding Plaintiff able to 27 perform “a range of light work.” 28 Plaintiff requested review of the ALJ’s decision before the Appeals (AR 115-17). (AR 37-74). On October 28, 2015, ALJ (AR 16-36). 2 The hearing took On November 5, 2015, 1 Council. 2 Plaintiff’s request for review and the ALJ’s decision became the 3 final decision of the Commissioner. (AR 15). On January 26, 2017, the Appeals Council denied (AR 1-7). 4 5 6 III. 7 FACTUAL BACKGROUND 8 9 Plaintiff was born on June 29, 1964 and was 49 years old at 10 the alleged onset date of disability on August 29, 2013. 11 Plaintiff stopped working on that date. (AR 75). (AR 215). 12 13 A. Plaintiff’s Medical History2 14 15 On December 16, 2011, Plaintiff went to the Emergency Room at 16 Menifee Valley Medical Center. 17 bleeding, fleeting abdominal pain and feeling weak throughout his 18 body. 19 247 pounds. 20 feet. 21 and gallbladder disease with gallstones. 22 stated that he was not taking any medications. 23 reported smoking at least one pack of cigarettes per day. (AR 285). He complained of rectal The doctor noted Plaintiff weighed approximately (AR 285). (AR 315). (AR 285). Plaintiff’s height is approximately six The doctor also noted a history of hypertension (AR 285). Plaintiff (AR 286). He also (AR 24 25 26 27 28 Plaintiff also alleged mental impairments and other physical impairments. However, in his brief before this Court, Plaintiff only challenges the ALJ's consideration of treating physician Dr. Sharif's opinions. Accordingly, the Court limits the medical history discussion to that history which is relevant to Dr. Sharif's opinions. 2 3 1 286). 2 (AR 286). 3 assessed 4 hypertension, acute.” 5 the hypertension. 6 medication and gave Plaintiff instructions on hemorrhoids, high 7 blood pressure, and blood pressure medication. Plaintiff presented with a blood pressure of 201/104 mmHg. He also had visible hemorrhoids. Plaintiff with “hemorrhoidal (AR 287). (AR 287). (AR 286). bleeding, The doctor rectal; and Plaintiff received treatment for The doctor prescribed blood pressure (AR 287, 289-94). 8 9 On August 20, 2012, Plaintiff went to the Emergency Room at 10 Riverside County Regional Medical Center. 11 complained of chest pain, anxiety, blurry vision and fatigue. 12 393). 13 weeks earlier. 14 medication. (AR 370). Plaintiff (AR He reported he ran out of blood pressure medication two (AR 393). The doctor refilled his blood pressure (AR 395). 15 16 Plaintiff first sought treatment for knee and hip pain at the 17 Family Care Clinic at Riverside County Regional Medical Center on 18 November 16, 2012. 19 knee and hip. 20 right knee and hip. 21 for pain after Plaintiff stated he did not want a narcotic. 22 388, 390). (AR 388). (AR 388). He complained of pain in his right The doctor ordered x-rays of Plaintiff’s (AR 388). The doctor also prescribed tramadol (AR 23 24 On April 2, 2013, Plaintiff went to the Emergency Room at 25 Menifee Valley Medical Center. 26 in his right flank radiating from his back into his groin area. 27 (AR 28 hypertension. 297). The doctor (AR 297). noted (AR 297). a history He complained of pain of kidney stones and A CT scan revealed Plaintiff had a 5 mm 4 1 ureteral stone near mid pelvis on his right side. 2 doctor diagnosed Plaintiff with right ureterolithiasis and treated 3 him. (AR 298). The Radiology Report on Plaintiff’s CT scan further 4 concluded Plaintiff had colonic diverticula without inflammation, 5 multiple small kidney stones and gallbladder stones. 6 The doctor prescribed an antibiotic and Lortab and gave Plaintiff 7 instructions on the medications. (AR 298). The (AR 305-06). (AR 298, 307-10). 8 9 On April 18, 2013, Plaintiff went to the Emergency Room at 10 Menifee Valley Medical Center. 11 in his right flank area again. 12 him with a kidney stone on his right side. 13 treated him and discharged him. (AR 312). (AR 312). He complained of pain The doctor diagnosed (AR 313). The doctor (AR 313). 14 15 On April 22, 2013, Plaintiff sought treatment at the Family 16 Care Clinic at Riverside County Regional Medical Center. 17 Plaintiff complained of pain from kidney stones. 18 clinic prescribed medication. (AR 382). (AR 382). The (AR 383-87). 19 20 On April 30, 2013, Plaintiff went to the Family Care Clinic 21 at Riverside County Regional Medical Center. 22 had a follow-up visit since he was previously diagnosed with kidney 23 stones. 24 and psychiatric presentations were normal. 25 also ordered a sleep study and managed Plaintiff’s medications. 26 (AR 372). (AR 370). (AR 370). Plaintiff The doctor found Plaintiff’s musculoskeletal 27 28 5 (AR 371). The doctor 1 On May 15, 2013, Plaintiff sought treatment at the Family Care 2 Clinic at Riverside County Regional Medical Center. (AR 374). 3 Plaintiff complained of blood in his stool and fatigue. (AR 374). 4 The clinic refilled his medication. 5 ultrasounds of his bladder and pelvis as well as his abdomen. 6 410-11). 7 abnormal findings. 8 revealed an enlarged liver and gallbladder stones. (AR 376). He also underwent (AR The ultrasound of his bladder and pelvis revealed no (AR 410). The ultrasound of his abdomen (AR 411). 9 10 On June 4, 2013, Plaintiff went to the Family Care Clinic at 11 Riverside County Regional Medical Center. 12 refills of his pain and hypertension medications. (AR 365). 13 Plaintiff reported using an antidepressant. The doctor 14 noted 15 psychiatric findings. 16 medication but also changed his medications because he was not 17 experiencing renal issues. 18 underwent a sleep apnea assessment. 19 that Plaintiff has sleep apnea. Plaintiff was negative for (AR 366). (AR 365). joint He requested (AR 365). pain and had normal The doctor refilled Plaintiff’s (AR 367). On July 17, 2013, (AR 794). Plaintiff The test concluded (AR 794). 20 21 On July 9, 2013, Plaintiff went to the Emergency Room at 22 Riverside County Regional Medical Center. 23 a refill of his pain and hypertension medication. 24 doctor partially refilled Plaintiff’s medication but directed him 25 to follow up with his primary care provider. 26 noted lower back and hip pain. 27 medical summary was prepared by the Gastro-Enterology department. 28 (AR 363). (AR 353). (AR 353). He requested (AR 353). (AR 353). The The doctor On July 11, 2013, a In that summary, it was reported that Plaintiff smoked 6 1 a pack of cigarettes daily, used alcohol occasionally, and used 2 marijuana daily. 3 psychiatric evaluation, the doctor noted that Plaintiff stated he 4 "drank alcohol and used marijuana [after his divorce], as he had 5 when he was an older adolescent/young adult. Pt. denies a history 6 of other illicit drug use and reports he is not drinking more than 7 once or twice a month at this time." (AR 363). On an August 8, 2013 report for a (AR 360), 8 9 On July 15, 2013, Plaintiff went to the Emergency Room at 10 Riverside County Regional Medical Center. 11 of generalized weakness, depression, and having a reaction to 12 medication. 13 flat affect. 14 (“ECG”) 15 depression nonspecific. (AR 346). which He complained The notes describe Plaintiff as having a (AR 347). revealed (AR 346). The doctor ordered an echocardiogram sinus bradycardia and ST junctional (AR 347). 16 17 On September 3, 2013, Plaintiff saw Dr. Yi-Pin Cheng at 18 Riverside County Regional Medical Center. 19 requested pain pills for joint pain. 20 he normally receives 180 pills per month. 21 noted Plaintiff had chronic pain in his back, knee, and hip but 22 did not have saddle anesthesia. 23 "[e]ncourage exercise and lose weight." (AR 344). 24 partially prescriptions 25 hydrochlorothiazide, tramadol, and amlodipine. (AR 336). However, 26 Dr. Cheng advised Plaintiff he needed to return to his primary care 27 provider to obtain a full refill of his pain pills. renewed (AR 343). 7 Plaintiff Plaintiff claimed (AR 343). (AR 344). Plaintiff’s 28 (AR 336). Dr. Cheng Dr. Cheng wrote Dr. Cheng (AR 343). for Dr. 1 Cheng observed Plaintiff was properly oriented and displayed the 2 appropriate mood and affect. (AR 344). 3 4 On September 18, 2013, Plaintiff sought treatment at the 5 Family Care Clinic at Riverside County Regional Medical Center. 6 (AR 337). 7 been ongoing for the last six months. 8 reported a history of right knee pain resulting from an injury to 9 his ACL when he was 19 years old. He complained of rectal bleeding which he reported had (AR 337). (AR 337). Additionally, he Plaintiff also said 10 he felt “achy” and “heavy.” (AR 337). 11 clinic “normal 12 strength, 13 inspection.” 14 properly oriented, exhibited normal judgment and demonstrated “the 15 appropriate mood and affect.” (AR 339). The clinic found Plaintiff 16 was stable and noted "no need for admission based on symptoms and 17 vitals." 18 referred him to physical therapy, and continued his medication. 19 (AR 339). noted and Plaintiff stability (AR 338). (AR 339). had in all During this visit, the range of extremities motion, with no muscle pain on The clinic further noted Plaintiff was The clinic took an x-ray of Plaintiff’s knee, 20 21 The x-ray taken of Plaintiff’s knee on September 18, 2013 22 revealed no acute problems with the knee. 23 included three views of the knee. 24 knee was “unremarkable” but did state a joint effusion could not 25 be excluded based on the x-rays. (AR 409). (AR 409). The x-ray The doctor found the (AR 409). 26 27 On March 25, 2014, Plaintiff completed a physical therapy 28 questionnaire for Cure Physical Therapy and Wellness Center (“Cure 8 1 PT”). 2 489). 3 wrist pain. 4 when did your current complaints start?" Plaintiff wrote "Approx. 5 1 yr. ago." 6 through July 30, 2014 for a total of thirteen sessions. 7 503). (AR 488). He was referred to Cure PT by Dr. Sharif. (AR Plaintiff complained of back, hip, right knee and right (AR 488). (AR 488). In response to the question "Approximately He attended physical therapy from March 25 (AR 489- 8 9 On July 9, 2014, Plaintiff underwent an x-ray of his abdomen 10 and an ultrasound of his kidneys. 11 the results of the x-ray showed “[m]ild degenerative changes of 12 the bilateral hips and pubic symphysis” but were non-definitive 13 regarding kidney stones. 14 of the ultrasound were most compatible with nonobstructing left 15 renal stones. (AR 616-17). (AR 617). The doctor found The doctor found the results (AR 616). 16 17 On July 18, 2014, Plaintiff underwent an x-ray of his right 18 shoulder. 19 osteophyte". 20 a physical therapy questionnaire for Cure PT. 21 complained of right shoulder pain. (AR 504). He stated his current 22 complaint started one month prior. 23 therapy for his right shoulder from September 8 through December 24 19, 2014 for a total of 9 visits. (AR 612). (AR 612). The x-ray revealed "inferior acromial On September 8, 2014, Plaintiff completed (AR 504). (AR 504). He He attended physical (AR 505-13). 25 26 On October 16, 2014, Plaintiff underwent an x-ray of his 27 lumbar spine. (AR 595). 28 changes L4-5 at Three views revealed mild osteoarthritic including disc 9 height loss and mild 1 anterolisthesis. 2 levoscoliosis of the lumbar spine centered at L3. (AR 595). The x-rays also revealed mild (AR 595). 3 4 On January 15, 2015, Plaintiff had an initial evaluation for 5 physical therapy at "Cure PT". (AR 514). 6 PT by Dr. Sharif. He complained of lower back pain. 7 (AR 514). 8 19 years old but that it began to increase 2 years ago. 9 He attended physical therapy for his lower back from January 15 10 (AR 515). He was referred to Cure He reported he had experienced this pain since he was through May 1, 2015 for a total of 9 visits. (AR 514). (AR 522). 11 12 On March 5, 2015, Plaintiff underwent an x-ray of his right 13 hip. 14 584). (AR 584). The x-ray impression was "normal right hip". (AR 15 16 On May 12, 2015, Plaintiff received an injection to his right 17 hip to help alleviate pain. 18 recommendation for physical therapy for his right hip. 19 On 20 questionnaire for "Cure PT". 21 lower back pain. (AR 523). The physical therapist felt Plaintiff’s 22 right hip should be the focus of treatment because of possible 23 bursitis. 24 therapy for his right hip on June 25, 2015 with 25 treatment to last for four weeks with two visits per week. 26 524). The physical therapist observed that Plaintiff had treatment 27 with the "Cure" facility previously, which "[Plaintiff] notes has 28 provided good relief." June 25, 2015, (AR 524). (AR 570-72). Plaintiff completed (AR 523). He also received a a (AR 573). physical therapy He complained of hip and Plaintiff’s record shows he started physical (AR 524). 10 recommended (AR 1 B. Treating Physician Opinion 2 3 On June 26, 2015, Plaintiff’s treating physician, Dr. Subhi 4 Sharif, filled out a medical opinion form related to Plaintiff’s 5 physical ability to do work-related tasks. 6 that Plaintiff can occasionally lift ten pounds or less. 7 663). 8 two hours and can sit for less than two hours during an eight-hour 9 day with normal breaks. (AR 663-65). He stated (AR He indicated that Plaintiff can stand and walk for less than (AR 663). Dr. Sharif further qualified 10 that Plaintiff can only stand for ten minutes and sit for fifteen 11 minutes before needing to alter position to relieve discomfort. 12 (AR 663). 13 fifteen minutes and he needs to be able to alternate freely between 14 sitting and standing. 15 Plaintiff would need to lie down “several times a day” during 16 working hours. 17 only occasionally twist, stoop, crouch, and climb stairs and can 18 never climb ladders. 19 handle, feel, and push/pull are impaired. 20 to finger or use fine manipulation is not impaired. 21 has no restriction on exposure to wetness. 22 avoid even moderate exposure to humidity, noise, and fumes, odors, 23 dusts, gases, poor ventilation, etc. 24 that Plaintiff would miss work more than three times a month as a 25 result of his impairments. 26 Plaintiff must avoid all exposure to extreme cold and heat and 27 hazards such as machinery and heights. He stated that Plaintiff needs to walk around every (AR 664). (AR 664). Dr. Sharif also indicated According to Dr. Sharif, Plaintiff can (AR 664). Plaintiff’s ability to reach, (AR 664). His ability (AR 664). (AR 665). (AR 665). He He needs to Dr. Sharif opined Finally, Dr. Sharif believes that 28 11 (AR 665). 1 Dr. Sharif found all of these restrictions were based on 2 Plaintiff’s “significant bone degeneration[,] the slipped disks in 3 vertebrae[,] arthritis in spine[, and] pain (chronic).” 4 Additionally, Dr. Sharif stated Plaintiff has depression which 5 causes anxiety and his chronic pain restricts him from working. 6 (AR 665). Dr. Sharif is a general practitioner. (AR 664). (AR 559). 7 8 C. State Agency Doctors 9 10 1. Initial Level Residual Assessment 11 12 On January 9, 2014, State Agency Medical Consultant Dr. A. 13 Wong completed the Residual Assessment of Plaintiff. 14 For the physical limitations assessment, Dr. Wong found Plaintiff 15 can occasionally lift 50 pounds and can frequently lift 25 pounds. 16 (AR 83). 17 6 hours in an 8-hour work day and can sit for about 6 hours in an 18 8-hour workday. 19 and/or pull subject to the lifting limitations. 20 found 21 frequently climb ramps, ladders and stairs, balance, stoop, kneel, 22 crouch 23 manipulative, visual, communicative or environmental limitations. 24 (AR 84). (AR 75-84). Dr. Wong also found Plaintiff can stand and/or walk about (AR 83). Plaintiff’s and crawl. Dr. Wong found the Plaintiff can push postural (AR limitations 83-84). 25 26 27 28 12 Dr. were Wong (AR 83). such did Dr. Wong that not he find can any 1 2. Reconsideration Level Residual Assessment 2 3 On March 13, 2014, State Agency Medical Consultant Dr. Mazuryk 4 completed 5 reconsideration level. 6 had the same exertional limitations as the initial level Residual 7 Assessment except that Plaintiff could only occasionally lift 20 8 pounds and frequently lift 10 pounds. 9 that Plaintiff can sit, stand and walk about 6 hours in an 8-hour the Residual Assessment (AR 88-101). of Plaintiff at the Dr. Mazuryk found Plaintiff (AR 97). Dr. Mazuryk found 10 work day. 11 Mazuryk 12 ladders and stair, balance, stoop, kneel, crouch and crawl. 13 97). 14 limitations. 15 limitations. 16 avoid concentrated exposure to extreme cold, vibration, and hazards 17 such as machinery and heights. 18 that Plaintiff needed to avoid cold and vibration because it could 19 exacerbate his pain. (AR 98). Dr. Mazuryk further stated Plaintiff 20 should avoid uneven terrain because it might cause his right knee 21 might to become unstable. (AR 97). found For Plaintiff’s postural limitations, Dr. Plaintiff could only occasionally climb ramps, (AR Dr. Mazuryk found no manipulative, visual or communicative (AR 97). However, Dr. Mazuryk did find environmental (AR 97). Dr. Mazuryk stated Plaintiff needed to (AR 98). Dr. Mazuryk explained (AR 98). 22 23 Overall, the State Agency doctors at the reconsideration level 24 found Plaintiff was not disabled and had the residual functional 25 capacity to perform light work. 26 Plaintiff could perform some of his past relevant work. 27 100). 28 (AR 94, 100). 3 13 Dr. Mazuryk found (AR 99- 1 D. Orthopedic Consultant 2 3 Dr. Vicente R. Bernabe, a board certified orthopedic surgeon, 4 examined Plaintiff on December 13, 2013. 5 reported low back, right hip and right knee pain. 6 stated he “tore his right knee” when he was 19 but did not have 7 surgery to repair it and has experienced pain since then. 8 418). 9 medications (AR 418-23). Plaintiff (AR 418). He (AR He also stated his current treatment only involved pain including Tramadol. (AR 418). He reported 10 occasionally using a cane but not a knee brace. 11 doctor further noted Plaintiff’s family history included his father 12 having “arthritis and bone and joint disease.” (AR 418). The (AR 419). 13 14 Dr. Bernabe concluded Plaintiff had “lumbar musculoligamentus 15 strain, 16 trochanteric bursitis of the right hip.” 17 observed Plaintiff could walk without a cane and perform a fifty 18 percent squat. 19 at the lumbosacral region” and observed a paravertebral muscle 20 spasm on Plaintiff’s left side. 21 leg raise test returned negative results bilaterally both in the 22 seated position to 90 degrees and the supine position. 23 Plaintiff’s right shoulder had the same range of motion as his left 24 shoulder. 25 test. 26 no instability. 27 Bernabe palpated his right hip along the greater trochanter area. 28 (AR 421). internal derangement (AR 419). (AR 420). (AR 420). of the right knee, and (AR 422). greater The doctor The doctor found Plaintiff was “tender (AR 420). However, the straight- (AR 420). He also had a negative cross arm adduction The doctor found Plaintiff’s right shoulder had (AR 420). Plaintiff experienced pain when Dr. However, the doctor found Plaintiff’s range of motion 14 1 in both hips was within normal limits. 2 had 1+ effusion and tenderness at the medial patella femoral joint 3 line 4 Plaintiff’s right knee ligament appeared to be stable. with crepitus. (AR 421). (AR 421). However, His right knee the doctor found (AR 421). 5 6 Dr. Bernabe took two radiological views of Plaintiff’s lumbar 7 spine, right knee and right hip each. 8 lumbar spine revealed straightening of the lumbar lordosis. 9 422). However, Plaintiff’s (AR 422). intervertebral The views of the disc spaces (AR were 10 preserved and there was no compression fracture or dislocation. 11 (AR 422). 12 422). 13 (AR 422). The views of the right knee showed no findings. (AR The views of the right hip also resulted in no findings. 14 15 Dr. Bernabe completed a functional assessment of Plaintiff. 16 (AR 422). 17 occasionally and 25 pounds frequently. 18 limitations on Plaintiff’s pushing and pulling abilities. 19 422). 20 out of an eight-hour work day. 21 Plaintiff can sit for six hours out of an eight-hour work day. 22 422). 23 crouch frequently and can walk on uneven terrain, climb ladders 24 and work at heights frequently. He opined that Plaintiff can lift and carry 50 pounds (AR 422). He found no (AR He opined that Plaintiff can walk and stand for six hours (AR 422). He further opined that (AR He also found Plaintiff can bend, kneel, stoop, crawl and (AR 422). 25 26 27 28 15 1 IV. 2 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 3 4 To qualify for disability benefits, a claimant must 5 demonstrate a medically determinable physical or mental impairment 6 that prevents him from engaging in substantial gainful activity3 7 and that is expected to result in death or to last for a continuous 8 period of at least twelve months. Reddick v. Chater, 157 F.3d 715, 9 721 U.S.C. (9th Cir. 1998)(citing 42 § 423(d)(1)(A)). The 10 impairment must render the claimant incapable of performing the 11 work he previously performed and incapable of performing any other 12 substantial gainful employment that exists in the national economy. 13 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(citing 42 14 U.S.C. § 423(d)(2)(A)). 15 16 To decide if a claimant is entitled to benefits, an ALJ 17 conducts a five-step inquiry. 18 steps are: 20 C.F.R. §§ 404.1520, 416.920. The 19 20 (1) Is the claimant presently engaged in substantial gainful 21 activity? If so, the claimant is found not disabled. 22 not, proceed to step two. 23 (2) 24 Is the claimant’s impairment severe? is found not disabled. 25 (3) If If not, the claimant If so, proceed to step three. Does the claimant’s impairment meet or equal one of a list 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. 3 16 1 of specific impairments described in 20 C.F.R. Part 404, 2 Subpart P, Appendix 1? 3 disabled. 4 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? 5 so, the claimant is found not disabled. 6 If step five. 7 (5) If not, proceed to Is the claimant able to do any other work? 8 claimant is found disabled. 9 If not, the not disabled. If so, the claimant is found 10 11 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 12 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b) – 13 404.1520(f)(1) & 416.920(b) – 416.920(f)(1). 14 15 The claimant has the burden of proof at steps one through 16 four, and the Commissioner has the burden of proof at step five. 17 Bustamante, 262 F.3d at 953-54. 18 affirmative duty to assist the claimant in developing the record 19 at every step of the inquiry. 20 claimant meets his burden of establishing an inability to perform 21 past work, the Commissioner must show that the claimant can perform 22 some 23 national economy, taking into account the claimant’s residual 24 functional 25 Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at 721; 20 other work that capacity,4 exists age, Additionally, the ALJ has an Id. at 954. in If, at step four, the “significant education, and numbers” work in the experience. 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). 4 17 1 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1) (2017). 2 may do so by the testimony of a vocational expert or by reference 3 to the Medical-Vocational Guidelines appearing in 20 C.F.R. Part 4 404, 5 Osenbrock v. Apfel, 240 F.3d 1157, 1162 (9th Cir. 2001). 6 claimant has both exertional (strength-related) and nonexertional 7 limitations, the Grids are inapplicable and the ALJ must take the 8 testimony of a vocational expert. 9 869 (9th Cir. 2000)(citing Burkhart v. Bowen, 856 F.2d 1335, 1340 10 Subpart P, Appendix 2 (commonly known The Commissioner as “the Grids”). When a Moore v. Apfel, 216 F.3d 864, (9th Cir. 1988)). 11 12 V. 13 THE ALJ’S DECISION 14 15 The ALJ used the above five-step process and found Plaintiff 16 was not disabled according to the Social Security Act. 17 31). 18 substantial gainful activity from the application date of August 19 29, 2013. 20 following severe impairments: (AR 19- At step one, the ALJ found Plaintiff had not engaged in 21 (AR 21). At step two, the ALJ found Plaintiff had “pain in the hip, knees, and back; lumbar musculoligamentous strain; internal derangement of the right knee; and greater trochanteric bursitis of the right hip.” 22 23 24 (AR 21). The ALJ further found Plaintiff’s hemorrhoids with rectal 25 bleeding, hypertension and depressive disorder with anxiety were 26 nonsevere impairments. (AR 21-23). 27 28 18 1 At step three, the ALJ found Plaintiff’s impairments did not 2 meet or medically equal in whole or in part any of the specific 3 impairments as required under this step of the process. 4 Next, the ALJ determined Plaintiff’s residual functional capacity 5 for use in steps four and five. 6 Plaintiff 7 exceptions: had the RFC to (AR 25-31). perform light work (AR 24). The ALJ found with certain 8 9 10 11 12 13 14 15 “the claimant can lift and/or carry 20 pounds occasionally and 10 pounds frequently; he can stand and/or walk for six hours out of an eighthour work day with regular breaks; he can sit for six hours out of an eight-hour workday with regular breaks; he can occasionally climb ramps and stairs; he can occasionally climb ladders, ropes, and scaffolds, stoop, balance, kneel, crouch, and crawl; he is precluded from concentrated exposure to extreme cold, wetness, vibration, uneven terrain and hazards including machinery and unprotected heights.” (AR 25). 16 17 Based on this residual functional capacity, at step four the 18 ALJ found Plaintiff is capable of performing some of his past 19 relevant work. 20 disabled under the Social Security Act. (AR 30). Thus, the ALJ found Plaintiff was not (AR 31). 21 22 23 VI. STANDARD OF REVIEW 24 25 Under 42 U.S.C. § 405(g), a district court may review the 26 Commissioner’s decision to deny benefits. 27 the Commissioner’s decision when the ALJ’s findings are based on 28 legal error or are not supported by substantial evidence in the 19 The court may set aside 1 record as a whole. 2 2014)(citing Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1052 3 (9th Cir. 2006); Auckland v. Massanari, 257 F.3d 1033, 1035 (9th 4 Cir. 2001)(citing Tackett, 180 F.3d at 1097); Smolen v. Chater, 80 5 F.3d 1273, 1279 (9th Cir. 1996)(citing Fair v. Bowen, 885 F.2d 597, 6 601 (9th Cir. 1989)). Garrison v. Colvin, 759 F.3d 995 (9th Cir. 7 8 9 “Substantial evidence is more than a scintilla, but less than a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 10 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 11 evidence which a reasonable person might accept as adequate to 12 support a conclusion.” 13 Smolen, 14 evidence supports a finding, the court must “‘consider the record 15 as a whole, weighing both evidence that supports and evidence that 16 detracts from the [Commissioner’s] conclusion.’” Auckland, 257 F.3d 17 at 1035 (citing Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). 18 If 19 reversing 20 judgment for that of the Commissioner. 21 21 (citing Flaten v. Sec’y, 44 F.3d 1453, 1457 (9th Cir. 1995)). the 80 F.3d at evidence that can It is “relevant Id. (citing Jamerson, 112 F.3d at 1066; 1279). To determine reasonably conclusion, the support court may whether either not substantial affirming substitute or its Reddick, 157 F.3d at 720- 22 23 VII. 24 DISCUSSION 25 26 Plaintiff contends the ALJ failed to properly consider the 27 opinion of treating physician, Subhi Sharif, M.D. 28 Support Of Plaintiff’s Complaint (“MSC”), Dkt. No. 21, at 2-6). 20 (Memorandum In 1 Specifically, Plaintiff argues that “the ALJ failed to provide 2 specific and legitimate reasons supported by substantial evidence 3 for rejecting” Dr. Sharif’s opinion. (Id. at 4). 4 5 The Court disagrees with Plaintiff’s contentions. The ALJ 6 provided specific and legitimate reasons supported by substantial 7 evidence for rejecting Dr. Sharif’s opinion. 8 ALJ’s decision must be AFFIRMED. Accordingly, the 9 10 The ALJ Provided Specific And Legitimate Reasons To Reject 11 Plaintiff’s Treating Doctor’s Opinion 12 13 14 15 As a matter of law, the greatest weight is accorded to the claimant's treating physician. 1160-61 (9th Cir. 2014). Ghanim v. Golvin, 763 F.3d 1154, The opinions of treating physicians are 16 17 18 entitled to special weight because the treating physician is hired to cure and has a better opportunity to know and observe the 19 claimant as an individual. 20 a treating or examining physician’s opinion is not contradicted by 21 another 22 convincing” reasons. 23 24 physician, (9th Cir. 2017). it may Id. Further, as a general rule, when be rejected for “clear and See Trevizo v. Berryhill, 871 F.3d 664, 675 The ALJ can meet this burden by setting forth a detailed and thorough summary of the facts. 25 26 only 675. 27 28 21 Trevizo, 871 F.3d at 1 2 3 4 5 6 7 When a treating or an examining physician’s opinion is contradicted by another doctor, it may only be rejected if the ALJ provides “specific and legitimate” reasons supported by substantial evidence in the record. See Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014); see also Orn v. Astrue, 495 F.3d 625, 633 (9th Cir. 2007). 8 Here, Consultative Examiner Vincente Bernabe, D.O., and the 9 10 State Agency Medical Consultants contradicted treating doctor 11 Sharif’s opinion. 12 23). 13 at most, and can sit, stand, and walk 2 hours in an 8-hour day. 14 (AR 663). 15 Medical Consultants opined Plaintiff can lift and carry at least 16 20 pounds occasionally, and can sit, stand, and walk 6 hours in an 17 8-hour day. 18 opinions, the ALJ is required to provide “specific and legitimate” 19 reasons for rejecting Dr. Sharif’s opinion. (Compare AR 663-65 with AR 82-84, 96-98 and 418- Dr. Sharif opined that Plaintiff can lift and carry 10 pounds Consultative examiner Dr. Bernabe and the State Agency (AR 83, 97, and 422). Because of the conflicting 20 The Court finds that the ALJ provided specific and legitimate 21 22 reasons supported 23 Sharif’s opinion. 24 summarized the objective medical evidence prior to assigning weight 25 to the opinions of the physicians. 26 Dr. 27 legitimate reasons. Sharif’s by substantial evidence for rejecting Dr. Specifically, in the written decision, the ALJ opinion, the ALJ 28 22 In assigning little weight to provided three specific and 1 First, the ALJ explained that Dr. Sharif’s opinion is “grossly 2 [inconsistent] with the x-rays contained in the record, which 3 revealed no more than mild findings.” (AR 29). There is sufficient 4 evidence in the record to support the ALJ’s determination. 5 regard to Plaintiff’s hip, x-rays taken in 2013 and 2015 both 6 revealed a “Normal right hip.” 7 of plaintiff’s right knee taken in September and December 2013 8 revealed unremarkable findings. 9 rays performed of his right shoulder, which revealed that he had 10 “inferior acromial osteophyte,” but there is no evidence that 11 Plaintiff received more than routine physical therapy treatment 12 for any shoulder pain. 13 lumbar spine also yielded unremarkable findings. 14 2013 revealed that Plaintiff had a “straightening of the lumbar 15 lordosis” but his lumbar spine was otherwise normal. 16 X-rays taken on October 16, 2014 revealed that Plaintiff had only 17 mild osteoarthritic changes and mild levoscoliosis. 18 These 19 Sharif’s extremely limiting opinions. 20 results are a specific and legitimate reason for rejecting Dr. 21 Sharif’s opinion. largely (AR 422, 584). (AR 409, 422). (AR 612). unremarkable x-ray With Similarly, x-rays Plaintiff had x- Finally, X-rays of Plaintiff’s results do X-rays taken in not (AR 422). (AR 595). support Dr. Accordingly, the x-ray 22 23 Second, the ALJ rejected Dr. Sharif’s opinion because it was 24 “inconsistent with the general benign findings from the orthopedic 25 consultative examination.” 26 is not a specific and legitimate reason because the ALJ gave little 27 weight 28 Plaintiff’s argument lacks merit because the ALJ did not reject to the consultative (AR 29). Plaintiff argues that this examiner’s 23 opinion. (MSC at 6). 1 Dr. Sharif’s opinion based on the consultative examiner’s opinion. 2 Instead, the ALJ found that Dr. Sharif’s opinion was inconsistent 3 with the “benign findings” of the consultative examination. 4 29). There is sufficient evidence in the record to support the 5 ALJ’s determination. 6 physical examination, which reflected that Plaintiff was in “no 7 acute or chronic distress.” (AR 419). 8 not use a brace. Although Plaintiff claims to use a 9 cane, it is “not medically necessary.” The consultative (AR 418). examiner (AR performed a Further, Plaintiff does (AR 419). The consultative 10 examiner observed plaintiff ambulate without a cane and walked 11 unassisted. 12 extremities was largely unrevealing. 13 mentioned above, the consultative examiner performed x-rays of 14 Plaintiff’s lumbar spine, right knee, and right hip, which all 15 yielded unremarkable findings. 16 do 17 Accordingly, the benign findings of the consultative examination 18 are a specific and legitimate reason for rejecting Dr. Sharif’s 19 more limiting opinion. not (AR 419). support Dr. The examination of Plaintiff’s spine and (See AR 420-21). Finally, as (AR 422). Sharif’s These benign findings extremely limiting opinions. 20 21 Third, the ALJ wrote that it appears Dr. Sharif was 22 "sympathetic" 23 “supported by the longitudinal treatment notes.” 24 Plaintiff 25 "sympathetic" 26 treating doctor, Plaintiff overlooks the entire reason provided by 27 the ALJ. to Plaintiff challenges to the Plaintiff as Dr. ALJ's as Sharif's comment an opinions that improper are (AR 29). Dr. basis While Sharif to not was reject a The ALJ expressly stated that the "longitudinal treatment 28 24 1 notes" do not support the degree of limitation suggested by the 2 treating doctor. 3 4 Reliance upon the longitudinal treatment notes -- essentially 5 the totality of Plaintiff's treatment history -- was a specific 6 and legitimate reason to reject Dr. Sharif's extremely limiting 7 opinion. 8 physical capability, Dr. Sharif did not distinguish any of the 9 treatment When completing the questionnaire regarding Plaintiff’s notes or contrary test results to explain his 10 determinations. 11 the reason for the limitations. 12 treatment notes show that Plaintiff received physical therapy and 13 pain 14 themselves fail to support the degree of limitation suggested by 15 Dr. Sharif. 16 was a specific and legitimate reason for rejecting Dr. Sharif’s 17 opinion. medication Instead, Dr. Sharif repeatedly listed “pain” as for his (See AR 664-65). symptoms, but the The longitudinal treatment notes Accordingly, the conflict with the treatment record 18 \\\ 19 \\\ 20 \\\ 21 \\\ 22 \\\ 23 \\\ 24 \\\ 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: December 5, 2017 11 /S/ 12 SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS OR ANY OTHER LEGAL DATABASE. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 26

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