Kenneth Flees v. Commissioner of Social Security
MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. The decision of the Social Security Commissioner is AFFIRMED and this case is dismissed with prejudice. (es)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Case No. SA CV 19-02059-DFM
MEMORANDUM OPINION AND
ANDREW M. SAUL, Commissioner
of Social Security,
Kenneth F. (“Plaintiff”) applied for Social Security Disability Insurance
Benefits and Supplemental Security Income in 2016, alleging disability
beginning August 2, 2015. See Dkt. 17-2, Administrative Record (“AR”) 4950, 61-62, 73-74.1 After being denied, see AR 77-81, Plaintiff received a
hearing before an Administrative Law Judge (“ALJ”) that took place on
September 11, 2018. See AR 31-48.
The Court partially redacts Plaintiff’s name in compliance with Federal
Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the
Committee on Court Administration and Case Management of the Judicial
Conference of the United States.
Additionally, all citations to the AR are to the record pagination. All
other docket citations are to the CM/ECF pagination.
The ALJ issued an unfavorable decision dated October 24, 2018. See AR
15-25. The ALJ followed the five-step sequential evaluation process for
determining whether an individual is disabled. At step one, the ALJ found that
Plaintiff had not engaged in substantial gainful activity since the alleged onset
date through his date last insured of December 31, 2020. See AR 17. At step
two, the ALJ determined that Plaintiff had the severe impairments of “cervical
spine degenerative disc disease without myelopathy; lumbar spine degenerative
disc disease; left knee internal derangement; and history of hearing loss.” Id.
At step three, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See AR 19.
Before reaching step four, the ALJ determined that Plaintiff had the
residual functional capacity (“RFC”) to perform light work with additional
limitations: he could lift, carry, push, or pull up to 20 pounds occasionally and
10 pounds frequently; stand or walk for 4 hours and sit for 6 hours out of an 8hour workday; frequently climb ramps or stairs; occasionally climb ladders,
ropes, or scaffolds; frequently balance, stoop, kneel, and crouch; occasionally
crawl; frequently have exposure to unprotected heights and uneven terrain;
frequently push or pull with his upper extremities; and work with no more than
a moderate noise level. See AR 20. At step four, the ALJ found that Plaintiff
could perform his past relevant work as an operations manager (Dictionary of
Occupational Titles or “DOT” 183.117-010) and chief security guard (DOT
372.167-014). See AR 24. Accordingly, the ALJ denied benefits. See AR 25.
The Appeals Council denied review of the ALJ’s decision, which
became the final decision of the Commissioner. See AR 1-3. This action
followed. See Dkt. 1.
A district court will set aside a denial of Social Security benefits only if
the decision “contains legal error or is not supported by substantial evidence.”
Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008) (citations omitted).
“Substantial evidence means more than a mere scintilla, but less than a
preponderance. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Desrosiers v. Sec’y of Health &
Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citations and internal
quotation marks omitted). The substantial evidence threshold “is not high”
and “defers to the presiding ALJ, who has seen the hearing up close.” Biestek
v. Berryhill, 139 S. Ct. 1148, 1154, 1157 (2019). “Where evidence is
susceptible to more than one rational interpretation, it is the ALJ’s conclusion
that must be upheld.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). A
court may affirm the ALJ’s decision even if the ALJ made an error, so long as
the error was harmless, meaning it was “inconsequential to the ultimate
nondisability determination.” Tommasetti, 533 F.3d at 1038 (citation omitted).
The parties dispute whether the ALJ erred in (1) weighing the medical
opinion evidence and (2) determining that Plaintiff did not have any severe
mental impairments. See Dkt. 18, Joint Stipulation (“JS”) at 13.
Plaintiff argues that the ALJ erred in giving limited weight to the
medical opinion of his treating physician, Dr. Gayle Hopper. See JS at 13-20.
“Generally, the opinion of a treating physician must be given more
weight than the opinion of an examining physician, and the opinion of an
examining physician must be afforded more weight than the opinion of a
reviewing physician.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th Cir. 2014).
Nevertheless, the ALJ need not accept the opinion of a treating physician. An
ALJ may disregard a treating physician’s opinion by giving “clear and
convincing” reasons if the opinion is uncontroverted, or for “specific and
legitimate reasons” is the opinion is controverted. Ford v. Saul, 950 F.3d 1141,
1154 (9th Cir. 2020) (citation omitted).
In January 2017, Plaintiff sought primary care from Dr. Hopper.
Plaintiff’s chief complaint was pain in his neck and headaches. See AR 448.
Dr. Hopper advised Tizanidine, heat, range of motion exercises, low impact
activities, and no heavy lifting, prolonged lying, sitting, or standing. See AR
451. In March 2017, Dr. Hopper issued a “Physical Assessment,” in which she
opined, among other things, that Plaintiff could neither sit for more than 30
minutes nor stand or walk for more than 30 minutes in an 8-hour workday,
needed constant breaks, could never lift anything 20 pounds or heavier, and
would be absent from work more than 4 times a month. See AR 316-17. In
April 2017, Dr. Hopper noted that an X-Ray of Plaintiff’s knees showed
degenerative changes consistent with arthritis, and the X-Ray of his lower back
showed straightening of curvature consistent with muscle spasm. See AR 319.
In May 2017, Dr. Hopper assessed low back pain and referred Plaintiff to an
orthopedist. See AR 354. In January 2018, Dr. Hopper again assessed low
back pain and knee pain and advised Plaintiff to change position often and to
not engage in prolonged lying, sitting, or standing. See AR 453-56. Later visits
in 2018 were similar, with Dr. Hopper recommending that Plaintiff change
positions often. See AR 540, 544.
Because Dr. Hopper’s opinions were contradicted by the reports of the
consultative examiner, the ALJ could reject her opinion by giving “specific and
legitimate reasons” for doing so. Ford, 950 F.3d at 1154. The ALJ discounted
Dr. Hopper’s opinion because her RFC assessment provided “minimal
objective findings to support the rather restrictive work limitations.” AR 23.
This is a specific and legitimate reason, supported by substantial evidence in
the record. Indeed, Dr. Hopper’s January 2017 examination of Plaintiff was
unremarkable, with recommendations that Plaintiff try heat, range of motion
exercises, low impact activities such as biking, and to change positions often.
See AR 451. But just two months later, Dr. Hopper opined, without any
additional findings, that Plaintiff could neither sit for more than 30 minutes
nor stand or walk for more than 30 minutes in an 8-hour workday, could never
lift 20 pounds or more, and would be absent from work more than 4 times a
month. See AR 316-17. “The ALJ need not accept the opinion of any
physician, including a treating physician, if that opinion is brief, conclusory,
and inadequately supported by clinical findings.” Ford, 950 F.3d at 1154
Plaintiff contends that the ALJ ignored Dr. Hopper’s repeated and
consistent recommendation that he avoid prolonged sitting, walking, and
standing. But as the Commissioner correctly notes, the medical source
statement that Plaintiff relies on was dated March 23, 2017, and the treatment
records to which Plaintiff cites were created after that statement was made. See
AR 316-17 (Physical Assessment); 319 (April 2017), 358 (May 2017), 455
(January 2018), 536 (August 2018), 540 (June 2018), 544 (June 2018). In any
event, none of the treatment records to which Plaintiff cites substantiate Dr.
Hopper’s significant limitations. Plaintiff does not explain, for example, how a
recommendation that he should change positions often necessitates sitting,
standing, and walking restrictions at a less than sedentary level. It is also hard
to square Dr. Hopper’s opined limitations with her recommendation that
Plaintiff exercise for an hour each day and engage in various activities, such as
yoga, Pilates, biking, and swimming. See AR 451.
The ALJ also stated that the objective evidence did not support Dr.
Hopper’s upper extremity limitations. See AR 23. This reason was likewise
supported by substantial evidence. Dr. Hopper opined that Plaintiff had
limitations in doing repetitive reaching, handling, or fingering, and indicated
that Plaintiff could spend 80% of an 8-hour workday doing fine and gross
manipulation and reaching. See AR 316. But there are no electrodiagnostic
findings that would support such limitations and Plaintiff’s neurological
examinations throughout the relevant period were unremarkable. In response,
Plaintiff merely notes that these “minor manipulative limitations” are “less
significant to this matter” than the other exertional limitations. JS at 16. Even
if so, the fact that Dr. Hopper’s opinion was inconsistent with the medical
records and had little support in the clinical findings provided a valid reason to
reject it. See Tomasetti, 533 F.3d at 1041 (inconsistency with medical record);
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (inadequate support in
clinical findings). Additionally, Dr. Hopper’s upper extremity limitations were
contradicted by the findings of the consultative examiner, Dr. Azizollah
Karamlou, who found that Plaintiff had a grip strength of 80 pounds with each
hand. See AR 391; Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001)
(examining physician’s opinion constitutes substantial evidence where it rests
on independent examination of claimant).
Separate from Dr. Hopper, Plaintiff argues that the ALJ erred in
assigning any weight to the opinion of Dr. Karamlou, who opined that
Plaintiff had the capacity to perform a range of light exertional work. See AR
23, 393-400. The ALJ gave significant weight to the opinion of Dr. Karamlou
because her restrictions were “generally consistent with the evidence at the
hearing level,” she had the opportunity to examine Plaintiff in person, and her
findings were “consistent with her medical opinion regarding the claimant’s
exertional and postural limitations.” AR 23.
Plaintiff objects that Dr. Karamlou’s opinion was made without the
benefit of subsequent diagnostic imaging and Dr. Eric Lin’s notation that
Plaintiff required cervical spine fusion surgery. See JS at 15. While that is true,
the two opinions are not inconsistent. Dr. Lin did recommend surgery, but his
physical examination was mostly normal, with findings of no radiating arm
pain, a negative straight leg raise test, normal reflexes, and 5/5 strength in the
upper extremities. See AR 548, 551. And the June 2018 MRI that Plaintiff
references did show degenerative disc disease, but no indication of
radiculopathy, as the ALJ noted and Dr. Lin observed. See AR 22, 548, 551.
The Court thus rejects Plaintiff’s contention that Dr. Lin’s findings somehow
invalidated Dr. Karamlou’s opinion and supported Dr. Hopper’s extreme
Accordingly, the Court finds that the ALJ did not err in evaluating the
medical opinion evidence.
Severity of Mental Impairment
Plaintiff argues that the ALJ erred in finding his mental health
impairments to be nonsevere. See JS at 30-33.
At step two of the disability determination, the ALJ must determine
whether the claimant has a medically severe impairment or combination of
impairments that meets the duration requirement. See Keyser v. Comm’r SSA,
648 F.3d 721, 725 (9th Cir. 2011). Severe impairments have more than a
minimal effect on an individual’s ability to perform basic work activities. See
Webb v. Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005). An ALJ’s conclusion
that a claimant lacks a medically severe impairment or combination of
impairments must be supported by substantial evidence. See id.
At the hearing, Plaintiff testified that he was laid off from his security
officer position on August 29, 2015. See AR 35. He worked for a different
security company in November 2015 hoping that they would give him a fulltime position, but they did not. Id. At around that time, he intended to commit
suicide, but he visited his sister for ten months and never sought therapy. See
AR 36. He began seeking therapy a month or two before the hearing. Id.
Plaintiff also testified that “[a]nything from running water to bright lights to
crowd[s]” triggers his anxiety. AR 42-43. He isolates himself and avoids
everybody. See AR 43. He takes an antidepressant which “opened [his] eyes”
to how angry he had been. Id. He thinks about committing suicide every day.
The ALJ concluded that Plaintiff’s impairments of depression and
anxiety disorder were nonsevere. See AR 18. After recounting Plaintiff’s
testimony, the ALJ found that the objective evidence did not substantiate
Plaintiff’s assertions of disabling psychiatric symptoms. See id. This reason
was supported by substantial evidence. As the ALJ correctly pointed out, the
record showed no formal mental health treatment, including any treatment for
decompensation episodes. Additionally, although Plaintiff had been prescribed
Xanax and Zoloft, the examination findings showed that he could perform
activities of daily living and that he had a normal mental state without
significant mood or cognitive abnormalities. See AR 19, 258-59, 268, 277, 289,
291, 298, 298, 358, 403-04, 455, 459, 463, 467, 487-88, 504, 510.
Plaintiff responds that under Ninth Circuit law, “it is a questionable
practice to chastise one with a mental impairment for the exercise of poor
judgment in seeking rehabilitation.” JS at 31 (quoting Nguyen v. Chater, 100
F.3d 1462, 1465 (9th Cir. 1996)). But Plaintiff has not cited any evidence that
would suggest he was unaware of his mental illness or that his failure to secure
mental health treatment was due to his mental illness rather than his own
preference. To the contrary, Plaintiff’s various mental status examinations did
not reveal any significant issues, and in June 2018, he denied depression,
suicidal ideation, and otherwise had a normal mental status examination. See
AR 403. Accordingly, Plaintiff’s reliance on Nguyen is misplaced. See Molina
v. Astrue, 674 F.3d 1104, 1113-14 (9th Cir. 2012) (holding that where there
was no medical evidence that the claimant’s resistance to treatment “was
attributable to her mental impairment rather than her own personal
preference,” the ALJ properly considered the claimant’s failure to seek mental
The ALJ also found, and the record confirms, that Plaintiff’s activities of
daily living, which included the ability to care for his personal hygiene without
prompting or reminders, prepare meals for himself, do household chores, go
outside, use the computer, and get along with authority figures, indicated that
his limitations were no more than mild, at most. See AR 19, 218. Plaintiff
responds that his activities of daily living are not useful in assessing his work
abilities. See JS at 31 (citing Smolen v. Chater, 80 F.3d 1273, 1287 (9th Cir.
1996)). Although it is true that a Plaintiff need not be “utterly incapacitated to
be eligible for benefits,” Smolen, 80 F.3d at 1284 n.7, the ALJ could
permissibly infer from Plaintiff’s activities that his mental impairments were
not disabling. See Castillo v. Berryhill, 693 F. App’x 659, 660 (9th Cir. 2017)
(ALJ did not err in finding claimant’s mental impairments were not severe
where he did his own laundry, took walks, lived unassisted, drove a car, made
his own meals, and attended medical appointments on his own).
Plaintiff also suggests that the ALJ should have ordered a consultative
examination. An ALJ “may purchase a consultative examination to try to
resolve an inconsistency in the evidence, or when the evidence as a whole is
insufficient to allow [the Social Security Administration] to make a
determination or decision” on a claim. 20 C.F.R. § 404.1519a. Plaintiff does
not explain, however, how the evidence before the ALJ was inconsistent or
insufficient. The ALJ had before it several years of medical evidence, including
the opinions of Plaintiff’s doctors and the State agency mental health
consultants. That was sufficient.
Accordingly, the ALJ did not err in finding that Plaintiff’s mental
limitations were nonsevere.
The decision of the Social Security Commissioner is AFFIRMED and
this case is dismissed with prejudice.
IT IS SO ORDERED.
Date: April 28, 2021
DOUGLAS F. McCORMICK
United States Magistrate Judge
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