Valencia v. Commissioner of Social Security

Filing 18

ORDER on Plaintiff's Social Security Complaint signed by Magistrate Judge Barbara A. McAuliffe on 7/18/2013. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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) Case No.: 1:12-cv-00863 - BAM
)
Plaintiff,
) ORDER ON PLAINTIFF’S SOCIAL SECURITY
) COMPLAINT
v.
)
CAROLYN W. COLVIN, COMMISSIONER )
)
OF SOCIAL SECURITY,
)
)
Defendant.
)
ZOCHIL VALENCIA,

I.

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INTRODUCTION

Plaintiff Zochil Valencia (“Plaintiff”) seeks judicial review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”) denying her application for

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supplemental security income benefits and disability insurance benefits pursuant to Titles II and XVI

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of the Social Security Act (the “Act”). The matter is currently before the Court on the parties’ briefs,

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which were submitted without oral argument to Magistrate Judge Barbara A. McAuliffe. The Court

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finds the decision of the Administrative Law Judge (“ALJ”) to be supported by substantial evidence in

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the record as a whole and based upon proper legal standards. Accordingly, the Court affirms the

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Commissioner’s determination.

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II.

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A.

BACKGROUND

Overview of Administrative Proceedings
On May 8, 2009, Plaintiff filed an application for child disability insurance benefits and

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supplemental security income, alleging disability beginning May 1, 1999. AR 162, 164.1 Plaintiff’s

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applications were denied initially and on reconsideration. AR 113, 120. Subsequently, Plaintiff

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requested a hearing before an Administrative Law Judge (“ALJ”). AR 125. The hearing was held on

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June 29, 2011, and on July 25, 2011, ALJ Judson Scott issued a decision finding that Plaintiff was not

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disabled. AR 22-31. Plaintiff sought review of the ALJ’s decision, which the Appeals Council denied,

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making the ALJ’s decision the Commissioner’s final decision. Plaintiff subsequently requested

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judicial review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

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B.

Administrative Hearing Testimony

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Plaintiff is 21 years old and has completed eleventh grade. AR 64-65, 67. Plaintiff stated that

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she was five feet and nine inches tall and weighed around 600 pounds. AR 72. Plaintiff testified that

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she had asthma but that it was controlled with an inhaler. AR 74-75. Plaintiff also testified that she

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had aches, pains and numbness which caused difficulty gripping. AR 77, 80. Plaintiff stated that the

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most she could lift was four to six pounds. AR 80.
After a discussion about time constraints, the ALJ allowed Plaintiff’s prior counsel to provide a

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summation of Plaintiff’s testimony. AR 84-85. Plaintiff’s counsel stated that Plaintiff suffers from

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drowsiness, dizziness, depression, and anxiety. AR 86. Plaintiff’s counsel also stated that Plaintiff

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was unable to stand more than 15 minutes at a time, was unable to walk more than two blocks without

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having to take a break, and needed to lie down for 30 minutes three to five times a day. Id. Plaintiff’s

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counsel concluded that Plaintiff could not sit for more than three and a half hours during the day, and

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could only sit for 25 minutes at a time. AR 87.

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Medical expert Dr. Puestow testified at the hearing. AR 90. Dr. Puestow opined that

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Plaintiff’s massive obesity limited her ability to climb, kneel and crawl (AR 92), however, Plaintiff

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References to the Administrative Record will be designated as “AR,” followed by the appropriate
page number.
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could lift and carry 10 pounds frequently and 20 pounds occasionally, sit for a full 8-hour workday,

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and stand or walk up to 4 hours in an 8-hour workday. AR 28-29, 92.
A Vocational Expert (the “VE”), Lawrence Hughes, also provided testimony at the hearing.

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AR 99. The ALJ presented two hypothetical questions to VE Hughes. First, VE Hughes was asked to

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assume a hypothetical individual the same age, education, and experience as the claimant who can

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perform light work including lifting and carrying 10 to 20 pounds, had the capacity to sit for six out of

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eight hours, and could stand for two out of eight hours with a sit/stand option at will. Further, the

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individual would be precluded from kneeling, crawling, ladders, ropes, and scaffolds, and stair

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climbing would be rare. The individual could perform one to two step, simple repetitive tasks in a low

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stress environment with no public contact. AR 100-02. VE Hughes indicated that such individuals

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could perform several jobs such as hand packager, assembler of electrical accessories, and battery

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assembler. AR 101.
In a second hypothetical, VE Hughes was asked to consider the same worker, however, with

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the following addition limitations: can lift and carry up to 10 pounds; cannot balance, use ladders,

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ropes, and scaffolds; cannot climb stairs or ramps; and cannot be exposed industrial hazards. AR 103.

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VE Hughes testified that this individual could perform the same three jobs referenced in the first

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hypothetical. AR 103-04.
The Plaintiff’s attorney then asked VE Hughes to consider the same hypothetical worker

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except she could not sit for more than three to four hours a day, stand for more than one hour a day,

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and walk for more than one hour a day, all with intermittent breaks. AR 104-06. VE Hughes testified

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that no work would be available for such an individual. AR 107. The Plaintiff attorney then asked VE

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Hughes to consider an individual that was the same as the two hypothetical questions given by the

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ALJ but that the individual would have to take three to five unscheduled 30 minute breaks a day. AR

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107-08. VE Hughes concluded that this would preclude any work. AR 108.

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C.

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Medical Record
Plaintiff alleges disability due to massive obesity, chronic knee pain, asthma, depression and

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anxiety. AR 27, 169, 186. The entire medical record was reviewed by the Court. AR 182-304. The

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medical evidence will be referenced below as necessary to this Court’s decision.
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D.

The ALJ’s Decision
On July 25, 2011, the ALJ issued a decision finding that Plaintiff was not disabled within the

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meaning of the Act. After considering each step in the sequential evaluation, the ALJ made the

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following findings:
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Plaintiff has the following severe impairments: massive obesity; chronic knee pain;
depression and anxiety;

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2.

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Plaintiff does not have an impairment or combination of impairments that meets or

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medically equals one of the listed impairments in 20 CFR Part 404, Subpart P,

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Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926);

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3.

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Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work as

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defined in 20 CFR 404.1567(a) and 416.967(a) with the following modifications: sit for

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six hours out of an eight hour workday; stand and/or walk for two hours out of an eight

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hour workday; must be afforded the opportunity to alternate between sitting and

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standing at will; no kneeling, crawling, balancing or climbing of

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ladders/ropes/scaffolds; rare climbing of stairs and ramps; occasional stooping and

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crouching; no exposure to industrial hazards such as work at unprotected heights or

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around hazardous moving machinery; simple repetitive one or two step tasks;

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occasional interaction with co-workers; frequent interaction with supervisors; no

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interaction with the public; must have a low stress occupation, defined as few changes

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in the work or its setting and few decisions required.
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Plaintiff has not been under a disability, as defined in the Act, from May 1, 1999,

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through the date of the ALJ’s decision (20 CFR 404.350(a)(5), 404.1520(g) and

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416.920(g)).

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/././
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III.

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A.

DISCUSSION

Standard of Review

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Congress has provided a limited scope of judicial review of the Commissioner’s decision to

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deny benefits under the Act. In reviewing findings of fact with respect to such determinations, this

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Court must determine whether the decision of the Commissioner is supported by substantial evidence.

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42 U.S.C. § 405 (g). Substantial evidence means “more than a mere scintilla,” Richardson v. Perales,

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402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112,

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1119, n. 10 (9th Cir. 1975). It is “such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.” Richardson, 402 U.S. at 401. The record as a whole must be

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considered, weighing both the evidence that supports and the evidence that detracts from the

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Commissioner’s conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). This Court must

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uphold the Commissioner’s determination that the claimant is not disabled if the Secretary applied the

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proper legal standards, and if the Commissioner’s findings are supported by substantial evidence. See

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Sanchez v. Sec’y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).

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In order to qualify for benefits, a claimant must establish that she is unable to engage in

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substantial gainful activity due to a medically determinable physical or mental impairment which has

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lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §

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1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such severity

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that she is not only unable to do her previous work, but cannot, considering her age, education, and

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work experience, engage in any other kind of substantial gainful work which exists in the national

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economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the

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claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

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Plaintiff raises one issue on appeal: whether the ALJ properly discounted examining physician

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Dr. Radhey Bansal’s opinion that Plaintiff could sit for up to four hours a day with intermittent breaks,

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and stand and walk for up to one hour a day each. See Pl.’s Brief at 7-12, Doc. 14.

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B.

The ALJ’s Medical Opinion Testimony Evaluation

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Legal Standard

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In the hierarchy of physician opinions considered in assessing a social security claim,

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“[g]enerally, a treating physician's opinion carries more weight than an examining physician's, and an

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examining physician's opinion carries more weight than a reviewing physician's.” Holohan v.

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Massanari, 246 F.3d 1195, 1202 (9th Cir.2001); Orn v. Astrue, 495 F.3d 625 (9th Cir. 2007) (“By

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rule, the Social Security Administration favors the opinion of a treating physician over non-treating

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physicians”); See also, 20 C.F.R. § 404.1527(c)(1)-(2). If a treating physician's opinion is “well-

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supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent

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with the other substantial evidence in [the] case record, [it will be given] controlling weight.” Id. §

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404.1527(c)(2).

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If a treating physician's opinion is not given “controlling weight” because it is not “well-

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supported” or because it is inconsistent with other substantial evidence in the record, the

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Administration considers specified factors in determining the weight it will be given. Those factors

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include the “[l]ength of the treatment relationship and the frequency of examination” by the treating

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physician; and the “nature and extent of the treatment relationship” between the patient and the

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treating physician. Id. § 404.1527(c)(2)(i)-(ii). Additional factors relevant to evaluating any medical

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opinion, not limited to the opinion of the treating physician, include the amount of relevant evidence

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that supports the opinion and the quality of the explanation provided; the consistency of the medical

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opinion with the record as a whole; the specialty of the physician providing the opinion; and “[o]ther

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factors” such as the degree of understanding a physician has of the Administration's “disability

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programs and their evidentiary requirements” and the degree of his or her familiarity with other

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information in the case record. Id. § 404.1527(c)(3)-(6).

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The Commissioner must provide “clear and convincing” reasons for rejecting the

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uncontradicted opinion of a treating or examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506

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(9th Cir.1990). If contradicted by another doctor, the opinion of a treating or examining doctor can

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only be rejected for specific and legitimate reasons that are supported by substantial evidence in the

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record. Andrews v. Shalala, 53 F.3d 1035, 1043 (9th Cir. 1995). “This burden can be met by providing
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a detailed summary of the facts and conflicting clinical evidence, along with a reasoned interpretation

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thereof.” Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989).

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Notwithstanding the above discussion, an ALJ is not required to accept an opinion of a treating

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physician, or any other medical source, if it is conclusory and not supported by clinical findings.

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Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992). Additionally, an ALJ is not bound to a

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medical source's opinion concerning a claimant's limitations on the ultimate issue of disability.

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Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). If the record as a whole does not support the

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medical source's opinion, the ALJ may reject that opinion. Batson v. Comm'r of Soc. Sec. Admin., 359

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F.3d 1190, 1195 (9th Cir. 2004). Items in the record that may not support the physician's opinion

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include clinical findings from examinations, conflicting medical opinions, conflicting physician's

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treatment notes, and the claimant's daily activities. Id.; Bayliss v. Barnhart, 427 F.3d 1211 (9th Cir.

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2005); Connett v. Barnhart, 340 F.3d 871 (9th Cir. 2003); Morgan v. Comm'r of Soc. Sec. Admin., 169

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F.3d 595 (9th Cir.1999)

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2.

The ALJ Provided Specific and Legitimate Reasons to Discount Dr. Bansal’s

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Opinions, and the ALJ’s Evaluation of the Medical Evidence As A Whole is Based

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on Substantial Evidence in the Record

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Plaintiff argues the ALJ impermissibly rejected the opinions of examining physician Dr.

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Radhey Bansal. On August 6, 2009, Dr. Bansal performed an internal medicine examination at the

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behest of the administration. AR 252-55. Physical examination showed some restriction of

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movements in various joints due to obesity as well as soreness over her hands, arms, thighs and legs.

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Id. Plaintiff’s bilateral grip strength was full. Id. Plaintiff demonstrated some numbness in the right

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lower extremity and walked slowly, however, Plaintiff did not ambulate with a limp. Id.

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Based on his review of the records and physical examination, Dr. Bansal diagnosed Plaintiff

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with the following: “very severe and morbid obesity; aches and pains in different parts of the body

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probably myalgias or fibromyalgias; status post old injury right leg with status post surgery and some

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preliminary numbness in the right leg below the calf; history of being somewhat slow learner; and

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history of bronchial asthma which is fairly stable without any significant exacerbations or ER visits or

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hospitalization.” AR 254. Dr. Bansal opined Plaintiff could sit for three to four hours a day with
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intermittent breaks, stand and walk for one hour per day with intermittent breaks and cannot perform

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any significant bending, crawling, kneeling or climbing of ladders. Id.

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The ALJ afforded Dr. Bansal’s opinion “some weight,” noting that Dr. Bansal’s opinions were

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not well supported by available medical evidence, was inconsistent with Plaintiff’s ability to attend

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school, and was contradicted by other medical opinion evidence that was more consistent with the

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medical record. AR 28.

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The ALJ provided specific and legitimate reasons based on substantial evidence in the record

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for his evaluation of Dr. Bansal’s opinions. First, the ALJ correctly discounted Dr. Bansal’s opinion

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because it was inadequately supported by the longitudinal treatment record and any clinical findings.

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See Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). The ALJ explained that the medical

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record evidence was minimal, and although Plaintiff had gained a significant amount of weight in a

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two-year period, Plaintiff had normal examination results, and her frequent aches and pains were

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generally treated with over-the-counter Tylenol. AR 28, 189, 201, 253, 292. Plaintiff’s only

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documented illness was asthma, which was controlled with an inhaler. AR 28, 252, 292. Moreover,

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Dr. Bansal observed that other than controlled asthma, Plaintiff had no known history of any particular

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medical problem associated with either her subjective complaints of pain or morbid obesity (e.g.

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hypertension, diabetes mellitus) that prevented her from working. AR 24-25, 252. Thus, the ALJ

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properly resolved the discrepancies between Dr. Bansal’s recommended limitations and objective

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medical evidence by discounting Dr. Bansal’s opinion.

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Three other medical experts disagreed with Dr. Bansal’s recommended limitations. State

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agency physician Lavanya V. Bobba, M.D., reviewed the medical record in August 2009 and opined

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that Plaintiff could perform sedentary work, largely based on Dr. Bansal’s examination showing

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normal results for Plaintiff’s lungs and musculoskeletal system. AR 29, 256-260. State agency

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physician Paul F. Frye, M.D., independently reviewed Plaintiff’s medical record in March 2010, and

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also opined that Plaintiff could perform sedentary work. AR 29, 268-271. Testifying internist Eric

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Puestow, M.D., reviewed Plaintiff’s medical records and heard her testify about her symptoms and

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functional limitations. AR 28-29, 90. Dr. Puestow testified that Dr. Bansal’s opinion limiting Plaintiff

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to one hour of walking or standing was both vague and overly restrictive because it lacked an
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objective foundation. AR 97-98. Specifically, Dr. Puestow testified that Plaintiff did not have any

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condition– e.g. significant arthritis, a neurologic problem, joint deformities – that was exacerbated by

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the morbid obesity. AR 98.

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The opinions of non-examining physicians are substantial evidence where they are supported

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by clinical findings and objective tests. Magallanes, 881 F.2d at 752. Here, Dr. Puestow stated that he

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disagreed with Dr. Bansal’s restriction that Plaintiff could only sit for three to four hours a day. AR

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98. Dr. Puestow supported his opinion stating that “it’s not based on fact” because “[w]e don’t have

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any other co-morbid predictions” and concluded that Dr. Bansal’s “work limitation is overly

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restrictive.” Id. Dr. Bobba also disagreed with Dr. Bansal because there was “no documented

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secondary morbidities due to obesity.” Indeed, Dr. Bansal’s own observation of the record stated that

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“[t]here is no know history of hypertension, diabetes mellitus or any other particular medical problems

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with mostly [sic] these aches and pains and her marked morbid obesity, which prevent her from

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work.” AR 252.

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The ALJ also explained that the State agency physician’s opinion that Plaintiff could sit for 6

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hours, and stand or walk for 2 hours in an 8-hour workday, was well-supported by the objective

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evidence of her morbid obesity, and the absence of evidence of other comorbid conditions (e.g.,

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significant arthritis, neurological problems, cardiovascular problems, etc.) AR 29. An ALJ may rely on

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the expertise of a non-examining physician to assess other opinion evidence and RFC. Thomas v.

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Barnhart, 278 F.3d 948, 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining

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physicians may also serve as substantial evidence when the opinions are consistent with independent

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clinical findings or other evidence in the record”) (emphasis added).

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Finally, ALJ’s statement that Dr. Bansal’s opinion is inconsistent with Plaintiff’s ability to

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attend school is a “specific and legitimate” reason. The record shows that Plaintiff claimed “she is in

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class from 8AM to 2PM.” AR 213. During the hearing Plaintiff stated that she “didn’t go [to school]

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all the time.” AR 67. However, this statement conflicts with her earlier statement that she attended

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school “on a daily basis.” AR 213. Further, the record suggests that her reason for not attending

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school was because of difficulty doing the work, not because of physical limitations. AR 68.

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The Court must uphold the ALJ’s decision where the evidence is susceptible to more than one

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rational interpretation. Magallanes, 881 F.2d at 750. One rational interpretation of Plaintiff being in

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class from 8AM to 2PM is that Plaintiff sat for more than four hours in a day. Indeed, Plaintiff stated

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all her classes were in one room. AR 213. This suggests that Plaintiff did not have to spend

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substantial time traveling between classes. Therefore, one rational explanation of the evidence in the

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record is that Plaintiff sat in school for more than four hours a day.

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Accordingly, the ALJ provided specific and legitimate reasons to discount Dr. Bansal’s

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opinions, and the ALJ’s evaluation of the medical evidence as a whole was based on substantial

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evidence in the record.
CONCLUSION

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Based on the foregoing, the Court finds that the ALJ’s decision is supported by substantial

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evidence in the record as a whole and is based on proper legal standards. Accordingly, this Court

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DENIES Plaintiff’s appeal from the administrative decision of the Commissioner of Social Security.

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The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Carolyn W. Colvin,

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Commissioner of Social Security, and against Plaintiff Zochil Valencia.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

July 18, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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