Little v. Commissioner of Social Security

Filing 19

ORDER on Plaintiff's Social Security Complaint, signed by Magistrate Judge Sheila K. Oberto on 8/21/17. CASE CLOSED. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRADLEY JENNINGS LITTLE,

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Case No. 1:16-cv-00846-SKO

Plaintiff,

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v.

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NANCY A. BERRYHILL,
Acting Commissioner of Social Security,1

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(Doc. 1)

Defendant.

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ORDER ON PLAINTIFF’S SOCIAL
SECURITY COMPLAINT

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_____________________________________/

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I.

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INTRODUCTION

On June 19, 2016, Plaintiff Bradley Jennings Little (“Plaintiff”) filed a complaint under

22 42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social
23 Security (the “Commissioner” or “Defendant”) denying his application for disability insurance
24 benefits (“DIB”). (Doc. 1.) The matter is currently before the Court on only Plaintiff’s opening
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1

On January 23, 2017, Nancy A. Berryhill became the Acting Commissioner of the Social Security Administration.
See https://www.ssa.gov/agency/commissioner.html (last visited by the court on February 27, 2017). She is therefore
substituted as the defendant in this action. See 42 U.S.C. § 405(g) (referring to the “Commissioner’s Answer”); 20
C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper
defendant”).

1 brief―as the Commissioner failed to file a timely opposition brief 2―which was submitted
2 without oral argument.3
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II.

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BACKGROUND

On October 24, 2012, Plaintiff filed a claim for DIB payments, alleging he became

5 disabled on February 1, 2012, due to “[u]lcerated stoma” and a colostomy following treatment for
6 colon cancer. (Administrative Record (“AR”) 10, 13, 66, 77, 157, 184, 207.) Plaintiff was born
7 on August 16, 1963, and was 48 years old on the alleged disability onset date. (AR 66, 77.)
8 From 1987 to February 1, 2012, Plaintiff was an insurance broker. (AR 173–78, 185.)
9 A.
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Relevant Medical Evidence4
In 1992, Plaintiff was diagnosed with colon rectal cancer. (AR 207, 340.) Plaintiff had a

11 reversal of the colostomy performed in 1992, which was replaced in 2006. (AR 207, 340.)
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Plaintiff underwent a left wrist arthroscopy, left ECU tenosynovectomy, and left ECU

13 tendon sheath reconstruction in February 2012. (AR 229–31.) Plaintiff’s physical therapist
14 Lindsay Pimentel, who was treating him for left wrist/hand tenosynovitis, opined in February 5,
15 2013, that Plaintiff “did not show limitations in sitting, hearing or speaking, or limitations in
16 walking or standing.” (AR 331.) Plaintiff saw Ms. Pimentel six times from April–May 2012,
17 and she noted that while Plaintiff “made some progress during therapy, mostly with regards to
18 strength, reduced swelling and increasing function . . . his symptoms of hand pain during activity
19 and mild edema and some [range of motion] have not been completely resolved.” (AR 331.) By
20 March 2012, Plaintiff “no longer complain[ed] of pain on the left wrist at all.” (AR 263.)
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By its order entered February 17, 2017, the Court granted Plaintiff’s request for an extension and ordered that

22 Plaintiff could file his opening brief by no later than February 22, 2017. (Doc. 12 at 2.) The order provided that

“[a]ll other deadlines set forth in the Scheduling Order (Doc. 5) are modified accordingly.” (Id.) As such, the

23 deadline for the filing of Defendant’s responsive brief was enlarged to March 24, 2017. On May 2, 2017―over one
month after the deadline for Defendant’s responsive brief―the parties filed a stipulation in which they requested

24 leave for Defendant to file her opposition by June 1, 2017 (the “Request”), on grounds that defense counsel
“improperly calendar[ed] the deadlines in this case” and had “a very heavy workload.” (Doc. 15 at 1–2.) The Court

25 denied the Request on May 9, 2017, refusing to grant an extension “where Defendant waited for over one month after
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this deadline to seek such relief,” and noting that “Defendant was free to timely request an extension prior to the
current deadline . . . regardless of the volume of defense counsel’s workload.” (Doc. 16 at 1.)
On May 10, 2017, Defendant nevertheless filed her responsive brief. (Doc. 17.) Defendant’s untimely
responsive brief was filed without leave of Court and, therefore, the Court in its discretion declines to consider it.
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The parties consented to the jurisdiction of a U.S. Magistrate Judge. (Docs. 6 & 8.)
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As Plaintiff’s assertion of error is limited to the ALJ’s consideration of his alleged physical (as opposed to mental)
impairments, only evidence relevant to that argument is set forth below.

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In December 2012, Plaintiff complained of abdominal and flank pain on his right side,

2 radiating to his right hip and right shoulder, with no other digestive symptoms. (AR 273.) An
3 abdominal CT scan showed a medium-sized peristomal hernia with no bowel obstruction, mild
4 hepatic steatosis, and a nonobstructing kidney stone. (AR 274–75.)
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On March 21, 2013, consultative examining physician Rustom F. Damania, M.D.,

6 evaluated Plaintiff. (AR 340–45.) He found Plaintiff’s range of motion in his neck, back, ankles,
7 and upper and lower extremities were within normal limits. (AR 342–44.) Plaintiff’s grip
8 strength was 80-80-80 on the right and 80-100-90 on the left. (AR 342.) Dr. Damania observed
9 Plaintiff had a “soft” abdomen with “multiple midline surgical scars” and a peristomal hernia.
10 (AR 342.) The skin around Plaintiff’s colostomy bag was “considerably inflamed and irritated.”
11 (AR 342.) Plaintiff reported no history of gout. (AR 342.) There was no tenderness to palpation
12 in the midline or parasupinal areas of Plaintiff’s back. (AR 343.) Plaintiff had a straight leg
13 raising test was negative. (AR 343.) Dr. Damania observed no muscle spasm and noted that
14 Plaintiff’s muscle tone appeared to be equal throughout. (AR 343.)
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Dr. Damania’s impression was that Plaintiff had “[s]tatus post colon rectal cancer 21

16 years ago with colostomy,” diarrhea, insomnia due to stress, possible hypertension, and
17 gallstones. (AR 344.) From this, Dr. Damania concluded that Plaintiff could (1) lift and carry 10
18 pounds occasionally and less than 10 pounds frequently; (2) stand and walk four hours out of an
19 eight hour work day with normal breaks; (3) sit four hours out of an eight hour day; (4) not
20 perform frequent bending, stooping, or crouching. (AR 344.) Dr. Damania found no other
21 postural limitations, no manipulative limitations, and no relevant visual or communicative
22 impairments. (AR 344.)
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On April 3, 2013, Disability Determinations Service non-examining consultant, A.

24 Nasrabadi, M.D., reviewed the record and analyzed the case. (AR 70–74.) Dr. Nasrabadi
25 concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently;
26 stand, walk, and sit 6 hours in an 8-hour workday; could not climb ladders, ropes, and scaffolds;
27 but could perform all other postural activities frequently. (AR 73–74.) Disability Determinations
28 Service non-examining consultant John Fahlberg, M.D., reviewed the record and analyzed the
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1 case on May 30, 2013, and assessed the same residual function capacity of Plaintiff as Dr.
2 Nasrabadi. (AR 82–88.)
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On April 29, 2013, Plaintiff complained to Paul L. Hanchett, M.D., of diffuse abdominal

4 pain and pains on his right side. (AR 353.) A CT scan showed “a little bit of a hernia there but
5 nothing else” in Plaintiff’s right side. (AR 353.) Dr. Hanchett observed that the CT scan
6 “show[ed] nothing to explain [Plaintiff’s] pains.” (AR 353.) Plaintiff denied bloating, nausea,
7 and vomiting, and noted that “[a]s long as he takes omeprazole he gets 100% relief.” (AR 353.)
8 In June 2013, Plaintiff requested that Dr. Hanchett “give him permanent disability because he
9 never knows what his stool is going to do” or “when he is going to have pain.” (AR 350.) Dr.
10 Hanchett noted that Plaintiff “has symptoms that sound like the irritable bowel syndrome.” (AR
11 350.) Plaintiff reported that “when he has pain he just doesn’t do anything so he doesn’t go to
12 work and misses hours and therefore never keeps a job.” (AR 350.) Dr. Hanchett stated that he
13 did not know Plaintiff very well, and therefore was not qualified to say he is disabled. (AR 351.)
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On December 19, 2013, Plaintiff underwent a laparoscopic repair of his parastomal

15 hernia, cholecystectomy, and extensive lysis of adhesions by surgeon Saber Ghiassi, M.D. (AR
16 379–82.) A few days later, on December 22, 2013, Plaintiff had a laparoscopic lysis of adhesions
17 and a reduction of incarcerated parastomal hernia repair with mesh by Dr. Kelvin E. Higa. (AR
18 383–84.)
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Plaintiff was seen post-operatively on January 2, 2014, and reported that he was “doing

20 well.” (AR 376.) The treatment notes of that visit indicate that Plaintiff wanted to know when he
21 could return to playing golf, and that Plaintiff was “more concerned with getting permanent
22 disability.” (AR 376.) Plaintiff’s post-op examination was normal. (AR 377.) On January 11,
23 2014, Plaintiff attended a follow up appointment with Dr. Ghiassi, where he was observed to be
24 “doing well,” with “[r]esolved” upper right quadrant pain and normal colostomy function. (AR
25 374.) Plaintiff was noted to be “[b]ack to routine activities without difficulty.” (AR 374.) Dr.
26 Ghiassi’s January 11 treatment note indicates Plaintiff threatened to consult a lawyer or the media
27 regarding his post-op hernia recurrence unless Dr. Ghiassi gave him permanent disability. (AR
28 375.)
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On February 4, 2014, Plaintiff saw Dr. Higa, “[h]oping to get cleared to exercise.” (AR

2 372.) Dr. Higa observed that Plaintiff’s wounds were healing well, with no sign of recurrent
3 parastomal hernia, and advised that Plaintiff not participate in exertional activities for at least two
4 more months. (AR 373.) Plaintiff saw Dr. Higa again on March 4, 2014, and inquired whether
5 he was “clear to start doing ab work outs.” (AR 370.) Plaintiff was doing well with no
6 recurrence, and his postop examination was normal. (AR 371.) On May 1, 2014, Plaintiff
7 reported feeling “fantastic,” with no recurrence, and normal examination. (AR 368–69.)
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On July 23, 2014, Plaintiff reported feeling “just okay.” (AR 360.) He complained of

9 pain on his right side following removal of his gallbladder, “tremor” in the periumbilical area,
10 and “cramping” under his rib cage for past 2-3 years. (AR 360.) Plaintiff felt that his parastomal
11 hernia had returned but was not bothering him. (AR 360.) He was experiencing constipation that
12 possibly was contributing to his abdominal pain, and wondered whether a laxative could help.
13 (AR 360.) He denied fever, chills, nausea, vomiting, and diarrhea. (AR 360.) On examination,
14 Plaintiff’s abdomen was not distended and soft, his bowel sounds were normal hypoactive. (AR
15 361.) His stoma site was not tender, turgor was normal, and the incision on the abdomen stoma
16 site was clean with no erythema. (AR 362.) Plaintiff was prescribed Vicodin for his diffuse
17 abdominal pain. (AR 362.)
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A CT scan of Plaintiff’s abdomen and pelvis was performed on September 17, 2014. (AR

19 416–17.) The scan showed a few tiny scattered right and left nonobstructing renal calcifications,
20 possibly representing papillary calcifications with no evident hydroureter or hydronephrosis,
21 scattered lower pelvic calcifications or phleboliths, and multilevel degenerative changes of the
22 spine, with no evidence of acute intraabdominal or pelvic CT abnormality. (AR 417.)
23 B.

Administrative Proceedings

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Plaintiff filed an application for DIB on October 24, 2012, alleging he became disabled

25 on February 1, 2012. (AR 10, 13, 66, 77, 157, 184, 207.) The agency denied Plaintiff’s
26 application for benefits initially on April 11, 2013, and again on reconsideration on June 18,
27 2013. (AR 66–90, 100–103, 109–14.) Plaintiff requested a hearing before an Administrative
28 Law Judge (“ALJ”). (AR 115–16.) On October 2, 2014, Plaintiff appeared with counsel and
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1 testified before an ALJ. (AR 22–44.)
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A Vocational Expert (“VE”) testified at the hearing that Plaintiff’s past work for the last

3 15 years was an insurance broker, Dictionary of Operational Titles (DOT) code 250.257-010,
4 which was light exertional work with a specific vocational preparation (SVP)5 of 6. (AR 45.)
5 The ALJ asked the VE to consider a person with the same vocational profile as Plaintiff. (AR
6 46.) The VE was also to assume this person had the following residual functional capacity: can
7 lift and carry up to 20 pounds occasionally and up to 10 pounds frequently; can stand, walk, and
8 sit approximately six hours in an eight-hour workday; can frequently climb ramps and stairs, but
9 never ladders, ropes, or scaffolds; can frequently balance, stoop, kneel, crouch, and crawl; must
10 avoid concentrated exposure to such workplace hazards as working at unprotected heights, fast11 moving dangerous machinery, and traversing uneven or slippery terrain; must avoid temperature
12 extremes, especially extreme heat; must work in a close proximity to a restroom and be allowed
13 to take up to two additional five minute breaks to use the bathroom at will. (AR 46.) The VE
14 testified that such a person could perform Plaintiff’s past relevant work, but no other work would
15 be available. (AR 46–47.) The ALJ asked a follow up question regarding the first hypothetical
16 worker who must also be allowed to work off task 5% of the workday one to two times a week.
17 (AR 47.) The VE testified that this individual could perform Plaintiff’s past work, but no other
18 work. (AR 47.)
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The ALJ then proposed a third hypothetical, assuming the same individual in the second

20 hypothetical, but the individual was limited to lifting and carrying up to 10 pounds either
21 occasionally or frequently; could stand and walk approximately four hours and sit approximately
22 six hours; and could occasionally bend, stoop, and crouch, with all other limitations remaining
23 the same. (AR 47–48.) The VE testified that that there would be no work such person could
24 perform. (AR 48.)
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The ALJ’s fourth hypothetical asked VE to consider a person who can lift and carry up to
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Specific vocational preparation, as defined in DOT, App. C, is the amount of lapsed time required by a typical
worker to learn the techniques, acquire the information, and develop the facility needed for average performance in a
specific job-worker situation. DOT, Appendix C – Components of the Definition Trailer, 1991 WL 688702 (1991).
Jobs in the DOT are assigned SVP levels ranging from 1 (the lowest level – “short demonstration only”) to 9 (the
highest level – over 10 years of preparation). Id.

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1 10 pounds; stand and walk two hours and sit approximately six hours in an eight-hour workday;
2 frequently climb ramps and stairs but never ladders, ropes, or scaffolds; can frequently balance;
3 can occasionally stoop, kneel, crouch, and crawl; must avoid concentrated exposure to such
4 workplace hazards as working at unprotected heights, fast-moving dangerous machinery, and
5 traversing uneven or slippery terrain; must avoid temperature extremes, especially extreme heat;
6 must work in a close proximity to a restroom and be allowed to work off task up to 5% of the
7 workday once a week. (AR 48.) The VE testified that this individual could not perform
8 Plaintiff’s past work, but could perform other work in the national economy as an information
9 clerk, DOT code 237.367-046, sedentary and SVP 2; order clerk, DOT code 209.567-014,
10 sedentary and SVP 2; and inspector, DOT code 726.684-050, sedentary and SVP 2. (AR 49.)
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Plaintiff’s counsel asked the VE to consider a fifth hypothetical, assuming the same

12 individual in the first hypothetical but the individual was limited to lifting less than 10 pounds
13 occasionally; standing, walking, and sitting up to four hours in an eight-hour workday; can
14 occasionally climb ramps and stairs, but never ladders, ropes, or scaffolds; and can occasionally
15 balance, stoop, kneel, crouch, and craw, with all other limitations remaining the same. (AR 50.)
16 The VE testified that there would be no work such person could perform, Plaintiff’s past work
17 included. (AR 50.) Finally, Plaintiff’s counsel asked the VE to consider a sixth hypothetical,
18 assuming the same individual in the fourth hypothetical but with the additional limitation of
19 needing unscheduled work breaks throughout the workday as needed. (AR 50.) The VE testified
20 that there would be no work such person could perform. (AR 50.)
21 C.

The ALJ’s Decision

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In a decision dated January 6, 2015, the ALJ found that Plaintiff was not disabled. (AR

23 10–17.) The ALJ conducted the five-step disability analysis set forth in 20 C.F.R. § 416.920.
24 (AR 12–17.) The ALJ decided that Plaintiff has not engaged in substantial gainful activity since
25 February 1, 2012, the alleged onset date (step 1). (AR 11.) The ALJ found that Plaintiff had the
26 severe impairments of history of colon/rectal cancer with colostomy and gout (step 2). (AR 12.)
27 However, Plaintiff did not have an impairment or combination of impairments that met or
28 medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
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1 (“the Listings”) (step 3). (AR 12.) The ALJ determined that Plaintiff had the residual functional
2 capacity (“RFC”)6
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to perform less than the full range of light work as defined in 20 CFR
404.1567(b) except [Plaintiff] can lift and carry 20 pounds occasionally
and 10 pounds frequently, stand and walk for six hours in an 8-hour day,
and sit for six hours in an 8-hour day. He can frequently climb ramps and
stairs, but never ladders, ramps, or scaffolds. He can frequently balance,
stoop, kneel, crouch, and crawl. He should avoid concentrated exposure
to hazards of unprotected heights, fast moving machinery, and
uneven/slippery terrain and should avoid temperature extremes, especially
extreme heat. He must be in close proximity to a restroom and must be
allowed to take up to two additional five-minute breaks to use the
restroom at will.

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(AR 12–13.)

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The ALJ determined that, given his RFC, Plaintiff was able to perform his past work as an

12 insurance broker (step 4). (AR 16–17.) In reaching her conclusions, the ALJ also determined
13 that Plaintiff’s subjective complaints were not fully credible. (AR 15.)
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III.

SCOPE OF REVIEW

The ALJ’s decision denying benefits “will be disturbed only if that decision is not

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16 supported by substantial evidence or it is based upon legal error.” Tidwell v. Apfel, 161 F.3d 599,
17 601 (9th Cir. 1999). In reviewing the Commissioner’s decision, the Court may not substitute its
18 judgment for that of the Commissioner. Macri v. Chater, 93 F.3d 540, 543 (9th Cir. 1996).
19 Instead, the Court must determine whether the Commissioner applied the proper legal standards
20 and whether substantial evidence exists in the record to support the Commissioner’s findings.
21 See Lewis v. Astrue, 498 F.3d 909, 911 (9th Cir. 2007). “Substantial evidence is more than a
22 mere scintilla but less than a preponderance.” Ryan v. Comm’r of Soc. Sec., 528 F.3d 1194, 1198
23 (9th Cir. 2008). “Substantial evidence” means “such relevant evidence as a reasonable mind
24 might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401
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RFC is an assessment of an individual’s ability to do sustained work-related physical and mental activities in a
work setting on a regular and continuing basis of 8 hours a day, for 5 days a week, or an equivalent work schedule.
Social Security Ruling 96-8p. The RFC assessment considers only functional limitations and restrictions that result
from an individual’s medically determinable impairment or combination of impairments. Id. “In determining a
claimant’s RFC, an ALJ must consider all relevant evidence in the record including, inter alia, medical records, lay
evidence, and ‘the effects of symptoms, including pain, that are reasonably attributed to a medically determinable
impairment.’” Robbins v. Soc. Sec. Admin., 466 F.3d 880, 883 (9th Cir. 2006).

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1 (1971) (quoting Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938)). The Court
2 “must consider the entire record as a whole, weighing both the evidence that supports and the
3 evidence that detracts from the Commissioner’s conclusion, and may not affirm simply by
4 isolating a specific quantum of supporting evidence.” Lingenfelter v. Astrue, 504 F.3d 1028,
5 1035 (9th Cir. 2007) (citation and internal quotation marks omitted).
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IV.

APPLICABLE LAW

An individual is considered disabled for purposes of disability benefits if he or she is

8 unable to engage in any substantial, gainful activity by reason of any medically determinable
9 physical or mental impairment that can be expected to result in death or that has lasted, or can be
10 expected to last, for a continuous period of not less than twelve months.

42 U.S.C.

11 §§ 423(d)(1)(A), 1382c(a)(3)(A); see also Barnhart v. Thomas, 540 U.S. 20, 23 (2003). The
12 impairment or impairments must result from anatomical, physiological, or psychological
13 abnormalities that are demonstrable by medically accepted clinical and laboratory diagnostic
14 techniques and must be of such severity that the claimant is not only unable to do his previous
15 work, but cannot, considering his age, education, and work experience, engage in any other kind
16 of substantial, gainful work that exists in the national economy. 42 U.S.C. §§ 423(d)(2)–(3),
17 1382c(a)(3)(B), (D).
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The regulations provide that the ALJ must undertake a specific five-step sequential

19 analysis in the process of evaluating a disability. In the First Step, the ALJ must determine
20 whether the claimant is currently engaged in substantial gainful activity.

20 C.F.R. §§

21 404.1520(b), 416.920(b). If not, in the Second Step, the ALJ must determine whether the
22 claimant has a severe impairment or a combination of impairments significantly limiting him
23 from performing basic work activities. Id. §§ 404.1520(c), 416.920(c). If so, in the Third Step,
24 the ALJ must determine whether the claimant has a severe impairment or combination of
25 impairments that meets or equals the requirements of the Listing of Impairments (“Listing”), 20
26 C.F.R. 404, Subpart P, App. 1. Id. §§ 404.1520(d), 416.920(d). If not, in the Fourth Step, the
27 ALJ must determine whether the claimant has sufficient residual functional capacity despite the
28 impairment or various limitations to perform his past work. Id. §§ 404.1520(f), 416.920(f). If
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1 not, in Step Five, the burden shifts to the Commissioner to show that the claimant can perform
2 other work that exists in significant numbers in the national economy. Id. §§ 404.1520(g),
3 416.920(g). If a claimant is found to be disabled or not disabled at any step in the sequence, there
4 is no need to consider subsequent steps. Tackett v. Apfel, 180 F.3d 1094, 1098–99 (9th Cir.
5 1999); 20 C.F.R. §§ 404.1520, 416.920.
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V.

DISCUSSION

Plaintiff contends that “the ALJ erred by rejecting Dr. Damania’s opinion due to an

8 alleged improvement.” (Doc. 13 at 9.)
9 A.
10

Legal Standard
The medical opinions of three types of medical sources are recognized in Social Security

11 cases: “(1) those who treat the claimant (treating physicians); (2) those who examine but do not
12 treat the claimant (examining physicians); and (3) those who neither examine nor treat the
13 claimant (nonexamining physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “To
14 evaluate whether an ALJ properly rejected a medical opinion, in addition to considering its
15 source, the court considers whether (1) contradictory opinions are in the record; and (2) clinical
16 findings support the opinions.” Cooper v. Astrue, No. CIV S–08–1859 KJM, 2010 WL 1286729,
17 at *2 (E.D. Cal. Mar. 29, 2010). An ALJ may reject an uncontradicted opinion of a treating or
18 examining medical professional only for “clear and convincing” reasons. Lester, 81 F.3d at 830.
19 In contrast, a contradicted opinion of a treating or examining professional may be rejected for
20 “specific and legitimate” reasons, and those reasons must be supported by substantial evidence in
21 the record. Id. at 830–31; accord Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th
22 Cir. 2009). “An ALJ can satisfy the ‘substantial evidence’ requirement by ‘setting out a detailed
23 and thorough summary of the facts and conflicting clinical evidence, stating his interpretation
24 thereof, and making findings.’” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting
25 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). “The ALJ must do more than state
26 conclusions. He must set forth his own interpretations and explain why they, rather than the
27 doctors’, are correct.” Id. (citation omitted).
28

“[E]ven when contradicted, a treating or examining physician’s opinion is still owed
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1 deference and will often be ‘entitled to the greatest weight . . . even if it does not meet the test for
2 controlling weight.’” Garrison, 759 F.3d at 1012 (quoting Orn v. Astrue, 495 F.3d 625, 633 (9th
3 Cir. 2007)). If an ALJ opts to not give a treating physician’s opinion controlling weight, the ALJ
4 must apply the factors set out in 20 C.F.R. § 404.1527(c)(2)(i)–(ii) and (c)(3)–(6) in determining
5 how much weight to give the opinion. These factors include: length of treatment relationship and
6 frequency of examination, nature and extent of treatment relationship, supportability, consistency,
7 specialization, and other factors that tend to support or contradict the opinion. 20 C.F.R. §
8 404.1527(c)(2)(i)–(ii), (c)(3)–(6).
9 B.
10

The ALJ Did Not Err in the Assessment of the Opinion of Consulting Examiner Dr.
Damania.
Plaintiff was evaluated by Dr. Damania on March 21, 2013. (AR 340–45.) His clinical

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findings included a “soft” abdomen with “multiple midline surgical scars,” a peristomal hernia,
and that skin around Plaintiff’s colostomy bag was “considerably inflamed and irritated.” (AR
342.) Dr. Damania’s impression was that Plaintiff had “[s]tatus post colon rectal cancer 21 years

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ago with colostomy,” diarrhea, insomnia due to stress, possible hypertension, and gallstones.
15
(AR 344.) From this, Dr. Damania concluded that Plaintiff could (1) lift and carry 10 pounds
16
occasionally and less than 10 pounds frequently; (2) stand and walk four hours out of an eight
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hour work day with normal breaks; (3) sit four hours out of an eight hour day; (4) not preform
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frequent bending, stooping, or crouching. (AR 344.) Dr. Damania found no other postural
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limitations, no manipulative limitations, and no relevant visual or communicative impairments.
20
(AR 344.)
21
Although not specifically identified by the ALJ as a basis for its rejection, Dr.
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Damania’s opinion is contradicted by the medical opinion evidence of Disability
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Determinations Service non-examining consultants Drs. Nasrabadi and Fahlberg, who
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concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently;
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stand, walk, and sit 6 hours in an 8-hour workday; could not climb ladders, ropes, and scaffolds;
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but could perform all other postural activities frequently. (AR 73–74.) Thus, the ALJ was
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required to state “specific and legitimate” reasons, supported by substantial evidence, for

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1 rejecting Dr. Damania’s opinion.
2

In reviewing the medical evidence and rejecting Dr. Damania’s opinion, the ALJ stated

3 that she “gives little weight to Dr. Damania’s opinion as [Plaintiff] condition has improved, he
4 has had a good recovery, and many of his issues have resolved.” (AR 14.) The ALJ properly
5 rejected Dr. Damania’s assessment of Plaintiff because it was not supported by the objective
6 medical evidence, specifically by findings that Plaintiff’s condition has improved following his
7 parastomal hernia surgeries in December 2013. An ALJ may properly discount an examining
8 physician’s opinion that is not supported by the medical record. Batson v. Comm’r of Soc. Sec.
9 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (citing Tonapetyan v. Halter, 242 F.3d 1144, 1149
10 (9th Cir. 2001)); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The ALJ need not
11 accept the opinion of any physician, including a treating physician, if that opinion is brief,
12 conclusory, and inadequately supported by clinical findings.”) (citing Matney on Behalf of
13 Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992)).
14

The record contains evidence that after Plaintiff’s parastomal hernia surgeries in

15 December 2013, Plaintiff’s ulcerated stoma had improved. (AR 360–62, 368–74, 376–77.) The
16 ALJ noted that Plaintiff’s postoperative examinations were normal in January and February
17 2014, and he was observed to be “doing well,” with his upper right quadrant pain “resolved.”
18 (AR 15–16, 374, 377, 368–69.) Plaintiff was “[b]ack to routine activities without difficulty,”
19 and was “[h]oping to get cleared to exercise,” including golf and “ab work outs.” (AR 370,
20 372, 374, 377.) The ALJ observed that, in May 2014, Plaintiff reported feeling “fantastic,” with
21 no recurrence of parastomal hernia. (AR 368–69.) In July 2014, Plaintiff complained of pain
22 on his right side following removal of his gallbladder, but wondered whether constipation was
23 contributing to his abdominal pain. (AR 360.) The ALJ noted that Plaintiff felt that his
24 parastomal hernia had returned but was not bothering him.

(AR 16, 360.)

As the ALJ

25 observed, on examination Plaintiff’s abdomen was not distended and soft, his bowel sounds
26 were normal hypoactive. (AR 361.) His stoma site was not tender, turgor was normal, and the
27 incision on the abdomen stoma site was clean with no erythema. (AR 362.) A CT scan of
28 Plaintiff’s abdomen and pelvis in September 2014 showed a few tiny scattered right and left
12

1 nonobstructing renal calcifications, possibly representing papillary calcifications with no
2 evident hydroureter or hydronephrosis, scattered lower pelvic calcifications or phleboliths, and
3 multilevel degenerative changes of the spine, otherwise no evidence acute intraabdominal or
4 pelvic CT abnormality. (AR 416–17.) The ALJ’s observation, based on the objective medical
5 evidence, of Plaintiff’s improvement after surgery is a specific and legitimate reason for
6 rejecting Dr. Damania’s opinion. See Nino v. Colvin, No. 1:13–CV–832 GSA, 2015 WL
7 3756889, at *5 (E.D. Cal. June 16, 2015) (“District courts have held that an ALJ’s conclusion,
8 supported by substantial evidence in the record, that a claimant’s symptoms improved and
9 stabilized with treatment counts as a specific and legitimate reason to discount a doctor’s
10 opinion.”). See also Harris v. Comm’r of Soc. Sec. Admin., No. CV-16-01994-PHX-GMS,
11 2017 WL 2060418, at *5 (D. Ariz. May 15, 2017) (finding rejection of treating physician’s
12 opinions proper where they were “inconsistent with the medical evidence that demonstrated [the
13 plaintiff] improved while undergoing conservative treatment and medication.”); Palma v.
14 Colvin, No. 2:15-CV-1736-EFB, 2016 WL 8730663, at *6 (E.D. Cal. Sept. 30, 2016).
15

Moreover, the ALJ discounted Plaintiff’s credibility in this case, relying in part on the

16 objective medical evidence, including evidence that “his post-operative examinations have been
17 normal since the surgery,” to find that Plaintiff’s “medically determinable impairments could
18 reasonably be expected to cause the alleged symptoms. However, [Plaintiff’s] statements
19 concerning the intensity, persistence and limiting effects of these symptoms are not entirely
20 credible . . . .” (AR 14–16.) Plaintiff has not challenged the sufficiency of the evidence
21 supporting the ALJ’s adverse credibility finding in this case or the adequacy of the ALJ’s
22 reasons to explain this finding.

Therefore, the Court considers the ALJ’s unchallenged

23 credibility finding to be binding. See, e.g., Stanley v. Astrue, No. 1:09–cv–1743 SKO, 2010
24 WL 4942818, at *6 (E.D. Cal. Nov. 30, 2010).
25

Thus, substantial evidence supports the ALJ’s finding that Plaintiff’s condition had

26 improved, he had recovered well, and many of his issued had resolved following his surgeries.
27 Accordingly, the lack of supporting medical evidence, as evidenced by Plaintiff’s improvement
28 post-surgically, was a specific and legitimate reason, see Nino, 2015 WL 3756889, at *5;
13

1 Palma, 2016 WL 8730663, at *6, for the ALJ to discount Dr. Damania’s assessment. See
2 Batson, 359 F.3d at 1195; Thomas, 278 F.3d at 957.
3 C.
4
5

The ALJ Did Not Err By Not Considering Whether Plaintiff Was Entitled to a
Closed Period of Disability.
Plaintiff contends that the ALJ “failed to analyze whether [Plaintiff] was disabled for a

6 closed period,” namely from February 1, 2012, the alleged onset date, to December 2013, the
7 date of Plaintiff’s surgeries. (Doc. 13 at 9.) Substantial objective medical evidence in the
8 record from this period, however, supports the ALJ’s determination that Plaintiff was not
9 disabled within the meaning of the Act for that duration.
10

To obtain a closed period of disability, the evidence must show that (1) the claimant

11 could not engage in substantial gainful activity for a continuous period of twelve months; (2)
12 the disability ceased by the time of adjudication; and (3) the claimant met all the other eligibility
13 requirements for benefits. See 20 C.F.R. §§ 404.1505(a), 416.905(a); Miller v. Colvin, No.
14 1:12–cv–2063–SKO, 2014 WL 3735345, at *11 (E.D. Cal. July 28, 2014). See also Rosales v.
15 Colvin, 2013 WL 1410387, at *4 (D. Ariz. Apr. 8, 2013) (“The ALJ is required to consider a
16 closed period of disability if evidence in the record supports a finding that a person is disabled
17 for a period of not less than twelve months.”); Reynoso v. Astrue, No. CV 10–04604–JEM, 2011
18 WL 2554210 at *3 (C.D. Cal. June 27, 2011); Johnson v. Astrue, No. CV07–7263SS, 2008 WL
19 5103230 at *4 (C.D. Cal. Dec. 2, 2008).
20

The ALJ noted the opinions of Disability Determinations Service non-examining

21 consultants Drs. Nasrabadi and Fahlberg, who in April and May 2013, respectively, concluded
22 that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand, walk,
23 and sit 6 hours in an 8-hour workday; could not climb ladders, ropes, and scaffolds; but could
24 perform all other postural activities frequently. (AR 14, 73–74, 82–88.) A CT scan on Plaintiff’s
25 abdomen in April 2013 showed “a little bit of a hernia there but nothing else” in Plaintiff’s right
26 side, and in particular, the scan “show[ed] nothing to explain [Plaintiff’s] pains.” (AR 15, 353.)
27 As the ALJ observed, Dr. Hanchett observed in June 2013 that Plaintiff’s symptoms instead
28 “sound[ed] like [] irritable bowel syndrome.” (AR 15, 350.)
14

1

The ALJ further noted that the “record generally suggests that [Plaintiff] was seeing

2 physicians primarily in order to generate evidence for this application and appeal, rather than in a
3 genuine attempt to obtain relief from the allegedly disabling symptoms,” citing Plaintiff’s request
4 for permanent disability from Dr. Hanchett in June 2014. (AR 15, 350.) Plaintiff does not
5 challenge this finding by the ALJ.
6

Finally, as the ALJ observed, Dr. Hanchett found in April 2013 “[a]s long as [Plaintiff]

7 takes omeprazole he gets 100% relief.” (AR 14, 353.) “Impairments that can be controlled
8 effectively with medication are not disabling for the purpose of determining eligibility for SSI
9 benefits.” Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006); see also
10 Odle v. Heckler, 707 F.2d 439, 440 (9th Cir. 1983) (affirming denial of benefits and noting that
11 claimant’s impairments were responsive to medication).
12

This evidence fails to demonstrate that Plaintiff had disabling limitations as a result of his

13 medical impairments from February 1, 2012 to December 2013. Contrary to Plaintiff’s assertion
14 that “the ALJ erred by failing to adequately describe [Plaintiff’s] medical improvement within the
15 context of a closed period of benefits” (Doc. 13 at 9), the ALJ carefully and fully addressed the
16 medical evidence from the alleged closed period in his decision (see AR 14–16), and reached a
17 reasonable determination that it did not warrant a finding that Plaintiff was disabled. While
18 Plaintiff obviously disagrees with the ALJ’s assessment, he fails to articulate exactly what
19 medical evidence supports his belief that he was disabled during the alleged closed period.
20 Because the ALJ’s evaluation of the evidence and findings that Plaintiff did not suffer an
21 impairment for a continuous period of twelve months is supported by substantial evidence, it was
22 not error for the ALJ not to consider Plaintiff’s eligibility for a closed period of disability. See
23 Felton v. Colvin, No. 2:15-CV-2315-CKD, 2016 WL 6803680, at *4–6 (E.D. Cal. Nov. 17,
24 2016); Miller, 2014 WL 3735345, at *11. See also Rosales, 2013 WL 1410387, at *4–5; Laib v.
25 Astrue, No. CV–09–0142–CI, 2010 WL 2218294, at *3–5 (E.D. Wash. May 26, 2010); Jolliff v.
26 Barnhart, No. C 02–03855 WHA, 2003 WL 21715327, at *2–3 (N.D. Cal. July 16, 2003).
27 //
28 //
15

1

VI.

2

CONCLUSION AND ORDER

After consideration of the Plaintiff’s brief and a thorough review of the record, the Court

3 finds that the ALJ’s decision is supported by substantial evidence and is therefore AFFIRMED.
4 The Clerk of this Court is DIRECTED to enter judgment in favor of Defendant Nancy A.
5 Berryhill, Acting Commissioner of Social Security, and against Plaintiff.
6
7

IT IS SO ORDERED.

8 Dated:
9

August 21, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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