Narbaitz v. Commissioner of Social Security
Filing
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FINAL JUDGMENT and ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 4/5/2019. 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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CAROL ANN NARBAITZ,
Plaintiff,
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v.
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Case No. 1:18-cv-00285-EPG
FINAL JUDGMENT AND ORDER
REGARDING PLAINTIFF’S SOCIAL
SECURITY COMPLAINT
COMMISSIONER OF SOCIAL
SECURITY,
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Defendant.
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This matter is before the Court on Plaintiff’s complaint for judicial review of an
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unfavorable decision by the Commissioner of the Social Security Administration regarding her
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application for Disability Insurance Benefits and Supplemental Security Income. The parties have
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consented to entry of final judgment by the United States Magistrate Judge under the provisions
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of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 4,
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5).
At a hearing on April 4, 2019, the Court heard from the parties and, having reviewed the
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record, administrative transcript, the briefs of the parties, and the applicable law, finds as follows:
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A. The ALJ’s Treatment of Plaintiff’s Subjective Symptom Testimony
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Plaintiff challenges the Administrative Law Judge’s (“ALJ”) evaluation of Plaintiff’s
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testimony. As to subjective testimony, the Ninth Circuit has summarized the ALJ’s task with
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respect to assessing a claimant’s credibility as follows:
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To determine whether a claimant’s testimony regarding subjective
pain or symptoms is credible, an ALJ must engage in a two-step
analysis. First, the ALJ must determine whether the claimant has
presented objective medical evidence of an underlying impairment
which could reasonably be expected to produce the pain or other
symptoms alleged. The claimant, however, need not show that her
impairment could reasonably be expected to cause the severity of
the symptom she has alleged; she need only show that it could
reasonably have caused some degree of the symptom. Thus, the
ALJ may not reject subjective symptom testimony ... simply
because there is no showing that the impairment can reasonably
produce the degree of symptom alleged.
Second, if the claimant meets this first test, and there is no
evidence of malingering, the ALJ can reject the claimant’s
testimony about the severity of her symptoms only by offering
specific, clear and convincing reasons for doing so[.]
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Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks
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omitted). Given that there is objective medical evidence of an underlying impairment, the Court
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examines whether the ALJ rejected Plaintiff’s subjective symptom testimony by offering specific,
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clear and convincing reasons.
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The ALJ provided the following reasons for the weight given to Plaintiff’s subjective
symptom testimony:
Persuasiveness is reduced by several factors. For example, persuasiveness is
reduced by the fact that despite her alleged impairments, the claimant has engaged
in a somewhat normal level of daily activity and interaction. As discussed
previously, she reported she was able to do most of her activities of daily living
except for gardening. Ex. 20F/8. She reported significant travel and vacation,
including a trip to Japan and traveling for months at a time to her second home in
Montana. Although the claimant’s activities of daily living were somewhat
limited, some of the physical and mental abilities and social interactions required
in order to perform these activities are the same as those necessary for obtaining
and maintaining employment and are inconsistent with the presence of an
incapacitating or debilitating condition. The claimant’s ability to participate in
such activities undermined the persuasiveness of the claimant’s allegations of
disabling functional limitations. Moreover, even if the claimant’s daily activities
are truly as limited as alleged, it is difficult to attribute that degree of limitation to
the claimant’s medical condition, as opposed to other reasons, in view of the
relatively benign medical evidence and other factors discussed in this decision. In
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short, it appears the limited range of daily activities is not due to any established
impairment.
Finally, the persuasiveness of the claimant’s allegations regarding the severity of
the symptoms and limitations is diminished because those allegations are greater
than expected in light of the objective evidence of record. The medical evidence
indicates the claimant received routine conservative treatment for the impairments.
Moreover, the positive objective clinical and diagnostic findings since the alleged
onset date detailed below do not support more restrictive functional limitations
than those assessed herein. Thus, after careful consideration of the evidence, the
undersigned finds that the claimant’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, to the extent they
are inconsistent with the above residual functional capacity assessment, the
claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are not entirely consistent with the medical evidence and other
evidence in the record for the reasons explained in this decision.
(A.R. 19-20).
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Admittedly, much of this reasoning appears to be boilerplate. It repeatedly states
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conclusions. It refers generally to the record and the decision. It only cites to only one page in
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the record. Furthermore, its opinion that the limitations might be due to some unknown cause is
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speculative and wholly without support in the record.
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Nevertheless, the Court will affirm the decision because Plaintiff’s activities as well as
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low levels of reported pain do not fit with her description of her symptoms. The one record that
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the ALJ cites is a medical report for Plaintiff from March 15, 2016 reporting that Plaintiff has a
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pain level of 2 (out of 10) with pain medications, and also that “Patient is able to do most of her
ADLs except for gardening.” (A.R. 550). While this is the only specific record cited, it is not an
aberration. See, e.g. A.R. 327 (“She next presented with pain scale of 2/10. W/meds. . . .She is
leaving for Montana around the 8th of October and will be back towards the end of the month and
then taking begin [sic] go to the northern coast.”); A.R. 576 (“She plans to travel again for the
next several months.”); A.R. 543 (“Patient’s pain score is a 2 with medications . . . Patient is
leaving to go to Montana for vacation and so has asked for 3 months prescriptions.”); A.R. 251
(“The patient reported that overall she is doing quite well. She went to Japan for 2 weeks or so
and had a great time. . . . Overall, she feels good. . . . I think overall she is doing great.”); A.R.
546 (“She is so happy with the results of the injection that she wants to hold off on anything like
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that [hip replacement]. Patient is leaving tomorrow to Montana for 2 weeks and then will be back
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and will be leaving again and be gone for the months of I believe she said July and August.
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Patient has pain level of 2 today with medication patient is able to do her own ADLs without
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assistance.”). These reports are not consistent with Plaintiff’s testimony that she cannot work
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because “I have too much pain.” (A.R. 39).
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The Court finds that, in light of this record, the ALJ’s reasons regarding Plaintiff’s
subjective symptoms are sufficiently specific, clear and convincing.
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B. ALJ’s Weighing of Opinion by Dr. Rhoades, Plaintiff’s Treating Physician
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Plaintiff also challenges the decision of the ALJ on the ground that she improperly gave
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little weight to the opinion of the treating physician, Dr. Rhoades. The Ninth Circuit has held
regarding such opinion testimony:
The medical opinion of a claimant’s treating physician is given “controlling
weight” so long as it “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a
treating physician’s opinion is not controlling, it is weighted according to factors
such as the length of the treatment relationship and the frequency of examination,
the nature and extent of the treatment relationship, supportability, consistency with
the record, and specialization of the physician. Id. § 404.1527(c)(2)–(6). “To reject
[the] uncontradicted opinion of a treating or examining doctor, an ALJ must state
clear and convincing reasons that are supported by substantial evidence.” Ryan v.
Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original)
(quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating
or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ
may only reject it by providing specific and legitimate reasons that are supported
by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see also Reddick
v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a
treating doctor’s credible opinion on disability are comparable to those required
for rejecting a treating doctor’s medical opinion.”). “The ALJ can meet this burden
by setting out a detailed and thorough summary of the facts and conflicting clinical
evidence, stating his interpretation thereof, and making findings.” Magallanes v.
Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d
1403, 1408 (9th Cir. 1986)).
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Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). Dr. Rhoades’ opinion is contradicted by
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non-examining State Disability Determination Services physicians. Thus, this Court examines
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whether the ALJ provided specific and legitimate reasons supported by substantial evidence for
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giving little weight to Dr. Rhoades’ opinions.
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The ALJ gave the following reasons for the weight given to Dr. Rhoades’ opinions:
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In January 2015, Dr. Rhoades reported the claimant presented with ongoing lower
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back pain primarily on the right side extending down to her right leg into the hip.
Ex. 13F/3. Her pain had increased lately and she requested SI joint triple block.
She reported she was notified by her work to come back off leave of absence and
try to work at a job, but the claimant reported she’d been unable to do so and
would continue on leave of absence. However, she was responding well to her
medications, which did manage her pain for the most part. She also had a history
of injections, which she reported had helped a lot and allowed her medications to
work more efficiently, although pain was allegedly increased with prolonged
standing, sitting, walking, or bending. Dr. Rhoades’ evaluation report noted the
claimant presented with pain scale of 3/10 with medications and 7/10 without
medications. Complaints of anxiety were made, but note no treatment for this
condition. Physical examination of the lower extremities revealed some bilateral
valgus deformity and swelling, as well as bilateral tender joint line and positive
McMurray’s test. Spine showed tenderness in the lumbar, as well as tenderness at
the facet joint and decreased flexion and decreased extension and lateral bending.
However, only the following were diagnosed: lumbago, low back pain in
foot/leg/arm/finger; hip/pelvic pain; myofascial pain syndrome/fibromyalgia.
Treatment was to continue on a conservative outpatient basis, primarily consisting
of continuation of her current medication regimen and recommendation of right SI
block. However, despite these evaluation findings, Dr. Rhoades noted the
claimant was unable to return to work due to pain levels. Ex. 13F/2-4. This
opinion is not given significant weight because it lacks analysis or explanation and
is inconsistent with the longitudinal medical evidence of record and with the
claimant’s admitted activities of daily living, discussed above.
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June 2015 physical examination found no clubbing or edema in the extremities.
Ex. 18F/14. Treating physician Dr. Rhoades completed a medical source
statement this month. Ex. 14F. Dr. Rhoades reported treating the claimant for
approximately 10 years every 1-2 months and confirmed diagnoses of lumbar
radiculopathy, sacroiliac joint, and knee osteoarthritis. Clinical findings included
positive MRI and lumbar spondylosis. Symptoms and signs included back pain
radiating down the left leg in L5 distribution and knee pain. Dr. Rhoades opined
the claimant’s impairments restricted her to significant less than even sedentary
exertional activities and that she would require numerous other postural,
environmental and manipulative limitations. . . . In addition, Dr. Rhoades opined
the claimant’s current diagnoses had caused these functional limitations since 2005
and that she would likely be absent from work more than 4 times per month. The
undersigned gives this opinion little weight because it is inconsistent with the
treatment notes showing relatively low pain levels and routine treatment, discussed
throughout this decision.
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(A.R. 21-22).
While these paragraphs largely summarize Dr. Rhoades’ notes, rather than explain the
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basis for the weight given to Dr. Rhoades’ conclusions, the reasons that are given are sufficiently
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specific and legitimate and supported by substantial evidence. As discussed above, Plaintiff’s
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admitted activities of daily living do not fit with the restrictions given by Dr. Rhoades. Moreover,
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as described above, Plaintiff’s pain appears to be largely responsive to medication. Finally,
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Plaintiff worked for almost nine years after Dr. Rhoades’ says her functional limitations began.
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C. Conclusion
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Thus, the Court finds that the decision of the Commissioner of Social Security is
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supported by substantial evidence, and the same is hereby affirmed.
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The Clerk of the Court is directed to close this case.
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IT IS SO ORDERED.
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Dated:
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April 5, 2019
/s/
UNITED STATES MAGISTRATE JUDGE
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