(SS) Gutierrez v. Commissioner of Social Security

Filing 23

FINAL JUDGMENT and ORDER Regarding Plaintiff's Social Security Complaint signed by Magistrate Judge Erica P. Grosjean on 10/11/2019. 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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VIRGINIA GUTIERREZ,
Plaintiff,

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v.

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Case No. 1:18-cv-01279 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. 7,

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8).

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At a hearing on October 10, 2019, the Court heard from the parties and, having reviewed

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the record, administrative transcript, the briefs of the parties, and the applicable law, finds as

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follows:

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I.

Whether the ALJ Erred in Weighing the Opinion of the Consultative Examiner
Plaintiff first challenges the ALJ’s decision on the basis that “the ALJ erred by relying on

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the unsupported, unexplained opinion of a non-examining expert, rather than the well-supported

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opinion of the consultative examiner, who opined Plaintiff does not have the ability to sustain an

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8-hour workday.” (ECF No. 14, at p. 1).

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In weighing medical source opinions in Social Security cases, there are three categories of

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physicians: (i) treating physicians, who actually treat the claimant; (2) examining physicians,

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who examine but do not treat the claimant; and (3) non-examining physicians, who neither treat

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nor examine the claimant. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). An ALJ must

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provide clear and convincing reasons that are supported by substantial evidence for rejecting the

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uncontradicted opinion of a treating or examining doctor. Id.at 830–31; Bayliss v. Barnhart, 427

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F.3d 1211, 1216 (9th Cir. 2005). An ALJ cannot reject a treating or examining physician's

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opinion in favor of another physician's opinion without first providing specific and legitimate

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reasons that are supported by substantial evidence. Bayliss, 427 F.3d at 1216; 20 C.F.R. §

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404.1527(c)(4) (an ALJ must consider whether an opinion is consistent with the record as a

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whole); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); Tommasetti v. Astrue, 533 F.3d

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1035, 1041 (9th Cir. 2008) (finding it not improper for an ALJ to reject a treating physician's

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opinion that is inconsistent with the record).

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Here, the ALJ discussed the examining consulting physician, Dr. Damania’s, opinion in

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two places. In the context of the step two analysis to determine whether Plaintiff has any

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medically determinable impairments that are severe, the ALJ stated as follows:

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On August 31, 2016, the claimant identified herself to consultative internist
Rustom Damania, M.D. by displaying her California driver’s license. The
claimant contended that she could not stand for more than a half an hour due to
low back pain, and her grip strength measurements were only 5 lbs. with her right
hand and no weight at all with her left hand. However, the examination itself had
found normal motor strength with good musculoskeletal range of motion, grossly
intact sensation, and equal reflexes. Based then apparently on a combination of
the examination findings and the claimant’s subjective complaints, Dr. Damania
assessed the claimant with Cushing’s Syndrome, status-post pituitary adenoma
post-surgery, osteoporosis, lumbar stenosis, old fractures of the vertebrae, possible

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cirrhosis/liver problem from longstanding fatty liver, fatigue, and fibromyalgia.
Ex. 12F. The undersigned notes that osteopenia is the claimant’s diagnosed
condition, and not the more severe, osteoporosis. Further, as explained above,
there is insufficient medical evidence to support a clinical diagnosis of
fibromyalgia. In addition, radiographs have shown only “mild” central canal
stenosis at once disc space level and without nerve root compression or
impingement, and Dr. [] Damania did not question the discrepancy between the
claimant’s nearly absent grip strength results and her normal and full signs of
muscle strength on examination. Dr. Damania even adds a finding of “visual
limitations” for the claimant, Exh. 12F, without considering that she had displayed
a driver’s license as ID.

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(A.R. 35). Additionally, the ALJ stated as follows regarding Dr. Damania’s opinion in the
context of step four, regarding Plaintiff’s residual functional capacity:1
Less reliance is accorded to the consultative physician’s RFC . . . because some of
these specific limitations such as a restriction to sitting for less than 4 hours total in
an 8-hour workday have no medical foundation in the record. Therefore, like the
reference to the claimant’s visual limitations, this limitation appears to have been
disproportionately based on the claimant’s subjective complaints without objective
medical or clinical findings in the record or consulting examination for objective
support.

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(A.R. 36).

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As discussed at the hearing, while Dr. Damania examined Plaintiff, the findings from the

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examination were mostly normal. The critical limitations that “[t]he claimant can stand and walk

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less than four hours out of an eight hour work day” and “[t]he claimant can sit less than four

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hours out of an eight hour work day,” do not appear based on the examination itself. Thus, the

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additional weight accorded an examining physician has less relevance here. With this in mind,

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and given that the ALJ’s opinion was supported by the non-examining consultative examiner, the

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Court finds that the ALJ’s reasons for the weight given to Dr. Damania’s opinion were legally

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sufficient.

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The ALJ referred to Exhibits 9F and 10F in this paragraph, which do not correspond to Dr. Damania’s opinion. At
oral argument, both parties confirmed that this was a typographical error, and that the ALJ was referring to Dr.
Damania’s opinion, which is Exhibit 12F of the record.
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II.

The ALJ’s Treatment of Plaintiff’s Subjective Symptom Testimony
Plaintiff next claims the “ALJ failed to include work-related limitations in the RFC

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consistent with the nature and intensity of Ms. Gutierrez’s symptoms, and failed to offer any

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reason for discounting her symptoms of fatigue.” (ECF No. 14, at p. 1).

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As to subjective testimony, the Ninth Circuit has summarized the ALJ’s task with respect
to assessing a claimant’s credibility as follows:
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[.]
Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks
omitted). Given that there is objective medical evidence of an underlying impairment, the Court
examines whether the ALJ rejected Plaintiff’s subjective symptom testimony by offering specific,
clear, and convincing reasons.
The ALJ stated as follows regarding Plaintiff’s subjective symptoms:
The claimant contends quite significant limitations in standing and walking, yet
she does not use a cane or walker. The claimant wears a back brace but stated that
she was not wearing one when she came to the hearing. The claimant alternated
between sitting and standing during her hearing, as if either position caused her
significant pain after relatively short periods of time. However, the record does
not document any significant neurological deficits, but instead repeatedly
confirmed that the claimant maintained full (‘5/5’) motor strength with intact
sensation and equal reflexes. Despite this lack of neurological signs, the claimant
alleged during the hearing that she could not wear clothes with buttons or zippers
because she was unable to close them. Again, while the claimant demonstrated
only 5 lbs. of grip strength at the consulting examination in her right hand and no
weight at all with her left hand, Ex. 12F, these measurements are contradicted by
the claimant’s normal motor strength, good musculoskeletal range of motion, and
grossly intact sensation findings on this same examination. It is noted that the
results of grip strength test are subjective in nature since they depend upon the
claimant’s exertion for the task.
The claimant testified that she takes “a lot of pain medications” that makes her

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vomit and then she cannot eat. Yet, the record does not document the claimant
having made these complaints regularly to her treating gastroenterologist.

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(A.R. 38).

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However, regarding Plaintiff’s complaint of fatigue in particular, the ALJ wrote:
[A]lthough subjectively reporting fatigue so severe that the claimant needs to sit
up in bed for an hour or two each morning before being able to get out of bed, the
record does not document a diagnosis of chronic fatigue syndrome that would
satisfy the specific criteria of SSR 14-1p(II(A)(2). As with fibromyalgia, there are
possibly other explanation for the claimant’s reported fatigue including that she
has often taken as many as 13 different medications daily. As these other causes
have not been ruled out, and the record does not document a regularly diagnosed
chronic fatigue syndrome impression, it cannot be considered a medically
determinable impairment for purposes of this decision.

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(A.R. 32). Plaintiff claims that this reasoning is insufficient because the ALJ did not provide

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clear and convincing reasons for discounting Plaintiff’s subjective symptoms about fatigue in

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particular. Defendant, in contrast, claims that this reasoning was legally sufficient given the

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detailed reasons for discounting Plaintiff’s subjective symptoms as a whole.

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The Court finds that the ALJ’s reasoning was legally sufficient. The ALJ need only
provide clear and convincing reasons for rejecting the claimant’s testimony about the severity of
her symptoms—not clear and convincing reasons for rejecting the claimant’s testimony about
each of those individual symptoms. The ALJ’s opinion was otherwise supported by substantial

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evidence including the opinion of a consulting physician. (Exh. 10F)
III.

Conclusion
Thus, the Court finds that the decision of the Commissioner of Social Security is

supported by substantial evidence, and the same is hereby affirmed.
The Clerk of the Court is directed to close this case.
IT IS SO ORDERED.

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Dated:

October 11, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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