Bickford v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 3/27/17 denying 16 Motion for Summary Judgment and granting 23 Cross-Motion for Summary Judgment. The Clerk of the Court is directed to enter judgment and close this file. (Kaminski, H)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

SHARON L. BICKFORD,

12

Plaintiff,

13
14

No. 2:15-CV-1681-CMK

vs.

MEMORANDUM OPINION AND ORDER

COMMISSIONER OF SOCIAL
SECURITY,

15
Defendant.
16
/
17
18

Plaintiff, who is proceeding with retained counsel, brings this action under

19

42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security.

20

Pursuant to the written consent of all parties, this case is before the undersigned as the presiding

21

judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending

22

before the court are plaintiff’s motion for summary judgment (Doc. 16) and defendant’s cross-

23

motion for summary judgment (Doc. 23).

24

///

25

///

26

///
1

1
2

I. PROCEDURAL HISTORY
Plaintiff applied for social security benefits on February 14, 2012. In the

3

application, plaintiff claims that disability began on August 10, 2010. Plaintiff’s claim was

4

initially denied. Following denial of reconsideration, plaintiff requested an administrative

5

hearing, which was held on September 10, 2013, before Administrative Law Judge (“ALJ”) L.

6

Kalei Fong. In a January 27, 2014, decision, the ALJ concluded that plaintiff is not disabled

7

based on the following relevant findings:

8

1.

The claimant has the following severe impairment(s): degenerative disc
disease of the cervical and lumbar spine, and degenerative joint disease of
the bilateral shoulders;

2.

The claimant does not have an impairment or combination of impairments
that meets or medically equals an impairment listed in the regulations;

3.

The claimant has the following residual functional capacity: the claimant
can perform light work; she can lift and carry 10 pounds frequently and 20
pounds occasionally; she can sit for 6 hours in an 8-hour day, with normal
breaks; she can stand and/or walk for 6 hours in an 8-hour day, with
normal breaks; she can frequently reach, push, and pull bilaterally; she can
occasionally perform postural activities, except that she can frequently
balance and kneel; she can frequently work near unprotected heights and
vibrations; she can occasionally work near humidity and wetness; she can
never work near extreme cold or heat; and she is unable to work around
loud noise; and

4.

Considering the claimant’s age, education, work experience, residual
functional capacity, and the Medical-Vocational Guidelines, there are jobs
that exist in significant numbers in the national economy that the claimant
can perform.

9
10
11
12
13
14
15
16
17
18
19
20

After the Appeals Council declined review on June 8, 2015, this appeal followed.

21
22

II. STANDARD OF REVIEW

23

The court reviews the Commissioner’s final decision to determine whether it is:

24

(1) based on proper legal standards; and (2) supported by substantial evidence in the record as a

25

whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is

26

more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521
2

1

(9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to

2

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole,

3

including both the evidence that supports and detracts from the Commissioner’s conclusion, must

4

be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones

5

v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s

6

decision simply by isolating a specific quantum of supporting evidence. See Hammock v.

7

Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative

8

findings, or if there is conflicting evidence supporting a particular finding, the finding of the

9

Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987).

10

Therefore, where the evidence is susceptible to more than one rational interpretation, one of

11

which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v.

12

Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal

13

standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th

14

Cir. 1988).

15
16

III. DISCUSSION

17

In her motion for summary judgment, plaintiff argues that the ALJ improperly

18

rejected the opinions of examining physician Dr. Van Kirk. The weight given to medical

19

opinions depends in part on whether they are proffered by treating, examining, or non-examining

20

professionals. See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). Ordinarily, more

21

weight is given to the opinion of a treating professional, who has a greater opportunity to know

22

and observe the patient as an individual, than the opinion of a non-treating professional. See id.;

23

Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th

24

Cir. 1987). The least weight is given to the opinion of a non-examining professional. See Pitzer

25

v. Sullivan, 908 F.2d 502, 506 & n.4 (9th Cir. 1990).

26

///
3

1

In addition to considering its source, to evaluate whether the Commissioner

2

properly rejected a medical opinion the court considers whether: (1) contradictory opinions are

3

in the record; and (2) clinical findings support the opinions. The Commissioner may reject an

4

uncontradicted opinion of a treating or examining medical professional only for “clear and

5

convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831.

6

While a treating professional’s opinion generally is accorded superior weight, if it is contradicted

7

by an examining professional’s opinion which is supported by different independent clinical

8

findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035,

9

1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be

10

rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester,

11

81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of

12

the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a

13

finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and

14

legitimate reasons, the Commissioner must defer to the opinion of a treating or examining

15

professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional,

16

without other evidence, is insufficient to reject the opinion of a treating or examining

17

professional. See id. at 831. In any event, the Commissioner need not give weight to any

18

conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111,

19

1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion);

20

see also Magallanes, 881 F.2d at 751.

21

As to Dr. Van Kirk, the ALJ stated:

22

. . .Consultative physician Dale Van Kirk, M.D., examined the claimant on
November 14, 2013, and opined that even with her impairments, she could
lift and carry 10 pounds frequently and 20 pounds occasionally; she could
sit for 1 hour at a time, for a total of 6 hours in an 8-hour workday; she
could stand and walk for 1 hour at a time, for a total of 4 hours in an 8hour workday; she could frequently reach, push, and pull bilaterally; she
could frequently climb stairs and ramps; she could occasionally climb
ladders or scaffolds, balance, stoop, and kneel; she could never crouch or
crawl; she could frequently work near unprotected heights and vibrations;

23
24
25
26

4

1

she could occasionally work near humidity and wetness; she could never
work near extreme cold or heat; and she is unable to work around loud
noise (e.g., heavy traffic) (Ex. 13F).

2
3

Reviewing physician Lloyd Anderson, M.D., wrote a December 18, 2012,
opinion and similarly opined that the claimant could perform light
exertional work, but added that the claimant could stand and/or walk for
about 6 hours in an 8-hour workday, with normal breaks; she could sit for
about 6 hours in an 8-hour workday, with normal breaks; she could
occasionally perform postural activities, except that she could frequently
balance and kneel; and she must avoid concentrated exposure to extreme
cold and hazards (Ex. 3A/6-8).

4
5
6
7

Drs. Van Kirk and Anderson’s opinions are generally given significant
weight because they are consistent with the discussed progress notes that
show that the claimant’s condition is well controlled and has responded to
conservative care. Accordingly, the above residual functional capacity
finding is based on their opinions.

8
9
10

However, while the undersigned gives significant weight to Dr. Van
Kirk’s opinion of the claimant’s manipulative abilities, the undersigned
gives more weight to Dr. Anderson’s opinion of the claimant’s standing,
walking, sitting, and postural abilities. Admittedly, progress notes show
that the claimant has shown some decreased spinal range of motion (Ex.
2F, 5F, 12F). However, considering that progress notes show that the
claimant has only been advised to avoid heavy lifting and bending (Ex.
2F/13), Dr. Van Kirk’s opinion of the claimant’s postural abilities is too
restrictive.

11
12
13
14
15
16

Plaintiff argues:

17

The ALJ rejects Dr. Van Kirk’s significant limitations on standing
and walking. AR 17. The ALJ rejected the opinion of Dr. Van Kirk in
favor of the non-examining record review state agency physicians. AR 17
citing AR 58-67. The non-examining non-treating physician opinion on
which the ALJ gives great weight over the examining opinion does not
provide any refuge for the ALJ’s deficient analysis. . . .
In fact, the non-examining physician who offered his opinion in
December 2012 had less of the medical file to review then [sic] Dr. Van
Kirk. AR 381, 386 (noting April 17, 2013, MRI reviewed). Therefore, the
ALJ incorrectly gave weight to the December 2012 non-examining state
agency opinion over the more recent December 2013 examining opinion
of Dr. Van Kirk because the non-examining physician opinion was stale
and relied on a record that was incomplete, in light of further development,
a year later. AR 17. . . .

18
19
20
21
22
23
24
25

///

26

///
5

1

Plaintiff relies on Stone v. Heckler, 761 F.2d 530 (9th Cir. 1985), for the

2

proposition that earlier medical evaluations do not constitute substantial evidence to rebut the

3

conclusions of a later report. Stone, however, is distinguishable. In Stone, the plaintiff’s

4

condition was progressively deteriorating and the most recent medical opinion was that the

5

plaintiff could not work in any job requiring the use of his lower extremities. In the context of

6

those facts, the court concluded that erred in relying on reports from months earlier over the most

7

recent report. Unlike Stone, there is no evidence in this case that plaintiff’s condition was

8

progressively deteriorating. At worst, and as the ALJ indicated, progress notes showed only

9

some decreased spinal range of motion. Despite this finding, progress notes also showed that

10

plaintiff was only advised to avoid heavy lifting and bending. Moreover, as the ALJ also

11

indicated, the record reflects that plaintiff’s condition was well-controlled and has responded to

12

conservative care.

13

Given the facts of this case, the court rejects plaintiff’s argument that Dr. Van

14

Kirk’s more recent opinion cannot be rebutted by Dr. Anderson’s older opinion. The court also

15

concludes that Dr. Anderson’s opinion constitutes substantial evidence supported by the record

16

as a whole and that the ALJ cited proper reasons for rejecting the conflicting portion of Dr. Van

17

Kirk’s opinion.

18

///

19

///

20

///

21

///

22

///

23

///

24

///

25

///

26

///
6

1
2

IV. CONCLUSION
Based on the foregoing, the court concludes that the Commissioner’s final

3

decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY

4

ORDERED that:

5

1.

Plaintiff’s motion for summary judgment (Doc. 16) is denied;

6

2.

Defendant’s cross-motion for summary judgment (Doc. 23) is granted; and

7

3.

The Clerk of the Court is directed to enter judgment and close this file.

8
9
10
11

DATED: March 27, 2017
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7