Edmon v. Commissioner of Social Security

Filing 27

MEMORANDUM and ORDER signed by Magistrate Judge Edmund F. Brennan on 9/12/2018 DENYING plaintiff's 18 Motion for Summary Judgment and GRANTING the Commissioner's 24 Cross-Motion for Summary Judgment. The decision of the Commissioner is AFFIRMED. The Clerk is directed to enter judgment in the Commissioner's favor and close the case. CASE CLOSED. (Zignago, K.)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

WANDA EDMON,

11
12
13
14
15

No. 2:17-cv-447-EFB

Plaintiff,
v.

MEMORANDUM AND ORDER

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

16
17

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security

18

(“Commissioner”) denying her applications for a period of disability and Disability Insurance

19

Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI of the

20

Social Security Act. The parties have filed cross-motions for summary judgment. ECF Nos. 18

21

& 24. For the reasons discussed below, plaintiff’s motion for summary judgment is denied and

22

the Commissioner’s motion is granted.

23

BACKGROUND

24

Plaintiff filed applications for a period of disability, DIB and SSI, alleging that she had

25

been disabled since July 1, 2013. Administrative Record (“AR”) at 281-295. Her applications

26

were denied initially and upon reconsideration. Id. at 154-159, 163-168. She filed a request for a

27

hearing and two hearings were held before administrative law judge (“ALJ”) G. Ross Wheatley.

28

Id. at 35-78, 79-101. The first hearing – at which plaintiff was represented by counsel - occurred
1

1

on March 10, 2016. Id. This hearing ended after the ALJ determined that the medical record was

2

not complete. Id. at 95-96. The second hearing was held on August 16, 2016. Id. at 36. Plaintiff

3

was again represented by counsel and a vocational expert testified at this hearing. Id. at 35-78.

4

On September 13, 2016, the ALJ issued a decision finding that plaintiff was not disabled

5

under sections 216(i), 223(d) and 1614(a)(3)(A) of the Act.1 Id. at 13-29. The ALJ made the

6

following specific findings:

7
8
9

1. The claimant meets the insured status requirements of the Social Security Act through
December 31, 2018.
2. The claimant has not engaged in Substantial Gainful Activity (SGA) since July 1, 2013,
the Alleged Onset Date (AOD) (20 CFR 404.1571 et seq., and 416.971 et seq.).

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

1

Disability Insurance Benefits are paid to disabled persons who have contributed to the
Social Security program, 42 U.S.C. §§ 401 et seq. Supplemental Security Income (“SSI”) is paid
to disabled persons with low income. 42 U.S.C. §§ 1382 et seq. Under both provisions,
disability is defined, in part, as an “inability to engage in any substantial gainful activity” due to
“a medically determinable physical or mental impairment.” 42 U.S.C. §§ 423(d)(1)(a) &
1382c(a)(3)(A). A five-step sequential evaluation governs eligibility for benefits. See 20 C.F.R.
§§ 423(d)(1)(a), 416.920 & 416.971-76; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The
following summarizes the sequential evaluation:
Step one: Is the claimant engaging in substantial gainful
activity? If so, the claimant is found not disabled. If not, proceed
to step two.
Step two: Does the claimant have a “severe” impairment?
If so, proceed to step three. If not, then a finding of not disabled is
appropriate.
Step three: Does the claimant’s impairment or combination
of impairments meet or equal an impairment listed in 20 C.F.R., Pt.
404, Subpt. P, App.1? If so, the claimant is automatically
determined disabled. If not, proceed to step four.
Step four: Is the claimant capable of performing his past
work? If so, the claimant is not disabled. If not, proceed to step
five.
Step five: Does the claimant have the residual functional
capacity to perform any other work? If so, the claimant is not
disabled. If not, the claimant is disabled.

26

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

27

The claimant bears the burden of proof in the first four steps of the sequential evaluation
process. Yuckert, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential
evaluation process proceeds to step five. Id.
2

28

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15

3. The claimant has the following severe impairments: Degenerative Disc Disease (DDD) of
the lumbar spine, Degenerative Joint Disease (DJD) of the Right Hip, History of Syncope,
Obesity, and Hypertension (20 CFR 404.1520(c) and 416.920(c)).
***
4. The claimant does not have an impairment or combination of impairments that meets or
medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and
416.926).
***
5. After careful consideration of the entire record, the undersigned finds that the claimant has
the Residual Functional Capacity (RFC) to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b), except: she can stand/walk six hours; she can sit for
approximately six hours in an eight-hour workday, with normal breaks; she can
occasionally climb ladders, ropes, and scaffolds; she can frequently climb ramps and
stairs; she can frequently balance, kneel, crouch, and crawl; she can stoop occasionally;
she must avoid concentrated exposure to hazardous machinery and unprotected heights.
***
6. The claimant is capable of performing Past Relevant Work (PRW) as a Correctional
Officer and Counselor. This work does not require the performance of work-related
activities precluded by the claimant’s Residual Functional Capacity (20 CFR 404.1565
and 416.965).

16
17
18

***
7. The claimant has not been under a disability, as defined in the Social Security Act, from
July 1, 2013, through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

19
20
21
22

Id. at 15-28.
Plaintiff’s request for Appeals Council review was denied on April 11, 2016, leaving the
ALJ’s decision as the final decision of the Commissioner. Id. at 1-6.
LEGAL STANDARDS

23
24

The Commissioner’s decision that a claimant is not disabled will be upheld if the findings

25

of fact are supported by substantial evidence in the record and the proper legal standards were

26

applied. Schneider v. Comm’r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir. 2000);

27

Morgan v. Comm’r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999); Tackett v. Apfel,

28

180 F.3d 1094, 1097 (9th Cir. 1999).
3

1

The findings of the Commissioner as to any fact, if supported by substantial evidence, are

2

conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir. 1985). Substantial evidence is

3

more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th

4

Cir. 1996). “‘It means such evidence as a reasonable mind might accept as adequate to support a

5

conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v.

6

N.L.R.B., 305 U.S. 197, 229 (1938)).

7

“The ALJ is responsible for determining credibility, resolving conflicts in medical

8

testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.

9

2001) (citations omitted). “Where the evidence is susceptible to more than one rational

10

interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.”

11

Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002).

12

ANALYSIS

13

Plaintiff argues that the ALJ erred by: (1) rejecting the opinions from her treating nurse

14

practitioner without articulating sufficient justification for doing so; and (2) failing to evaluate the

15

impact of plaintiff’s obesity on her ability to function.

16
17

I.

The ALJ Provided Legally Sufficient Reasons for Rejecting the Opinion of
Plaintiff’s Treating Nurse Practitioner

18

At the time plaintiff filed her claim, nurse practitioners were not considered an acceptable

19

medical source within the meaning of the regulations. See § 404.1502(a)(7) (noting that licensed

20

advanced practice registered nurse is an acceptable medical source only with respect to claims

21

filed on or after March 27, 2017); see also 20 C.F.R. § 404.1527. Thus, it generally holds that an

22

ALJ is not necessarily required to treat a nurse practitioner’s opinion with the same deference as a

23

treating physician. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Instead, an ALJ

24

must provide only “germane” reasons for discounting such opinions. Id. Nevertheless, under

25

Social Security Ruling 06-03p:

26
27
28

[A]n opinion from a medical source who is not an “acceptable
medical source” may outweigh the opinion of an “acceptable medical
source,” including the medical opinion of a treating source. For
example, it may be appropriate to give more weight to the opinion of
4

1
2

a medical source who is not an “acceptable medical source” if he or
she has seen the individual more often than the treating source and
has provided better supporting evidence and a better explanation for
his or her opinion.

3
4

SSR 06-03p, 2006 SSR LEXIS 5, 71 Fed. Reg. 45593, 45596 (Aug. 9, 2006). The Ninth Circuit

5

has also reaffirmed this principle. See, e.g., Popa v. Beryhill, 872 F.3d 901, 907 (9th Cir. 2017)

6

(finding that ALJ erred in disregarding opinion of a nurse practitioner who served as claimant’s

7

primary medical care provider); Revels v. Berryhill, 874 F.3d 648, 665 (9th Cir. 2017) (“Also,

8

though [the nurse practitioner] is not an “acceptable medical source,” she is an “other source” and

9

there are strong reasons to assign weight to her opinion. [The nurse practitioner] was a treating

10
11
12
13
14
15
16
17
18
19
20

source who examined [the claimant] at least ten times over two years.”).
Here, the ALJ accorded little weight to the opinion of Family Nurse Practitioner Burgos –
plaintiff’s primary medical provider. His stated reasons for doing so were as follows:
Ms. Burgos found that the claimant was limited to sitting, standing,
and walking less than four hours a day. Yet, it does not appear that
Ms. Burgos ever referred the claimant to a physician who specialized
in any of the claimant’s impairments. Ms. Burgos wrote an extensive
list of the claimant’s limitations, but her treatment records contain
few observations of the claimant’s level of functioning. She recorded
few musculoskeletal signs. On August 14, 2014, two days after she
completed the first statement for the claimant, she recorded few
observations of any kind during an office visit, certainly no
observations consistent with her opinion. On September 29, 2015,
Ms. Burgos observed full motor strength, and a full range of motion
(FROM) in the lumbar spine in every plane other than extension. Her
findings do not match the opinion. Although Dr. Fadoo’s name is
stamped on the forms, there is little indication that Dr. Fadoo ever
treated the claimant. The undersigned gives little weight to the
opinion of Ms. Burgos.

21
22

AR at 25. The court finds that these reasons were legally sufficient. It is well settled that, even in

23

the context of treating physicians, an inconsistency between the severity of a provider’s findings

24

and the level of prescribed treatment may justify discounting his or her opinion. See Rollins v.

25

Massanari, 261 F.3d 853, 856 (9th Cir. 2001). Similarly, inconsistencies between a provider’s

26

findings and either the medical record or their own observations may also justify rejection of their

27

opinion. See Mendoza v. Astrue, 371 F. App’x 829, 831-32 (9th Cir. 2010) (ALJ properly

28

rejected a provider’s opinion after finding it “conflicted with his own observations about
5

1

[claimant’s] mobility during the examination, and was inconsistent with the record as a whole.”);

2

Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (an ALJ permissibly rejected an opinion

3

where the treating physician offered contradictory observations).

4

And the ALJ’s findings are supported by the record. An examining physician – Dr. Bao

5

Q. Nguyen – found that plaintiff ambulated “without any problems” and that, with respect to her

6

back, plaintiff’s range of motion appeared to be “within normal limits.” AR at 487-491. Dr.

7

Nguyen opined that plaintiff could: (1) push, pull, lift, and carry 15 pounds occasionally and 10

8

pounds regularly; (2) stand and walk six out of eight working hours; (3) sit without restrictions;

9

(4) occasionally walk on uneven terrain, climb ladders, or work with heights; (5) frequently use

10

her hands for fine and gross manipulative movements; (6) bend, crouch, and crawl regularly; and

11

(7) ambulate without the use of any medical device. Id. at 491. The findings of non-examining

12

consulting physicians also supported Dr. Nguyen’s assessment. Id. at 102-113, 116-126. An

13

MRI on plaintiff’s back performed in October of 2015 produced – as the ALJ noted in his

14

decision - mild findings.2 Id. at 523-524. Finally, FNP Burgos’ own treatment records indicate

15

mild findings. See, e.g. id. at 511 (treatment notes from October 27, 2015 – “lower back TTP

16

decreased rotation but full [range of motion] otherwise”); 517 (treatment notes from September

17

29, 2015 – “lower back TTP decreased rotation but full [range of motion] otherwise”).

18

The court notes that this is not an instance in which the ALJ summarily dismissed FNP

19

Burgos’ opinion simply because she was not a physician. Instead, he discounted her assessments

20

only after weighing them against the record and offering specific and germane reasons.

21

II.

22

Plaintiff argues that the ALJ erred in failing to assess the impact of her obesity on her

The ALJ Properly Assessed the Impact of Plaintiff’s Obesity

23

ability to function as required by SSR 02-01p. The court disagrees. The ALJ recognized

24

plaintiff’s obesity as a severe impairment and referenced it in his decision. AR at 15, 21, 24.

25

/////

26
27
28

2

Plaintiff argues that this MRI “provided objective support for [plaintiff’s] reports of
radiating back pain and FNP Burgos’s assessed limitations.” ECF No. 18 at 14. This conclusory
statement is supported only by a footnote citation to websites generally describing the effects of
“bilateral neural foraminal narrowing.” Id. at 14 n.4.
6

1

And, as the Commissioner points out in her motion, plaintiff has failed to point to any instance

2

where her obesity caused functional limitations other than those considered by the ALJ. In

3

Burch v. Barnhart, the Ninth Circuit rejected a similar argument after finding that the claimant

4

had failed to set forth “any functional limitations as a result of her obesity that the ALJ failed to

5

consider.” 400 F.3d 676, 684 (9th Cir. 2005). Finally, the court notes that the ALJ’s light work

6

RFC was consistent with the findings of examining physician Nguyen who, after noting that

7

plaintiff was obese with a body mass index of 40.2, assessed similar restrictions. AR at 20, 489-

8

491.

9

CONCLUSION

10

Based on the foregoing, it is hereby ORDERED that:

11

1. Plaintiff’s motion for summary judgment (ECF No. 18) is DENIED;

12

2. The Commissioner’s cross-motion for summary judgment (ECF No. 24) is

13

GRANTED;

14

3. The decision of the Commissioner is affirmed; and

15

4. The Clerk is directed to enter judgment in the Commissioner’s favor and close the

16

case.

17

DATED: September 12, 2018.

18
19
20
21
22
23
24
25
26
27
28
7