Whynaught v. Colvin

Filing 22

ORDER Denying Plaintiff's Motion for Summary Judgment and Granting Defendant's Cross-Motion for Summary Judgment (Doc. Nos. 14 . 15 ). It is hereby Ordered and Adjudged: 1. The joint motion for a decision is granted; 2. Plaintiff's motion for summary judgment is denied; 3. Defendant's cross-motion for summary judgment is granted. Signed by Judge John A. Houston on 11/19/2020. (jrm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TODD A. WHYNAUGHT,

Case No.: 16cv01574 JAH-NLS
Plaintiff,

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v.

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ORDER DENYING PLAINTIFF’S
MOTION FOR SUMMARY
JUDGMENTAND GRANTING IN
DEFENDANT’S CROSS-MOTION
FOR SUMMARY JUDGMENT
[Doc. Nos. 14, 15]

CAROLYN W. COLVIN, Commissioner
of Social Security,

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Defendant.

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INTRODUCTION

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Plaintiff seeks review of the Social Security Commissioner’s final decision denying

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benefits. After a thorough review of the parties’ submissions and for the reasons set forth

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below, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS

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Defendant’s cross-motion for summary judgment.

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BACKGROUND

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Plaintiff was born on December 21, 1961 and was 52 years of age at the time of the

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hearing before the Administrative Law Judge (“ALJ”). AR1 at 40, 176. He initially alleged

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he had been unable to work since November 1, 2006, as a result of a disabling condition

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AR refers to the administrative record.
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but amended the onset date to January 16, 2012 at the hearing. Id. at 56, 176. He filed an

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application for benefits on January 17, 2012 and an application for supplement security

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income on January 19, 2012. Id. at 175, 185. The Commissioner denied the claims on

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August 9, 2012 and denied the claims again upon reconsideration. Id. at 74 – 111. Plaintiff

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requested a hearing and testified at the hearing on July 17, 2014. Id. at 37, 132. The ALJ

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issued an unfavorable decision on September 25, 2014. Id. at 21. Plaintiff filed a request

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for review of the ALJ’s decision and the Appeals Council denied the request. Id. at 1, 15.

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Plaintiff, appearing through counsel, filed a complaint seeking review of the

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Commissioner’s final decision denying benefits on June 21, 2016. See Doc. No. 1.

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Defendant filed an answer and the administrative record on June 30, 2016. See Doc. Nos.

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Thereafter, Plaintiff filed the pending motion for summary judgment and Defendant

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filed an opposition and cross-motion for summary judgment. See Doc. Nos. 14, 15, 16.

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Plaintiff filed a reply. See Doc. No. 17.

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DISCUSSION

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I. Legal Standards

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A. Qualifying for Disability Benefits

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To qualify for disability benefits under the Act, an applicant must show that: (1) he

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suffers from a medically determinable impairment that can be expected to result in death

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or that has lasted or can be expected to last for a continuous period of not less than twelve

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months; and (2) the impairment renders the applicant incapable of performing the work

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that he previously performed or any other substantially gainful employment that exists in

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the national economy. See 42 U.S.C. § 423(d)(1)(A), 2(A). An applicant must meet both

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requirements to be “disabled.” Id.

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The Secretary of the Social Security Administration has established a five-step

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sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§

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404.1520, 416.920. Step one determines whether the claimant is engaged in “substantial

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gainful activity.” If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b),
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416.920(b). If he is not, the decision maker proceeds to step two, which determines

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whether the claimant has a medically severe impairment or combination of impairments.

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If the claimant does not have a severe impairment or combination of impairments, the

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disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is

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severe, the evaluation proceeds to the third step, which determines whether the impairment

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is equivalent to one of a number of listed impairments that the Secretary acknowledges are

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so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d); 20 C.F.R.

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Part 404 Appendix 1 to Subpart P. If the impairment meets or equals one of the listed

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impairments, the claimant is conclusively presumed to be disabled. If a condition “falls

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short of the [listing] criterion” a multiple factor analysis is appropriate. Celaya v. Halter,

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332 F.3d 1177, 1181 (9th Cir. 2003). Of such analysis, “the Secretary shall consider the

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combined effect of all the individual’s impairments without regard to whether any such

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impairment, if considered separately, would be of such severity.” Id. at 1182 (quoting 42

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U.S.C. § 423(d)(2)(B)). If the impairment is not one that is conclusively presumed to be

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disabling, the evaluation proceeds to the fourth step, which determines whether the

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impairment prevents the claimant from performing work she has performed in the past. If

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the claimant cannot perform his previous work, the fifth and final step of the process

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determines whether he is able to perform other work in the national economy considering

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his age, education, and work experience. The claimant is entitled to disability benefits only

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if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1).

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B. Judicial Review of an ALJ’s Decision

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Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of

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a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial

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review is limited. The Commissioner’s denial of benefits “will be disturbed only if it is

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not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of

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Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803

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F.2d 528, 529 (9th Cir. 1986)).

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Substantial evidence means “more than a mere scintilla” but less than a

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preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted).

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“[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a

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conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The

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Court must consider the record as a whole, weighing both the evidence that supports and

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detracts from the Commissioner’s conclusions. Desrosiers v. Secretary of Health &

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Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993,

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995 (9th Cir. 1985)). If the evidence supports more than one rational interpretation, the

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Court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)

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(citing Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir.

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1984)). When the evidence is inconclusive, “questions of credibility and resolution of

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conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694

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F.2d 639, 642 (9th Cir. 1982).

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However, even if the reviewing court finds that substantial evidence supports the

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ALJ’s conclusions, the Court must set aside the decision if the ALJ failed to apply the

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proper legal standards in weighing the evidence and reaching a decision. See Benitez v.

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Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a

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judgment affirming, modifying, or reversing the Commissioner’s decision. 42 U.S.C. §

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405(g). The reviewing court may also remand the matter to the Social Security

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Administrator for further proceedings. Id. “If additional proceedings can remedy defects

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in the original administrative proceeding, a social security case should be remanded.”

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Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654

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F.2d 631, 635 (9th Cir. 1981)).

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II. The ALJ’s Decision

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In the present case, the ALJ found Plaintiff has not engaged in substantial gainful

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activity since January 16, 2012 and has severe impairments, including spinal stenosis of

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the lumbar region with radiculopathy (left leg pain), disorder of the left hand, status post-

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surgery to the left thumb, and history of right ankle fracture and status post right ankle
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surgery. AR at 23. The ALJ determined Plaintiff does not have an impairment or

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combination of impairments that meet or are medically equal in severity to one of the listed

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impairments in 20 CFR Part 404 Subpart P, Appendix 1. Id. at 25.

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The ALJ found Plaintiff has a residual functional capacity

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to lift or carry no more than 20 pounds occasionally and 10 pounds frequently; push
or pull no more than 20 pounds occasionally and 10 pounds frequently; stand or
walk for a total of 6 hours out of an 8-hour workday, with no prolonged walking
greater than 30 minutes at a time with the use of a cane; sit for a total of 6 hours out
of an 8-hour workday, with the opportunity to stand and stretch, not to exceed 10%
of the day; occasional handling and fingering with the left (nondominant) hand but
without limit to the right (dominant) hand; no climbing ladders, ropes or scaffolds;
no exposure to work hazards (e.g. unprotected heights, operating fast or dangerous
machinery or driving commercial vehicles).
Id. Additionally, the ALJ found Plaintiff’s statements concerning the intensity,

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persistence and limiting effects of his symptoms not entirely credible because they were

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“not borne out in his description of his daily activities”, the objective evidence does not

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support the degree alleged, Plaintiff had not received the type of medical treatment one

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would expect for a totally disabled individual, and the objective medical evidence showed

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Plaintiff’s medications were relatively effective in controlling his symptoms. Id. at 25, 26,

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27.

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The ALJ gave little weight to the opinion of treating physician Dr. Cynthia

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McKinney, some weight to the opinion of consulting physician Dr. Robert MacArthur and

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significant weight to the opinion of the State agency medical consultant assessment dated

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June 19, 2013. Id. at 28.

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The ALJ determined Plaintiff was unable to perform his past relevant work but there

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are jobs in the national economy in significant numbers that he can perform. Id. 28, 29.

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Ultimately, the ALJ concluded Plaintiff has not been under a disability as defined by the

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Act from June 16, 2012. Id. at 30.

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III. Analysis

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Plaintiff argues the ALJ erred in assessing the opinion of Plaintiff’s treating

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physician Dr. Kinney. “[A]s a general rule, more weight should be given to the opinion of
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a treating source than to the opinion of doctors who do not treat the claimant.” Benton v.

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Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (quoting Lester v. Chater, 81 F.3d 821, 830

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(9th Cir. 1995)). Where the treating doctor’s opinion is not contradicted by another doctor,

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it may be rejected only for “clear and convincing” reasons supported by substantial

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evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Even if the

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treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this

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opinion without providing “specific and legitimate reasons” supported by substantial

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evidence in the record. Id. The ALJ can “meet this burden by setting out a detailed and

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thorough summary of the facts and conflicting clinical evidence, stating his interpretation

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thereof, and making findings.” Magallanes v. Secretary of Health and Human Services,

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881 F.2d 747, 751 (9th Cir. 1989). Where the opinion of the claimant’s treating physician

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is contradicted, and the opinion of a non-treating source is based on independent clinical

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findings that differ from those of the treating physician, the opinion of the non-treating

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source may itself be substantial evidence. Andrews, 53 F.3d at 1041. In addition, the ALJ

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need not accept the opinion of any physician, including a treating physician, if that opinion

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is brief, conclusory, and inadequately supported by clinical findings. Matney v. Sullivan,

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981 F.2d 1016, 1019 (9th Cir. 1992).

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Plaintiff contends the ALJ’s presents four reasons for rejecting his treating doctor’s

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opinion: (1) the opinion is unsubstantiated by objective signs, (2) the opinion is inconsistent

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with the course of treatment. (3) the opinion is undermined by Plaintiff’s daily activities

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and (4) the opinion is inconsistent with the opinion of the consultative examiner Dr. Robert

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MacArthur.

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Plaintiff argues the ALJ’s assertion that his treating doctor’s opinion is not

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substantiated by objective signs is false and has been rejected by the Ninth Circuit. He

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further argues the ALJ’s determination that the opinion is inconsistent is not applicable

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here because the records demonstrate he received numerous epidural steroid injections

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during the period under consideration, he takes Vicodin and Morphine and, even though,

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he was deemed not a surgical candidate, he was evaluated for surgical intervention due to
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his pain. Plaintiff maintains this is not conservative treatment and contends the ALJ’s

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rejection is premised on the ALJ’s lay opinion as to what constitutes conservative treatment

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which is not supported by any medical opinion.

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Plaintiff maintains Dr. McKinney limited him to sitting two hours total, twenty

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minutes at a time, and stated that he requires the ability to shift positions every thirty

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minutes. He maintains these limitations are consistent with his ability to ride a scooter to

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go shopping and to the doctor’s office and his ability to help his friend as a handyman.

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Even assuming Dr. MacArthur’s opinion constitutes substantial evidence, Plaintiff
argues, the ALJ’s articulated reasons fall short of specific and legitimate.

Plaintiff

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maintains the Court should credit Dr. McKinney’s opinion as true and find Plaintiff

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disabled.

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proceedings would be futile.

He maintains the record is fully developed and further administrative

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In opposition, Defendant argues the ALJ properly assessed Dr. McKinney’s opinion.

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Specifically, Defendant argues the ALJ properly discounted the opinion because it

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conflicted with the medical evidence, including Dr. McKinney’s own notes in which she

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writes that Plaintiff’s symptoms were stable or controlled by medication. In addition,

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Defendant maintains much of Dr. McKinney’s care consisted of providing Plaintiff with

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refills of his medication.

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Defendant also argues Plaintiff’s ability to work part-time as a handyman for his

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friend and others conflicted with Dr. McKinney’s opinion. Additionally, Defendant

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maintains Dr. MacArthur opined that Plaintiff was capable of performing a range of

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medium work and Dr. N. Tsoulos, a State agency physician, reviewed Plaintiff’s records

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and opined that he was capable of performing a range of light work. Defendant contends

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these opinions constitute substantial evidence, and the ALJ was entitled to rely on them.

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In reply, Plaintiff argues Defendant’s cherry picking of the record is not germane to
the disposition of this case.

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In the written decision, the ALJ gave little weight to Dr. McKinney’s opinion

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because the functional limits of the opinion were too extreme and unsubstantiated by
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objective signs and symptoms from treating records and were inconsistent with the course

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of treatment for chronic pain. The ALJ maintained that Plaintiff’s treatment, aside from

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the surgeries to his left thumb, were conservative. The ALJ further maintained the limits

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provided by Dr. McKinney were undermined by Plaintiff’s daily activities, and specifically

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pointed to his ability to ride a scooter to shop and make doctor appointments as well as his

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demonstrated reliability as a handyman. The ALJ also found the opinion was inconsistent

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with the findings and opinions of Dr. MacArthur, who determined Plaintiff could do a

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significant range of medium exertional work after performing an evaluation of Plaintiff.

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As required, the ALJ provided a detailed and thorough summary of the facts and

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evidence and an interpretation of the evidence to support the findings.

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demonstrates the ALJ’s determination that Plaintiff’s treatment was conservative is not a

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legitimate reason to support rejecting his treating doctor’s opinion.2 However, the ALJ’s

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remaining reasons for rejecting the opinion are supported by evidence of record. Plaintiff

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disagrees with the ALJ’s interpretation and findings and points to evidence he believes

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supports his doctor’s opinion. Where, as here, the evidence is open to more than one

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rational interpretation and the ALJ's findings are supported by substantial evidence, the

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ALJ’s decision must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

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CONCLUSION AND ORDER

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Plaintiff

Based on the foregoing, IT IS HEREBY ORDERED:

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1. The joint motion for a decision (Doc. No. 21) is GRANTED;

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2. Plaintiff’s motion for summary judgment (Doc. No. 14) is DENIED;

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3. Defendant’s cross-motion for summary judgment (Doc. No. 15) is GRANTED;

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//

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//

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Plaintiff cites cases in which the court finds similar treatment that he received was not properly
described as conservative, including, Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. 2011) Yang
v. Barnhart, 2006 WL 3694857, *4 (C.D. Cal. 2006).
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4. The Clerk of Court shall enter judgment accordingly.
DATED:

November 19, 2020

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____________________________________
JOHN A. HOUSTON
United States District Judge

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