Judith A. Tapia v. Michael J. Astrue, No. 2:2009cv05942 - Document 15 (C.D. Cal. 2011)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Alicia G. Rosenberg. Judith Tapia filed this action on August 18, 2009. Pursuant to 28 U.S.C. §636(c), the parties consented to proceed before Magistrate Judge Rosenberg on September 1 and 3, 2009. (D kt. Nos. 8, 9.) On April 13, 2010, the parties filed a Joint Stipulation (JS) that addressed the disputed issues. The Court has taken the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the Commissioner. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Order for details.) (mp)
Download PDF
<![CDATA[
Judith A. Tapia v. Michael J. Astrue Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JUDITH TAPIA, 12 Plaintiff, 13 v. 14 15 MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 09-5942 AGR MEMORANDUM OPINION AND ORDER 18 Judith Tapia filed this action on August 18, 2009. Pursuant to 28 U.S.C. § 19 636(c), the parties consented to proceed before Magistrate Judge Rosenberg on 20 September 1 and 3, 2009. (Dkt. Nos. 8, 9.) On April 13, 2010, the parties filed a 21 Joint Stipulation ( JS ) that addressed the disputed issues. The Court has taken 22 the matter under submission without oral argument. Having reviewed the entire file, the Court affirms the decision of the 23 24 Commissioner. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On May 21, 2007, Tapia filed an application for disability insurance 4 benefits. Administrative Record ( AR ) 13. On May 30, 2007, Tapia filed an 5 application for supplemental security income benefits. Id. In both applications, 6 Tapia alleged a disability onset date of October 1, 2001. Id. The applications 7 were denied initially. AR 66-75. Tapia requested a hearing before an 8 Administrative Law Judge ( ALJ ). AR 76. On January 21, 2009, the ALJ 9 conducted a hearing at which Tapia and a vocational expert testified. AR 25-63. 10 On February 11, 2009, the ALJ issued a decision denying benefits. AR 7-22. On 11 April 13, 2009, Tapia requested that the Appeals Council review the decision 12 denying benefits. AR 5-6. On June 24, 2009, the Appeals Council denied the 13 request for review. AR 1-4. This action followed. 14 II. 15 STANDARD OF REVIEW 16 Pursuant to 42 U.S.C. § 405(g), this Court reviews the Commissioner s 17 decision to deny benefits. The decision will be disturbed only if it is not supported 18 by substantial evidence, or if it is based upon the application of improper legal 19 standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995); Drouin v. 20 Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 21 Substantial evidence means more than a mere scintilla but less than a 22 preponderance it is such relevant evidence that a reasonable mind might 23 accept as adequate to support the conclusion. Moncada, 60 F.3d at 523. In 24 determining whether substantial evidence exists to support the Commissioner s 25 decision, the Court examines the administrative record as a whole, considering 26 adverse as well as supporting evidence. Drouin, 966 F.2d at 1257. When the 27 evidence is susceptible to more than one rational interpretation, the Court must 28 defer to the Commissioner s decision. Moncada, 60 F.3d at 523. 2 1 III. 2 DISCUSSION 3 A. 4 A person qualifies as disabled, and thereby eligible for such benefits, only 5 if his physical or mental impairment or impairments are of such severity that he is 6 not only unable to do his previous work but cannot, considering his age, 7 education, and work experience, engage in any other kind of substantial gainful 8 work which exists in the national economy. Barnhart v. Thomas, 540 U.S. 20, 9 21-22, 124 S. Ct. 376, 157 L. Ed. 2d 333 (2003). Disability 10 B. 11 The ALJ found that Tapia meets the insured status requirements through 12 13 The ALJ s Findings March 31, 2005. AR 15. Tapia has the severe impairments of left upper extremity pain disorder; 14 cervical spine pain disorder; and low back pain disorder. Id. She has the 15 residual functional capacity ( RFC ) to perform medium work. AR 17-20. She 16 can occasionally lift up to 50 pounds and frequently lift up to 25 pounds. AR 17. 17 Tapia can stand or walk for approximately 6 hours per 8-hour workday, with 18 normal breaks; and sit for approximately 6 hours per 8-hour workday, with normal 19 breaks. Id. She can push, pull, lift and reach with the left upper extremity, but 20 not over shoulder height. [She] cannot climb ladders, ropes or scaffolds, but can 21 frequently climb ramps or stairs. She can frequently kneel, crouch and crawl, and 22 occasionally stoop. [She] must avoid all work that involves repeated neck rotation 23 and forced flexion or extension of the neck for prolonged periods. She must 24 avoid concentrated exposure to extreme cold, hazardous machinery, unprotected 25 heights, or other high risk, hazardous or unsafe conditions. [She] can perform 26 work that is limited to 1 or 2-step simple, routine and repetitive tasks in a low 27 stress job which does not require any unusual, very fast pace or production rate 28 requirements. Id. 3 1 The ALJ found that Tapia is not able to perform her past relevant work as a 2 demonstrator and ticketer, but there are jobs that exist in significant numbers in 3 the national economy that Tapia can perform. AR 20, 21. 4 C. 5 Tapia argues that the ALJ improperly rejected the opinion of her treating 6 7 Treating Physician physician, Dr. Tan. JS 5-13. An opinion of a treating physician is given more weight than the opinion of 8 a non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To 9 reject an uncontradicted opinion of a treating physician, an ALJ must state clear 10 and convincing reasons that are supported by substantial evidence. Bayliss v. 11 Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). When a treating physician s 12 opinion is contradicted by another doctor, the ALJ may not reject this opinion 13 without providing specific and legitimate reasons supported by substantial 14 evidence in the record. This can be done by setting out a detailed and thorough 15 summary of the facts and conflicting clinical evidence, stating his interpretation 16 thereof, and making findings. Orn, 495 F.3d at 632 (citations and quotation 17 marks omitted). When the ALJ declines to give a treating physician's opinion 18 controlling weight, the ALJ considers several factors, including the following: (1) 19 length of the treatment relationship and frequency of examination;1 (2) nature and 20 extent of the treatment relationship;2 (3) the amount of relevant evidence 21 supporting the opinion and the quality of the explanation provided; (4) 22 23 24 25 26 27 28 1 Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source. 20 C.F.R. § 404.1527(d)(2)(i). 2 Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. 20 C.F.R. § 404.1527(d)(2)(ii). 4 1 consistency with record as a whole; and (5) the specialty of the physician 2 providing the opinion. See id. at 631; 20 C.F.R. § 404.1527(d)(1)-(6). When 3 there is conflicting medical evidence, the Secretary must determine credibility and 4 resolve the conflict. Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 2002) 5 (citation and quotation marks omitted). 6 An examining physician's opinion constitutes substantial evidence when it 7 is based on independent clinical findings. Orn, 495 F.3d at 631. However, 8 [w]hen an examining physician relies on the same clinical findings as a treating 9 physician, but differs only in his or her conclusions, the conclusions of the 10 11 examining physician are not substantial evidence. Id. A non-examining physician's opinion constitutes substantial evidence when 12 it is supported by other evidence in the record and consistent with it. Andrews v. 13 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). However, a non-examining 14 physician's opinion cannot by itself constitute substantial evidence. Widmark v. 15 Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). 16 The ALJ gave Dr. Tan s opinion little weight because it was (1) 17 inconsistent with the weight of the evidence as a whole, including the claimant s 18 testimony ; (2) the opinion contained speculative assessments that were not 19 supported by sufficient objective medical evidence; and (3) the opinion is 20 exaggerated in comparison with Dr. Tan s treatment records. AR 19. 21 Dr. Tan diagnosed lumbar radiculopathy and diabetes. AR 658, 666. In a 22 Lumbar Spine Residual Functional Capacity Questionnaire, Dr. Tan opined that 23 Tapia can stand for no more than 10 minutes at one time, sit for no more than 15 24 minutes at one time, and sit/stand/walk for less than 2 hours in an 8-hour 25 workday.3 AR 659-60. Tapia can never lift anything. Every 10 minutes, Tapia 26 27 28 3 In both RFC forms, Dr. Tan answered yes to the question Is your patient a malingerer? . AR 658, 662. This Court assumes that Dr. Tan s answer is a typographical error. 5 1 must walk around for about 10 minutes. On the other hand, Tapia does not need 2 to shift positions at will or take unscheduled breaks. AR 659. Tapia s pain is 3 constantly severe enough to interfere with the attention and concentration 4 needed to perform even simple work tasks. AR 660. Tapia s limitations with 5 reaching, handling or fingering render her unable to work. AR 661. 6 In a Diabetes Mellitus Residual Functional Capacity Questionnaire 7 completed on the same day, Dr. Tan again opined that Tapia s pain and other 8 symptoms constantly interfere with attention and concentration needed to 9 perform even simple work tasks. AR 663. Tapia is unable to work. Id. She 10 can sit up to 30 minutes at one time, stand up to 30 minutes at one time, and 11 sit/stand/walk less than 2 hours in an 8-hour workday. Id. Every 10 minutes, 12 Tapia must walk around for 10 minutes. AR 663-64. Again, however, Tapia does 13 not need to shift positions at will or take unscheduled breaks. AR 664. She 14 should avoid exposure to extreme cold, extreme heat, high humidity, fumes, 15 odors, chemicals and solvents. AR 665. 16 In a Medical Evaluation Form completed on the same day, Dr. Tan 17 opines that Tapia is unable to stand due to severe pain, can sit for 30 minutes, 18 can sit/stand alternatively for 15 minutes, and cannot walk for more than 15 19 minutes. AR 668. She has stiffness and pain in her fingers, and has no ability to 20 engage in sustained work. Id. 21 Inconsistency with the claimant s testimony constitutes a specific and 22 legitimate reason to discount Dr. Tan s opinion. See Rollins v. Massanari, 261 23 F.3d 853, 856 (9th Cir. 2001) (inconsistency with plaintiff s own reports and 24 testimony was a specific and legitimate reason to reject treating doctor s opinion). 25 In contrast to Dr. Tan s functional limitations, Tapia testified that she shops for up 26 to an hour at a time and she watches TV approximately one hour in the morning 27 and two hours in the afternoon. AR 38, 39. She also testified that she bathes, 28 cleans and dusts around the house, and makes a sandwich or soup for herself. 6 1 AR 37. In the Function Report, dated June 8, 2007, Tapia represented that she 2 shops once a week for 1-2 hours and walks up to a half mile before needing a 6- 3 minute rest.4 AR 137, 139. Tapia denied the use of mobility devices, noting that 4 she used only a back brace and orthopaedic shoes. AR 140. Further, the ALJ 5 observed on the record that Tapia was able to sit through the hearing, which 6 lasted an hour and a half, except for a few minutes when she stood. AR 63. 7 The ALJ also discounted Dr. Tan s opinion on the ground that it was not 8 supported by the evidence as a whole. AR 19. In August 2007, Dr. Siciarz, an 9 examining physician, found no tenderness at the cervical or lumbar spine, range 10 of motion in the knees and ankles within normal limits, good muscle tone, muscle 11 strength of 5/5 in all extremities and a gait within normal limits.5 AR 398-399. Dr. 12 Siciarz found decreased sensation in both lower extremities. AR 399. Dr. Siciarz 13 opined that Tapia had functional limitations due to back pain, left shoulder pain, 14 diabetes and hypertension, that she could lift and carry up to 50 pounds 15 occasionally and 25 pounds frequently, that she could sit, stand, and walk for 6 16 hours in an 8-hour workday, and that she could reach, limited to the left upper 17 extremity to above reach level. AR 399. Dr. Siciarz s opinion constitutes 18 substantial evidence. See Orn, 495 F.3d at 631 (an examining physician s 19 opinion constitutes substantial evidence when it is based on independent clinical 20 findings). Dr. Boetcher, a non-examining physician, opined that Tapia could 21 perform medium work, with the exception of overhead work with the left upper 22 extremity. AR 402-407. 23 24 25 26 27 28 4 Dr. Pinanong s evaluation in August 2007 similarly reports that Tapia stated she is able to shop, cook, perform personal affairs, and use public transportation. AR 393. 5 Dr. Gross, a treating physician who examined Tapia after a car accident in March 2007, found that Tapia s lumbar spine showed slight limitation of motion and diagnosed lumbar sprain with preexisting 1 mm disk bulge at L2, L3, L4 and L5. AR 540-541. He recommended conservative treatment consisting of pain killers and exercises, and possibly cortisone injections if her condition did not improve in 3-4 weeks. AR 541. 7 1 In addition, the ALJ need not accept the opinion of any physician, 2 including a treating physician, if that opinion is . . . inadequately supported by 3 clinical findings. Bray v. Comm r of SSA, 554 F.3d 1219, 1228 (9th Cir. 2009) 4 (citation omitted); Batson v. Comm r of the SSA, 359 F.3d 1190, 1195 (9th Cir. 5 2004). In finding Dr. Tan s opinion exaggerated, the ALJ cited Dr. Tan s 6 treatment records. AR 19, 283-365, 469-531. Tapia underwent tests in 2008 due 7 to abdominal pain, toe contusion, left ankle contusion, gastritis, lumbar pain, and 8 pelvic pain. AR 505, 506, 517-519. The lumbar MRI was largely normal except 9 for mild narrowing of the disc space and disc dessication at L2-L3 and L4-L5, 10 and a 1 mm disc bulge at L2-L3, L4-L5 and L5-S1. AR 518, 520. The nerve 11 conduction study was normal. The EMG shows chronic denervation at L4, L5 12 and S1. AR 656. X-rays showed a fracture of the fifth toe on the right foot, and 13 soft tissue swelling without evidence of fracture on the left ankle. AR 505, 507- 14 508. Tapia had moderate chronic gastritis, mild reflux esophagitis, and an 15 echogenic liver due to fatty infiltration. AR 198, 506, 517. No abnormality was 16 detected in her pelvis. AR 519. In 2007, Tapia s neurologic examination was 17 unremarkable, she had normal muscle bulk and tone, and strength was 5/5 18 throughout all muscle groups. She reported being able to perform activities of 19 daily living without difficulty. AR 295-297. MRI tests found 1 mm disc bulges and 20 disc dessication at L2-3 and L4-5, and some mild hypertrophic degenerative 21 change of the lower thoracic and upper lumbar spine. AR 384. Tapia had mild 22 osteopenia in the cervical spine. AR 253. An EMG and nerve conduction study 23 was abnormal and consistent with peripheral polyneuropathy and chronic 24 denervation at L4, L5 and S1. AR 376-80. In 2003, a left ribs x-ray noted 25 thoracic spondylosis. AR 211. In 2001, Tapia had degenerative joint disease in 26 her left clavicle and mild degenerative changes in her lumbar spine. AR 300, 27 303. In May 2007, Tapia was discharged from physical therapy with some goals 28 having been met. AR 286. 8 1 Given the claimant s testimony, the record as a whole, and the lack of 2 objective findings to support Dr. Tan s extreme limitations, the ALJ provided 3 specific and legitimate reasons to discount Dr. Tan s opinion. 4 IV. 5 ORDER 6 7 8 9 IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment herein on all parties or their counsel. 10 11 DATED: March 8, 2011 ALICIA G. ROSENBERG United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
