Lisa L Morris v. Michael J Astrue, No. 2:2012cv03345 - Document 20 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton. the Court concludes that the ALJ relied upon substantial evidence, and correctly evaluated the evidence in the record in determining that Plaintiff was not disabled. The Court does find that the ALJ articulated a legally sufficient rationale to reject Dr. Orzeck's opinion. The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. 1 [SEE ORDER FOR FURTHER DETAILS] (gr)
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 LISA L. MORRIS, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 12-03345-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 ( JS ), and the Commissioner has filed the certified Administrative 26 Record ( AR ). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issue: 28 1. Whether the Administrative Law Judge ( ALJ ) properly 1 considered the medical evidence as contained in the treating 2 opinion of Elise Orzeck, DPM. 3 (JS at p. 5) 4 5 This Memorandum Opinion will constitute the Court s findings of 6 fact and conclusions of law. After reviewing the matter, the Court 7 concludes that the decision of the Commissioner must be affirmed. 8 9 I 10 THE ALJ PROPERLY CONSIDERED THE EVIDENCE 11 FROM TREATING DPM, DR. ORZECK 12 On January 16, 2006, Plaintiff fell from a ladder, severely 13 injuring her ankle. 14 seeing podiatrist Felice Orzeck.1 15 She went to physical therapy, and also began After her applications for disability insurance benefits and 16 Social Security Insurance ( SSI ) were administratively denied, 17 Plaintiff2 proceeded to a hearing before the ALJ (AR 23-61), following 18 which an unfavorable decision was issued. (AR 10-19.) Plaintiff takes 19 issue with the ALJ s evaluation of the opinion of her treating 20 podiatrist, Dr. Orzeck. 21 After reviewing the evidence, the ALJ determined that Plaintiff s 22 Residual Functional Capacity ( RFC ) enables her to lift 20 pounds 23 occasionally and 10 pounds frequently; she can stand and walk, with 24 25 26 27 28 1 Plaintiff s testimony was that she believed she began seeing Dr. Orzeck in 2006 (AR 35). Dr. Orzeck indicated her first patient contact with Plaintiff was in 2007. (AR 319.) 2 Plaintiff is known as Lisa Morris, although at the administrative hearing, the ALJ referred to her as Lisa Morris Flores. (AR 25.) 2 1 normal breaks, for a total of two hours in an eight-hour workday, and 2 she can sit, with normal breaks, for a total of six hours in an eight- 3 hour workday. She has some exertional limitations. (AR 14.) 4 In arriving at the RFC, the ALJ considered Dr. Orzeck s opinion, 5 along with the opinions of other examining and non-examining sources. 6 This analysis is reflected in the Decision at AR 14-16. 7 opinions considered by the ALJ was that of Dr. Tom, who performed an 8 orthopedic consultative examination ( CE ) on September 4, 2009 at the 9 request of the Department of Social Services. (AR 213-219.) Following 10 Dr. Tom s examination, which included what appears to be complete 11 objective testing (see, AR 214-218), he assessed that Plaintiff can 12 lift 13 frequently; can stand and walk six hours in an eight-hour day with the 14 appropriate breaks and orthopedic braces for the right foot; can sit 15 six hours out of an eight-hour day with appropriate breaks; and, that 16 there are no upper extremity or left leg, neck, or lumbar spine 17 fractures that would affect her functional ability to a significant 18 extent. (AR 218.) 19 15), who concluded that Plaintiff s examination was essentially 20 normal and with only limited range of motion of [Plaintiff s] right 21 foot. (AR 14.) 22 Tom s examination, nor does she argue that Dr. Tom s examination was 23 faulty, or that his conclusions were incorrect. 24 and carry 20 pounds occasionally and less than Among the 10 pounds Dr. Tom s report was summarized by the ALJ (AR 14- Plaintiff does not dispute the ALJ s summary of Dr. Plaintiff also had extensive physical therapy, and, again, the 25 ALJ made substantial reference to that in his Decision. (AR 15-16.) 26 Summarizing the physical therapy treatment notes, the ALJ concluded 27 that they indicate that Plaintiff had good balance, and she had 28 improved gait activity, increased push off, decreased pain symptoms 3 1 [and] tolerated exercise well. (AR 14-16, 199, 204, 218.) 2 The ALJ also relied upon, and in fact agreed with the physical 3 RFC assessment of the State Agency physician, Dr. Bayer. (AR 14, 221- 4 226.) 5 In contrast to the conclusions of these examining and non- 6 examining sources, 7 Functional Capacity Questionnaire ( Questionnaire ) completed by 8 podiatrist Dr. Orzeck on August 5, 2010. (AR 319-322.) The ALJ 9 depreciated weight Dr. Plaintiff Orzeck s highlights conclusions, the giving Physical them less Residual 10 because he found that they were not well supported by medically 11 acceptable clinical and laboratory diagnostic techniques, and were 12 otherwise not consistent with other substantial evidence in the 13 record. (AR 15.) 14 Orzeck s own treatment records did not support the functional capacity 15 restrictions set forth in the Questionnaire. (Id.) 16 Plaintiff s area of dispute with the ALJ s assessment. In addition to that, the ALJ concluded that Dr. As noted, this is 17 Plaintiff contends that because Dr. Tom and Dr. Orzeck relied 18 upon the same evidence, but reached different conclusions, the ALJ s 19 rejection of Dr. Orzeck s opinion must be supported by specific and 20 legitimate reasons supported by substantial evidence in the record. 21 (See Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995); Social 22 Security Rulings ( SSR ) 96-2p and 96-8p.) 23 the ALJ s Decision indicates that specific and legitimate reasons 24 were, indeed, provided in the Decision. 25 reports of x-rays and CT scans in 2006 and 2007 which indicated 26 progressive and substantial healing of the injured areas. (AR 15, 232, 27 234, 263.) 28 But the Court s review of First, the ALJ pointed to The ALJ also pointed to Dr. Orzeck s own treatment notes. 4 For 1 example, in August 2009, Dr. Orzeck noted that Plaintiff had tried 2 various drugs, and 12 sessions of physical therapy, but had not had 3 any injections to her injured foot/ankle area. Dr. Orzeck recommended 4 a heel cup and follow up with her original surgeon. (AR 16, 212.) 5 Similarly, the ALJ noted that in August 2010, Dr. Orzeck remarked that 6 Plaintiff reported that she was exercising in bed, doing pushups, leg 7 kicks, and crunches. 8 pain and indicated that Plaintiff should return in four months. (AR 9 16, 327.) Dr. Orzeck prescribed Aspercreme for her foot 10 The ALJ was mostly concerned with the fact that the extreme 11 limitations assessed by Dr. Orzeck in the Questionnaire were not 12 supported by or reflective of Dr. Orzeck s own observations and her 13 extensive treatment notes. Plaintiff objects to this characterization 14 because she believes that treatment notes of a medical provider need 15 not reflect exertional limitations which may be assessed by that 16 source. (JS at 7-8.) 17 would naturally expect that treatment notes would be consistent with 18 conclusions contained in a summary questionnaire, especially where the 19 latter assesses quite extreme physical limitations. 20 allow an adjudicator to compare treatment notes, especially over an 21 extensive period of time, as is the case here, with later conclusions 22 rendered by the same source in a questionnaire. The Court disagrees with this analysis. One It is fair to 23 In addition to these reasons, and as the Court has already noted, 24 the ALJ also relied upon reports of the physical therapist, which 25 showed substantial improvement during the course of treatment and, 26 moreover, 27 reported by Dr. Orzeck in the Questionnaire. 28 reflect conclusions which are inconsistent with those Finally, the ALJ was entitled to rely upon the conclusions of the 5 1 State Agency physician, which were consistent with those of Dr. Tom. 2 See Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). 3 While Plaintiff complains that the ALJ should not have relied 4 upon the State Agency physician s opinion because it predated Dr. 5 Orzeck s opinion by about 11 months, in this case, that argument is 6 unpersuasive 7 Plaintiff s condition in the intervening time period. because there is no evidence of deterioration of 8 Thus, the Court concludes that the ALJ relied upon substantial 9 evidence, and correctly evaluated the evidence in the record in 10 determining that Plaintiff was not disabled. The Court does find that 11 the ALJ articulated a legally sufficient rationale to reject Dr. 12 Orzeck s opinion. 13 14 15 The decision of the ALJ will be affirmed. The Complaint will be dismissed with prejudice. IT IS SO ORDERED. 16 17 18 DATED: March 28, 2013 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 6
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