Lawrence Wayne Demers v. Michael J Astrue, No. 5:2012cv01239 - Document 15 (C.D. Cal. 2013)

Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY by Magistrate Judge John E. McDermott, IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the Commissioner of Social Security and dismissing this case with prejudice. (SEE OPINION FOR FURTHER DETAILS) (lmh)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 9 10 11 12 LAWRENCE WAYNE DEMERS, Plaintiff, 13 v. 14 CAROLYN W. COLVIN, 15 Acting Commissioner of Social Security, 16 Defendant. 17 18 19 ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-01239-JEM MEMORANDUM OPINION AND ORDER AFFIRMING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY PROCEEDINGS On August 4, 2012, Lawrence Wayne Demers ( Plaintiff or Claimant ) filed a complaint 20 seeking review of the decision by the Commissioner of Social Security ( Commissioner ) 21 denying Plaintiff s applications for Social Security Disability Insurance benefits and 22 Supplemental Security Income benefits. The Commissioner filed an Answer on November 8, 23 2012. On January 31, 2013, the parties filed a Joint Stipulation ( JS ). The matter is now ready 24 for decision. 25 Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate 26 Judge. After reviewing the pleadings, transcripts, and administrative record ( AR ), the Court 27 concludes that the Commissioner s decision must be affirmed and this case dismissed with 28 prejudice. BACKGROUND 1 2 Plaintiff is a 42 year old male who applied for Social Security Disability Insurance 3 benefits on January 16, 2009, and Supplemental Security Income benefits on January 12, 4 2009. (AR 10.) The ALJ determined that Plaintiff has not engaged in substantial gainful activity 5 since January 17, 2008, the alleged onset date of his disability. (AR 12.) 6 Plaintiff s claims were denied initially on April 2, 2009, and on reconsideration on August 7 5, 2009. (AR 10.) Plaintiff filed a timely request for hearing, which was held before 8 Administrative Law Judge ( ALJ ) Jay E. Levine on October 6, 2010, in San Bernardino, 9 California. (AR 10.) Claimant appeared and testified at the hearing and was represented by 10 counsel. (AR. 10.) Vocational expert ( VE ) Corinne J. Porter also appeared and testified at 11 the hearing. (AR 10.) 12 The ALJ issued an unfavorable decision on December 8, 2010. (AR 10-22.) The 13 Appeals Council denied review on June 19, 2012. (AR 1-6.) DISPUTED ISSUES 14 15 As reflected in the Joint Stipulation, Plaintiff only raises the following disputed issue as 16 the ground for reversal and remand: 17 18 19 1. Whether the ALJ properly considered the opinion of Adrianne Cristina Beck, M.D. STANDARD OF REVIEW Under 42 U.S.C. § 405(g), this Court reviews the ALJ s decision to determine whether 20 the ALJ s findings are supported by substantial evidence and free of legal error. Smolen v. 21 Chater, 80 F.3d 1273, 1279 (9th Cir. 1996); see also DeLorme v. Sullivan, 924 F.2d 841, 846 22 (9th Cir. 1991) (ALJ s disability determination must be supported by substantial evidence and 23 based on the proper legal standards). 24 Substantial evidence means more than a mere scintilla, but less than a 25 preponderance. Saelee v. Chater, 94 F.3d 520, 521-22 (9th Cir. 1996) (quoting Richardson v. 26 Perales, 402 U.S. 389, 401 (1971)). Substantial evidence is such relevant evidence as a 27 reasonable mind might accept as adequate to support a conclusion. Richardson, 402 U.S. at 28 401 (internal quotation marks and citation omitted). 2 1 This Court must review the record as a whole and consider adverse as well as 2 supporting evidence. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). Where 3 evidence is susceptible to more than one rational interpretation, the ALJ s decision must be 4 upheld. Morgan v. Comm r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999). 5 However, a reviewing court must consider the entire record as a whole and may not affirm 6 simply by isolating a specific quantum of supporting evidence. Robbins, 466 F.3d at 882 7 (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)); see also Orn v. Astrue, 495 8 F.3d 625, 630 (9th Cir. 2007). THE SEQUENTIAL EVALUATION 9 10 The Social Security Act defines disability as the inability to engage in any substantial 11 gainful activity by reason of any medically determinable physical or mental impairment which 12 can be expected to result in death or . . . can be expected to last for a continuous period of not 13 less than 12 months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Commissioner has 14 established a five-step sequential process to determine whether a claimant is disabled. 20 15 C.F.R. §§ 404.1520, 416.920. 16 The first step is to determine whether the claimant is presently engaging in substantial 17 gainful activity. Parra v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). If the claimant is engaging 18 in substantial gainful activity, disability benefits will be denied. Bowen v. Yuckert, 482 U.S. 137, 19 140 (1987). Second, the ALJ must determine whether the claimant has a severe impairment or 20 combination of impairments. Parra, 481 F.3d at 746. An impairment is not severe if it does not 21 significantly limit the claimant s ability to work. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 22 1996). Third, the ALJ must determine whether the impairment is listed, or equivalent to an 23 impairment listed, in 20 C.F.R. Pt. 404, Subpt. P, Appendix I of the regulations. Parra, 481 F.3d 24 at 746. If the impairment meets or equals one of the listed impairments, the claimant is 25 presumptively disabled. Bowen v. Yuckert, 482 U.S. at 141. Fourth, the ALJ must determine 26 whether the impairment prevents the claimant from doing past relevant work. Pinto v. 27 Massanari, 249 F.3d 840, 844-45 (9th Cir. 2001). 28 3 1 Before making the step four determination, the ALJ first must determine the claimant s 2 residual functional capacity ( RFC ). 20 C.F.R. § 416.920(e). Residual functional capacity 3 ( RFC ) is the most [one] can still do despite [his or her] limitations and represents an 4 assessment based on all the relevant evidence. 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). 5 The RFC must consider all of the claimant s impairments, including those that are not severe. 6 20 C.F.R. §§ 416.920(e), 416.945(a)(2); Social Security Ruling ( SSR ) 96-8p. 7 If the claimant cannot perform his or her past relevant work or has no past relevant work, 8 the ALJ proceeds to the fifth step and must determine whether the impairment prevents the 9 claimant from performing any other substantial gainful activity. Moore v. Apfel, 216 F.3d 864, 10 869 (9th Cir. 2000). The claimant bears the burden of proving steps one through four, 11 consistent with the general rule that at all times the burden is on the claimant to establish his or 12 her entitlement to benefits. Parra, 481 F.3d at 746. Once this prima facie case is established 13 by the claimant, the burden shifts to the Commissioner to show that the claimant may perform 14 other gainful activity. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). To support 15 a finding that a claimant is not disabled at step five, the Commissioner must provide evidence 16 demonstrating that other work exists in significant numbers in the national economy that the 17 claimant can do, given his or her RFC, age, education, and work experience. 20 C.F.R. 18 § 416.912(g). If the Commissioner cannot meet this burden, then the claimant is disabled and 19 entitled to benefits. Id. THE ALJ DECISION 20 21 In this case, the ALJ determined at step one of the sequential process that Plaintiff has 22 not engaged in substantial gainful activity since January 17, 2008, the alleged onset date. (AR 23 12.) 24 At step two, the ALJ determined that Plaintiff has the following combination of medically 25 determinable severe impairments: degenerative disk disease, degenerative joint disease, drop 26 foot on left, and obesity. (AR 12.) 27 28 4 1 At step three, the ALJ determined that Plaintiff does not have an impairment or 2 combination of impairments that meets or medically equals one of the listed impairments. (AR 3 14.) 4 The ALJ then found that Plaintiff has the RFC to perform a range of sedentary work, as 5 defined in 20 CFR §§ 404.1567(a), 416.967(a) and SSR 83-10, with the following limitations: 6 Claimant can lift and/or carry 10 pounds occasionally and less than 10 7 pounds frequently; stand and/or walk, in 15-minute intervals, for two hours 8 out of an eight-hour workday; sit for six hours out of an eight hour workday 9 with regular breaks; occasionally lift overhead within the above-specified 10 weight limits; and occasionally climb stairs, stoop, kneel, and crouch. The 11 Claimant must use a cane for walking more than 50 feet. The Claimant is 12 precluded from balancing, crawling, climbing ladders; working at unprotected 13 heights; working around dangerous moving machinery; and using his left leg 14 for pushing and pulling. 15 (AR 14-20.) In determining this RFC, the ALJ made an adverse credibility determination which 16 is not challenged here. (AR 17.) 17 At step four, the ALJ found that Plaintiff is able to perform his past relevant work as a 18 patient scheduler. (AR 20.) Alternatively, the ALJ found that there are also jobs that exist in 19 significant numbers in the national economy that Claimant can perform, including charge 20 account clerk, order clerk, and paramutual ticket checker. (AR 20-21.) 21 Consequently, the ALJ found Claimant not disabled within the meaning of the Social 22 Security Act at any time from the alleged onset date through the date of the ALJ s decision. 23 (AR 21.) DISCUSSION 24 25 The ALJ decision must be affirmed. The ALJ rejected Dr. Beck s opinion for specific, 26 legitimate reasons supported by substantial evidence. The ALJ s RFC is supported by 27 substantial evidence. The ALJ s non-disability determination is supported by substantial 28 evidence and free of legal error. 5 1 A. Relevant Federal Law 2 In evaluating medical opinions, the case law and regulations distinguish among the 3 opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) 4 those who examine but do not treat the claimant (examining physicians); and (3) those who 5 neither examine nor treat the claimant (non-examining, or consulting, physicians). See 20 6 C.F.R. §§ 404.1527, 416.927; see also Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). In 7 general, an ALJ must accord special weight to a treating physician s opinion because a treating 8 physician is employed to cure and has a greater opportunity to know and observe the patient 9 as an individual. Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citation omitted). If 10 a treating source s opinion on the issues of the nature and severity of a claimant s impairments 11 is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is 12 not inconsistent with other substantial evidence in the case record, the ALJ must give it 13 controlling weight. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). 14 Where a treating doctor s opinion is not contradicted by another doctor, it may be 15 rejected only for clear and convincing reasons. Lester, 81 F.3d at 830. However, if the 16 treating physician s opinion is contradicted by another doctor, such as an examining physician, 17 the ALJ may reject the treating physician s opinion by providing specific, legitimate reasons, 18 supported by substantial evidence in the record. Lester, 81 F.3d at 830-31; see also Orn, 495 19 F.3d at 632; Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). Where a treating 20 physician's opinion is contradicted by an examining professional s opinion, the Commissioner 21 may resolve the conflict by relying on the examining physician s opinion if the examining 22 physician s opinion is supported by different, independent clinical findings. See Andrews v. 23 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); Orn, 495 F.3d at 632. Similarly, to reject an 24 uncontradicted opinion of an examining physician, an ALJ must provide clear and convincing 25 reasons. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005). If an examining physician s 26 opinion is contradicted by another physician s opinion, an ALJ must provide specific and 27 legitimate reasons to reject it. Id. However, [t]he opinion of a non-examining physician cannot 28 by itself constitute substantial evidence that justifies the rejection of the opinion of either an 6 1 examining physician or a treating physician ; such an opinion may serve as substantial 2 evidence only when it is consistent with and supported by other independent evidence in the 3 record. Lester, 81 F.3d at 830-31; Morgan, 169 F.3d at 600. 4 B. Analysis 5 The ALJ assessed Plaintiff with a RFC for a range of sedentary work (AR 14) and found 6 that Plaintiff could perform both his past relevant work and, alternatively, other work in the 7 national economy. (AR 20-21.) The ALJ presented a thorough analysis of the medical 8 evidence supporting his RFC and also made an adverse credibility determination that Plaintiff 9 consciously attempted to portray limitations not actually present in order to obtain benefits. (AR 10 17.) Significantly, Plaintiff does not challenge the ALJ s adverse credibility determination. In 11 fact, Plaintiff s only contention is that the ALJ failed to give specific, legitimate reasons for 12 rejecting the opinion of treating physician Dr. Adrianne Beck or to recontact her to clarify the 13 basis of her opinion. Plaintiff s contentions have no merit. The ALJ rejected Dr. Beck s opinion 14 for specific, legitimate reasons supported by substantial evidence. 15 Dr. Beck provided a Work Status Report dated September 8, 2010, that states, Pt is 16 permanently disabled. (AR 19, 298.) There is no explanation for this opinion and no reference 17 to the medical evidence of record. Not surprisingly, the ALJ rejected Dr. Beck s opinion by 18 stating, The opinion expressed is quite conclusory, providing no explanation of the evidence 19 relied on in forming that opinion. (AR 298.) Ninth Circuit law unequivocally supports the ALJ s 20 rejection of Dr. Beck s opinion. See Thomas, 278 F.3d at 957 ( The ALJ need not accept the 21 opinion of any physician, including a treating physician, if that opinion is brief, conclusory, and 22 inadequately supported by clinical findings. ); Batson v. Comm r, 359 F.3d 1190, 1196 (9th Cir. 23 2004) (an ALJ may discredit a treating physician s opinion that is conclusory, brief and 24 unsupported by the record as a whole, or by objective medical findings). 25 Plaintiff confuses the issue by attacking the ALJ s statement that Dr. Beck was 26 expressing an ultimate opinion on disability, an issue reserved to the Commissioner. (AR 19.) 27 Although Plaintiff correctly notes that an ALJ may not ignore a medical opinion because it 28 addresses the ultimate issue of disability, see Sexton v. Astrue, 2010 WL 1854055, at *2 (C.D. 7 1 Cal. May 5, 2010), the ALJ here did not do so. The ALJ rejected Dr. Beck s opinion for specific, 2 legitimate reasons namely, that her opinion was conclusory and without evidence to support 3 it. 4 Nor did the ALJ have any duty to recontact Dr. Beck to obtain a clarification of her 5 opinion. An ALJ is required to recontact a doctor only if the doctor s opinion is ambiguous or 6 insufficient for the ALJ to make a determination of disability. Bayliss v. Barnhart, 427 F.3d 7 1211, 1217 (9th Cir. 2005) (citing 20 C.F.R. § 404.1562(e)). Where other evidence in the 8 record is adequate to determine disability, there is no duty to recontact other doctors. Id. The 9 ALJ here thoroughly reviewed the evidence and had an adequate basis for the RFC assessed, 10 including an adverse credibility determination Claimant does not challenge. 11 Plaintiff acknowledges 20 C.F.R. § 404.1512(e) cited by Bayliss, but claims the that the 12 recontact provision in SSR 96-5p, 1996 WL 374183, at *6, is different from the recontact 13 provision of 20 C.F.R. § 404.1512(e), in that SSR 96-5p requires recontact whenever the bases 14 for a treating source opinion are not clear. Plaintiff cites no case authority for this assertion, 15 and the Ninth Circuit has relied on 20 C.F.R. § 404.1512(e), not SSR 96-5p, in determining 16 when recontact is required. The Court agrees with the Commissioner that SSR 96-5p refers to 17 treating source opinions that are ambiguous, not wholly conclusory opinions utterly without 18 evidentiary support or explanation. As to the latter, Bayliss applies. Were it otherwise, the least 19 supported and cursory opinions would require recontact or reversal even when other medical 20 evidence is adequate to reach a disability determination. The Court does not believe that the 21 Ninth Circuit would sanction such an anomalous and inefficient result. 22 The ALJ rejected Dr. Beck s opinion for specific, legitimate reasons supported by 23 substantial evidence. There was no duty to recontact because other medical evidence of 24 record was adequate for the ALJ to reach a determination of disability. The ALJ s RFC is 25 supported by substantial evidence. The ALJ s non-disability determination is supported by 26 substantial evidence and free of legal error. 27 28 8 1 ORDER 2 IT IS HEREBY ORDERED that Judgment be entered affirming the decision of the 3 Commissioner of Social Security and dismissing this case with prejudice. 4 5 DATED: March 6, 2013 6 /s/ John E. McDermott JOHN E. MCDERMOTT UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 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.