Samantha M Combs v. Carolyn M Colvin, No. 5:2013cv01996 - Document 17 (C.D. Cal. 2014)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing this action with prejudice. (See document for specifics) (mrgo)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SAMANTHA M. COMBS, 12 13 14 Plaintiff, v. CAROLYN W. COLVIN, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 13-1996-SP MEMORANDUM OPINION AND ORDER 18 19 I. 20 INTRODUCTION 21 On November 7, 2013, plaintiff Samantha Combs filed a complaint against 22 the Commissioner of Social Security Administration ( Commissioner ), seeking a 23 review of a denial of Supplemental Security Income ( SSI ) benefits. Both 24 plaintiff and defendant have consented to proceed for all purposes before the 25 assigned Magistrate Judge pursuant to 28 U.S.C. § 636(c). The court deems the 26 matter suitable for adjudication without oral argument. 27 Plaintiff presents one disputed issue for decision: whether the 28 Administrative Law Judge ( ALJ ) improperly rejected the opinion of one of 1 1 plaintiff s treating physicians, Dr. Dharmarajan Ramaswamy. 2 Having carefully studied the parties s written submissions, the 3 Administrative Record ( AR ), and the decision of the ALJ, the court concludes 4 that, as detailed herein, the ALJ properly gave little weight to Dr. Ramaswamy s 5 opinion, and any error made by the ALJ was harmless. Therefore, the court 6 affirms the decision of the Commissioner denying benefits. 7 II. 8 FACTUAL AND PROCEDURAL BACKGROUND 9 Plaintiff was forty-two years old on her SSI application date. AR 131. She 10 has past relevant work experience as a food checker. AR 157. 11 On August 24, 2010, plaintiff applied for SSI due to rheumatoid arthritis, 12 lupus, and vision problems. AR 131, 146. Plaintiff s application was denied 13 initially and upon reconsideration, after which she requested a hearing. AR 68-78, 14 81. 15 On July 25, 2012, plaintiff, represented by council, appeared and testified at 16 a hearing before the ALJ. AR 25, 32-39. Dr. David Anderson, a medical expert, 17 and Tory Scott, a vocational expert, also testified. AR at 27-32, 39-41. 18 Applying the well known five-step sequential evaluation process, the ALJ 19 found, at step one, that plaintiff has not engaged in substantial gainful activity 20 since her August 24, 2010 application date. AR 12. 21 At step two, the ALJ found plaintiff suffers from the following severe 22 impairments: arthritis; lupus; obesity; moderate impingement of the bilateral 23 shoulders with the left more than the right; early degenerative joint disease of the 24 left knee; and degenerative disc disease at L5-S1. Id. 25 At step three, the ALJ found that plaintiff s impairments, whether 26 individually or in combination, do not meet or medically equal one of the listed 27 impairments in 20 C.F.R. part 404, Subpart P, Appendix 1. AR 15. 28 2 The ALJ then assessed plaintiff s residual functional capacity ( RFC ),1 and 1 2 determined that plaintiff can perform light work, with the following exceptions: 3 she can lift and/or carry twenty pounds occasionally and ten pounds frequently; 4 she can walk or stand for two hours and sit for six hours of an eight hour workday; 5 she can frequently bend, stoop, kneel, and squat; she can frequently use both 6 hands bilaterally at or above shoulder level; and she can frequently perform fine 7 and gross manipulation at or above shoulder level, and can perform fine and gross 8 manipulation at desk level without limitation. Id. 9 At step four, the ALJ found plaintiff was unable to perform any past 10 relevant work. AR 19. 11 At step five, the ALJ found, after considering plaintiff s age, education, 12 work experience, and RFC, that there were jobs that existed in significant numbers 13 in the national economy that plaintiff could perform, including toll collector, 14 electronics worker, and ticket taker. AR 20. As such, the ALJ determined 15 plaintiff was not under a disability, as defined by the Social Security Act. AR 21. 16 Plaintiff filed a timely application for review, which was denied by the 17 Appeals Council. AR at 1-6. The ALJ s decision stands as the final decision of 18 the Commissioner. 19 III. 20 STANDARD OF REVIEW 21 This court is empowered to review decisions by the Commissioner to deny 22 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 23 Administration must be upheld if they are free of legal error and supported by 24 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 nn.5-7 (9th Cir. 1989). Between steps three and four of the five-step 27 evaluation, the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant s residual functional capacity. Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 25 3 1 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 2 (as amended). But if the court determines that the ALJ s findings are based on 3 legal error or are not supported by substantial evidence in the record, the court 4 may reject the findings and set aside the decision to deny benefits. Aukland v. 5 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 6 1144, 1147 (9th Cir. 2001). 7 Substantial evidence is more than a mere scintilla, but less than a 8 preponderance. Aukland, 257 F.3d at 1035. Substantial evidence is such 9 relevant evidence which a reasonable person might accept as adequate to support 10 a conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 11 F.3d at 459. To determine whether substantial evidence supports the ALJ s 12 finding, the reviewing court must review the administrative record as a whole, 13 weighing both the evidence that supports and the evidence that detracts from the 14 ALJ s conclusion. Mayes, 276 F.3d at 459. The ALJ s decision cannot be 15 affirmed simply by isolating a specific quantum of supporting evidence. 16 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 17 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 18 the ALJ s decision, the reviewing court may not substitute its judgment for that 19 of the ALJ. Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 20 1992)). 21 IV. 22 DISCUSSION 23 Plaintiff contends the ALJ improperly rejected the opinion of her 24 rheumatologist, Dr. Dharmarajan Ramaswamy. Pl. Mem at 2-5. In determining 25 whether a claimant has a medically determinable impairment, among the evidence 26 the ALJ considers is medical evidence. 20 C.F.R. § 404.1527(b). In evaluating 27 medical opinions, the regulations distinguish among three types of physicians: (1) 28 treating physicians; (2) examining physicians; and (3) non-examining physicians. 4 1 20 C.F.R. § 494.1527(c), (e); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) 2 (as amended). Generally, a treating physician s opinion carries more weight than 3 an examining physician s, and an examining physician s opinion carries more 4 weight than a reviewing physician s. Holohan v. Massanari, 246 F.3d 1195, 5 1202 (9th Cir. 2001); 20 C.F.R. § 404.1527(c)(1)-(2). The opinion of the treating 6 physician is generally given the greatest weight because the treating physician is 7 employed to cure and has a greater opportunity to understand and observe a 8 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. 9 Bowen, 881 F.2d 747, 751 (9th Cir. 1989). 10 Nevertheless, the ALJ is not bound by the opinion of the treating physician. 11 Smolen, 80 F.3d at 1285. If a treating physician s opinion is uncontradicted, the 12 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 13 81 F.3d at 830. If the treating physician s opinion is contradicted by other 14 opinions, the ALJ must provide specific and legitimate reasons supported by 15 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 16 specific and legitimate reasons supported by substantial evidence in rejecting the 17 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 18 non-examining physician, standing alone, cannot constitute substantial evidence. 19 Widmark v. Barnhart, 454 F.3d 1063, 1067 n.2 (9th Cir. 2006); Morgan v. 20 Comm r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 21 813, 818 n.7 (9th Cir. 1993). 22 Here, the ALJ rejected the opinion of Dr. Ramaswamy, finding it was: (1) 23 inconsistent with the objective medical evidence; and (2) brief, conclusory and 24 inadequately supported by clinical findings. AR 19. 25 26 27 A. The Finding That Dr. Ramaswamy s Opinion Was Inconsistent With the Objective Medical Evidence The ALJ gave little weight to the opinion of Dr. Ramaswamy, as it was 28 inconsistent with the objective medical evidence as a whole discussed in the 5 1 ALJ s opinion AR 19. The objection medical evidence discussed included the 2 evaluation by Dr. Bilezikjian, the results of x-rays, and the treatment records of 3 Dr. Davis. AR 16-18. 4 First, on February 5, 2011, Dr. Zaven Bilezikjian performed a full physical 5 examination of plaintiff, and opined she retained the ability to push/pull/lift/carry 6 twenty pounds occasionally and ten pounds frequently; walk/stand two hours and 7 sit six hours of an eight hour workday; frequently bend and stoop, and 8 occasionally kneel and squat; frequently use both hands bilaterally at or above 9 shoulder level, and perform fine/gross manipulation at desk level without 10 limitation. AR 199-202. Dr. Bilezikjian further observed that plaintiff s motor 11 functioning and ability to ambulate around the office were within normal limits, 12 but found plaintiff could not walk on uneven terrain, climb ladders, or work at 13 heights. AR 201-02. 14 Dr. Bilezikjian performed tests directly related to plaintiff s functional 15 capacity. See AR 200-02. By contrast, there is no indication Dr. Ramaswamy 16 performed such tests. See AR 374-79. Dr. Bilezikjian s opinion constitutes a 17 more thorough analysis of plaintiff s functional capacity. See Holohan v. 18 Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); Nunez v. Astrue, 2012 U.S. Dist. 19 LEXIS 176201, at *40, 2012 WL 6193254 (C.D. Cal. Dec. 12, 2012) (more 20 thorough examination by one physician is a specific and legitimate reason to give 21 another physician less weight). As Dr. Bilezikjian performed a more thorough 22 examination, the ALJ was entitled to give Dr. Ramaswamy s opinion less weight. 23 Second, physical examinations conducted by plaintiff s primary treating 24 physician, Dr. Arthur Davis, revealed only decreased mobility of the thoracic and 25 lumbar spine, mild kyphosis, tenderness of the spine, and moderate joint stiffness, 26 but no swelling (edema) or discoloration (cyanosis), normal extremities and 27 normal constitutional signs. AR 215-16, 218, 252, 255, 257, 262. In plaintiff s 28 numerous visits with Dr. Davis, he failed to note any difficulties with activities of 6 1 daily life, severe symptoms, or functional limitations, much less the severe 2 limitations opined by Dr. Ramaswamy. See AR 183-84; 216; 218; 255-256; 258; 3 262; 265. Furthermore, on October 7, 2011, after Dr. Ramaswamy rendered his 4 opinion of total disability, Dr. Davis noted plaintiff has been feeling fairly well. 5 AR 259; see AR 18. These mild findings contradict Dr. Ramaswamy s opinion 6 that plaintiff could only stand, walk, and sit for less that two hours, and could 7 never twist or crouch. See AR 370-71. In addition, reviewing physicians Dr. 8 Jansen and Dr. Christian also performed an analysis of the medical evidence and 9 determined RFCs in accordance with Dr. Bilezikjian s opinion, and consistent 10 with Dr. Davis s records. AR 48-50, 62-63. 11 Finally, Dr. Ramaswamy s own treatment notes suggest plaintiff was 12 feeling partially better and improving with her conservative treatment of 13 prednisone as of August 24, 2011, although still experiencing pain. AR 285, 374; 14 see AR 18. Contradictions between treatment notes regarding an improving 15 condition and opinions regarding plaintiff s RFC are specific and legitimate 16 reasons to discount the opining physician. See Valentine v. Comm'r Soc. Sec. 17 Admin., 574 F.3d 685, 692-93 (9th Cir. 2009) (when contradictions exist between 18 a physician s opinions and treatment notes, this constitutes a specific and 19 legitimate reason for not accepting that physician s opinion); Lester, 81 F.3d at 20 830-31. Accordingly, this also was a specific and legitimate reason for the ALJ to 21 give less weight to the opinion of Dr. Ramaswamy. 22 In short, the ALJ s finding that Dr. Ramaswamy s opinion was inconsistent 23 with the objective medical evidence as a whole was supported by substantial 24 evidence. As such, this was a specific and legitimate reason for rejecting Dr. 25 Ramaswamy s opinion. 26 B. The Finding That Dr. Ramaswamy s Opinion Was Brief, Conclusory, 27 and Inadequately Supported by Clinical Findings 28 The ALJ also rejected the September 7, 2011 opinion of Dr. Ramaswamy 7 1 because it was brief and conclusory. AR 19. The ALJ need not accept the 2 opinion of any physician, including a treating physician, if that opinion is brief, 3 conclusory, and inadequately supported by clinical findings. Bray v. Comm'r of 4 Soc. Sec. Admin., 554 F.3d 1219, 1228 (9th Cir. 2009) (citing Thomas v. Barnhart, 5 278 F.3d 947, 957 (9th Cir. 2002)). 6 Dr. Ramaswamy opined that, due to plaintiff s inflammatory arthritis and 7 fibromyalgia, she experienced severe pain, stiffness, and fatigue. AR 371. Dr. 8 Ramaswamy further opined, without explanation, that plaintiff: was limited to 9 carrying ten pounds occasionally and frequently; could stand/walk for less than 10 two hours of an eight-hour workday; could sit less than two hours of an eight-hour 11 workday; must change positions when sitting every thirty to forty-five minutes; 12 must change positions when standing every ten to fifteen minutes; and can never 13 twist or crouch. AR 370-71. 14 As a systemic pain disease, fibromyalgia is not necessarily indicative of 15 functional limitations, much less a particular RFC determination. Severity in 16 fibromyalgia symptoms can vary wildly, and have anywhere from a minor to 17 severe/debilitating functional limitations. But Dr. Ramaswamy offered no testing 18 or explanation for his opinion regarding plaintiff s RFC. See Holohan, 246 F.3d 19 at 1202 ( [T]he regulations give more weight to opinions that are explained than 20 to those that are not. ); 20 C.F.R. § 404.1527(d)(3). The ALJ properly rejected 21 Dr. Ramaswamy s opinion as brief and conclusory. See Batson v. Comm'r, 359 22 F.3d 1190, 1195 (9th Cir. 2004) (ALJ properly rejected treating physicians' 23 opinions in part because they were in checklist form with no supporting objective 24 evidence); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) ( ALJ . . . 25 permissibly rejected [psychological evaluations] because they were check-off 26 reports that did not contain any explanation of the bases of their conclusions. ). 27 The ALJ also determined Dr. Ramaswamy s opinion was inadequately 28 supported by clinical findings. AR 19. This is potentially problematic to the 8 1 extent the ALJ s determination refers to Dr. Ramaswamy s fibromyalgia 2 diagnosis. The Ninth Circuit has recognized that objective symptoms do not 3 establish the presence or absence of fibromyalgia. Jordan v. Northrop Grumman 4 Corp. Welfare Benefit Plan, 370 F.3d 869, 872 (9th Cir. 2004) (abrogated on other 5 grounds by Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 970 (9th Cir. 6 2006)). [F]ibromyalgia's cause or causes are unknown, there is no cure, and, of 7 greatest importance to disability law, its symptoms are entirely subjective. There 8 are no laboratory tests for the presence or severity of fibromyalgia. Id. Instead, a 9 fibromyalgia diagnosis can only be confirmed by a specific test where a patient 10 reports pain in five parts of the body and when at least eleven of eighteen points 11 cause pain when palpated by an examiner's thumb.2 Id. (citing Rollins v. 12 Massanari, 261 F.3d 853, 855 (9th Cir. 2001)). 13 It is unclear from the record whether the ALJ rejects Dr. Ramaswamy s 14 opinion as inadequately supported by clinical findings because: (1) Dr. 15 Ramaswamy failed to offer an explanation between his RFC and diagnosis of 16 fibromyalgia; or (2) there was a lack of clinical findings to support Dr. 17 Ramaswamy s fibromyalgia diagnosis. The former, as discussed above, is a 18 specific and legitimate reason for rejecting Dr. Ramaswamy s opinion, as no 19 explanation was offered for plaintiff s RFC. The latter, however, is inconsistent 20 with the subjective nature of a fibromyalgia diagnosis. Therefore, to the extent the 21 ALJ relies on the absence of clinical findings to reject Dr. Ramaswamy s 22 diagnosis of fibromyalgia, this was in error. 23 Any error in rejecting Dr. Ramaswamy s opinion was harmless, however, as 24 other specific and legitimate reasons existed for rejecting Dr. Ramaswamy s 25 opinion, as discussed above. So long as there remains other substantial evidence 26 27 2 Dr. Ramaswamy does not appear to have identified eleven pain trigger 28 points, but rather appears to have only identified six. See AR 378 9 1 supporting the ALJ's decision, this error does not negate the validity of the ALJ's 2 ultimate conclusion. Batson, 359 F.3d at 1197: see also Carmickle v. 3 Commissioner, 533 F.3d 1155, 1162 (9th Cir. 2008). 4 V. 5 CONCLUSION 6 IT IS THEREFORE ORDERED that Judgment shall be entered 7 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 8 this action with prejudice. 9 10 DATED: September 8, 2014 11 12 SHERI PYM United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10

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