(SS) Blankenship v. Commissioner of Social Security, No. 2:2014cv00312 - Document 19 (E.D. Cal. 2016)
Court Description: MEMORANDUM, OPINION and ORDER signed by Magistrate Judge Craig M. Kellison on 3/15/2016 ORDERING that Plaintiff's 13 Motion for Summary Judgment is DENIED. Defendant's 17 Motion for Summary Judgment is GRANTED. The Clerk of the Court is directed to enter judgment and close this file. CASE CLOSED. (Zignago, K.)
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(SS) Blankenship v. Commissioner of Social Security Doc. 19 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TROY DAVID BLANKENSHIP, 12 Plaintiff, 13 14 No. 2:14-CV-0312-CMK vs. MEMORANDUM OPINION AND ORDER COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 / 17 18 Plaintiff, who is proceeding with retained counsel, brings this action under 19 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. 20 Pursuant to the written consent of all parties, this case is before the undersigned as the presiding 21 judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending 22 before the court are plaintiff’s motion for summary judgment (Doc. 13) and defendant’s cross- 23 motion for summary judgment (Doc. 17). 24 /// 25 /// 26 /// 1 Dockets.Justia.com 1 2 I. PROCEDURAL HISTORY Plaintiff applied for social security benefits in September 2010. In the 3 application, plaintiff claims that disability began on July 18, 2010. Plaintiff’s claim was initially 4 denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which 5 was held on June 26, 2012, before Administrative Law Judge (“ALJ”) Daniel G. Heely. In a 6 July 10, 2012, decision, the ALJ concluded that plaintiff is not disabled based on the following 7 relevant findings: 8 1. The claimant has the following severe impairment(s): severe dermatitis of the bilateral upper extremities; 2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations; 3. The claimant has the following residual functional capacity: the claimant can perform a wide range of medium work; the claimant can lift/carry 50 pounds occasionally and 25 pounds occasionally; the claimant can stand/walk/sit for six hours in an eight-hour day; the claimant should avoid concentrated exposure to environmental irritants; and 4. Considering the claimant’s age, education, work experience, residual functional capacity, and vocational expert testimony, the claimant is capable of performing his past relevant work as a forklift operator and store laborer. 9 10 11 12 13 14 15 16 17 After the Appeals Council declined review on December 6, 2013, this appeal followed. 18 19 II. STANDARD OF REVIEW 20 The court reviews the Commissioner’s final decision to determine whether it is: 21 (1) based on proper legal standards; and (2) supported by substantial evidence in the record as a 22 whole. See Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). “Substantial evidence” is 23 more than a mere scintilla, but less than a preponderance. See Saelee v. Chater, 94 F.3d 520, 521 24 (9th Cir. 1996). It is “. . . such evidence as a reasonable mind might accept as adequate to 25 support a conclusion.” Richardson v. Perales, 402 U.S. 389, 402 (1971). The record as a whole, 26 including both the evidence that supports and detracts from the Commissioner’s conclusion, must 2 1 be considered and weighed. See Howard v. Heckler, 782 F.2d 1484, 1487 (9th Cir. 1986); Jones 2 v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). The court may not affirm the Commissioner’s 3 decision simply by isolating a specific quantum of supporting evidence. See Hammock v. 4 Bowen, 879 F.2d 498, 501 (9th Cir. 1989). If substantial evidence supports the administrative 5 findings, or if there is conflicting evidence supporting a particular finding, the finding of the 6 Commissioner is conclusive. See Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 7 Therefore, where the evidence is susceptible to more than one rational interpretation, one of 8 which supports the Commissioner’s decision, the decision must be affirmed, see Thomas v. 9 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002), and may be set aside only if an improper legal 10 standard was applied in weighing the evidence, see Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th 11 Cir. 1988). 12 13 III. DISCUSSION 14 In his motion for summary judgment, plaintiff argues: (1) the ALJ erred by failing 15 to consider whether plaintiff’s impairment equals Listing 8.05 governing skin conditions or 16 further develop the record in this regard; (2) the ALJ erred by rejecting the opinions of treating 17 physician Dr. Basi and failing to account for flare-ups in determining plaintiff’s residual 18 functional capacity; and (3) the ALJ erred by failing to account for flare-ups in determining 19 plaintiff’s credibility. 20 21 A. Consideration of Listing 8.05 The Social Security Regulations “Listing of Impairments” is comprised of 22 impairments to fifteen categories of body systems that are severe enough to preclude a person 23 from performing gainful activity. Young v. Sullivan, 911 F.2d 180, 183-84 (9th Cir. 1990); 20 24 C.F.R. § 404.1520(d). Conditions described in the listings are considered so severe that they are 25 irrebuttably presumed disabling. 20 C.F.R. § 404.1520(d). In meeting or equaling a listing, all 26 the requirements of that listing must be met. Key v. Heckler, 754 F.2d 1545, 1550 (9th Cir. 3 1 1985). 2 Regarding plaintiff’s skin condition, the ALJ summarized the evidence as follows: 3 The medical evidence of record reflects a longitudinal history of treatment for severe dermatitis. For example, the claimant was treated on an outpatient basis for an acute outbreak of eczema in July 2010 with prescriptions for Lidex, Prednisone, and Benadryl (Ex. 3F/3). 4 5 In September 2010, he was noted to have had a limited response to Prednisone and ultimately needed inpatient care in October 2010 for severe dermatitis and secondary skin cellulitis (Exs. 9F/5 and 5F/4). It was thought he had cellulitis secondary to chronic eczema. He was admitted and placed on empiric antibiotics, corticosteroids, and Atarax (Ex. 5F/4). Fortunately, his condition improved quickly, and he was discharged after only a few days on a tapering dose of Prednisone and Keflex (Ex 5F/21). 6 7 8 9 10 On follow-up as an outpatient in October 2010 and November 2010, continued improvement was reported in his symptoms (Exs. 8F and 9F/9). 11 In December 2010, he was noted the have “hands only” plaques (Ex. 9F/2). 12 13 In March 2011, his eczema was described as “much improved” (Ex. 13F/28). 14 In April 2011, one week later, he was seen in follow-up for eczema, at which time his Prednisone was increased due to an acute worsening of his condition (Ex. 13F/27). 15 16 In September 2011, he was treated for symptoms of eczema, but by November 2011, his eczema was described as generally improved off Prednisone (Ex. 13F/11-12). 17 18 In December 2011, the claimant was seen for clinical cellulitis, but he had not attempted home care, and it was felt he was an appropriate candidate for a course of outpatient Bactrim and Keflex (Ex. 14F/4). Hence, the claimant has generally received outpatient care for a chronic skin disorder with episodic flares in his symptoms. 19 20 21 22 As to the listings, the ALJ concluded: “The record does not establish dermatitis with extensive 23 skin lesions that have persisted for at least three months despite continuing treatment as 24 prescribed as required under Listing 8.05.” 25 /// 26 /// 4 1 Plaintiff argues: 2 The ALJ provided minimal explanation for the finding that Mr. Blankenship does not meet listing 8.05 and no explanation for why he failed to equal the listing. Because Mr. Blankenship presented evidence at the hearing level that he meets or equals the listing, the ALJ committed reversible error in failing to address the listing, or obtain a medical expert (“ME”) testimony on the matter. 3 4 5 6 Plaintiff also contends: 7 Moreover, the ALJ erred in failing to obtain an ME because additional evidence was received that could change the State agency medical finding regarding equivalence. Originally, state agency physician, Dr. Haroun, determined Plaintiff did not have a severe medically determinable impairment. Tr. 90. Dr. Danufsky then reviewed evidence up to December 2010. Dr. Danufsky determined that “skin lesions anticipated to improve with treatment and not expected to limit manipulative activities for 12 months. No change in decision.” Tr. 91. As further discussed below, the record shows Mr. Blankenship has continued to require treatment for ongoing psoriasis, flareups, and lesions on his hands well over 12 months after 2010, when the last records were reviewed. . . . 8 9 10 11 12 13 14 Additionally, plaintiff argues that the Listings make clear that “manipulative limitations can be 15 intermittent and still meet the 12-month requirement to be a severe impairment.” 16 The court disagrees with plaintiff’s characterization of the ALJ’s Listings analysis 17 as “minimal.” As discussed above, the ALJ provided a detailed summary of the evidence of 18 record relating to plaintiff’s skin condition and treatment. The ALJ then concluded that such 19 evidence did not establish the requirements of the Listings because plaintiff’s skin condition was 20 controlled with medication. See Warre v. Comm’r of Soc Sec. Admin., 439 F. 3d 1001, 1006 21 (9th Cir. 2006) (noting that a condition that can be controlled or corrected by medication does not 22 satisfy the Listings).1 23 /// 24 /// 25 1 26 Under the regulations, the same rule applies in determining whether a condition medically equals a listing-level impairment. See 20 C.F.R. pt. 404, Subpt. P., App. 1, § 8.00. 5 1 The court also finds that the ALJ’s analysis is supported by substantial evidence 2 of record. Specifically, plaintiff’s treatment records show that his skin condition was controlled 3 with medication. The court accepts plaintiff’s lengthy summary of the medical record reflecting 4 that plaintiff received ongoing treatment for his skin condition. As the ALJ found, however, the 5 evidence does not show extensive and persistent skin lesions causing serious limitations. In 6 particular, the evidence shows that plaintiff’s skin condition was well-controlled on medication.2 7 Defendant accurately observes: “The fact that Plaintiff received treatment for his psoriasis does 8 not elevate his condition to a listing-level, i.e., presumptively disabling, impairment, and nothing 9 in Plaintiff’s brief shows otherwise.” 10 Finally, the court does not agree with plaintiff that the ALJ failed to develop the 11 record by consulting a medical expert. The duty to develop the record arises when there is 12 insufficient evidence, see Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001), which is not the case 13 here given the ample evidence showing that plaintiff’s skin condition, including periodic flare- 14 ups, is controlled with medication. 15 B. 16 Dr. Basi’s Opinions The weight given to medical opinions depends in part on whether they are 17 proffered by treating, examining, or non-examining professionals. See Lester v. Chater, 81 F.3d 18 821, 830-31 (9th Cir. 1995). Ordinarily, more weight is given to the opinion of a treating 19 professional, who has a greater opportunity to know and observe the patient as an individual, 20 than the opinion of a non-treating professional. See id.; Smolen v. Chater, 80 F.3d 1273, 1285 21 (9th Cir. 1996); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). The least weight is given 22 to the opinion of a non-examining professional. See Pitzer v. Sullivan, 908 F.2d 502, 506 & n.4 23 (9th Cir. 1990). 24 25 26 2 Regarding flare-ups, the regulations permit the ALJ to consider how quickly flareups resolve and the claimant’s response to medication. See 20 C.F.R. pt. 404, Subpt. P., App. 1, § 8.00. 6 1 In addition to considering its source, to evaluate whether the Commissioner 2 properly rejected a medical opinion the court considers whether: (1) contradictory opinions are 3 in the record; and (2) clinical findings support the opinions. The Commissioner may reject an 4 uncontradicted opinion of a treating or examining medical professional only for “clear and 5 convincing” reasons supported by substantial evidence in the record. See Lester, 81 F.3d at 831. 6 While a treating professional’s opinion generally is accorded superior weight, if it is contradicted 7 by an examining professional’s opinion which is supported by different independent clinical 8 findings, the Commissioner may resolve the conflict. See Andrews v. Shalala, 53 F.3d 1035, 9 1041 (9th Cir. 1995). A contradicted opinion of a treating or examining professional may be 10 rejected only for “specific and legitimate” reasons supported by substantial evidence. See Lester, 11 81 F.3d at 830. This test is met if the Commissioner sets out a detailed and thorough summary of 12 the facts and conflicting clinical evidence, states her interpretation of the evidence, and makes a 13 finding. See Magallanes v. Bowen, 881 F.2d 747, 751-55 (9th Cir. 1989). Absent specific and 14 legitimate reasons, the Commissioner must defer to the opinion of a treating or examining 15 professional. See Lester, 81 F.3d at 830-31. The opinion of a non-examining professional, 16 without other evidence, is insufficient to reject the opinion of a treating or examining 17 professional. See id. at 831. In any event, the Commissioner need not give weight to any 18 conclusory opinion supported by minimal clinical findings. See Meanel v. Apfel, 172 F.3d 1111, 19 1113 (9th Cir. 1999) (rejecting treating physician’s conclusory, minimally supported opinion); 20 see also Magallanes, 881 F.2d at 751. 21 As to Dr. Basi, the ALJ stated: 22 Little weight is given to the opinion of Marik Basi, M.D., dated May 21, 2012, to the extent it would appear to preclude sustained work activity at a medium level of exertion. . . (Ex. 16F). Dr. Basi treated the claimant for one month before offering the assessment and he appears to agree the claimant could sit for at least six hours in an eight-hour day and stand and/or walk for at least six hours in an eight-hour day. He also appears to agree the claimant is able to lift and carry up to 20 pounds frequently and 50 pounds occasionally, which is quite similar to the residual functional capacity defined herein, and reflects the claimant has the capacity to use 23 24 25 26 7 1 his hands up to 66 percent of the workday to lift and carry. In contrast, Dr. Basi limited handling and fingering to only 30 percent of the workday. The doctor did not explain the apparent inconsistency in allowing frequent use of the hands for lifting and carrying but only occasional use of the hands for handling and fingering. . . . 2 3 4 Plaintiff argues: “The ALJ’s reasons for rejecting treating physician Dr. Basi’s opinion, do not 5 justify the lack of manipulative and attendance limitations in the RFC.” In particular, plaintiff 6 focuses on Dr. Basi’s opinions concerning the limitations associated with flare-ups of his skin 7 condition. 8 On May 21, 2012, Dr. Basi completed a “Skin Disorder Medical Assessment 9 Form.” Dr. Basi opined: “unable to use hands during flares.” Regarding plaintiff’s ability to 10 perform in a competitive job, the doctor stated that plaintiff was unable to perform fast-paced 11 tasks, such a working on an assembly line. In this regard, the court notes that Dr. Basi did not 12 indicate that plaintiff was unable to perform routine repetitive tasks at a consistent pace, 13 suggesting that plaintiff is capable of such tasks. Dr. Basi opined that plaintiff can grasp, turn, 14 twist with his hand about 30% of the time, engage in fine manipulation with the fingers about 15 30% of the time, and reach overhead with the arms about 50% of the time. The doctor also 16 opined that plaintiff can lift 20 pounds frequently and 50 pounds occasionally. Dr. Basi opined 17 that plaintiff would likely be absent from work “about once or twice a month” as a result of his 18 impairments. The doctor references no objective findings in support of his assessment. 19 At the outset, the court agrees with defendant that Dr. Basi is not properly 20 considered a treating source because he did not provide plaintiff with frequent treatment or 21 develop an ongoing treatment relationship. See 20 C.F.R. § 404.1502. In this case, the record 22 reflects that Dr. Basi treated plaintiff for only about one month. Thus, Dr. Basi is not entitled the 23 deference generally afforded treating sources. See id.; see also Magallanes, 881 F.2d at 751. In 24 any event, even if Dr. Basi can be considered a treating source, the ALJ properly discounted Dr. 25 Basi’s opinions for the same reason. See 20 C.F.R. § 404.1527(c)(2)(I), (ii) (noting that the 26 frequency of treatment and the length, nature, and extent of the treatment relationship are 8 1 relevant when weighing treating opinions). Finally, the court finds that the ALJ correctly 2 afforded little weight to Dr. Basi’s opinion because it is unsupported by any references to 3 objective medical findings. 4 C. Plaintiff’s Credibility 5 The Commissioner determines whether a disability applicant is credible, and the 6 court defers to the Commissioner’s discretion if the Commissioner used the proper process and 7 provided proper reasons. See Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996). An explicit 8 credibility finding must be supported by specific, cogent reasons. See Rashad v. Sullivan, 903 9 F.2d 1229, 1231 (9th Cir. 1990). General findings are insufficient. See Lester v. Chater, 81 F.3d 10 821, 834 (9th Cir. 1995). Rather, the Commissioner must identify what testimony is not credible 11 and what evidence undermines the testimony. See id. Moreover, unless there is affirmative 12 evidence in the record of malingering, the Commissioner’s reasons for rejecting testimony as not 13 credible must be “clear and convincing.” See id.; see also Carmickle v. Commissioner, 533 F.3d 14 1155, 1160 (9th Cir. 2008) (citing Lingenfelter v Astrue, 504 F.3d 1028, 1936 (9th Cir. 2007), 15 and Gregor v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006)). 16 If there is objective medical evidence of an underlying impairment, the 17 Commissioner may not discredit a claimant’s testimony as to the severity of symptoms merely 18 because they are unsupported by objective medical evidence. See Bunnell v. Sullivan, 947 F.2d 19 341, 347-48 (9th Cir. 1991) (en banc). As the Ninth Circuit explained in Smolen v. Chater: 20 The claimant need not produce objective medical evidence of the [symptom] itself, or the severity thereof. Nor must the claimant produce objective medical evidence of the causal relationship between the medically determinable impairment and the symptom. By requiring that the medical impairment “could reasonably be expected to produce” pain or another symptom, the Cotton test requires only that the causal relationship be a reasonable inference, not a medically proven phenomenon. 21 22 23 24 80 F.3d 1273, 1282 (9th Cir. 1996) (referring to the test established in Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986)). 25 26 /// 9 1 The Commissioner may, however, consider the nature of the symptoms alleged, 2 including aggravating factors, medication, treatment, and functional restrictions. See Bunnell, 3 947 F.2d at 345-47. In weighing credibility, the Commissioner may also consider: (1) the 4 claimant’s reputation for truthfulness, prior inconsistent statements, or other inconsistent 5 testimony; (2) unexplained or inadequately explained failure to seek treatment or to follow a 6 prescribed course of treatment; (3) the claimant’s daily activities; (4) work records; and (5) 7 physician and third-party testimony about the nature, severity, and effect of symptoms. See 8 Smolen, 80 F.3d at 1284 (citations omitted). It is also appropriate to consider whether the 9 claimant cooperated during physical examinations or provided conflicting statements concerning 10 drug and/or alcohol use. See Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). If the 11 claimant testifies as to symptoms greater than would normally be produced by a given 12 impairment, the ALJ may disbelieve that testimony provided specific findings are made. See 13 Carmickle, 533 F.3d at 1161 (citing Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989)). 14 Regarding reliance on a claimant’s daily activities to find testimony of disabling 15 pain not credible, the Social Security Act does not require that disability claimants be utterly 16 incapacitated. See Fair v. Bowen, 885 F.2d 597, 602 (9th Cir. 1989). The Ninth Circuit has 17 repeatedly held that the 18 does not . . .[necessarily] detract from her credibility as to her overall disability.” See Orn v. 19 Astrue, 495 F.3d 625, 639 (9th Cir. 2007) (quoting Vertigan v. Heller, 260 F.3d 1044, 1050 (9th 20 Cir. 2001)); see also Howard v. Heckler, 782 F.2d 1484, 1488 (9th Cir. 1986) (observing that a 21 claim of pain-induced disability is not necessarily gainsaid by a capacity to engage in periodic 22 restricted travel); Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984) (concluding that the 23 claimant was entitled to benefits based on constant leg and back pain despite the claimant’s 24 ability to cook meals and wash dishes); Fair, 885 F.2d at 603 (observing that “many home 25 activities are not easily transferable to what may be the more grueling environment of the 26 workplace, where it might be impossible to periodically rest or take medication”). Daily “. . . mere fact that a plaintiff has carried out certain daily activities . . . 10 1 activities must be such that they show that the claimant is “. . .able to spend a substantial part of 2 his day engaged in pursuits involving the performance of physical functions that are transferable 3 to a work setting.” Fair, 885 F.2d at 603. The ALJ must make specific findings in this regard 4 before relying on daily activities to find a claimant’s pain testimony not credible. See Burch v. 5 Barnhart, 400 F.3d 676, 681 (9th Cir. 2005). 6 As to plaintiff’s credibility, the ALJ noted that plaintiff stated that, while he 7 stopped working in July 2010 due to a skin disorder, he was able to work in the past despite this 8 condition. The ALJ also noted that plaintiff stopped working for reasons unrelated to his medical 9 condition. Further, the ALJ commented on plaintiff’s activities of daily living: 10 11 12 13 14 15 The claimant’s activities of daily living are significant. The claimant testified that he rides a bike to collect aluminum cans and hauls the cans in a bag on his bike. He also testified he does side jobs. The claimant described to Dr. Kalman that his typical day includes getting food from 711, visiting friends, going to the park, and checking in with his probation officer (Ex. 11F/3). He reported that he is able to manage his own transportation, care for his personal hygiene, and pay his own bills, but that he does not do his own cooking, shopping, or housekeeping (Ex. 11F/3). The claimant earlier reported his activities to include personal care, preparation of simple foods, do laundry or help with dishes, walk, ride a bike, or use public transportation, shop in stores, and handle his own finances (Ex. 6E). 16 17 18 19 The ALJ further sated: The objective medical findings do not support the degree of limitation alleged. The claimant does have a severe skin disorder with episodic flares in his symptoms, but his condition has generally been treated on an outpatient basis with a regimen of topical medications and oral steroids. 20 21 Finally, the ALJ noted that plaintiff is not under the care of a mental health specialist and that the 22 record discloses no debilitating side effects of medication. The ALJ concluded: “Consequently, 23 to the extent the claimant’s allegations conflict with the residual functional capacity defined 24 herein, they are rejected.” 25 26 Plaintiff argues: Just as he did at step three and in the RFC, the ALJ failed to 11 1 2 consider the effect of Mr. Blankenship’s flareups in the credibility determination. The ALJ discounted Mr. Blankenship’s credibility, citing to his daily activities despite Mr. Blankenship’s repeated qualifications that the extent of daily activities depends on his flareups. 3 According to plaintiff, “the episodic nature of his impairment” was not considered as an 4 “explanation for purported inconsistencies.” Plaintiff adds: “His daily activities by nature are not 5 consistent because they depend on his flareups, as he clearly explained to Dr. Kalman, in the 6 forms he filled out, and at the hearing.” 7 The court finds no error in the ALJ’s analysis. As discussed above, the ALJ 8 discounted plaintiff’s credibility based on, among other reasons, evidence that, while plaintiff 9 stated that he stopped working due to his skin condition, he was able to work in the past despite 10 that condition and stopped working in 2010 due to incarceration not his skin condition. These 11 inconsistencies regarding plaintiff’s stated reason for not working support the ALJ’s adverse 12 credibility determination. 13 14 IV. CONCLUSION 15 Based on the foregoing, the court concludes that the Commissioner’s final 16 decision is based on substantial evidence and proper legal analysis. Accordingly, IT IS HEREBY 17 ORDERED that: 18 1. Plaintiff’s motion for summary judgment (Doc. 13) is denied; 2. Defendant’s cross-motion for summary judgment (Doc. 17) is granted; and 3. The Clerk of the Court is directed to enter judgment and close this file. 19 20 21 22 23 24 DATED: March 15, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 25 26 12
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