Elyabeth Lugo v. Michael J Astrue, No. 2:2012cv01337 - Document 21 (C.D. Cal. 2012)
Court Description: MEMORANDUM AND OPINION by Magistrate Judge Jacqueline Chooljian, The decision of the Commissioner of Social Security is affirmed. LET JUDGMENT BE ENTERED ACCORDINGLY. (SEE OPINION FOR FURTHER DETAILS) (lmh)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ELYZABETH LUGO, 12 Plaintiff, 13 14 15 16 17 v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. _________________________ ) Case No. CV 12-1337 JC ) ) ) MEMORANDUM OPINION ) ) ) ) ) ) ) ) 18 19 I. On February 22, 2012, plaintiff Elyzabeth Lugo ( plaintiff ) filed a 20 21 22 23 Complaint seeking review of the Commissioner of Social Security s denial of plaintiff s application for benefits. The parties have consented to proceed before a United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 24 25 26 27 28 SUMMARY judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The Court has taken both motions under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; February 23, 2012 Case Management Order ¶ 5. /// 1 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On August 19, 2008, plaintiff filed an application for Supplemental Security 7 Income benefits. (Administrative Record ( AR ) 126). Plaintiff asserted that she 8 became disabled on January 1, 1993, due to diabetes and nerve damage in her back 9 and leg. (AR 155). The ALJ examined the medical record and heard testimony 10 from plaintiff (who was represented by counsel) and plaintiff s grandmother on 11 February 5, 2010. (AR 26-59). In addition, the ALJ considered the opinions of 12 Dr. Jose Rabelo, an impartial medical expert who reviewed the record medical 13 evidence and answered interrogatories regarding plaintiff s abilities at the request 14 of the ALJ. (AR 15, 534-48). 15 On August 26, 2010, the ALJ determined that plaintiff was not disabled 16 through the date of the decision. (AR 1, 15-25). Specifically, the ALJ found: 17 (1) plaintiff suffered from the following conditions of ill-being that in 18 combination constitute a severe impairment: type I diabetes mellitus with frequent 19 diarrhea, mild peripheral neuropathy, and episodes of anemia and hypoglycemia 20 due to noncompliance (AR 18); (2) plaintiff did not have an impairment or 21 combination of impairments that met or medically equaled a listed impairment 22 (AR 19); (3) plaintiff retained the residual functional capacity to perform light 23 24 25 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Batson v. Commissioner of Social Security Administration, 359 F.3d 1190, 1196 (9th Cir. 2004) (applying harmless error standard); see also Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006) (discussing contours of application of harmless error standard in social security cases). 2 1 work (20 C.F.R. § 416.967(b)) with additional limitations2 (AR 19); (4) plaintiff 2 had no past relevant work (AR 23); (5) there are jobs that exist in significant 3 numbers in the national economy that plaintiff could perform (AR 23-24); and 4 (6) plaintiff s allegations regarding her limitations were not credible to the extent 5 they were inconsistent with the ALJ s residual functional capacity assessment (AR 6 22). 7 The Appeals Council denied plaintiff s application for review. (AR 1). 8 III. APPLICABLE LEGAL STANDARDS 9 A. 10 Sequential Evaluation Process To qualify for disability benefits, a claimant must show that the claimant is 11 unable to engage in any substantial gainful activity by reason of a medically 12 determinable physical or mental impairment which can be expected to result in 13 death or which has lasted or can be expected to last for a continuous period of at 14 least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 15 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of 16 performing the work claimant previously performed and incapable of performing 17 any other substantial gainful employment that exists in the national economy. 18 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. 19 § 423(d)(2)(A)). 20 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 21 sequential evaluation process: 22 (1) 23 Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two. 24 /// 25 26 27 28 2 The ALJ determined that plaintiff (1) could perform light work; (2) could frequently climb ramps and stairs, but could not climb ladders, ropes or scaffolds; (3) could frequently balance, kneel, crouch, crawl and stoop; and (4) needed to avoid all exposure to hazards such as dangerous moving machinery and unprotected heights. (AR 19). 3 1 (2) Is the claimant s alleged impairment sufficiently severe to limit 2 the claimant s ability to work? If not, the claimant is not 3 disabled. If so, proceed to step three. 4 (3) Does the claimant s impairment, or combination of 5 impairments, meet or equal an impairment listed in 20 C.F.R. 6 Part 404, Subpart P, Appendix 1? If so, the claimant is 7 disabled. If not, proceed to step four. 8 (4) 9 perform claimant s past relevant work? If so, the claimant is 10 11 Does the claimant possess the residual functional capacity to not disabled. If not, proceed to step five. (5) Does the claimant s residual functional capacity, when 12 considered with the claimant s age, education, and work 13 experience, allow the claimant to adjust to other work that 14 exists in significant numbers in the national economy? If so, 15 the claimant is not disabled. If not, the claimant is disabled. 16 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 17 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920). 18 The claimant has the burden of proof at steps one through four, and the 19 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 20 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also 21 Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability). 22 B. 23 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 24 benefits only if it is not supported by substantial evidence or if it is based on legal 25 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 26 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 27 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 28 mind might accept as adequate to support a conclusion. Richardson v. Perales, 4 1 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 2 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 3 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 4 To determine whether substantial evidence supports a finding, a court must 5 consider the record as a whole, weighing both evidence that supports and 6 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 7 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 8 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 9 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 10 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 11 IV. DISCUSSION 12 Plaintiff contends that a remand or reversal is warranted because the ALJ 13 improperly rejected the opinions of her treating physician, Dr. Erick Carcamo. 14 (Plaintiffs Motion at 7-12) (citing AR 483-91). The Court disagrees. 15 A. 16 In Social Security cases, courts employ a hierarchy of deference to medical Pertinent Law 17 opinions depending on the nature of the services provided. Courts distinguish 18 among the opinions of three types of physicians: those who treat the claimant 19 ( treating physicians ) and two categories of nontreating physicians, namely 20 those who examine but do not treat the claimant ( examining physicians ) and 21 those who neither examine nor treat the claimant ( nonexamining physicians ). 22 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (footnote reference omitted). A 23 treating physician s opinion is entitled to more weight than an examining 24 physician s opinion, and an examining physician s opinion is entitled to more 25 /// 26 /// 27 /// 28 /// 5 1 weight than a nonexamining physician s opinion.3 See id. In general, the opinion 2 of a treating physician is entitled to greater weight than that of a non-treating 3 physician because the treating physician is employed to cure and has a greater 4 opportunity to know and observe the patient as an individual. Morgan v. 5 Commissioner of Social Security Administration, 169 F.3d 595, 600 (9th Cir. 6 1999) (citing Sprague v. Bowen, 812 F.2d 1226, 1230 (9th Cir. 1987)). 7 The treating physician s opinion is not, however, necessarily conclusive as 8 to either a physical condition or the ultimate issue of disability. Magallanes v. 9 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (citing Rodriguez v. Bowen, 876 F.2d 10 759, 761-62 & n.7 (9th Cir. 1989)). Where a treating physician s opinion is not 11 contradicted by another doctor, it may be rejected only for clear and convincing 12 reasons. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007) (citation and internal 13 quotations omitted). The ALJ can reject the opinion of a treating physician in 14 favor of another conflicting medical opinion, if the ALJ makes findings setting 15 forth specific, legitimate reasons for doing so that are based on substantial 16 evidence in the record. Id. (citation and internal quotations omitted); Thomas v. 17 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (ALJ can meet burden by setting out 18 detailed and thorough summary of facts and conflicting clinical evidence, stating 19 his interpretation thereof, and making findings) (citations and quotations omitted); 20 Magallanes, 881 F.2d at 751, 755 (same; ALJ need not recite magic words to 21 reject a treating physician opinion court may draw specific and legitimate 22 inferences from ALJ s opinion). The ALJ must do more than offer his 23 conclusions. Embrey v. Bowen, 849 F.2d 418, 421-22 (9th Cir. 1988). He must 24 set forth his own interpretations and explain why they, rather than the 25 26 27 28 3 Cf. Le v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (not necessary or practical to draw bright line distinguishing treating physicians from non-treating physicians; relationship is better viewed as series of points on a continuum reflecting the duration of the treatment relationship and frequency and nature of the contact) (citation omitted). 6 1 [physician s], are correct. Id. Broad and vague reasons for rejecting the 2 treating physician s opinion do not suffice. McAllister v. Sullivan, 888 F.2d 599, 3 602 (9th Cir. 1989). 4 Although the treating physician s opinion is generally given more weight, a 5 nontreating physician s opinion may support rejecting the conflicting opinion of a 6 claimant s treating physician. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 7 1995). If a nontreating physician s opinion is based on independent clinical 8 findings that differ from the findings of the treating physician, the nontreating 9 physician s opinion may be considered substantial evidence. Id. at 1041 (citing 10 Magallanes, 881 F.2d at 751). If that is the case, then the ALJ has complete 11 authority to resolve the conflict.4 12 B. 13 In Physical and Diabetes Mellitus Residual Functional Capacity Analysis 14 Questionnaires, each dated January 6, 2010, Dr. Carcamo diagnosed plaintiff with 15 insulin dependent diabetes mellitus, depression and peripheral neuropathy, and 16 opined, in pertinent part, that plaintiff (1) suffered from fatigue, extremity pain 17 and numbness, muscle weakness, diarrhea, psychological problems, insulin 18 shock/coma, hyper/hypoglycemic attacks, nausea/vomiting, and dizziness; 19 (2) would often or constantly suffer from symptoms severe enough to interfere 20 with attention and concentration necessary to sustain simple, repetitive work tasks 21 during a typical eight-hour workday; (3) was incapable of even low stress work 22 due to depression and pain; (4) could sit or stand no more than 15 minutes at a 23 time, and could sit, stand and/or walk only about two hours total in an eight-hour 24 workday; (5) would need to shift positions at will and be permitted to walk around 25 every 15 minutes for a period of 15 minutes each time; (6) would require 26 27 4 Where there is conflicting medical evidence, the Secretary must assess credibility and 28 resolve the conflict. Thomas, 278 F.3d at 956-57. 7 1 additional, unscheduled two-hour breaks during the day; (7) could never lift 20 2 pounds; (8) could frequently twist and occasionally stoop/bend, crouch, climb 3 ladders and climb stairs; (9) would have limitations in doing repetitive reaching, 4 handling or fingering due to moderate pain; (10) would need to avoid concentrated 5 exposure to extreme cold/heat, high humidity, chemicals, solvents/cleaners, 6 cigarette smoke and perfumes, and avoid all exposure to soldering fluxes, fumes, 7 odors, dust and gasses; and (11) would likely be absent from work as a result of 8 her impairments more than four days per month. (AR 483-91, 565-72). 9 Here, a remand or reversal is not warranted because the ALJ properly 10 rejected Dr. Carcamo s opinions for specific and legitimate reasons supported by 11 substantial evidence.5 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Preliminarily, almost all of Dr. Carcamo s treatment records for plaintiff that were before the ALJ pertain to treatment plaintiff received well before plaintiff s alleged period of disability commenced on August 19, 2008 (i.e., when plaintiff applied for benefits) (AR 268-302, 304-72) and significantly before the date Dr. Carcamo drafted his opinions (i.e., January 6, 2010) (AR 486, 491) (AR 303). The ALJ was entitled to give little or no weight to Dr. Carcamo s retrospective opinions to the extent such opinions were inconsistent with other substantial evidence in the record from within the relevant period (e.g., Dr. Sean To s consultative examination which found that plaintiff did not have any of the significant functional limitations noted by Dr. Carcamo (AR 379-83)), and could properly disregard such opinions without detailed explanation. See Freeman v. Apfel, 208 F.3d 687, 691 (8th Cir. 2000) (Where treating physician s evidence did not pertain to [claimant s] condition during the relevant period [of disability] and was inconsistent with other substantial evidence that did pertain to the relevant period, the ALJ was under no obligation to give [the treating physician s] opinion controlling weight. ) (citations omitted); see also Lind v. Commissioner of Social Security, 2008 WL 4370017, at *14 (S.D. Cal. Sept. 24, 2008) (same; citing id.), aff d, 370 Fed. Appx. 814 (9th Cir. 2010); Klett v. Barnhart, 303 F. Supp. 2d 477, 484 (S.D.N.Y. 2004) ( [A] retrospective diagnosis from a physician, particularly one who was not the claimant s treating physician during the relevant time period, may carry less weight if the diagnosis is inconsistent with other substantial evidence in the record. ) (citing, inter alia, former 20 C.F.R. § 404.1527(d)(4) (now 20 C.F.R. § 404.1527(c)(4))); see also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (An ALJ must provide an explanation only when he rejects significant probative evidence. ) (citation omitted). The Court has also considered the additional medical records from Dr. Carcamo that plaintiff submitted to the Appeals Council (AR 554-64). See Brewes v. Commissioner of Social Security Administration, 682 F.3d 1157, 1163 (9th Cir. 2012) ( [W]hen the Appeals Council (continued...) 8 1 First, the ALJ properly rejected Dr. Carcamo s opinions because they were 2 unsupported by the treating physician s own notes and the record as a whole. See 3 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ( The ALJ need not 4 accept the opinion of any physician, including a treating physician, if that opinion 5 is brief, conclusory, and inadequately supported by clinical findings. ) (citation 6 and internal quotation marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 7 (9th Cir. 2003) (treating physician s opinion properly rejected where treating 8 physician s treatment notes provide no basis for the functional restrictions he 9 opined should be imposed on [the claimant] ); Tonapetyan v. Halter, 242 F.3d 10 1144, 1149 (9th Cir. 2001) (ALJ need not accept treating physician s opinions that 11 are conclusory and brief, or unsupported by clinical findings, or physician s own 12 treatment notes). For example, most of the documents Dr. Carcamo supplied for 13 the record provide no insight into plaintiff s ability to work much less support for 14 Dr. Carcamo s opinions. (See, e.g., AR 271-302, 304, 320, 556-59, 564 15 (billing/office records), AR 321-72 (unrelated/unremarkable lab reports), AR 303, 16 306-07, 309-10, 312-15, 317-19, 560-63 (progress notes regarding routine check17 ups and unrelated medical issues)). The paltry number of arguably relevant 18 treatment notes reflect at most sporadic complaints from plaintiff of isolated 19 subjective symptoms, often from many years before plaintiff applied for benefits, 20 and thus lend no support to the significant physical limitations to which Dr. 21 22 23 24 25 26 27 28 5 (...continued) considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner s final decision for substantial evidence. ); see also Taylor v. Commissioner of Social Security Administration, 659 F.3d 1228, 1231 (9th Cir. 2011) (courts may consider evidence presented for the first time to the Appeals Council to determine whether, in light of the record as a whole, the ALJ s decision was supported by substantial evidence and was free of legal error ) (citing Ramirez v. Shalala, 8 F.3d 1449, 1451-54 (9th Cir. 1993)). Although such records appear to pertain to treatment plaintiff received around the time of Dr. Carcamo s opinions, as noted below, such additional records provide no support for the extreme limitations to which Dr. Carcamo opined. 9 1 Carcamo opined.6 Moreover, as the ALJ noted, plaintiff s treatment records do 2 not reflect that Dr. Carcamo conducted any objective testing that could support Dr. 3 Carcamo s opinions regarding plaintiff s mental limitations. (AR 21). 4 Second, to the extent Dr. Carcamo s opinions are based on plaintiff s 5 symptoms during periods when plaintiff failed to comply with her prescribed 6 course of treatment (AR 20-22) (citing Exhibits 11F at 3, 5, 7-8 [AR 447, 449, 7 451-52], 17F at 2 [AR 511], 19F at 5-6 [AR 537-38]), such opinions cannot 8 support a disability finding. A claimant who would otherwise be found disabled 9 within the meaning of the Social Security Act may be denied benefits if she fails to 10 follow prescribed treatment without justifiable cause. See Roberts v. Shalala, 66 11 F.3d 179, 183 (9th Cir. 1995), cert. denied, 517 U.S. 1122 (1996); SSR 82-59; 20 12 C.F.R. §§ 404.1530, 416.930; see also Warre v. Commissioner of Social Security 13 Administration, 439 F.3d 1001, 1006 (9th Cir. 2006) ( Impairments that can be 14 controlled effectively with medication are not disabling for the purpose of 15 determining eligibility for SSI benefits. ) (citations omitted). 16 Finally, the ALJ properly rejected Dr. Carcamo s opinions in favor of the 17 conflicting opinions of at least the medical expert, who found no limitations 18 beyond those already accounted for in the ALJ s residual functional capacity 19 assessment. (AR 21, 534-47). Dr. Rabelo s opinions constituted substantial 20 evidence supporting the ALJ s decision since they were based on and consistent 21 with the other medical evidence in the record, including the independent clinical 22 findings of Dr. Sean To, a consultative examining physician (AR 379-83). See 23 Tonapetyan, 242 F.3d at 1149 (holding that opinions of nontreating or 24 nonexamining doctors may serve as substantial evidence when consistent with 25 26 27 28 6 Treatment notes reflect that plaintiff reported (1) fatigue in August 2002 (AR 316); (2) diarrhea in August 2003 (AR 313); (3) chest pain in September 2003 (AR 314); (4) two days of diarrhea in April 2004 (AR 311); (5) fatigue in June 2004 (AR 311); (6) fatigue in July 2006 (AR 310); (7) chest pain upon swallowing in September 2006 (AR 308); (8) back pain in May of 2007 (AR 308); and (9) three days of dizziness in April 2008 (AR 305). 10 1 independent clinical findings or other evidence in the record); Andrews, 53 F.3d at 2 1041 ( reports of the nonexamining advisor need not be discounted and may serve 3 as substantial evidence when they are supported by other evidence in the record 4 and are consistent with it ); Morgan, 169 F.3d at 600 (testifying medical expert 5 opinions may serve as substantial evidence when they are supported by other 6 evidence in the record and are consistent with it ). Any conflict in the properly 7 supported medical opinion evidence is the sole province of the ALJ to resolve. 8 Andrews, 53 F.3d at 1041. 9 Accordingly, a remand or reversal is not warranted on this basis. 10 V. CONCLUSION 11 For the foregoing reasons, the decision of the Commissioner of Social 12 Security is affirmed. 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 DATED: August 28, 2012 15 16 17 _____________/s/____________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 11
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