Manuel Gustavo Lara v. Carolyn W. Colvin, No. 2:2014cv08920 - Document 24 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen L. Stevenson. For all the reasons stated above, IT IS ORDERED THAT the decision of the Commissioner of Social Security is AFFIRMED. IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of this Memorandum and Order and the Judgment on counsel for plaintiff and for defendant. *See Order for details.* (es)
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Manuel Gustavo Lara v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 ) NO. CV 14-8920 (KS) ) ) ) ORDER ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) Defendant _________________________________ ) MANUEL GUSTAVO LARA, Plaintiff, v. 17 18 INTRODUCTION 19 20 Plaintiff Manuel Gustavo Lara (“Plaintiff”), filed a Complaint on November 21, 21 2014, seeking review of the denial of his application for disability insurance benefits 22 (“DIB”) and Supplemental Security Income (“SSI”). (ECF No. 3.) On September 4, 23 2015, the parties filed a Joint Stipulation (“Joint Stip.”) in which Plaintiff seeks an 24 order reversing and vacating the Commissioner’s decision, and either ordering the 25 immediate payment of benefits or remanding the matter for further administrative 26 proceedings. (ECF No. 22, Joint Stip. 19.) The Commissioner requests that the Court 27 affirm the ALJ’s decision or, should the Court reverse the decision, remand to the 28 agency for further administrative action. (Id. 22.) On August 12 and 17, 2015, the 1 Dockets.Justia.com 1 parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned 2 United States Magistrate Judge. (ECF Nos. 18, 19.) The Court has taken the matter 3 under submission without oral argument. 4 SUMMARY OF ADMINISTRATIVE PROCEEDINGS 5 6 7 On June 17, 2011, Plaintiff filed applications for DIB and SSI, alleging 8 disability commencing June 22, 2008. (Administrative Record (“A.R.”) 127-34 (SSI); 9 135-41 (DIB).) Plaintiff was 39 years old on the alleged onset date.1 (Id. 35.) 10 Plaintiff’s prior relevant work experience was as a flower nursey laborer and welder. 11 (Id. 57, 63.) The Commissioner denied Plaintiff’s applications on October 5, 2011 12 (id. 71-79), and upon reconsideration on April 23, 2012 (id. 81-86). On June 11, 13 2012, Plaintiff requested a de novo hearing before an Administrative Law Judge 14 (“ALJ”). (Id. 89-90.) On May 28, 2013, Plaintiff, who was represented by counsel, 15 testified before ALJ Mary L. Everstine. (Id. 52-64.) Vocational Expert (“VE”) David 16 Van Winkle also testified at the hearing. (Id. 63.) On July 12, 2013, the ALJ issued 17 an unfavorable decision, denying Plaintiff’s claims for DIB and SSI. (Id. 28-37.) On 18 September 23, 2014, the Appeals Council denied Plaintiff’s request for review. (Id. 1- 19 9.) Plaintiff then filed this timely civil action. 20 SUMMARY OF ADMINISTRATIVE DECISION 21 22 23 Applying the five step evaluation process for determining whether a person is 24 disabled as required under 20 CFR §§ 404.1520(a) and 416.920(a), at step one, the 25 ALJ found that Plaintiff had not engaged in substantial gainful activity since July 22, 26 2008, the alleged onset date. (A.R. 30.) At step two, the ALJ found that Plaintiff had 27 28 1 Plaintiff’s date of birth is August 18, 1968. (A.R. 127.) 2 1 the following severe impairments: multi-level disc protrusions (L2-L4) lumbar spine 2 without stenosis, which more than a minimally affected Plaintiff’s capacity to perform 3 basic work functions. (Id.) The ALJ also determined that Plaintiff had medically 4 determinable mental impairments of mood disorder and anxiety disorder, both 5 attributed to “general medical condition.” (Id.) After considering the four broad 6 functional areas established in the disability regulations for evaluating mental 7 disorders and section 12.00C of the Listing of Impairments,2 the ALJ concluded that 8 Plaintiff’s mental impairments “do not cause more than minimal limitation in the 9 [Plaintiff’s] ability to perform basic mental work activities and are therefore nonsevere.” (Id.) 10 11 12 At step three, the ALJ concluded that Plaintiff did not have an impairment or 13 combination of impairments that met or medically equaled the severity of any 14 impairments listed in 20 C.F.R. part 404, subpart P, appendix 1 (20 C.F.R. §§ 15 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926). (Id. 31.) 16 17 At step four, the ALJ determined that Plaintiff had the residual functional 18 capacity (“RFC”) to perform “the full range of unskilled medium work” as defined in 19 20 C.F.R. §§ 404.1567(b) and 416.967(c). 20 unable to perform any past relevant work as a flower nursery laborer or welder. (Id.) The ALJ found that Plaintiff was 21 22 At step five, after considering Plaintiff’s age, education3, work experience, and 23 RFC, the ALJ determined that “there are jobs that exist in significant numbers in the 24 2 25 26 27 28 The four functional areas are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) episodes of decompensation. In each of the first three functional areas, the ALJ found that Plaintiff had mild limitations. (Id. 31.) The ALJ determined the Plaintiff had not experienced any episodes of decompensation “of extended duration.” (Id.) 3 Plaintiff testified at the hearing that he came to the United States in 1988, but does not speak English and only finished the sixth grade. (A.R. 57.) Based on his inability to communicate in English, under agency regulations, the ALJ considered Plaintiff in the same way as an individual who is illiterate in English (citing 20 CFR 404.1564 and 416.964). (A.R. 36.) 3 1 national economy” that Plaintiff can perform and concluded that Plaintiff did not 2 suffer from a disability from July 22, 2008 through the date of the ALJ’s decision. 3 (Id. 36.) 4 STANDARD OF REVIEW 5 6 7 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 8 determine whether it is free from legal error and supported by substantial evidence in 9 the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). “Substantial 10 evidence is ‘more than a mere scintilla but less than preponderance; it is such relevant 11 evidence as a reasonable mind might accept as adequate to support a 12 conclusion.’” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir. 2014) 13 (internal citations omitted). “Even when the evidence is susceptible to more than one 14 rational interpretation, we must uphold the ALJ’s findings if they are supported by 15 inferences reasonably drawn from the record.” Molina v. Astrue, 674 F.3d 1104, 1110 16 (9th Cir. 2012). 17 18 Although this Court cannot substitute its discretion for the Commissioner’s, the 19 Court nonetheless must review the record as a whole, “weighing both the evidence 20 that supports and the evidence that detracts from the [Commissioner’s] 21 conclusion.” Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (internal 22 quotation marks and citation omitted); Desrosiers v. Sec’y of Health and Hum. Servs., 23 846 F.2d 573, 576 (9th Cir. 1988). “The ALJ is responsible for determining 24 credibility, 25 ambiguities.” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). resolving conflicts in medical testimony, and for resolving 26 27 The Court will uphold the Commissioner’s decision when the evidence is 28 susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 4 1 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the 2 ALJ in her decision “and may not affirm the ALJ on a ground upon which [s]he did 3 not rely.” Orn, 495 F.3d at 630; see also Connett v. Barnhart, 340 F.3d 871, 874 (9th 4 Cir. 2003). The Court will not reverse the Commissioner’s decision if it is based on 5 harmless error, which exists only when the error “is inconsequential to the ultimate 6 nondisability determination” or when, “despite the legal error, the agency’s path may 7 reasonably be discerned.” Brown-Hunter v. Colvin, __ F.3d __, 2015 WL 6684997, at 8 *4 (Aug. 4. 2015). 9 DISCUSSION 10 11 12 The single disputed issue is whether the ALJ properly considered all of the 13 medical opinions offered in the record in assessing Plaintiff’s RFC. (Joint Stip. at 4.) 14 Plaintiff contends that, the ALJ failed to properly consider the opinions of examining 15 consultative psychologist Deborah DiGiaro regarding Plaintiff’s mental limitations 16 (id. at 4-9) and failed to give proper weight to the opinions of physician’s assistant, 17 Beth A. Brown regarding Plaintiff’s physical limitations (id. at 10). 18 disagrees. The Court 19 20 Applicable Law 21 22 In Social Security cases, ALJs are required to give different degrees of 23 deference to medical opinions depending on whether the opinion is that of a “treating 24 physician,” “examining physician,” or “nonexamining physician.” 25 Colvin, 759 F.3d 995 1012 (9th Cir. 2014) (citation and quotation marks omitted). 26 Generally, a treating physician’s opinion is given “controlling weight” when it is 27 “well-supported by medically acceptable clinical and laboratory diagnostic techniques 28 and is not inconsistent with the other substantial evidence in [the Plaintiff’s] case 5 Garrison v. 1 record[.]” Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007) (citations and quotation 2 marks omitted); see also 20 C.F.R. § 404.1527(c)(2). An examining, but non-treating, 3 physician’s opinion is entitled to less weight than that of a treating physician, but 4 more weight than a nonexamining physician’s opinion. Id. (citation omitted). 5 6 However, a treating physician’s opinion is not necessarily conclusive as to a 7 plaintiff’s medical condition or disability. Magallanes v. Bowen, 881 F.2d 747, 751 8 (9th Cir. 1989) (citation omitted). 9 uncontroverted opinion by providing “clear and convincing reasons supported by 10 substantial evidence in the record.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 11 1998) (citation omitted). An ALJ may reject a treating physician’s opinion that 12 conflicts with another doctor’s opinion “by providing specific and legitimate reasons 13 that are supported by substantial evidence.” Garrison, 759 F.3d at 1012 (citation and 14 footnote omitted). An ALJ may reject a treating physician’s 15 The ALJ’s RFC Assessment Is Supported By Substantial Evidence 16 17 18 The ALJ, “after considering all of [Plaintiff’s] symptoms and the extent to 19 which these symptoms can reasonably be accepted as consistent with the objective 20 medical evidence and other evidence,” determined that Plaintiff had the RFC to 21 perform “the full range of unskilled medium work as defined by 20 C.F.R. §§ 22 404.1567(c) and 416.976(c).4 (A.R. at 31.) The basic mental demands for unskilled 23 work include: (1) understanding, carrying out, and remembering simple instructions; 24 (2) responding appropriately to supervision, co-workers and usual work situations; 25 and (3) dealing with changes in a routine work setting. See 20 C.F.R. §§404.1521(b), 26 27 28 4 In the regulations, medium work “involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. If someone can do medium work, we determine that he or she can also do sedentary and light work” 20 C.F.R. 404.1567 (C). 6 1 416.921(b). Plaintiff contends that, in making this assessment, the ALJ did not 2 properly evaluate the medical evidence of Plaintiff’s mental and physical limitations. 3 For the reasons discussed below, the Court finds, contrary to Plaintiff’s contentions, 4 that the ALJ properly and adequately considered and evaluated Plaintiff’s mental and 5 physical impairments. 6 A. The ALJ’s Assessment of Plaintiff’s Mental Impairments in 7 Regards to the RFC Are Supported by Substantial Evidence 8 9 10 The ALJ determined that Plaintiff had medically determined mental 11 impairments of mood disorder due to general medical condition; and anxiety disorder 12 due to general medical condition. (A.R. 30.) 13 evaluation process, the ALJ concluded that claimant’s medically determinable mental 14 impairments did not cause more than minimal limitations in Plaintiff’s ability to 15 perform basic mental work and, therefore, were nonsevere. (Id. at 31.) In reaching 16 this conclusion, the ALJ considered the four broad functional area outlined in the 17 disability regulations for evaluating mental disorders5, otherwise referred to as the 18 “paragraph B” criteria and made the following findings as to each area : (1) activities 19 of daily living – mild limitation; (2) social functioning – mild limitation; (3) 20 concentration, persistence or pace - 21 decompensation – Plaintiff had experienced no such episodes of extended duration. 22 (Id.) At Step 2 of the five-step sequential mild limitation; and (4) episodes of 23 24 The ALJ acknowledged that the limitations in “paragraph B” criteria used at 25 Step 2 are not a residual functional capacity assessment and noted that the RFC 26 assessment “requires a more detailed assessment by itemizing various functions 27 28 5 See 20 C.F.R., Part 404, Subpart P, Appendix 1. 7 1 contained in the broad categories in paragraph B of the adult mental disorders listings 2 in 12.00 of the Listings of Impairments [ ].” (A.R. 31.) The ALJ explained that the 3 RFC assessment reflected the degree of limitation found in the “paragraph B” mental 4 function analysis. (Id.) To reach the determination that Plaintiff’s mental limitations 5 were non severe, the ALJ discussed in detail the “paragraph B” criteria in conjunction 6 with findings of the consultative examiners and Plaintiff’s treating sources. 7 8 1. Opinions As to Plaintiff’s Mental Impairments 9 10 In September 2011, Dr. Ashamalla performed a psychological evaluation of 11 Plaintiff at the agency’s request. (A.R. 257-61.) Dr. Ashamalla reported that Plaintiff 12 was fully oriented to time, place, person and purposes and of at least average intellect. 13 Dr. Ashamalla diagnosed mood disorder secondary to general medical condition 14 (chronic back pain), but determined that Plaintiff’s overall prognosis from a 15 psychiatric standpoint was “deemed good.” 16 Plaintiff could recall three items, immediately and three items after five minutes; 17 Plaintiff could perform series threes with prompting and do simple calculations and 18 could interpret a proverb. (Id. at 260.) Further, Dr. Ashamalla found Plaintiff’s 19 cognitive function to “be within normal limits to slight impairment as regards 20 attention span, concentration.” (Id. at 261.) His evaluation found no limitations in 21 Plaintiff’s mental capacity as to the following: understand, remember or carryout 22 simple one or two step job instructions; to relate to co-workers and the public; to 23 associate with day-to-day work activity; accept instructions from supervisors; or 24 ability to perform work activities without special or additional supervision (Id.) Dr. 25 Ashamalla found only mild restrictions in Plaintiff’s ability to do detailed complex 26 instructions; maintain concentration and attention, persistence and pace; and maintain 27 28 8 (A.R. 261.) He also reported that 1 regular attendance in the work place. (Id.) Dr. Ashamalla assigned Plaintiff a current 2 GAF6 of 55. (Id.) 3 4 Also in September 2011, consultative examiner, Deborah Hartley, Ph.D., 5 reported affective disorders and anxiety-related disorders. (A.R. 267.) She, too, 6 reported only mild limitations in Plaintiff’s activities of daily living, difficulty in 7 maintaining social function and concentration, persistence or pace, and no episodes of 8 decompensation. 9 adequate; concentration and calculation intact; and insight and judgment were intact. 10 (Id. at 279.) Specifically, she reported that Plaintiff’s activities of daily living were 11 “primarily limited by physical complaints.” (Id.) During Dr. Hartley’s examination, 12 Plaintiff reported “no specific mental barriers to personal care, preparing meals, 13 driving, shopping, managing money socializing or following instructions.” (Id.) (Id. at 277.) Dr. Hartley stated that Plaintiff’s memory was 14 15 In March 2012, examining psychologist, Dr. Deborah DiGiaro, Ph.D., also 16 performed a comprehensive psychiatric evaluation. (A.R. 400-403.) Specifically, Dr. 17 DiGiaro’s functional assessment found that Plaintiff had the ability to manage his own 18 funds; had no limitations in his ability to perform simple and repetitive tasks; accept 19 instructions from supervisors; interact with coworkers and the public or to perform 20 work activities on a consistent basis without special or additional instruction. (Id. at 21 403.) Dr. DiGiaro found Plaintiff “mildly impaired” in his ability to perform detailed 22 and complex tasks; and “moderately impaired” in his ability to maintain regular 23 attendance in the workplace, complete a normal workday or workweek without 24 interruption from a psychiatric condition; and to deal with stress encountered in a 25 competitive work environment. (Id.) Dr. DiGiaro noted that Plaintiff’s ‘”progress is 26 27 28 6 GAF refers to Global Assessment of Functioning – a numeric scale (0-100) used by mental health practitioners and physicians to rate the social, occupational and psychological function of adults. See Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed., 2000). 9 1 slightly improved with out-patient treatment” and determined Plaintiff’s GAF as 60 2 and his prognosis as “fair.” (Id.) Dr. DiGiaro also noted that Plaintiff’s insight was 3 “fair” and he was “compliant with treatment.” (Id. at 402.) 4 5 In a medical evaluation by Dr. Ursula Taylor in March 2012, Dr. Taylor’s 6 mental status examination reported that Plaintiff “appeared to be in no acute distress.” 7 (A.R. 395.) 8 9 In April 2012, medical consultant Janice Smith, Ph.D. reported affective 10 disorders and substance additional disorders. (Id. at 404.) Dr. Smith reported mild 11 limitations in activities of daily living, in maintaining social functioning; in 12 concentration, persistence or pace; and no episodes of decompensation. (Id. at 414.) 13 14 On May 23, 2013, Luis Gimenez, L.C.S.W., plaintiff’s treating therapist, 15 submitted a Psychiatric Review Technique in which he stated that he saw Plaintiff 34 16 times in psychotherapy between November 2011 and May 2013. (Id. at 482.) He also 17 indicated that, with respect to Organic Mental Disorders, Plaintiff had memory 18 impairment, change in personality; disturbance in mood, and impairment of impulse 19 control. (Id. at 468.) 20 impairment of “Major Dep. Recurrent/moderate.” (Id.) Under the “B Criteria” rating 21 for functional limitations, Mr. Gimenez rated Plaintiff’s restriction of activities of 22 daily living as “‘Extreme’ because of pain”; difficulties in maintaining social 23 functioning as “Extreme;” difficulties in maintaining concentration, persistence or 24 pace as “Marked”; and indicated Plaintiff has suffered “four or more” episodes of 25 decompensation, each of extended duration. (Id. at 480.) Mr. Gimenez also indicated 26 Plaintiff had a “history of 1 or more years’ inability to function outside a highly 27 supportive living arrangement with an indication of continued need for such an 28 arrangement.” (Id. at 481.) Mr. Gimenez’s final notes in the report state that he did The notes identify an additional medically determinable 10 1 not believe that Plaintiff is able to work because his “back pain, shoulder pain and 2 neck, plus his depression and anxiety get in the way.” (Id. at 482.) 3 4 5 2. The ALJ Did Not Err in the RFC Assessment as to Plaintiff’s Mental Impairments 6 7 The ALJ is responsible for determining credibility and resolving conflicts in 8 medical testimony. Reddick v. Chater, 157 F.3d 715, 722 (9th Cir. 1998). A treating 9 physician’s report relative to a claimant’s work-related ability is persuasive, but not 10 dispositive, evidence of a claimant’s disability due to pain. Gallant v. Heckler 753 11 F.2d 1450, 1454 (9th Cir. 2005). However, licensed clinical social workers are not 12 “acceptable medical sources” as defined by agency regulations, and therefore their 13 opinions are not entitled to the same deference as licensed physicians and other 14 qualified specialists. See 20 C.F.R. §§ 404.1513, 416.913; S.S.R. 06-03p. The ALJ 15 treats social worker opinions as opinions from “other sources,” which may be 16 discounted if the ALJ gives germane reasons for doing so. See Turner v. Comm’r of 17 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). 18 19 Plaintiff acknowledges that Dr. DiGiaro’s assessment was largely consistent 20 with Dr. Ashamalla’s findings. (Joint Stip. at 6.) Plaintiff also acknowledges that Mr. 21 Gimenez “identifies the similar limitations as Dr. DiGiaro.” (Joint Stip. at 7.) But 22 Plaintiff argues that “the ALJ erred in not considering the opinion of Dr. Ashamalla 23 in support of its decision to support Dr. DiGiaro’s opinion.” (Joint Stip. at 7.) 24 Further, Plaintiff asserts that the ALJ erred in not assigning weight to the opinions of 25 Dr. DiGiaro and giving “great weight” to the opinions of nontreating, agency 26 physicians Dr. Janice B. Smith, Ph.D. and Deborah Hartley, Ph.D. in assessing a non- 27 severe mental impairment. (Id.) 28 ALJ erred in not assigning weight to the opinion of the consultative examiners, Drs. In response, the Commissioner concedes that the 11 1 DiGiaro and Ashamalla, but argues that any error in this regard was harmless. (Joint 2 Stip. at 14.) 3 4 As an initial matter, the failure to assign a weight to Dr. DiGiaro’s opinions is 5 harmless because even if the ALJ had assigned specific weight to the consultative 6 examiners’ opinions, Plaintiff concedes that the opinions are consistent with one 7 another. In addition, no medical provider, whether examining or treating, found that 8 Plaintiff had any severe mental impairment and despite the diagnosis of a mood 9 disorder and anxiety disorder, Plaintiff had no history of any psychiatric 10 hospitalization, suicide attempts, psychosis or posttraumatic stress disorder. (A.R. at 11 401.) 12 13 Moreover, the ALJ provided germane reasons for discounting the opinions of 14 Plaintiff’s treating therapist, Mr. Gimenez. The ALJ pointed to the fact that Mr. 15 Gimenez’s own progress notes reflected “consistent GAF scores ranging from 60-63 16 (indicating mild symptoms or functional imitation) until 2012, when it was lowest just 17 before the hearing. (Id. at 35.) Further, although Mr. Gimenez indicated that Plaintiff 18 experienced four or more episodes of decompensation, nothing in the medical records 19 substantiates this and Mr. Gimenez himself provided no supporting treating notes or 20 documentation evidencing such episodes. 21 22 The ALJ noted the contradiction between Mr. Gimenez’s opinion that Plaintiff 23 could not function “outside a highly supportive living arrangement” and reports by 24 Plaintiff’s wife in that claimant watched television, went for walks, mowed the lawn 25 and watered the grass, and was able to take care of his own personal needs without 26 any special reminders. (Id. at 34, 172.) 27 medical consultant Deborah Hartley, Ph.D. that in August 2011, Plaintiff reported no 28 specific mental barriers to personal care, preparing meals, driving, shopping managing 12 The ALJ also pointed to the findings of 1 money, socializing or following instructions. (Id. at 33, 279.) Finally, based on all 2 this evidence, it appears the RFC assessment for unskilled medium work incorporated 3 the degree of limitation found in the “paragraph B” mental function analysis. (Id. at 4 31.) See e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173-74 (9th Cir. 2008) 5 (finding ALJ properly made credibility determinations among varying opinions 6 concerning claimant’s mental limitations when incorporating those findings into an 7 RFC for simple, unskilled work). 8 9 Here, because the ALJ provided germane reasons supported by substantial 10 evidence in the record, the Court finds no legal error in the ALJ’s determination that 11 Plaintiff’s mental limitations are non-severe for purposes of the RFC assessment. 12 Further, any error by the ALJ in failing to assign weight to the consultative 13 examiners’ opinions is harmless, because it would not change the determination on 14 the record as a whole that Plaintiff could perform medium unskilled work. See 15 Tommasetti v. Astrue, 533 F.3d 1035, 1038 (the court will not reverse an ALJ’s 16 decision for harmless error, which exists when it is clear from the record that ‘the 17 ALJ’s error was ‘inconsequential to the ultimate nondisability determination.’” 18 (internal citations omitted). 19 20 21 Accordingly, the ALJ’s RFC assessment as to Plaintiff’s mental impairment level is supported by substantial evidence and does not warrant remand or reversal. 22 23 B. The ALJ Did Not Materially Err in Assessing the 24 Medical Opinions Regarding Plaintiff’s Physical Limitations 25 26 The ALJ determined that Plaintiff had severe physical impairments 27 associated with degenerative disc disease, including disc protrusions (L2-L4) and 28 lumbar spine without stenosis. (A.R. 30.) A lumbar MRI in July 2011 indicated 13 1 “mild levoscoliosis at L2-3, 2mm disc protrusion at L1-2, 1mm disc bulge at L2-3, 2 and 2mm disc bulge at L3-4. (Id. at 32, 255-56.) 3 consistent history of chronic back pain. (See e.g., A.R. 401 (“Significant for severe, 4 chronic low back pain.”); 462 (“lumbar rudiculopathy, spondylosis; [ . . .] pain is 5 chronic”); 496 (“chronic low back pain”).) Plaintiff’s medical records reveal a 6 7 1. Opinions As to Plaintiff’s Physical Limitations 8 9 In September 2011, Dr. Ursula Taylor performed an independent medical 10 evaluation of Plaintiff. (A.R. at 262-66.) She reported that Plaintiff ambulated with a 11 normal gait, had excellent muscle tone and muscle bulk on his back, straight-leg 12 raising was negative bilaterally with decreased range of motion of the lumbar spine. 13 (Id. at 265.) She also noted that Plaintiff “appeared to have an unusually muscular 14 upper body, which is somewhat inconsistent with significant back pain, and there was 15 significant muscle tone noted in the lower back, although some of this could possibly 16 be due to back spasm.” (Id.) 17 18 Just a month after Dr. Taylor’s evaluation, in October 2011, agency 19 medical consultant, Luther Woodcock, M.D., reported that Plaintiff could lift 50 20 pounds occasionally, 25 pounds frequently stand or walk about 6 hours in an 8-hour 21 workday and sit about 6 hours in an 8-hour workday. (A.R. at 282.) Dr. Woodcock 22 opined that, based on the imaging documenting Plaintiff’s degenerative disc disease 23 and Plaintiff’s limitations as to activities of daily living, a greater degree of physical 24 limitation was warranted than Dr. Taylor proposed. (Id. 287.) 25 26 In March 2012, Dr. Taylor examined Plaintiff again and reported that 27 Plaintiff had had three back surgeries in 2010 and at the time of her evaluation, 28 Plaintiff had a wound from the removal of a large cyst on his back that was not yet 14 1 fully healed. (Id. at 394.) She also noted that Plaintiff’s “muscle tone, bulk, and 2 strength are normal.” (A.R. 397.) Plaintiff’s straight-leg raising appeared to be 3 “borderline positive but he generally ambulates very well. It is difficult to appreciate 4 any significant degree of limitation based on back pain, but some slight limitation 5 could be considered.” 6 for review and she “strongly suggested that medical records are obtained and/or the 7 [Plaintiff] is observed outside the clinical setting to see what his true physical capacity 8 is.” (Id. at 398.) Based on her examination she concluded that Plaintiff could lift and 9 carry 50 pounds occasionally and 25 pounds frequently due to back pain; found no 10 restrictions on standing, walking or sitting, and limited bending, stooping and pulling 11 to a frequent basis due to back pain. (Id.) Dr. Taylor indicated that no medical records were submitted 12 13 On April 17, 2012, medical consultant, James Metcalf, M.D. completed a 14 physical residual function capacity assessment. (A.R. at 418-25.) Dr. Metcalf 15 reported that Plaintiff had normal gait, decreased range of motion in the lumbar and 16 “[h]e ambulates well without an assistive device.” (Id. at 425.) Dr. Metcalf also 17 noted that “Poor effort cannot be ruled out of the exam” and concluded that Plaintiff 18 “is capable of medium work activities. (Id.) 19 20 In May 2013, physician’s assistant, Beth A. Brown, provided a Lumbar 21 Spine Medical Source Statement. (A.R. 462-65.) Ms. Brown indicated she had 22 treated Plaintiff for six months and listed Plaintiff’s symptoms as chronic low back 23 pain and insomnia. (Id. at 462.) She also characterized the pain as moderate to severe. 24 (Id.) She noted that Plaintiff could stand/walk for less than 2 hours in an 8-hour 25 working day (with normal breaks) and sit for about 4 hours. (Id. at 463.) When asked 26 how frequently Plaintiff might need to take unscheduled breaks during a working day, 27 her handwritten notes stated: “uncertain (daily).” (Id. at 464.) But she also noted that 28 Plaintiff would not need the assistance of a cane or other assistive device when 15 1 standing/walking. (Id.) She found no restrictions in the use of Plaintiff’s arms, that 2 he could lift 10 pounds or less frequently, 20 pound occasionally, and 50 pounds 3 never. (Id.) 4 accommodation of sitting and standing and walking. 5 indicated that Plaintiff was “capable of low stress work.” (Id. at 465.) Ms. Brown noted that Plaintiff required a job that allows for the (Id. at 464.) Finally, she 6 7 2. The ALJ Provided Legally Sufficient Reasons Supported By 8 The Record For Her Assessment Of The Medical Opinions 9 Concerning Plaintiff’s Physical Limitations 10 11 Plaintiff argues that in assessing Plaintiff’s RFC, the ALJ improperly discounted 12 the opinion of physician’s assistant Beth A. Brown as a treating healthcare 13 practitioner. (Joint Stip. at 10.) The Court disagrees. As an initial matter, the Ninth 14 Circuit has recognized that physician’s assistants, like social workers, are not 15 considered “acceptable medical sources” 16 416.913(d). 17 licensed physicians and other qualified specialists, and “[t] he ALJ may discount 18 testimony from these “other sources” if the ALJ gives germane reasons for doing so.” 19 Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Turner v. Comm’r of 20 Soc. Sec., 613 F.3d 1217, 1224 (9th Cir. 2010)). However, a physician’s assistant 21 may qualify as an acceptable treating source, however, if she worked under a 22 physician’s close supervision such that she acted as the physician’s agent. See Gomez 23 v. Chater, 74 F.3d 967, 971 (9th Cir. 1996) (referencing a regulation since repealed 24 addressing a report of an interdisciplinary treating team). under 20 C.F.R. §§ 404.1513(a), Therefore, their opinions are not entitled to the same deference as 25 26 Here, there is no evidence that physician’s assistant Brown worked under a 27 physician’s supervision. Plaintiff argues that because California requires supervision 28 of physician’s assistants, “the physician’s assistant’s expressions are imputed to the 16 1 physician absent repudiation by the licensed physician.” (Joint Stip. at 11.) 2 Plaintiff’s arguments are unavailing in the absence of any evidence in the record that 3 Ms. Brown’s work was supervised or even reviewed by a licensed physician. Her 4 report does not reference any supervising physician and is not signed by any 5 physician. (A.R. 465.) Accordingly, the ALJ did not err in failing to give the 6 physician’s assistant’s opinions the same deference as that accorded to a treating 7 licensed physician. 8 9 Even if Brown’s opinions were accorded the same deference as that of a 10 licensed physician, the ALJ did not err. When, as here, a treating or examining 11 physician’s opinion is contradicted, the ALJ can reject that opinion for specific and 12 legitimate reasons that are supported by substantial evidence in the record.” Murray 13 v. Heckler, 722 F.2d 499, 502 (9th Cir. 1983). In this case, the ALJ met this standard, 14 providing specific, legitimate reasons, supported by substantial evidence in the record, 15 for discounting Brown’s opinion. 16 17 First, the ALJ found that Brown’s assessment was not supported by examination 18 signs or findings. (A.R. 35.) Brown’s lumbar spine assessment consisted largely of a 19 standardized form with little explanation for her findings. (A.R. 462-65.) Brown did 20 not include any medical records, progress notes or supporting documentation in 21 support of her findings. (Id.) The ALJ did not err in discounting the physician 22 assistant’s conclusory findings. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 23 1996) (ALJ permissibly rejected “check-off reports that did not contain any 24 explanation of the bases of their conclusions”). 25 26 The ALJ also outlined how Brown’s findings were contradicted by other 27 evidence in the record. For example, consultative examining physician Dr. Ursula 28 Taylor, opined that Plaintiff could lift and carry 50 lbs. occasionally and 25 lbs. 17 1 frequently (A.R. 397) and consultant Dr. Woodcock opined that Plaintiff could 2 lift/carry 25 pounds frequently and 50 pounds occasionally, as well as stand/walk and 3 sit for about 6 hours in an 8-hour workday. (Id. at 32, 282.) The ALJ also pointed to 4 the findings of Dr. Metcalf who, even though he believed greater limitations were 5 warranted than Dr. Taylor indicated, still determined that Plaintiff could lift/carry 25 6 pounds frequently, 50 pounds occasionally, and stand/walk and sit for about 6 hours 7 in an 8-hour workday. (Id. at 33, 419.) Indeed, in support of her RFC analysis, the 8 ALJ gave a detailed summary of each medical opinion relating to Plaintiff’s physical 9 limitations. (Id. at 31-35.) 10 11 Based on this overall consideration of the record, the ALJ determined that the 12 medical records “showed that treating sources responded with limited and 13 conservative treatment, which was inconsistent with the medical response that would 14 be expected if the symptoms and limitations were as severe as reported by the 15 [Plaintiff] and the physician’s assistant.” (A.R. at 35.) The Ninth Circuit has held 16 that “where evidence is susceptible to more than one rational determination,” the 17 Commissioner’s conclusion must be upheld. Burch v. Barnhart, 400 F. 3d 676, 679 18 (9th Cir. 2005). 19 20 Accordingly, this Court’s review of the record indicates that the ALJ properly 21 considered and evaluated Plaintiff’s physical impairments in determining Plaintiff’s 22 RFC and a remand or reversal is not warranted on this basis. 23 24 CONCLUSION 25 26 27 For all the reasons stated above, IT IS ORDERED THAT the decision of the Commissioner of Social Security is AFFIRMED. 28 18 1 IT IS FURTHER ORDERED that the Clerk of the Court shall serve copies of 2 this Memorandum and Order and the Judgment on counsel for plaintiff and for 3 defendant. 4 5 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 7 DATED: December 7, 2015 8 9 10 11 ______________________________________ KAREN L. STEVENSON UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19
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