Paulette Lynn Carr v. Carolyn W. Colvin, No. 2:2014cv09134 - Document 16 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (nbo)
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Paulette Lynn Carr v. Carolyn W. Colvin Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 PAULETTE LYNN CARR, Plaintiff, 12 13 14 15 Case No. CV 14-09134-DFM MEMORANDUM OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 Plaintiff Paulette Lynn Carr (“Plaintiff”) appeals from the final decision 19 of the Administrative Law Judge (“ALJ”) denying her application for 20 disability benefits. On appeal, the Court concludes that the ALJ properly 21 considered the medical evidence of record. The Court also concludes that the 22 new evidence submitted by Plaintiff to the Appeals Council does not warrant 23 remand. Therefore, the ALJ’s decision is affirmed and the matter is dismissed 24 with prejudice. 25 I. 26 FACTUAL AND PROCEDURAL BACKGROUND 27 Plaintiff filed an application for Social Security disability insurance 28 benefits on March 23, 2011, alleging disability beginning February 4, 2011. Dockets.Justia.com 1 Administrative Record (“AR”) 23, 145. After Plaintiff’s application was 2 denied, she requested a hearing before an ALJ. AR 23, 88-91. On September 6, 3 2012, Plaintiff appeared before an ALJ who continued the hearing and ordered 4 a consultative examination to occur after Plaintiff’s upcoming surgery. AR 23, 5 78-84. On April 11, 2013, Plaintiff appeared and testified at a second hearing 6 before the same ALJ. AR 23, 57-77. 7 On May 9, 2013, the ALJ issued a partially favorable decision finding 8 Plaintiff disabled for a closed period from February 4, 2011 through December 9 31, 2012 (“the closed period of disability”). AR 23-35. Specifically, the ALJ 10 found that Plaintiff had the severe impairment of status post lumbar surgeries, 11 the result of her lumbar fusions in February 2011 and September 2012. AR 26- 12 27. After finding that Plaintiff’s bipolar disorder “has not caused more than a 13 minimal limitation in her ability to perform basic work-related activities,” AR 14 27, the ALJ determined that during the closed period of disability Plaintiff 15 retained the residual functional capacity (“RFC”) to lift and carry no weight; 16 to stand and walk up to 2 hours out of an 8-hour day; and to sit up to 6 hours 17 out of an 8-hour day, AR 27-28. Based on the testimony of a vocational expert 18 (“VE”), the ALJ determined that Plaintiff could not perform her past relevant 19 work nor could she make a successful vocational adjustment to work that 20 existed in significant numbers in the national economy. AR 30-31. 21 However, the ALJ also found that, as of January 1, 2013, Plaintiff had 22 medically improved. AR 32. The ALJ noted that after December 31, 2012, 23 “the record shows less severe anatomical abnormalities in the lumbar spine 24 area and improvement in [Plaintiff’s] physical functioning.” Id. Thus, the ALJ 25 found that, beginning on January 1, 2013, Plaintiff had the RFC to lift and 26 carry 10 pounds occasionally; to stand and walk up to 2 hours out of an 8-hour 27 day; and to sit up to 6 hours out of an 8-hour day. AR 32. Based on the VE’s 28 testimony, the ALJ found that the demands of Plaintiff’s past relevant work 2 1 still exceeded her RFC, AR 34, but that Plaintiff was not disabled as of 2 January 1, 2013 because there was work available in significant numbers in the 3 national and regional economy that she could perform despite her 4 impairments, AR 34-35. 5 II. 6 ISSUES PRESENTED The parties dispute whether: (1) the ALJ properly weighed the medical 7 8 evidence of record; and (2) remand is warranted for consideration of new 9 evidence regarding Plaintiff’s mental impairments. See Joint Stipulation (“JS”) 10 at 5-40. 11 III. 12 DISCUSSION 13 14 A. The ALJ Properly Considered the Medical Evidence of Record Plaintiff contends that the ALJ failed to properly consider the medical 15 evidence in assessing her RFC for three reasons. JS at 5-14, 26-27. First, 16 Plaintiff contends that the ALJ improperly rejected the opinion of a treating 17 physician assistant. Id. at 6-12, 26. Next, Plaintiff argues that substantial 18 evidence does not support the determination of medical improvement in light 19 of a treating physician’s questionnaire, which was submitted to the Appeals 20 Council after the ALJ’s decision. Id. at 10, 14, 27. Finally, Plaintiff contends 21 that substantial evidence does not support the ALJ’s finding of medical 22 improvement sufficient to overcome the presumption of continuing disability. 23 Id. at 12-14, 26-27. 24 25 26 1. The Physician Assistant’s Assessment a. Relevant Law An ALJ must give specific and legitimate reasons for rejecting a treating 27 physician’s opinion. Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). But 28 physician assistants are ordinarily treated as “other sources” rather than 3 1 “acceptable medical sources.” See 20 C.F.R. § 404.1513(a), (d) (defining 2 “acceptable medical sources” and “other sources,” the latter including 3 physician assistants). An ALJ may discount testimony from “other sources” if 4 the ALJ gives “reasons germane to each witness for doing so.” Molina v. 5 Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). 6 7 b. Background On September 5, 2012, physician assistant James Hager completed a 8 Spinal Impairment Questionnaire for Plaintiff. AR 359-65. In the 9 questionnaire, Hager reported that he had seen Plaintiff seven times since July 10 2011. AR 359. He noted that Plaintiff was suffering from failed back surgery 11 syndrome and assessed her prognosis as “poor.” Id. Hager indicated that his 12 examination of Plaintiff revealed limited range of motion for lumbar extension 13 and flexion, tenderness at the coccyx, bilateral lumbar muscle spasms, sensory 14 loss from the L4-L5 levels, and an abnormal gait. AR 359-60. 15 Hager opined that Plaintiff’s symptoms were “periodically” severe 16 enough to interfere with attention and concentration and that she was capable 17 of only low-stress work. AR 363-64. He also opined that Plaintiff could not sit 18 for more than one hour and could not stand and walk for more than two hours 19 in an eight-hour day, AR 362; that Plaintiff could occasionally lift and carry 20 less than 10 pounds and could never carry more than ten pounds, AR 362-63; 21 and that Plaintiff’s impairments would produce good days and bad days, and 22 she would likely miss more than three times a month as a result of her 23 impairments and treatment, AR 364. 24 The ALJ gave Hager’s opinion “little probative weight” because it was 25 not supported by the objective medical evidence, which showed improvement 26 in Plaintiff’s condition with treatment. AR 33. The ALJ further noted that, “as 27 a physician’s assistant, Hager is not considered an acceptable medical source 28 […], which renders his opinion less persuasive.” Id. 4 1 c. Analysis 2 Plaintiff first argues that the ALJ erred in not treating the Spinal 3 Impairment Questionnaire completed and signed by Hager as the opinion of 4 an acceptable medical source. JS at 10-11, 26. Specifically, Plaintiff contends 5 that Hager’s opinion should have been given the same weight as that of a 6 treating physician because he necessarily worked under a physician’s 7 supervision. Id. But the record does not reflect any evidence of a physician’s 8 involvement in Hager’s treatment of Plaintiff. Indeed, the Spinal Impairment 9 Questionnaire does not indicate that a physician was present during any of 10 Plaintiff’s visits with Hager, and he alone signed the questionnaire. AR 359-65. 11 Nevertheless, Plaintiff appears to argue that Hager’s opinions can be attributed 12 to a treating physician because California law requires that physician assistants 13 be supervised by physicians. See JS at 10 (“The participation of the assistant 14 does not wash out the color of the physician’s oversight, responsibility, and 15 attribution of the opinions expressed”); Cal. Code Regs. Tit. 16, § 1399.545. 16 The Court disagrees. 17 The California Code of Regulations mandates that a supervising 18 physician be accessible for consultation, at least electronically, during “all 19 times when the physician assistant is caring for patients.” See Cal. Code Regs. 20 Tit. 16, § 1399.545(a). Section 1399.545 otherwise requires that the supervising 21 physician delegate tasks only within the physician’s specialty or consistent with 22 customary treatment practice; that the physician review evidence of the 23 physician assistant’s performance until assured of the latter’s competency; that 24 the physician and physician assistant establish written procedures for 25 emergency care; and that they establish written guidelines to ensure that the 26 physician assistant is adequately supervised. See id. § 1399.545(b)-(e). Neither 27 these requirements, nor the fact that the physician “shall be responsible for all 28 medical services provided by a physician assistant under his or her 5 1 supervision,” id. § 1399.545(f), amounts to the level of close supervision 2 necessary to establish that Hager’s opinion about Plaintiff’s health is the same 3 as that of a treating physician. 4 Accordingly, Plaintiff has offered no basis for her contention that 5 Hager’s opinion reflects that of a medically acceptable source. See Molina, 674 6 F.3d at 1111 (finding that physician assistant “did not qualify as a medically 7 acceptable treating source” when “the record does not show that she worked 8 under a physician’s close supervision”); see also Lowery v. Astrue, No. 11- 9 1479, 2012 WL 1968605, at *1-2 (C.D. Cal. June 1, 2012) (noting that 10 physician assistant was not “acceptable medical source” and therefore ALJ did 11 not need to give specific and legitimate reasons for rejecting physician 12 assistant’s opinion). Because this argument fails, so too does Plaintiff’s 13 argument that the ALJ was required to give specific and legitimate reasons for 14 rejecting Hager’s opinion. See Lowery, 2012 WL 1968605 at *2 (“ALJ need 15 not give any deference to [physician assistant’s] opinion nor provide ‘specific 16 and legitimate reasons’ to reject it”). Thus, the ALJ needed only to give 17 germane reasons for discounting his opinion. See id. That is precisely what the 18 ALJ did. See AR 33. 19 Hager prepared the Spinal Impairment Questionnaire on September 5, 20 2012, or about two weeks before Plaintiff’s second lumbar fusion surgery. AR 21 370-72. In determining that Plaintiff’s condition had improved beyond that 22 opined by Hager, the ALJ relied on the opinions of two physicians who treated 23 Plaintiff after her second surgery. AR 32-33. The ALJ noted that in January 24 2013, Dr. Imad Rasool, a pain management specialist, did not observe any 25 neurological abnormalities in Plaintiff’s lower extremities following the 26 surgery. AR 32 (citing AR 403-04). The ALJ also noted that Dr. Sean Xie, the 27 neurosurgeon who performed both of Plaintiff’s surgeries, noted that “based on 28 his physician examination and [Plaintiff’s] reports of improvement in her 6 1 condition, […] he did not recommend additional intervention to correct 2 [Plaintiff’s] spinal condition.” AR 33 (citing AR 425-26). The ALJ further 3 noted that Plaintiff’s physical therapist “observed improvement in the 4 functioning of her spine.” Id. (citing AR 434-37). That Hager’s assessment was 5 contradicted by other, more recent evidence of record was a germane reason 6 for discounting his opinion. See, e.g., Noe v. Apfel, 6 F. App’x 587, 588 (9th 7 Cir. 2001) (holding that ALJ properly discounted assessment of “other source” 8 where it was contradicted by evidence in the record). 9 Moreover, contrary to Plaintiff’s contention, the ALJ did not outright 10 “reject” Hager’s assessment. See JS at 11. Rather, as discussed above, the ALJ 11 gave it “very little probative weight” in part because, as a physician assistant, 12 his opinion is “less persuasive” than that of a specialist physician. As the ALJ 13 held, Hager’s opinion was inconsistent with that of Dr. Rasool, who also 14 specialized in the relevant field of pain management, and whose opinion was 15 therefore entitled to greater weight. The ALJ thus properly discounted Hager’s 16 opinion to the extent it conflicted with that of Dr. Rasool. See Molina, 674 17 F.3d at 1112 (that physician assistant’s opinion was inconsistent with that of 18 specialist physician is germane reason for rejecting physician assistant’s 19 opinion). Accordingly, the ALJ did not err in giving little probative weight to 20 Hager’s opinion. Remand is not warranted on this basis. 21 22 2. The New Evidence Submitted to the Appeals Council a. Relevant Law 23 Social Security regulations “permit claimants to submit new and 24 material evidence to the Appeals Council and require the Council to consider 25 that evidence in determining whether to review the ALJ’s decision, so long as 26 the evidence relates to the period on or before the ALJ’s decision.” Brewes v. 27 Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1162 (9th Cir. 2012) (citing 20 28 C.F.R. § 404.970(b)). In Brewes, the Ninth Circuit held that, “when the 7 1 Appeals Council considers new evidence in deciding whether to review a 2 decision of the ALJ, that evidence becomes part of the administrative record, 3 which the district court must consider when reviewing the Commissioner’s 4 final decision for substantial evidence.” Id. at 1163 (citing Tackett v. Apfel, 180 5 F.3d 1094, 1097-98 (9th Cir. 1999)); see also Borrelli v. Comm’r of Soc. Sec., 6 570 F. App’x 651, 652 (9th Cir. 2014) (“Remand is necessary where the 7 material evidence gives rise to a ‘reasonable possibility’ that the new evidence 8 might change the outcome of the administrative hearing.” (citing Booz v. Sec’y 9 of Health & Human Servs., 734 F.2d 1378, 1380-81 (9th Cir. 1984))). The 10 Ninth Circuit also held that a plaintiff is not required to demonstrate that the 11 later admitted records meet the materiality standard of 42 U.S.C. § 405(g) since 12 that standard applies only to new evidence that is not part of the administrative 13 record and is presented in the first instance to the district court. Brewes, 682 14 F.3d at 1164. Instead, “evidence submitted to and considered by the Appeals 15 Council is not new but rather part of the administrative record properly before 16 the district court.” Id. 17 18 b. Background At her second hearing on April 11, 2013, Plaintiff indicated that her file 19 was complete. AR 60. However, on April 29, 2013, Dr. Tuan H. Nguyen, a 20 specialist in family medicine, completed a Spinal Impairment Questionnaire 21 for Plaintiff. AR 473-79. Dr. Nguyen noted that Plaintiff was suffering from 22 low back pain and assessed her prognosis as “poor.” AR 473. Dr. Nguyen 23 indicated that his examination of Plaintiff revealed limited range of motion 24 and tenderness in the lumbar spine, paravertebral muscle spasms and sensory 25 loss, a “somewhat unbalanced” gait, and a positive straight-leg raising test. AR 26 473-74. He also indicated that Plaintiff’s primary symptoms included low back 27 pain, lumbar paravertebral spasms, and easy muscle fatigue. AR 475. 28 Dr. Nguyen opined that Plaintiff’s symptoms were “periodically” severe 8 1 enough to interfere with attention and concentration and that she was 2 incapable of even low-stress work, AR 477-78; that Plaintiff could not sit for 3 more than two hours and could not stand and walk for more than one hour in 4 an eight-hour day, AR 476; that Plaintiff could frequently lift and carry less 5 than five pounds and could occasionally lift and carry between five and ten 6 pounds, AR 476-77; and that Plaintiff’s impairments would produce good days 7 and bad days, and she would likely miss more than three times a month as a 8 result of her impairments and treatment. AR 478. 9 Because Dr. Nguyen’s Spinal Impairment Questionnaire was submitted 10 in the first instance to the Appeals Council on July 12, 2013, AR 232-34, it was 11 not considered by the ALJ. The Appeals Council reviewed the questionnaire 12 when denying Plaintiff’s request for review, and concluded that the additional 13 evidence1 did not compel a reconsideration of the ALJ’s decision: 14 In looking at your case, we considered the reasons you 15 disagree with the decision and the additional evidence listed on the 16 enclosed Order of Appeals Council. We considered whether the [ALJ]’s action, findings, or 17 18 conclusion is contrary to the weight of evidence of record. … We found that this information does not provide a basis for 19 20 21 changing the [ALJ]’s decision. AR 1-2. c. 22 Analysis 23 Plaintiff appears to contend that the Appeals Council erred in denying 24 her request for review of the ALJ’s decision. JS at 14 (“The Appeals Council 25 1 26 27 The Appeals Council also considered a Psychiatric/Psychological Impairment Questionnaire prepared by Dr. Lydie Hazan, AR 482-89, which is discussed below in Section III.B. 28 9 1 had Dr. Nguyen’s opinion prior to denying [Plaintiff’s] request for review of 2 the ALJ’s decision. A reasonable person would find that [Plaintiff’s] physical 3 impairments did not improve as of January 1, 2013.”). As discussed above, in 4 considering evidence submitted for the first time to the Appeals Council, a 5 district court must assess the record as a whole and determine whether the 6 ALJ’s decision is supported by substantial evidence. See Brewes, 682 F.3d at 7 1161-62. Accordingly, the Court will construe Plaintiff’s argument as 8 contending that the ALJ’s final decision is not supported by substantial 9 evidence when the Spinal Impairment Questionnaire prepared by Dr. Nguyen 10 is considered along with the other evidence. The Commissioner counters that 11 “[c]onsidering the record as a whole, the new evidence that Plaintiff submitted 12 to the Appeals Council does not change the fact that substantial evidence 13 supports the ALJ’s decision.” JS at 23. The Court agrees. 14 Although the form check-box and fill-in-the-blank questionnaire 15 prepared by Dr. Nguyen contained conclusions contradicting the medical 16 evidence of record and Plaintiff’s RFC assessment, Dr. Nguyen provided very 17 few, if any, clinical findings or explanation to support his conclusions. See AR 18 473-79. Indeed, Dr. Nguyen left blank the section of the questionnaire that 19 asked him to “[i]dentify the laboratory and diagnostic test results which 20 demonstrate and/or which support your diagnosis.” AR 475. Because Dr. 21 Nguyen’s opinion, as expressed in the questionnaire, is conclusory and 22 minimally supported, remand for further consideration of his opinion is not 23 warranted. See Thomas, 278 F.3d at 957; Batson v. Comm’r of Soc. Sec. 24 Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (holding that ALJ may discredit 25 treating physicians’ opinions that are conclusory, brief, and unsupported by 26 record as a whole, or by objective medical findings); see also De Guzman v. 27 Astrue, 343 F. App’x 201, 209 (9th Cir. 2009) (holding that ALJ was “free to 28 reject” treating physician’s check-off report that did not contain any 10 1 explanation of basis of her conclusions). In addition, the questionnaire appears to be based largely on Plaintiff’s 2 3 own subjective complaints of pain, which are inconsistent with other 4 representations made by Plaintiff regarding her pain level. For example, in 5 January 2013, Dr. Rasool noted that Plaintiff “endorses adequate support of 6 her pain.” AR 403. Also in January 2013, Dr. Xie noted that Plaintiff “still had 7 some pain, superior to the area of her surgery,” but “did not take any pain 8 medication during the day.” AR 425. In March 2013, Plaintiff reported to her 9 physical therapist that her pain had improved with treatment. AR 434, 436-37. 10 That same month, Dr. Rasool described Plaintiff’s condition as “stable” and 11 noted that she did not report any “significant interval change.” AR 432. For 12 these reasons, the Court concludes that Dr. Nguyen’s opinion was 13 inconsequential to the ultimate determination of medical improvement, 14 because it is implausible that the ALJ would have given his opinion any 15 significant weight when considered along with the other evidence in the 16 record. See Batson, 359 F.3d at 1195 (holding that ALJ properly discounted 17 treating physician’s opinion because it was in form of a checklist, did not have 18 supportive objective evidence, was contradicted by other statements and 19 assessments of plaintiff’s medical condition, and was based plaintiff’s 20 subjective descriptions of pain). 21 Accordingly, the Court finds that the ALJ’s determination that Plaintiff 22 was not disabled after December 2012 is supported by substantial evidence in 23 the record despite the addition of Dr. Nguyen’s opinion, and that there is not a 24 reasonable possibility that Dr. Nguyen’s opinion would have altered the 25 outcome of the administrative hearing. See Borrelli, 570 F. App’x at 652. 26 Thus, remand is not warranted on this ground. 27 /// 28 /// 11 1 3. Substantial Evidence Supports the ALJ’s Finding of Medical 2 Improvement 3 a. 4 Relevant Law Generally, a claimant for disability benefits bears the burden of 5 producing evidence to demonstrate that he or she was disabled within the 6 relevant time period. Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 1995). 7 “Once a claimant has been found to be disabled, however, a presumption of 8 continuing disability arises in her favor.” Bellamy v. Sec’y of Health & Human 9 Servs., 755 F.2d 1380, 1381 (9th Cir. 1985) (citing Murray v. Heckler, 722 F.2d 10 499, 500 (9th Cir. 1983)). The burden then shifts to the Commissioner to 11 produce “evidence sufficient to rebut this presumption of continuing 12 disability.” Id. Benefits cannot be terminated unless substantial evidence 13 demonstrates medical improvement in the claimant’s impairment such that he 14 or she becomes able to engage in substantial gainful activity. See 42 U.S.C. § 15 423(f); 20 C.F.R. § 404.1594; Murray, 722 F.2d at 500. 16 Medical improvement is defined as “any decrease in the medical severity 17 of [the claimant’s] impairment(s) which was present at the time of the most 18 recent favorable medical decision that [the claimant was] disabled or continued 19 to be disabled. A determination that there has been a decrease in medical 20 severity must be based on changes (improvement) in the symptoms, signs 21 and/or laboratory findings associated with [the claimant’s] impairment(s).” 20 22 C.F.R. § 404.1594(b)(1); see also 20 C.F.R. § 404.1594(c)(1). A determination 23 that medical improvement has occurred requires comparison of “the current 24 medical severity of that impairment(s) which was present at the time of the 25 most recent favorable medical decision that [the claimant was] disabled or 26 continued to be disabled to the medical severity of that impairment(s) at that 27 time.” 20 C.F.R. § 404.1594(b)(7). 28 It appears that the Ninth Circuit has not directly addressed whether the 12 1 medical improvement standard applies to cases, such as here, involving closed 2 periods of disability. See Bruna v. Astrue, No. 12-2147, 2013 WL 1402362, at 3 *16 (N.D. Cal. Apr. 5, 2013) (“Although the Ninth Circuit has not yet 4 addressed whether this standard also applies to cases involving closed periods 5 of disability, the Circuits that have are largely in agreement that it does.”). 6 Indeed, several other circuits have held that the standard is appropriate for 7 closed period cases. See, e.g., Waters v. Barnhart, 276 F.3d 716, 718-19 (5th 8 Cir. 2002) (holding that “in closed period cases, the ALJ engages in the same 9 decision-making process as in termination case” and therefore, the medical 10 improvement standard applies); Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th 11 Cir. 1999); Jones v. Shalala, 10 F.3d 522, 524 (7th Cir. 1993); Chrupcala v. 12 Heckler, 829 F.2d 1269, 1274 (3d Cir. 1987). Given these cases, and the fact 13 that the Commissioner adopts the medical improvement standard, see JS at 25 14 (“Such evidence substantially supports the ALJ’s finding of medical 15 improvement effective January 2013, which was sufficient to overcome a 16 presumption of continuing disability.”), the Court applies the medical 17 improvement standard to the ALJ’s determination that Plaintiff’s disability 18 ended on December 31, 2012. 19 20 b. Background At the April 11, 2013 hearing, the ALJ expressed that, based on her 21 review of the record, she believed that “this case is appropriate for a closed 22 period.” AR 60. The ALJ ultimately determined that Plaintiff’s disability 23 ended on January 1, 2013, because, as of that date, “the record shows less 24 severe anatomical abnormalities in the lumbar spinal area and improvement in 25 [Plaintiff’s] pain and physical functioning.” AR 32. The ALJ also compared 26 Plaintiff’s RFC for the period during which she was disabled with her RFC 27 beginning January 1, 2013, and concluded that Plaintiff’s “functional capacity 28 for basic work-related activities has increased.” Id. 13 1 2 c. Analysis Plaintiff argues that the ALJ’s finding of medical improvement following 3 her second lumbar fusion surgery is not supported by substantial evidence in 4 the record. JS at 12-14. Plaintiff first argues that, on January 8, 2013, Dr. 5 Nguyen noted that Plaintiff “had limited bending of the lower back and 6 positive back pain.” JS at 13 (citing AR 427). However, as the Commissioner 7 points out, the only limitation in Dr. Nguyen’s treatment notes from January 8 and February 2013 is “no heavy lifting.” JS at 25 (citing AR 424, 427). 9 Plaintiff also argues that, on January 11, 2013, Dr. Xie indicated that 10 Plaintiff’s physical examination was overall unchanged and the examination 11 was “somewhat limited due to her back pain.” Id. (citing AR 425). However, 12 taken as a whole, Dr. Xie’s evaluation supports the ALJ’s conclusion that 13 Plaintiff’s condition improved post-surgery. Indeed, Plaintiff acknowledges 14 that “Dr. Xie did indicate that pain did improve and level of comfort 15 increased.” Id. As the ALJ noted, Dr. Xie opined that Plaintiff “did not require 16 any pain medication during the day” and “her current pain regimen seemed to 17 work quite well.” AR 33, 425. The ALJ also relied on Dr. Xie’s conclusion 18 that he would not recommend additional intervention to correct Plaintiff’s 19 spinal condition. Id. Dr. Xie’s evaluation was supported by his observations 20 that Plaintiff’s “incision had healed very well,” “her strength of feet was 21 normal,” and an x-ray of her lumbar spine revealed good alignment of her 22 hardware fusion. AR 425. 23 Plaintiff next argues that Dr. Rasool indicated that Plaintiff had a 24 positive straight-leg raising test in February 2013. JS at 13-14 (citing AR 401). 25 However, as the ALJ stated, Plaintiff told Dr. Rasool in January 2013 that she 26 experienced “adequate support” of her pain. AR 32, 403. Plaintiff did not 27 report any significant changes to Dr. Rasool thereafter, and in March 2013, he 28 described her condition as “stable.” AR 32-33, 401, 403, 432. 14 Thus, when viewed in its proper context, the evidence cited by Plaintiff 1 2 actually supports the ALJ’s determination that her medical condition 3 improved as of January 2013. The addition of Dr. Nguyen’s Spinal 4 Impairment Questionnaire to the record does not, as Plaintiff contends, 5 undermine this substantial evidence of medical improvement for the reasons 6 discussed above in Section III.A.2. Accordingly, the Commissioner has met 7 her burden as to the period beginning January 1, 2013 by demonstrating that 8 due to medical improvement, Plaintiff’s RFC was greater than it had been 9 before her second lumbar fusion surgery. Remand is therefore not warranted 10 on this ground. 11 B. The Appeals Council Did Not Err in Denying Plaintiff’s Request for 12 Review 13 Plaintiff also contends that the Appeals Council erred in denying her 14 request for review, which was accompanied by a Psychiatric/Psychological 15 Questionnaire prepared by Dr. Lydie Hazan, AR 482-89. As set forth above, 16 when the Appeals Council declines review, the ALJ’s decision becomes the 17 final decision of the Commissioner, and the district court reviews that decision 18 for substantial evidence based on the record as a whole. Brewes, 682 F.3d at 19 1161-62. Remand is necessary where there is a reasonable possibility that the 20 new evidence might change the outcome of the administrative hearing. 21 Borrelli, 570 F. App’x at 652. The Commissioner argues that “the new 22 evidence that Plaintiff submitted to the Appeals Council does not change the 23 fact that substantial evidence supports the ALJ’s decision.” JS at 32. 24 1. Background 25 Plaintiff testified at the April 11, 2013 hearing that she sees Dr. Lydie 26 Hazan for mental health treatment. AR 69. She also testified that Dr. Hazan 27 prescribes her Lithium and Lurasidone. Id. Plaintiff stated that she suffers from 28 depression and “anything can really set you off.” AR 70. She also stated that 15 1 she experiences anxiety attacks “[a]lmost nightly,” and was diagnosed “back 2 when [she] was 14 . . . with bipolar I.” AR 70-71. Plaintiff further testified that 3 she had been psychiatrically hospitalized four times, with the last time 4 occurring in 2009. AR 71. 5 In determining that the objective medical evidence was insufficient to 6 support the existence of any significantly limiting mental impairment, the ALJ 7 considered a letter from Dr. Hazan stating that she had been treating Plaintiff 8 for “bipolar disorder” since January 24, 2013. AR 27, 438. The letter indicated 9 that Plaintiff had participated in a study related to bipolar disorder and 10 included a summary of the dosages of medication Plaintiff was prescribed 11 during the study. AR 438-39. The ALJ found that Plaintiff’s bipolar disorder 12 has not caused more than minimal limitation in her ability to perform basic 13 work-related activities for the following reasons: 14 … Dr. Hazan did not state with specificity the evidence that she 15 relied upon to support her diagnosis. Further, she did not indicate 16 the extent to which, if any, the medications she prescribed were 17 helpful in controlling the claimant’s condition. Indeed, the record 18 contains little objective evidence to support the claimant’s 19 allegations of disabling anxious, depressive, and manic symptoms. 20 The record does not contain an objective assessment of the 21 claimant’s mental condition (e.g., mental status examination, 22 psychological test) performed by a mental health specialist. 23 Without such evidence, the undersigned cannot determine the 24 extent to which, if any, the claimant’s alleged psychiatric 25 symptoms affect her cognitive, expressive, receptive, and/or social 26 functioning. Although the claimant testified that she has been 27 hospitalized four times due to her psychiatric symptoms (Hearing 28 Record), the record does not contain evidence of this treatment. 16 1 AR 27. On December 2, 2013, several months after the ALJ’s decision, Dr. 2 3 Hazan completed a Psychiatric/Psychological Questionnaire for Plaintiff. AR 4 482-489. In the questionnaire, Dr. Hazan diagnosed Plaintiff with Bipolar I 5 Disorder and indicated that Plaintiff’s prognosis “can be long term and at 6 times be severe.” AR 482. Dr. Hazan checked the boxes indicating that 7 Plaintiff suffered from appetite, sleep, and mood disturbance, emotional 8 liability, manic syndrome, generalized persistent anxiety, and hostility and 9 irritability. AR 483. Dr. Hazan also indicated that her diagnosis was supported 10 by “SIGMA,” the “C-SSRS & YMRS rating scales,” and the “AIMS rating 11 scale.” AR 483. She noted that Plaintiff’s primary symptoms were irritability, 12 excessive talking, depression, sadness, reduced appetite, and concentration 13 difficulties. AR 484. She indicated that Plaintiff has been prescribed Lithium, 14 Doxycycline, Motrin, and Phenazopyridine. AR 487. Dr. Hazan opined that Plaintiff’s impairments would last at least twelve 15 16 months and that she was incapable of even “low stress” work. AR 488. Dr. 17 Hazan also opined that Plaintiff’s impairments would produce good days and 18 bad days, and she would likely miss more than three times a month as a result 19 of her impairments and treatment. AR 488-89. Dr. Hazan further opined that 20 the earliest date Plaintiff’s symptoms and limitations appeared was “since 21 diagnosed – years – .” AR 489. Dr. Hazan signed the questionnaire and 22 indicated that her specialty was “general practice.” AR 365. Dr. Hazan’s Psychiatric/Psychological Questionnaire was submitted in 23 24 the first instance to the Appeals Council on July 3, 2014, AR 480-81. As 25 discussed above, the Appeals Council reviewed the additional evidence 26 submitted by Plaintiff and concluded that it “does not provide a basis for 27 changing the [ALJ]’s decision.” AR 1-2, 5. 28 /// 17 1 2. Analysis 2 Plaintiff contends that when she submitted Dr. Hazan’s 3 Psychiatric/Psychological Questionnaire to the Appeals Council, it filled “the 4 psychological void in the ALJ’s assessed residual functional capacity 5 assessment.” JS at 32. The Court disagrees. As an initial matter, the 6 questionnaire is a standardized, check-all-that-apply and fill-in-the-blank report 7 in which Dr. Hazan provided minimal, if any, supporting reasoning or clinical 8 findings. See Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (holding that 9 ALJ permissibly rejected psychological evaluations “because they were check- 10 off reports that did not contain any explanation of the bases of their 11 conclusions”); see also Murray, 722 F.2d at 501 (expressing preference for 12 individualized medical opinions over check-off reports). 13 Additionally, the ALJ’s reasons for discounting Dr. Hazan’s letter apply 14 equally to the questionnaire. As the ALJ observed about the letter, the 15 questionnaire similarly “did not state with specificity the evidence that [Dr. 16 Hazan] relied upon to support her diagnosis.” See AR 27. Plaintiff argues that 17 “Dr. Hazan utilized SIGMA; C-SSRS QYMRS rating scale; and AIMS rating 18 scale testing to support her diagnosis.” JS at 19-30 (citing AR 483). However, 19 as the Commissioner points out, “there is no evidence that Dr. Hazan actually 20 administered any tests and she provided no specific relevant findings.” JS at 35 21 (citing AR 483). 22 The record contains no explanation as to what “SIGMA” is, and the 23 Court’s attempts at researching this acronym have not been fruitful. “C-SSRS” 24 appears to refer to the Columbia-Suicide Severity Rating Scale, “an assessment 25 tool that evaluates suicidal ideation and behavior.”2 Although there are eight 26 27 28 2 Available at http://www.cssrs.columbia.edu/documents/ScoringandDataAnalysisGuide_ 18 1 versions of the C-SSRS,3 Dr. Hazan does not state which version was used and 2 does not provide any results, such as whether there was improvement in 3 suicidal ideation. “YMRS” appears to refer to the Young Mania Rating Scale, 4 which measures the severity of manic symptoms of bipolar disorder and the 5 change over time.4 Dr. Hazan does not provide any results such as the severity 6 ratings for Plaintiff’s symptoms or how the severity ratings have changed over 7 time. “AIMS” appears to refer to the Abnormal Involuntary Movement Scale, 8 which measures abnormal movements of parts of the body, such as those 9 associated with the use of certain psychiatric medications.5 Dr. Hazan has not 10 11 provided any AIMS scores. In fact, in the section of the questionnaire that asked her to “[l]ist 12 medication(s) prescribed … and any side effects your patient has reported,” Dr. 13 Hazan listed four medications, but did not include any side effects. AR 487. Of 14 these medications, only Lithium appears to have been prescribed to treat 15 Plaintiff’s mental impairments.6 While Plaintiff testified at the hearing that she 16 was prescribed both Lithium and Lurasidone by Dr. Hazan, see AR 69, neither 17 the questionnaire nor the letter mention Lurasidone. Further, just as the ALJ 18 remarked about Dr. Hazan’s letter, the questionnaire similarly does “not 19 20 Feb2013.pdf (last accessed February 4, 2016). 3 21 22 23 24 25 26 27 Available at http://www.cssrs.columbia.edu/history_cssrs.html (last accessed February 4, 2016). 4 2 Dan J. Tennenhouse, M.D., J.D., F.C.L.M., Attorneys’ Medical Deskbook 4th § 18:10. 5 2 Dan J. Tennenhouse, M.D., J.D., F.C.L.M., Attorneys’ Medical Deskbook 4th § 18:12. 6 The other medications listed are an antibiotic, an anti-inflammatory, and a medication used to relieve pain and discomfort in the urinary tract. 28 19 1 indicate the extent to which, if any, the medications she prescribed were 2 helpful in controlling the claimant’s condition.” See AR 27. Finally, in the section of the questionnaire that asks “the earliest date 3 4 that the description of symptoms and limitations in this questionnaire applies,” 5 Dr. Hazan wrote, “since diagnosed – years – .” AR 489. Plaintiff testified that 6 she was diagnosed with bipolar disorder at age fourteen and that she had been 7 psychiatrically hospitalized four times, including in 2009. AR 70-71. As the 8 ALJ noted, the record does not contain any evidence of these hospitalizations 9 or any other psychiatric treatment prior to that provided by Dr. Hazan. See 10 AR 27. Based on this “evidence (or lack thereof),” the ALJ properly concluded 11 that Plaintiff’s “bipolar disorder has not caused more than minimal limitation 12 in her ability to perform basic work-related activities.” Id. 13 The ALJ’s conclusions are supported by substantial evidence in the 14 record and are appropriate reasons for discounting Dr. Hazan’s opinion. Thus, 15 contrary to Plaintiff’s contention, Dr. Hazan’s questionnaire did not fill the 16 psychological void in the ALJ’s assessed RFC. See JS at 32. Even with the 17 addition of the questionnaire, Plaintiff has failed to meet her burden to 18 demonstrate that she suffered from a severe mental impairment. The Court 19 therefore finds that there is not a reasonable possibility that Dr. Hazan’s 20 opinion would have altered the outcome of the administrative hearing. See 21 Borrelli, 570 F. App’x at 652. Remand is not warranted on this basis. 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 20 1 IV. 2 CONCLUSION 3 4 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 5 6 Dated: February 16, 2016 7 ______________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21
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