Daniel Carl Pryor v. Commissioner of Social Security, No. 2:2015cv09528 - Document 20 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION by Magistrate Judge Charles F. Eick. Plaintiff's motion for summary judgment is denied and Defendant's motion for summary judgment is granted. (sp)
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Daniel Carl Pryor v. Commissioner of Social Security Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 DANIEL CARL PRYOR, ) ) Plaintiff, ) ) v. ) ) COMMISSIONER OF SOCIAL SECURITY, ) ) Defendant. ) ____________________________________) NO. CV 15-9528-E MEMORANDUM OPINION 16 17 18 PROCEEDINGS 19 20 Plaintiff filed a complaint on December 10, 2015, seeking review 21 of the Commissioner’s denial of benefits. The parties consented to 22 proceed before a United States Magistrate Judge on January 12, 2016. 23 Plaintiff filed a motion for summary judgment on May 19, 2016. 24 Defendant filed a motion for summary judgment on June 20, 2016. 25 Court has taken the motions under submission without oral argument. 26 See L.R. 7-15; “Order,” filed December 14, 2015. 27 /// 28 /// The Dockets.Justia.com 1 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 2 3 From 1978 through at least the end of 2009, Plaintiff performed 4 work as a bricklayer, which required heavy exertion throughout the 5 work day (Administrative Record (“A.R.”) 32-34, 46, 67, 181-88, 216). 6 According to Plaintiff, on the first day of 2010, he became physically 7 disabled from performing any work whatsoever (A.R. 31, 167, 174). 8 claimed disappearance of Plaintiff’s ability to perform any work 9 allegedly resulted not from any sudden illness or trauma, but from a The 10 “gradually” worsening back problem (A.R. 34-36, 82). This “gradually” 11 worsening problem reportedly began when Plaintiff was 15 years of age 12 (A.R. 35, 82). 13 chronic obstructive pulmonary disease (“COPD”) and alleged problems 14 with his right wrist and left knee (A.R. 81). Plaintiff also claimed to be disabled as a result of 15 16 An Administrative Law Judge (“ALJ”) examined the medical record 17 and heard testimony from Plaintiff and a vocational expert (A.R. 10- 18 257, 259-380). 19 lumbar spine and COPD, but retains the residual functional capacity to 20 perform a limited range of medium work (A.R. 15-20). 21 the testimony of the vocational expert, the ALJ determined that a 22 person having this residual functional capacity could not work as a 23 bricklayer, but could perform several identified jobs existing in 24 significant numbers in the national economy (A.R. 20-22, 47-49). The ALJ found Plaintiff has severe disc disease of the In reliance on 25 26 In finding Plaintiff not disabled, the ALJ deemed Plaintiff’s 27 statements concerning the alleged severity of his subjective 28 symptomatology “not entirely credible” (A.R. 18). 2 The ALJ also 1 rejected the opinions of Dr. Matthew Root and Dr. Seong Kang, who are 2 alleged to have been two of Plaintiff’s treating physicians (A.R. 19- 3 20). 4 5 6 The Appeals Council considered additional evidence, but denied review (A.R. 1-5, 258, 381-82). 7 8 SUMMARY OF PLAINTIFF’S CONTENTIONS 9 10 Plaintiff contends: 11 12 1. 13 The administrative decision is not supported by substantial evidence; 14 15 2. 16 The ALJ failed to state sufficient reasons for rejecting the opinions of Dr. Root; 17 18 3. 19 The ALJ failed to state sufficient reasons for rejecting the opinions of Dr. Kang; and 20 21 4. The ALJ should have developed the record more fully. 22 23 STANDARD OF REVIEW 24 25 Under 42 U.S.C. section 405(g), this Court reviews the 26 Administration’s decision to determine if: (1) the Administration’s 27 findings are supported by substantial evidence; and (2) the 28 Administration used correct legal standards. 3 See Carmickle v. 1 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 2 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 3 682 F.3d 1157, 1161 (9th Cir. 2012). 4 relevant evidence as a reasonable mind might accept as adequate to 5 support a conclusion.” 6 (1971) (citation and quotations omitted); see also Widmark v. 7 Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). Substantial evidence is “such Richardson v. Perales, 402 U.S. 389, 401 8 9 If the evidence can support either outcome, the court may 10 not substitute its judgment for that of the ALJ. But the 11 Commissioner’s decision cannot be affirmed simply by 12 isolating a specific quantum of supporting evidence. 13 Rather, a court must consider the record as a whole, 14 weighing both evidence that supports and evidence that 15 detracts from the [administrative] conclusion. 16 17 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 18 quotations omitted). 19 20 Where, as here, the Appeals Council considered additional 21 evidence but denied review, the additional evidence becomes part of 22 the record for purposes of the Court's analysis. 23 Commissioner, 682 F.3d at 1163 (“[W]hen the Appeals Council considers 24 new evidence in deciding whether to review a decision of the ALJ, that 25 evidence becomes part of the administrative record, which the district 26 court must consider when reviewing the Commissioner's final decision 27 for substantial evidence”; expressly adopting Ramirez v. Shalala, 8 28 F.3d 1449, 1452 (9th Cir. 1993)); Taylor v. Commissioner, 659 F.3d 4 See Brewes v. 1 1228, 1231 (2011) (courts may consider evidence presented for the 2 first time to the Appeals Council “to determine whether, in light of 3 the record as a whole, the ALJ’s decision was supported by substantial 4 evidence and was free of legal error”); Penny v. Sullivan, 2 F.3d 953, 5 957 n.7 (9th Cir. 1993) (“the Appeals Council considered this 6 information and it became part of the record we are required to review 7 as a whole”); see generally 20 C.F.R. §§ 404.970(b), 416.1470(b). 8 9 DISCUSSION 10 11 After consideration of the record as a whole, Defendant’s motion 12 is granted and Plaintiff’s motion is denied. The Administration’s 13 findings are supported by substantial evidence and are free from 14 material1 legal error. Plaintiff’s contrary arguments are unavailing. 15 16 17 I. Substantial Evidence Supports the Conclusion that Plaintiff Can Work. 18 19 Substantial evidence supports the conclusion Plaintiff is not 20 disabled. Medical testing regarding Plaintiff’s alleged orthopedic 21 and respiratory problems mostly yielded findings of mild or moderate 22 impairment. 23 “moderate degenerative spondylosis off the endplates,” but was 24 otherwise “unremarkable” (A.R. 299, 323). A February 27, 2012 lumbosacral spine study showed A limited July 18, 2012 MRI 25 26 1 27 28 The harmless error rule applies to the review of administrative decisions regarding disability. See Garcia v. Commissioner, 768 F.3d 925, 932-33 (9th Cir. 2014); McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011). 5 1 of the lumbar spine showed, inter alia, suspected stenosis “due to a 2 combination of dorsal spondylosis and an associated bulging disc” 3 (A.R. 320-22, 376-78). 4 radiculopathy (A.R. 371). 5 regarding Plaintiff’s left knee showed no fracture or dislocation, 6 minimal degenerative change and mild osteoarthritis (A.R. 331). 7 March 13, 2012 pulmonary function test showed reduced lung capacity 8 but no overt obstructive lung disease (A.R. 300-324). 9 2013 examination found “no wheeze/rhonchi/rales” (A.R. 368). A 2013 EMG reportedly revealed chronic A November 8, 2013 radiology report A A November, 10 11 From January of 2010 through at least March of 2013, Plaintiff 12 made periodic visits to Conejo Valley Clinic (A.R. 259-69, 271-83, 13 285-87, 314-17, 374-75). 14 ratings of the alleged severity of Plaintiff’s pain on a scale of zero 15 to ten. 16 although a few are at zero and a few are at ten (id.). The records from these visits reflect Most of these ratings fall in the middle of the range, 17 18 Dr. Soheila Benrazavi, an internist, examined Plaintiff and 19 rendered a consultative report on July 10, 2012 (A.R. 308-11). 20 Benrazavi’s examination revealed mostly normal results (id.). 21 Plaintiff’s gait, strength and range of motion were all normal (A.R. 22 308-10). 23 Plaintiff retains a residual functional capacity even greater than the 24 capacity the ALJ found to exist (A.R. 311). 25 examination and opinions provide substantial evidence to support the 26 Administration’s decision. 27 (9th Cir. 2007) (where an examining physician provides “independent 28 clinical findings that differ from findings of the treating physician, Atrophy was absent (A.R. 309). Dr. Dr. Benrazavi opined that Dr. Benrazavi’s See Orn v. Astrue, 495 F.3d 625, 631-32 6 1 such findings are ‘substantial evidence’”) (citations and internal 2 quotations omitted). 3 4 State agency physicians reviewed the records and opined that 5 Plaintiff can perform medium work (A.R. 59-78, 87-90, 97-100). 6 opinions also support the Administration’s decision. 7 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995) (where the opinions of 8 non-examining physicians do not contradict “all other evidence in the 9 record” an ALJ properly may rely on these opinions); Curry v. 10 These See Andrews v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th Cir. 1991). 11 12 The vocational expert testified that a person with the residual 13 functional capacity the ALJ found to exist could perform certain jobs 14 existing in significant numbers in the national economy (A.R. 47-49). 15 The ALJ properly relied on this testimony in denying disability 16 benefits. 17 F.2d 1474, 1478-80 (9th Cir. 1989); Martinez v. Heckler, 807 F.2d 771, 18 774-75 (9th Cir. 1986). See Barker v. Secretary of Health and Human Services, 882 19 20 To the extent any of the medical evidence is in conflict, it is 21 the prerogative of the ALJ to resolve such conflicts. 22 Apfel, 236 F.3d 503, 509 (9th Cir. 2001). 23 susceptible to more than one rational interpretation,” the Court must 24 uphold the administrative decision. 25 at 1039-40; accord Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 26 2002); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). 27 Court will uphold the ALJ’s rational interpretation of the evidence in 28 the present case notwithstanding any conflicts in the record. 7 See Lewis v. When evidence “is See Andrews v. Shalala, 53 F.3d The 1 II. Plaintiff’s Other Arguments are Unavailing. 2 3 Plaintiff argues that the ALJ erred in rejecting the opinions of 4 Drs. Root and Kang and in failing to develop the record more fully. 5 No material error occurred. 6 7 Both Dr. Root and Dr. Kang signed “check-the-box” forms claiming 8 Plaintiff could not even perform light or sedentary work (A.R. 325-28, 9 379-80). Dr. Root opined Plaintiff could not lift ten pounds or stand 10 or sit for two hours in an 8-hour day (A.R. 379). Where the form 11 asked, “What medical findings support the limitations described 12 above?,” Dr. Root left the answering space entirely blank (A.R. 379). 13 Dr. Root claimed that the “symptoms and limitations” described on the 14 form began in 2007 and 2008, even though Plaintiff did not see Dr. 15 Root until many years later and even though, as previously indicated, 16 Plaintiff performed heavy work through the end of 2009 (A.R. 32-34, 17 36-37, 46, 67, 181-88, 380). 18 pain/arthritis” and opined Plaintiff could neither sit, stand nor walk 19 for more than one hour in an 8-hour day (A.R. 325). 20 Plaintiff could not carry more than five pounds (A.R. 326). 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// Dr. Kang diagnosed “lumbago, knee 8 Dr. Kang opined 1 While the opinion of a treating physician2 is entitled to special 2 weight, “[t]he ALJ may disregard it whether or not that opinion is 3 contradicted.” 4 1989). 5 contradicted, the ALJ need only set forth “specific, legitimate 6 reasons” for rejecting the opinions. 7 830-31 (9th Cir. 1995); Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 8 1987).3 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. Where, as here, the treating physicians’ opinions are Lester v. Chater, 81 F.3d 821, 9 10 In rejecting the opinions of Dr. Root, the ALJ stated: 11 12 The undersigned has given low weight to the opinion of Dr. 13 Root because Dr. Root did not provide any significant 14 rationale for the limitations he asserted. 15 assessed limitations are not consistent with the objective 16 medical findings which have generally been mild to moderate. Moreover, the 17 18 19 20 21 22 23 24 25 26 27 28 2 The Court assumes arguendo that both Dr. Root and Dr. Kang qualify as “treating physicians,” even though Dr. Root reportedly saw Plaintiff only twice over an apparently brief period of time (A.R. 36-37). See Lee v. Astrue, 529 F.3d 1200, 1201-02 (9th Cir. 2008) (test for qualifying as a “treating physician” is vague and fact-specific; test depends on the duration of the relationship and the frequency and nature of the contact). 3 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. See Lester v. Chater, 81 F.3d at 830-31. Plaintiff’s Motion invokes the “clear and convincing” standard notwithstanding the contradiction of the treating physicians’ opinions by other medical opinion of record. The determination of which standard to apply is ultimately academic in the present case, however. As demonstrated infra, the ALJ stated “clear and convincing” reasons, as well as “specific, legitimate” reasons, for rejecting the opinions of Drs. Root and Kang. 9 1 In addition, the claimant had not been seen by Dr. Root, or 2 any other doctor, since November of 2013, yet the opinion 3 was assessed in April of 2014 and without any corresponding 4 physical examination or diagnostic testing. . . . 5 6 (A.R. 20). 7 8 9 The stated reasons suffice under the applicable case law. An ALJ properly may discount a treating physician’s opinions that are in 10 conflict with treatment records or are unsupported by objective 11 clinical findings. 12 Cir. 2005) (conflict between treating physician’s assessment and 13 clinical notes justifies rejection of assessment); Batson v. 14 Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (“an ALJ may 15 discredit treating physicians’ opinions that are conclusory, brief, 16 and unsupported by the record as a whole . . . or by objective medical 17 findings”); Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) 18 (treating physician’s opinion properly rejected where physician’s 19 records “provide no basis for the functional restrictions he opined 20 should be imposed on [the claimant]”); see also Rollins v. Massanari, 21 261 F.3d 853, 856 (9th Cir. 2001) (ALJ properly may reject treating 22 physician’s opinions that “were so extreme as to be implausible and 23 were not supported by any findings made by any doctor . . .”). 24 Administrative Record contains no treatment records from Dr. Root and, 25 as previously indicated, Dr. Root’s “check-the-box” form fails to 26 suggest any supporting findings. 27 Root’s extreme, unsupported opinions. 28 Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly could See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th The The ALJ did not err by rejecting Dr. 10 See id.; see also Crane v. 1 reject evaluations “because they were check-off reports that did not 2 contain any explanation of the bases of their conclusions”).4 3 4 With regard to the opinions of Dr. Kang, the ALJ stated: 5 6 The undersigned has given minimal weight to the opinion of 7 Dr. Kang because this opinion is not supported by medically 8 acceptable diagnostic findings and is not bolstered by other 9 medical evidence of record. Positive findings and the 10 progress notes from Dr. Kang do not support restrictions as 11 limiting as he assessed. 12 the doctor also has not been consistent with what one would 13 expect if the claimant were truly as limited as the doctor 14 has reported. 15 subjective report of symptoms and limitations provided by 16 the claimant, and the totality of the evidence does not 17 support the opinion. The course of treatment pursued by The opinion appears to rely heavily on the 18 19 (A.R. 20). 20 21 22 These stated reasons also suffice under the applicable case law. Again, the ALJ properly may discount a treating physician’s opinions 23 4 24 25 26 27 28 Plaintiff complains that the ALJ did not mention Dr. Root’s alleged speciality. Dr. Root’s “check-the-box” form does not mention any specialty either (A.R. 379-80). Plaintiff appeared to testify that Dr. Root is a “spinal doctor” (A.R. 37). The ALJ stated he considered “all the evidence” and also specifically stated he considered the opinion evidence “in accordance with the requirements of 20 C.F.R. 404.1527 and 416.927 and SSRs 96-2p, 96-5p and 96-6p and 06-3p” (A.R. 13, 17). No material error occurred. 11 1 that are in conflict with treatment records or are unsupported by 2 objective clinical findings. 3 little more than intermittent visits by Plaintiff for medication (A.R. 4 329-30, 332-34, 337-38, 342-43, 365-73). 5 reflect a normal gait and contain no mention of any outward 6 manifestation of impairment consistent with the profound functional 7 restrictions claimed in Dr. Kang’s opinions (id.). 8 Barnhart, 340 F.3d at 875 (“Nowhere do the [physician’s] notes 9 indicate reasons why Connett would be limited to standing for only ten Dr. Kang’s treatment records reflect The treatment records Cf. Connett v. 10 minutes or lifting only ten pounds, nor do they indicate that [the 11 physician] ever recommended such limitations to Connett.”). 12 records sometimes list Plaintiff’s “Chief Complaint” as “X ray results 13 and disability form for Social Security” (A.R. 329, 365). 14 “check-the-box” form cites only claimed symptoms of pain in the back 15 and knee as the alleged bases for Dr. Kang’s opinions regarding 16 assertedly extreme functional limitation (A.R. 325). 17 reasonably concluded from this form, and from Dr. Kang’s largely 18 unremarkable treatment notes, that Dr. Kang relied heavily on 19 Plaintiff’s subjective report of symptoms. 20 discount a treating physician’s opinions that are predicated on the 21 properly discounted statements of the claimant. 22 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001); accord Mattox v. 23 Commissioner, 371 Fed. App’x 740, 742 (9th Cir. 2010); Fair v. Bowen, 24 /// 25 /// 26 /// 27 /// 28 /// 12 The Dr. Kang’s The ALJ An ALJ properly may See Tonapetyan v. 1 885 F.2d 597, 605 (9th Cir. 1989).5 2 properly discounted Plaintiff’s statements regarding his subjective 3 symptomatology (A.R. 17-18).6 In the present case, the ALJ 4 5 Finally, Plaintiff argues that the ALJ should not have denied 6 Plaintiff’s disability claim without first having “re-contacted 7 [Plaintiff’s] treating sources, requested another consultative 8 examination, sent the entire file back to the State Agency for review, 9 or obtained testimony from a medical expert. See SSR 12-2p. . . .” 10 (Plaintiff’s Motion at 14). The SSR cited by Plaintiff relates 11 exclusively to the evaluation of fibromyalgia, a condition nowhere 12 suggested in this record. 13 to fully and fairly develop the record and to assure the claimant’s 14 interests are considered.” 15 Cir. 1983). 16 involves a matter of degree, however. 17 virtually every case that additional investigation or inquiry might 18 have been useful. It is true that the ALJ “has a special duty Brown v. Heckler, 713 F.2d 441, 443 (9th “Full” development of an administrative record always One conceivably may argue in Under the circumstances of the present case, 19 20 21 22 23 24 25 26 27 28 5 In Ghanim v. Colvin, 763 F.3d 1154, 1162-63 (9th Cir. 2014), the Ninth Circuit appeared to hold that “when a [treating physician’s] opinion is not more heavily based on a patient’s self-reports than on clinical observations,” an ALJ may not discount the treating physician’s opinion based on the patient’s lack of credibility. See also Ryan v. Commissioner, 528 F.3d 1194, 1200 (9th Cir. 2008) (containing similar language). This apparent holding has no application to the present case. As discussed above, Dr. Kang’s opinions were unsupported by, and indeed appear to be somewhat in conflict with, Dr. Kang’s “clinical observations.” 6 Plaintiff’s motion does not challenge the validity of this credibility determination. Any such challenge would be futile on this record. 13 1 however, this Court is unable to conclude that the ALJ failed in any 2 material respect to discharge his obligation fully and fairly to 3 develop the record. 4 5 CONCLUSION 6 7 For all of the foregoing reasons,7 Plaintiff’s motion for summary 8 judgment is denied and Defendant’s motion for summary judgment is 9 granted. 10 11 LET JUDGMENT BE ENTERED ACCORDINGLY. 12 13 DATED: June 27, 2016. 14 15 /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 7 The Court has considered and rejected each of Plaintiff’s arguments. The Court has discussed Plaintiff’s principal arguments herein. 14
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