Sheila Hayes Pegues v. Carolyn W. Colvin, No. 2:2015cv09897 - Document 28 (C.D. Cal. 2016)

Court Description: DECISION AND ORDER by Magistrate Judge Victor E Bianchini. (See Order for details.) IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner's decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. (wr)

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Sheila Hayes Pegues v. Carolyn W. Colvin Doc. 28 O 1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 Case No. 2:15-CV-9897 (VEB) SHEILA HAYES PEGUES, 9 DECISION AND ORDER Plaintiff, 10 vs. 11 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 12 13 14 Defendant. I. INTRODUCTION 15 In March of 2013, Plaintiff Sheila Hayes Pegues applied for Disability 16 Insurance benefits and Supplemental Security Income (“SSI”) benefits under the 17 Social Security Act. The Commissioner of Social Security denied the applications. 18 19 20 1 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB Dockets.Justia.com 1 Plaintiff, by and through her attorneys, Law Offices of Lawrence D. Rohlfing, 2 Cyrus Safa, Esq., of counsel, commenced this action seeking judicial review of the 3 Commissioner’s denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3). 4 The parties consented to the jurisdiction of a United States Magistrate Judge. 5 (Docket No. 11, 12, 15, 17, 27). On November 4, 2016, this case was referred to the 6 undersigned pursuant to General Order 05-07. (Docket No. 26). 7 II. BACKGROUND 8 Plaintiff applied for benefits on March 25, 2013, alleging disability beginning 9 10 May 1, 2012. (T at 198-204).1 11 reconsideration. Plaintiff requested a hearing before an Administrative Law Judge 12 (“ALJ”). 13 The applications were denied initially and on On August 14, 2014, a hearing was held before ALJ Robert A. Evans. (T at 14 29). 15 testimony from Dr. Eric Dean Schmitter, a medical expert. (T at 32-38). A second 16 administrative hearing was held on December 16, 2014. Plaintiff appeared, without 17 counsel, and testified. (T at 48-53). The ALJ received additional testimony from Dr. Plaintiff appeared, but was unrepresented. (T at 29). The ALJ received 18 19 20 Citations to (“T”) refer to the administrative record at Docket No. 22. 2 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 Schmitter (T at 43-48) and received testimony from Mr. Goldfarb, a vocational 2 expert. (T at 53-60). 3 On March 4, 2015, the ALJ issued a written decision denying the applications 4 for benefits. (T at 12-28). The ALJ’s decision became the Commissioner’s final 5 decision on October 26, 2015, when the Appeals Council denied Plaintiff’s request 6 for review. (T at 2-7). 7 On December 24, 2015, Plaintiff, acting by and through her counsel, filed this 8 action seeking judicial review of the Commissioner’s denial of benefits. (Docket No. 9 1). The Commissioner interposed an Answer on July 8, 2016. (Docket No. 21). The 10 parties filed a Joint Stipulation on October 13, 2016. (Docket No. 25). 11 After reviewing the pleadings, Joint Stipulation, and administrative record, 12 this Court finds that the Commissioner’s decision must be affirmed and this case be 13 dismissed. 14 III. DISCUSSION 15 16 A. Sequential Evaluation Process 17 The Social Security Act (“the Act”) defines disability as the “inability to 18 engage in any substantial gainful activity by reason of any medically determinable 19 physical or mental impairment which can be expected to result in death or which has 20 3 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 lasted or can be expected to last for a continuous period of not less than twelve 2 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Act also provides that a 3 claimant shall be determined to be under a disability only if any impairments are of 4 such severity that he or she is not only unable to do previous work but cannot, 5 considering his or her age, education and work experiences, engage in any other 6 substantial work which exists in the national economy. 42 U.S.C. §§ 423(d)(2)(A), 7 1382c(a)(3)(B). Thus, the definition of disability consists of both medical and 8 vocational components. Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). 9 The Commissioner has established a five-step sequential evaluation process 10 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520, 416.920. Step 11 one determines if the person is engaged in substantial gainful activities. If so, 12 benefits are denied. 20 C.F.R. §§ 404. 1520(a)(4)(i), 416.920(a)(4)(i). If not, the 13 decision maker proceeds to step two, which determines whether the claimant has a 14 medically severe impairment or combination of impairments. 20 C.F.R. §§ 15 404.1520(a)(4)(ii), 416.920(a)(4)(ii). 16 If the claimant does not have a severe impairment or combination of 17 impairments, the disability claim is denied. If the impairment is severe, the 18 evaluation proceeds to the third step, which compares the claimant’s impairment(s) 19 with a number of listed impairments acknowledged by the Commissioner to be so 20 4 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(iii), 2 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpt. P App. 1. If the impairment meets or 3 equals one of the listed impairments, the claimant is conclusively presumed to be 4 disabled. If the impairment is not one conclusively presumed to be disabling, the 5 evaluation proceeds to the fourth step, which determines whether the impairment 6 prevents the claimant from performing work which was performed in the past. If the 7 claimant is able to perform previous work, he or she is deemed not disabled. 20 8 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). At this step, the claimant’s residual 9 functional capacity (RFC) is considered. If the claimant cannot perform past relevant 10 work, the fifth and final step in the process determines whether he or she is able to 11 perform other work in the national economy in view of his or her residual functional 12 capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v), 13 416.920(a)(4)(v); Bowen v. Yuckert, 482 U.S. 137 (1987). 14 The initial burden of proof rests upon the claimant to establish a prima facie 15 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 16 Cir. 1971); Meanel v. Apfel, 172 F.3d 1111, 1113 (9th Cir. 1999). The initial burden 17 is met once the claimant establishes that a mental or physical impairment prevents 18 the performance of previous work. The burden then shifts, at step five, to the 19 Commissioner to show that (1) plaintiff can perform other substantial gainful 20 5 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 activity and (2) a “significant number of jobs exist in the national economy” that the 2 claimant can perform. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984). 3 B. Standard of Review 4 Congress has provided a limited scope of judicial review of a Commissioner’s 5 decision. 42 U.S.C. § 405(g). A Court must uphold a Commissioner’s decision, 6 made through an ALJ, when the determination is not based on legal error and is 7 supported by substantial evidence. See Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 8 1985); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). 9 “The [Commissioner’s] determination that a plaintiff is not disabled will be 10 upheld if the findings of fact are supported by substantial evidence.” Delgado v. 11 Heckler, 722 F.2d 570, 572 (9th Cir. 1983)(citing 42 U.S.C. § 405(g)). Substantial 12 evidence is more than a mere scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 13 n 10 (9th Cir. 1975), but less than a preponderance. McAllister v. Sullivan, 888 F.2d 14 599, 601-02 (9th Cir. 1989). Substantial evidence “means such evidence as a 15 reasonable mind might accept as adequate to support a conclusion.” Richardson v. 16 Perales, 402 U.S. 389, 401 (1971)(citations omitted). “[S]uch inferences and 17 conclusions as the [Commissioner] may reasonably draw from the evidence” will 18 also be upheld. Mark v. Celebreeze, 348 F.2d 289, 293 (9th Cir. 1965). On review, 19 the Court considers the record as a whole, not just the evidence supporting the 20 6 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 2 1989)(quoting Kornock v. Harris, 648 F.2d 525, 526 (9th Cir. 1980)). 3 It is the role of the Commissioner, not this Court, to resolve conflicts in 4 evidence. Richardson, 402 U.S. at 400. If evidence supports more than one rational 5 interpretation, the Court may not substitute its judgment for that of the 6 Commissioner. Tackett, 180 F.3d at 1097; Allen v. Heckler, 749 F.2d 577, 579 (9th 7 Cir. 1984). Nevertheless, a decision supported by substantial evidence will still be 8 set aside if the proper legal standards were not applied in weighing the evidence and 9 making the decision. Brawner v. Secretary of Health and Human Services, 839 F.2d 10 432, 433 (9th Cir. 1987). Thus, if there is substantial evidence to support the 11 administrative findings, or if there is conflicting evidence that will support a finding 12 of either disability or non-disability, the finding of the Commissioner is conclusive. 13 Sprague v. Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). 14 C. Commissioner’s Decision 15 The ALJ determined that Plaintiff had not engaged in substantial gainful 16 activity since May 1, 2012, the alleged onset date, and met the insured status 17 requirements of the Social Security Act through March 21, 2013 (the “date last 18 insured”). (T at 17). The ALJ found that Plaintiff’s degenerative disc disease of the 19 20 7 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 lumbar and cervical spines with radiculopathy were “severe” impairments under the 2 Act. (T at 17). 3 However, the ALJ concluded that Plaintiff did not have an impairment or 4 combination of impairments that met or medically equaled one of the impairments 5 set forth in the Listings. (T at 17). 6 The ALJ determined that Plaintiff retained the residual functional capacity 7 (“RFC”) to perform a full range of light work, as defined in 20 CFR § 404.1567 (b) 8 and 416.967 (b). (T at 18). The ALJ found that Plaintiff could perform her past 9 relevant work as a director of rehabilitation. (T at 22). 10 Accordingly, the ALJ determined that Plaintiff was not disabled within the 11 meaning of the Social Security Act between May 1, 2012 (the alleged onset date) 12 and March 4, 2015 (the date of the decision) and was therefore not entitled to 13 benefits. (T at 23). As noted above, the ALJ’s decision became the Commissioner’s 14 final decision when the Appeals Council denied Plaintiff’s request for review. (T at 15 2-7). 16 D. Disputed Issues 17 As set forth in the Joint Stipulation (Docket No. 25, at p. 4), Plaintiff offers 18 two (2) main arguments in support of her claim that the Commissioner’s decision 19 should be reversed. First, Plaintiff argues that the ALJ erred in evaluating the 20 8 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 opinion of her treating physician. Second, she challenges the ALJ’s credibility 2 determination. This Court will address both arguments in turn. 3 IV. ANALYSIS 4 5 A. Treating Physician 6 In disability proceedings, a treating physician’s opinion carries more weight 7 than an examining physician’s opinion, and an examining physician’s opinion is 8 given more weight than that of a non:-examining physician. Benecke v. Barnhart, 9 379 F.3d 587, 592 (9th Cir. 2004); Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 10 1995). If the treating or examining physician’s opinions are not contradicted, they 11 can be rejected only with clear and convincing reasons. Lester, 81 F.3d at 830. If 12 contradicted, the opinion can only be rejected for “specific” and “legitimate” reasons 13 that are supported by substantial evidence in the record. Andrews v. Shalala, 53 F.3d 14 1035, 1043 (9th Cir. 1995). 15 The courts have recognized several types of evidence that may constitute a 16 specific, legitimate reason for discounting a treating or examining physician’s 17 medical opinion. For example, an opinion may be discounted if it is contradicted by 18 the medical evidence, inconsistent with a conservative treatment history, and/or is 19 based primarily upon the claimant’s subjective complaints, as opposed to clinical 20 9 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 findings and objective observations. See Flaten v. Secretary of Health and Human 2 Servs., 44 F.3d 1453, 1463-64 (9th Cir. 1995). 3 An ALJ satisfies the “substantial evidence” requirement by “setting out a 4 detailed and thorough summary of the facts and conflicting clinical evidence, stating 5 his interpretation thereof, and making findings.” Garrison v. Colvin, 759 F.3d 995, 6 1012 (9th Cir. 2014)(quoting Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)). 7 “The ALJ must do more than state conclusions. He must set forth his own 8 interpretations and explain why they, rather than the doctors’, are correct.” Id. 9 In this case, on January 31, 2014, Dr. Vincent Ho, Plaintiff’s treating 10 physician, provided a two-sentence letter, in which he stated that Plaintiff was 11 “disabled due to cervical radiculopathy with degenerative join[t] disease.” (T at 12 372). He also noted that Plaintiff had “dextroscoliosis of the lumbar spine.”2 (T at 13 372). The ALJ discounted Dr. Ho’s assessment when determining Plaintiff’s RFC. 14 (T at 20). 15 16 17 18 19 20 For the following reasons, this Court finds the ALJ’s decision consistent with applicable law and supported by substantial evidence. First, Dr. Ho’s opinion, comprised of two sentences, was entirely conclusory and unsupported by any clinical findings. Dr. Ho did not provide a detailed Dextroscoliosis is a term indicating a curvature of the spine to the right. 10 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 assessment of Plaintiff’s limitations, beyond the declaration that Plaintiff’s 2 conditions rendered her “disabled.” The ALJ is not obliged to accept a treating 3 source opinion that is “brief, conclusory and inadequately supported by clinical 4 findings.” Lingenfelter v. Astrue, 504 F.3d 1028, 1044-45 (9th Cir. 2007) (citing 5 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)). 6 Second, the ALJ reasonably concluded that Dr. Ho’s January 2014 assessment 7 was contradicted by his contemporaneous treatment notes, which described Plaintiff 8 performing a wide variety of daily activities (T at 296) and reported that Plaintiff 9 had “[n]ormal range of motion, muscle strength, and stability in all extremities with 10 no pain on inspection.” (T at 295, 305). In January of 2013, one year prior to the 11 assessment at issue, Dr. Ho described Plaintiff as “100% stable/good.” (T at 296). 12 The ALJ noted the lack of evidence of any escalation in Plaintiff’s treatment that 13 might account for change from “stable/good” to “disabled” during that period. (T at 14 20). See Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)(finding that 15 “discrepancy” between treatment notes and opinion was “a clear and convincing 16 reason for not relying on the doctor's opinion regarding” the claimant’s limitations). 17 Third, the ALJ also reasonably relied on the assessments of two highly 18 qualified medical experts. Dr. Eric Schmitter, a non-examining medical expert, 19 testified at the administrative hearing. Dr. Schmitter opined that Plaintiff could 20 11 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 perform light work, with occasional creeping, crawling, bending, and stooping, 2 along with other limitations consistent with the ALJ’s RFC determination. (T at 46). Dr. Rajeswari Kumar performed a consultative examination in September of 3 4 2014. 5 occasionally and 11 to 20 pounds frequently; stand/walk for 6 hours in an 8-hour 6 workday (with routine breaks); and sit for 6 hours in an 8-hour workday (with 7 routine breaks). (T at 400). 8 physicians may also serve as substantial evidence when the opinions are consistent 9 with independent clinical findings or other evidence in the record.” Thomas v. 10 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); see also see also 20 CFR § 404.1527 11 (f)(2)(i)(“State agency medical and psychological consultants and other program 12 physicians, psychologists, and other medical specialists are highly qualified 13 physicians, psychologists, and other medical specialists who are also experts in 14 Social Security disability evaluation.”). 15 Dr. Kumar concluded that Plaintiff could lift/carry 21 to 50 pounds “The opinions of non-treating or non-examining Plaintiff argues that the ALJ should have weighed the evidence differently and 16 given greater weight to Dr. Ho's opinion. 17 Commissioner, not this Court, to resolve conflicts in evidence. Magallanes v. 18 Bowen, 881 F.2d 747, 751 (9th Cir. 1989); Richardson, 402 U.S. at 400. If the 19 evidence supports more than one rational interpretation, this Court may not 20 12 However, it is the role of the DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 substitute its judgment for that of the Commissioner. Allen v. Heckler, 749 F.2d 577, 2 579 (9th 1984). If there is substantial evidence to support the administrative 3 findings, or if there is conflicting evidence that will support a finding of either 4 disability or nondisability, the Commissioner’s finding is conclusive. Sprague v. 5 Bowen, 812 F.2d 1226, 1229-30 (9th Cir. 1987). Here, the ALJ’s decision was 6 supported by substantial evidence and must therefore be sustained. See Tackett v. 7 Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999)(holding that if evidence reasonably 8 supports the Commissioner’s decision, the reviewing court must uphold the decision 9 and may not substitute its own judgment). 10 B. Credibility 11 A claimant’s subjective complaints concerning his or her limitations are an 12 important part of a disability claim. Batson v. Comm’r of Soc. Sec. Admin., 359 F.3d 13 1190, 1195 (9th Cir. 2004)(citation omitted). The ALJ’s findings with regard to the 14 claimant’s credibility must be supported by specific cogent reasons. Rashad v. 15 Sullivan, 903 F.2d 1229, 1231 (9th Cir. 1990). Absent affirmative evidence of 16 malingering, the ALJ’s reasons for rejecting the claimant’s testimony must be “clear 17 and convincing.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). “General 18 findings are insufficient: rather the ALJ must identify what testimony is not credible 19 20 13 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 and what evidence undermines the claimant’s complaints.” Lester, 81 F.3d at 834; 2 Dodrill v. Shalala, 12 F.3d 915, 918 (9th Cir. 1993). 3 However, subjective symptomatology by itself cannot be the basis for a 4 finding of disability. A claimant must present medical evidence or findings that the 5 existence of an underlying condition could reasonably be expected to produce the 6 symptomatology alleged. See 42 U.S.C. §§423(d)(5)(A), 1382c (a)(3)(A); 20 C.F.R. 7 § 404.1529(b), 416.929; SSR 96-7p. 8 In this case, Plaintiff complained of low back pain radiating to her right leg, 9 along with numbness and parasthesias (tingling or pricking) in her lower extremities. 10 (T at 395). Plaintiff stated that she spends most of her day in bed watching political 11 news. (T at 52). 12 The ALJ concluded that Plaintiff’s medically determinable impairments could 13 reasonably be expected to cause the alleged symptoms, but that her statements 14 regarding the intensity, persistence, and limiting effects of the symptoms were not 15 fully credible. (T at 22). 16 This Court finds the ALJ’s conclusion supported by substantial evidence. 17 First, although lack of supporting medical evidence cannot form the sole basis for 18 discounting pain testimony, it is a factor the ALJ may consider when analyzing 19 credibility. Burch v. Barnhart, 400 F.3d 676, 680 (9th Cir. 2005). In other words, an 20 14 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 ALJ may properly discount subjective complaints where they are contradicted by 2 medical records. Carmickle v. Comm’r of Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th 3 Cir. 2008); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). In this case, 4 as discussed above, the ALJ’s RFC determination, and decision to discount 5 Plaintiff’s subjective complaints, was supported by the contemporaneous treatment 6 notes, the January 2013 report from the treating physician (Dr. Ho), the opinion of 7 the consultative examiner (Dr. Kumar), and the assessment of the testifying medical 8 expert (Dr. Schmitter). 9 Second, the ALJ reasonably concluded that Plaintiff’s reported activities of 10 daily living (which included self-care, housekeeping, regular exercise, and shopping) 11 were greater than one would expect if her pain limited her to laying down and 12 watching television most of the day. (T at 20-21, 52, 260, 262, 296, 348-49, 374). 13 When assessing a claimant’s credibility, the ALJ may employ “ordinary techniques 14 of credibility evaluation.” Turner v. Comm’r of Soc. Sec., 613 F.3d 1217, 1224 n.3 15 (9th Cir. 2010)(quoting Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996)). 16 Activities of daily living are a relevant consideration in assessing a claimant’s 17 credibility. See Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001). Although the 18 claimant does not need to “vegetate in a dark room” to be considered disabled, 19 Cooper v. Brown, 815 F.2d 557, 561 (9th Cir. 1987), the ALJ may discount a 20 15 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 claimant’s testimony to the extent his or her activities of daily living “contradict 2 claims of a totally debilitating impairment.” Molina v. Astrue, 674 F.3d 1104, 1112- 3 13 (9th Cir. 2011). 4 Where, as here, substantial evidence supports the ALJ’s credibility 5 determination, this Court may not overrule the Commissioner's interpretation even if 6 “the evidence is susceptible to more than one rational interpretation.” Magallanes, 7 881 F.2d 747, 750 (9th Cir. 1989); see also Morgan v. Commissioner, 169 F.3d 595, 8 599 (9th Cir. 1999)(“[Q]uestions of credibility and resolutions of conflicts in the 9 testimony are functions solely of the [Commissioner].”). 10 11 V. CONCLUSION 12 After carefully reviewing the administrative record, this Court finds 13 substantial evidence supports the Commissioner’s decision, including the objective 14 medical evidence and supported medical opinions. It is clear that the ALJ thoroughly 15 examined the record, afforded appropriate weight to the medical evidence, including 16 the assessments of the treating and examining medical providers and medical 17 experts, and afforded the subjective claims of symptoms and limitations an 18 appropriate weight when rendering a decision that Plaintiff is not disabled. This 19 Court finds no reversible error and because substantial evidence supports the 20 16 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB 1 Commissioner’s decision, the Commissioner is GRANTED summary judgment and 2 that Plaintiff’s motion for judgment summary judgment is DENIED. 3 VI. ORDERS 4 5 6 7 8 9 10 11 12 IT IS THEREFORE ORDERED that: Judgment be entered AFFIRMING the Commissioner’s decision and DISMISSING this action, and it is further ORDERED that The Clerk of the Court file this Decision and Order and serve copies upon counsel for the parties. DATED this 19th day of December, 2016, /s/Victor E. Bianchini VICTOR E. BIANCHINI UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 17 DECISION AND ORDER – PEGUES v COLVIN 2:15-CV-09897-VEB

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