Irene Odette Hill v. Nancy A. Berryhill, No. 2:2017cv08788 - Document 22 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Suzanne H. Segal. IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. (See document for further details). (mr)
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Irene Odette Hill v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 IRENE ODETTE HILL, Plaintiff, 12 13 14 15 16 CASE NO. CV 17-8788 SS MEMORANDUM DECISION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 I. 19 INTRODUCTION 20 21 Irene Odette Hill (“Plaintiff”) brings this action, seeking 22 to overturn the decision of the Acting Commissioner of Social 23 Security (the “Commissioner” or “Agency”) denying her application 24 for Supplemental Security Income. 25 to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned 26 United States Magistrate Judge. (Dkt. Nos. 11-13). For the reasons 27 stated below, the Court AFFIRMS the Commissioner’s decision. The parties consented, pursuant 28 Dockets.Justia.com 1 II. 2 PROCEDURAL HISTORY 3 4 On July 25, 2014, Plaintiff filed an application for 5 Supplemental Security Income (“SSI”) pursuant to Title XVI of the 6 Social Security Act (the “Act”) alleging a disability onset date 7 of July 25, 2014. 8 Plaintiff’s application initially and upon reconsideration. 9 83, 97, 100-04, 109-14). (AR 83, 169-76). The Commissioner denied (AR Thereafter, Plaintiff requested a hearing 10 before an Administrative Law Judge (“ALJ”), which took place on 11 June 16, 2016. (AR 46-62, 116). The ALJ issued an adverse decision 12 on September 7, 2016, finding that Plaintiff was not disabled 13 because there are jobs that exist in significant numbers in the 14 national economy that she can perform. 15 7, 2017, the Appeals Council denied Plaintiff’s request for review. 16 (AR 1-7). (AR 18-24). On November This action followed on December 6, 2017. 17 18 III. 19 FACTUAL BACKGROUND 20 21 Plaintiff was born on October 18, 1965. (AR 169). She was 22 fifty (50) years old when she appeared before the ALJ on June 16, 23 2016. 24 year-old son. 25 education. 26 prior to her alleged onset date. 27 due to high blood pressure and leg pain. (AR 46). Plaintiff is unmarried and lives with her nine- (AR 53-54, 169, 196). (AR 190). Plaintiff has a high-school She has not worked in the fifteen years (AR 190). 28 2 She alleges disability (AR 189). 1 A. Plaintiff’s Statements And Testimony 2 3 On July 31, 2014, Plaintiff stated that she is unable to work 4 due to symptoms and restrictions resulting from high blood pressure 5 and leg pain. 6 pain in her leg and harm. (AR 194). 7 kneeling, sitting 8 grasping objects, balancing, and concentrating. 9 also 10 (AR 194). rising experiences from a She asserted experiencing debilitating shortness of She has difficulty bending, position, breath, disturbed sleep patterns, and memory loss. hand manipulation, (AR 194). depression, She anxiety, (AR 194). 11 12 On August 12, 2014, Plaintiff submitted an Adult Function 13 Report. 14 ability to lift, stand, bend, sit, kneel, and reach. 15 She has trouble sleeping, dressing, and bathing due to her pain. 16 (AR 205). 17 chores. 18 transportation, and shop for food, clothing, and personal items. 19 (AR 207). 20 socializes with family, and attends church on a regular basis. 21 208).1 (AR 204-12). She asserted that her impairments limit her (AR 204). Plaintiff is able to feed herself and do light household (AR 206). She is able to walk, ride in a car, use public Plaintiff watches television, plays games with her son, (AR 22 23 24 25 26 27 28 1 On August 11, 2014, Robin Scott, who has known Plaintiff for most of her life, submitted a Third Party Function Report, which largely mirrored Plaintiff’s Function Report. (Compare AR 204-12, with id. 195-203; see id. 89 (State agency consultant noting that Plaintiff’s alleged activities of daily living mirrors third party’s statements)). 3 1 At her June 2016 hearing, Plaintiff testified that she has 2 not worked in the past fifteen years due to health problems, 3 including her heart situation, poor circulation in her legs, and 4 tingling. 5 with chest pain. 6 swelling and numbness in her left leg and foot, which lasts for 7 three to four days. 8 limp. 9 in both feet. (AR 50). (AR 52). She experiences daily heart flutters, along (AR 51). (AR 52). About once a month, Plaintiff has When this occurs, she walks with a Plaintiff’s poor circulation also causes heel pain (AR 52). 10 11 Plaintiff testified that she can walk for less than a block 12 before needing to rest for twenty-five minutes due to shortness of 13 breath. 14 before needing to sit down and rest for twenty-five minutes. 15 54-55). 16 (AR 55). (AR 54-55). She can stand for ten to fifteen minutes (AR She needs to elevate her legs for one-to-two hours daily. 17 18 B. September 2008 Decision 19 20 In a prior decision dated September 25, 2008 (“September 2008 21 Decision”), the ALJ found that Plaintiff’s congenital and benign 22 arterial heart blockage and hypertension limited her to a reduced 23 range of light work. 24 Decision determined that Plaintiff was able to walk and stand for 25 six hours, occasionally climb, balance, kneel, bend, crouch, stoop, 26 and crawl, and frequently walk an uneven surfaces, climb ladders, 27 and work at heights. 28 education, work experience, and the VE’s testimony, the ALJ found (AR 68-69). Specifically, the September 2008 (AR 69). Based on Plaintiff’s RFC, age, 4 1 that Plaintiff could perform her past relevant work as a cafeteria 2 worker, both as she performed it and as generally performed. 3 69-70). 4 disability, as defined by the Act, since June 26, 2007, the date 5 of the prior application. (AR Thus, the ALJ found that Plaintiff had not been under a (AR 70). 6 7 C. Treatment History 8 9 In support of her current application, Plaintiff submitted 10 only a few medical records from Pagiel Shechter, M.D., her treating 11 physician. 12 knee indicated mild calcified enthesopathy at the superior pole of 13 the patella. 14 that Plaintiff is disabled due to hypertension, heart disease, 15 arthritis of knees, and cardiomyopathy. (AR 281-92). (AR 291). An August 2014 x-ray of Plaintiff’s right On August 31, 2014, Dr. Shechter opined (AR 263). 16 On September 13, 2014, after treating Plaintiff on a monthly 17 for “years,” 18 basis 19 Statement. (AR 266-68). He diagnosed hypertension, cardiovascular 20 disease, anemia, and degenerative joint disease and noted that 21 Plaintiff’s 22 symptoms include pain and weakness. 23 that Plaintiff can stand or walk less than two hours in an eight- 24 hour workday and requires a job that permits her to shift positions 25 at 26 occasionally lift less than ten pounds, rarely lift ten pounds, 27 rarely twist or stoop, and never crouch, squat, climb ladders, or 28 climb stairs. will. Dr. prognosis (AR Shechter was 267). (AR 267). He completed “guarded.” (AR (AR 266). further opined a Medical 266). Source Plaintiff’s Dr. Shechter opined that Plaintiff can Dr. Shechter also opined that Plaintiff’s 5 1 pain is occasionally severe enough to interfere with the attention 2 and concentration necessary to perform even simple work tasks. 3 268). 4 and 5 impairments. (AR He concluded that Plaintiff is capable of low stress jobs would likely miss one day a month as a result of her (AR 268). 6 7 On February 3, 2015, Plaintiff complained of leg numbness. 8 (AR 285). A physical examination was unremarkable. (AR 285). 9 While a blood test indicated an increased risk for diabetes, in 10 all other respects the test was unremarkable. 11 Shechter diagnosed hypertension and cardiovascular disease and 12 referred Plaintiff to a podiatrist. 13 up examination was unremarkable. 14 hypertension, cardiovascular disease, and neuropathy and referred 15 her for a mammogram and a GI examination. 16 8, 2015, Plaintiff complained of dizziness, frequent urination, 17 and 18 unremarkable. 19 medications and suggested that Plaintiff drink more water and fruit 20 juices. 21 bilateral heel pain, but less dizziness. 22 tenderness in Plaintiff’s heels, a physical examination was normal. 23 (AR 282). 24 A March 2016 follow-up examination was unremarkable. weight loss. (AR (AR 283). (AR (AR 284). 283). 283). (AR 285). A Dr. (AR 286-90). A June 2015 follow- Dr. Shechter diagnosed (AR 284). physical Shechter Dr. On October examination adjusted was Plaintiff’s On February 18, 2016, Plaintiff complained of (AR 282). Other than Dr. Shechter ordered bilateral heel x-rays. (AR 282). (AR 281). 25 26 On September 26, 2014, Steven B. Gerber, M.D., conducted a 27 complete internal 28 Commissioner. medicine (AR 270-74). evaluation on behalf of the Plaintiff’s chief complaint was leg 6 1 pain. (AR 270). She reported bilateral, constant, sharp pain in 2 her lower legs, which is exacerbated by prolonged sitting and 3 walking and relieved with medication. 4 Plaintiff was in no distress. 5 and off the examination table without difficulty and no resting 6 ataxia or dyspnea was noted. 7 of motion and strength in all extremities and was able to ambulate 8 normally. 9 cardiovascular systems indicated no evidence of heaves, thrills, 10 murmurs, rubs, or gallops, and she had regular heart rate and 11 rhythm. 12 findings on examination to account for [Plaintiff’s] subjective 13 complaint[s].” 14 functional limitations at this time.” (AR 271, (AR 272). (AR 270). (AR 271). (AR 271). 273-74). On examination, She was able to get on Plaintiff had normal range A review of Plaintiff’s In summary, Dr. Gerber noted “no physical (AR 274). He concluded that Plaintiff “has no (AR 274). 15 16 D. Medical Expert 17 John R. Morse, M.D., a cardio disease specialist, testified 18 19 at Plaintiff’s hearing as a medical expert. 20 153). 21 records. 22 determinable impairments, none whatsoever.” (AR 56-58; see id. Dr. Morse affirmed that he reviewed all of the medical He concluded that “the evidence documents no medically (AR 57). 23 24 Dr. Schechter’s [sic] notes are woefully insufficient. 25 There’s a statement about cardiomyopathy, hypertension, 26 cardiomyopathy [sic], which is not supported by anything 27 in the record. 28 [20]14, which found no, no objective abnormalities, no All I have is a CE examiner in September 7 1 medically 2 residual functional capacity limitations. 3 the records are of no use whatsoever. 4 to me [from the September 2008 Decision] is interesting. 5 I suspect it is not indicative of underlying organic 6 heart disease. 7 echocardiographic data, we would need a cardiological 8 consult, we would need a whole bunch of information to 9 validate 10 determinable a impairments, and offered no The rest of What you’ve read It may or may not be, but we would need medically determinable impairment in the cardiovascular system. 11 12 (AR 57) (citations omitted). When asked about the results of 13 Plaintiff’s February 2015 blood test, Dr. Morris confirmed that it 14 indicated “prediabetic, but not diabetic.” 15 observed that the August 2014 x-ray “may indicate some arthritis 16 of [Plaintiff’s] right knee.” (AR 57). He also (AR 57). 17 18 E. State Agency Consultants 19 20 On October 6, 2014, reviewed the L. DeSouza, medical a State record, agency 21 consultant, 22 records associated with the September 2008 Decision, and concluded 23 that Plaintiff’s congenital anomalies of the heart is a severe 24 impairment. 25 occasionally lift twenty pounds, frequently lift ten pounds, and 26 can stand, walk, and sit for six hours in an eight-hour workday, 27 with normal breaks. 28 can occasionally crawl and climb ramps, stairs, ladders, ropes, (AR 76-78). available M.D., including Dr. DeSouza opined that Plaintiff can (AR 79). He further concluded that Plaintiff 8 1 and scaffolds, and can frequently balance, kneel, and crouch. (AR 2 79-80). 3 suggested adopting the prior ALJ’s RFC, “as there is no new material 4 change” in Plaintiff’s impairments. Dr. DeSouza, after reviewing the September 2008 Decision, (AR 77). 5 6 On February 25, 2015, B. Morgan, M.D., another State agency 7 consultant, reviewed the available medical record and opined that 8 Plaintiff 9 Otherwise, Dr. Morgan concurred with Dr. DeSouza’s assessment. (AR 10 can frequently climb ramps and stairs. (AR 93). 89, 91-93). 11 12 IV. 13 THE FIVE-STEP SEQUENTIAL EVALUATION PROCESS 14 15 To qualify for disability benefits, a claimant must 16 demonstrate a medically determinable physical or mental impairment 17 that prevents the claimant from engaging in substantial gainful 18 activity and that is expected to result in death or to last for a 19 continuous period of at least twelve months. 20 157 F.3d 715, 721 (9th Cir. 1998) (citing 42 U.S.C. § 423(d)(1)(A)). 21 The impairment must render the claimant incapable of performing 22 work 23 employment that exists in the national economy. 24 180 25 § 423(d)(2)(A)). previously F.3d 1094, performed 1098 or (9th any Cir. 26 27 28 9 other 1999) Reddick v. Chater, substantial gainful Tackett v. Apfel, (citing 42 U.S.C. 1 To decide if a claimant is entitled to benefits, an ALJ 2 conducts a five-step inquiry. 3 20 C.F.R. §§ 404.1520, 416.920. The steps are: 4 5 (1) Is the claimant presently engaged in substantial gainful 6 activity? 7 not, proceed to step two. 8 (2) 9 Is the If so, the claimant is found not disabled. claimant’s impairment severe? claimant is found not disabled. 10 If not, If the If so, proceed to step three. 11 (3) Does the claimant’s impairment meet or equal one of the 12 specific impairments described in 20 C.F.R. Part 404, 13 Subpart P, Appendix 1? 14 disabled. 15 (4) If so, the claimant is found If not, proceed to step four. Is the claimant capable of performing his past work? If 16 so, the claimant is found not disabled. 17 to step five. 18 (5) If not, proceed Is the claimant able to do any other work? 19 claimant is found disabled. 20 If not, the If so, the claimant is found not disabled. 21 22 Tackett, 180 F.3d at 1098-99; see also Bustamante v. Massanari, 23 262 F.3d 949, 953-54 (9th Cir. 2001); 20 C.F.R. §§ 404.1520(b)- 24 (g)(1), 416.920(b)-(g)(1). 25 The claimant has the burden of proof at steps one through four 26 27 and the Commissioner has the burden 28 Bustamante, 262 F.3d at 953-54. 10 of proof at step five. Additionally, the ALJ has an 1 affirmative duty to assist the claimant in developing the record 2 at every step of the inquiry. 3 claimant meets his or her burden of establishing an inability to 4 perform past work, the Commissioner must show that the claimant 5 can perform some other work that exists in “significant numbers” 6 in 7 residual functional capacity (“RFC”), age, education, and work 8 experience. 9 721; 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). the national economy, Id. at 954. taking into If, at step four, the account the claimant’s Tackett, 180 F.3d at 1098, 1100; Reddick, 157 F.3d at The Commissioner 10 may do so by the testimony of a VE or by reference to the Medical- 11 Vocational Guidelines appearing in 20 C.F.R. Part 404, Subpart P, 12 Appendix 2 (commonly known as “the grids”). 13 240 F.3d 1157, 1162 (9th Cir. 2001). 14 exertional (strength-related) and non-exertional limitations, the 15 Grids are inapplicable and the ALJ must take the testimony of a 16 vocational expert (“VE”). 17 Cir. 2000) (citing Burkhart v. Bowen, 856 F.2d 1335, 1340 (9th Cir. 18 1988)). Osenbrock v. Apfel, When a claimant has both Moore v. Apfel, 216 F.3d 864, 869 (9th 19 20 V. 21 THE ALJ’S DECISION 22 23 The ALJ employed the five-step sequential evaluation process 24 and concluded that Plaintiff was not disabled within the meaning 25 of the Act. 26 has not engaged in substantial gainful activity since July 25, 27 2014, the application date. 28 that Plaintiff’s history of congenital and benign arterial heart (AR 18). At step one, the ALJ found that Plaintiff (AR 20). 11 At step two, the ALJ found 1 blockage and hypertension are severe impairments. (AR 20). At 2 step three, the ALJ determined that Plaintiff does not have an 3 impairment or combination of impairments that meet or medically 4 equal the severity of any of the listings 5 regulations. enumerated in the (AR 20). 6 7 The ALJ then assessed Plaintiff’s RFC and concluded she can 8 perform less than the full range of light work as defined in 20 9 C.F.R. § 416.967(b):2 “[Plaintiff] can sit, stand and walk for 6 10 hours in an 8 hour day with normal breaks. 11 climb ladders, ropes and scaffolds and can frequently climb ramps 12 and stairs. 13 and occasionally crawl.” 14 that Plaintiff has no past relevant work. 15 Plaintiff’s RFC, age, education, work experience, and the VE’s 16 testimony, the ALJ determined at step five that there are jobs that 17 exist in significant numbers in the national economy that Plaintiff 18 can 19 assembler, and routing clerk. perform, She can occasionally [Plaintiff] can frequently balance, kneel and crouch including (AR 20-21). light At step four, the ALJ found inspector (AR 23-24). (AR 23). hand Based on packager, bench Accordingly, the ALJ 20 21 22 23 24 25 26 27 28 “Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.” 20 C.F.R. § 416.967(b). 2 12 1 found that Plaintiff has not been under a disability, as defined 2 by the Act, since July 25, 2014, the application date. (AR 24). 3 4 VI. 5 STANDARD OF REVIEW 6 7 Under 42 U.S.C. § 405(g), a district court may review the “[The] court may set 8 Commissioner’s decision to deny benefits. 9 aside the Commissioner’s denial of benefits when the ALJ’s findings 10 are based on legal error or are not supported by substantial 11 evidence in the record as a whole.” 12 1033, 1035 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1097); see 13 also Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) (citing 14 Fair v. Bowen, 885 F.2d 597, 601 (9th Cir. 1989)). Aukland v. Massanari, 257 F.3d 15 16 “Substantial evidence is more than a scintilla, but less than 17 a preponderance.” Reddick, 157 F.3d at 720 (citing Jamerson v. 18 Chater, 112 F.3d 1064, 1066 (9th Cir. 1997)). 19 evidence which a reasonable person might accept as adequate to 20 support a conclusion.” 21 evidence supports a finding, the court must “‘consider the record 22 as a whole, weighing both evidence that supports and evidence that 23 detracts from the [Commissioner’s] conclusion.’” Aukland, 257 F.3d 24 at 1035 (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 25 1993)). 26 or reversing that conclusion, the court may not substitute its 27 judgment for that of the Commissioner. (Id.). It is “relevant To determine whether substantial If the evidence can reasonably support either affirming 28 13 Reddick, 157 F.3d at 720- 1 21 (citing Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 2 1457 (9th Cir. 1995)). 3 4 VII. 5 DISCUSSION 6 7 Plaintiff asserts that the ALJ erred in rejecting the 8 functional assessments of her treating physician, Dr. Shechter. 9 (Dkt. No. 20 at 4-7). 10 11 An ALJ must take into account all medical opinions of record. 12 20 C.F.R. §§ 404.1527(b), 416.927(b). The regulations “distinguish 13 among the opinions of three types of physicians: (1) those who 14 treat the claimant (treating physicians); (2) those who examine 15 but do not treat the claimant (examining physicians); and (3) those 16 who 17 physicians).” 18 as amended (Apr. 9, 1996). 19 opinion carries more weight than an examining physician’s, and an 20 examining physician’s opinion carries more weight than a reviewing 21 [(nonexamining)] physician’s.” 22 1195, 1202 (9th Cir. 2001); accord Garrison v. Colvin, 759 F.3d 23 995, 1012 (9th Cir. 2014). 24 physician’s testimony depends ‘on the degree to which they provide 25 supporting explanations for their opinions.’ ” 26 Soc. Sec., 528 F.3d 1194, 1201 (9th Cir. 2008) (quoting 20 C.F.R. 27 § 404.1527(d)(3)). neither examine nor treat the claimant (nonexamining Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), “Generally, a treating physician’s Holohan v. Massanari, 246 F.3d “The weight afforded a non-examining 28 14 Ryan v. Comm’r of 1 The medical opinion of a claimant’s treating physician is 2 given “controlling weight” so long as it “is well-supported by 3 medically acceptable clinical and laboratory diagnostic techniques 4 and is not inconsistent with the other substantial evidence in [the 5 claimant’s] 6 416.927(c)(2). 7 controlling, it is weighted according to factors such as the length 8 of the treatment relationship and the frequency of examination, 9 the case nature record.” “When and a extent and 20 C.F.R. treating of doctor’s the consistency §§ 404.1527(c)(2), opinion treatment with the is not relationship, 10 supportability, record.” Revels v. 11 Berryhill, 874 F.3d 648, 654 (9th Cir. 2017); see also 20 C.F.R. 12 §§ 404.1527(c)(2)–(6), 416.927(c)(2)-(6). 13 given to the “opinion of a specialist about medical issues related 14 to his or her area of specialty.” 15 416.927(c)(5). Greater weight is also 20 C.F.R. §§ 404.1527(c)(5), 16 “To 17 reject an uncontradicted opinion of a treating or 18 examining doctor, an ALJ must state clear and convincing reasons 19 that are supported by substantial evidence.” 20 427 F.3d 1211, 1216 (9th Cir. 2005). 21 doctor’s opinion is contradicted by another doctor’s opinion, an 22 ALJ may only reject it by providing specific and legitimate reasons 23 that 24 Reddick, 157 F.3d at 725 (the “reasons for rejecting a treating 25 doctor’s credible opinion on disability are comparable to those 26 required for rejecting a treating doctor’s medical opinion.”). 27 “The ALJ can meet this burden by setting out a detailed and thorough 28 summary of the facts and conflicting clinical evidence, stating are supported by substantial 15 Bayliss v. Barnhart, “If a treating or examining evidence.” Id.; see also 1 his interpretation thereof, and making findings.” Trevizo v. 2 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (citation omitted). 3 “When an examining physician relies on the same clinical findings 4 as a treating physician, but differs only in his or her conclusions, 5 the conclusions of the examining physician are not ‘substantial 6 evidence.’ ” 7 Additionally, “[t]he opinion of a nonexamining physician cannot by 8 itself constitute substantial evidence that justifies the rejection 9 of the opinion of either an examining physician or a treating Orn v. Astrue, 495 F.3d 625, 632 (9th Cir. 2007). 10 physician.” Lester, 81 F.3d at 831 (emphasis in original). 11 Finally, when weighing conflicting medical opinions, an ALJ may 12 reject an opinion that is conclusory, brief, and unsupported by 13 clinical findings. 14 Halter, 242 F.3d 1144, 1149 (9th Cir. 2001). Bayliss, 427 F.3d at 1216; Tonapetyan v. 15 16 In September 2014, Dr. Shechter completed a Medical Sources 17 Statement. (AR 266-68). Dr. Shechter opined that pain and weakness 18 from Plaintiff’s impairments limit her to standing or walking less 19 than two hours in an eight-hour workday. 20 opined that Plaintiff needs a job that permits shifting positions 21 at will from sitting, standing, or walking. (AR 267). Dr. Shechter 22 concluded 23 pounds, frequently lift ten pounds, rarely twist or stoop (bend), 24 and never crouch, squat, or climb ladders or stairs. 25 He 26 occasionally interfere with her ability to sustain the attention 27 and concentration necessary to perform even simple work tasks. also that opined Plaintiff that can (AR 266-67). occasionally Plaintiff’s 28 16 pain is lift less severe He also than ten (AR 267). enough to (AR 1 268). Finally, Dr. Shechter concluded that Plaintiff’s impairments 2 would cause her to miss one day of work per month.3 (AR 268). 3 4 The ALJ rejected Dr. Shechter’s opinion because it was “not 5 supported by any findings, test results or laboratory results.” 6 (AR 22). 7 consultative examiner, the medical expert, and the State Agency 8 consultants, 9 Shechter’s opinion for “specific and legitimate reasons that are Because Dr. Shechter’s opinion was contradicted by the the Court reviews the ALJ’s rejection of Dr. 10 supported by substantial evidence.” Bayliss, 427 F.3d at 1216; 11 see Moore v. Comm’r of Soc. Sec. Admin., 278 F.3d 920, 924 (9th 12 Cir. 2002) (“The ALJ could reject the opinions of Moore’s examining 13 physicians, contradicted by a nonexamining physician, only for 14 specific and legitimate reasons that are supported by substantial 15 evidence in the record.”) (citation omitted). 16 the ALJ provided specific and legitimate reasons, supported by 17 substantial evidence, for rejecting Dr. Shechter’s opinion. The Court finds that 18 Dr. Shechter’s largely “check-off” opinion was not supported 19 20 by objective or clinical evidence. 21 inadequately explained or lack supporting clinical or laboratory 22 findings are entitled to less weight. 23 251, 253 (9th Cir. 1996) (ALJ properly rejected “check-off reports 24 On August 31, 2016, Dr. Shechter opined that Plaintiff “is disabled due to hypertension, heart disease, osteoarthritis of knees, [and] cardiomyopathy.” (AR 263). However, whether a claimant is disabled is an issue reserved to the Commissioner. 20 C.F.R. § 416.927(d)(1) (“We are responsible for making the determination or decision about whether you meet the statutory definition of disability.”). 25 26 27 28 3 17 Medical opinions that are Crane v. Shalala, 76 F.3d 1 that did not contain 2 conclusions”); Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 3 1995) (ALJ properly rejected physician’s opinion where it was 4 “conclusory 5 documentation”); see also 20 C.F.R. § 416.927(c)(3) (“The more a 6 medical source presents relevant evidence to support a medical 7 opinion, particularly medical signs and laboratory findings, the 8 more weight we will give that medical opinion. 9 explanation a source provides for a medical opinion, the more and any explanation unsubstantiated of the by bases of relevant their medical The better an 10 weight we will give that medical opinion.”). 11 submitted 12 Plaintiff’s right knee, indicated only mild arthritis. 13 see id. 57). 14 the 15 limitations that he assessed. 16 1040, 17 discredited based on contradictions between the opinion and the 18 physician’s own notes.”). Physical examinations in February, June, 19 and October 2015 were all unremarkable. 20 2016, 21 examination 22 examination was unremarkable. that other Dr. Shechter’s opinion, an x-ray of (AR 291; Further, physical examinations by Dr. Shechter during relevant 1050 predated The only record period (9th than was did Cir. not normal. the extreme functional See Buck v. Berryhill, 869 F.3d 2017) tenderness reflect (“A in (AR physician’s (AR 283-85). Plaintiff’s 282). opinion A be In February heels, March can a 2016 physical follow-up (AR 281). 23 24 Dr. Shechter variably diagnosed hypertension, cardiovascular 25 disease, arthritis, 26 disease, and neuropathy. 27 mere existence of these impairments does not provide conclusive 28 support for the cardiomyopathy, extreme anemia, degenerative (AR 22, 263, 266, 284). disabling 18 limitations joint However, the opined by Dr. Indeed, “[t]he mere existence of an impairment is 1 Shechter. 2 insufficient proof of a disability.” 3 678, 680 (9th Cir. 1993); see Key v. Heckler, 754 F.2d 1545, 1549 4 (9th Cir. 1985) (“The mere diagnosis of an impairment . . . is not 5 sufficient to sustain a finding of disability.”). 6 claimant receives a particular diagnosis, it does not necessarily 7 follow that the claimant is disabled, because it is the claimant’s 8 symptoms and true limitations that generally determine whether she 9 is disabled. Matthews v. Shalala, 10 F.3d Even if a See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 10 2001). Dr. Shechter cites no clinical tests in support of his 11 extreme limitations. 12 Plaintiff’s impairments have resulted primarily in symptoms 13 14 of pain, weakness, numbness, and dizziness. (AR 22, 266, 283, 15 285). 16 ameliorate many of Plaintiff’s symptoms with medications. 17 e.g., AR 282-83) (after adjusting Plaintiff’s medications, her 18 dizziness symptoms improved). 19 effectively with medication are not disabling for the purpose of 20 determining eligibility for [disability] benefits.” 21 Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 1006 (9th Cir. 2006). It appears, however, that Dr. Shechter has been able to (See, “Impairments that can be controlled Warre v. 22 23 Plaintiff argues that the ALJ’s “single sentence” rejection 24 of Dr. Shechter’s opinion does not provide the level of specificity 25 required by Ninth Circuit caselaw. 26 “an ALJ errs when he rejects a medical opinion or assigns it little 27 weight while doing nothing more than ignoring it, asserting without 28 explanation that another medical opinion is more persuasive, or 19 (Dkt. No. 20 at 6-7). Indeed, 1 criticizing it with boilerplate language that fails to offer a 2 substantive basis for his conclusion.” 3 13. 4 medical records and the various medical opinions, explaining why 5 he assigned each of the opinions the weight that he did. 6 23). 7 opinions, consisted of only sixteen pages (AR 263, 266-68, 278, 8 281-91), 9 sufficiently specific and supported by substantial evidence. Garrison, 759 F.3d at 1012– Here, however, the ALJ provided a detailed discussion of the (AR 22- Given that Dr. Shechter’s discrete records, including his the ALJ’s discussion of Dr. Shechter’s opinion was 10 11 Further, the opinions of Drs. Gerber and Morse support the 12 ALJ’s 13 nondisability finding. Tonapetyan, 242 F.3d at 1149 (“The contrary 14 opinions of [the consultative examiner and the medical expert] 15 serve as additional specific and legitimate reasons for rejecting 16 the opinions of [the treating physicians], and provide assurance 17 that the record was sufficiently developed with regard to the issue 18 of physical impairment.”). 19 medicine evaluation, Dr. Gerber found “no physical findings on 20 examination to account for [Plaintiff’s] subjective complaint[s].” 21 (AR 274; see id. 22). 22 of Plaintiff’s spontaneous actions, Dr. Gerber concluded that 23 Plaintiff “has no functional limitations at this time.” 24 see id. 22). 25 testified that “the evidence documents no medically determinable 26 impairments, none whatsoever.” 27 treatment notes “woefully insufficient” to document the existence 28 of any of Dr. Shechter’s diagnoses. rejection of Dr. Shechter’s opinion and the ALJ’s After performing a complete internal Based on his formal testing and observations (AR 274; After reviewing the entire medical file, Dr. Morse (AR 57). 20 He found Dr. Shechter’s (AR 57). Other than Dr. 1 Gerber’s report, Dr. Morse found the medical records “of no use 2 whatsoever.” (AR 57). 3 4 Finally, the ALJ properly rejected Dr. Shechter’s opinion 5 because it was contradicted 6 opinions. 7 treating 8 nontreating source is based on independent clinical findings that 9 differ from those of the treating physician, the opinion of the 10 nontreating source may itself be substantial evidence; it is then 11 solely the province of the ALJ to resolve the conflict.” 12 v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 13 consultants found that because the record included “no new material 14 change,” from the RFC determination previously set forth in the 15 September 2008 Decision. 16 a claimant is not disabled creates a presumption that the claimant 17 continued to be able to work after that date.” 18 572 F.3d 586, 597 (9th Cir. 2009) (citation omitted). The September 19 2008 Decision found that Plaintiff was capable of a reduced range 20 of light jobs and determined that she was not disabled because she 21 was capable of performing her past relevant job as a cafeteria 22 worker, both as she performed it and as generally performed. 23 69-70). 24 change,” 25 (Compare AR 69, with id. 20-21). 26 “the benefit of the doubt” (AR 22) that her impairments had not 27 improved since the September 2008 Decision was issued. (AR 22-23). physician is by the State agency consultants’ “Where the opinion of the claimant’s contradicted, (AR 77, 89). and the opinion of a Andrews The State agency “[A]n ALJ’s findings that Vasquez v. Astrue, (AR Thus, because the current record indicated “no material the ALJ largely adopted 28 21 the prior decision’s RFC. Indeed, the ALJ gave Plaintiff 1 Plaintiff contends that “if the ALJ believed that Dr. Shechter 2 did not provide sufficient supporting documentation, he should have 3 sought clarification.” 4 is Plaintiff’s burden to establish her disability with acceptable 5 medical evidence. 6 2005) (“The claimant carries the initial burden of proving a 7 disability in steps one through four of the analysis.”). 8 “[f]ailure to prove disability justifies a denial of benefits.” 9 Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). (Dkt. No. 20 at 6-7 & n.3). However, it Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. Indeed, In narrow 10 circumstances, “[a]n ALJ is required to recontact a doctor . . . 11 if the doctor’s report is ambiguous or insufficient for the ALJ to 12 make a disability determination.” 13 20 14 ambiguities in Dr. Shechter’s report. 15 Plaintiff was unable to stand or walk more than two hours in an 16 eight-hour workday and could only occasionally lift less than ten 17 pounds. 18 because it was ambiguous. 19 because it was not supported by any objective evidence and was 20 directly contrary to the opinions of Drs. Gerber and Morris. 21 22-23). C.F.R. §§ 404.1512(e), (AR 267). Bayliss, 427 F.3d at 1217; see 416.912(e). Here, there were no He clearly opined that The ALJ did not reject Dr. Shechter’s opinion Instead, the ALJ rejected the opinion (AR 22 23 The Court finds that the ALJ provided specific and legitimate 24 reasons, supported by substantial evidence in the record, for 25 rejecting Dr. Shechter’s opinion, and no remand is required. 26 27 28 22 1 VIII. 2 CONCLUSION 3 4 Consistent with the foregoing, IT IS ORDERED that Judgment be 5 entered AFFIRMING the decision of the Commissioner. The Clerk of 6 the Court shall serve copies of this Order and the Judgment on 7 counsel for both parties. 8 9 DATED: August 10, 2018 10 11 12 /S/ __________ SUZANNE H. SEGAL UNITED STATES MAGISTRATE JUDGE 13 14 15 16 THIS DECISION IS NOT INTENDED FOR PUBLICATION LEXIS/NEXIS OR ANY OTHER LEGAL DATABASE. 17 18 19 20 21 22 23 24 25 26 27 28 23 IN WESTLAW,
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