Marissa McClendon v. Nancy A. Berryhill, No. 2:2018cv00628 - Document 27 (C.D. Cal. 2018)
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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Marissa McClendon v. Nancy A. Berryhill Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 CONSUELO MARQUEZ appearing as the Substituted Party for MARISSA MCCLENDON, an individual, ) ) ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, Acting ) Commissioner of Social Security, ) ) Defendant. ) ___________________________________) NO. CV 18-628-E MEMORANDUM OPINION 18 19 PROCEEDINGS 20 21 Plaintiff filed a Complaint on January 24, 2018, seeking review 22 of the Commissioner’s denial of benefits. The parties filed a consent 23 to proceed before a United States Magistrate Judge on April 2, 2018. 24 25 Plaintiff filed a motion for summary judgment on August 20, 2018. 26 Defendant filed a motion for summary judgment on October 1, 2018. The 27 Court has taken both motions under submission without oral argument. 28 See L.R. 7-15; “Order,” filed January 29, 2018. Dockets.Justia.com 1 BACKGROUND 2 3 On December 9, 2013, Marissa McClendon, a former travel clerk, 4 filed a claim alleging disability since May 1, 2012 (Administrative 5 Record (“A.R.”) 206, 231). 6 McClendon’s previous application for disability benefits (A.R. 66-73). In 2011, the Administration had denied Ms. 7 8 9 On March 23, 2014, prior to the completion of the administrative proceedings relating to her 2013 application, Ms. McClendon passed 10 away suddenly (A.R. 485). Her death certificate indicates that the 11 cause of her death was cardiac arrest (A.R. 220).1 12 McClendon’s death, her mother, Consuelo Marquez, continued to pursue 13 the claim (A.R. 43-44). Following Ms. 14 15 The Administrative Law Judge (“ALJ”) examined the record and 16 conducted an April 26, 2016 hearing at which a medical expert 17 testified (A.R. 20-204, 206-81, 291-736). 18 decision, the ALJ found that, prior to her death, Ms. McClendon had 19 several severe impairments but retained the residual functional 20 capacity to perform a range of light work, including her past relevant 21 work (A.R. 23-24). 22 /// 23 /// 24 /// In an August 2, 2016 The Appeals Council denied review (A.R. 1-3). 25 26 1 27 28 Plaintiff’s motion inconsistently suggests both that Ms. McClendon’s death resulted from a “slow process of gradually rejecting” a 1993 kidney transplant and that her death resulted from “progressive heart failure” (Plaintiff’s motion at 7-8). 2 1 STANDARD OF REVIEW 2 3 Under 42 U.S.C. section 405(g), this Court reviews the 4 Administration’s decision to determine if: (1) the Administration’s 5 findings are supported by substantial evidence; and (2) the 6 Administration used correct legal standards. 7 Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 8 499 F.3d 1071, 1074 (9th Cir. 2007); see also Brewes v. Commissioner, 9 682 F.3d 1157, 1161 (9th Cir. 2012). See Carmickle v. Substantial evidence is “such 10 relevant evidence as a reasonable mind might accept as adequate to 11 support a conclusion.” 12 (1971) (citation and quotations omitted); see Widmark v. Barnhart, 454 13 F.3d 1063, 1066 (9th Cir. 2006). Richardson v. Perales, 402 U.S. 389, 401 14 15 If the evidence can support either outcome, the court may 16 not substitute its judgment for that of the ALJ. 17 Commissioner’s decision cannot be affirmed simply by 18 isolating a specific quantum of supporting evidence. 19 Rather, a court must consider the record as a whole, 20 weighing both evidence that supports and evidence that 21 detracts from the [administrative] conclusion. But the 22 23 Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citations and 24 quotations omitted). 25 /// 26 /// 27 /// 28 /// 3 1 DISCUSSION 2 3 After consideration of the record as a whole, Defendant’s motion 4 is granted and Plaintiff’s motion is denied. The Administration’s 5 findings are supported by substantial evidence and are free from 6 material2 legal error. Plaintiff’s contrary arguments are unavailing. 7 8 9 I. Substantial Evidence Supports the Conclusion that Ms. McClendon was Capable of Working Prior to her Death. 10 11 A social security claimant bears the burden of “showing that a 12 physical or mental impairment prevents [her] from engaging in any of 13 [her] previous occupations.” 14 (9th Cir. 1987); accord Bowen v. Yuckert, 482 U.S. 137, 146 n.5 15 (1987). 16 working; and (2) either: (a) the disabling impairments lasted or could 17 be expected to last for a continuous period of 12 months; or (b) the 18 disabling impairments could be expected to result in death. 19 U.S.C. § 423(d)(1)(A). Sanchez v. Secretary, 812 F.2d 509, 511 A claimant must prove: (1) her impairments prevented her from See 42 20 21 Ms. McClendon’s sudden death on March 23, 2014 does not establish 22 that she was disabled prior thereto. See id.; see also Purtell v. 23 Astrue, 2013 WL 791583 (N.D.N.Y. Mar. 4, 2013) (upholding denial of 24 disability claim despite claimant’s sudden death from a heart attack 25 26 2 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). 4 1 during the administrative proceedings). In the present case, 2 substantial evidence supports the denial of the disability claim. 3 4 Significant medical opinion supports the denial of the claim. 5 Dr. Michael S. Wallack, a consultative examining internist, opined on 6 February 4, 2014, that Plaintiff retained a functional capacity 7 greater than the capacity the ALJ found to exist (A.R. 370-76). 8 opinion strongly supports the ALJ’s non-disability determination. 9 Orn v. Astrue, 495 F.3d 625, 631-32 (9th Cir. 2007) (where an This See 10 examining physician provides “independent clinical findings that 11 differ from findings of the treating physician, such findings are 12 ‘substantial evidence’” to support a disability determination) 13 (citations and internal quotations omitted). 14 cardiologist and internist, testified as a medical expert that Ms. 15 McClendon retained a capacity for light work prior to her death (A.R. 16 53). 17 the ALJ’s decision. 18 Cir. 1995) (where the opinions of non-examining physicians do not 19 contradict “all other evidence in the record” an ALJ properly may rely 20 on these opinions); Curry v. Sullivan, 925 F.2d 1127, 1130 n.2 (9th 21 Cir. 1990) (same). Dr. John Morse, a This testimony provides further substantial evidence supporting See Andrews v. Shalala, 53 F.3d 1035, 1041 (9th 22 23 Additionally, many entries in Ms. McClendon’s treatment records 24 suggest that Ms. McClendon’s impairments did not disable her from 25 working. 26 medical providers that she was asymptomatic, exercised daily for 45 27 minutes at a time and could climb stairs and walk long distances with 28 no chest pain or shortness of breath (A.R. 362, 382, 401, 528, 530). For example, at various times Ms. McClendon reported to 5 1 Some of the evidence in the record is in conflict. However, it 2 is the prerogative of the Administration to resolve such conflicts. 3 See Lewis v. Apfel, 236 F.3d 503, 509 (9th Cir. 2001); see also 4 Treichler v. Commissioner, 775 F.3d 1090, 1098 (9th Cir. 2014) (court 5 “leaves it to the ALJ” to resolve conflicts and ambiguities in the 6 record”). 7 one rational interpretation,” the Court must uphold the administrative 8 decision. 9 v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002); Sandgathe v. Chater, 10 Where, as here, the evidence “is susceptible to more than See Andrews v. Shalala, 53 F.3d at 1039-40; accord Thomas 108 F.3d 978, 980 (9th Cir. 1997). 11 12 II. Plaintiff’s Contrary Arguments are Unavailing. 13 14 Plaintiff argues that the ALJ erred in rejecting the opinion of a 15 treating physician. On November 5, 2013, Dr. Hector J. Rodriguez, one 16 of Ms. McClendon’s treating physicians, signed a one-page letter 17 opining Plaintiff was “unable to work” and “permanently disabled” 18 (A.R. 366, 368). 19 20 Generally, a treating physician’s conclusions “must be given 21 substantial weight.” Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 22 1988); see Rodriguez v. Bowen, 876 F.2d 759, 762 (9th Cir. 1989) (“the 23 ALJ must give sufficient weight to the subjective aspects of a 24 doctor’s opinion. . . . 25 that of a treating physician”) (citation omitted); see also Orn v. 26 Astrue, 495 F.3d at 631-33 (discussing deference owed to treating 27 physicians’ opinions). 28 is contradicted by another physician, the opinion can only be rejected This is especially true when the opinion is Where, as here, a treating physician’s opinion 6 1 for specific and legitimate reasons that are supported by substantial 2 evidence in the record. 3 Cir. 1995).3 4 sufficient reasons for rejecting Dr. Rodriguez’ opinion. Lester v. Chater, 81 F.3d 821, 830-31 (9th Contrary to Plaintiff’s argument, the ALJ stated 5 6 The ALJ stated, inter alia, that Dr. Rodriguez’ “conclusory 7 statements” lack any “objective support” from “any underlying 8 treatment notes” (A.R. 30, 33). 9 physician’s opinion where, as here, the opinion is not adequately An ALJ may properly reject a treating 10 supported by treatment notes or objective clinical findings. See 11 Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) (ALJ may 12 reject a treating physician’s opinion that is inconsistent with other 13 medical evidence, including the physician’s treatment notes); Batson 14 v. 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 treatment notes “provide no basis for the functional restrictions he 20 opined should be imposed on [the claimant]”); Matney v. Sullivan, 981 21 F.2d 1016, 1019-20 (9th Cir. 1992) (“The ALJ need not accept an 22 opinion of a physician - even a treating physician - if it is 23 conclusory and brief and is unsupported by clinical findings”); 20 24 C.F.R. §§ 404.1527(c), 416.927(c) (factors to consider in weighing 25 treating source opinion include the supportability of the opinion by 26 27 28 3 Rejection of an uncontradicted opinion of a treating physician requires a statement of “clear and convincing” reasons. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 7 1 medical signs and laboratory findings, the length of the treatment 2 relationship and frequency of examination, the nature and extent of 3 the treatment relationship including examinations and testing, whether 4 the opinion is from a specialist concerning issues related to the 5 source’s area of specialty, as well as the opinion’s consistency with 6 the record as a whole). 7 8 9 As the ALJ also observed, Ms. McClendon’s reported statements concerning her symptoms and capabilities undercut any claim of 10 disability (A.R. 33) (ALJ noted that the record showed Ms. McClendon 11 “remained stable and asymptomatic despite noncompliance with 12 medication regimen. . . . 13 . . .”). 14 opinion and a claimant’s statements regarding symptoms and 15 capabilities can furnish a specific, legitimate reason for rejecting a 16 treating physician’s opinion. 17 F.3d 853, 856 (9th Cir. 2001). [T]he claimant [was] stable and improved. Material inconsistencies between a treating physician’s See, e.g. Rollins v. Massanari, 261 18 19 Plaintiff’s motion also appears to challenge the ALJ’s evaluation 20 of Plaintiff’s claim under Listings 4.02 and 6.05. Any alleged error 21 was harmless. 22 under the Listings. 23 Cir. 1995), cert. denied, 517 U.S. 1122 (1996). 24 show that her impairment meets all of the specified medical criteria 25 for a listing, or present medical findings equal in severity to all of 26 the criteria for the one most similar listed impairment. 27 v. Zebley, 493 U.S. 521, 530-31 (1990). 28 /// A claimant has the burden of demonstrating disability See Roberts v. Shalala, 66 F.3d 179, 182 (9th 8 The claimant must See Sullivan 1 In the present case, Plaintiff concedes a failure to meet the “B” 2 criteria of Listing 4.02, as well as a failure to meet the “B” 3 criteria of Listing 6.05 (Plaintiff’s Motion at 8). 4 argue listings equivalence to the ALJ or present any medical findings 5 in an effort to establish listings equivalence. 6 required to discuss the combined effects of a claimant’s impairments 7 or compare them to any listing in an equivalency determination, unless 8 the claimant presents evidence in an effort to establish equivalence.” 9 Kennedy v. Colvin, 738 F.3d 1172, 1178 (9th Cir. 2013) (quoting Burch Plaintiff did not “An ALJ is not 10 v. Barnhart, 400 F.3d 676, 683 (9th Cir. 2005). Under the 11 circumstances presented, any alleged error in the evaluation of the 12 Listings was harmless. 13 at 887 (claimant has the burden of proving an error was harmful).4 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// See, id.; see also McLeod v. Astrue, 640 F.3d 25 26 4 27 28 Also harmless was the ALJ’s error in stating that Ms. McClendon was capable of performing her past relevant work “through the date last insured” i.e. December 31, 2014 (nine months after Ms. McClendon passed away). See A.R. 33. 9 1 CONCLUSION 2 3 For all of the foregoing reasons,5 Plaintiff’s motion for summary 4 judgment is denied and Defendant’s motion for summary judgment is 5 granted. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 15, 2018. 10 11 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 The Court has considered and rejected each of Plaintiff’s arguments. Neither Plaintiff’s arguments nor the circumstances of this case show any “substantial likelihood of prejudice” resulting from any error allegedly committed by the Administration. See generally McLeod v. Astrue, 640 F.3d at 88788 (discussing the standards applicable to evaluating prejudice). 10
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