Kimberly A. Dady v. Nancy A. Berryhill, No. 2:2018cv03432 - Document 25 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION by Magistrate Judge Alka Sagar. The decision of the Commissioner is AFFIRMED. (see document for details) (hr)
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Kimberly A. Dady v. Nancy A. Berryhill Doc. 25 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 11 CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION 12 13 14 15 16 17 18 KIMBERLY A. DADY, ) ) Plaintiff, ) ) v. ) ) NANCY A. BERRYHILL, ) Acting Commissioner of the ) Social Security Administration,) ) Defendant. ) ) Case No. CV 18-03432-AS MEMORANDUM OPINION 19 20 PROCEEDINGS 21 22 On April 24, 2018, Plaintiff filed a Complaint seeking review of 23 the denial of her application for Disability Insurance Benefits. 24 (Docket Entry No. 1). The parties have consented to proceed before the 25 undersigned United States Magistrate Judge. (Docket Entry Nos. 15-16). 26 On September 5, 2018, Defendant filed an Answer along with the 27 Administrative Record (“AR”). (Docket Entry Nos. 19-20). On November 28 26, 2018, the parties filed a Joint Stipulation (“Joint Stip.”) setting Dockets.Justia.com 1 forth their respective positions regarding Plaintiff’s claim. (Docket 2 Entry No. 22). 3 4 The Court has taken this matter under submission without oral 5 argument. See C.D. Cal. L.R. 7-15. 6 7 BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION 8 9 On August 5, 2015, Plaintiff, formerly employed as a regional 10 facilities manager for a property management company (see AR 31-33, 15611 57), filed an application for Disability Insurance Benefits, claiming 12 an inability to work since November 14, 2014 based on alleged physical 13 and mental impairments. (See AR 16, 140-43). On October 11, 2017, the 14 Administrative Law Judge (“ALJ”), Lawrence D. Wheeler, heard testimony 15 from Plaintiff (who was represented by counsel) and vocational expert 16 June Hagen. (See AR 29-46). On December 4, 2017, the ALJ issued a 17 decision denying Plaintiff’s application. (See AR 16-22). The ALJ 18 found, at step two of the five-step sequential evaluation process, that 19 Plaintiff’s medically determinable impairments –- “history of trigeminal 20 neuralgia; migraine; irritable bowel syndrome; pancreatitis due to 21 alcoholism; and mild depression” (AR 18)1 –- did not significantly limit 22 Plaintiff’s “ability to perform basic work-related activities for 12 23 consecutive months[.]” (AR 18-22). Accordingly, the ALJ found that 24 Plaintiff did not have a severe impairment or combination of impairments 25 that was severe, and thus was not disabled at any time from the alleged 26 27 28 1 The ALJ found Plaintiff’s medically determinable mental impairment to be non-severe because it caused no more than “mild” limitations in any of the functional areas. (AR 22). 2 1 disability onset date through the date of the ALJ’s decision. (AR 22). 2 3 4 1-6). On February 28, 2018, the Appeals Council denied review. (See AR Plaintiff now seeks judicial review of the ALJ’s decision which 5 stands as the final decision of the Commissioner. See 42 U.S.C. §§ 6 405(g), 1383(c). 7 8 STANDARD OF REVIEW 9 10 This Court reviews the Commissioner’s decision to determine if it 11 is free of legal error and supported by substantial evidence. 12 Brewes v. Comm’r, 682 F.3d 1157, 1161 (9th Cir. 2012). See “Substantial 13 evidence” is more than a mere scintilla, but less than a preponderance. 14 Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014). To determine 15 whether substantial evidence supports a finding, “a court must consider 16 the record as a whole, weighing both evidence that supports and evidence 17 that detracts from the [Commissioner’s] conclusion.” Aukland v. 18 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation 19 omitted). As a result, “[i]f the evidence can support either affirming 20 or reversing the ALJ’s conclusion, [a court] may not substitute [its] 21 judgment for that of the ALJ.” Robbins v. Soc. Sec. Admin., 466 F.3d 22 880, 882 (9th Cir. 2006). 23 24 PLAINTIFF’S CONTENTIONS 25 26 Plaintiff contends that the ALJ erred in (1) failing to properly 27 reject the opinion of Plaintiff’s treating physician who diagnosed 28 Plaintiff with Chronic Pain Syndrome and failing to find that 3 1 Plaintiff’s Reflex Sympathetic Dystrophy Syndrome/Complex Regional Pain 2 Syndrome (“RSDS/CRPS”), another form of chronic pain syndrome, was a 3 severe impairment; (2) failing to properly evaluate Plaintiff’s 4 subjective complaints and credibility; and (3) “finding that Plaintiff 5 retain[ed] the residual functional capacity to perform sedentary work 6 and could perform her past relevant work as an office manager.” (See 7 Joint Stip. at 2-5, 11-14, 23-24, 26). 8 9 DISCUSSION 10 11 After consideration of the record as a whole, the Court finds that 12 the ALJ’s step two determination is supported by substantial evidence 13 in the record, in accord with the Commissioner’s regulations, and free 14 from legal error.2 Accordingly, it is not necessary 15 Plaintiff’s second and third claims of error. See to address 20 C.F.R. § 16 404.1520(c)(“If you do not have any impairment or combination of 17 impairments which significantly limits your physical or mental ability 18 to do basic work activities, we will find that you do not have a severe 19 impairment and are, therefore, not disabled.”). 20 21 DISCUSSION 22 23 Plaintiff contends that the ALJ failed to properly reject 24 Plaintiff’s treating physician’s opinion that Plaintiff has Chronic Pain 25 26 2 The harmless error rule applies to the review of administrative See McLeod v. Astrue, 640 F.3d 881, 886-88 (9th Cir. 2011); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)(An ALJ’s decision will not be reversed for errors that are harmless). 27 decisions regarding disability. 28 4 1 Syndrome, and that the ALJ failed to find that Plaintiff’s RSDS/CRPS was 2 a severe impairment. (See Joint Stip. at 4-8, 12). Defendant contends 3 that the ALJ properly found that Plaintiff did not suffer from a severe 4 impairment or combination of impairments. (See Joint Stip. at 8-11).3 5 6 A. Applicable Law 7 8 “The Social Security Act defines disability as the inability to 9 engage in any substantial gainful activity by reason of any medically 10 determinable physical or mental impairment which can be expected to 11 result in death or which has lasted or can be expected to last for a 12 continuous period of not less than 12 months.” Webb v. Barnhart, 433 13 F.3d 683, 686 (9th Cir. 2005)(citing 42 U.S.C. § 423 (d)(1)(A)). The 14 ALJ follows a five-step, sequential analysis to determine whether a 15 claimant has established disability. 16 17 20 C.F.R. § 404.1520. At step one, the ALJ determines whether the claimant is engaged in 18 substantial gainful employment activity. Id. at § 404.1520(a)(4)(i). 19 “Substantial gainful activity” is defined as “work that . . . [i]nvolves 20 doing significant and productive physical or mental duties[] and . . . 21 [i]s done (or intended) for pay or profit.” 20 C.F.R. §§ 404.1510, 22 404.1572. If the ALJ determines that the claimant is not engaged in 23 24 3 Contrary to Defendant’s assertion (see Joint Stip. at 4), a See 20 C.F.R. § 404.1527(a)(1)(“Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions.”). 25 treating physician’s diagnosis is a medical opinion. 26 27 28 5 1 substantial gainful activity, the ALJ proceeds to step two which 2 requires the ALJ to determine whether the claimant has a medically 3 severe impairment or combination of impairments that significantly 4 limits his or her ability to do basic work activities. See 20 C.F.R. 5 § 404.1520(a)(4)(ii); see also Webb, supra. 6 7 The “ability to do basic work activities” is defined as “the 8 abilities and aptitudes necessary to do most jobs.” 20 C.F.R. § 9 404.1522(b); Webb v. Barnhart, supra. A severe impairment is one that 10 significantly limits the physical or mental ability to perform basic 11 work activities. 20 C.F.R. § 404.1520(c). Basic work activities 12 include the abilities to perform physical functions, to see, hear and 13 speak, to understand, carry out, and remember simple instructions, to 14 use judgement, to respond appropriately to supervision, co-workers and 15 usual work situations, and to deal with changes in a routine work 16 setting. 20 C.F.R. § 404.1522(b). An impairment is not severe if it 17 is merely “a slight abnormality (or combination of slight abnormalities) 18 that has no more than a minimal effect on the ability to do basic work 19 activities.” Webb, supra; see also Social Security Ruling (“SSR”) 8520 28; Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987). “An ALJ may find 21 that a claimant lacks a medically severe impairment or combination of 22 impairments only when his conclusion is ‘clearly established by medical 23 evidence.’” Webb, 433 F.3d at 687 (quoting SSR 85-28). Plaintiff is 24 not required to establish total disability at this level of the 25 evaluation. Rather, the severe impairment requirement is a threshold 26 element that Plaintiff must prove in order to establish disability 27 within the meaning of the Social Security Act. Bowen, 482 U.S. at 146. 28 “[T]he step-two inquiry is a de minimis screening device to dispose of 6 1 groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 2 1996). 3 4 If the ALJ concludes that a claimant lacks a “severe medically 5 determinable physical or mental impairment that meets the duration 6 requirement . . . or a combination of impairments that is severe and 7 meets the duration requirement,” the ALJ must find the claimant not to 8 be disabled. 20 C.F.R. § 404.1520(a)(4)(ii); Ukolov v. Barnhart, 420 9 F.3d 1002, 1003 (9th Cir. 2005)(ALJ need not consider subsequent steps 10 if there is a finding of “disabled” or “not disabled” at any step). 11 12 If the ALJ finds that a claimant’s impairment is severe, then step 13 three requires the ALJ to evaluate whether the claimant’s impairment 14 satisfies certain statutory requirements entitling [her] to a disability 15 finding. Webb, 433 F.3d at 686. If the impairment does not satisfy the 16 statutory requirements entitling the claimant to a disability finding, 17 the ALJ must then determine the claimant’s residual functional capacity 18 (“RFC”), that is, the ability to do physical and mental work activities 19 on a sustained basis despite limitations from all her impairments. 20 20 C.F.R. § 404.1520(e). Once the RFC is determined, the ALJ proceeds to 21 step four to assess whether the claimant is able to do any work that he 22 or she has done in the past, defined as work performed in the last 23 fifteen years prior to the disability onset date. If the ALJ finds that 24 the claimant is not able to do the type of work that he or she has done 25 in the past or does not have any past relevant work, the ALJ proceeds 26 to step five to determine whether - taking into account the claimant’s 27 age, education, work experience and RFC - there is any other work that 28 the claimant can do and if so, whether there are a significant number 7 1 of such jobs in the national economy. Tackett v. Apfel, 180 F.3d 1094, 2 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(iii)-(v). The claimant 3 has the burden of proof at steps one through four, and the Commissioner 4 has the burden of proof at step five. Tackett, supra. 5 6 An ALJ must take into account all medical opinions of record. 20 7 C.F.R. § 404.1527(b). “Generally, a treating physician’s opinion 8 carries more weight than an examining physician’s, and an examining 9 physician’s opinion carries more weight than a reviewing physician’s.” 10 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); see also 11 Lester v. Chater, 81 F.3d 821, 830-31 (9th Cir. 1995). 12 13 If a treating or examining doctor’s opinion is not contradicted by 14 another doctor, the ALJ can reject the opinion only for “clear and 15 convincing reasons.” Carmickle v. Commissioner, 533 F.3d 1155, 1164 16 (9th Cir. 2008); Lester, 81 F.3d at 830. If the treating or examining 17 doctor’s opinion is contradicted by another doctor, the ALJ must provide 18 “specific and legitimate reasons” for rejecting the opinion. Orn v. 19 Astrue, 495 F.3d 625, 632 (9th Cir. 2007); Reddick v. Chater, 157 F.3d 20 715, 725 (9th Cir. 1998); Lester, supra. 21 22 B. Plaintiff’s Testimony 23 24 Plaintiff testified that she last worked as a regional facilities 25 manager for an asset management company, primarily doing office work, 26 conference calls and staff meetings, and spent 40 to 50 percent of her 27 time traveling to visit properties and train new staff. (AR 31). She 28 stopped working in 2014 due to pain in her left fascia trigeminal nerve. 8 1 (AR 34). She has taken various medications for the pain and she is 2 unable to work due to the side effects of those medications. 3 35). (AR 34- Plaintiff stated that she was unable to work due to nausea and 4 vomiting which “had been a problem for three or four years, perhaps even 5 five, and slowly increased over time,” reaching the point where it was 6 interfering with her work. (AR 39). She still experiences episodes of 7 vomiting ranging from no weekly episodes to once or twice a week, and 8 up to five or six times a week. Her typical day starts at 6:30 Id. 9 a.m.; she makes breakfast for her 17-year-old daughter, returns to bed 10 and gets up to retrieve the mail which she puts on the sofa table before 11 returning to bed. (AR 36-37). She spends about seven hours a day -- 12 between the hours of 9:00 a.m. and 5:00 p.m. -- in bed. (AR 40). 13 is able to text on her phone. (AR 37). She Her daughter does most of the 14 grocery shopping and her own laundry and a cleaning lady comes in twice 15 a month to clean the house. Id. Two years ago, she traveled by car to 16 Las Vegas to watch her daughter compete in a softball tournament. (AR 17 37-38). Her daughter drove the car to Las Vegas, and while there, 18 Plaintiff remained in her motel room when she was not attending the 19 softball games. (AR 38-39). 20 21 Plaintiff testified that her friend, Daniel Araya, who had 22 completed a third party form indicating that he was actively helping 23 her, no longer lives close by to assist her. (AR 38). 24 25 C. Dr. Diehl 26 27 Paul Diehl, M.D., a physician at West Hills Hospital and Medical 28 Center, treated Plaintiff from September 20, 2011 to September 12, 2017. 9 1 (See AR 246-360, 434-502, 507-85, 617-44, 836-951, 953-68). Dr. Diehl’s 2 progress notes reflect treatment for abdominal pain from alcoholic3 related acute pancreatitis, trigeminal neuralgia, tachycardia, 4 hyperlipidemia, irritable bowel syndrome and various mild and/or 5 transitory ailments. As the ALJ noted, Plaintiff’s office visits 6 reflected normal physical examinations, and many office visits were for 7 medication and refill purposes only. (AR 19). 8 9 D. Consultative Examination 10 11 In November 2015, Plaintiff was examined by Michael Wallack, M.D., 12 for a consultative internal medicine evaluation. (See AR 371-80). 13 Plaintiff complained of left facial pain and tachycardia. (AR 371). 14 Based on his physical examination, testing and observations, Dr. Wallack 15 found that Plaintiff’s left facial pain, presumably trigeminal 16 neuralgia, was a chronic condition that “seems to be controlled with her 17 current medical regimen” and that Plaintiff’s intermittent tachycardia 18 was adequately treated with medication. (AR 375). Finding no fixed 19 neurological deficits and no sign of cardiac insufficiency, Dr. Wallack 20 assessed no functional limitations on Plaintiff’s abilities to stand, 21 walk, sit, lift and carry, and no postural, environmental, visual or 22 communicative limitations. (AR 375-76). 23 24 E. Analysis 25 26 As set forth below, the ALJ’s determination that Plaintiff does not 27 suffer from a severe impairment or combination of impairments that is 28 severe is supported by substantial evidence in the record. 10 After 1 summarizing the records of Plaintiff’s treatment at West Hills Hospital 2 and Medical Center during the period September 2011 to September 2017 3 (see AR 19-20), the ALJ addressed Dr. Diehl’s specific statements about 4 Chronic Pain Syndrome, as follows: “In April and May 2016, Dr. Diehl 5 indicated the claimant was again experiencing nausea and vomiting with 6 weight loss, chronic pain syndrome, and trigeminal neuralgia (Exhibit 7 14F, pp. 114-16). 8 etiology.” However, there was again no clear diagnosis or (AR 20). 9 10 “A chronic pain syndrome is the combination of chronic pain [pain 11 of an injury or illness lasting longer than six months] and the 12 secondary complications that are making the original pain worse.” See 13 www.instituteforchronicpain.org/understanding-chronic-pain/what-is14 chronic-pain/chronic-pain-syndrome; see also Lester, 81 F.3d at 829 (for 15 Chronic Pain Syndrome, “[p]ain merges into and becomes a part of the 16 mental and psychological 17 impairments”). responses that produce the functional Here, the ALJ properly found that Dr. Diehl did not 18 clearly diagnose Plaintiff with Chronic Pain Syndrome and that the 19 medical record did not support such a diagnosis. See Thomas v. 20 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002)(“The ALJ need not accept the 21 opinion of any physician including the treating physician, if that 22 opinion is brief, conclusory, and inadequately supported by clinical 23 findings.”); see also 20 C.F.R. § 404.1527(d)(3) (“The more a medical 24 source presents relevant evidence to support a medical opinion, 25 particularly medical signs and laboratory findings, the more weight we 26 will give that medical opinion. The better an explanation a source 27 provides for a medical opinion, the more weight we will give that 28 medical opinion.”); 20 C.F.R. § 404.1527(d)(4) (“Generally, the more 11 1 consistent a medical opinion is with the record as a whole, the more 2 weight we will give to that medical opinion.”). 3 4 As the ALJ noted, Dr. Diehl’s Progress Notes dated April 12, 2016 5 and May 29, 2016 referenced Plaintiff’s nausea and vomiting with, inter 6 alia, chronic pain syndrome (see AR 838-39 [on April 11, 2016, Plaintiff 7 complained of intractable nausea, vomiting and pain, and the admitting 8 diagnoses were “[i]ntractable nausea and vomiting with chronic pain 9 syndrome”], 836-37 [on May 28, 2016, Plaintiff complained of nausea and 10 vomiting, and the admitting diagnoses were “[i]ntractable nausea and 11 vomiting, associated weight loss, chronic pain syndrome with associated 12 trigeminal neuralgia with recent falls, weight loss”]). These 13 notations, along with the other notations in the record about Chronic 14 Pain Syndrome, both prior to and after the alleged November 14, 2014 15 disability onset date (see AR 333-34 [on January 8, 2014, notation that 16 Plaintiff had a history of chronic pain syndrome], 306-07 [on September 17 25, 2014, the admitting diagnoses included “history of chronic pain 18 syndrome secondary to trigeminal neuralgia”] 255-56 [on August 1, 2015, 19 the admitting diagnoses included chronic pain syndrome]), reflect 20 Plaintiff’s complaints, rather than an actual diagnosis. In fact, the 21 majority of medical records prior to and after Dr. Diehl’s April 12, 22 2016 and May 29, 2016 Progress Notes do not mention chronic pain 23 syndrome. Since, contrary to Plaintiff’s assertion, Dr. Diehl did not 24 diagnose Plaintiff with Chronic Pain Syndrome, the ALJ did not err in 25 rejecting Dr. Diehl’s opinion. 26 27 The ALJ noted that neither Dr. Diehl, nor any other medical 28 providers, opined that Chronic Pain Syndrome limited Plaintiff’s 12 1 abilities to perform basic work activities (AR 21), and Plaintiff has 2 failed to cite to any evidence in the record to support otherwise.4 3 Plaintiff has not demonstrated that her Chronic Pain Syndrome limited 4 her abilities to perform light work, which the ALJ alternatively found 5 Plaintiff capable of doing (see AR 22). See Tacket, supra (“The burden 6 of proof is on the claimant as to steps one to four.”). 7 8 Plaintiff’s contention that her RSDS/CRPS was a severe impairment 9 (see Joint Stip. at 4-5, 12) is also without merit. “RSDS/CRPS is a 10 chronic pain syndrome most often resulting from trauma to a single 11 extremity. It also can result from diseases, surgery, or injury 12 affecting other parts of the body. . . . The most common acute clinical 13 manifestations include complaints of intense pain and findings 14 indicative of autonomic dysfunction at the site of precipitating trauma. 15 Later, spontaneously occurring pain may be associated with abnormalities 16 in the affected region involving the skin, subcutaneous tissue, and 17 bone. It is characteristic of this syndrome that the degree of pain 18 reported is out of proportion to the severity of the injury sustained 19 b y also the individual.” SSR 03-2p; see 20 http://www.ninds.nih.gov/Disoders/All-Disorders/Complex-Regional-Pain21 Syndrome-Information-Page (CRPS “is a condition marked by severe, 22 prolonged chronic pain (lasting more than six months) that may be 23 constant. . . . Common symptoms include dramatic changes in the color 24 and temperature of the skin over the affected limb or body part, 25 26 27 28 4 The results of physical examinations beginning approximately six months prior to the alleged November 14, 2014 disability onset date do not reflect the levels of pain that Plaintiff claims to have experienced, and also do not support a diagnosis of Chronic Pain Syndrome. (See AR 234-37, 255-56, 306-09, 515-85, 836-39, 841-73, 836951, 953-68). 13 1 accompanied by intense burning pain, increased sensitivity in the 2 affected area, skin sensitivity, abnormal sweating, and abnormal 3 movement in the affected limb. In most instances the condition is 4 triggered by a clear history of trauma or injury.”); 5 http://www.webmd.com/brain/what-is-reflex-sympathetic-dystrophy-syndrome 6 (RSDS, “an older term used to describe one form of CRPS,” “is caused by 7 injury to tissue with no related nerve damage.”). A diagnosis of 8 RSDS/CRPS is warranted if there are “complaints of persistent, intense 9 pain” resulting in impaired mobility in the affected region which are 10 associated with “[s]welling; [a]utonomic instability–-seen as changes 11 in skin color or texture, changes in sweating (decreased or excessive 12 sweating), skin temperature changes, or abnormal pilomotor erection 13 (gooseflesh); [a]bnormal hair or nail growth (growth can be either too 14 slow or too fast)”; [o]steoporosis; or [i]nvoluntary movements of the 15 affected region of the initial injury.” 16 17 SSR 03-2p. Plaintiff has failed to meet her burden of establishing that the 18 ALJ erred in failing to find that RSDS/CRPS was a severe impairment. 19 Indeed, Plaintiff’s attempt to support her claim by relying on 20 additional evidence in the record (see Joint Stip. at 5, citing AR 960 21 [on August 14, 2017, Dr. Diehl made an assessment of Chronic Fatigue 22 Syndrome], 234 [in a July 21, 2015 report following a neurological 23 examination, George Chow, M.D. at San Fernando Valley Neurological 24 Medical Group stated that the examination was to review Plaintiff’s 25 problems with “[c]ervico-occipital neuralgia, [s]kin-sensation 26 disturbance, [and] [c]hronic pain in face” and assessed that Plaintiff 27 had a “[l]ong-standing history of severe trigeminal deafferentation pain 28 syndrome”]) is unpersuasive. Contrary to Plaintiff’s assertion, these 14 1 notations do not support a diagnosis of Chronic Pain Syndrome or 2 RSDS/CRPS. 3 4 The ALJ properly concluded that, despite Plaintiff’s assertions of 5 functional limitations caused by Chronic Pain Syndrome or RSDS/SRPS, the 6 objective medical evidence did not support such a finding. 7 8 ORDER 9 10 For the foregoing reasons, the decision of the Commissioner is 11 AFFIRMED. 12 13 LET JUDGMENT BE ENTERED ACCORDINGLY. 14 15 DATED: March 13, 2019 16 17 18 19 /s/ ALKA SAGAR UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28 15
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