Renee J. Barbee v. Nancy A. Berryhill, No. 2:2018cv08098 - Document 22 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh. The Agency's decision that Plaintiff is not disabled is affirmed and the case is dismissed with prejudice. (See document for details.) (sbou)
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Renee J. Barbee v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 RENEE J. B., 11 Plaintiff, 12 13 14 v. ANDREW M. SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 18-8098-PJW MEMORANDUM OPINION AND ORDER 16 17 I. 18 INTRODUCTION 19 Plaintiff appeals a decision by Defendant Social Security 20 Administration (“the Agency”), denying her applications for Disability 21 Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 22 She contends that the Administrative Law Judge (“ALJ”) erred when she 23 discounted Plaintiff’s testimony and when she rejected the treating 24 doctor’s opinion that Plaintiff could not work. 25 discussed below, the ALJ’s decision is affirmed.1 For the reasons 26 27 28 1 Pursuant to Federal Rule of Civil Procedure Rule 25(d), Andrew M. Saul is hereby substituted in as the defendant. Dockets.Justia.com 1 II. 2 SUMMARY OF PROCEEDINGS 3 In September 2014, Plaintiff applied for DIB and SSI, alleging 4 that she had been disabled since July 15, 2014, due to scoliosis, 5 herniated discs, high cholesterol, and migraines. 6 Record (“AR”) 274, 278, 311.) 7 requested and was granted a hearing before an ALJ. 8 82.) 9 hearing in August 2017. (Administrative Her applications were denied and she (AR 143-66, 179- The ALJ held a hearing in February 2017 and a supplemental (AR 24-102.) In September 2017, she issued a 10 decision, finding that Plaintiff was not disabled and denying her 11 applications for benefits. 12 the Appeals Council, which denied review. 13 followed. (AR 9-18, 24-102.) 14 III. 15 ANALYSIS Plaintiff appealed to (Dkt. No. 21.) This action 16 A. 17 The essence of Plaintiff’s testimony was that excruciating pain Plaintiff’s Testimony 18 prevented her from working. 19 standing for only 30 seconds and sitting for only 15 minutes. 20 78.) 21 concentrating. 22 concluding: (1) the medical evidence did not support it; (2) back 23 surgery had been successful in relieving her symptoms; and (3) the 24 only pain medication she was taking was for migraines and this 25 medication helped alleviate the pain. 26 She claimed that this pain limited her to (AR She also testified that migraines prevented her from (AR 78.) The ALJ discounted this testimony, (AR 15.) Generally speaking, these are valid reasons for questioning a 27 claimant’s testimony. 28 F.3d 1001, 1006 (9th Cir. 2006) (finding impairments that can be See Warre v. Comm’r of Soc. Sec. Admin., 439 2 1 controlled effectively with treatment are not disabling); 2 Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir. 2001) (noting ALJ 3 can consider objective medical evidence in determining credibility of 4 claimant); SSR 16-3p, at *5 (“A report of minimal or negative findings 5 or inconsistencies in the objective medical evidence is one of the 6 many factors we must consider in evaluating the intensity, 7 persistence, and limiting effects of an individual’s symptoms.”); 8 Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (holding 9 inconsistency between allegations of severe pain and conservative 10 treatment was proper basis for discounting credibility). 11 discussed below, they are supported by substantial evidence in the 12 record. 13 And, as The ALJ discussed the medical evidence in detail and determined 14 that it was inconsistent with Plaintiff’s claims of debilitating pain. 15 (AR 13-17.) 16 significant neurological findings and no evidence of muscle atrophy. 17 Though Plaintiff underwent back surgery in May 2015, she was able to 18 walk, presumably without a cane (since there is no mention of one), 19 soon after the surgery. 20 a pain specialist, neurologist, chiropractor, physical therapist, or 21 acupuncturist after surgery, which, presumably, she would have done if 22 she was experiencing excruciating pain. 23 up appointments after surgery were for issues unrelated to her back or 24 legs. 25 For example, she noted that there was a lack of (AR 543-44.) Further, Plaintiff did not seek In fact, most of her follow- Plaintiff argues that her improvement after surgery was only 26 temporary and that later her pain was the same as before the surgery. 27 (Joint Stip. at 16.) 28 though her treating doctor noted in April and May 2016 that Plaintiff Most of the chart notes suggest otherwise. 3 And, 1 was complaining of lower back pain radiating down her left leg, 2 Plaintiff did not pursue any therapy or treatment (like physical 3 therapy, chiropractic treatment, or acupuncture) to attempt to address 4 that pain. 5 neurologist after her surgery but apparently elected not to see 6 either. In fact, Plaintiff was referred to a pain specialist and (AR 548.) 7 Plaintiff argues that she did not take other pain medication 8 because her migraine medication (Fioricet with codeine)--which she was 9 taking seven times a day--was the only medication that worked for her. 10 (Joint Stip. at 16-17.) 11 specialist or the neurologist whether different medications or therapy 12 might have worked. 13 But Plaintiff never explored with the pain (AR 83.) To the extent that Plaintiff is arguing that the ALJ erred when 14 she failed to include any mental limitations to account for 15 Plaintiff’s “extreme pain with significant limitations in activities 16 of daily living,” this argument is also rejected. 17 17.) 18 that that doctor “couldn’t give me anything for it.” 19 Plaintiff, however, did not provide that doctor’s records. 20 she did not take any medication for emotional/psychiatric issues nor 21 was she receiving therapy or treatment. 22 when she concluded that the evidence did not support Plaintiff’s claim 23 that she was limited in her daily activities due to mental/emotional 24 impairments. 25 B. 26 Plaintiff’s treating doctor Virgencita Cortes opined that (Joint Stip. at Plaintiff testified that she saw a doctor for depression but (AR 86.) Further, Thus, the ALJ did not err (AR 158.) The Doctors’ Opinions 27 Plaintiff’s back and leg pain and her migraine headaches prevented her 28 from working. (AR 642-46.) Non-examining doctor Peter Schosheim 4 1 concluded that Plaintiff could perform sedentary work. 2 43.) 3 concluded that Plaintiff could perform sedentary work. 4 contends that the ALJ erred in doing so. 5 the Court concludes that the ALJ did not err. 6 (AR 35-36, The ALJ gave great weight to Dr. Schosheim’s opinion and Plaintiff For the following reasons, ALJs are tasked with resolving conflicts in the medical 7 evidence. 8 All things being equal, treating doctors’ opinions are entitled to the 9 most weight because they are hired to cure and have more opportunity Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). 10 to know and observe the patient. 11 opinion is contradicted by another doctor’s opinion, however, an ALJ 12 may reject it for specific and legitimate reasons that are supported 13 by substantial evidence in the record. 14 664, 675 (9th Cir. 2017), as amended (Sept. 14, 2017) (citing Ryan v. 15 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008)); see also 16 Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). 17 this burden by setting out a detailed and thorough summary of the 18 facts and conflicting clinical evidence, stating his interpretation 19 thereof, and making findings.” 20 Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 21 Id. at 1041. If a treating doctor’s Trevizo v. Berryhill, 871 F.3d “The ALJ can meet Trevizo, 871 F.3d at 675 (citing In February 2017, Dr. Cortes diagnosed Plaintiff with severe 22 lower back and leg pain. 23 that this made it difficult for Plaintiff to stand for more than 30 24 seconds. 25 leg was in so much pain that the doctor could not even touch it and 26 that when Plaintiff flexed her left knee she experienced excruciating 27 pain. (AR 642.) (AR 642.) (AR 642.) She noted, among other things, Dr. Cortes also reported that Plaintiff’s left Dr. Cortes opined that Plaintiff would only be able 28 5 1 to work for five to ten minutes before taking a break for an hour to 2 rest. 3 (AR 644.) The ALJ gave “little weight” to Dr. Cortes’s opinion because she 4 believed that it was: (1) “not supported by relevant objective medical 5 evidence,” including Dr. Cortes’s own chart notes; (2) inconsistent 6 with the medical evidence from other medical and nonmedical sources; 7 (3) contradicted by “other factors”; and (4) based in large measure on 8 Plaintiff’s subjective complaints. 9 for discounting a doctor’s opinion, see, e.g., Batson v. Comm’r of (AR 17.) These are valid reasons 10 Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004) (affirming ALJ’s 11 rejection of treating physician’s opinion that was contradicted by 12 other medical evidence and was premised on claimant’s subjective 13 descriptions of pain); Connett v. Barnhart, 340 F.3d 871, 875 (9th 14 Cir. 2003) (holding ALJ may reject the opinion of a treating physician 15 whose own “treatment notes provide no basis for the functional 16 restrictions he opined should be imposed on [the claimant]”); Morgan 17 v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 602 (9th Cir. 1999) 18 (affirming ALJ’s rejection of treating physicians’ unsupported and 19 inconsistent opinions that relied on claimant’s claims), and, 20 generally speaking, they are supported by the record. 21 Dr. Cortes did not refer to any objective evidence to support her 22 opinion that Plaintiff was essentially incapacitated. 23 instead, that she simply accepted Plaintiff’s subjective complaints 24 and rendered an opinion consistent with them. 25 questions the claimant’s testimony, she can discount the treating 26 doctor’s opinion that is based in large measure on the claimant’s 27 subjective complaints of pain. 28 6 It seems, Where, as here, the ALJ 1 By simply relying on what Plaintiff said, Dr. Cortes rendered an 2 opinion without support. There was little or no objective evidence 3 that Plaintiff would have difficulty standing for more than 30 seconds 4 or that her leg hurt so much that Dr. Cortes could not even touch it. 5 Nor was there evidence to support Dr. Cortes’s opinion that Plaintiff 6 could only work for five to ten minutes at a time and would then have 7 to rest for an hour. 8 about Plaintiff’s leg pain could be characterized as objective 9 findings, they in no way supported her opinion regarding Plaintiff’s Even assuming that Dr. Cortes’s observations 10 other limitations, i.e., that she could not sit for more than ten 11 minutes or look up or down at all. 12 (AR 645.) The ALJ also discounted Dr. Cortes’s opinion because it was not 13 supported by her treatment notes, particularly those following 14 Plaintiff’s May 2015 back surgery. 15 following Plaintiff’s surgery reveal that she was vastly improved. 16 fact, she reported that she was 70% better. 17 appointments in September, October, and November of 2015 and March and 18 September of 2016 were primarily for other medical issues, such as a 19 rash, a well-woman examination, hormonal migraines, a colonoscopy, and 20 right ear pain. 21 April and July of 2016 about back and leg pain (AR 545-51), a fair 22 reading of the record shows that her condition vastly improved in the 23 wake of her surgery. 24 referred to a chronic pain specialist and a neurologist in May 2016 25 when she complained of migraines but she elected not to see them. 26 544, 548.) 27 28 (AR 17.) (AR 543, 551, 553-55.) The chart notes (AR 556). In Her Though she complained between Further, as discussed above, Plaintiff was (AR The ALJ further found that Dr. Cortes’s opinion was not supported by the medical evidence from other medical sources. 7 (AR 17.) This 1 was the essence of Dr. Schosheim’s testimony. 2 example, that there were no records documenting any significant 3 atrophy, sensory changes, or reflex changes.2 4 Schosheim opined that Plaintiff could perform a range of sedentary 5 work. 6 that Plaintiff was limited to sitting for ten minutes and 7 standing/walking for five minutes because there were no significant 8 neurologic findings in the record to support it.3 9 (AR 35-36, 43.) He pointed out, for (AR 33-35.) Dr. And he disagreed with Dr. Cortes’s opinion (AR 38.) Plaintiff argues that Dr. Cortes’s opinion is supported by the 10 opinions of neurosurgeon Mehdi Habibi, who noted severe lower back 11 pain radiating to the left leg (AR 433-34), and neurologist Dr. Lin, 12 who noted tenderness in the entire left leg (AR 605-06). 13 at 6.) 14 surgery, and thus, their views have little or no bearing on Dr. 15 Cortes’s 2017 assessment. 16 (Joint Stip. But these doctors saw Plaintiff prior to her 2015 back The ALJ noted that Dr. Schosheim’s opinion was more persuasive 17 than Dr. Cortes’s opinion because Dr. Schosheim is an orthopedic 18 specialist whereas Dr. Cortes is an internist and family practitioner. 19 (AR 17.) This is a proper basis for choosing one doctor over another. 20 2 21 22 23 24 25 26 27 28 Plaintiff argues that Dr. Schosheim’s testimony that he disagreed with Dr. Cortes’s opinion because there were no neurological findings to support it is undermined by the fact that there were neurological findings in the record. (Joint Stip. at 6.) But the neurological findings Plaintiff is referring to were made before Plaintiff’s May 2015 surgery and do not relate to Dr. Cortes’s 2017 opinion. (AR 15, 389, 403, 452, 596.) 3 Plaintiff takes issue with Dr. Schosheim’s opinion because he was not aware that Plaintiff was prescribed a cane. (JS at 7.) The issue of Plaintiff’s use of a cane was clarified by her testimony at the hearing, however, and Dr. Schosheim changed his opinion so that Plaintiff would be required to use a cane for standing and/or walking. (AR 41-43.) 8 1 See Trevizo, 871 F.3d at 675 (citing 20 C.F.R. § 404.1527(c)(2)-(6)) 2 (explaining ALJ can consider doctor’s specialty in assessing how much 3 weight to give an opinion). 4 Plaintiff argues that, “since [Dr. Schosheim] did not give an 5 opinion in regards to the migraines,” the ALJ needed to address the 6 limitations given by Dr. Cortes that related to her migraines. 7 Stip. at 14.) 8 include migraines in her diagnoses and mentioned them only in 9 determining Plaintiff’s limitations in looking up and down. Plaintiff is mistaken. (Joint First, Dr. Cortes did not (AR 642, 10 645.) 11 accounted for them by precluding exposure to vibration, hazardous 12 machinery, and unprotected heights. 13 acknowledged Plaintiff’s history of migraines and included limitations 14 to account for them. Second, Dr. Schosheim did consider Plaintiff’s migraines and (AR 36.) (AR 16.) 15 IV. 16 CONCLUSION 17 18 Finally, the ALJ For these reasons, the Agency’s decision that Plaintiff is not disabled is affirmed and the case is dismissed with prejudice. 19 IT IS SO ORDERED. 20 DATED: March 19, 2020 21 22 23 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 S:\PJW\Cases-Social Security\RENEE B, 8098\Memo Opinion.wpd 9
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