Colin Kelly Rock v. Nancy A. Berryhill, No. 2:2018cv09464 - Document 21 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED, and the action is DISMISSED with prejudice. Judgment shall be entered accordingly. (et)
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Colin Kelly Rock v. Nancy A. Berryhill Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 COLIN K. R., an Individual, 12 Plaintiff, 13 v. 14 Case No.: 2:18-0 9464 ADS MEMORANDUM OPINION AND ORDER ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 18 19 I. IN TROD U CTION Plaintiff Colin K. R.1 (“Plaintiff”) challenges the Defendant Andrew M. Saul2 , Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 20 21 22 23 24 1 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 The Com plaint, and thus the docket caption, do not nam e the Com m issioner. The parties list Nancy A. Berryhill as the Acting Com m issioner in the J oint Subm ission. On J une 17, 20 19, Saul becam e the Com m issioner of Social Security. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 of his application for a period of disability and disability insurance benefits (“DIB”). 2 Plaintiff contends that the Adm inistrative Law J udge (“ALJ ”) im properly rejected the 3 opinion of his treating physician. For the reasons stated below, the decision of the 4 Com m issioner is affirm ed, and this m atter is dism issed with prejudice. 5 II. PROCEED IN GS BELOW 6 A. Pro ce d u ral H is to ry 7 Plaintiff protectively filed his application for DIB on October 21, 20 14, alleging 8 disability beginning April 28, 20 14. (Adm inistrative Record “AR” 366-74). Plaintiff’s 9 claim s were denied initially on J anuary 16, 20 15 (AR 276), and upon reconsideration on 10 March 19, 20 15 (AR 289). A hearing was held before ALJ Richard T. Breen on 11 Novem ber 22, 20 16. (AR 227-65). Plaintiff, represented by counsel, appeared and 12 testified at the hearing, as did a vocational expert, Aida Y. Worthington. (Id.) 13 On J anuary 12, 20 17, the ALJ found that Plaintiff was “not disabled” within the 14 m eaning of the Social Security Act.3 (AR 17-30 ). The ALJ ’s decision becam e the 15 Com m issioner’s final decision when the Appeals Council denied Plaintiff’s request for 16 review on Septem ber 11, 20 18. (AR 1-7). Plaintiff then filed this action in District Court 17 on Novem ber 7, 20 18, challenging the ALJ ’s decision. [Docket (“Dkt.”) No. 1]. 18 19 20 21 22 23 24 3 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or m ental im pairm ent expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 m onths. 42 U.S.C. §423(d)(1)(A). -2- On April 8, 20 19, Defendant filed an Answer, as well as a copy of the Certified 1 2 Adm inistrative Record. [Dkt. Nos. 18, 19]. The parties filed a J oint Subm ission on J uly 3 2, 20 19. [Dkt. No. 20 ]. The case is ready for decision.4 4 B. Su m m ary o f ALJ D e cis io n Afte r H e arin g 5 In the decision (AR 20 -30 ), the ALJ followed the required five-step sequential 6 evaluation process to assess whether Plaintiff was disabled under the Social Security 7 Act.5 20 C.F.R. § 40 4.1520 (a). At s te p o n e , the ALJ found that Plaintiff had not been 8 engaged in substantial gainful activity since April 28, 20 14, the alleged onset date. (AR 9 22). At s te p tw o , the ALJ found that Plaintiff had the following severe im pairm ents: 10 (a) degenerative disc disease of the cervical and lum bar spine, with m ild facet 11 arthropathy of the lum bar spine; (b) m ild right carpal tunnel syndrom e; (c) history of 12 left carpal tunnel syndrom e; and (d) diabetes m ellitus. (AR 22). At s te p th re e , the 13 ALJ found that Plaintiff “does not have an im pairm ent or com bination of im pairm ents 14 that m eets or m edically equals the severity of one of the listed im pairm ents in 20 CFR 15 Part 40 4, Subpart P, Appendix 1 (20 CFR 40 4.1520 (d), 40 4.1525, 40 4.1526).” (AR 23). 16 17 18 19 20 21 22 23 24 4 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. § 636(c), including for entry of final J udgm ent. [Dkt. Nos. 11, 12]. 5 The ALJ follows a five-step sequential evaluation process to assess whether a claim ant is disabled: Step one: Is the claim ant engaging in substantial gainful activity? If so, the claim ant is found not disabled. If not, proceed to step two. Step two: Does the claim ant have a “severe” im pairm ent? If so, proceed to step three. If not, then a finding of not disabled is appropriate. Step three: Does the claim ant’s im pairm ent or com bination of im pairm ents m eet or equal an im pairm ent listed in 20 C.F.R., Pt. 40 4, Subpt. P, App. 1? If so, the claim ant is autom atically determ ined disabled. If not, proceed to step four. Step four: Is the claim ant capable of perform ing his past work? If so, the claim ant is not disabled. If not, proceed to step five. Step five: Does the claim ant have the residual functional capacity to perform any other work? If so, the claim ant is not disabled. If not, the claim ant is disabled. Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (citing 20 C.F.R. §40 4.1520 ). -3- The ALJ then found that Plaintiff had the Residual Functional Capacity (“RFC”) 6 1 2 to perform light work as defined in 20 C.F.R. § 40 4.1567(b), 7 except: 3 the claim ant is lim ited to frequent reaching in all directions, frequent handling and fingering bilaterally, frequent postural activities, but occasional clim bing of ladders, ropes or scaffolds, and occasional work at unprotected heights. 4 5 (AR 23). 6 At s te p fo u r, based on Plaintiff’s RFC and the vocational expert’s testim ony, the 7 ALJ found that Plaintiff could not perform his past relevant work as a stock clerk. (AR 8 28). At s te p five , considering Plaintiff’s age, education, work experience, RFC and the 9 vocational expert’s testim ony, the ALJ found that there “are jobs that exist in significant 10 num bers in the national econom y that [Plaintiff] can perform ” such as order filler, retail 11 and route delivery clerk. (AR 29). Accordingly, the ALJ determ ined that Plaintiff had 12 not been under a disability, as defined in the Social Security Act, from April 28, 20 14, 13 through the date of the decision, J anuary 12, 20 17. (AR 30 ). 14 15 16 17 6 18 19 20 21 22 23 An RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. § 40 4.1545(a)(1). 7 “Light work” is defined as lifting no m ore than 20 pounds at a tim e with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted m ay be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting m ost of the tim e with som e pushing and pulling of arm or leg controls. To be considered capable of perform ing a full or wide range of light work, you m ust have the ability to do substantially all of these activities. 20 C.F.R. § 40 4.1567(b); see also Rendon G. v. Berryhill, 20 19 WL 20 0 6688, at *3 n.6 (C.D. Cal. May 7, 20 19). 24 -4- 1 III. AN ALYSIS 2 A. Is s u e o n Ap p e al 3 Plaintiff raises one issue for review: whether the ALJ provided specific and 4 legitim ate reasons to reject the treating physician’s neck m ovem ent restrictions. [Dkt. 5 No. 20 (J oint Subm ission), at p. 4]. 6 B. Stan d ard o f Re vie w 7 A United States District Court m ay review the Com m issioner’s decision to deny 8 benefits pursuant to 42 U.S.C. § 40 5(g). The District Court is not a trier of the facts but 9 is confined to ascertaining by the record before it if the Com m issioner’s decision is 10 based upon substantial evidence. Garrison v. Colvin, 759 F.3d 995, 10 10 (9th Cir. 20 14) 11 (District Court’s review is lim ited to only grounds relied upon by ALJ ) (citing Connett v. 12 Barnhart, 340 F.3d 871, 874 (9th Cir. 20 0 3)). A court m ust affirm an ALJ ’s findings of 13 fact if they are supported by substantial evidence and if the proper legal standards were 14 applied. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). An ALJ can satisfy 15 the substantial evidence requirement “by setting out a detailed and thorough sum m ary 16 of the facts and conflicting clinical evidence, stating his interpretation thereof, and 17 m aking findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation 18 om itted). 19 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 20 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 21 weighing both evidence that supports and evidence that detracts from the Secretary’s 22 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 23 internal quotation m arks om itted). “‘Where evidence is susceptible to m ore than one 24 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. -5- 1 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 2 (9th Cir. 20 0 5)); see Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 20 0 6) (“If 3 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 4 substitute our judgm ent for that of the ALJ .”). However, the Court m ay review only “the 5 reasons provided by the ALJ in the disability determ ination and m ay not affirm the ALJ 6 on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 7 20 0 7) (citation om itted). 8 9 Error in a social security determ ination is subject to harm less error analysis. Ludwig v. Astrue, 681 F.3d 10 47, 10 54 (9th Cir. 20 12). Error is harm less if “it is 10 inconsequential to the ultim ate nondisability determ ination” or, despite the legal error, 11 “the agency's path m ay reasonably be discerned.” Treichler v. Com m 'r of Soc. Sec. 12 Adm in., 775 F.3d 10 90 , 10 99 (9th Cir. 20 14). 13 C. Th e ALJ Pro p e rly Evalu ate d Th e Me d ical Evid e n ce 14 Plaintiff contends that the ALJ erred in rejecting the neck m ovem ent restrictions 15 assessed by his treating physician, William Mouradian, M.D. Defendant argues that the 16 ALJ gave proper weight to Dr. Mouradian’s opinion. 17 18 1. Standard for Weighing Medical Opinions The ALJ m ust consider all m edical opinion evidence. 20 C.F. R. § 40 4.1527(b). 19 “As a general rule, m ore weight should be given to the opinion of a treating source than 20 to the opinion of doctors who do not treat the claim ant.” Lester v. Chater, 81 F.3d 821, 21 830 (9th Cir. 1995) (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987)). Where 22 the treating doctor’s opinion is not contradicted by another doctor, it m ay only be 23 rejected for “clear and convincing” reasons. Id. (citing Bayliss v. Barnhart, 427 F.3d 24 1211, 1216 (9th Cir. 20 0 5)). “If a treating or exam ining doctor’s opinion is contradicted -6- 1 by another doctor’s opinion, an ALJ m ay only reject it by providing specific and 2 legitim ate reasons that are supported by substantial evidence.” Trevizo v. Berryhill, 871 3 F.3d 664, 675 (9th Cir. 20 17) (quoting Bayliss, 427 F.3d at 1216). In Trevizo, the Ninth 4 Circuit addressed the factors to be considered in assessing a treating physician’s 5 opinion. 6 7 8 9 10 The m edical opinion of a claim ant’s treating physician is given “controlling weight” so long as it “is well-supported by m edically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claim ant’s] case record.” 20 C.F.R. § 40 4.1527(c)(2). When a treating physician’s opinion is not controlling, it is weighted according to factors such as the length of the treatm ent relationship and the frequency of exam ination, the nature and extent of the treatm ent relationship, supportability, consistency with the record, and specialization of the physician. Id. § 40 4.1527(c)(2)-(6). 11 12 13 871 F.3d at 675. “Substantial evidence” m eans m ore than a m ere scintilla, but less than a 14 preponderance; it is such relevant evidence as a reasonable person m ight accept as 15 adequate to support a conclusion.” Lingenfelter v. Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 16 20 0 7) (citing Robbins, 466 F.3d at 882). “The ALJ can m eet this burden by setting out a 17 detailed and thorough sum m ary of the facts and conflicting clinical evidence, stating his 18 interpretation thereof, and m aking findings.” Magallanes v. Bowen, 881 F.2d 747, 751 19 (9th Cir. 1989) (citation om itted); see also Tom m asetti v. Astrue, 533 F.3d 10 35, 10 41 20 (9th Cir. 20 0 8) (finding ALJ had properly disregarded a treating physician’s opinion by 21 setting forth specific and legitim ate reasons for rejecting the physician’s opinion that 22 were supported by the entire record). 23 24 As noted above, an RFC is what a claim ant can still do despite existing exertional and nonexertional lim itations. See 20 C.F.R. §§ 40 4.1545(a)(1). Only the ALJ is -7- 1 responsible for assessing a claim ant’s RFC. See 20 C.F.R. § 40 4.1546(c). “It is clear that 2 it is the responsibility of the ALJ , not the claim ant’s physician, to determ ine residual 3 functional capacity.” Vertigan v. Halter, 260 F.3d 10 44, 10 49 (9th Cir. 20 0 1) (citing 20 4 C.F.R. § 40 4.1545). 5 2. The ALJ Gave Specific and Legitim ate Reasons, Supported by Substantial Evidence 6 7 The ALJ com plied with Magallanes and provided specific and legitim ate reasons 8 for rejecting the neck lim itations assessed by Plaintiff’s treating physician, Dr. 9 Mouradian that are supported by the entire record. At issue is a “Medical statem ent 10 regarding cervical spine disorders for Social Security disability claim ” signed by Dr. 11 Mouradian on Novem ber 18, 20 16. (AR 696-97). The statem ent is a one-page checklist 12 form with a “circle answers” section wherein in response to the categories “Rotate neck 13 to right: Rotate neck to left: Elevate chin: and Bring chin to neck:”, Dr. Mouradian 14 circled “Cannot do” as his response. Based on this singular response and form , Plaintiff 15 argues the ALJ erred in not including a neck restriction into his assessed RFC. 16 17 After a thorough review of the m edical records in evidence (AR 24-26), the ALJ analyzed the m edical statem ent of Dr. Mouradian as follows: 18 19 20 21 22 23 24 On Novem ber 18, 20 16, Dr. Mouradian opined the claim ant could only work one hour per day, stand 15 m inutes at a tim e, sit 15 m inutes at a tim e, lift no weight, and never rotate his neck, elevate his chin, or bring his chin to his neck. [citing AR 696]. I give little weight to this opinion because it is too restrictive when com pared to the evidence in the record. The claim ant walked into the hearing carrying a shopping bag with no assistive device and testified to assisting his father with oxygen and driving a substantial distance to the hearing, which is inconsistent with this restrictive opinion. (Hearing Testim ony). This opinion is also inconsistent with Dr. Mouradian own findings that the claim ant had norm al gait, despite producing back -8- 1 2 3 4 5 pain, and with Dr. Enriquez findings that the claim ant had a norm al gait and station, without the need for an assistive device. [citing AR 594, 596, 598 and 510 ]. Dr. Mouradian also concluded the claim ant m ostly had “m echanical neck com plaints,” and that “radiculopathy [did] not seem to be a big part of the picture,” which finding is inconsistent with his opinion in [AR 696]. (AR 27-28). The ALJ did not entirely discount Dr. Mouradian’s opinion. In fact, the ALJ 6 noted where Dr. Mouradian’s opinion was supported by other m edical source opinions. 7 Specifically, the ALJ stated that Mr. Mouradian “repeatedly opined the claim ant would 8 not be able to return to his past work” and stated that this opinion was consistent with 9 another m edical source opinion that was given great weight. (AR 27). In determ ining 10 the specific lim itations assessed in the RFC, however, the ALJ instead gave greater 11 weight to the opinion of a State Agency non-exam ining consultant (AR 272-73) and 12 another State Agency non-exam ining consultant who subsequently agreed with this 13 opinion (AR 285-86) that Plaintiff: “was capable of lifting and/ or carrying 50 pounds 14 occasionally and 25 pounds frequently, standing and walking six hours in an eight hour 15 day, sitting six hours in an eight hour day, frequently perform ing postural activities, and 16 frequently reaching above shoulder level.” (AR 28). As Dr. Mouradian’s neck lim itation 17 opinion was thus contradicted by other doctors’ opinions, the ALJ m ay have only 18 rejected it “by providing specific and legitim ate reasons that are supported by 19 substantial evidence.” See Trevizo, 871 F.3d at 675. The ALJ did so here. 20 To begin, it was proper for the ALJ to assess the various m edical opinions, state 21 reasons for doing so, and conclude to give greater weight to the opinions of the State 22 Agency m edical consultants than to Plaintiff’s treating physician. It is the role of the 23 ALJ , and not this Court, to interpret and resolve any am biguities in the m edical records. 24 See Tom m asetti, 533 F.3d at 10 41-42 (“The ALJ is the final arbiter with respect to -9- 1 resolving am biguities in the m edical evidence.”); Andrews v. Shalala, 53 F.3d 10 35, 10 41 2 (9th Cir. 1995) (holding that it is the ALJ ’s job to resolve any conflicts). 3 In addition, the ALJ set forth specific and legitim ate reasons, supported by 4 substantial evidence, for giving less weight to the neck lim itation opinion of Dr. 5 Mouradian. As set forth above, the ALJ found Dr. Mouradian’s neck lim itation too 6 restrictive when com pared to the evidence in the record. The ALJ first noted that 7 although Dr. Mouradian stated that Plaintiff CANNOT rotate his neck to the right or the 8 left, elevate his chin or bring his chin to his neck, Plaintiff did testify that he drove 9 substantial distances, assisted with his father’s oxygen treatm ents and carried a 10 shopping bag into the hearing with the use of no assistive device. (AR 27). Plaintiff 11 argues that this case should be rem anded in order for the ALJ to inquire into the exact 12 physical m ethods he used for driving a car and carrying for his father and whether they 13 required the use of any neck m ovem ent. The Court disagrees. It was reasonable for the 14 ALJ to assum e that the Plaintiff could not drive for approxim ately 15 m iles without any 15 neck rotations or to prepare his father’s oxygen without doing the sam e. See Ryan v. 16 Com m ’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (“’Where evidence is 17 susceptible to m ore than one rational interpretation,’ the ALJ ’s decision should be 18 upheld.”) (citation omitted); Robbins v. Soc. Sec. Adm in., 466 F.3d 880 , 882 (9th Cir. 19 20 0 6) (“If the evidence can support either affirm ing or reversing the ALJ ’s conclusion, 20 we m ay not substitute our judgm ent for that of the ALJ .”) There is no reason why this 21 case needs to be rem anded for the sole purpose of having Plaintiff state on the record 22 the exact m anner in which he holds his neck as he drives his car or cares for his father – 23 indeed, the ALJ personally observed the m anner in which Plaintiff m oved his neck as he 24 walked into the hearing without assistive device and while carrying a shopping bag. See -10 - 1 Verduzco v. Apfel, 188 F.3d 10 87, 10 90 (9th Cir. 1999) (finding it was proper for the ALJ 2 to rely on his observations of the plaintiff at the hearing); Perm inter v. Heckler, 765 F.2d 3 870 , 872 (9th Cir. 1985) (“inclusion of the ALJ ’s personal observations does not render 4 the decision im proper”); Reinertson v. Barnhart, 127 Fed. Appx. 285, 290 (9th Cir. 5 20 0 5) (holding that the ALJ properly considered the plaintiff’s dem eanor during the 6 hearing). 7 The ALJ also noted that Dr. Mouradian’s opinion was inconsistent with his own 8 m edical findings of Plaintiff, as well as those of another physician, Dr. Enriquez. (AR 9 27-28). Both of these reasons are proper grounds for discounting Dr. Mouradian’s 10 opinion. See Bray v. Com m ’r, 554 F.3d 1219, 1228 (9th Cir. 20 0 9) (noting that the “ALJ 11 need not accept the opinion of any physician, including a treating physician, if that 12 opinion is brief, conclusory, and inadequately supported by clinical findings.”); Connett 13 v. Barnhart, 340 F.3d 871, 875 (9th Cir. 20 0 3) (ALJ properly rejected treating 14 physician’s opinion where “treatment notes provide[d] no basis for the functional 15 restrictions [physician] opined should be im posed on [claim ant]”); Bayliss v. Barnhart, 16 427 F.3d 1211, 1216 (9th Cir. 20 0 5) (discrepancy between physician’s notes and other 17 recorded observations and opinions regarding claim ant’s capabilities “clear and 18 convincing reason” for rejecting physician’s opinion). 19 The Court concludes that the ALJ provided “specific and legitim ate” reasons 20 based on substantial evidence for rejecting the neck lim itation set forth in Plaintiff’s 21 treating physician’s m edical statem ent. Although Plaintiff offers alternative 22 interpretations of the m edical record, the Court is bound by the rationale set forth by the 23 ALJ in the written decision. Ryan, 528 F.3d at 1198; see Robbins, 466 F.3d at 882 (“If 24 -11- 1 the evidence can support either affirm ing or reversing the ALJ ’s conclusion, we m ay not 2 substitute our judgm ent for that of the ALJ .”). 3 IV. 4 CON CLU SION For the reasons stated above, the decision of the Social Security Com m issioner is 5 AFFIRMED, and the action is DISMISSED with prejudice. J udgment shall be entered 6 accordingly. 7 8 DATE: March 16, 20 20 9 10 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -12-
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