Esperanza Mendez Cisneros v. Nancy A. Berryhill, No. 2:2019cv04015 - Document 22 (C.D. Cal. 2020)
Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Jean P. Rosenbluth. For the reasons stated below, the Commissioner's decision is affirmed. (See document for details.) (es)
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Esperanza Mendez Cisneros 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 ESPERANZA MENDEZ C.,1 Plaintiff, 12 13 v. 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. ) Case No. CV 19-4015-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) ) ) ) ) ) 16 17 I. PROCEEDINGS 18 Plaintiff seeks review of the Commissioner’s final decision 19 denying her application for Social Security Disability Insurance 20 Benefits (“DIB”). 21 Joint Stipulation, filed February 4, 2020, which the Court has 22 taken under submission without oral argument. 23 stated below, the Commissioner’s decision is affirmed. The matter is before the Court on the parties’ For the reasons 24 25 26 27 28 1 Plaintiff’s name is partially redacted in line with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States. 1 Dockets.Justia.com 1 II. BACKGROUND Plaintiff was born in 1956.2 2 (Administrative Record (“AR”) 3 59.) She attended school in Mexico through age 16 (AR 482) and 4 has worked as an “electronic assembler,” “electronic inspector,” 5 and “electronic tester” (AR 68-69). 6 5, 2011, alleging that she had been unable to work since May 15, 7 2009, because of carpal tunnel syndrome, “anxiety disorder,” 8 “high blood pressure,” and “panic attacks.” 9 After her application was denied initially and on She applied for DIB on May (AR 143, 160, 164.) 10 reconsideration, she requested a hearing before an Administrative 11 Law Judge. 12 which Plaintiff, represented by counsel, testified, as did a 13 vocational expert. 14 2013, the ALJ found her not disabled. 15 requested review from the Appeals Council (AR 20), but it denied 16 her request (AR 1). 17 (AR 100.) A hearing was held on May 13, 2013, at (AR 56.) In a written decision dated May 24, (AR 29-38.) Plaintiff Plaintiff appealed (AR 523-25), and on April 26, 2016, the 18 Court reversed and remanded for further administrative 19 proceedings (AR 532-41). 20 another hearing, at which Plaintiff, who was again represented by 21 counsel, and a VE again testified. 22 Plaintiff’s attorney amended the alleged onset date “to coincide 23 with the date of the application filing of May 2011.”3 On December 4, 2017, the ALJ conducted (AR 475.) At that hearing, (AR 479.) 24 2 25 26 27 28 Plaintiff’s DIB application states that she was born in 1955 (AR 143), but she testified at a hearing that she was born in 1956 (AR 59). 3 Counsel most likely did so because, as the ALJ noted in her first decision, Plaintiff stopped working in 2009 because she (continued...) 2 1 In a written decision dated February 21, 2018, the ALJ again 2 found Plaintiff not disabled. 3 Appeals Council considered Plaintiff’s written objections to the 4 ALJ’s decision and found no reason to assume jurisdiction. 5 435.) 6 III. STANDARD OF REVIEW 7 (AR 468; see AR 457-68.) The (AR This action followed. Under 42 U.S.C. § 405(g), a district court may review the 8 Commissioner’s decision to deny benefits. The ALJ’s findings and 9 decision should be upheld if they are free of legal error and 10 supported by substantial evidence based on the record as a whole. 11 See Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra v. 12 Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 13 means such evidence as a reasonable person might accept as 14 adequate to support a conclusion. 15 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 16 is “more than a mere scintilla but less than a preponderance.” 17 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 18 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 19 meaning of ‘substantial’ in other contexts, the threshold for 20 such evidentiary sufficiency is not high.” 21 139 S. Ct. 1148, 1154 (2019). 22 evidence supports a finding, the reviewing court “must review the 23 administrative record as a whole, weighing both the evidence that 24 supports and the evidence that detracts from the Commissioner’s Substantial evidence Richardson, 402 U.S. at 401; It “[W]hatever the Biestek v. Berryhill, To determine whether substantial 25 26 27 28 3 (...continued) was laid off and thereafter collected two years of unemployment insurance, “represent[ing] that she was capable[] of performing work had it become available.” (AR 36.) 3 1 conclusion.” 2 1998). 3 or reversing,” the reviewing court “may not substitute its 4 judgment” for the Commissioner’s. 5 IV. 6 Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. “If the evidence can reasonably support either affirming Id. at 720-21. THE EVALUATION OF DISABILITY People are “disabled” for Social Security purposes if they 7 are unable to engage in any substantial gainful activity owing to 8 a physical or mental impairment that is expected to result in 9 death or has lasted, or is expected to last, for a continuous 10 period of at least 12 months. 42 U.S.C. § 423(d)(1)(A); Drouin 11 v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 12 A. The Five-Step Evaluation Process 13 The ALJ follows a five-step sequential evaluation process in 14 assessing whether a claimant is disabled. 20 C.F.R. 15 § 404.1520(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th 16 Cir. 1995) (as amended Apr. 9, 1996). 17 Commissioner must determine whether the claimant is currently 18 engaged in substantial gainful activity; if so, the claimant is 19 not disabled and the claim must be denied. In the first step, the § 404.1520(a)(4)(i). 20 If the claimant is not engaged in substantial gainful 21 activity, the second step requires the Commissioner to determine 22 whether the claimant has a “severe” impairment or combination of 23 impairments significantly limiting her ability to do basic work 24 activities; if not, a finding of not disabled is made and the 25 claim must be denied. 26 § 404.1520(a)(4)(ii) & (c). If the claimant has a “severe” impairment or combination of 27 impairments, the third step requires the Commissioner to 28 determine whether the impairment or combination of impairments 4 1 meets or equals an impairment in the Listing of Impairments 2 (“Listing”) set forth at 20 C.F.R. part 404, subpart P, appendix 3 1; if so, disability is conclusively presumed and benefits are 4 awarded. § 404.1520(a)(4)(iii) & (d). 5 If the claimant’s impairment or combination of impairments 6 does not meet or equal an impairment in the Listing, the fourth 7 step requires the Commissioner to determine whether the claimant 8 has sufficient residual functional capacity (“RFC”)4 to perform 9 her past work; if so, the claimant is not disabled and the claim 10 must be denied. § 404.1520(a)(4)(iv). The claimant has the 11 burden of proving she is unable to perform past relevant work. 12 Drouin, 966 F.2d at 1257. 13 prima facie case of disability is established. If the claimant meets that burden, a Id. 14 If that happens or if the claimant has no past relevant 15 work, the Commissioner then bears the burden of establishing that 16 the claimant is not disabled because she can perform other 17 substantial gainful work available in the national economy, the 18 fifth and final step of the sequential analysis. 19 §§ 404.1520(a)(4)(v), 404.1560(b). 20 B. The ALJ’s Application of the Five-Step Process 21 At step one, the ALJ found that Plaintiff had not engaged in 22 substantial gainful activity since May 5, 2011, the alleged onset 23 date. (AR 459.) Her date last insured (“DLI”) was December 31, 24 25 26 27 28 4 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 404.1545(a)(1); see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). The Commissioner assesses the claimant’s RFC between steps three and four. Laborin v. Berryhill, 867 F.3d 1151, 1153 (9th Cir. 2017) (citing § 416.920(a)(4)). 5 1 2014. (Id.) At step two, she determined that Plaintiff had the 2 severe impairments of “overuse syndrome[,] bilateral upper 3 extremities”; anemia; and “degenerative changes [of the] lumbar, 4 thoracic, and cervical spine.” 5 concluded that her impairments did not meet or equal a Listing. 6 (AR 464.) 7 perform “light work” with some additional limitations: she could 8 perform “frequent (not constant) gross and fine manipulation” and 9 could have “no concentrated exposure to extreme heat and cold” or She could perform her past relevant “vibrating tools.” 11 work as generally performed. 12 her not disabled. 13 V. 17 (Id.) (AR 467.) Accordingly, she found (Id.) DISCUSSION5 A. 15 16 At step three she At step four, she found that she had the RFC to 10 14 (Id.) Relevant Background 1. Medical opinions and evidence Plaintiff saw Dr. Donald F. Chen6 on April 12, 2010, complaining of “[p]ain in [her] hands [and] joints” and “things 18 19 5 20 21 22 23 24 25 26 27 28 In Lucia v. SEC, 138 S. Ct. 2044, 2055 (2018), the Supreme Court held that ALJs of the Securities and Exchange Commission are “Officers of the United States” and thus subject to the Appointments Clause. To the extent Lucia applies to Social Security ALJs, Plaintiff has forfeited the issue by failing to raise it during her administrative proceedings. (See AR 445-50, 479-89); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended) (plaintiff forfeits issues not raised before ALJ or Appeals Council); see also Kabani & Co. v. SEC, 733 F. App’x 918, 919 (9th Cir. 2018) (rejecting Lucia challenge because plaintiff did not raise it during administrative proceedings), cert. denied, 139 S. Ct. 2013 (2019). 6 Dr. Chen primarily practices family medicine. See Cal. Dep’t Consumer Aff. License Search, https://search.dca.ca.gov (search for “Donald” and “Chen”) (last visited Aug. 5, 2020). 6 1 fall[ing] off of [her] hands easily.” (AR 227.) 2 diagnosed “carpal tunnel syndrome” and “depression” and 3 prescribed Tylenol, Paxil,7 and an assistive brace. 4 During a May 13, 2010 office visit, she complained of “[p]ain in 5 [her] hands [and] feet, more [at] night”; depression; and an 6 “anxiety attack while driving.” 7 to rule out osteoporosis, diagnosed “depression/anxiety,” noted 8 her medications as atenolol8 and Paxil, prescribed Xanax9 and 9 Tylenol, and ordered a bone-density test. (AR 221.) Dr. Chen (Id.) Dr. Chen made a note (Id.) She saw Dr. 10 Chen again on June 25, 2010, complaining of “[p]ain in bones all 11 over body” and “[a]nxiety.” 12 “osteoporosis” and “carpal tunnel syndrome” and prescribed Xanax, 13 Os-Cal,10 and Fosamax.11 (AR 226.) (Id.) He diagnosed On August 27, 2010, she saw Dr. 14 15 16 17 7 Paxil is name-brand paroxetine, which is used to treat depression and generalized anxiety disorder, among other mental issues. See Paroxetine, MedlinePlus, http://www.nlm.nih.gov/ medlineplus/druginfo/meds/a698032.html (last updated Sept. 15, 2018). 18 8 19 20 Atenolol is used to treat high blood pressure. See Atenolol, WebMD, https://www.webmd.com/drugs/2/drug-11035/ atenolol-oral/details (last visited Aug. 5, 2020). 9 21 22 Xanax is name-brand alprazolam, a benzodiazepine used to treat anxiety and panic disorders. See Xanax, WebMD, https:// www.webmd.com/drugs/2/drug-9824/xanax-oral/details (last visited Aug. 5, 2020). 23 10 24 25 26 27 28 Os-Cal is name-brand calcium carbonate, which is used to prevent or treat low blood calcium levels. See Os-Cal Tablet, WebMD, https://www.webmd.com/drugs/2/drug-9388/os-cal-oral/ details (last visited Aug. 5, 2020). 11 Fosamax is name-brand alendronate, which is used to prevent and treat certain types of bone loss and osteoporosis. See Fosamax Tablet, WebMD, https://www.webmd.com/drugs/2/ (continued...) 7 1 Chen for back pain that ran “to her [right] leg,” “pressure on 2 her [right] eye,” depression, and “pain on [sic] her hands.” 3 220.) 4 prescribed Paxil, Xanax, Motrin, Os-Cal, and Fosamax. 5 (AR He diagnosed “depression/anxiety” and osteoporosis and (Id.) On May 3, 2011, two days before the alleged onset date (AR 6 459, 479), Plaintiff complained of “pain in forearms,” 7 “depression,” and “anxiety when travel[ing] farther than 10 miles 8 away from home” (AR 219). 9 syndrome” and “depression” and prescribed ibuprofen, Paxil, and 10 11 Xanax. Dr. Chen again noted “carpal tunnel (Id.) Plaintiff saw Richard D. Scheinberg, an orthopedic surgeon, 12 for a comprehensive orthopedic evaluation on June 7, 2011. (AR 13 295-97.) 14 the right and left wrists over the median nerve.” 15 Jamar dynamometer grip-strength test results were 25, 30, and 30 16 in the right (dominant) hand and 15, 15, and 15 in the left 17 hand.13 The examination revealed a “positive Tinel sign12 in (Id.) (AR 296.) Dr. Scheinberg diagnosed Plaintiff with 18 19 20 21 22 23 24 25 26 27 28 11 (...continued) drug-1273-7174/fosamax-oral/alendronate-oral/details (last visited Aug. 5, 2020). 12 Tinel’s sign is positive when tapping the front of the wrist produces tingling of the hand. See Carpal Tunnel Syndrome, Medicine Net, https://www.medicinenet.com/carpal_tunnel_syndrome/ article.htm (last visited Aug. 5, 2020). 13 The record does not indicate whether the measurements were in pounds or kilograms. A “normal” grip strength for a woman between 55 and 59 years old is between 17.7 and 31.5 kilograms, or between 39.02 and 69.45 pounds. See Grip Strength Ratings for Females, Topendsports, https://www.topendsports.com/ testing/norms/handgrip.htm (last visited Aug. 5, 2020); Convert Kilograms to Pounds, Calculateme, https://www.calculateme.com/ (continued...) 8 1 “[o]veruse, both upper extremities, rule out carpal tunnel 2 syndrome.” 3 her primary treating physician. 4 was “TTD,” or temporarily totally disabled, “from her usual and 5 customary occupation and should avoid any gripping, grasping, or 6 prolonged fine manipulative work such as data entry or technical 7 work with her hands.” 8 with bilateral wrist splints and medications for inflammation. 9 (Id.) (Id.) He noted that he had agreed to take over as (Id.) (AR 297.) He opined that she He noted that he would provide her 10 Internist Ursula Taylor performed an internal-medicine 11 evaluation of Plaintiff on July 14, 2011, at Defendant’s request. 12 (AR 284-88.) 13 reported hypertension, back pain, and joint pain. 14 examination, she had “excellent range of motion of the lumbar 15 spine,” a negative straight-leg-raising test, “no obvious joint 16 findings,” no “obvious wrist, hand, or elbow findings,” “[n]o 17 obvious significant muscle atrophy,” and “good motor strength and 18 good grip strength.” 19 was 40 pounds in the right hand and 35 pounds in the left hand. 20 (AR 285.) 21 temperature” but assessed “no restrictions” on lifting and 22 carrying, hand use, or fine fingering manipulation, among other 23 things. 24 25 Plaintiff drove herself to the evaluation and (AR 287.) (AR 284.) Specifically, her grip strength Dr. Taylor opined that she “should avoid extremes in (AR 288.) Plaintiff saw Dr. Scheinberg again on July 21, 2011, for “9/10 bilateral wrist/hand pain, left, greater than right, 26 27 13 28 On (...continued) weight/kilograms/to-pounds/ (last visited Aug. 5, 2020). 9 1 involving [an] increased area of the arms . . . with more 2 weakness.” 3 because “the pain is very severe.” 4 Tinel’s sign at her elbow, slightly reduced grip strength in her 5 right hand, and “[o]therwise unchanged” findings. 6 Scheinberg noted that his findings were “disproportionate” and 7 “must be objectified.” 8 Ultram15 and found her TTD for four weeks. 9 1, 2011, Plaintiff complained of bilateral wrist and hand pain (AR 293.) She inquired about getting “medications” (AR 294.) (Id.) He noted a positive (Id.) Dr. He prescribed Anaprox14 and (Id.) 10 but stated that her medications helped. 11 Scheinberg diagnosed “[u]pper extremity neurologic findings, 12 objectify” and “[o]veruse bilateral upper extremities” and noted 13 that he would proceed with an EMG, or electromyography, and an 14 NCV, or nerve conduction velocity test, “of the bilateral upper 15 extremities.” 16 Both the EMG and the NCV were normal. 17 (Id.) (AR 353.) On September Dr. He found her TTD for six weeks. (Id.) (AR 355, 358.) Plaintiff reported to Dr. Scheinberg on October 13, 2011, 18 that she continued to have “9/10 bilateral wrist/hand pain, ‘now 19 involving much more area of the arms.’” 20 a “stronger medication for when the pain is very severe.” (AR 350.) She asked for (Id.) 21 22 23 24 25 26 27 28 14 Anaprox is name-brand naproxen sodium, a nonsteroidal anti-inflammatory drug used to treat pain and swelling. See Anaprox, WebMD, https://www.webmd.com/drugs/2/drug-10989/ anaprox-oral/details (last visited Aug. 5, 2020). 15 Ultram is name-brand tramadol, an opioid pain reliever. See Ultram, WebMD, https://www.webmd.com/drugs/2/drug-11276/ ultram-oral/details (last visited Aug. 5, 2020). 10 She exhibited “[p]ositive Tinel’s/Phalen’s16 1 2 bilaterally” and had “[d]iminished sensation [in] median nerve 3 distribution.” 4 EMG and NCV results and recommended that Plaintiff undergo 5 physical therapy of the “bilateral upper extremities” “[three] 6 times per week for [four] weeks” for “strengthening and work 7 hardening.” 8 facilitates [a] heightened level of function with [an] increase 9 in tolerance to exercises” and daily activities. (Id.) (AR 351.) Dr. Scheinberg noted the “unremarkable” He noted that her “[m]edication regime (Id.) He 10 counseled her on “addiction” and “opiate induced hyperalgia.” 11 (Id.) 12 Ultracet.18 He prescribed hydrocodone17 to use “sparingly” and (Id.) He found her TTD for four weeks. (AR 352.) 13 On November 10, 2011, Dr. Scheinberg noted that Plaintiff’s 14 “[t]opical analgesic decrease[d] neuropathic pain [in the] upper 15 extremities [by five] points on a scale of 10.” 16 found “Tinel’s/Phalen’s positive bilaterally” and “[d]iminished 17 sensation in median nerve distribution”; Plaintiff “remain[ed] 18 deconditioned.” (Id.) (AR 347.) He He again recommended physical therapy for 19 20 21 22 16 Phalen’s sign is positive when bending the wrist downward produces tingling of the hand. See Carpal Tunnel Syndrome, Medicine Net, https://www.medicinenet.com/carpal_tunnel_syndrome/ article.htm (last visited Aug. 5, 2020). Positive Tinel’s and Phalen’s signs are markers of carpal tunnel syndrome. See id. 23 17 24 25 26 27 28 Hydrocodone is an opioid used to relieve moderate to severe pain. See Hydrocodone-Acetaminophen, WebMD, https:// www.webmd.com/drugs/2/drug-251/hydrocodone-acetaminophen-oral/ details (last visited Aug. 5, 2020). 18 Ultracet is an opioid used to treat moderate to moderately severe pain and contains tramadol and acetaminophen. See Ultracet, WebMD, https://www.webmd.com/drugs/2/drug-21825/ ultracet-oral/details (last visited Aug. 5, 2020). 11 1 the “bilateral wrists/hands” “[two] times per week for [four] 2 weeks.” 3 therapy . . . including stretching, strengthening, [and] work 4 hardening.” 5 349.) 6 “[p]ositive Tinel’s/Phalen’s” and that a Jamar test of her grip 7 strength was “markedly limited” in the “bilateral wrists/hands,” 8 with “no greater than 10 pounds on [three] attempts.” 9 But Plaintiff’s “[c]urrent medication . . . decrease[d] pain and (Id.) He also encouraged an “[e]mphasis on active (Id.) He found her TTD for four more weeks. (AR He noted on December 8, 2011, that Plaintiff exhibited 10 facilitate[d] increased activity.” 11 that a “[t]opical analgesic decrease[d] localized pain [in her] 12 bilateral wrists/hands as well as neuropathic pain.” 13 had “increased tolerance to a variety of activity.” 14 extended his finding that she was TTD by four weeks. 15 This was the last such extension in the record. 16 (Id.) (AR 374.) Plaintiff reported (Id.) (Id.) “continue[d] to have . . . pain in hands.” 18 prescribed Vicodin.19 19 or receive treatment for her hands for the next year. 21 He (AR 376.) On May 2, 2012, Plaintiff reported to Dr. Chen that she 17 20 She (Id.) (AR 380.) He She apparently did not complain of On June 4, 2013, Plaintiff saw Dr. Peter Kamal Soliman20 for “arm pain,” “depression/anxiety,” and “neck pain.” (AR 642.) 22 23 19 24 25 26 27 28 Vicodin is an opioid pain reliever used to relieve moderate to severe pain. See Vicodin, WebMD, https:// www.webmd.com/drugs/2/drug-3459/vicodin-oral/details (last visited Aug. 5, 2020). 20 Dr. Soliman primarily practices family medicine. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “Peter” and “Soliman”) (last visited Aug. 5, 2020). 12 He 1 opined that her pain was “[l]ikely fibromyaglia [sic] due to 2 depression” and adjusted her medication. 3 again complained of “musculoskeletal pain” on July 3, 2013. 4 651.) 5 left neck” and advised her to take ibuprofen. 6 23, 2013, she saw Dr. Soliman for “musculoskeletal pain” and to 7 “follow up on depression and . . . anxiety.” 8 “tenderness on [the] back of [the] neck and arms” and otherwise 9 normal physical-examination findings. 10 11 (AR 644-45.) Plaintiff (AR Dr. Soliman found “tenderness . . . on the left side and (AR 652.) (AR 654.) (AR 655.) On July He noted He increased her Zoloft21 prescription and prescribed tramadol. (Id.) On August 27, 2013, Plaintiff saw Dr. Soliman for a follow- 12 up visit for her anxiety and was “doing better.” 13 November 13, 2013, she reported to Dr. Soliman that her pain was 14 “0/10.” 15 (AR 664.) On (AR 1003.) Plaintiff saw Shamsuddin Hooda, a certified physician’s 16 assistant, on February 3, 2014, for “anxiety, hypertension, 17 hyperlipidemia (follow up) and anemia.” 18 that her anxiety and depression were “well controlled”22 and that 19 she was “doing well.” (Id.) (AR 996.) She reported She denied joint pain. (Id.) The 20 21 22 23 24 25 26 27 28 21 Zoloft treats depression, panic attacks, and anxiety disorder. See Zoloft, WebMD, https://www.webmd.com/drugs/2/ drug-35-8095/zoloft-oral/sertraline-oral/details (last visited Aug. 5, 2020). 22 By contrast, she had “severe” mental-health scores during a June 17, 2011 psychological evaluation by William W. Kaiser, a psychologist and qualified medical examiner. (See AR 255-78.) Dr. Kaiser noted, however, that those scores “indicated a technically invalid [personality] profile” and “could reflect . . . a lack of cooperation[] and/or an exaggeration of symptoms as a cry for help and/or as a purposeful manipulation for secondary gain (malingering).” (AR 263.) 13 1 physical examination was normal, and Hooda adjusted her 2 medication and ordered blood work. 3 she denied “[b]ack pain, joint pain, joint swelling, muscle 4 weakness and neck pain.” 5 an office visit on March 24, 2014. 6 she complained to Dr. Soliman of “musculoskeletal pain” and 7 “nocturnal awakening and weakness.” 8 pain level as “6/10.” 9 therapy, instructed her to continue taking ibuprofen, and (AR 976.) (AR 967.) (AR 998.) On March 10, 2014, She had “no complaints” at (AR 970.) On May 6, 2014, (AR 966.) She described her He referred her to physical 10 prescribed Flexeril.23 11 on August 11, 2014. 12 weakness (AR 959), and the musculoskeletal examination was normal 13 (AR 960). 14 (AR 967-68.) (AR 957.) She complained of dizziness But she denied neck stiffness or On September 17, 2014, she saw Dr. Soliman for “[b]ilateral 15 [h]and [p]ain” and reported that she was going “to Mexico to a 16 chiropractor” because it was “cheap there.” 17 requested tramadol. 18 tenderness” and referred her to a chiropractor. (Id.) (AR 952.) She Dr. Soliman noted “bilateral hand (AR 955.) 19 On June 4, 2015, over five months after the date last 20 insured (AR 459), electrodiagnostic studies revealed left “mild” 21 carpal tunnel syndrome and right “moderate” carpal tunnel 22 syndrome, with no evidence of cubital tunnel syndrome (AR 1224). 23 She had normal muscle strength and full range of motion in both 24 hands. 25 that she was “doing better with respect to the carpal tunnel (Id.) Plaintiff initially declined surgery, indicating 26 27 28 23 Flexeril is a muscle relaxant used to treat muscle spasms. Flexeril Tablet, WebMD, https://www.webmd.com/drugs/2/ drug-11372/flexeril-oral/details (last visited Aug. 5, 2020). 14 1 symptoms.” 2 carpal-tunnel-release surgery nearly two years after the DLI, on 3 August 18, 2016. 4 5 (Id.) 2. Ultimately, however, she underwent right (AR 1642-43.) The ALJ’s decision The ALJ credited the opinions of consultative examiner Dr. 6 Taylor and state-agency reviewing physicians H.M. Estrin24 and 7 George N. Lockie25 because of “the supportability of the medical 8 signs and laboratory findings,” “the consistency with the record 9 showing only conservative treatment,” and evidence that Plaintiff 10 “reported that her medications were effective in alleviating her 11 pain.” 12 (AR 466.) The ALJ discounted Dr. Scheinberg’s opinions because the TTD 13 assessment was not determinative of whether Plaintiff was 14 disabled for Social Security purposes; his finding of TTD was 15 premised on her not being able to perform her actual job, whereas 16 disability under Social Security requires being unable to engage 17 in any substantial gainful activity at all; his opinions 18 reflected only temporary limitations and did not indicate whether 19 the restrictions were expected to last at least 12 months, as 20 required for Social Security disability; most of his opinions 21 were rendered before the electrodiagnostic studies; and his 22 23 24 25 26 27 28 24 Dr. Estrin primarily practices internal medicine. See Cal. Dep’t Consumer Aff. License Search, https:// search.dca.ca.gov (search for “H” and “Estrin”) (last visited Aug. 5, 2020). 25 Dr. Lockie primarily practices pediatrics. (See AR 30203 (showing specialty code of 32)); Soc. Sec. Admin., Program Operations Manual System (POMS) DI 24501.004 (May 5, 2015), https://secure.ssa.gov/apps10/poms.nsf/lnx/0424501004 (specialty code 32 indicates pediatrics). 15 1 recommendation that Plaintiff maximize exercise of her hands was 2 inconsistent with the inability to perform any type of activity 3 with them. (AR 466-67.) 4 B. Analysis 5 Plaintiff contends that this Court “should reverse” the 6 Commissioner’s decision because the ALJ improperly weighed the 7 opinion evidence. 8 that the ALJ improperly rejected the opinions of Dr. Scheinberg, 9 her treating physician for six months (id. at 10), who opined (J. Stip. at 11.) Specifically, she argues 10 that Plaintiff was temporarily totally disabled “from her usual 11 and customary occupation and should avoid any gripping, grasping, 12 or prolonged fine manipulative work such as data entry or 13 technical work with her hands” (AR 297). 14 discussed below, remand is not warranted. 15 16 1. For the reasons Applicable law Three types of physicians may offer opinions in Social 17 Security cases: those who directly treated the plaintiff, those 18 who examined but did not treat the plaintiff, and those who did 19 neither. 20 opinion is generally entitled to more weight than an examining 21 physician’s, and an examining physician’s opinion is generally 22 entitled to more weight than a nonexamining physician’s. 23 see § 404.1527(c)(1)-(2).26 See Lester, 81 F.3d at 830. A treating physician’s Id.; This is so because treating 24 25 26 27 28 26 For claims filed on or after March 27, 2017, the rules in § 404.1520c (not § 404.1527) apply. See § 404.1520c (evaluating opinion evidence for claims filed on or after Mar. 27, 2017). The new regulations provide that the Social Security Administration “will not defer or give any specific evidentiary (continued...) 16 1 physicians are employed to cure and have a greater opportunity to 2 know and observe the claimant. 3 1285 (9th Cir. 1996). 4 nonexamining physician can amount to substantial evidence, so 5 long as other evidence in the record supports those findings.” 6 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 7 (as amended). 8 9 Smolen v. Chater, 80 F.3d 1273, But even “the findings of a nontreating, The ALJ may discount a physician’s opinion regardless of whether it is contradicted. Magallanes v. Bowen, 881 F.2d 747, 10 751 (9th Cir. 1989); see also Carmickle v. Comm’r, Soc. Sec. 11 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008). 12 opinion is not contradicted by other medical-opinion evidence, 13 however, it may be rejected only for a “clear and convincing” 14 reason. 15 Carmickle, 533 F.3d at 1164 (citing Lester, 81 F.3d at 830-31). 16 When it is contradicted, the ALJ need provide only a “specific 17 and legitimate” reason for discounting it. 18 at 1164 (citing Lester, 81 F.3d at 830-31). 19 doctor’s opinion, moreover, depends on whether it is consistent 20 with the record and accompanied by adequate explanation, among 21 other things. When a doctor’s Magallanes, 881 F.2d at 751 (citations omitted); Carmickle, 533 F.3d The weight given a See § 404.1527(c); see also Orn v. Astrue, 495 22 23 26 24 25 26 27 28 (...continued) weight, including controlling weight, to any medical opinion(s) or prior administrative medical finding(s), including those from your medical sources.” § 404.1520c(a). Thus, the new regulations eliminate the term “treating source” as well as what is customarily known as the treating-source or treating-physician rule. See § 404.1520c. Plaintiff’s claim was filed before March 27, 2017, and the Court therefore analyzes it under the treatingsource rule in § 404.1527. 17 1 F.3d 625, 631 (9th Cir. 2007) (factors in assessing physician’s 2 opinion include length of treatment relationship, frequency of 3 examination, and nature and extent of treatment relationship). 4 5 6 2. The ALJ permissibly discounted Dr. Scheinberg’s opinions Because Dr. Scheinberg’s opinions were inconsistent with the 7 opinions of the consulting examiner and state-agency reviewing 8 doctors, the ALJ needed to provide only a “specific and 9 legitimate reason” for discounting them, Carmickle, 533 F.3d at 10 11 1164 (citation omitted), and she did so. To start, the ALJ accurately noted that a finding of 12 disability for purposes of workers’ compensation is not 13 determinative of whether Plaintiff was disabled for Social 14 Security purposes. 15 498 F. App’x 696, 698 (9th Cir. 2012) (finding that ALJ did not 16 err in failing to consider California workers’-compensation 17 ratings assessed by doctor because “[t]he California Guidelines 18 for Work Capacity are not conclusive in a Social Security case” 19 and “[t]he ALJ considered [the doctor’s] entire report, not just 20 the portion containing the workers’ compensation ratings”). 21 Although discounting medical opinions solely because they were 22 given in the context of a workers’-compensation claim is error, 23 see Sinohui v. Astrue, No. EDCV 10-908 RNB., 2011 WL 1042333, at 24 *2 (C.D. Cal. Mar. 18, 2011); Booth v. Barnhart, 181 F. Supp 2d 25 1099, 1105 (C.D. Cal. 2002), this was not the sole reason the ALJ (AR 466); see Allen v. Comm’r of Soc. Sec., 26 27 28 18 1 gave for discounting Dr. Scheinberg’s opinions.27 2 The ALJ properly discounted them because they did not meet 3 the Social Security disability duration requirement. 4 [the] impairment is expected to result in death, it must have 5 lasted or must be expected to last for a continuous period of at 6 least 12 months.” 7 on June 7, 2011, that Plaintiff was TTD. 8 that finding several times by four or six weeks (AR 349, 352, 9 353), with the final extension of four weeks on December 8, 2011 § 404.1509. “Unless Here, Dr. Scheinberg first opined (AR 297.) He extended Even combining all of Dr. Scheinberg’s TTD findings, 10 (AR 376). 11 they do not meet the duration requirement. 12 opined that Plaintiff was ever TTD. 13 legitimate reason to discount the opinions. 14 No. 1:09-cv-2243 SKO., 2011 WL 923571, at *13 (E.D. Cal. Mar. 14, 15 2011) (finding that ALJ did not err in discounting medical 16 opinion for failure to meet duration requirement because there 17 were “gaps during the many extensions of time which Plaintiff was 18 expected to be disabled”). 19 And no other doctor This is a specific, See Bales v. Astrue, Plaintiff argues that the ALJ should have evaluated whether 20 she was entitled to a closed period of disability. (J. Stip. at 21 8.) 22 this issue by not raising it during her administrative As Defendant points out (id. at 16 n.2), she has forfeited 23 24 25 26 27 28 27 Plaintiff complains that the ALJ erroneously rejected Dr. Scheinberg’s opinions for the related reason that TTD “is an opinion regarding total incapacity or inability to earn any income during recovery from injury,” not just as to the person’s current job, as the ALJ seemed to believe. (J. Stip. at 19; see AR 466-67.) But Dr. Scheinberg himself limited his TTD finding only to work in Plaintiff’s “usual and customary occupation.” (AR 297.) The ALJ did not err. 19 1 proceedings. See Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 2 1999) (as amended) (holding that claimants who are represented by 3 counsel must raise all issues and evidence during their 4 administrative proceedings to preserve them for appeal). 5 Moreover, Plaintiff bears the burden of showing entitlement to 6 any period of disability, and she never argued for a closed 7 period. 8 590 (9th Cir. 1998) (holding that ALJ’s duty to assist in 9 determining disability onset date when record is ambiguous does See Armstrong v. Comm’r Soc. Sec. Admin., 160 F.3d 587, 10 not relieve claimants of ultimate burden to prove disability 11 before DLI). 12 represented by counsel at the hearing and before the Appeals 13 Council. 14 Dr. Scheinberg’s opinions regarding TTD were of limited total 15 duration.28 16 Like the plaintiff in Meanel, Plaintiff was (AR 435, 475.) Presumably her attorney was aware that The issue is forfeited. Furthermore, the ALJ properly discounted Dr. Scheinberg’s 17 opinions because most of them were rendered before and were 18 inconsistent with the September 13, 2011 electrodiagnostic 19 studies. 20 any physician, including a treating physician, if that opinion is (AR 354-59.) An ALJ “need not accept the opinion of 21 22 23 24 25 26 27 28 28 Sims v. Apfel, 530 U.S. 103, 107 (2000), cited by Plaintiff (J. Stip. at 21), does not help her because it held only that an issue is not forfeited if it wasn’t presented to the Appeals Council, noting that “[w]hether a claimant must exhaust issues before the ALJ is not before us.” Here Plaintiff did neither. See Shaibi v. Berryhill, 883 F.3d 1102, 1109 (9th Cir. 2017) (as amended Feb. 28, 2018) (upholding and applying Meanel after Sims); see also Phillips v. Colvin, 593 F. App’x 683, 684 (9th Cir. 2015) (“This issue was waived by [claimant]’s failure to raise it at the administrative level when he was represented by counsel, and [he] has not demonstrated manifest injustice excusing the failure.”). 20 1 brief, conclusory, and inadequately supported by clinical 2 findings.” 3 (citation omitted); see Batson v. Comm’r of Soc. Sec. Admin., 359 4 F.3d 1190, 1195 (9th Cir. 2004); see also Ford v. Saul, 950 F.3d 5 1141, 1155 (9th Cir. 2020) (“An ALJ is not required to take 6 medical opinions at face value, but may take into account the 7 quality of the explanation when determining how much weight to 8 give a medical opinion.”). 9 Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) Dr. Scheinberg’s initial opinions that Plaintiff “should 10 avoid any gripping, grasping, or prolonged fine manipulative 11 work” (AR 297) were rendered without the benefit of the September 12 13, 2011 EMG and NCV, which were normal (AR 354-59). 13 Specifically, the EMG report stated that there were “no findings 14 to suggest the presence of an active or chronic denervation of 15 the bilateral cervical myotomes” or “a motor radiculopathy in any 16 of the nerve roots.” 17 were “no electrodiagnostic findings to suggest the presence of a 18 mononeuropathy, peripheral neuropathy, or briachial plexopathy.” 19 (AR 358.) 20 (AR 355.) The NCV report noted that there As the ALJ noted (AR 467), following those normal clinical 21 findings, Dr. Scheinberg recommended that Plaintiff “maximize 22 activity/exercise with [the] goal of hastened improvement [of 23 the] hand[s].” 24 the ALJ properly found that “[t]he direction to maximize activity 25 [was] inconsistent with an opinion that the [Plaintiff was] 26 unable to perform any type of activity with her hands.” 27 467.) 28 was unable to perform “any” activity with her hands and that the (AR 348.) Although he continued to find her TTD, (AR Plaintiff argues that Dr. Scheinberg never stated that she 21 1 direction to maximize activity was not inconsistent with his 2 prior opinions because he restricted only “prolonged” 3 manipulative work and did not “necessarily forbid” gripping and 4 grasping. 5 that Dr. Scheinberg’s opinions restricted only “prolonged” fine 6 manipulative work, the recommendation to avoid gripping and 7 grasping was not so limited. 8 counsel interpreted it at the first hearing as “no gripping or 9 grasping.” (J. Stip. at 9-10.) (AR 70.) Although Plaintiff is correct (AR 297.) Indeed, Plaintiff’s The ALJ properly found, therefore, that the 10 direction to maximize activity was inconsistent with that 11 restriction and rejected it. 12 The ALJ also properly credited the contrary opinions of Drs. 13 Estrin, Lockie, and Taylor. Dr. Taylor performed an independent 14 evaluation of Plaintiff on July 14, 2011. 15 examined her and found “no obvious joint findings,” no “obvious 16 wrist, hand, or elbow findings,” “[n]o obvious significant muscle 17 atrophy,” and “good motor strength and good grip strength.” 18 287.) 19 Jamar dynamometer,” were 40 pounds in the right hand and 35 20 pounds in the left, essentially normal.29 21 of motion of all extremities appear[ed] normal” (AR 286), and the 22 “upper and lower extremity movements were noted to be normal (AR 284-88.) She (AR Specifically, the grip-strength results, “measured by (AR 285.) “The range 23 24 25 26 27 29 As noted, a “normal” grip strength for a woman between 55 and 59 years old is between 17.7 and 31.5 kilograms, or between 39.02 and 69.45 pounds. See Grip Strength Ratings for Females, Topendsports, https://www.topendsports.com/testing/norms/ handgrip.htm (last visited Aug. 5, 2020); Convert Kilograms to Pounds, Calculateme, https://www.calculateme.com/weight/ kilograms/to-pounds/ (last visited Aug. 5, 2020). 28 22 1 . . . [with] no evidence of incoordination” (AR 287). 2 assessed “no restrictions” on lifting and carrying, hand use, or 3 fine fingering manipulation. 4 Dr. Taylor (AR 288.) Drs. Estrin and Lockie reviewed Plaintiff’s medical records, 5 including Dr. Taylor’s records. 6 found her not disabled and opined that she was capable of 7 performing her past relevant work as generally performed in the 8 national economy. 9 Dr. Taylor’s assessment but also opined that “handling” and 10 (AR 79, 302, 305.) (AR 82, 84.) Dr. Estrin Dr. Lockie generally agreed with “fingering” should be “limited to frequent.” (AR 300.) 11 Plaintiff, citing Orn, 495 F.3d at 625, argues that the 12 opinions of these nontreating physicians do not rise to the level 13 of substantial evidence because they are not based on 14 “independent clinical findings.” 15 correctly notes that “independent clinical findings” are either 16 “diagnoses that differ from those offered by another physician 17 and that are supported by substantial evidence . . . or findings 18 based on objective medical tests that the treating physician has 19 not herself considered.” 20 the nontreating physicians here relied on diagnoses that differed 21 from Dr. Scheinberg’s, Dr. Taylor relied on her own objective 22 medical tests, including the grip-strength test. 23 Estrin (AR 79) and Lockie (AR 302, 305) also relied on Dr. 24 Taylor’s objective medical tests. 25 constituted substantial evidence contradicting the opinions of 26 Dr. Scheinberg. (J. Stip. at 17.) Orn, 495 F.3d at 632. Plaintiff Although none of (AR 285.) Drs. Those opinions, therefore, See Orn, 495 F.3d at 632. 27 Because the ALJ properly credited those opinions (AR 466), 28 she was entitled to discount Dr. Scheinberg’s inconsistent ones 23 1 accordingly. 2 VI. 3 Remand is not warranted. CONCLUSION Consistent with the foregoing and under sentence four of 42 4 U.S.C. § 405(g),30 IT IS ORDERED that judgment be entered 5 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 6 request for remand, and DISMISSING this action with prejudice. 7 8 DATED: August 6,2020 JEAN ROSENBLUTH U.S. MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 30 That sentence provides: “The [district] court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.”
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