Silvia B. Fernandez v. Kilolo Kijakazi, No. 2:2020cv01065 - Document 23 (C.D. Cal. 2021)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. [See document for further details.] (es)
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Silvia B. Fernandez v. Kilolo Kijakazi Doc. 23 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SILVIA F., 12 13 14 Plaintiff, v. KILOLO KIJAZAKI, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. 2:20-cv-01065-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On February 1, 2020, plaintiff Silvia F. filed a complaint against defendant, 22 the Commissioner of the Social Security Administration (“Commissioner”), 23 seeking a review of a denial of a period of disability and disability insurance 24 benefits (“DIB”). The parties have fully briefed the matter in dispute, and the court 25 deems the matter suitable for adjudication without oral argument. 26 Plaintiff presents one disputed issue for decision, whether the residual 27 functional capacity (“RFC”) determination was supported by substantial evidence. 28 1 Dockets.Justia.com 1 Plaintiff’s Memorandum in Support of Complaint (“P. Mem.”) at 3; see 2 Memorandum in Support of Defendant’s Answer (“D. Mem.”) at 2-3. 3 Having carefully studied the parties’ memoranda, the Administrative Record 4 (“AR”), and the decision of the administrative law judge (“ALJ”), the court 5 concludes that, as detailed herein, substantial evidence supports the ALJ’s RFC 6 assessment. Consequently, the court affirms the decision of the Commissioner 7 denying benefits. 8 II. 9 FACTUAL AND PROCEDURAL BACKGROUND 10 Plaintiff was 44 years old on April 16, 2015, her alleged disability onset 11 date, and has at least a fourth grade education. AR at 119, 156. Plaintiff has past 12 relevant work as a quality control parts inspector. Id. at 149. 13 On April 25, 2016, plaintiff filed an application for a period of disability and 14 DIB. Id. at 157. The application was denied initially and upon reconsideration. 15 Id. 16 On June 20, 2017, plaintiff filed a second application for a period of 17 disability and DIB due to anxiety, depression, and pain in the shoulders, elbows, 18 hand, head, and neck. Id. at 156. The application was denied initially and upon 19 reconsideration, after which plaintiff filed a request for a hearing. Id. at 182-86, 20 192-97. 21 On November 15, 2018, plaintiff, represented by counsel, appeared and 22 testified at a hearing before the ALJ. Id. at 110-55. The ALJ also heard testimony 23 from Sharon Spaventa, a vocational expert, and Raul Fernandez Arroyo, plaintiff’s 24 husband. Id. at 147-54. On January 2, 2019, the ALJ denied plaintiff’s claim for 25 benefits. Id. at 85-93. 26 Applying the well-known five-step sequential evaluation process, the ALJ 27 found, at step one, that plaintiff had not engaged in substantial gainful activity 28 2 1 since April 16, 2015, the alleged onset date. Id. at 87. 2 At step two, the ALJ found plaintiff suffered from the severe impairments of 3 disorders of the cervical and lumbar spine. Id. at 88. 4 At step three, the ALJ found plaintiff’s impairments, whether individually or 5 in combination, did not meet or medically equal one of the listed impairments set 6 forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. The ALJ then assessed plaintiff’s RFC,1 and determined plaintiff had the 7 8 RFC to perform light work as defined in 20 C.F.R. § 404.1567(b),2 with the 9 limitations that plaintiff could: frequently climb ramps and stairs, balance, stoop, 10 kneel, and crouch; occasionally climb ladders, ropes, and scaffolds; occasionally 11 crawl; occasionally reach overhead bilaterally; and frequently handle and finger 12 bilaterally. Id. at 89. 13 The ALJ found, at step four, that plaintiff was capable of performing her 14 past relevant work as a quality control parts inspector as the job is generally 15 performed. Id. at 92. Consequently, the ALJ concluded plaintiff did not suffer 16 from a disability as defined by the Social Security Act. Id. at 93. 17 Plaintiff filed a timely request for review of the ALJ’s decision, which the 18 Appeals Council denied. Id. at 7-9. The ALJ’s decision stands as the final 19 decision of the Commissioner. 20 21 1 Residual functional capacity is what a claimant can do despite existing exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 115523 56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, 24 the ALJ must proceed to an intermediate step in which the ALJ assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 F.3d 1149, 1151 25 n.2 (9th Cir. 2007). 26 2 “Light work involves lifting no more than 20 pounds at a time with frequent 27 lifting or carrying of objects weighing up to 10 pounds,” and “requires a good deal 28 of walking or standing.” 20 C.F.R. § 404.1567(b). 22 3 1 III. 2 STANDARD OF REVIEW 3 This court is empowered to review decisions by the Commissioner to deny 4 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 5 Administration must be upheld if they are free of legal error and supported by 6 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 7 (as amended). But if the court determines the ALJ’s findings are based on legal 8 error or are not supported by substantial evidence in the record, the court may 9 reject the findings and set aside the decision to deny benefits. Aukland v. 10 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 11 1144, 1147 (9th Cir. 2001). 12 “Substantial evidence is more than a mere scintilla, but less than a 13 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 14 “relevant evidence which a reasonable person might accept as adequate to support 15 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 16 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 17 finding, the reviewing court must review the administrative record as a whole, 18 “weighing both the evidence that supports and the evidence that detracts from the 19 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 20 affirmed simply by isolating a specific quantum of supporting evidence.’” 21 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 22 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 23 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 24 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 25 1992)). 26 27 28 4 1 IV. 2 DISCUSSION 3 Plaintiff contends the ALJ’s RFC determination was not supported by 4 substantial evidence and the ALJ should have assessed more restrictive limitations, 5 specifically, limiting plaintiff to intermittent bilateral repetitive tasks and less 6 standing, walking, and sitting. P. Mem. at 3. Plaintiff argues the ALJ erred by 7 improperly giving greater weight to the opinions of the state agency physicians and 8 failing to provide clear and convincing reasons for discounting the opinions of the 9 treating and examining physicians. Id. at 3-5. 10 RFC is what one can “still do despite [his or her] limitations.” 20 C.F.R. 11 § 404.1545(a)(1). The ALJ reaches an RFC determination by reviewing and 12 considering all of the relevant evidence, including non-severe impairments. 20 13 C.F.R. § 404.1545(a)(1)-(2); see Social Security Ruling (“SSR”) 96-8p (“In 14 assessing RFC, the adjudicator must consider limitations and restrictions imposed 15 by all of an individual’s impairments, even those that are not ‘severe.’”).3 16 Among the evidence an ALJ relies on in an RFC assessment is medical 17 evidence and opinions. 20 C.F.R. § 404.1545(a)(3). For claims filed before March 18 27, 2017, the regulations required an ALJ to defer to the opinions of treating 19 physicians. See 20 C.F.R. § 404.1527(c). The opinion of a treating physician was 20 given more weight then an examining physician’s opinion, which was given more 21 weight than a reviewing physician’s opinion. See Holohan, 246 F.3d at 1202. 22 Under the revised regulations, for cases filed on or after March 27, 2017, an ALJ 23 24 25 26 27 28 3 “The Commissioner issues Social Security Rulings to clarify the Act's implementing regulations and the agency’s policies. SSRs are binding on all components of the SSA. SSRs do not have the force of law. However, because they represent the Commissioner’s interpretation of the agency’s regulations, we give them some deference. We will not defer to SSRs if they are inconsistent with the statute or regulations.” Holohan v. Massanari, 246 F.3d 1195, 1202 n.1 (9th Cir. 2001) (internal citations omitted). 5 1 will no longer defer or give specific evidentiary weight to any medical opinions. 2 20 C.F.R. § 404.1520c(a); see Thompson v. Comm’r, 2021 WL 1907488, at *3 3 (E.D. Cal. May 12, 2021); P.H. v. Saul, 2021 WL 965330, at *3 (N.D. Cal. Mar. 4 15, 2021). Instead, an ALJ will consider the persuasiveness of the medical 5 opinions and findings based on five factors: (1) supportability; (2) consistency; (3) 6 relationship with the claimant; (4) specialization; and (5) other factors that tend to 7 support or contradict the medical opinion. 20 C.F.R. 8 § 404.1520c(b)-(c); see Sylvester G. v. Saul, 2021 WL 2435816, at *2 (C.D. Cal. 9 June 15, 2021). The most important of these factors are supportability and 10 consistency. 20 C.F.R. § 404.1520c(b)(2). The ALJ may, but is not required to, 11 explain how she or he considered the other three factors. Id. 12 Medical Opinions4 13 Dr. Bruce E. Fishman, an orthopedic surgeon, examined plaintiff on August 14 18, 2015 and November 22, 2016, in connection to her workers’ compensation 15 case and reviewed her medical records. See id. at 448-70, 481-538, 769-828. 16 Plaintiff complained about pain in her neck, shoulders, elbows, wrists, and hands. 17 Id. at 451-52, 775-76. Plaintiff also reported numbness and tingling in both upper 18 extremities, as well as decreased grip strength. Id. Dr. Fishman observed plaintiff 19 had, among other things: tenderness to palpation over the ligamentum nuchae from 20 C4-T1 and over the trapezius and levator scapulae muscles; a positive impingement 21 test in both shoulders; tenderness over epicondyles in elbows; and positive Tinel’s 22 and elbow flexion tests. See id. at 455-59, 780-87. Based on the examinations, 23 plaintiff’s history, and her medical records, Dr. Fishman opined plaintiff had the 24 25 26 27 4 Because the disputed issue only concerns plaintiff’s physical impairments, 28 the court limits its discussion to the relevant opinions. 6 1 following limitations:5 she could lift and carry 20 pounds up to chest level and ten 2 pounds from chest level to shoulder level; she could not work above shoulder level 3 with either upper extremity; she could not perform activities requiring prolonged, 4 repetitive neck motions; she could not engage in activities with forceful gripping; 5 and she was limited to intermittent bilateral upper extremity repetitive tasks. Id. at 6 814. 7 Dr. Soheil K. Afra, an internist, examined plaintiff on September 1, 2017 8 and reviewed some medical records.6 AR at 867. Plaintiff reported her main issue 9 was neck pain that radiated to the elbow on her left side and all the way to her hand 10 on the right. Id. at 868. Plaintiff also complained of upper back pain and reported 11 she had difficulties standing or walking for a prolonged period of time, lifting 12 heavy objects, and bending. Id. at 869. Dr. Afra observed plaintiff had pain and 13 decreased range of motion in the cervical and thoracic spine; mild tenderness and 14 full but slow, painful range of motion in the shoulders; and decreased grip strength 15 in the right as compared to the left. Id. at 870-71. The other findings were 16 otherwise normal, including full motor strength in the upper extremities. See id. 17 Based on the history, examination, and medical records, Dr. Afra diagnosed 18 plaintiff with chronic neck pain and suspected mechanical type upper back pain. 19 Id. at 872. Dr. Afra opined plaintiff had the following limitations: push, pull, lift, 20 and carry 20 pounds occasionally and ten pounds frequently; walk and stand six 21 hours out of an eight-hour day; sit six hours out of an eight-hour day; bend, kneel, 22 23 5 Dr. Fishman opined different lift and carry limitations based on each 24 impairment. The court references the most restrictive of the limitations. See AR at 814. 25 6 It is unclear what medical records Dr. Afra reviewed since he only identified one record – the 2015 EMG report. See AR at 868-69. Dr. Afra mentioned the 27 existence of a cervical spine MRI, but stated he did not know the exact details of 28 the report. See id. at 869. 26 7 1 stoop, crawl, crouch, walk on uneven terrain, climb ladders, and other postural 2 movements occasionally; and use the right hand for fine and gross movements 3 frequently. Id. at 872-73. 4 State agency physicians Dr. S. Amon and Dr. C. Bullard reviewed plaintiff’s 5 medical records and Dr. Afra’s opinion. Id. at 160-65, 173-78. On September 15 6 and October 6, 2017, the state agency physicians opined plaintiff had the RFC to 7 perform light work with the limitations that plaintiff could: stand and walk for six 8 hours in an eight-hour day; sit for six hours in an eight-hour day; frequently climb 9 ramps and stairs, balance, stoop, kneel, crouch, reach except for overhead reaching, 10 handle, and finger; and occasionally climb ropes and ladders, crawl, and reach 11 overhead. Id. at 163-65, 176-77. 12 RFC Assessment 13 In reaching his RFC determination, the ALJ reviewed and considered the 14 medical evidence and opinions. Id. at 90-91. The ALJ found the opinions of the 15 state agency physicians, Dr. Afra, and Dr. Fishman – which all assessed plaintiff as 16 capable of light work but with different limitations – all to be persuasive. Id. at 91. 17 Specifically, the ALJ noted the state agency physicians cited specific examples to 18 support their assessments and their findings were consistent with the medical 19 evidence, Dr. Afra’s opinion was supported by the objective findings from his 20 physical examination, and Dr. Fishman’s opinion was supported by his detailed 21 report. Id. Although the ALJ found all the opinions persuasive, he found the state 22 agency physicians’ opinions to be more persuasive and adopted their limitations 23 because: (1) Dr. Afra’s opinion was based on a single examination while Dr. Amon 24 and Dr. Bullard were able to review a more complete medical file; and (2) Dr. 25 Amon and Dr. Bullard are experts in social security disability evaluation while Dr. 26 Fishman’s report addressed issues in plaintiff’s workers’ compensation claim, not 27 28 8 1 plaintiff’s social security disability application.7 See id. 2 Plaintiff’s argument that the RFC assessment is flawed due to an improper 3 evaluation of medical opinions is premised on the hierarchy of medical opinions 4 promulgated by the prior regulations. But plaintiff filed her application on June 5 20, 2017. For applications filed on or after March 27, 2017, the revised 6 regulations, which eliminate the hierarchy of opinions, apply. As such, the ALJ 7 did not err by failing to give clear and convincing reasons for adopting the state 8 agency physicians’ opinions over those of the examining physicians. Instead, the 9 ALJ properly evaluated the medical evidence under the revised regulations. The 10 ALJ considered all of the medical evidence and opinions, and based his assessment 11 on the five factors listed in the revised regulations. The ALJ properly explained 12 how he found all of the opinions to be persuasive because the physicians all 13 provided evidentiary support for the opinions and the opinions were consistent 14 with the medical record.8 The ALJ then articulated how he considered other 15 factors – Dr. Afra’s failure to review a complete medical record and Dr. Fishman’s 16 evaluation in the workers’ compensation context – to find the state agency 17 physicians’ opinions more persuasive. See 20 C.F.R. § 404.1520c(b)(3). The RFC 18 determination was therefore supported by a proper evaluation of medical opinions 19 20 7 Defendant contends the ALJ relied on the opinions of Dr. Afra, Dr. Amon, 21 and Dr. Bullard in reaching his RFC determination, and plaintiff, by neither 22 acknowledging nor disputing Dr. Afra’s opinion, therefore waives any challenge to the ALJ’s reliance on it. D. Mem. at 8. Contrary to defendant’s assertion, the ALJ 23 found Dr. Amon’s and Dr. Bullard’s opinions to be more persuasive and adopted 24 their opinions, not Dr. Afra’s opinion. AR at 91. Nevertheless, Dr. Amon, Dr. Bullard, and Dr. Afra opined substantially similar lifting, carrying, and upper 25 extremity limitations. See AR at 91, 163-65, 176-77, 872-73. 26 8 Plaintiff does not argue that Dr. Amon and Dr. Bullard did not cite medical 27 evidence to support their opinion, nor that their opinions were inconsistent with the 28 evidence from other medical sources. 9 1 consistent with the revised regulations.9 2 Plaintiff also contends the ALJ improperly discounted the opinion of a 3 treating physician, Dr. Eric Watson, who purportedly increased the sitting, 4 standing, and walking restrictions and specifically limited her to no more than 15 5 minutes of sitting. P. Mem. at 4-5. Plaintiff does not provide a citation to support 6 this limitation, and the court cannot find any treatment note or opinion from Dr. 7 Watson reflecting such restrictions.10 Nor do Dr. Watson’s 2018 treatment notes 8 support plaintiff’s alleged restrictions or worsening symptoms. Noting that an 9 MRI showed a 4mm bulge at L5-S1, Dr. Watson observed only mild tenderness at 10 S1 at one examination and a positive slump test at another. See AR at 1188-89, 11 1191. Dr. Watson observed otherwise normal findings, including plaintiff sitting 12 in the examination room. See id. at 1188-89, 1191, 1204. The ALJ, in fact, cited 13 Dr. Watson’s benign findings as evidence that plaintiff’s limitations were not as 14 restrictive as alleged. See id. at 90. In short, Dr. Watson did not offer an opinion 15 as to plaintiff’s limitations for the ALJ to consider and his treatment notes do not 16 indicate plaintiff’s impairments worsened since Dr. Afra, Dr. Fishman, Dr. Amon, 17 and Dr. Bullard issued their opinions. 18 Accordingly, the ALJ’s RFC determination was supported by substantial 19 evidence. 20 21 22 23 24 25 26 9 Under the prior regulations, the opinion of a non-examining physician, standing alone, cannot constitute substantial evidence. Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006). Nevertheless, the non-examining physician’s opinion may serve as substantial evidence when it is “consistent with independent clinical findings and other evidence in the record.” Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002). The revised regulations require the ALJ to consider supportability and consistency in the evaluation process. 10 Plaintiff also alleges she went to the emergency room on May 3, 2018, but 27 does not provide a citation. See P. Mem. at 4. The administrative record does not 28 contain notes of this emergency room visit. 10 1 V. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that Judgment shall be entered 4 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 5 the complaint with prejudice. 6 7 DATED: September 30, 2021 8 9 SHERI PYM United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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