Seth Howard Richardson v. Carolyn W Colvin, No. 5:2014cv00955 - Document 17 (C.D. Cal. 2014)
Court Description: MEMORANDUM OPINION by Magistrate Judge Jacqueline Chooljian. The decision of the Commissioner of Social Security is affirmed. (hr)
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Seth Howard Richardson v. Carolyn W Colvin Doc. 17 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SETH HOWARD RICHARDSON, 12 Plaintiff, 13 v. Case No. EDCV 14-955 JC MEMORANDUM OPINION 14 15 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 16 Defendant. 17 18 I. SUMMARY 19 On May 21, 2014, plaintiff Seth Howard Richardson ( plaintiff ) filed a 20 Complaint seeking review of the Commissioner of Social Security s denial of 21 plaintiff s application for benefits. The parties have consented to proceed before 22 the undersigned United States Magistrate Judge. This matter is before the Court on the parties cross motions for summary 23 24 judgment, respectively ( Plaintiff s Motion ) and ( Defendant s Motion ). The 25 Court has taken both motions under submission without oral argument. See Fed. 26 R. Civ. P. 78; L.R. 7-15; May 22, 2014 Case Management Order ¶ 5. 27 /// 28 /// 1 Dockets.Justia.com 1 Based on the record as a whole and the applicable law, the decision of the 2 Commissioner is AFFIRMED. The findings of the Administrative Law Judge 3 ( ALJ ) are supported by substantial evidence and are free from material error.1 4 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE 5 DECISION 6 On July 7, 2010, plaintiff filed applications for Supplemental Security 7 Income and Disability Insurance Benefits. (Administrative Record ( AR ) 33, 8 137, 142). Plaintiff asserted that he became disabled on October 3, 2009, due to 9 low back pain, arthritis, high blood pressure, and a skin condition. (AR 33, 170). 10 The ALJ examined the medical record and heard testimony from plaintiff (who 11 was represented by counsel) and a vocational expert on June 4, 2012. (AR 48-70). On June 15, 2012, the ALJ determined that plaintiff was not disabled 12 13 through the date of the decision. (AR 33-42). Specifically, the ALJ found: 14 (1) plaintiff suffered from the following severe impairments: lumbosacral strain 15 and spondyloarthropathy (AR 35); (2) plaintiff s impairments, considered singly 16 or in combination, did not meet or medically equal a listed impairment (AR 36); 17 (3) plaintiff retained the residual functional capacity to perform a full range of 18 medium work (20 C.F.R. §§ 404.1567(c), 416.967(c)) (AR 37); (4) plaintiff could 19 perform his past relevant work as heavy delivery truck driver and driver (AR 20 41-42); and (5) plaintiff s allegations regarding his limitations were not credible to 21 the extent they were inconsistent with the ALJ s residual functional capacity 22 assessment (AR 38). The Appeals Council denied plaintiff s application for review. (AR 5). 23 24 /// 25 /// 26 27 28 1 The harmless error rule applies to the review of administrative decisions regarding disability. See Molina v. Astrue, 674 F.3d 1104, 1115-22 (9th Cir. 2012) (discussing contours of application of harmless error standard in social security cases) (citing, inter alia, Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1054-56 (9th Cir. 2006)). 2 1 III. APPLICABLE LEGAL STANDARDS 2 A. 3 To qualify for disability benefits, a claimant must show that the claimant is Sequential Evaluation Process 4 unable to engage in any substantial gainful activity by reason of any medically 5 determinable physical or mental impairment which can be expected to result in 6 death or which has lasted or can be expected to last for a continuous period of not 7 less than 12 months. Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012) 8 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted). The 9 impairment must render the claimant incapable of performing the work the 10 claimant previously performed and incapable of performing any other substantial 11 gainful employment that exists in the national economy. Tackett v. Apfel, 180 12 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). 13 In assessing whether a claimant is disabled, an ALJ is to follow a five-step 14 sequential evaluation process: 15 (1) so, the claimant is not disabled. If not, proceed to step two. 16 17 Is the claimant presently engaged in substantial gainful activity? If (2) Is the claimant s alleged impairment sufficiently severe to limit 18 the claimant s ability to work? If not, the claimant is not 19 disabled. If so, proceed to step three. 20 (3) Does the claimant s impairment, or combination of 21 impairments, meet or equal an impairment listed in 20 C.F.R. 22 Part 404, Subpart P, Appendix 1? If so, the claimant is 23 disabled. If not, proceed to step four. 24 (4) Does the claimant possess the residual functional capacity to 25 perform claimant s past relevant work? If so, the claimant is 26 not disabled. If not, proceed to step five. 27 28 (5) Does the claimant s residual functional capacity, when considered with the claimant s age, education, and work 3 1 experience, allow the claimant to adjust to other work that 2 exists in significant numbers in the national economy? If so, 3 the claimant is not disabled. If not, the claimant is disabled. 4 Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th 5 Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920); see also Molina, 674 F.3d at 6 1110 (same). 7 The claimant has the burden of proof at steps one through four, and the 8 Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 9 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett, 180 F.3d at 1098); see also Burch 10 v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (claimant carries initial burden of 11 proving disability). 12 B. 13 Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of Standard of Review 14 benefits only if it is not supported by substantial evidence or if it is based on legal 15 error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 16 2006) (citing Flaten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 17 (9th Cir. 1995)). Substantial evidence is such relevant evidence as a reasonable 18 mind might accept as adequate to support a conclusion. Richardson v. Perales, 19 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a 20 mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing 21 Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)). 22 To determine whether substantial evidence supports a finding, a court must 23 consider the record as a whole, weighing both evidence that supports and 24 evidence that detracts from the [Commissioner s] conclusion. Aukland v. 25 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 26 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming 27 or reversing the ALJ s conclusion, a court may not substitute its judgment for that 28 of the ALJ. Robbins, 466 F.3d at 882 (citing Flaten, 44 F.3d at 1457). 4 1 IV. DISCUSSION 2 Plaintiff contends that a reversal or remand is warranted because the ALJ 3 improperly rejected the opinions of his treating physicians. (Plaintiff s Motion at 4 6-8). The Court disagrees. 5 A. 6 In Social Security cases, courts employ a hierarchy of deference to medical Pertinent Law 7 opinions depending on the nature of the services provided. Courts distinguish 8 among opinions provided by three types of physicians, specifically (1) those who 9 treat the claimant (i.e., treating physicians ); (2) those who examine but do not 10 treat the claimant ( examining physicians ); and (3) those who neither examine 11 nor treat the claimant ( nonexamining physicians ). Garrison v. Colvin, 759 F.3d 12 995, 1012 (9th Cir. 2014) (quoting Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 13 1996)) (quotation marks omitted). A treating physician s opinion is entitled to 14 more weight than an examining physician s opinion, and an examining physician s 15 opinion is entitled to more weight than a nonexamining physician s opinion. See 16 id. (citation omitted); see also Morgan v. Commissioner of Social Security 17 Administration, 169 F.3d 595, 600 (9th Cir. 1999) (opinion from treating 18 physician generally given greater weight because such a physician is employed to 19 cure and has a greater opportunity to know and observe the patient as an 20 individual ) (citation and quotation marks omitted). 21 A treating physician s opinion is given controlling weight if it is well- 22 supported by medically acceptable clinical and laboratory diagnostic techniques 23 and is not inconsistent with the other substantial evidence in [the claimant s] case 24 record. . . . 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see Orn v. Astrue, 495 25 F.3d 625, 631 (9th Cir. 2007) (citing id.). Even if not controlling, a treating 26 physician s opinion often is entitled to the greatest weight and should [still] be 27 /// 28 /// 5 1 adopted. . . . Orn, 495 F.3d at 632 (quoting Social Security Ruling ( SSR )2 2 96-2p at *4) (quotation marks omitted). 3 A treating physician s opinion is not necessarily conclusive, however, as to 4 a claimant s medical condition or disability. Magallanes v. Bowen, 881 F.2d 747, 5 751 (9th Cir. 1989) (citation omitted). An ALJ may reject a treating physician s 6 uncontroverted opinion by providing clear and convincing reasons supported by 7 substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th 8 Cir. 1998) (citation omitted). Where a treating physician s opinion conflicts with 9 another doctor s opinion, an ALJ may reject the treating opinion by providing 10 specific and legitimate reasons that are supported by substantial evidence. 11 Garrison, 759 F.3d at 1012 (citation and footnote omitted). 12 An ALJ may provide substantial evidence for rejecting a medical opinion 13 by setting out a detailed and thorough summary of the facts and conflicting 14 clinical evidence, stating his [or her] interpretation thereof, and making findings. 15 Garrison, 759 F.3d at 1012 (quoting Reddick, 157 F.3d at 725) (quotation marks 16 omitted); Thomas v. Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (same) (citations 17 omitted); see also Magallanes, 881 F.2d at 751, 755 (ALJ need not recite magic 18 words to reject a treating physician opinion court may draw specific and 19 legitimate inferences from ALJ s opinion). An ALJ must do more than offer [] 20 conclusions. Embrey v. Bowen, 849 F.2d 418, 421 (9th Cir. 1988); McAllister v. 21 Sullivan, 888 F.2d 599, 602 (9th Cir. 1989) ( broad and vague reasons for 22 rejecting treating physician s opinion insufficient) (citation omitted). [The ALJ] 23 24 25 26 27 28 2 Although they do not carry the force of law, Social Security Rulings are binding on ALJs. See 20 C.F.R. § 402.35(b)(1); Bray v. Commissioner of Social Security Administration, 554 F.3d 1219, 1224 (9th Cir. 2009) (citation and internal quotation marks omitted). Such rulings reflect the official interpretation of the [Social Security Administration] and are entitled to some deference as long as they are consistent with the Social Security Act and regulations. Molina v. Astrue, 674 F.3d 1104, 1113 n.5 (9th Cir. 2012) (citations and internal quotation marks omitted); see also Heckler v. Edwards, 465 U.S. 870, 873 n.3 (1984) (discussing weight and function of Social Security rulings). 6 1 must set forth his [or her] own interpretations and explain why they, rather than 2 the [physician s], are correct. Embrey, 849 F.2d at 421-22. 3 4 5 B. Analysis 1. Dr. Faheem Jukaku In a May 23, 2011 Functional Capacity Questionnaire (Physical), Dr. 6 Faheem Jukaku, one of plaintiff s treating physicians, diagnosed plaintiff with 7 chronic low back pain and essentially opined that plaintiff s impairments and 8 related limitations would prevent plaintiff from performing even sedentary work 9 ( Dr. Jukaku s Opinions ). (AR 376). Plaintiff contends that the ALJ improperly 10 rejected Dr. Jukaku s Opinions. (Plaintiff s Motion at 6-8) (citing AR 376). The 11 Court disagrees. 12 First, the single-page form prepared by Dr. Jukaku contained only check- 13 the-box opinions. (AR 376). As the ALJ noted, Dr. Jukaku provided no 14 explanation of the evidence upon which he relied to conclude that plaintiff had the 15 noted significant physical limitations. (AR 40, 376). In addition, apart from 16 checking boxes next to boilerplate statements that [the] patient s signs included 17 [p]ositive straight leg raising test and [r]educed range of motion Dr. Jukaku 18 provided no specific clinical findings (i.e., results of objective testing or a physical 19 examination) to support the opinions. (AR 40, 376). The ALJ properly rejected 20 Dr. Jukaku s Opinions on this basis alone. See Crane v. Shalala, 76 F.3d 251, 253 21 (9th Cir. 1996) ( ALJ [] permissibly rejected [medical evaluations] because they 22 were check-off reports that did not contain any explanation of the bases of their 23 conclusions. ); see also De Guzman v. Astrue, 343 Fed. Appx. 201, 209 (9th Cir. 24 2009) (ALJ is free to reject check-off reports that d[o] not contain any 25 explanation of the bases of their conclusions. ) (citing id.); see also Murray v. 26 Heckler, 722 F.2d 499, 501 (9th Cir. 1983) (expressing preference for 27 individualized medical opinions over check-off reports). 28 /// 7 1 Second, the ALJ also properly rejected Dr. Jukaku s Opinions because they 2 were not supported by the physician s own notes or the record as a whole. See 3 Bayliss v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) ( The ALJ need not 4 accept the opinion of any physician, including a treating physician, if that opinion 5 is brief, conclusory, and inadequately supported by clinical findings. ) (citation 6 and internal quotation marks omitted); Connett v. Barnhart, 340 F.3d 871, 875 7 (9th Cir. 2003) (treating physician s opinion properly rejected where treating 8 physician s treatment notes provide no basis for the functional restrictions he 9 opined should be imposed on [the claimant] ). For example, plaintiff does not 10 identify any treatment notes in the record specifically prepared by Dr. Jukaku. 11 (Plaintiff s Motion at 6-8). The Court finds only one, and that note contains little, 12 if any, mention of the significant physical limitations identified in Dr. Jukaku s 13 Opinions. (AR 405). In addition, as the ALJ suggested, nothing in that note or the 14 record as a whole plausibly supports that plaintiff had any problem with his upper 15 extremities that would warrant Dr. Jukaku s limitations to frequent fingering, 16 grasping, or handling. (AR 40, 405). 17 Third, the ALJ determined that Dr. Jukaku had a very limited treating 18 relationship with plaintiff, and therefore, that Dr. Jukaku s Opinions were not 19 entitled to the weight generally accorded opinions provided by a treating 20 physician. As the ALJ noted, plaintiff had seen Dr. Jukaku, at most, three times 21 over a period of less than three months before Dr. Jukaku s Opinions were 22 prepared. (AR 40, 376). The ALJ was permitted to consider such evidence in 23 determining the weight to give Dr. Jukaku s Opinions. See, e.g., 20 C.F.R. 24 § 404.1527(c)(2)(i) (ALJ may give opinion from treating source greater weight 25 when the treating source has seen [the claimant] a number of times and long 26 enough to have obtained a longitudinal picture of [the claimant s] impairment 27 . . . . ); 20 C.F.R. § 416.927(c)(2)(i) (same). 28 /// 8 1 Finally, the ALJ properly rejected Dr. Jukaku s Opinions in favor of the 2 conflicting opinions of the state-agency examining physician, Dr. Bunsri T. 3 Sophon (AR 345), and the state-agency reviewing physician, Dr. David L. Hicks 4 (AR 320), both of whom essentially determined that plaintiff could do work at the 5 medium level of exertion3 with no postural or other limitations. The opinions of 6 Dr. Sophon were supported by the physician s independent examination of 7 plaintiff (AR 342-45), and thus, without more, constituted substantial evidence 8 upon which the ALJ could properly rely to reject Dr. Jukaku s Opinions. See, e.g., 9 Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001) (examining physician s 10 opinion on its own constituted substantial evidence, because it rested on 11 physician s independent examination of claimant) (citations omitted). Dr. Hicks 12 opinions also constituted substantial evidence supporting the ALJ s decision since 13 they were supported by the other medical evidence in the record as well as Dr. 14 Sophon s opinions and underlying independent examination. See Tonapetyan, 15 242 F.3d at 1149 (holding that opinions of nontreating or nonexamining doctors 16 may serve as substantial evidence when consistent with independent clinical 17 findings or other evidence in the record); Andrews v. Shalala, 53 F.3d 1035, 1041 18 (9th Cir. 1995) ( [R]eports of [a] nonexamining advisor need not be discounted 19 and may serve as substantial evidence when they are supported by other evidence 20 in the record and are consistent with it. ). Accordingly, a remand or reversal on this basis is not warranted. 21 22 /// 23 /// 24 25 26 27 28 3 Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c). A full range of medium work requires standing or walking, off and on, for a total of approximately 6 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. [S]itting may occur intermittently during the remaining time. SSR 83-10 at *6. 9 1 2 2. Dr. Nizar Ibrahim In an April 18, 2012 Medical Source Statement, Dr. Nizar Ibrahim, one of 3 plaintiff s other treating physicians, diagnosed plaintiff with osteoarthritis, 4 spondyloarthropathy, hypertension, and Hepatitis C, and opined that (1) plaintiff 5 could not sit without squirming; (2) plaintiff could not walk more than one block 6 and used a cane; and (3) plaintiff s overall impairments and related limitations 7 essentially would prevent plaintiff from performing even sedentary work ( Dr. 8 Ibrahim s Opinions ). (AR 388-90). Plaintiff contends that the ALJ improperly 9 rejected Dr. Ibrahim s Opinions. (Plaintiff s Motion at 6-8). The Court disagrees. 10 First, the form Dr. Ibrahim prepared contained only check-the-box opinions. 11 (AR 388-90). As the ALJ noted, Dr. Ibrahim identified no objective evidence, 12 much less specific clinical findings (i.e., results of objective testing or a physical 13 examination), that supported his conclusions that plaintiff had such significant 14 physical limitations. (AR 40, 388-90). The ALJ properly rejected Dr. Ibrahim s 15 Opinions on this basis alone. See Crane, 76 F.3d at 253; De Guzman, 343 Fed. 16 Appx. at 209 (citation omitted). 17 Second, the ALJ also properly rejected Dr. Ibrahim s Opinions because they 18 were not supported by the physician s own treatment notes or the record as a 19 whole. See Bayliss, 427 F.3d at 1217 (citation omitted); Connett, 340 F.3d at 875. 20 For example, as the ALJ noted, Dr. Ibrahim s records document few, if any, 21 physical limitations for plaintiff much less any objective findings on physical 22 examination that would plausibly support the significant physical limitations Dr. 23 Ibrahim found for plaintiff. (AR 40, 379-86). 24 Third, even assuming, as plaintiff suggests (Plaintiff s Motion at 8), that the 25 ALJ erred in discrediting Dr. Ibrahim s Opinions based on the ALJ s personal 26 observation that [plaintiff] did not squirm until the very end of the . . . hearing 27 (AR 41); cf. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999) (ALJ s 28 reliance on personal observation at hearing that claimant did not manifest external 10 1 symptoms consistent with alleged impairment constitutes improper sit and 2 squirm jurisprudence) (citations omitted), any such error would have been 3 harmless. As discussed above, the ALJ properly discredited Dr. Ibrahim s 4 Opinions regarding all of plaintiff s limitations which included the opinion that 5 plaintiff could not sit without squirming for other clear and convincing 6 reasons. See Sawyer v. Astrue, 303 Fed. Appx. 453, 455 (9th Cir. 2008) (error in 7 ALJ s failure properly to consider medical opinion evidence considered harmless 8 where the mistake was nonprejudicial to the claimant or irrelevant to the ALJ s 9 ultimate disability conclusion. . . . ) (citing Stout, 454 F.3d at 1055); 10 Fourth, the ALJ was entitled to discount the weight given to Dr. Ibrahim s 11 Opinions based on the brevity of Dr. Ibrahim s treating relationship with plaintiff. 12 See 20 C.F.R. §§ 404.1527(c)(2)(i), 416.927(c)(2)(i). 13 Finally, for the reasons discussed above, the ALJ properly rejected Dr. 14 Ibrahim s Opinions in favor of the conflicting opinions of the state-agency 15 examining physician, Dr. Sophon, and the state-agency reviewing physician, Dr. 16 Hicks. See Tonapetyan, 242 F.3d at 1149 (citations omitted); Andrews, 53 F.3d at 17 1041. 18 Accordingly, a remand or reversal on this basis is not warranted. 19 V. CONCLUSION 20 For the foregoing reasons, the decision of the Commissioner of Social 21 Security is affirmed. 22 LET JUDGMENT BE ENTERED ACCORDINGLY. 23 DATED: October 29, 2014 24 25 26 ______________/s/___________________ Honorable Jacqueline Chooljian UNITED STATES MAGISTRATE JUDGE 27 28 11
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