Carrie L. Bissmeyer v. Carolyn W. Colvin, No. 5:2015cv02510 - Document 20 (C.D. Cal. 2016)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott: Based on the foregoing, IT IS ORDERED THAT judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. See document for further information. (lwag)
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Carrie L. Bissmeyer v. Carolyn W. Colvin Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ) Case No. CV 15-02510-KES ) ) ) MEMORANDUM OPINION AND Plaintiff, ) ORDER ) ) v. ) ) CAROLYN W. COLVIN, Acting ) Commissioner of Social Security, ) ) ) ) Defendant. ) ) CARRIE L. BISSMEYER, 19 20 21 22 23 24 25 26 27 28 Plaintiff Carrie L. Bissmeyer (“Plaintiff”) appeals the final decision of the Administrative Law Judge (“ALJ”) denying her application for Social Security Disability Insurance benefits (“DIB”) and Supplemental Security Income (“SSI”). For the reasons discussed below, the ALJ’s decision is AFFIRMED. I. BACKGROUND Plaintiff applied for DIB and SSI on December 30, 2011, alleging the onset of disability on July 15, 2009. Administrative Record (“AR”) 204-205, Dockets.Justia.com 1 206-215. On February 28, 2014, an ALJ conducted a hearing, at which 2 Plaintiff, who was represented by counsel, appeared and testified. AR 34-75. 3 On June 10, 2014, the ALJ issued a written decision denying Plaintiff’s request 4 for benefits. AR 7-25. 5 At Step Two of the sequential evaluation process, the ALJ found that 6 Plaintiff had severe impairments consisting of “osteoarthritis of [both] knees, 7 bilateral carpal tunnel syndrome, sleep apnea, mild degenerative disc disease of 8 the cervical spine and obesity.” AR 13. Notwithstanding her impairments, the 9 ALJ concluded that Plaintiff had the residual functional capacity (“RFC”) to 10 perform medium work with the following exertional limitations: 11 [T]he claimant can lift and carry fifty pounds occasionally and 12 twenty-five pounds frequently, and can sit, stand and walk for six 13 hours in an eight-hour day. The claimant can occasionally climb, 14 but never climb ladders, ropes or scaffolds. The claimant can 15 frequently balance, kneel, stoop, crouch and can occasionally crawl. 16 The claimant can frequently handle and finger with the right upper 17 extremity. 18 19 AR 15. Based on this RFC and the testimony of a vocational expert (“VE”), the 20 ALJ found that Plaintiff could perform her past relevant work as a licensed 21 vocational nurse (“LVN”). AR 19. The ALJ therefore concluded that Plaintiff 22 is not disabled. Id. 23 II. 24 ISSUES PRESENTED 25 26 27 28 Issue No. 1: Whether the ALJ adequately assessed the opinion of consultative examiner Dean Chiang, M.D. Issue No. 2: Whether the ALJ adequately assessed the opinion of treating chiropractor Guadalupe Trelles. 2 1 See Dkt. 19, Joint Stipulation (“JS”) 4. 2 III. 3 DISCUSSION 4 A. ISSUE ONE: The ALJ gave specific and legitimate reasons for giving 5 Dr. Chiang’s opinions little weight. 6 1. 7 Three types of physicians may offer opinions in Social Security cases: Applicable Law. 8 (1) those who directly treated the plaintiff, (2) those who examined but did not 9 treat the plaintiff, and (3) those who did neither, but reviewed the plaintiff’s 10 medical records. Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). A treating 11 physician’s opinion is generally entitled to more weight than that of an 12 examining physician, and an examining physician’s opinion is generally 13 entitled to more weight than that of a non-examining physician. Id. 14 When a treating or examining physician’s opinion is not contradicted by 15 another doctor, it may be rejected only for “clear and convincing” reasons. 16 See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1164 (9th Cir. 17 2008) (citing Lester, 81 F.3d at 830-31). When it is contradicted, the ALJ must 18 provide “specific and legitimate reasons” for discounting it that are supported 19 by substantial evidence. Id. (citation omitted). 20 The weight given a physician’s opinion depends on whether it is 21 consistent with the record and accompanied by adequate explanation, the 22 nature and extent of the treatment relationship, and the doctor’s specialty, 23 among other things. 20 C.F.R. § 416.927(c)(3)-(6). Medical opinions that are 24 inadequately explained or lack supporting clinical or laboratory findings are 25 entitled to less weight. See Johnson v. Shalala, 60 F.3d 1428, 1432 (9th Cir. 26 1995) (holding that ALJ properly rejected physician’s determination where it 27 was “conclusory and unsubstantiated by relevant medical documentation”); 28 Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) (ALJ permissibly rejected 3 1 “check-off reports that did not contain any explanation of the bases of their 2 conclusions”). 3 The ALJ is responsible for resolving conflicts in the medical evidence. 4 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In doing so, the ALJ 5 is always permitted to employ “ordinary techniques” for evaluating credibility, 6 including inconsistencies in a witness’s testimony. Thomas v. Barnhart, 278 7 F.3d 947, 958-59 (9th Cir. 2002). Thus, internal inconsistencies are a valid 8 reason to accord less weight to a medical opinion. See Connett v. Barnhart, 9 340 F.3d 871, 875 (9th Cir. 2003) (upholding inconsistency between a treating 10 physician’s opinions and his own treatment notes as a reason to discount his 11 opinions); Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (upholding 12 ALJ’s rejection of a medical opinion that was internally inconsistent); Gabor v. 13 Barnhart, 221 F. App’x 548, 550 (9th Cir. 2007) (“The ALJ noted internal 14 inconsistencies in Dr. Moran’s report, which provide a further basis for 15 excluding that medical opinion.”); Gonzales v. Colvin, 2015 U.S. Dist. LEXIS 16 148471, at *12 (C.D. Cal. Oct. 30, 2015) (upholding ALJ’s rejection of medical 17 opinion assessing inconsistent social functioning and GAF scores); Khan v. 18 Colvin, 2014 U.S. Dist. LEXIS 86558, at *22 (C.D. Cal. June 24, 2014) (“The 19 ALJ’s first reason for rejecting Dr. Multani’s opinion – to wit, that his opinion 20 was internally inconsistent – is specific and legitimate.”). 21 2. 22 Plaintiff attended a consultative examination on May 2, 2012. AR 479- Summary of Dr. Chiang’s opinions. 23 481. Dr. Dean Chiang gathered information from Plaintiff including the 24 history of her impairments, her activities of daily living, her medications, and 25 her medical and family history. AR 479. He also reviewed Plaintiff’s 26 treatment records from the Veteran’s Administration and conducted a physical 27 examination. Id. 28 Plaintiff explained that her knee pain began in 2010 after she fell off a 4 1 ladder. Id. She had x-rays at the time, but no MRI and no physical therapy. 2 Id. She received injections to her right knee about six weeks prior to Dr. 3 Chiang’s examination, but she reported that “her symptoms are starting to 4 come back” and “the pain makes her wake up at night.” Id. Nevertheless, she 5 remained “capable of driving and performs activities of daily living by herself.” 6 Id. She reported taking several medications, but none for pain management. 7 Id. 8 9 Concerning Plaintiff’s carpal tunnel syndrome, Dr. Chiang assessed a positive Tinel’s test1 on the right and negative on the left and a negative 10 Phalen’s test.2 AR 479-80. Concerning Plaintiff’s knee pain, he observed that 11 Plaintiff “ambulated at ease and was fully weightbearing. She sat comfortably 12 and answered questions appropriately. She was able to get up from a sitting 13 position without any noticeable expression of pain.” AR 479. 14 His examination revealed a normal appearance for Plaintiff’s knees and 15 normal findings for Plaintiff’s coordination/station/gait; atonement; 16 cardiovascular functioning; neck/nodes; ears/nose/throat; eyes; and pulses. 17 AR 480. He observed that Plaintiff’s range of motion for her hip, lumbar, 18 knee, ankle, shoulder, elbow, wrist, and finger/thumb varied bilaterally. AR 19 480. Dr. Chiang assessed no joint deformities and strength of five out of five 20 21 22 23 24 25 26 27 A Tinel’s test is a way to detect irritated nerves. It is performed by lightly tapping over the nerve to elicit a sensation of tingling or “pins and needles” in the distribution of the nerve. See https://en.wikipedia. org/wiki/Tinel%27s_sign. 1 For this test, the patient holds their wrist in complete and forced flexion (pushing the dorsal surfaces of both hands together) for 30–60 seconds. By compressing the median nerve, characteristic symptoms (such as burning, tingling or numb sensation over the fingers) conveys a positive test result. See https://en.wikipedia.org/wiki/ Phalen_maneuver. 2 28 5 1 for both Plaintiff’s upper and lower extremities. AR 481. A Romberg test3 2 was normal. AR 480. A straight leg raising test4 was negative to 90 degrees. 3 AR 481. 4 5 Based on all of this, Dr. Chiang opined that Plaintiff had the following functional limitations: 6 The claimant will be expected to stand and walk for up to four 7 hours during an eight-hour day. This limitation is due to her knee 8 pain. The claimant can sit without limitations. The claimant does 9 not need [an] assistive device. The claimant can lift and carry 10 without limitations. The claimant is capable of climbing never, 11 balancing never, stooping occasionally, kneeling occasionally, 12 crouching occasionally, and crawling occasionally. The claimant 13 is capable of reaching occasionally, handling occasionally, 14 fingering occasionally, and feeling occasionally. The claimant has 15 no limitations with working at heights. The claimant has no 16 limitations with working around heavy machinery. The claimant 17 has no limitations with working around extremes of temperature. 18 The claimant has no limitations with working around chemicals. 19 The claimant has no limitations with working around dust, fumes 20 and gasses. The claimant has no limitations with working around 21 22 23 24 25 26 27 28 This tests neurological function. The standing patient is asked to close his or her eyes. A loss of balance is interpreted as a positive Romberg’s test. See https://en.wikipedia.org/wiki/Romberg%27s_test. 3 To perform a supine straight-leg raising test, the patient lies down on his/her back and the examiner lifts the patient’s leg while the knee is straight. If the patient experiences pain when the straight leg is at an angle of between 30 and 70 degrees, then the test is positive and a herniated disc is likely to be the cause of the pain. See https://en.wikipedia.org/wiki/Straight_leg_raise. 4 6 1 excessive noise. 2 AR 481. 3 3. 4 The ALJ discussed Dr. Chiang’s opinion concerning Plaintiff’s The ALJ’s treatment of Dr. Chiang’s opinions. 5 functional limitations. AR 17-18. He then explained, “Dr. Chiang’s opinion is 6 unpersuasive because it is based upon only one examination and appears to 7 rely primarily on the claimant’s subjective complaints of knee pain. Thus, Dr. 8 Chiang’s opinion is given little weight.” AR 18. 9 The ALJ ultimately assessed Plaintiff as having an RFC with fewer 10 exertional limitations than those opined by Dr. Chiang. For example, the ALJ 11 found that Plaintiff could walk or stand for up to six hours in an eight-hour 12 workday (as compared to Dr. Chiang’s opinion that she could only walk or 13 stand for four hours due to knee pain). Cf. AR 15 and 481. 14 In formulating Plaintiff’s RFC, the ALJ gave “considerable weight” to 15 the opinions of reviewing physicians L. DeSouza and T. Nguyen. AR 18. 16 Both found that Plaintiff could walk or stand for six hours in an eight-hour 17 workday. AR 86, 100 [Dr. Nguyen], AR 118 [Dr. DeSouza]. The ALJ 18 explained that these two medical opinions were more persuasive, because they 19 were “consistent with the medical records as a whole.” AR 18. 20 The ALJ summarized those medical records earlier in his decision. AR 21 15-18. The ALJ concluded that Plaintiff’s medical records “revealed generally 22 benign findings.” AR 16. As examples of physical examinations resulting in 23 benign findings, the ALJ cited (at AR 16-18) all of the following: 24 25 (1) A 2009 treatment progress note discussing a physical examination and noting “intact ROM [range of motion].” AR 390. 26 (2) A March 19, 2012 treatment record showing that while Plaintiff 27 reported “both knees hurt,” the doctor found, “R knee: no effusion, full ROM, 28 stable joint.” AR 460. 7 (3) A March 22, 2012 treatment record showing that while Plaintiff was 1 2 seeking treatment “primarily for her right knee,” the doctor observed, “she has 3 full extension and flexion to about 115-120 degrees. No gross instability. No 4 significant effusion.” AR 508. 5 (4) Dr. Chiang’s observations that Plaintiff walked with ease, sat 6 comfortably during the examination and had “normal looking knees” with no 7 joint laxity. AR 479-80. (5) An October 2012 physical exam finding as to both knees that they 8 9 had a “normal range of motion” and were “non-tender.” AR 603. (6) A May 2013 treatment record reporting that a doctor reviewed 10 11 “imaging results” with Plaintiff concerning her diagnosis of arthritis of the 12 right knee and “discussed possible knee injections” and “other options for 13 treatment” including “weight management and regular exercise.” AR 620. 14 (7) A June 2013 x-ray showing only “mild” cervical degenerative disc 15 disease. AR 630. (8) A March 2014 treatment record noting Plaintiff’s “normal gait.” AR 16 17 18 19 644. (8) Records showing routine, conservative treatment, such as recommendations to do home exercises and avoid “heavy exertion.” AR 649. 20 4. 21 Plaintiff argues that the only two reasons the ALJ offered for discounting Analysis. 22 Dr. Chiang’s opinion were (1) it was based solely on one examination, and 23 (2) it relied primarily on Plaintiff’s subjective complaints. JS 7. 24 This is not a fair reading of the ALJ’s decision. By saying that (1) he 25 gave other doctors’ opinions greater weight because those opinions were 26 “consistent with the medical records as a whole” (AR 18) and (2) contrasting 27 Dr. Chiang’s normal clinical findings concerning Plaintiff’s knees with his 28 restrictive opinion expressly attributed to her knee pain (AR 17-18), the ALJ 8 1 sufficiently indicated that he discounted Dr. Chiang’s opinions, at least in part, 2 due to their inconsistency with the overall medical evidence and Dr. Chiang’s 3 own clinical findings. Indeed, the apparent reason the ALJ concluded that the 4 standing/walking limitations Dr. Chiang ascribed to Plaintiff’s knee pain were 5 based primarily on Plaintiff’s subjective complaints is because they are not 6 supported by his findings. Inconsistency with the medical records as a whole or a doctor’s own 7 8 clinical findings is a specific and legitimate reason to discount an examining 9 physician’s opinions. 20 C.F.R. § 404.1527(c)(4) (“Generally, the more 10 consistent an opinion is with the record as a whole, the more weight we will 11 give to that opinion.”); Chaudhry v. Astrue, 688 F.3d 661, 671 (9th Cir. 2012) 12 (“The ALJ need not accept the opinion of any physician … inadequately 13 supported by clinical findings.”) The ALJ’s finding of inconsistency is supported by substantial evidence 14 15 in the record. As summarized above, the record is replete with medical tests 16 and treatment notes that found Plaintiff’s use of her knees to be “normal” 17 despite the diagnosis of arthritis. Thus, the ALJ did not err in giving little 18 weight to the more restrictive opinions of Dr. Chiang. 19 B. ISSUE TWO: The ALJ gave a germane reason for giving Dr. 20 Trelles’s opinions little weight. 21 1. 22 Only licensed physicians and certain other qualified specialists are 23 considered “[a]cceptable medical sources.” 20 C.F.R. § 404.1513(a). A 24 chiropractor is considered an “other” source. 20 C.F.R. § 404.1513(a), (d)(1). 25 An ALJ may discount testimony from “other” sources if the ALJ provides a 26 “germane” reason for doing so. Molina v. Astrue, 674 F.3d 1104, 1111 (9th 27 Cir. 2012). Applicable law. 28 9 1 2. 2 In March 2012, Dr. Trelles provided a report with her opinions. AR Summary of Dr. Trelles’s opinions. 3 306-10. She began her report by listing 18 complaints reported by Plaintiff in 4 2009 when Plaintiff first sought chiropractic treatment. AR 306-07. She 5 observed that Plaintiff had “general swelling” and “swelling of joints” such 6 that “all movement caused pain.” AR 307. She examined Plaintiff’s back and 7 shoulders, but the report does not specifically discuss an examination of 8 Plaintiff’s knees. AR 308-09. Plaintiff stopped seeing Dr. Trelles in 2010. AR 9 309. 10 From this, Dr. Trelles opined that Plaintiff suffers from “chronic 11 generalized edema due to one kidney’s diminished capacity.” AR 310. “This 12 causes her to have permanent ongoing stiffness and swelling of the affected 13 areas with some period of remission between flare ups.” Id. Dr. Trelles 14 opined that Plaintiff “is unable to stand or sit for too long. Walking and 15 standing is difficult and painful.” Id. As a result, Dr. Trelles found that 16 Plaintiff was “permanently disabled” and required “chiropractic adjustments 17 … to help control the swellings and consequent pains and incapacitation.” Id. 18 3. 19 The ALJ discounted Dr. Trelles’s opinions, as follows: 20 Chiropractor Guadalupe Trelles, D.C., opined that the claimant is 21 permanently disabled …. Ms. Trelles’s opinion is unpersuasive 22 because it appears to rely quite heavily on the claimant’s subjective 23 complaints. Moreover, Ms. Trelles is not a physician and thus not 24 an acceptable medical source pursuant to 06-03. Thus, this 25 opinion is given little weight. 26 The ALJ’s treatment of Dr. Trelles’s opinions. AR 19. 27 4. 28 First, pointing out that Dr. Trelles is “not a physician” is a germane Analysis. 10 1 reason to discount her opinion concerning the incapacitating effects of 2 Plaintiff’s symptoms, because her opinion relies on the allegedly “diminished 3 capacity” one of Plaintiff’s kidneys. Medical opinions about functional 4 limitations likely to be caused or exacerbated by kidney malfunction must 5 come from a medical source, not a chiropractor. See 20 C.F.R. 6 § 404.1513(d)(1); SSR 06-03p, 2006 SSR LEXIS 5 (“The fact that a medical 7 opinion is from an ‘acceptable medical source’ is a factor that may justify 8 giving that opinion greater weight than an opinion from a medical source who 9 is not an ‘acceptable medical source’ because … ‘acceptable medical sources’ 10 11 are the ‘most qualified health care professionals.’”). Second, an ALJ may reject even a treating physician’s opinion if it is 12 based to a large extent on a claimant’s self-reports that have been properly 13 discounted as incredible. Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 14 2008). Here, by saying that Dr. Trelles’s opinion “appears to rely quite heavily 15 on the claimant’s subjective complaints,” the ALJ essentially said that it does 16 not appear to rely on medical evidence. Lack of support from medical 17 evidence is a germane reason to reject the opinion of an “other” source. 18 Bayliss v. Barnhart, 427 F.3d 1211, 1218 (9th Cir. 2005). 19 The ALJ’s finding that Dr. Trelles’s opinion lacked supporting medical 20 evidence is supported by substantial evidence in the record. As summarized by 21 the ALJ and above, many of Plaintiff’s medical records showed that she did 22 not have difficulty walking and that her knees appeared normal, not swollen. 23 Dr. Chiang opined that Plaintiff can sit “without limitation” (AR 481), 24 whereas Dr. Trelles opined that Plaintiff is unable to sit for “too long.” (AR 25 310.) See Paulson v. Astrue, 368 F. App’x 758, 760 (9th Cir. 2010) (“ALJ did 26 not commit reversible error in failing to consider the opinion of [claimant’s] 27 chiropractor” where that opinion “contradicts acceptable medical sources, 28 which are generally given greater weight.”). 11 1 IV. 2 CONCLUSION 3 Based on the foregoing, IT IS ORDERED THAT judgment shall be 4 entered AFFIRMING the decision of the Commissioner denying benefits. 5 6 Dated: November 09, 2016 7 _____________________________ KAREN E. SCOTT United States Magistrate Judge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12
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