Steven Gandarilla v. Carolyn W Colvin, No. 5:2016cv01715 - Document 22 (C.D. Cal. 2017)

Court Description: MEMORANDUM DECISION AND ORDER by Magistrate Judge Frederick F. Mumm. the judgment of the Commissioner is affirmed. IT IS SO ORDERED. (See document for further details.) (sbou)
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Steven Gandarilla v. Carolyn W Colvin Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 STEVEN GANDARILLA, Plaintiff, 13 14 15 v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 16-1715 FFM MEMORANDUM DECISION AND ORDER 18 Plaintiff brings this action seeking to overturn the decision of the Commissioner 19 of the Social Security Administration1 denying his application for Disability Insurance 20 Benefits and Supplemental Security Income. Plaintiff and defendant consented to the 21 jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 22 636(c). Pursuant to the Case Management Order issued on August 15, 2016 and an 23 extension granted by the Court, on May 25, 2017, the parties filed a Joint Stipulation 24 (“JS”) detailing each party’s arguments and authorities. The Court has reviewed the 25 /// 26 1 27 28 Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23, 2017, and is hereby substituted as defendant pursuant to Federal Rule of Civil Procedure 25(d). 1 Dockets.Justia.com 1 administrative record (the “AR”) and the Joint Stipulation. For the reasons stated 2 below, the decision of the Commissioner is AFFIRMED. 3 PRIOR PROCEEDINGS 4 On December 28, 2012, plaintiff applied for Disability Insurance Benefits and 5 Supplemental Security Income, alleging an onset date of July 15, 2009. (AR 176-88.) 6 Plaintiff’s applications were denied initially and on reconsideration. (AR 56-116.) 7 Thereafter, plaintiff requested a hearing before an administrative law judge (“ALJ”). 8 (AR 138.) ALJ Dante M. Alegre held a hearing on December 3, 2014. (AR 36-55.) 9 Plaintiff appeared with counsel and testified at the hearing. (See id.) Furthermore, 10 11 Gregory Jones, a vocational expert (“VE”), testified at the hearing. (AR 49-53.) On February 27, 2015, the ALJ issued a decision denying plaintiff benefits. 12 (AR 14-35.) Based on his review of the evidence, the ALJ determined that plaintiff 13 has the “following severe impairments: diabetes mellitus type II, peripheral 14 neuropathy, degenerative joint disease of the right shoulder, mild lumbar 15 osteoarthritis, minimal osteoarthritis of the left knee, obesity, major depressive 16 disorder, and bipolar disorder.” (AR 20.) Further, the ALJ found that plaintiff 17 possesses the residual functional capacity (“RFC”) to perform “light work” except that 18 plaintiff can: 19 lift 20 pounds occasionally and 10 pounds frequently, and can 20 sit, stand, or walk six hours each out of an eight-hour workday. 21 He can occasionally push and pull with the right upper 22 extremity. He an [sic] occasionally climb, balance, stoop, 23 kneel, crouch, and crawl. He can occasionally reach overhead 24 with the right upper extremity. He can perform unskilled, 25 nonpublic work. 26 27 28 (AR 23.) In making these determinations, the ALJ discredited plaintiff’s claims about the limitations caused by his impairments. (AR 28.) The ALJ gave great weight to the 2 1 state agency medical and psychiatric consultants and gave little weight to the opinions 2 of plaintiff’s treating physician Dr. Arthur Jimenez, M.D., and the GAF scores. (AR 3 27-28.) Based on plaintiff’s RFC and the testimony of the VE, the ALJ determined 4 that plaintiff is unable to perform any past relevant work, but there are jobs that exist 5 in significant numbers in the national economy that plaintiff can perform. (AR 28- 6 29.) Accordingly, the ALJ concluded that plaintiff has not been under a disability 7 within the meaning of the Social Security Act from the alleged onset date of July 15, 8 2009 through the date of the decision. (AR 30.) On June 29, 2016, the Appeals Council denied plaintiff’s request for review. 9 10 (AR 1-9.) Thereafter, plaintiff filed this action. CONTENTIONS 11 Plaintiff raises two issues in this action: 12 13 1. the treating doctor. 14 15 16 17 Whether the ALJ provided clear and convincing reasons to reject the opinion of 2. Whether the ALJ failed to include all of the relevant mental limitations in the residual functional capacity. STANDARD OF REVIEW 18 Under 42 U.S.C. § 405(g), this Court reviews the Administration’s decisions to 19 determine if: (1) the Administration’s findings are supported by substantial evidence; 20 and (2) the Administration used proper legal standards. Smolen v. Chater, 80 F.3d 21 1273, 1279 (9th Cir. 1996) (citations omitted). “Substantial evidence is more than a 22 scintilla, but less than a preponderance.” Reddick v. Chater, 157 F.3d 715, 720 (9th 23 Cir. 1998) (citation omitted). To determine whether substantial evidence supports a 24 finding, “a court must consider the record as a whole, weighing both evidence that 25 supports and evidence that detracts from the [Commissioner’s] conclusion.” Auckland 26 v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (internal quotation marks omitted). 27 If the evidence in the record can reasonably support either affirming or 28 reversing the ALJ’s conclusion, the Court may not substitute its judgment for that of 3 1 the ALJ. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (citing 2 Flaten v. Sec’y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). 3 However, even if substantial evidence exists to support the Commissioner’s decision, 4 the decision must be reversed if the proper legal standard was not applied. Howard ex 5 rel. Wolff v. Barnhart, 341 F.3d 1006, 1014-15 (9th Cir. 2003); see also Smolen, 80 6 F.3d at 1279. DISCUSSION 7 8 A. The ALJ Properly Evaluated The Treating Physician’s Opinion 9 Plaintiff first alleges that the ALJ erred in failing to provide clear and 10 convincing reasons to reject the opinion of plaintiff’s treating physician, Dr. Arthur 11 Jimenez, M.D. (JS 4.) 12 1. Background 13 a. Opinion of Treating Physician Dr. Jimenez 14 Treatment records indicate that Dr. Jimenez treated plaintiff between October 15 2009 and September 2014. In November 2014, Dr. Jimenez completed a Physical 16 Residual Functional Capacity Questionnaire in connection with plaintiff’s disability 17 applications. (AR 535-40.) Based on the treatment history, Dr. Jimenez concluded 18 that plaintiff is incapable of performing even low stress jobs. (AR 537.) Specifically, 19 Dr. Jimenez opined that plaintiff can walk half a block without rest or severe pain; sit 20 for 30 minutes at a time; stand for 15 minutes at a time; and sit, stand, and walk each a 21 total of 2 hours in an 8-hour day. (Id.) Further, plaintiff must walk every 15 minutes 22 for 15 minutes at a time throughout an 8-hour workday; must be able to shift at will 23 from sitting, standing, or walking; must be able to take unscheduled breaks every 30 24 minutes for 15-30 minutes at a time; must elevate legs at 90 degrees while sitting for 25 half the day; and must use a cane or other assistive device when engaging in 26 occasional standing/walking. (AR 538.) Plaintiff is also limited to rarely lifting and 27 carrying less than 10 pounds; rarely looking down, turning his head, looking up, 28 holding his head in a static position, twisting, stooping, crouching, and climbing 4 1 ladders and stairs. (AR 538-39.) Plaintiff is also restricted from reaching, handling, 2 fingering, and pushing/pulling with his right hand. (AR 539.) Finally, plaintiff can 3 never use his left foot and can use his right foot occasionally. (AR 540.) Dr. Jimenez 4 concluded that because of these limitations, plaintiff is likely to be absent from work 5 for more than four days per month. (Id.) 6 b. ALJ Decision 7 In his written decision, the ALJ gave little weight to Dr. Jimenez’s opinion. 8 (AR 26.) Based on his review of the record as a whole, the ALJ opined that plaintiff 9 has the RFC to perform light work except that plaintiff can: 10 lift 20 pounds occasionally and 10 pounds frequently, and can 11 sit, stand, or walk six hours each out of an eight-hour workday. 12 He can occasionally push and pull with the right upper 13 extremity. He an [sic] occasionally climb, balance, stoop, 14 kneel, crouch, and crawl. He can occasionally reach overhead 15 with the right upper extremity. He can perform unskilled, 16 nonpublic work. 17 (AR 23.) The ALJ rejected the severe limitations imposed by Dr. Jimenez, stating 18 that that the doctor’s opinion was “brief, conclusory, and inadequately supported by 19 clinical findings.” (AR 26.) 20 2. 21 Legal Standard In evaluating physicians’ opinions, the case law and regulations distinguish 22 among three types of physicians: (1) those who treat the claimant (treating 23 physicians); (2) those who examine but do not treat the claimant (examining 24 physicians); and (3) those who neither treat nor examine the claimant (non-examining 25 physicians). Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), limited on other 26 grounds, Saelee v. Chater, 94 F.3d 520, 523 (9th Cir. 1996); see also 20 C.F.R. §§ 27 404.1502, 416.902, 404.1527(c), 416.927(c). As a general rule, more weight should 28 be given to the opinion of a treating source than to the opinions of physicians who do 5 1 not treat the claimant. Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987); 20 C.F.R. 2 §§ 404.1527(c)(2), 416.927(c)(2). 3 The Ninth Circuit has held that an ALJ may reject a treating physician’s 4 uncontradicted opinion only with “clear and convincing” reasons supported by 5 substantial evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 6 1998) (internal quotation marks omitted). If the treating physician’s opinion is 7 controverted, the ALJ must still provide “specific and legitimate” reasons, supported 8 by substantial evidence in the record, in order to reject the treating physician’s 9 opinion. Lester, 81 F.3d at 830; Holohan v. Massanari, 246 F.3d 1195, 1202-03 (9th 10 Cir. 2001). 11 3. Analysis Here, Dr. Jimenez’s opinions are contradicted by the state agency consultants 12 13 on the initial and reconsideration levels. However, “[t]he opinion of a nonexamining 14 physician cannot by itself constitute substantial evidence that justifies the rejection of 15 the opinion of either an examining physician or a treating physician.” Lester, 81 F.3d 16 at 831. The opinion of a non-examining physician may serve as substantial evidence 17 when it is consistent with other independent evidence in the record. Id. at 830-31. 18 The state agency consultants relied on a review of medical reports from a variety of 19 doctors, including but not limited to Dr. Jimenez. Only Dr. Jimenez assigned severe 20 restrictions to plaintiff’s ability to work. Therefore, the ALJ must provide “specific 21 and legitimate” reasons for discrediting Dr. Jimenez’s opinion. See Lester, 81 F.3d at 22 830. The ALJ stated that he gave little weight to Dr. Jimenez’s opinion “because it is 23 24 brief, conclusory, and inadequately supported by clinical findings.” (AR 26.) The 25 ALJ then provided additional reasons for rejecting the specific opinions that plaintiff 26 was unable to work; that plaintiff suffered from functional limitations that would 27 preclude work; and that plaintiff has significant mental limitations. 28 /// 6 a. 1 The Opined Functional Limitations Are Inconsistent With the Objective Medical Evidence 2 The ALJ noted that with regard to claims based on plaintiff’s diabetes mellitus 3 4 and peripheral neuropathy, Dr. Jimenez’s treatment notes reflect that in most visits 5 plaintiff did not complain of any related symptoms. (AR 25.) The record indicates 6 that plaintiff visited Dr. Jimenez frequently between October 2009 and September 7 2014. However, the treatment notes indicate that plaintiff complained of difficulty of 8 grasping objects only once in April 2011. (AR 332.) Further, plaintiff complained of 9 numbness and tingling in his extremities only twice, once in September 2013 during a 10 visit with Dr. Jimenez and again in September 2014 during a neurological 11 examination. (AR 461, 493.) The ALJ noted that during the September 2014 12 neurological examination, a physical examination of plaintiff reflected that sensation 13 in his upper and lower extremities was normal and plaintiff had 5/5 muscle strength 14 throughout, including grip strength. (AR 25) (citing AR 494.) The infrequent 15 complaints and the inconsistent treatment notes contrast with a finding of ongoing and 16 disabling symptoms of diabetes mellitus and peripheral neuropathy. Second, the ALJ explained that the record reflected routine and conservative 17 18 treatment with regard to plaintiff’s alleged right shoulder degenerative joint disease. 19 “A conservative course of treatment can undermine allegations of debilitating pain.” 20 Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir. 2008). The 21 ALJ noted that plaintiff first complained of shoulder pain in 2011. (AR 25) (citing AR 22 329.) Plaintiff subsequently underwent physical therapy, which yielded only slight 23 improvements. (AR 349-50.) In 2012, a MRI was performed which yielded benign 24 results; there was moderate tendinosis, but no rotator cuff tear. (AR 378.) Plaintiff 25 received injections for his shoulder pain and the record reflects that by 2013, plaintiff 26 no longer complained of shoulder pain and did not receive any further treatment for it. 27 (See AR 389-94.) Plaintiff asserts that steroid injections are not considered 28 /// 7 1 conservative treatment. The record, however, does not reflect steroid injections; 2 rather, the medical record demonstrates only injections of lidocaine. Third, the ALJ explained that the objective medical evidence regarding 3 4 plaintiff’s mild lumbar osteoarthritis and minimal left knee osteoarthritis does not 5 support Dr. Jimenez’s opinion. In December 2010, plaintiff had an X-ray of his 6 lumbar spine which revealed mild osteoarthritis with no evidence of spondylosis or 7 spondylolisthesis. (AR 385.) Plaintiff had an X-ray of his knee in December 2010, 8 which revealed normal results. (AR 386.) In a subsequent X-ray of plaintiff’s left 9 knee in April 2011, there were “minimal changes of osteoarthritis,” but the results 10 were otherwise normal. (AR 384.) As the ALJ noted, there is no evidence in the 11 record suggesting that plaintiff received or was recommended to receive further 12 treatment such as physical therapy or injections for either his back or knees. (AR 25.) Accordingly, inconsistency with the objective medical evidence was a specific 13 14 and legitimate reason the ALJ provided for rejecting Dr. Jimenez’s opinion. 15 b. Inconsistency With Own Progress Notes 16 The second reason the ALJ provided for rejecting Dr. Jimenez’s opinion was 17 that his opinion was inconsistent with the documented findings in Dr. Jimenez’s own 18 progress notes. The progress notes from each visit with Dr. Jimenez include 19 comments regarding physical examinations. As the ALJ noted, the progress notes do 20 not document any significant functional limitations. In fact, the physical examination 21 comments show largely normal results. (See e.g., 324-44, 418-24, 453-57) (physical 22 examination comments reflecting “SPINE: no abnormalities, “EXTREMITIES: no 23 abnormalities,” “LOW BACK: rom normal.”) These findings are inconsistent with Dr. 24 Jimenez’s opinions imposing extreme limitations of plaintiff’s physical capabilities. 25 Accordingly, this inconsistency was a specific and legitimate reason the ALJ provided 26 for rejecting Dr. Jimenez’s opinion. 27 /// 28 /// 8 1 c. Opinions On Mental Impairments 2 Lastly, the ALJ rejected Dr. Jimenez’s opinion regarding plaintiff’s mental 3 impairments because Dr. Jimenez is not qualified to assess plaintiff’s mental 4 limitations and the record does not contain evidence of Dr. Jimenez performing a 5 mental evaluation or clinical assessment. Plaintiff contends that as a treating 6 physician, Dr. Jimenez is qualified to opine on plaintiff’s mental impairments even 7 though he is not an expert in the field. (JS 17.) Plaintiff is correct, but Dr. Jimenez’s 8 records do not support the contention that Dr. Jimenez ever treated plaintiff’s alleged 9 mental impairment. In this regard, the record includes a one-page questionnaire Dr. 10 Jimenez completed regarding plaintiff’s mental impairments. (AR 491.) Dr. Jimenez 11 opined that plaintiff’s mental impairments impose limitations in (a) daily activities and 12 task completion resulting from a lack of focus, (b) social function because of isolation, 13 and (c) adaptation to work because of behavioral issues. (Id.) Additionally, in the 14 Physical Residual Functional Capacity Questionnaire, Dr. Jimenez simply checked off 15 depression, anxiety, and schizophrenia as psychological conditions affecting 16 plaintiff’s physical condition. (AR 536.) These two questionnaires do not 17 demonstrate that Dr. Jimenez ever treated plaintiff’s mental impairments. Therefore, 18 the ALJ properly dismissed Dr. Jimenez’s opinion regarding plaintiff’s mental 19 impairment. 20 B. The ALJ Properly Evaluated Plaintiff’s Mental RFC Plaintiff next contends the ALJ erred in his RFC determination by failing to 21 22 include the mental limitations assessed by Dr. Jimenez and the state agency. (JS 13, 23 16-18.) 24 1. 25 Legal Standard It is the solely the ALJ’s responsibility to determine a claimant’s RFC. Vertigan 26 v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). RFC is the most the claimant can do 27 in a work setting despite the physical and mental limitations caused by the claimant’s 28 impairments and related symptoms, such as pain. 20 C.F.R. §§ 404.1545(a)(1), 9 1 416.945(a)(1); see also Reddick v. Chater, 157 F.3d 715, 724 (9th Cir. 1998) (residual 2 functional capacity is the “maximum degree to which the individual retains the 3 capacity for sustained performance of the physical-mental requirements of jobs”) 4 (internal quotation marks omitted) (citing 20 C.F.R. Part 404, subpt. P, app. 2 § 5 200.00(c)). The ALJ’s RFC finding “must be based on all of the relevant evidence in 6 the case record,” including, inter alia, medical signs and laboratory findings; medical 7 source statements; and effects of symptoms, including pain, that are reasonably 8 attributable to a medically-determinable impairment. Social Security Ruling 9 (“S.S.R.”) 96-8p, 1996 WL 374184 (S.S.A.) at *5. However, the ALJ is not required 10 to incorporate evidence from opinions of treating physicians which were permissibly 11 discounted. Batson v. Commissioner, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 12 2004). 13 3. Analysis 14 a. Dr. Jimenez’s Opinion 15 As discussed above, the ALJ properly rejected Dr. Jimenez’s opinions regarding 16 plaintiff’s mental impairments. The ALJ is not required to incorporate evidence from 17 opinions of treating physicians which were permissibly discounted. Batson v. 18 Commissioner, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir. 2004). Therefore, the 19 ALJ did not err by not incorporating Dr. Jimenez’s opinions regarding plaintiff’s 20 mental impairments. 21 b. State Agency Opinion 22 The state agency psychiatric consultants on the initial and reconsideration levels 23 opined that plaintiff suffered from moderate impairments in the ability to perform 24 activities within a schedule, sustain ordinary routine without special supervision, 25 accept instructions and respond appropriately to criticism from supervisors, and the 26 ability to complete normal workweek without an unreasonable number and length of 27 rest periods. (AR 77-78, 109-10.) The ALJ gave great weight to the opinions of the 28 state agency psychiatric consultants, and along with the medical evidence, the ALJ 10 1 opined that plaintiff’s mental RFC is limited to “unskilled non-public work.” (AR 23.) 2 Plaintiff argues that the ALJ committed error by not including all of the limitations 3 imposed by the state agency psychiatric consultants. (JS 13.) In particular, plaintiff 4 argues the ALJ erred by not including a limitation involving “interacting with 5 supervisors.” (JS 19.) 6 Although the psychiatric consultants found the moderate impairments 7 referenced by plaintiff, all of them agreed that plaintiff’s RFC resulting therefrom was 8 non-public, simple repetitive work. The consultants did not impose any restriction 9 relating to supervision in their recommended RFCs. Therefore, plaintiff’s claim is 10 without merit. 11 CONCLUSION 12 For the foregoing reasons, the judgment of the Commissioner is affirmed. 13 IT IS SO ORDERED. 14 DATED: November 20, 2017 /S/ FREDERICK F. MUMM FREDERICK F. MUMM United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11