Eva J. Shultz v. Carolyn W. Colvin, No. 5:2016cv02565 - Document 25 (C.D. Cal. 2018)
Court Description: MEMORANDUM DECISION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the Commissioner's decision, DENYING Plaintiff's request for remand, and DISMISSING this action with prejudice. (See Order for details) (bem)
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Eva J. Shultz v. Carolyn W. Colvin Doc. 25 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EVA J. SHULTZ, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 16 Defendant. ) Case No. EDCV 16-2565-JPR ) ) ) MEMORANDUM DECISION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 19 I. PROCEEDINGS Plaintiff seeks review of the Commissioner’s final decision 20 denying her applications for Social Security disability insurance 21 benefits (“DIB”) and supplemental security income benefits 22 (“SSI”). 23 undersigned U.S. Magistrate Judge under 28 U.S.C. § 636(c). 24 matter is before the Court on the parties’ Joint Stipulation, 25 filed September 18, 2017, which the Court has taken under 26 submission without oral argument. The parties consented to the jurisdiction of the The For the reasons stated below, 27 28 1 Nancy A. Berryhill is substituted in as the correct Defendant. See Fed. R. Civ. P. 25(d). 1 Dockets.Justia.com 1 the Commissioner’s decision is affirmed. 2 II. 3 BACKGROUND Plaintiff was born in 1953. (Administrative Record (“AR”) 4 89, 121, 131.) 5 substitute teacher (AR 90-91, 282, 291). She completed college (AR 291) and worked as a 6 On May 29, 2012, Plaintiff applied for DIB and SSI, alleging 7 that she had been unable to work since April 28, 2012, because of 8 scoliosis, cellulitis, asthma, rosea, allergies, hernia, spine 9 injury, lower-back pain, arthritis, bad knees, damage to her 10 esophagus and stomach “due to medication,” and Crohn’s disease.2 11 (AR 121, 131, 256-64.) 12 initially and on reconsideration (see AR 168-69, 173-81, 185-89), 13 she requested a hearing before an Administrative Law Judge (AR 14 191). 15 who was represented by counsel, testified. 16 hearing stopped early (see AR 99-100), and the ALJ sent follow-up 17 interrogatories to a vocational and a medical expert (AR 330-43, 18 673-94). After her applications were denied A hearing was held on August 11, 2014, at which Plaintiff, (See AR 83-100.) The They responded on October 14, 2014,3 and August 23, 19 2 20 21 22 23 24 25 26 27 28 Plaintiff previously applied for DIB on October 20, 2009. (See AR 34, 104.) The application was denied, and the decision was affirmed by an ALJ on February 15, 2011. (See AR 34, 10414.) The denial was affirmed by the district court on December 19, 2013. (AR 170-72); Schultz v. Colvin, No. EDCV 12-0989-JPR, 2013 WL 6732879 (C.D. Cal. Dec. 19, 2013). The ALJ here found that Plaintiff had demonstrated changed circumstances since that final decision, however (AR 34-35), and thus the Chavez presumption does not apply. See Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1995) (as amended Apr. 9, 1996) (citing Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988)). Defendant does not contend otherwise. 3 The vocational expert also submitted an almost identical second response on October 27, 2014, which differed in that it suggested light occupations rather than the sedentary occupations suggested in the first. (AR 340-43.) 2 1 2014, respectively. 2 the vocational expert’s opinion (AR 350) and requested a 3 supplemental hearing to address the medical expert’s opinion (AR 4 327-28), which the ALJ apparently declined to hold.4 5 written decision issued December 4, 2014, the ALJ found Plaintiff 6 not disabled. 7 review (AR 30), which was denied on September 27, 2016 (AR 14- 8 18). 9 III. STANDARD OF REVIEW 10 (AR 336-39, 686-94.) (AR 34-49.) Plaintiff objected to In a Plaintiff sought Appeals Council This action followed. Under 42 U.S.C. § 405(g), a district court may review the 11 Commissioner’s decision to deny benefits. 12 decision should be upheld if they are free of legal error and 13 supported by substantial evidence based on the record as a whole. 14 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 15 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 16 evidence means such evidence as a reasonable person might accept 17 as adequate to support a conclusion. 18 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 19 It is more than a scintilla but less than a preponderance. 20 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 21 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 22 substantial evidence supports a finding, the reviewing court 23 “must review the administrative record as a whole, weighing both 24 the evidence that supports and the evidence that detracts from 25 the Commissioner’s conclusion.” The ALJ’s findings and Substantial Richardson, 402 U.S. at To determine whether Reddick v. Chater, 157 F.3d 715, 26 27 28 4 Although Plaintiff raised the ALJ’s failure to acknowledge her responses before the Appeals Council (AR 348-49), she has abandoned the issue here (see generally J. Stip.). 3 1 720 (9th Cir. 1998). “If the evidence can reasonably support 2 either affirming or reversing,” the reviewing court “may not 3 substitute its judgment” for the Commissioner’s. 4 IV. Id. at 720-21. THE EVALUATION OF DISABILITY 5 People are “disabled” for purposes of receiving Social 6 Security benefits if they are unable to engage in any substantial 7 gainful activity owing to a physical or mental impairment that is 8 expected to result in death or has lasted, or is expected to 9 last, for a continuous period of at least 12 months. 42 U.S.C. 10 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 11 1992). 12 A. 13 The ALJ follows a five-step evaluation process to assess The Five-Step Evaluation Process 14 whether a claimant is disabled. 15 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 16 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. 20 416.920(a)(4)(i). 20 C.F.R. §§ 404.1520(a)(4), In the first step, the §§ 404.1520(a)(4)(i), 21 If the claimant is not engaged in substantial gainful 22 activity, the second step requires the Commissioner to determine 23 whether the claimant has a “severe” impairment or combination of 24 impairments significantly limiting her ability to do basic work 25 activities; if not, the claimant is not disabled and her claim 26 must be denied. 27 28 §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If the claimant has a “severe” impairment or combination of impairments, the third step requires the Commissioner to 4 1 determine whether the impairment or combination of impairments 2 meets or equals an impairment in the Listing of Impairments set 3 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 4 disability is conclusively presumed. 5 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 6 If the claimant’s impairment or combination of impairments 7 does not meet or equal an impairment in the Listing, the fourth 8 step requires the Commissioner to determine whether the claimant 9 has sufficient residual functional capacity (“RFC”)5 to perform 10 her past work; if so, she is not disabled and the claim must be 11 denied. 12 has the burden of proving she is unable to perform past relevant 13 work. 14 burden, a prima facie case of disability is established. 15 that happens or if the claimant has no past relevant work, the 16 Commissioner then bears the burden of establishing that the 17 claimant is not disabled because she can perform other 18 substantial gainful work available in the national economy. 19 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 20 That determination comprises the fifth and final step in the 21 sequential analysis. 22 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). Drouin, 966 F.2d at 1257. The claimant If the claimant meets that Id. If §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 23 24 25 5 26 27 28 RFC is what a claimant can do despite existing exertional and nonexertional limitations. §§ 404.1545, 416.945; 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 B. The ALJ’s Application of the Five-Step Process 2 At step one, the ALJ found that Plaintiff had not engaged in 3 substantial gainful activity since April 28, 2012, the alleged 4 onset date. 5 had severe impairments of “obesity; borderline high blood 6 pressure; osteoarthritis; and degenerative disc disease.” 7 37-38.) 8 impairments did not meet or equal a listing. 9 four, the ALJ found that Plaintiff had the RFC to “perform the (AR 37.) At step two, he concluded that Plaintiff (AR At step three, he determined that Plaintiff’s (AR 38.) At step 10 full range of medium work.” 11 expert’s opinion (see AR 330, 336-39), the ALJ concluded that 12 Plaintiff could perform past relevant work as an “[e]lementary 13 school teacher,” DOT 092.227-010, 1991 WL 646895. 14 At step five, he alternatively determined that she could perform 15 other jobs that existed in significant numbers in the national 16 economy. 17 of medium work, the ALJ noted, the Grids dictated a finding of 18 “not disabled.” 19 disabled. 20 V. 21 (Id.) (AR 38-42.) Based on the vocational (AR 42-43.) Indeed, given Plaintiff’s RFC for a full range (AR 43.) Accordingly, he found Plaintiff not (AR 43-44.) DISCUSSION Plaintiff argues that the ALJ improperly rejected the 22 opinion of cardiologist Harvey Alpern, a consulting medical 23 expert. 24 properly evaluated the medical-opinion evidence. 25 remand is not warranted. (J. Stip. at 4-9, 12.) As discussed below, the ALJ Accordingly, 26 A. 27 Three types of physicians may offer opinions in Social 28 Applicable Law Security cases: those who directly treated the plaintiff, those 6 1 who examined but did not treat the plaintiff, and those who did 2 neither. 3 is generally entitled to more weight than an examining 4 physician’s, and an examining physician’s opinion is generally 5 entitled to more weight than a nonexamining physician’s. 6 see §§ 404.1527, 416.927.6 7 nonexamining physician can amount to substantial evidence, so 8 long as other evidence in the record supports those findings.” 9 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 10 11 Lester, 81 F.3d at 830. A treating physician’s opinion Id.; But “the findings of a nontreating, (as amended). The ALJ may disregard a physician’s opinion regardless of 12 whether it is contradicted. 13 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 14 533 F.3d 1155, 1164 (9th Cir. 2008). 15 is not contradicted by other medical-opinion evidence, however, 16 it may be rejected only for “clear and convincing” reasons. 17 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 18 Lester, 81 F.3d at 830-31). Magallanes v. Bowen, 881 F.2d 747, When a physician’s opinion When it is contradicted, the ALJ 19 20 21 22 23 24 25 26 27 28 6 Social Security regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. When, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”); Spencer v. Colvin, No. 3:15-CV-05925-DWC, 2016 WL 7046848, at *9 n.4 (W.D. Wash. Dec. 1, 2016) (“42 U.S.C. § 405 does not contain any express authorization from Congress allowing the Commissioner to engage in retroactive rulemaking”). Accordingly, citations to 20 C.F.R. §§ 404.1527 and 416.927 are to the versions in effect from August 24, 2012, to March 26, 2017. 7 1 must provide only “specific and legitimate reasons” for 2 discounting it. 3 F.3d at 830-31). 4 physician’s opinion, moreover, depends on whether it is 5 consistent with the record and accompanied by adequate 6 explanation, among other things. 7 416.927(c)(3)-(6). 8 afforded the opinions of nonexamining physicians. 9 §§ 404.1527(e); 416.927(e). 10 11 Carmickle, 533 F.3d at 1164 (citing Lester, 81 The weight given a treating or examining §§ 404.1527(c)(3)-(6); Those factors also determine the weight The ALJ considers findings by state- agency medical consultants and experts as opinion evidence. Id. Furthermore, “[t]he ALJ need not accept the opinion of any 12 physician . . . if that opinion is brief, conclusory, and 13 inadequately supported by clinical findings.” 14 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 15 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 16 An ALJ need not recite “magic words” to reject a physician’s 17 opinion or a portion of it; the court may draw “specific and 18 legitimate inferences” from the ALJ’s opinion. 19 F.2d at 755. 20 context of “the entire record as a whole,” and if the “‘evidence 21 is susceptible to more than one rational interpretation,’ the 22 ALJ’s decision should be upheld.” 23 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 24 25 26 B. Thomas v. Magallanes, 881 The Court must consider the ALJ’s decision in the Ryan v. Comm’r of Soc. Sec., Relevant Background 1. Dr. Alpern On August 23, 2014, medical expert Dr. Alpern filled out a 27 medical-source statement regarding Plaintiff’s ability to do 28 physical work-related activities. 8 (AR 686-94.) He opined that 1 Plaintiff could “[f]requently” lift and carry “[u]p to 10 lbs” 2 and “[o]ccasionally” lift and carry “11 to 20 lbs.” 3 She could sit, stand, and walk for “2” hours “[a]t [o]ne [t]ime” 4 without interruption; sit for “6” hours “[t]otal in an 8 hour 5 work day”; and stand and walk for “2” hours “[t]otal in an 8 hour 6 work day.” 7 ambulate” (id.) and could “[f]requently” operate foot controls 8 with both of her feet (AR 688). 9 both hands for reaching, handling, fingering, feeling, pushing, (AR 687.) (AR 686.) She did not “require the use of a cane to She could “[f]requently” use 10 and pulling. 11 “[o]ccasionally” climb stairs, ramps, ladders, or scaffolds; 12 balance; stoop; kneel; crouch; or crawl. 13 impairments affected her hearing or vision (id.), but she could 14 only “[o]ccasionally” “tolerate exposure to” unprotected heights, 15 moving mechanical parts, or dust, odors, fumes, or pulmonary 16 irritants (AR 690). 17 (Id.) Dr. Alpern stated that Plaintiff could (AR 689.) None of her Dr. Alpern also opined that Plaintiff could do all of the 18 following: “perform activities like shopping”; “travel without a 19 companion for assistance”; “ambulate without a wheelchair, walker 20 or 2 canes or 2 crutches”; “walk a block at a reasonable pace on 21 rough or uneven surfaces”; “use standard public transportation”; 22 “climb a few steps at a reasonable pace with the use of a single 23 hand rail”; “prepare a simple meal [and] feed . . . herself”; 24 “care for [her] personal hygiene”; and “sort, handle, or use 25 paper/files.” 26 degenerative joint and disc disease,7 asthma, and high blood (AR 691.) He diagnosed her with obesity, 27 28 7 He noted, however, that there was “no radiological support” for either. (AR 692.) 9 1 2 pressure. (AR 692.) The form Dr. Alpern filled out asked in eight different 3 places what “particular medical or clinical findings” supported 4 the assessment or limitations and how; Dr. Alpern left each such 5 question blank. 6 asking whether “any other work-related activities . . . are 7 affected by any impairments.” 8 9 2. (AR 686-91.) He also left blank a question (AR 691.) State-agency physicians In August 2012, state-agency medical consultant Dr. H. Han 10 reviewed Plaintiff’s medical records. 11 Plaintiff’s only severe impairment to be discogenic and 12 degenerative back disorder. 13 had the following exertional limitations: she could “lift and/or 14 carry” 50 pounds “occasionally” and 25 pounds “frequently”; 15 “[s]tand and/or walk” for “[a]bout 6 hours in an 8-hour workday”; 16 sit for “[a]bout 6 hours in an 8-hour workday”; and “[p]ush 17 and/or pull” an “[u]nlimited” amount aside from her lifting and 18 carrying restrictions. 19 had the RFC to perform her past relevant work as a substitute 20 teacher as “[a]ctually [p]erformed.” 21 (AR 121-40.) (AR 126, 136.) (AR 127, 137.) He found He opined that she He also found that she (AR 128-29, 138-39.) In April 2013, state-agency medical consultant Dr. N. 22 Tsoulos reviewed Plaintiff’s medical records. 23 found that Plaintiff had the following severe impairments: spine 24 disorders, asthma, inflammatory arthritis, diseases of the 25 esophagus, and inflammatory bowel disease. 26 further found the same exertional limitations and capacity to 27 perform her past relevant work as Dr. Han. 28 His review showed that “the objective findings [did] not fully 10 (AR 144-67.) (AR 151, 163.) He He (AR 152-54, 164-66.) 1 support [Plaintiff’s] alleged degree of functional impairment.” 2 (AR 150, 162.) 3 3. 4 Medical records Plaintiff’s medical records consist largely of appointments 5 with family physician Gita Tavassoli from 2011 through 2014.8 6 The earliest notes available date to March 2011, when Plaintiff 7 reported experiencing left-knee pain and right-hand numbness.9 8 (AR 392-93.) 9 and Motrin for her pain. She was prescribed Gabapentin10 for her numbness (Id.) In May 2011, Plaintiff 10 complained of lower-back pain at a level of “4/10” and stated 11 that she was “unable to sit or stand longer than one hour,” but 12 upon examination her back showed “[n]ormal [c]urvature” and 13 “[f]ull [range of motion].” 14 performed in June 2011 concluded that “[n]erve conductions of 15 both upper extremities [were] normal.” 16 up appointments with Dr. Tavassoli in January and March 2012, 17 Plaintiff reported “[no] pain” and “no new complaints.” 18 67.) 19 Dr. Tavassoli stated that her cellulitis was “resolved with 20 keflex”11 and assessed her with “chronic” diarrhea secondary to a (AR 390.) A nerve conduction study (AR 382-83.) At follow- (AR 366- In June 2012, Plaintiff described her pain as “0/10,” and 21 22 8 The ALJ gave “little weight” to Dr. Tavassoli’s opinions (AR 41), a finding Plaintiff has not challenged on appeal. 23 9 24 25 26 27 28 The ALJ found Plaintiff “less than fully credible” (AR 39), which she has not challenged on appeal. 10 Gabapentin is used to treat nerve pain. Gabapentin, Drugs.com, https://www.drugs.com/gabapentin.html (last updated Nov. 7, 2017). 11 Keflex is an antibiotic used to treat skin infections, among other things. See Keflex, Drugs.com, https:// www.drugs.com/keflex.html (last updated Apr. 18, 2017). 11 food allergy. 2 and prescribed Claritin, Nexium,13 albuterol sulfate,14 and 3 Flovent.15 4 (AR 355.) She was referred for a barium enema12 1 (AR 355, 357.) In July 2012, bilateral radiographs of Plaintiff’s ankles, 5 knees, and shoulders showed that although “[t]here [was] 6 narrowing” of the joints “consistent with osteoarthritis,” 7 “[t]here [was] no radiographic evidence of bony erosion.” 8 415-16, 422, 426-27.) 9 were “unremarkable,” with “[n]o acute osseous abnormality.” (AR Radiographs of her right and left hands (AR 10 420-21.) 11 showed “[m]ild dextroscoliosis” and “[m]ultilevel discogenic 12 disease with thoracic spondylosis” (AR 423); her cervical spine, 13 which showed “mild degenerative disc disease” (AR 428); and her 14 lumbrosacral spine, which showed “[m]ultilevel discogenic disease 15 and lumbar spondylosis” (AR 429). 16 a barium enema, which showed “scattered colonic diverticular,” She also had radiographs of her thoracic spine, which That same month, she underwent 17 18 19 20 21 22 23 24 25 26 27 28 12 A barium enema is an x-ray of the large intestine. See Barium Enema, WebMD, https://www.webmd.com/digestive-disorders/ barium-enema#1 (last visited Mar. 13, 2018). 13 Nexium treats stomach and esophagus problems by decreasing the amount of acid made by the stomach. See Nexium Capsule, Delayed Release, WebMD, https://www.webmd.com/drugs/ 2/drug-20536/nexium-oral/details (last visited Mar. 13, 2018). 14 Albuterol treats wheezing and shortness of breath caused by asthma. See Albuterol Sulfate, WebMD, https://www.webmd.com/ drugs/2/drug-4872-3008/albuterol-sulfate-inhalation/ albuterol-salbutamol-solution-inhalation/details (last visited Mar. 13, 2018). 15 Flovent controls and prevents symptoms caused by asthma by reducing swelling of the airways in the lungs to make breathing easier. See Flovent Aerosol, WebMD, https:// www.webmd.com/drugs/2/drug-13522/flovent-inhalation/details (last visited Mar. 13, 2018). 12 1 “mild diminished caliber of the sigmoid color,” and “mild 2 irregularity and fold thickening of the inferior wall of the 3 transverse colon.” 4 complained of pain at “3/10,” and Dr. Tavassoli referred her to a 5 “GI clinic for [a] colonoscopy” and again assessed her with 6 “chronic” diarrhea. 7 remained the same. 8 described her pain as “4/10.” 9 (AR 417.) In August 2012, Plaintiff (AR 475-76.) (AR 476.) Her prescribed medications In October 2012, Plaintiff (AR 460-61.) In February 2013, Plaintiff stated that her pain was at 10 “0/10” (AR 443), but by March 2013, she complained of pain at 11 “8/10”; Dr. Tavassoli assessed her barium enema as “[a]bnormal,” 12 with “loose stool and no constipation,” and again referred her to 13 “GI.” 14 left-hip pain at “2/10,” but Dr. Tavassoli observed both hips to 15 have a “[f]ull range of motion” and “no joint deformity, heat, 16 swelling, erythema or effusion.” 17 Plaintiff was prescribed physical therapy for her left-shoulder 18 pain. 19 shoulder showed “[n]o acute osseous abnormality” and “[n]o 20 significant degenerative change.” 21 2013, Plaintiff described her knee pain as “6/10.” 22 She also showed signs of edema, which Dr. Tavassoli prescribed 23 hydrochlorothiazide to treat.16 24 her right knee showed “no effusion” or “displaced fracture” and 25 only a “minimal irregularity to the medial tibial spine.” (AR 430-31, 516.) (AR 511.) In April 2013, Plaintiff complained of (AR 514.) In May 2013, In July 2013, a radiograph of Plaintiff’s left (AR 487-88, 661.) (AR 500.) In August (AR 499-500.) In September 2013, (AR 26 27 28 16 Hydrochlorothiazide reduces extra fluid in the body. See Hydrochlorothiazide, WebMD, https://www.webmd.com/drugs/2/ drug-5310/hydrochlorothiazide-oral/details (last visited Mar. 13, 2018). 13 1 487, 659.) Dr. Tavassoli advised using an ice pack and getting 2 rest. 3 and right-shoulder pain as “7/10.” 4 Tavassoli noted that her “[r]ight shoulder [had] tenderness[ and] 5 moderate pain [with] motion” and an x-ray of it showed “mild 6 arthritis,” Plaintiff “refuse[d] any intervention” aside from 7 occupational therapy. 8 recommended “[M]otrin as needed” for her hip pain. 9 that month, Plaintiff’s hip joints “appear[ed] unremarkable” but (AR 497.) In October 2013, Plaintiff described her hip (AR 491.) (AR 490-91.) Though Dr. Dr. Tavassoli further (Id.) Later 10 also demonstrated “[i]liac wing enthesopathy.” 11 In November 2013, Plaintiff described her pain as “9/10,” and her 12 left pelvis was “tender” on the lateral hip joint; Dr. Tavassoli 13 referred her to physical therapy. 14 Dr. Tavassoli diagnosed Plaintiff with arthritis and advised her 15 to use a “heating patch on [her] back” and to “cont[inue] 16 [M]otrin as needed.” (AR 620.) (AR 486, 657-58.) In December 2013, (AR 617.) 17 Plaintiff’s remaining musculoskeletal physical exams in the 18 record — from late 2013 to late 2014 — showed “[n]ormal range of 19 motion, muscle strength, and stability in all extremities with no 20 pain on inspection.” 21 611 (Feb. 2014), 614 (Jan. 2014), 617 (Dec. 2013), 663 (May 22 2014), 699 (Sept. 2014), 707 (Aug. 2014). 23 2014: “[l]umbar spine has tenderness”).) 24 radiograph of her right shoulder demonstrated “no acute fracture 25 dislocation,” “normal” soft tissues, and “[n]o acute 26 abnormality.” 27 right-knee pain but “refuse[d] any steroid injection” as 28 treatment. (See AR 529 (May 2014), 608 (Apr. 2014), (AR 660.) But see AR 729 (Oct. In February 2014, a In April 2014, Plaintiff complained of (AR 608.) 14 1 C. Analysis 2 The ALJ gave “little weight” to Dr. Alpern’s opinion and 3 “some weight” to the opinions of Drs. Han and Tsoulos. 4 42.) 5 argues that the ALJ improperly rejected Dr. Alpern’s opinion. 6 (J. Stip. at 4-9.) 7 because the functional limitations he assessed were “too limiting 8 based on the medical evidence of record”; Plaintiff “received 9 routine and conservative treatment”; and “Dr. Alpern did not have None of the doctors had examined Plaintiff. (AR 41- Plaintiff The ALJ discounted Dr. Alpern’s opinion 10 the benefit of personally observing and examining [Plaintiff].” 11 (AR 41.) 12 was required to provide a “specific and legitimate” reason for 13 rejecting it. 14 15 Because Dr. Alpern’s opinion was contradicted, the ALJ 1. See Carmickle, 533 F.3d at 1164. He did so. Medical evidence of record Plaintiff contends that the ALJ “improperly rejected Dr. 16 Alpern’s assessment of the medical evidence” and “substitute[d] 17 his . . . own interpretation of the medical evidence for the 18 opinion of [Dr. Alpern].” 19 (J. Stip. at 5-6.) Inconsistency with the objective medical evidence can be a 20 specific and legitimate reason for rejecting a medical-source 21 opinion. 22 Cir. 2017) (upholding inconsistency with medical-opinion evidence 23 as specific and legitimate reason for rejecting medical opinion 24 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 25 2008))). 26 when it is conclusory, brief, and unsupported by the objective 27 medical evidence. 28 Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992) (citing See Kohansby v. Berryhill, 697 F. App’x 516, 517 (9th Further, the ALJ may discount a physician’s opinion Batson, 359 F.3d at 1195; Matney ex rel. 15 1 Magallanes, 881 F.2d at 751). 2 Plaintiff could lift and carry 10 pounds frequently and 20 pounds 3 occasionally and could sit for six hours, stand for two hours, 4 and walk for two hours total in an eight-hour workday. 5 87.) 6 however, despite being specifically asked what “particular 7 medical or clinical findings” supported his assessment. 8 id.) 9 Dr. Alpern indicated that (AR 686- He did not provide any explanation for those findings, (See The ALJ noted that the “functional limitations . . . [were] 10 too limiting based on the medical evidence of record.” 11 He cited the lack of “diagnostic imaging . . . reveal[ing] 12 significant findings such as neuropathy or nerve root 13 impingement” (AR 41 (citing AR 382, 423, 428)) and Plaintiff’s 14 “physical examinations show[ing] full range of motion of the 15 upper and lower extremities, normal muscle strength and normal 16 stability” (AR 40 (citing AR 482-83, 514, 529, 605, 608, 611, 17 614, 617, 640, 663, 699, 702, 707, 712, 718-19)). 18 Plaintiff’s diagnostic exams consistently demonstrated either 19 unremarkable or mild results. 20 nerve conduction study), 415-16 (signs of osteoarthritis in 21 ankles, but “no radiographic evidence of bony erosion”), 417 22 (barium enema finding “mild irregularity”), 420-21 23 (“unremarkable” results with “[n]o acute osseous abnormality” in 24 hands), 422 (signs of osteoarthritis in knees, but “no 25 radiographic evidence of bony erosion”), 423 (“[m]ild 26 dextroscoliosis” and “[m]ultilevel discogenic disease with 27 thoracic spondylosis” in thoracic spine), 426-27 (signs of 28 osteoarthritis in shoulders, but “no radiographic evidence of (AR 41.) Indeed, (See, e.g., AR 382-83 (“normal” 16 1 bony erosion”), 428 (“mild degenerative disc disease” in cervical 2 spine), 486 (“hip joints appear unremarkable” despite impression 3 of iliac wing enthesopathy), 487-88 (“[n]o acute osseous 4 abnormality” or “significant degenerative change” in left 5 shoulder), 659 (“[n]o displaced fracture” or “effusion” in right 6 knee), 660 (“[n]o acute abnormality [in] right shoulder”).) 7 the extent Plaintiff was diagnosed with degenerative disc disease 8 and osteoarthritis, objective findings show it was “mild.” 9 AR 415-16, 422, 426-28.) To (See Moreover, her physical exams 10 consistently were “normal” (e.g., AR 718-19), showing “stability 11 in all extremities with no pain on inspection” (AR 529 (May 12 2014), 608 (Apr. 2014), 611 (Feb. 2014), 614 (Jan. 2014), 617 13 (Dec. 2013), 663 (May 2014), 699 (Sept. 2014), 707 (Aug. 14 2014)).17 15 Plaintiff also contends that the ALJ erred by giving more 16 weight to the opinions of the state-agency medical consultants 17 than he did to Dr. Alpern’s opinion, even though Dr. Alpern “had 18 the opportunity to review . . . more recent records and assessed 19 a more restrictive [RFC] as a result.” 20 additional evidence reviewed by Dr. Alpern belies his more 21 restrictive RFC, however. 22 Tsoulos evaluated Plaintiff’s medical records, in April 2013, and (J. Stip. at 7.) The In the 16 months between when Dr. 23 17 24 25 26 27 28 The ALJ concluded that Plaintiff’s asthma — which Dr. Alpern included among his diagnoses (AR 692) — was not a severe impairment because it was “under control” during the relevant period (AR 42), a finding Plaintiff has not challenged on appeal. Thus, to the extent any of the limitations assessed by Dr. Alpern allegedly resulted from her asthma — something the Court cannot tell because Dr. Alpern did not provide any explanation for his findings — the limitations are inconsistent with the medical evidence as determined by the ALJ and not challenged by Plaintiff. 17 1 when Dr. Alpern submitted his opinion, in August 2014, Plaintiff 2 showed relative improvement. 3 physical exams from late 2013 until the date of the ALJ’s 4 decision showed a “[n]ormal range of motion, muscle strength, and 5 stability in all extremities with no pain on inspection.” 6 e.g., AR 529, 608, 611, 614, 617, 663, 699, 707.) 7 physical- and occupational-therapy sessions during that time also 8 showed improvement. 9 improving and “able to reach behind [her] back.” Most of her musculoskeletal (See, Notes from her For example, in April 2014, Plaintiff was (AR 525.) By 10 May 2014, she reported “50% improvement” of her right shoulder 11 from therapy and stated that she was “able to reach above [her] 12 head for items,” which she had “previously [been] unable [to 13 do].” 14 Cir. 1985) (holding that most recent medical report only most 15 probative when plaintiff’s “condition was progressively 16 deteriorating”); Young v. Heckler, 803 F.2d 963, 968 (9th Cir. 17 1986) (per curiam) (holding that ALJ not required to afford 18 greater weight to most recent medical report because condition 19 “improved” rather than deteriorated). 20 (AR 521); see Stone v. Heckler, 761 F.2d 530, 532 (9th Thus, that Dr. Alpern’s opinion was inconsistent with the 21 objective medical evidence was a specific and legitimate reason 22 for rejecting it. 23 24 2. See Kohansby, 697 F. App’x at 517. Routine and conservative treatment The ALJ also discounted Dr. Alpern’s opinion because 25 Plaintiff had “received routine and conservative treatment . . . 26 which suggest[ed] that her conditions [did] not cause significant 27 symptoms and functional limitations.” 28 treatment can constitute a specific and legitimate reason to 18 (AR 41.) Conservative 1 discount a physician’s opinion. 2 App’x 703, 705 (9th Cir. 2016) (finding that ALJ permissibly 3 discounted physician’s opinion based in part on plaintiff’s 4 conservative treatment). 5 See Hanes v. Colvin, 651 F. Plaintiff’s musculoskeletal pain in her back, hips, knees, 6 and shoulders was treated almost entirely with ibuprofen (see, 7 e.g., AR 491 (“motrin as needed” for hip pain), 515 (Motrin 8 prescribed)), ice packs and rest (see, e.g., AR 497 (“wrapping 9 and cold/ice pack” for knee pain)), and physical and occupational 10 therapy (see, e.g., AR 511 (physical therapy for left-shoulder 11 pain), 514 (same for left-hip pain), 611 (“refer to [occupational 12 therapy]” for left-shoulder pain)). 13 prescribed. 14 conditions, as she often reported zero or similarly low levels of 15 pain (see, e.g., AR 503 (July 2013: 0/10), 514 (Apr. 2013: 2/10), 16 529 (May 2014: 0/10), 563 (Feb. 2013: 0/10), 584 (Jan. 2014: 17 0/10), 588 (Dec. 2013: 3/10), 590 (Oct. 2013: 1-2/10), 593 (Oct. 18 2013: 0/10), 600 (June 2013: 0/10), 611 (Feb. 2014: 0/10), 617 19 (Dec. 2013: 2/10), 646 (Mar. 2013: 3/10), 707 (Aug. 2014: 0/10), 20 729 (Oct. 2014: 0/10), 732 (Sept. 2014: 0/10), 745 (Dec. 2014: 21 3/10)); cf. Warre v. Comm’r of Soc. Sec. Admin., 439 F.3d 1001, 22 1006 (9th Cir. 2006) (“Impairments that can be controlled 23 effectively with medication are not disabling for the purpose of 24 determining eligibility for SSI benefits.”), and to the extent 25 she complained of higher levels of pain, the ALJ found her to be 26 “less than fully credible” (see AR 39), which she has not 27 challenged. 28 asthma with albuterol and Flovent (see, e.g., AR 355, 611), and Narcotics were never The Motrin seemingly helped manage Plaintiff’s Plaintiff’s diarrhea was treated with Nexium and her 19 1 the ALJ found neither impairment severe, which Plaintiff also has 2 not challenged on appeal. 3 Plaintiff’s physical- and occupational-therapy sessions also 4 decreased her symptoms. 5 all [therapy],” she “tolerated treatment well,” and “[b]oth [her] 6 strength and endurance [were] improved.” 7 occupational therapy in May 2014, she “report[ed] 50% improvement 8 of [her right] shoulder” and increased range of motion. 9 521.) In early 2012, she “responded well to (AR 402-03.) At (AR The ALJ thus properly characterized Plaintiff’s treatment 10 as conservative. 11 2006150, at *2 (C.D. Cal. June 5, 2012) (Motrin is conservative 12 treatment); Thomas v. Astrue, No. EDCV 10-01550-JEM, 2011 WL 13 4529599, at *4 (C.D. Cal. Sept. 30, 2011) (same); Tommasetti, 533 14 F.3d at 1040 (describing physical therapy as conservative). 15 Accordingly, Plaintiff’s conservative treatment was a specific 16 and legitimate reason for the ALJ to discount Dr. Alpern’s 17 opinion. 18 19 See Pruitt v. Astrue, No. CV 11-8158-E, 2012 WL See Hanes, 651 F. App’x at 705. 3. Lack of personal observance Finally, the ALJ also noted that Dr. Alpern “did not have 20 the benefit of personally observing and examining [Plaintiff].” 21 (AR 41.) 22 medical testimony and ambiguities in the evidence, Magallanes, 23 881 F.2d at 750, and the lack of an examining or treating 24 relationship was an appropriate consideration in doing so, see 25 §§ 404.1527(c), 416.927(c). 26 medical records without personally observing or examining her was 27 a specific and legitimate reason to give his opinion “little 28 weight.” The ALJ is responsible for resolving conflicts in That Dr. Alpern reviewed Plaintiff’s (AR 41); see Paden v. Berryhill, No. EDCV 16-02457-JEM, 20 1 2017 WL 6509231, at *5 (C.D. Cal. Dec. 20, 2017) (holding that 2 ALJ’S rejection of nonexamining physician’s opinion in part 3 because he did not personally examine plaintiff was specific and 4 legitimate reason). 5 this case that reason was “[i]nconsistent with the ALJ’s own 6 logic” because the state-agency doctors also did not examine 7 Plaintiff. 8 only “some weight” (AR 41-42) and would not have been wrong to 9 discount them on that basis as well. 10 Plaintiff objects that in the context of (J. Stip. at 7.) But the ALJ gave their opinions Accordingly, the ALJ did not err in assessing the medical- 11 opinion evidence. 12 ALJ’s decision. Substantial evidence therefore supports the As such, remand is not warranted.18 See Stubbs- 13 18 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 As Plaintiff points out (J. Stip. at 8-9), the ALJ likely erred by finding at step four that her past work as an elementary school teacher was past relevant work (see AR 42). “A job qualifies as past relevant work only if it involved substantial gainful activity,” and “low earnings shift[] the step-four burden of proof from the claimant to the Commissioner.” Lewis v. Apfel, 236 F.3d 503, 515 (9th Cir. 2001); cf. §§ 404.1565, 416.965. The monthly substantial-gainful-activity minimum was $500 for the 15 years before Plaintiff’s alleged onset date. See Substantial Gainful Activity, Soc. Sec. Admin., https://www.ssa.gov/oact/ cola/sga.html (last visited Mar. 13, 2018). Plaintiff apparently worked once a week earning $110 a day, totaling $440 a month (AR 291), which falls below the monthly amount. (At the hearing, Plaintiff appeared to testify that she last worked “two partial days” a week. (AR 89.) In any event, none of Plaintiff’s annual earnings showed substantial gainful activity. (See AR 269-75.)) As an initial matter, this argument is likely waived because Plaintiff never raised it during the administrative proceedings. (See AR 83-100, 347-49); Sims v. Apfel, 530 U.S. 103, 107, 112 (2000); Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999) (as amended); Shaibi v. Berryhill, __ F.3d __, No. 15-16849, 2017 WL 7798666, at *6 (9th Cir. Aug. 22, 2017) (as amended Feb. 28, 2018). Further, any error was harmless because the ALJ made alternative findings at step five, noting that “[b]ased on a [RFC] for the full range of medium work” and “considering [Plaintiff’s] age, education, and work experience,” the MedicalVocational Guidelines directed a finding of “not disabled.” (AR 42-43.) 21 1 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 2 VI. 3 CONCLUSION Consistent with the foregoing and under sentence four of 42 4 U.S.C. § 405(g),19 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: March 15, 2018 9 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19 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.” 22
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