Lori Burt v. Nancy A. Berryhill, No. 5:2017cv00714 - Document 22 (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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Lori Burt v. Nancy A. Berryhill Doc. 22 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LORI BURT, Plaintiff, 12 13 v. 14 15 NANCY A. BERRYHILL, Acting Commissioner of Social Security, 16 Defendant. ) Case No. EDCV 17-0714-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 December 5, 2017, which the Court has taken under 26 submission without oral argument. 27 the Commissioner’s decision is affirmed. The parties consented to the jurisdiction of the The For the reasons stated below, 28 1 Dockets.Justia.com 1 2 II. BACKGROUND Plaintiff was born in 1960. (Administrative Record (“AR”) 3 44, 54, 199.) 4 sales manager in a consignment store and an in-home caretaker (AR 5 27-30, 37, 204, 228, 248). 6 She completed high school (AR 204) and worked as a On November 20, 2013, Plaintiff applied for DIB and SSI, 7 alleging that she had been unable to work since October 15, 2013, 8 because of fibromyalgia, nerve damage, sciatica, “spinal issues,” 9 degenerative joint disease, vascular veins, shoulder pain, lower- 10 back and leg pain and swelling, and “[f]oot problems.” 11 45, 54-55, 159-61, 165-74, 203.) 12 denied initially and on reconsideration (see AR 64-65, 74-81), 13 she requested a hearing before an Administrative Law Judge (AR 14 82-83). 15 Plaintiff, who was represented by counsel, testified, as did a 16 vocational expert. 17 issued September 1, 2015, the ALJ found Plaintiff not disabled. 18 (AR 10-22.) 19 which was denied on March 6, 2017 (AR 1-4). 20 followed. 21 III. STANDARD OF REVIEW 22 (AR 44- After her applications were A hearing was held on August 7, 2015, at which (See AR 23-43, 157.) In a written decision Plaintiff sought Appeals Council review (AR 5), This action Under 42 U.S.C. § 405(g), a district court may review the 23 Commissioner’s decision to deny benefits. 24 decision should be upheld if they are free of legal error and 25 supported by substantial evidence based on the record as a whole. 26 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 27 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). 28 evidence means such evidence as a reasonable person might accept 2 The ALJ’s findings and Substantial 1 as adequate to support a conclusion. Richardson, 402 U.S. at 2 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 3 It is more than a scintilla but less than a preponderance. 4 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 5 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). 6 substantial evidence supports a finding, the reviewing court 7 “must review the administrative record as a whole, weighing both 8 the evidence that supports and the evidence that detracts from 9 the Commissioner’s conclusion.” To determine whether Reddick v. Chater, 157 F.3d 715, 10 720 (9th Cir. 1998). 11 either affirming or reversing,” the reviewing court “may not 12 substitute its judgment” for the Commissioner’s. 13 IV. “If the evidence can reasonably support Id. at 720-21. THE EVALUATION OF DISABILITY 14 People are “disabled” for purposes of receiving Social 15 Security benefits if they are unable to engage in any substantial 16 gainful activity owing to a physical or mental impairment that is 17 expected to result in death or has lasted, or is expected to 18 last, for a continuous period of at least 12 months. 19 § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 20 1992). 42 U.S.C. 21 A. The Five-Step Evaluation Process 22 The ALJ follows a five-step evaluation process to assess 23 whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 24 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 25 1995) (as amended Apr. 9, 1996). 26 Commissioner must determine whether the claimant is currently 27 engaged in substantial gainful activity; if so, the claimant is 28 not disabled and the claim must be denied. In the first step, the 3 §§ 404.1520(a)(4)(i), 1 416.920(a)(4)(i). 2 If the claimant is not engaged in substantial gainful 3 activity, the second step requires the Commissioner to determine 4 whether the claimant has a “severe” impairment or combination of 5 impairments significantly limiting her ability to do basic work 6 activities; if not, the claimant is not disabled and her claim 7 must be denied. 8 9 §§ 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 10 determine whether the impairment or combination of impairments 11 meets or equals an impairment in the Listing of Impairments set 12 forth at 20 C.F.R. part 404, subpart P, appendix 1; if so, 13 disability is conclusively presumed. 14 416.920(a)(4)(iii). §§ 404.1520(a)(4)(iii), 15 If the claimant’s impairment or combination of impairments 16 does not meet or equal an impairment in the Listing, the fourth 17 step requires the Commissioner to determine whether the claimant 18 has sufficient residual functional capacity (“RFC”)1 to perform 19 her past work; if so, she is not disabled and the claim must be 20 denied. 21 has the burden of proving she is unable to perform past relevant 22 work. 23 burden, a prima facie case of disability is established. 24 that happens or if the claimant has no past relevant work, the §§ 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 25 1 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)). 4 1 Commissioner then bears the burden of establishing that the 2 claimant is not disabled because she can perform other 3 substantial gainful work available in the national economy. 4 §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); Drouin, 966 F.2d at 1257. 5 That determination comprises the fifth and final step in the 6 sequential analysis. 7 Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); 8 B. 9 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 10 substantial gainful activity since October 15, 2013, the alleged 11 onset date. 12 had severe impairments of “lumbar degenerative disc disease, 13 spondylosis and varicose veins.” 14 determined that Plaintiff’s impairments did not meet or equal a 15 listing. 16 had the RFC to perform a limited range of light work: (AR 12.) (AR 13.) At step two, he concluded that Plaintiff (AR 12-13.) At step three, he At step four, the ALJ found that Plaintiff 17 [She] can lift and/or carry no more than 20 pounds 18 occasionally and 10 pounds frequently and sit, stand 19 and/or walk no more than six hours out of eight[,] [but] 20 [p]ushing and/or pulling with either the upper or lower 21 extremities 22 limitations 23 occasionally climb ramps or stairs but never ladders, 24 ropes 25 occasionally bend, stoop or kneel but is precluded from 26 work requiring crawling. or is unlimited described[;] scaffolds[;] other [s]he and she than for can no can no the more more 27 (AR 13-17.) 28 Plaintiff could perform her past relevant work as an weight than than Based on the VE’s testimony, the ALJ concluded that 5 1 “owner/manager of a thrift store.” 2 Plaintiff not disabled. 3 V. (AR 17.) Thus, he found (AR 17-18.) DISCUSSION 4 Plaintiff argues that the ALJ improperly rejected the 5 opinion of internist David L. Blinn, a treating physician. 6 Stip. at 3-7.) 7 the medical-opinion evidence. 8 warranted. 9 10 A. (J. As discussed below, the ALJ properly evaluated Accordingly, remand is not Applicable Law Three types of physicians may offer opinions in Social 11 Security cases: those who directly treated the plaintiff, those 12 who examined but did not treat the plaintiff, and those who did 13 neither. 14 is generally entitled to more weight than an examining 15 physician’s, and an examining physician’s opinion is generally 16 entitled to more weight than a nonexamining physician’s. 17 see §§ 404.1527, 416.927.2 18 nonexamining physician can amount to substantial evidence, so Lester, 81 F.3d at 830. A treating physician’s opinion Id.; But “the findings of a nontreating, 19 20 21 22 23 24 25 26 27 28 2 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. 6 1 long as other evidence in the record supports those findings.” 2 Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996) (per curiam) 3 (as amended). 4 The ALJ may disregard a physician’s opinion regardless of 5 whether it is contradicted. 6 751 (9th Cir. 1989); see Carmickle v. Comm’r, Soc. Sec. Admin., 7 533 F.3d 1155, 1164 (9th Cir. 2008). 8 is not contradicted by other medical-opinion evidence, however, 9 it may be rejected only for “clear and convincing” reasons. Magallanes v. Bowen, 881 F.2d 747, When a physician’s opinion 10 Magallanes, 881 F.2d at 751; Carmickle, 533 F.3d at 1164 (citing 11 Lester, 81 F.3d at 830-31). 12 must provide only “specific and legitimate reasons” for 13 discounting it. 14 F.3d at 830-31). 15 physician’s opinion, moreover, depends on whether it is 16 consistent with the record and accompanied by adequate 17 explanation, among other things. 18 416.927(c)(3)-(6). 19 afforded the opinions of nonexamining physicians. 20 §§ 404.1527(e), 416.927(e). 21 agency medical consultants and experts as opinion evidence. 22 When it is contradicted, the ALJ 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 stateId. Furthermore, “[t]he ALJ need not accept the opinion of any 23 physician . . . if that opinion is brief, conclusory, and 24 inadequately supported by clinical findings.” 25 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Batson v. 26 Comm’r of Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th Cir. 2004). 27 An ALJ need not recite “magic words” to reject a physician’s 28 opinion or a portion of it; the court may draw “specific and 7 Thomas v. 1 legitimate inferences” from the ALJ’s opinion. 2 F.2d at 755. 3 context of “the entire record as a whole,” and if the “‘evidence 4 is susceptible to more than one rational interpretation,’ the 5 ALJ’s decision should be upheld.” 6 528 F.3d 1194, 1198 (9th Cir. 2008) (citation omitted). 7 B. 8 The Court must consider the ALJ’s decision in the Ryan v. Comm’r of Soc. Sec., Relevant Background 1. 9 Magallanes, 881 Medical records Plaintiff alleges that the onset date of her disability was 10 October 15, 2013. 11 treatment at Little River Medical Clinic. 12 She had a history of hypertension, hypothyroidism, 13 osteoarthritis, degenerative disc disease of the lumbar spine, 14 bilateral vein-stripping surgeries, and epidural injections. 15 342, 350.) 16 person”; “[w]ell developed”; and “[i]n no acute distress.” 17 344, 350-51.) 18 suppleness.” 19 on palpation” to her back, “[l]umbosacral spine pain was elicited 20 by motion, especially with flexion,” and “[b]ack extension [was] 21 markedly restricted and painful.” 22 “normal shoulder range of motion to forward flexion and 23 abduction.” 24 intrinsic strengths [were] 5/5,” and her “[q]uadriceps, plantar, 25 and dorsiflexors strengths [were] 5/5.” 26 four extremities and all dermatomes” was “intact to light touch.” 27 (Id.) 28 hypothyroidism, “[l]umbar degenerative dis[c] disease with (See AR 45, 55.) In October 2013, she sought (AR 342-45, 350-51.) (AR She was “[a]lert”; “[o]riented to time, place, and (AR Her “[n]eck demonstrated no decrease in (AR 344.) (AR 351.) Though she experienced “[n]o tenderness (AR 344, 351.) She had Her “[b]iceps, triceps, and hand (Id.) Sensation “in all She was assessed with “[b]enign essential hypertension,” 8 1 chronic back pain,” “[p]robable fibromyalgia syndrome,” and 2 “[l]ong-term opioid use.” 3 “hope[d] to find a job as a Home Care Aid.” 4 (AR 344, 351.) She reported that she (AR 343.)3 On February 5, 2014, Plaintiff saw interventional pain 5 specialist and anesthesiologist Kevin Hibbard at Advanced Pain 6 Medicine. 7 behavior” and was “able to comfortably endure the history and 8 physical examination.” 9 was “well-developed,” “well-nourished,” and “in no acute (AR 361-63.) She “exibit[ed]” “no overt pain (AR 362.) Dr. Hibbard observed that she 10 distress.” 11 clubbing, [or] edema” and “exhibit[ed] normal tone and muscle 12 bulk.” 13 and distally in all 4 extremities except +4/5 [in her] left 14 quadricep flexion.” 15 preserved in all 4 extremities symmetrically,” but she had 16 “[d]ecreased sensation to light touch diffusely in [her] left 17 lower leg.” 18 positive on the left and negative on the right.” 19 lumbar flexion was “[m]oderate[ly] decreased” “due to pain,” and 20 though her lumbar extension was “[i]ntact,” she “report[ed] pain” 21 in that area. 22 palpation through [Plaintiff’s] entire thoracic midline and (Id.) (Id.) Her extremities showed “[n]o cyanosis, Her “[m]uscle strength [was] 5 out of 5 proximally (Id.) (Id.) Her “[m]uscle stretch reflexes were Plaintiff’s “[s]traight leg raise [was] (Id.) (Id.) Her Dr. Hibbard noted “[t]ender[ness] to 23 3 24 25 26 27 28 Plaintiff had been performing that service for pay for six years for her ex-husband before stopping in October 2013. (AR 27-29, 37.) Although she told the ALJ she stopped because she “[c]ould no longer do it” (AR 28), that same month she told a nurse practitioner that she hoped to find an in-home care position (AR 343). In December 2013, she reported that she lived with her “ex-husband ‘friend’” (AR 212), and that same month her father stated that she was still taking care of him (AR 221). In February 2014, she wrote in a function report that she took care of him “when [she] c[ould].” (AR 237.) 9 1 paraspinal muscles[,] lumbar midline[,] and right lumbar 2 paraspinal muscles.” 3 thoracic spinal pain secondary to discogenic syndrome versus 4 facet arthropathy,” “[l]eft lower extremity radicular syndrome,” 5 “[p]ossible lateral carpal tunnel syndrome,” and “[m]ultiple 6 muscle pain with possible fibromyalgia.” 7 (Id.) He assessed her with “[l]umbar and (Id.) Plaintiff first saw Dr. Blinn on February 18, 2014. (AR 8 356-58.) Her “appetite [was] good” and “weight [was] stable.” 9 (AR 356.) She also was “tolerating [her] medications well.” 10 (Id.) 11 place, [and] time”; “well developed and well-nourished”; and in 12 “[n]o acute distress.” 13 range of motion” without any clubbing, cyanosis, or edema. 14 Her spine was “nontender” with “normal contour and mobility.” 15 (Id.) 16 sensory exams [were] normal,” and she had “no [neurologic] 17 localizing deficits.” 18 fibromyalgia, hypothyroidism, hypertension, osteoporosis, 19 arthritis, chronic venous insufficiency, and vitamin D deficiency 20 and told her to return in “about 2 months.” 21 Dr. Blinn observed that she was “oriented to person, (AR 357.) Her extremities had “[f]ull (Id.) Her “[c]ranial nerves 2-12 [were] intact,” her “motor and (Id.) Dr. Blinn diagnosed Plaintiff with (AR 357-58.) On February 28, 2014, Plaintiff reported to Dr. Hibbard that 22 she “continue[d] to have ongoing lumbar spinal pain, mid spinal 23 pain, and left posterior thigh and lateral thigh pain.” 24 535.) 25 standing[,] bending[,] twisting[,] and extension of the lumbar 26 spine.” 27 in [her] lumbar spine” and “5/5 strength” in her “bilateral hip 28 flexion, knee extension, knee flexion, knee abduction, . . . EHL (AR Her “[p]ain [was] made worse with activity including (Id.) Dr. Hibbard observed “[t]enderness to palpation 10 1 extension, and toe flexion.” 2 transition from a seated to standing position without any 3 hesitation, pushoff, or use of [her] upper extremities,” and she 4 was “[a]ble to stand and ambulate without assistance.” 5 Her cranial nerves were “grossly intact,” but she showed 6 “[p]ositive paresthesias in the left lower extremity.” 7 (Id.) She was “[a]ble to (Id.) (Id.) In March 2014, Plaintiff filled out an “Employability 8 Assessment Form,” stating that she “ache[d] all the time” because 9 of “joint disease, upper compression fractures in [her] back, 10 peripheral vascular disease, [a] torn sciatic nerve, . . . nerve 11 damage all down [her] left side, [and] fibromyalgia.” 12 14.) 13 was “permanently disabled” and diagnosed her with peripheral 14 neuropathy, a chronic sciatic nerve injury, and chronic 15 fibromyalgia. 16 Plaintiff had “[m]ildly decreased strength with left lower 17 extremity knee extension and knee flexion.” 18 had “[t]enderness to palpation of [her] lumbar spine” and 19 “[s]ignificant pain with extension over the lumbar spine at the 20 waist.” 21 anesthesiologist at Advanced Pain Medicine, Matthew JP LoDico, 22 noted that Plaintiff had “[n]o clubbing, cyanosis or edema” in 23 her extremities, and she possessed “5/5 strength in [her] right 24 lower extremity” and “4-5 strength in [her] left lower 25 extremity.” 26 palpation in the lumbosacral region over spinous process at L4 27 and 5 and [in the] left SI joint.” 28 “[p]ositive straight leg raise on the left,” “[p]ositive Faber (AR 513- Dr. Blinn checked a box on that form indicating that she (Id.) (AR 513.) That same month, Dr. Hibbard noted that (AR 531.) Plaintiff Another interventional pain specialist and (AR 529-30.) She was “exquisitely tender to 11 (AR 529.) She had a 1 test4 on the left,” and “[p]ositive pain with internal rotation 2 of [her] femur at [the] hip on the left.” 3 (Id.) On April 2, 2014, an EMG was conducted. (See AR 520-25.) 4 The results were “within normal limits,” with “no clear 5 conclusive electrophysiologic evidence of peripheral neuropathy 6 and/or lumbar radiculopathy.” 7 received an epidural injection on April 10, 2014, administered by 8 Dr. Hibbard (AR 528), and on April 22, 2014, Dr. Blinn’s notes 9 show a primary diagnosis of “[w]eight gain” (AR 517). (AR 520.) Plaintiff apparently In May 10 2014, a bilateral ultrasound of the veins in Plaintiff’s right 11 and left lower extremities was conducted. 12 demonstrated “good venous flow with no intraluminal thrombus.” 13 (Id.) 14 “normal respiratory variation and augmentation of flow.” 15 Overall, there was “[n]o sonographic evidence of [deep vein 16 thrombosis] in the regions examined.” 17 assistant, with Dr. Blinn “[c]ollaborating,” diagnosed her with 18 “[c]hronic venous insufficiency” and “[v]aricose veins of both 19 legs with edema,” however (AR 518-19), and referred her to 20 vascular surgery (AR 518). 21 (AR 526.) It The “veins were compressible throughout,” and there was (Id.) (Id.) A physician’s On May 20, 2014, Dr. Blinn completed a medical-source 22 statement regarding Plaintiff’s Social Security claim. 23 68.) 24 throughout [her] body, headaches, paresthesias, memory 25 difficulties, [and] sleep disturbance.” (AR 365- He wrote that Plaintiff’s symptoms were “[d]iffuse pain (AR 365.) He stated 26 27 28 4 A Faber test identifies pain in the hip, lumbar spine, and sacroiliac region. See FABER Test, Physiopedia, https:// www.physio-pedia.com/FABER_Test (last visited May 8, 2018). 12 1 that “[d]ue to [these symptoms], [Plaintiff was] totally [and] 2 perman[en]tly disabled.” 3 suffering from fibromyalgia, a “chronic pain syndrome” that 4 caused her “[s]evere” pain. 5 caused “[l]oss of interest in almost all activities,” “[a]ppetite 6 disturbance with change in weight,” “[s]leep disturbance,” 7 “[c]rying spells,” and “[d]ecreased energy.” 8 “present” next to limitations associated with her pain as 9 follows: “[m]arked restriction of activities of daily living”; (Id.) He noted that Plaintiff was (AR 368; see also AR 365.) (AR 368.) Her pain He noted 10 “[m]arked difficulty in maintaining social functioning”; and 11 “[d]eficiencies of concentration, persistence or pace resulting 12 in frequent failure to complete tasks in a timely manner (in work 13 settings or elsewhere).” (Id.) 14 Dr. Blinn also assessed “[o]ccasional” physical restrictions 15 for “2-3 [c]umulative [h]ours” during an “8 [h]our [w]orkday” and 16 “[f]requent” restrictions for “3-5” cumulative hours. 17 He checked boxes indicating that Plaintiff could 18 “[o]ccasional[ly]” lift and carry zero to 20 pounds and “[n]ever” 19 carry “25 pounds” “or [m]ore.” 20 “[l]ess [t]han 2 [h]ours” and needed to “periodically alternate 21 sitting and standing at [an] interval not to exceed . . . 30 22 min[utes].” 23 periods during the day,” and needed to “[f]requently” “[e]levate 24 [her] legs” and “[l]ie down during an 8 hour work day.” 25 Pushing and pulling was “[l]imited” in her upper and lower 26 extremities “due to pain [and] weakness.” 27 “[o]ccasionally” climb and balance but “[n]ever” stoop, kneel, 28 crouch, or crawl. (Id.) (Id.) (AR 366.) She could stand and walk She experienced “fatigue,” “require[d] rest (Id.) (AR 367.) (Id.) She could Dr. Blinn opined that Plaintiff was 13 1 “[u]nlimited” in reaching, handling, and dexterity, and she 2 should “avoid exposure to” moving machinery, vibration, and 3 noise. (Id.) 4 On June 27, 2014, an MRI of Plaintiff’s lumbar spine 5 revealed a “[m]ild old compression fracture at L1,” “[g]rade 1 6 anterior spondylolisthesis of L4 on L5 and L5 on S1,” and 7 “[d]egenerative changes with mild spinal stenosis and mild recess 8 narrowing at L4-L5.” (AR 527.) 9 November 26, 2014, show that Plaintiff sought treatment at the The next available records, from 10 Arrowhead Regional Medical Center, complaining of “facet [joint] 11 pain” and “pain [in the] flexion/extension [of her] back.” 12 418-19.) 13 lumbar degenerative disc disease, facet joint dysfunction, 14 radiculopathy, and morbid obesity (AR 418) and referred to a 15 pain-management clinic (AR 511; see also AR 418-19). 16 (AR She was assessed with hypothyroidism, hypertension, On April 3, 2015, Plaintiff complained to a pain-management 17 specialist of “constant,” “sharp, dull, throbbing, burning and 18 aching” pain that was “increased by bending and standing” but 19 “decreased by medication and epidurals.” 20 cyanosis, no clubbing and no edema” in her extremities. 21 1119.) 22 her back, left lumbar radicular pain, and pain with facet-loading 23 maneuvers. 24 (Id.) 25 pain [was] quite bothersome,” though her medications still 26 “help[ed].” 27 28 (AR 1118.) She had “no (AR She had “decreased [range of motion on] all plane[s]” in (Id.) She was advised to “stretch and exercise.” On April 28, 2015, Plaintiff reported that her “right knee (AR 1121.) In May 2015 at a pain-management appointment, Plaintiff still complained of low-back, hip, and knee pain that was 14 1 “decreased by medication and rest and shots.” 2 physician’s assistant observed that she had “normal strength” in 3 her upper and lower extremities, “normal” walking gait, and an 4 “equal and strong” grip. 5 “clubbing,” or “edema” in her lower extremities. 6 [range of motion was] within normal limits.” 7 assessed with spinal stenosis, herniated nucleus pulposus, 8 thoracic and lumbar neuritis radiculitis, and lumbosacral 9 spondylosis. (Id.) (Id.) (AR 1104.) The There was “no cyanosis,” (Id.) (Id.) “All She was In June 2015, Plaintiff was “doing much 10 better” after receiving an epidural, which was “quite effective.” 11 (AR 1099.) 12 from pain management. 13 (AR 1100.) 14 motivated to . . . start walking once her knee [felt] better.” 15 (Id.) 16 17 She reported being “quite pleased with [her] outcome” (Id.) Her extremities showed “no edema.” She had “start[ed] to lose weight” and was “quite 2. Function reports On December 12, 2013, Plaintiff filled out a function 18 report. 19 hours” and that it took her “about 2 hours” to get dressed in the 20 morning. 21 to the mailbox [and] back for exercise,” “play[ed] with [her] 22 animals,” and did “a little housekeeping,” which consisted of 23 “light dusting,” doing “some dishes,” and “rak[ing] the leaves 24 around [her] trailer.” 25 week [she also did] laundry at [the] laundr[o]mat” with her 26 stepmother. 27 visit[ed] with neighbors daily.” 28 her pets with some help from her father and stepmother. (AR 212-19). (AR 212.) She wrote that she “d[id]n’t sleep normal She “walk[ed] [her] dog 2 or 3 times a day (AR 213.) (AR 212, 214-16.) “[O]nce or twice a She stated that she “love[d] people [and] 15 (Id.) She took care of and fed (Id.) 1 She also apparently went to garage sales once a week. 2 Her impairments affected her personal care in that it took her 3 longer to dress, and she showered and shaved less frequently than 4 she used to. 5 sandwiches, and “T.V. dinners,” but she cooked less than she used 6 to because she “c[ouldn’t] stand [for] long.” 7 shopped “at least once a week for [her] animals or groceries.” 8 (AR 216. 9 “once a month”).) (Id.) (AR 216.) She “prepare[d] [her] own meals” of soup, (AR 214.) She But see AR 215 (stating that she shopped “in stores” She stated that she could “only walk [a 10 quarter] mile” before needing to “rest or sit or elevate” her 11 legs for “5 . . . to 10” minutes before resuming walking. 12 217.) 13 (AR On December 14, 2013, Plaintiff’s father filled out a third- 14 party function report. 15 took care of her ex-husband by cooking for him and doing his 16 laundry. 17 cleaned the cat litter. 18 [his] knowledge[,] [Plaintiff] d[id] not have any personal 19 hygiene problems,” and she “tells us she prepares complete meals” 20 “daily.” 21 food banks, the grocery store, and the laundromat “about once a 22 week,” where Plaintiff was able to “put her clothes in [and] take 23 them out of the machine.” 24 people in the R.V. Park,” including when they “stop[ped] by her 25 trailer.” 26 painful for [Plaintiff] to lift anything heavy,” including a bag 27 of groceries, and that “it hurt[] when she squat[ted] or ben[t] 28 over or kne[lt] down.” (AR 221.) (AR 220-27.) He stated that Plaintiff She also fed her pets, walked her dog, and (AR 221-22.) (Id.) He wrote that “to the best of Plaintiff’s stepmother took her to local (AR 224, 227.) (AR 222-23.) She “visit[ed] with He stated that “it appear[ed] to be (AR 225.) 16 She could walk “about 1/4 mile 1 to a small local store” and presumably back again. 2 “limp[ed] when she walk[ed].” 3 (Id.) She (AR 227.) On February 20, 2014, Plaintiff filled out a second function 4 report and a supplemental function questionnaire. 5 She wrote that she “c[ouldn’t] stand [or] sit[] in any position 6 [for] very long because of nerve damage, numbness [and] vein 7 circulation problems.” 8 function due to [her] fibromyalgia” unless she had “bed rest 9 [and] heat.” (Id.) (AR 236.) (AR 236-46.) “[O]n some days [she couldn’t] She stated that she took care of her ex- 10 husband “when I can,” cooked for him, and “help[ed] him walk 11 [the] dog.” 12 a day.” 13 hour. 14 burn[ed] like [it was] on fire since [her] last surgery.” 15 240.) 16 [her] leg,” and “[a]ny lifting made it worse.” 17 AR 246.) 18 numb,” she had “shoulder problem[s] with reaching,” it “burn[ed] 19 when [she] walk[e]d,” and her “knees hurt bad[ly] when [she went] 20 up steps.” 21 problems with “memory [and] understanding.” 22 walk half a block before her legs burned and ached, and she 23 needed to rest for “5 minutes or longer” before continuing on. 24 (Id.) (AR 237.) (AR 238.) (AR 239.) She prepared her own meals “once or twice She shopped “once a week” for about half an She “ache[d] all the time,” and her “leg (AR She had “sharp[,] stabbing pain[] in [her] back [and] down (AR 245; see also She could lift only “10” pounds, her legs “[would] go (AR 241.) She also “c[ouldn’t] concentrate” and had 25 26 27 28 17 (Id.) She could 1 3. 2 Plaintiff’s testimony At her August 7, 2015 hearing, Plaintiff testified that she 3 could “hardly walk on [her] right knee.”5 4 that her fibromyalgia caused pain “[a]ll over” and that “[a]t 5 least once a week” she “c[ouldn’t] . . . get out of bed” because 6 of the pain. 7 or her legs would become “numb.” 8 care of, wash, and dress herself but “not as often as [she] used 9 to.” (AR 33-34.) (AR 35-36.) (AR 31.) She stated She couldn’t “sit” or “lie too long” (AR 34.) She was able to take She testified that she couldn’t “walk a block 10 . . . without stopping.” 11 “maybe 10 pounds.” (AR 36.) She could lift and carry (Id.) 12 C. 13 The ALJ gave “no weight” to Dr. Blinn’s May 20, 2014 Analysis 14 opinion. 15 rejected it.6 (AR 16.) Plaintiff argues that the ALJ improperly (J. Stip. at 3-7.) The ALJ discounted Dr. Blinn’s 16 17 18 19 20 21 22 23 24 25 26 27 28 5 At the hearing, Plaintiff’s counsel acknowledged that no “diagnostic studies” demonstrated any problems with Plaintiff’s knee and said they were “still waiting” for them. (AR 32.) 6 Plaintiff also contends that the ALJ “failed to address and evaluate [a] medical opinion dated March 6, 2014.” (J. Stip. at 3, 7 (citing AR 513-14).) That one-page check-box form, also completed by Dr. Blinn, contained no “judgments about the nature and severity of [Plaintiff’s] impairments,” statements about her “physical or mental restrictions,” or descriptions of what she could “still do despite [her] impairment(s).” §§ 404.1527(a)(2), 416.927(a)(2). Thus, it likely did not constitute opinion evidence that the ALJ needed to weigh. See Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003) (ALJ not required to discuss evidence that is “neither significant nor probative”). As noted by Defendant, however (J. Stip. at 11-12), even if the form was opinion evidence, its significance would have been minimal for one of the same reasons the ALJ gave for rejecting Dr. Blinn’s May 20, 2014 opinion: it was a “pre-printed form” “appear[ing] through a series of checked boxes” without “specific clinical or objective support” (AR 16). Thus, any error by the ALJ in failing to address it in his decision was 18 1 opinion because “it appear[ed] on a pre-printed form” “of checked 2 boxes” “solicited by [Plaintiff’s] representative,” “without much 3 in the way of specific clinical or objective support”; the 4 “extreme functional limitations” assessed conflicted with the 5 record and with “Dr. Blinn’s own objective findings”; and 6 Plaintiff’s “own self report of her activities of daily living 7 [was] seemingly greater than [the] assessed limitations.” 8 16.) 9 agency medical consultant’s opinion (see generally AR 44-63), the (AR Because Dr. Blinn’s opinion was contradicted by a state- 10 ALJ was required to provide a “specific and legitimate” reason 11 for rejecting it. 12 1. See Carmickle, 533 F.3d at 1164. He did so. Preprinted form 13 “An examining doctor’s findings are entitled to no less 14 weight when the examination is procured by the claimant than when 15 it is obtained by the Commissioner.” 16 the absence of evidence of impropriety, “[t]he purpose for which 17 medical reports are obtained does not provide a legitimate basis 18 for rejecting them.” 19 the extent the ALJ rejected Dr. Blinn’s opinion because it was 20 “solicited by [Plaintiff’s] representative” (AR 16), he likely 21 erred. 22 App’x 691, 692 (9th Cir. 2018). 23 this regard, any error was harmless because he identified and 24 explained other specific and legitimate reasons for rejecting Dr. 25 Blinn’s opinion, as discussed below. Lester, 81 F.3d at 832. Id.; Reddick, 157 F.3d at 726. Thus, to See Reddick, 157 F.3d at 726; Hurter v. Berryhill, 712 F. Though the ALJ may have erred in See DeBerry v. Comm’r of 26 27 28 In harmless. See Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (“[W]e may not reverse an ALJ’s decision on account of an error that is harmless.”). 19 1 Soc. Sec. Admin., 352 F. App’x 173, 176 (9th Cir. 2009); Bartels 2 v. Colvin, No. CV 15-5144 AFM, 2016 WL 768851, at *4 (C.D. Cal. 3 Jan. 29, 2016). 4 The ALJ was entitled to discount Dr. Blinn’s opinion based 5 on the little explanation he gave for his findings. 6 Dr. Blinn provided was on a preprinted “check-box”-type form. 7 (See AR 365-68.) 8 throughout [her] body, headaches, paresthesias, memory 9 difficulties, [and] sleep disturbance.” The opinion He wrote that her symptoms were “[d]iffuse pain (AR 365.) He diagnosed 10 her with “[c]hronic pain syndrome” and “[f]ibromyalgia” (AR 365, 11 368) and stated that she was treated through “[p]ain management 12 [and] possibly [a] rheumatology referral” (AR 365). 13 opined that Plaintiff was “totally [and] perman[en]tly disabled.” 14 (Id.) 15 “detailed form” “clarified the basis for [Dr. Blinn’s] opinion.” 16 (J. Stip. at 4-5.) 17 Blinn did not provide any explanation for how he determined that 18 Plaintiff was “totally” disabled or what objective tests he did 19 to support such restrictive findings. 20 Astrue, 343 F. App’x 201, 208-09 (9th Cir. 2009) (ALJ was “free 21 to reject” doctor’s check-off report that did not “indicate any 22 measuring of effort or give[] a description” of how patient was 23 evaluated (alteration in original)). 24 places invited him to add “[s]upportive medical findings” for his 25 assessment, but he completed only one of those blanks — by 26 writing that the pushing and pulling limitations he assessed were 27 “due to pain [and] weakness” — and left the rest empty. 28 366-67.) He then Plaintiff argues that the “handwritten portions” of this But though he filled in a few blanks, Dr. 20 (AR 365); De Guzman v. Moreover, the form in seven (See AR 1 Thus, the ALJ’s finding that Dr. Blinn’s opinion “appear[ed] 2 on a pre-printed form” “without much in the way of specific 3 clinical or objective support” was a sufficient reason to 4 discount its weight. 5 may discredit opinion that is “inadequately supported by clinical 6 findings”); Crane v. Shalala, 76 F.3d 251, 253 (9th Cir. 1996) 7 (ALJ permissibly rejected psychological evaluations “because they 8 were check-off reports that did not contain any explanation of 9 the bases of their conclusions”); see also Batson, 359 F.3d at (AR 16); see Thomas, 278 F.3d at 957 (ALJ 10 1195 (“[A]n ALJ may discredit treating physicians’ opinions that 11 are conclusory, brief, and unsupported by the record as a whole 12 . . . or by objective medical findings[.]”). 13 2. Medical evidence of record 14 Plaintiff contends that the ALJ erred in holding “that [Dr. 15 Blinn’s] opinion [was] inconsistent with the medical record as a 16 whole [and with] Dr. Blinn’s own clinical findings.” 17 at 5-6.) 18 (J. Stip. On the contrary, the ALJ did not err in this regard. Inconsistency with the objective medical evidence can be a 19 specific and legitimate reason for rejecting a medical-source 20 opinion. 21 objective evidence” and “contradict[ion] by other statements and 22 assessments of [plaintiff’s] medical condition” were “specific 23 and legitimate reasons” to discount physicians’s opinions); 24 Kohansby v. Berryhill, 697 F. App’x 516, 517 (9th Cir. 2017) 25 (upholding inconsistency with medical-opinion evidence as 26 specific and legitimate reason for rejecting medical opinion 27 (citing Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 28 2008))); Bailey v. Colvin, 659 F. App’x 413, 415 (9th Cir. 2016) See Batson, 359 F.3d at 1195 (lack of “supportive 21 1 (inconsistency with “own treatment records” and objective medical 2 evidence constitutes “specific and legitimate” reason for 3 rejecting treating physician’s opinion). 4 indicating that Plaintiff could stand and walk for less than two 5 hours, could lift and carry up to 20 pounds occasionally but 6 never more, needed to alternate sitting and standing at 30-minute 7 intervals, and was limited in pushing and pulling in all 8 extremities. 9 “totally” disabled. (AR 366-67.) Dr. Blinn checked boxes He also opined that Plaintiff was (AR 365.) As noted by the ALJ, however, 10 “[t]here [was] no demonstrated medical pathology . . . in [the] 11 record [that] would account for such extreme functional 12 limitations,” and “[e]ven Dr. Blinn’s own objective findings” 13 were mostly “normal.” 14 (AR 16.) First, that Dr. Blinn’s treatment notes failed to support 15 his opinion that Plaintiff was “totally [and] perman[en]tly 16 disabled” (AR 365) was a legitimate reason to discount his 17 opinion. 18 three occasions before completing his May 20, 2014 opinion. 19 AR 356-58, 517, 519.) 20 revealed “[f]ull range of motion” and “no” clubbing, cyanosis, or 21 edema in her extremities (AR 357), conflicting with his finding 22 that she was “[l]imited” in both upper and lower extremities for 23 pushing and pulling (AR 367). 24 exhibited “[d]iffuse tenderness” (AR 365), the only mention of 25 tenderness in his treatment notes was to record its absence (AR 26 357 (spine “nontender,” “no rebound tenderness” in abdomen, and 27 “nontender” bowel sounds)). 28 “normal contour and mobility” in her spine, “normal” motor and Bailey, 659 F. App’x at 415. He saw Plaintiff on only (See His physical examination of Plaintiff Though he opined that Plaintiff His notes also state that she had 22 1 sensory exams, “no localizing deficits,” and “intact” cranial 2 nerves. 3 his own treatment records was a specific and legitimate basis for 4 the ALJ to discount it. 5 Comm’r Soc. Sec. Admin., 493 F. App’x 843, 845 (9th Cir. 2012); 6 Phelps v. Berryhill, 714 F. App’x 628, 630 (9th Cir. 2017) 7 (affirming ALJ’s discounting of physicians’ opinions because 8 “they were not consistent with their own objective findings”). 9 Moreover, opinions such as Dr. Blinn’s that Plaintiff was (Id.) Thus, that Dr. Blinn’s opinion was unsupported by See Thomas, 278 F.3d at 957; Houghton v. 10 “totally . . . disabled” (AR 365) are reserved to the 11 Commissioner and “can never be entitled to controlling weight or 12 given special significance.” 13 (July 2, 1996); see §§ 404.1527(d)(1), 416.927(d)(1) (“A 14 statement by a medical source that you are ‘disabled’ or ‘unable 15 to work’ does not mean that we will determine that you are 16 disabled.”). 17 SSR 96-5p, 1996 WL 374183, at *5 Second, the ALJ found that the “extreme functional 18 limitations” assessed by Dr. Blinn were unsupported by any 19 “demonstrated medical pathology” in the record. 20 was a proper reason to discount his opinion. 21 Berryhill, 710 F. App’x 320, 321 (9th Cir. 2018) (affirming ALJ’s 22 discounting of treating physician’s opinion because “medical 23 record as a whole was inconsistent with the degree of 24 limitations” assessed and physician’s “opinion was inadequately 25 supported by clinical findings”). 26 during the relevant time period had “normal” or “mild” results: 27 an April 2, 2014 EMG “was essentially within normal limits” (AR 28 520-25); a May 6, 2014 bilateral ultrasound of her veins found 23 (AR 16.) This Williams v. Indeed, Plaintiff’s imaging 1 “[n]o sonographic evidence of [deep vein thrombosis]” (AR 526); 2 and a June 27, 2014 MRI of her lumbar spine showed a “[m]ild old 3 compression fracture,” “[g]rade 1 anterior spondylolisthesis,” 4 and “[d]egenerative changes with mild spinal stenosis and mild 5 recess narrowing” (AR 527). 6 or “full” range of motion (AR 351 (Oct. 2013), 357 (Feb. 2014), 7 1104 (May 2015). 8 of motion)); “5/5,” “4/5,” or “normal” strength (AR 351 (Oct. 9 2013), 362 (Feb. 2014), 529 (Mar. 2014), 535 (Feb. 2014), 1104 Moreover, she often showed “normal” But see AR 1119 (Apr. 2015: “decreased” range 10 (May 2015)); and “[n]o” cyanosis, clubbing, or edema (AR 357 11 (Feb. 2014), 362 (same), 1100 (June 2015), 1104 (May 2015), 1119 12 (Apr. 2015)). 13 bulk” in her extremities (AR 362 (Feb. 2014)) and “normal walking 14 gait, station and posture” (AR 1104 (May 2015)). 15 She also at times had “normal tone and muscle As pointed out by Plaintiff, however, she had “at least 16 three” positive straight-leg-raise tests on the left side (J. 17 Stip. at 5 (citing AR 362, 529, 1119)) and one observation of 18 “18/18 myofascial tender points as described by the American 19 College of Rheumatology” (id. (citing AR 351)) and “was found to 20 have tenderness to palpation” in her back (id. (citing AR 529, 21 1119); see also AR 362, 531. 22 tenderness on palpation” in back)). 23 complained of pain. 24 “[a]ll over”), 245 (“sharp,” “stabbing pain” in back and down 25 leg), 344 (“[l]umbosacral spine pain”), 351 (“[b]ack extension” 26 “painful”), 362 (lumbar pain), 535 (“ongoing lumbar spinal pain, 27 mid spinal pain, and left posterior thigh and lateral thigh 28 pain”), 1118 (“sharp, dull, throbbing, burning and aching” But see AR 344 (Oct. 2013: “[n]o She also regularly (See, e.g., AR 33 (fibromyalgia caused pain 24 1 pain).) But the ALJ found Plaintiff’s subjective symptom 2 statements “not entirely credible” (AR 17), which she has not 3 challenged on appeal. 4 pain. 5 she was “quite pleased” with pain-management treatment), 1104 6 (pain “decreased by medication and rest and shots”), 1118 (pain 7 “decreased by medication and epidurals”), 1121 (medications 8 “help[ed]” her knee pain).) 9 pointed out by Plaintiff, the ALJ’s conclusion that the objective Also, treatment seemed to decrease her (See, e.g., AR 1099 (epidural was “quite effective” and Thus, despite the positive findings 10 medical record did not support Dr. Blinn’s opinion that she was 11 “totally” disabled was rational and supported by substantial 12 evidence. 13 susceptible to more than one rational interpretation,’ the ALJ’s 14 decision should be upheld.” (citation omitted)). See Ryan, 528 F.3d at 1198 (“‘Where evidence is 15 Accordingly, that Dr. Blinn’s opinion was inconsistent with 16 the objective medical evidence and his own treatment notes was a 17 specific and legitimate reason for rejecting it. 18 F.3d at 1195; Kohansby, 697 F. App’x at 517; Bailey, 659 F. App’x 19 at 415. 20 3. See Batson, 359 Activities of daily living 21 Plaintiff argues that the “fact that [she] retains the 22 ability to engage in some limited [activities of daily living] in 23 no way diminishes the persuasiveness of Dr. Blinn’s opinion 24 regarding her work-related functional limitations.” 25 6.) 26 her activities of daily living [was] seemingly greater than Dr. 27 Blinn’s assessed limitations.” 28 (J. Stip. at As the ALJ noted, however, Plaintiff’s “own self report of (AR 16.) Plaintiff walked her dog multiple times a day (AR 213, 215, 25 1 221), shopped for groceries with her father and stepmother “at 2 least once a week” (AR 216, 223), and prepared her own meals 3 daily (AR 214, 222). 4 store and back and rake leaves. 5 laundromat “once or twice a week” to do her laundry and was able 6 to put her clothes in the machine and take them out herself. 7 213-14, 222.) 8 her testimony at the hearing that she stopped caring for her ex- 9 husband in October 2013, she later admitted that she continued to 10 care and cook for him to some degree, which her father confirmed. 11 (AR 221, 237.) 12 stopped taking care of her husband in October 2013 because she no 13 longer could do so, that same month she reported to a nurse 14 practitioner that she “hope[d] to find a job as a Home Care Aid,” 15 indicating that she believed herself capable of work activity. 16 (AR 343.) 17 exercise” as treatment. 18 in the R.V. Park” “daily,” including when they “stop[ped] by her 19 trailer.” 20 Blinn’s finding that Plaintiff had “[m]arked” restrictions in 21 activities of daily living as well as “[m]arked” difficulty in 22 maintaining social functioning. 23 Massanari, 261 F.3d 853, 856 (9th Cir. 2001) (holding that 24 inconsistency with Plaintiff’s “level of activity” was “adequate 25 reason[]” to discount physician’s opinion); Lunn v. Astrue, 300 26 F. App’x 524, 525 (9th Cir. 2008) (affirming ALJ’s rejection of 27 treating physician’s medical opinion that was “contrary to 28 [plaintiff’s] reports of her daily activities”). She was able to walk a quarter-mile to a (AR 215, 225.) She did light dusting at home. She went to the (AR 214.) (AR Despite Similarly, although she told the ALJ that she Another treating doctor advised her to “stretch and (AR 1119.) (AR 213, 224, 227.) She “visit[ed] with people These activities contradict Dr. (AR 368.) 26 See Rollins v. 1 Accordingly, the ALJ did not err in assessing the medical- 2 opinion evidence. 3 decision. 4 Danielson v. Astrue, 539 F.3d 1169, 1174 (9th Cir. 2008). 5 VI. 6 Substantial evidence supports the ALJ’s As such, remand is not warranted. See Stubbs- CONCLUSION Consistent with the foregoing and under sentence four of 42 7 U.S.C. § 405(g),7 IT IS ORDERED that judgment be entered 8 AFFIRMING the Commissioner’s decision, DENYING Plaintiff’s 9 request for remand, and DISMISSING this action with prejudice. 10 11 DATED: May 9, 2018 12 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 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.” 27
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