Randall Ralph Page v. Commissioner of Social Security, No. 5:2018cv00155 - Document 20 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Alicia G. Rosenberg. IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. (See Document for Further Details) (hr)
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Randall Ralph Page v. Commissioner of Social Security Doc. 20 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RANDALL RALPH PAGE, 12 13 14 15 Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 16 17 ) ) ) ) ) ) ) ) ) ) ) No. EDCV 18-155 AGR MEMORANDUM OPINION AND ORDER Plaintiff filed this action on January 23, 2018. Pursuant to 28 U.S.C. § 636(c), the 18 parties consented to proceed before the magistrate judge. (Dkt. Nos. 13, 14.) On July 19 13, the parties filed a Joint Stipulation (“JS”) that addressed the disputed issue. The 20 court has taken the matter under submission without oral argument. 21 22 Having reviewed the entire file, the court affirms the decision of the Commissioner. 23 24 25 26 27 28 Dockets.Justia.com 1 I. 2 PROCEDURAL BACKGROUND 3 On April 22, 2014, Plaintiff filed an application for supplemental security income 4 benefits and alleged an onset date of January 1, 2013. Administrative Record (“AR”) 5 18. The application was denied initially and upon reconsideration. AR 18, 95, 119. 6 Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). On January 7 5, 2017, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. 8 AR 61-84. On June 7, 2017, the ALJ conducted a supplemental hearing at which 9 Plaintiff, a medical expert and vocational expert testified. AR 34-58. On July 17, 2017, 10 the ALJ issued a decision denying benefits. AR 15-27. On November 22, 2017, the 11 Appeals Council denied review. AR 2-6. This action followed. 12 II. 13 STANDARD OF REVIEW 14 Pursuant to 42 U.S.C. § 405(g), this court has authority to review the 15 Commissioner’s decision to deny benefits. The decision will be disturbed only if it is not 16 supported by substantial evidence, or if it is based upon the application of improper 17 legal standards. Moncada v. Chater, 60 F.3d 521, 523 (9th Cir. 1995) (per curiam); 18 Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). 19 “Substantial evidence” means “more than a mere scintilla but less than a 20 preponderance – it is such relevant evidence that a reasonable mind might accept as 21 adequate to support the conclusion.” Moncada, 60 F.3d at 523. In determining whether 22 substantial evidence exists to support the Commissioner’s decision, the court examines 23 the administrative record as a whole, considering adverse as well as supporting 24 evidence. Drouin, 966 F.2d at 1257. When the evidence is susceptible to more than 25 one rational interpretation, the court must defer to the Commissioner’s decision. 26 Moncada, 60 F.3d at 523. 27 28 2 1 III. 2 DISCUSSION 3 A. Disability 4 A person qualifies as disabled, and thereby eligible for such benefits, “only if his 5 physical or mental impairment or impairments are of such severity that he is not only 6 unable to do his previous work but cannot, considering his age, education, and work 7 experience, engage in any other kind of substantial gainful work which exists in the 8 national economy.” Barnhart v. Thomas, 540 U.S. 20, 21-22 (2003) (citation and 9 quotation marks omitted). 10 B. The ALJ’s Findings 11 Following the five-step sequential analysis applicable to disability determinations, 12 Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006),1 the ALJ found that 13 Plaintiff had the severe impairments of congestive heart failure, systolic, chronic; 14 hypertension; mild to moderate degenerative joint disease of the bilateral knees; morbid 15 obesity; mild chronic obstructive pulmonary disease; and history of gout. AR 20. 16 The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to 17 perform a range of light work. He could lift/carry 20 pounds occasionally and 10 pounds 18 frequently; stand/walk for two hours in an eight-hour workday; sit for six hours in an 19 eight-hour workday; and occasionally perform postural activities such as climbing, 20 balancing, stooping, kneeling, crouching and crawling. He is precluded from excessive 21 heat and cold; hazardous machinery; and unprotected heights including ladders, ropes 22 and scaffolds. AR 21. 23 24 25 26 27 28 1 The five-step sequential analysis examines whether the claimant engaged in substantial gainful activity, whether the claimant’s impairment is severe, whether the impairment meets or equals a listed impairment, whether the claimant is able to do his or her past relevant work, and whether the claimant is able to do any other work. Lounsburry, 468 F.3d at 1114. 3 1 Plaintiff did not have any past relevant work but there were jobs that existed in 2 significant numbers in the national economy that he could perform such as cashier II, 3 small products assembler and toy assembler. AR 25-27. The vocational expert 4 explained that these types of jobs can be performed either seated or with a sit/stand 5 option. AR 53. The vocational expert testified that if Plaintiff is deemed limited to 6 sedentary work, he could perform the representative jobs of charge account clerk, final 7 assembler and sorter of small agricultural products such as nuts. AR 53-54. 8 C. 9 Plaintiff argues that the ALJ improperly rejected the opinion of his treating 10 11 Treating Physician cardiologist, Dr. Sethi. An opinion of a treating physician is given more weight than the opinion of a 12 non-treating physician. Orn v. Astrue, 495 F.3d 625, 631 (9th Cir. 2007). To reject an 13 uncontradicted opinion of a treating physician, an ALJ must state clear and convincing 14 reasons that are supported by substantial evidence. Bayliss v. Barnhart, 427 F.3d 15 1211, 1216 (9th Cir. 2005). When a treating physician’s opinion is contradicted by 16 another doctor, “the ALJ may not reject this opinion without providing specific and 17 legitimate reasons supported by substantial evidence in the record. This can be done 18 by setting out a detailed and thorough summary of the facts and conflicting clinical 19 evidence, stating his interpretation thereof, and making findings.” Orn, 495 F.3d at 632 20 (citations omitted and internal quotations omitted). 21 An examining physician’s opinion constitutes substantial evidence when it is 22 based on independent clinical findings. Id. at 632. When an examining physician's 23 opinion is contradicted, “it may be rejected for ‘specific and legitimate reasons that are 24 supported by substantial evidence in the record.’” Carmickle v. Comm'r, 533 F.3d 1155, 25 1164 (9th Cir. 2008) (citation omitted). 26 “‘The opinion of a nonexamining physician cannot by itself constitute substantial 27 evidence that justifies the rejection of the opinion of either an examining physician or a 28 treating physician.’” Ryan v. Comm’r, 528 F.3d 1194, 1202 (9th Cir. 2008) (citation and 4 1 emphasis omitted). However, a non-examining physician’s opinion may serve as 2 substantial evidence when it is supported by other evidence in the record and is 3 consistent with it. Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). 4 “When there is conflicting medical evidence, the Secretary must determine 5 credibility and resolve the conflict.” Thomas v. Barnhart, 278 F.3d 947, 956-57 (9th Cir. 6 2002) (citation and quotation marks omitted). 7 Dr. Sethi completed two residual functional capacity questionnaires on May 14, 8 2014 (AR 611-13) and November 22, 2016 (AR 721-22). In 2014, Dr. Sethi opined that 9 Plaintiff’s congestive heart failure would seldom interfere with the attention and 10 concentration required to perform simple tasks, and he had only occasional nausea and 11 dizziness from medication. He could occasionally lift 20 pounds and frequently lift 10 12 pounds during an eight-hour workday. He could sit for 45 minutes and stand/walk for 13 20 minutes at one time, and could sit for five hours and stand/walk for three hours in an 14 eight-hour workday. He would need three unscheduled, 20-minute breaks during an 15 eight-hour workday. He would be absent once or twice per month. AR 611-12. Dr. 16 Sethi opined that Plaintiff was not physically capable of working eight hours per day, 17 five days per week on a sustained basis. AR 612. 18 In 2016, Dr. Sethi opined that Plaintiff’s chronic left ventricular systolic 19 dysfunction would seldom interfere with the attention and concentration necessary to 20 perform simple tasks. He could occasionally lift 20 pounds and frequently lift 10 pounds 21 in an eight-hour workday. He could sit for two hours and stand/walk for one hour in an 22 eight-hour workday, and would need a 15-minute break every two hours. AR 721. He 23 would likely be absent once or twice per month. AR 722. 24 The ALJ discounted Dr. Sethi’s opinions to the extent he indicated more 25 restrictive limitations than the RFC because the “above-discussed evidence of record” 26 did not support those opinions. AR 24. Citing to Dr. Sethi’s records, the ALJ noted that 27 the objective examination findings “were normal throughout the majority of the record” 28 with flare-ups in July 2014, August 2015 and January, April and November 2016. AR 5 1 23. The ALJ also relied on the opinions of the examining physician and medical expert. 2 AR 24-25. Dr. Sethi’s records indicate that, on May 14, 2014, Plaintiff was able to walk one 3 4 block without stopping and was able to complete activities of daily living without 5 dyspnea (shortness of breath). He tried working in the backyard with a shovel but had 6 to stop after 15 minutes due to fatigue and dyspnea. AR 590, 604. In June 2014, Dr. 7 Sethi noted that Plaintiff is in functional class II for his chronic left ventricular systolic 8 dysfunction.2 AR 591. A report to Dr. Sethi in June 2014 indicated past 9 echocardiograms showing an ejection fraction of less 20% in February and around 20% 10 in April 2014. His symptoms included shortness of breath when walking about half a 11 mile, gardening or shoveling dirt. Plaintiff reduced his heavy alcohol use from up to 18 12 beers per day to 2-3 beers every other day. Plaintiff, who had been smoker for 30 13 years, reduced his smoking to two cigarettes per day. AR 569-70. In July 2014, Dr. Sethi noted that Plaintiff has been stable with no new symptoms. 14 15 He performed activities of daily living without limitations. He was able to walk quite a 16 distance without significant dyspnea but resumed smoking 3-4 cigarettes per day. AR 17 592, 602. His heart rate and rhythm were normal with no gallop and no edema. He 18 was scheduled for AICD (automatic implantable cardioverter-defibrillator) placement 19 next week. AR 593, 602. In August 2014, Plaintiff had the AICD placed without 20 complications. His heart condition remained stable but he continued to smoke. He was 21 well developed, well nourished and in no acute distress. AR 595. His heart rate and 22 rhythm were normal with no gallop, no murmurs and no edema. AR 594. In October 23 2014, Plaintiff’s heart condition remained stable with no new symptoms, and he 24 25 2 26 27 28 The New York Heart Association system (“NYHA”) divides heart patients into four categories based on limitations during physical activity. “Class II represents ‘slight limitation of physical activity,’” meaning that “the patient is ‘[c]omfortable at rest, but ordinary physical activity results in fatigue, palpitation, or dyspnea.’” Rizzitello v. Colvin, 2015 U.S. Dist. LEXIS 122328, *14 n.4 (C.D. Cal. Sept. 11, 2015). 6 1 continued to smoke. His heart rate and rhythm were normal with no gallop, murmurs or 2 edema. AR 596-97. In November 2014, Dr. Sethi’s records indicate Plaintiff was stable, had “no 3 4 limitation in ordinary activities” and smoked 2 cigarettes per day. AR 653. He had 5 regular heart rate and rhythm with no gallop, no murmurs and no edema. AR 654. In 6 May 2015, Dr. Sethi noted Plaintiff had gained weight due to his diet, and continued to 7 smoke. His heart rate and rhythm were normal, and he had no gallop, murmur or 8 edema. AR 655-56. In August 2015, Dr. Sethi reported that Plaintiff was doing well and 9 could perform ordinary activities without limitation. He continued to smoke 8 cigarettes 10 per day. His heart rate and rhythem were normal and he had no gallop or murmur. He 11 had pitting edema but not bilateral. He was now in NYHA functional class I-II.3 AR 657. 12 In January 2016, Plaintiff reported quitting smoking one week ago. He was able to walk 13 two blocks. AR 659. Wheezing was heard in his lungs. He had normal heart rate and 14 rhythm but no gallop or murmur. He had pitting edema but not bilateral. Dr. Sethi 15 opined that Plaintiff was at intermediate surgical risk mainly for heart failure 16 decompensation. AR 660. In November 2016, Plaintiff reported doing well overall. He was able to conduct 17 18 activities of daily living without dyspnea but had not resumed normal activity due to 19 wound healing. Wheezing was heard in his lungs.4 His heart rate and rhythm were 20 normal without gallop or murmur. He had pitting edema but not bilateral. AR 792-93. 21 In February 2017, Plaintiff reported he had helped his family move and had lower back 22 discomfort. He had normal heart rate and rhythm with no gallop or murmur. He had 23 pitting edema but not bilateral. AR 794-95. Device checks on his AICD in 2014-2016 24 25 26 27 28 3 NYHA class I symptoms means “[o]rdinary physical activity does not cause undue fatigue, palpitation, dyspnea (shortness of breath).” Harvey-Mitchell v. Berryhill, 2017 U.S. Dist. LEXIS 136321, *19-*20 (W.D. Wash. Aug. 24, 2017). 4 His wheezing was noted to be mild in this period with dry cough and rhonchi present. AR 788-89. 7 1 indicated that Plaintiff had received no ICD shocks. AR 615, 617, 620, 622, 624, 626, 2 629, 631, 634, 636, 638, 640, 643, 645, 647, 649. The ALJ gave some weight to the opinion of the medical expert, who was board 3 4 certified in internal medicine and cardiology. AR 24, 38. The medical expert testified 5 that he reviewed all of Plaintiff’s medical records in the file and evaluated Plaintiff’s 6 heart condition as well as other conditions. AR 39. The medical expert opined that 7 Plaintiff could lift 20 pounds occasionally5 and 10 pounds frequently. He could 8 stand/walk two hours and sit six hours in an eight-hour workday. He could occasionally 9 climb stairs, bend, stoop, crawl, crouch and kneel. He should avoid extreme heat or 10 cold, ladders, scaffolds and ropes. AR 41. The medical expert agreed that Plaintiff’s 11 ejection fraction was low but explained that Plaintiff did not meet a listing because he 12 was in NYHA functional class I-II, which is “pretty good actually.” AR 43-44. A person 13 in NYHA functional class I-II “can do normal activities every day.” AR 45. In response 14 to the ALJ’s question, the medical expert testified Plaintiff should not need unscheduled 15 breaks throughout the day even though he has a body mass index (BMI) up to 40 and 16 an ejection fraction below 30%. AR 46. The ALJ also relied upon the opinions of the examining physician, Dr. Joseph, 17 18 who performed an internal medicine evaluation in June 2014. AR 25, 454-59. Plaintiff 19 advised that his echocardiogram in February 2014 showed less than 20% ejection 20 fraction. AR 454. His physical examination was within normal limits. AR 456-58. An 21 electrocardiogram revealed a sinus rhythm T-wave abnormality in V4 and V5. Dr. 22 Joseph opined that Plaintiff was capable of light work, sitting six hours in an eight-hour 23 workday and standing/walking for six hours with 10-minute breaks every two hours. AR 24 458. 25 26 5 27 28 Plaintiff testified that 20 pounds sounded about right. AR 51. The medical records indicate Plaintiff has exerted himself to a significant degree. Plaintiff complained that he hurt his back while pushing a stalled car. AR 687. On November 11, 2016, Plaintiff reported back pain after moving boxes in his garage. AR 707. 8 The ALJ could rely on the opinions of the examining physician and medical expert 1 2 in formulating the residual functional capacity assessment and discounting the opinion 3 of Dr. Sethi as unsupported by his own medical records, which did not indicate disabling 4 symptoms.6 See Hugues v. Berryhill, 2018 U.S. Dist. LEXIS 110401, *15, *23-*24 (C.D. 5 Cal. July 2, 2018) (finding ALJ could discount treating physician’s opinion regarding 6 claimant who had ejection fraction of 20% with non-disabling symptoms). 7 IV. 8 ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. 9 10 11 12 DATED: August 3, 2018 ALICIA G. ROSENBERG United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 Compare Moody v. Berryhill, 2017 U.S./ Dist. LEXIS 170469, *10-*11 (D. Or. Oct. 11, 2017) (noting low ejection fraction, a record of discharges from an external defibrillator (Lifevest), and episodes of loss of consciousness and hospitalizations); Perez v. Colvin, 2016 U.S. Dist. LEXIS 44230, *12 (C.D. Cal. Mar. 31, 2016) (noting low ejection fraction, heart murmur, shortness of breath with exertion and hospitalization due to chest pains and shortness of breath). 9
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