Christine Ann Mesa v. Commissioner of Social Security, No. 5:2018cv01080 - Document 21 (C.D. Cal. 2019)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. (et)
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Christine Ann Mesa v. Commissioner of Social Security Doc. 21 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHRISTINE ANN M., 12 13 14 15 Case No. 5:18-cv-01080-KES Plaintiff, MEMORANDUM OPINION AND ORDER v. NANCY A. BERRYHILL, Acting Commissioner of Social Security,1 Defendant. 16 17 18 I. 19 BACKGROUND 20 Plaintiff Christine Ann M. (“Plaintiff”) applied for Disability Insurance 21 Benefits (“DIB”) and Supplemental Security Income (“SSI”) alleging disability 22 commencing October 31, 2011, when she was 33 years old. Administrative 23 Record (“AR”) 113, 133-34. On March 15, 2017, an Administrative Law Judge 24 (“ALJ”) conducted a hearing at which Plaintiff, who was represented by counsel, 25 testified, as did a vocational expert (“VE”). AR 77-112. The ALJ issued an 26 Effective November 17, 2017, Ms. Berryhill’s new title is “Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security.” 27 28 1 1 Dockets.Justia.com 1 2 unfavorable decision on April 26, 2017. AR 59-71. The ALJ found that Plaintiff suffered from the medically determinable 3 impairments of “scoliosis; torn meniscus left knee status post-surgery October 4 2014; osteoarthritis right knee; obesity; depression; anxiety; and an undiagnosed 5 right ankle injury [in] March 2016.” AR 61. Despite these impairments, the ALJ 6 found that Plaintiff had a residual functional capacity (“RFC”) to perform 7 sedentary work with some postural limitations, allowances for “brief position 8 changes,” and a limitation to “unskilled tasks in a non-public setting” that only 9 require concentrating “for up to two-hour periods of time.” AR 64. Based on this 10 RFC and the testimony of the VE, the ALJ found that Plaintiff could not perform 11 her past relevant work as a cashier or home health aide, but she could work as a 12 bench assembler, stitcher, and buckle wire inserter. AR 69. The ALJ concluded 13 that Plaintiff was not disabled. AR 70. 14 II. 15 ISSUES PRESENTED 16 Issue One: Whether the ALJ failed to adequately develop the record 17 regarding Plaintiff’s mental impairments. (Dkt. 18, Joint Stipulation [“JS”] at 13.) 18 Plaintiff contends that no medical source provided an opinion as to Plaintiff’s 19 mental RFC, such that the ALJ’s limitation to unskilled tasks in a non-public 20 setting with periods of concentration not exceeding two hours lacks evidentiary 21 support. (Id. at 13-14.) Defendant counters that the ALJ had enough evidence 22 concerning Plaintiff’s mental impairments to formulate an RFC. (Id. at 21.) 23 Issue Two: Whether the ALJ adequately assessed the medical opinion 24 evidence regarding Plaintiff’s physical abilities and limitations. (Id. at 13.) 25 Specifically, Plaintiff contends that (1) the ALJ failed to give legally sufficient 26 reasons for discounting the opinions of her primary care physician since 2013, Dr. 27 Lawrence Foster, concerning restrictions using her arms and hands (Id. at 27, 31- 28 32; AR 96), and (2) the sedentary RFC does not account for the disabling effects of 2 1 Plaintiff’s October 2014 knee surgery (JS at 29-31). 2 III. 3 DISCUSSION 4 ISSUE ONE: Plaintiff’s Mental RFC. 1. Evidence of Plaintiff’s Mental Impairments. 5 6 Plaintiff stopped working as a smoke shop cashier in October 2011; she was 7 terminated for using medical marijuana to treat pain.2 AR 82, 96-97. She thought 8 that she could have continued to perform that job except that the shop had gotten 9 bigger and she could not sit all day. AR 100, 102. 10 Plaintiff visited the emergency room (“ER”) on February 10, 2013, 11 complaining of back pain. AR 371. The staff noted no psychiatric symptoms with 12 “appropriate” mood and affect. AR 371-72. She reported taking “otc [over the 13 counter] meds” with “no improvements.” AR 371. She was prescribed pain 14 medication and instructed to return if her pain worsened. AR 388-89. 15 On February 22, 2013, she returned to the ER because she was “hit in the 16 head with a wooden wedge.” AR 390. She was injured “splitting firewood with a 17 wedge and sledge [hammer] and the wedge kicked back and struck her in the 18 head.” AR 407. Again, she displayed normal mood and affect. AR 408. Upon 19 discharge, she reported a pain level of 2/10. AR 411. 20 In March 2014, Plaintiff visited Dr. Foster’s office for the first time and did 21 an intake evaluation with Physician’s Assistant (“PA”) Barrie Abbott. AR 726. 22 Her chief complaint was, “Can’t sleep, stress and anxiety.” Id. PA Abbott 23 assessed “generalized anxiety disorder,” ordered diagnostic tests, and prescribed 24 Cymbalta/duloxetine. AR 727. 25 26 27 28 In June 2012, she told emergency room staff that her lower back pain had developed over two years, but she had “not seen anybody for treatment.” AR 366. She received medication that reduced her pain “down to 1/10” and was discharged with a prescription for pain medication. Id. 2 3 1 On May 7, 2014, Plaintiff went to the ER complaining of a twisting injury to 2 her left knee while cutting wood. AR 430, 433, 462, 481. She again displayed 3 cooperative, appropriate mood and affect. AR 431. 4 On May 23, 2014, Plaintiff told Dr. Foster that her “current meds are helping 5 well with the depression” and she “does not want to change those meds.”3 AR 6 478, 716 (“psychological symptoms in good control”). In June 2014, Dr. Foster 7 noted that her depression had improved with a visit from her daughter-in-law. AR 8 472-73. 9 In July 2014, Plaintiff visited psychiatrist Dr. Rajababu Kurre at Orange 10 Psychiatric Medical Group (“OPMG”) on a referral from Dr. Foster. AR 331, 452. 11 Plaintiff described feeling anxious and depressed due to the end of a 17-year 12 relationship with an abusive boyfriend, her lost job, and being stalked by associates 13 of an ex-boyfriend who went to jail. Id. Dr. Kurre observed her to be depressed, 14 agitated, and tearful, but with appropriate judgment, insight, and impulse control. 15 AR 453. He diagnosed her as suffering from moderate recurrent major depression 16 and post-traumatic stress disorder (“PTSD”). AR 453-54. He prescribed 17 medications (including Xanax/alprazolam identified as “new”) and referred her to 18 therapy. AR 454. 19 At her next visit in August 2014, Plaintiff reported that her “depression is 20 resolving” but her “anxiety [is] not controlled well.” AR 455. Dr. Kurre adjusted 21 her medications and “reiterated for therapy.” AR 455-56. A similar treating 22 23 24 25 26 27 28 In May 2014, her listed medications were Imitrex for migraines, prednisone (an anti-inflammatory steroid), trazadone for insomnia, albuterol for asthma, tramadol for pain, Mobic/meloxicam (a nonsteroidal anti-inflammatory [“NSAID”] pain reliever), and Cymbalta/duloxetine, an anti-depressant. AR 478. The Cymbalta/duloxetine was not listed in records from her April 2014 appointment. AR 483. The Cymbalta/duloxetine was refilled in July 2014. AR 472. By August 2014, Cymbalta/duloxetine was not listed as one of Plaintiff’s medications, but Xanax/alprazolam (an anti-anxiety medication) was. AR 470. 3 4 1 record exists for October 2014. AR 594-95. On October 2, 2014, Plaintiff had an 2 initial therapy session with Cynthia Bradley, a psychologist at OPMG. AR 600. 3 Plaintiff had surgery on her left knee in October 2014. AR 516. 4 Also in October 2014, a state agency reviewer summarized Plaintiff’s mental 5 health treatment records and asked, “Would claimant’s condition be considered 6 non-severe, or should we go with MRFC for unskilled work with limited public 7 contact?” AR 119. A state agency psychiatrist, Yanira Olaya, M.D., reviewed the 8 information and answered the question, “Clmt is non-severe.” Id. Dr. Olaya 9 opined that while Plaintiff suffered from anxiety and affective disorders, they 10 caused only mild functional difficulties and did not merit any RFC limitations. AR 11 120-21. 12 In January 2015, Plaintiff told Dr. Foster that she was working two days a 13 week with a back brace caring for an elderly person. AR 704; see also AR 726 14 (3/14/2014 record attributing back pain to caring for an obese individual). 15 In March 2015, Dr. Foster completed an RFC questionnaire form. AR 558- 16 59. When asked to describe Plaintiff’s “diagnosis” and “symptoms,” he did not 17 mention any mental health conditions or related symptoms. AR 559. He checked 18 a box indicating that Plaintiff’s “physical impairments plus any emotional 19 impairments” were “consistent” with the “functional limitations” described in his 20 evaluation, but he did not describe any functional limitations attributable to mental 21 impairments. Id. In April 2015, he noted, “[Plaintiff] has a H/O [history of] 22 anxiety, depression and insomnia. She is managing well. Does not report any 23 excess stress. No mood swings. No acute symptoms.” AR 679. 24 In April 2015, Dr. Kurre noted that Plaintiff was last seen at OPMG in 25 October 2014, but she had returned because she “ran out of meds.” AR 597. 26 Also in April 2015, state agency psychologist Dr. Barbara Moura reviewed 27 Plaintiff’s DIB and SSI applications as part of the reconsideration process. AR 28 142-43. Dr. Moura opined as follows: 5 1 Clmt does not allege worsening on recon[sideration] and there is no 2 evidence to suggest such. Initial determination of nonsevere appears 3 appropriate considering nonaggressive y tx [treatment], improvement 4 noted in ts mer [medical evidence of record] and fairly functional 5 abilities on adls [activities of daily living] from y perspective. 6 AR 143; see also AR 136 (Plaintiff only reported physical issues for 7 reconsideration). Dr. Moura adopted Dr. Olaya’s non-severe assessment. AR 143. 8 In February 2016, Plaintiff told Dr. Foster that she was taking “less of her 9 xanax. She report[ed] she is doing well and is managing her stress and anxiety 10 well.” AR 683; AR 684 (“She is slowly weening her self off of her xanax she is 11 doing her best to manage.”). In March 2016, Plaintiff went to the ER, complaining 12 of a right ankle injury from tripping while “walking downstairs.” AR 619, 678. 13 She told Dr. Foster that she was receiving care from a mental health provider and 14 “doing well.” AR 680. 15 In May 2016, Family Nurse Practitioner (“FNP”) Lee Bella Mandap noted 16 that while Plaintiff had done a psychiatry intake appointment in January 2016, she 17 had not followed up since then and had stopped taking sertraline because she had 18 no refills.4 AR 677; AR 685-86 (January 20, 2016 appointment with FNP Mandap, 19 reporting anxiety and depression because “she’s trying to break up with her current 20 relationship”5). She had not seen a psychotherapist yet. Id. FNP Mandap 21 22 23 24 25 26 27 28 In January 2017, Plaintiff reported that she learned in August 2016 that she had an adverse reaction to sertraline. AR 650. In August 2016, she told Dr. Foster that taking sertraline made her so confused that she often did not know where she was, so he discontinued the medication. AR 673-74. 4 Compare, on January 15, 2016, Plaintiff told Dr. Foster she “does not report any stress or feelings of being down at this time.” AR 687. Her medications still included Xanax three times/day. Id. While Plaintiff indicated that Dr. Afghan prescribed her Xanax/alprazolam (AR 349), her medical records indicate Dr. Foster, her primary care physician, prescribed it (AR 685). 5 6 1 provided medication refills and referred Plaintiff for psychotherapy. AR 678. 2 In June 2016, Plaintiff told Dr Foster that she was “not pleased with her 3 mental health provider. She does not want to take medication for her depression 4 and anxiety. She states she feels well and is motivated to manage her conditions 5 on her own.” AR 675. Dr Foster noted, “[Plaintiff] is doing a great job in 6 handling her health.” AR 676. In August 2016, Plaintiff asked Dr. Foster for a 7 new referral for a mental health specialist to get a second opinion. AR 673. In 8 September 2016, she told Dr. Foster that she had stopped seeing her last mental 9 health provider because they “advised her of use of Zoloft” and she “gets 10 11 hallucinations while on the medication.” AR 668. On November 15, 2016, Plaintiff saw Dr. Rahima Afghan at OPMG. AR 12 603. Plaintiff told Dr. Afghan that she was taking Xanax three times per day, but it 13 was “not helping enough,” and that she had tried Zoloft in the past, but it “did not 14 help.” Id. Plaintiff denied any “psychotic symptoms,” such as hallucinations, but 15 she described serious symptoms, including mood swings, racing thoughts, and 16 episodic anger; Dr. Afghan determined that she had bipolar disorder and started her 17 on lithium.6 AR 603-04; AR 349 (listing medications including lithium). 18 In January 2017, Dr. Foster completed another assessment form. AR 883. 19 He again failed to state any mental health diagnosis or any related limitations. Id. 20 When asked to explain how the limitations in his assessment were consistent with 21 Plaintiff’s physical or emotional impairments, he left the form blank. AR 884. 22 At the hearing on March 15, 2017, Plaintiff described suffering from 23 depression and anxiety, triggering crying spells. AR 85-86. She avoided going to 24 the grocery store because “if there’s more than two people in a aisle, I start flipping 25 26 27 28 Per another record dated four days earlier on November 11, 2016, Plaintiff told Dr. Foster that she “has been out of pain meds for over a week” but was “attempting to go without pain meds for a long as she can manage.” AR 665. For the last two weeks, she felt “depressed or hopeless.” AR 666. 6 7 1 out.” AR 86. She did not think she could deal with strangers or coworkers in a 2 work setting. AR 87. She did not think she could handle the mental demands of 3 her past work as a cashier due to impaired memory, although she is able to cope 4 with memory difficulties by writing herself sticky-notes or setting reminders on her 5 phone. AR 91. Her obsessive-compulsive disorder (“OCD”) started “a few years 6 ago” and caused her to want to put things in order, even in public places.7 AR 101- 7 02. She had, however, considered applying for part-time work.8 AR 103. Plaintiff 8 testified that she was taking Xanax/alprazolam three times/day but she still had 9 crying spells; she did not testify about any other mental health medication. AR 85- 10 11 86. In her Adult Function report, Plaintiff reported that she could take her 12 medications without reminders. AR 293. She could drive, but only short 13 distances. AR 294. She could handle her own money. AR 294-95. She did not 14 check the boxes to indicate that she has difficulty with memory, understanding, or 15 getting along with others. AR 296. She reported that she got along “okay” with 16 authority figures. AR 297. Her fiancé with whom she lived completed a similar 17 report indicating that while he observed her to be depressed and sad, her condition 18 did not affect her memory, concentration, understanding, or getting along with 19 others. AR 286-87. 20 2. The ALJ’s Evaluation of the Mental Impairment Evidence. 21 The ALJ found that Plaintiff suffers from medically determinable severe 22 impairments including depression and anxiety. AR 61. The ALJ found that 23 Plaintiff’s PTSD was non-severe, because it did not have more than a minimal 24 effect on her ability to work. AR 62, citing AR 604 (Dr. Afghan’s 11/15/16 25 26 27 28 7 All medical records referencing OCD are from 2016. AR 661. See AR 489 (Per March 2014 record, “Has been turned down for jobs due to marijuana use.”) 8 8 1 treating record noting logical, organized thoughts with no hallucinations or 2 delusions). The ALJ found that Plaintiff’s long-term use of marijuana had not 3 “caused any significant functional limitations.” AR 62. The Court did not see in 4 the record (and neither party cited) any medical records discussing the side effects 5 of marijuana or potential negative interactions between marijuana and Plaintiff’s 6 prescription drugs, such as Xanax. 7 The ALJ found that Plaintiff’s mental impairments caused only mild 8 difficulty with managing herself and understanding, remembering, or applying 9 information. AR 63-64. The ALJ found that Plaintiff had moderate limitations 10 interacting with others, citing Plaintiff’s hearing testimony but contrasting it with 11 mental status exams showing Plaintiff to be exhibiting appropriate behavior and 12 eye contact while anxious or depressed. AR 63, citing AR 453, 601. The ALJ also 13 found that Plaintiff had moderate limitations maintaining concentration, 14 persistence, and pace, again partially crediting Plaintiff’s hearing testimony but 15 contrasting it with Plaintiff’s reported activities requiring “some degree of 16 concentration,” including handling her own finances and driving. Id. 17 Next, the ALJ summarized Plaintiff’s mental health treating records. AR 66. 18 The ALJ afforded “little weight” to the opinions of Drs. Olaya and Moura that 19 Plaintiff’s mental impairments were non-severe, reasoning that they “did not have 20 the benefit of considering the additional medical records” later submitted, 21 including those from OPMG. AR 67. 22 The ALJ found that Plaintiff’s claim to suffer from disabling mental 23 impairments inconsistent with her treatment history, mental status examinations, 24 and daily activities. AR 68. The ALJ included in the RFC assessment limitations 25 to unskilled tasks in a non-public setting, with concentration for up to two hours, to 26 “acknowledge the depression and anxiety, but …mainly to account for her chronic 27 pain, side effects of medication, and possibly her psychological symptoms.” AR 28 69. 9 1 2 3. Analysis of Claimed Error. The ALJ’s duty to develop the record is triggered “when there is ambiguous 3 evidence or when the record is inadequate to allow for proper evaluation of the 4 evidence.” Mayes v. Massanari, 276 F.3d 453, 459-460 (9th Cir. 2001). Plaintiff 5 contends that duty was triggered because the record lacks a Mental Residual 6 Functional Capacity opinion from any medical source. (JS at 19.) In the absence 7 of such an opinion, the ALJ is left to interpret raw medical data, something only a 8 medical expert is qualified to do. (Id. at 17.) 9 Defendant counters that “there was sufficient evidence in the record for the 10 ALJ to evaluate Plaintiff’s mental impairments without the need for a consultative 11 examination or testimony from a medical expert.” (Id. at 21.) Moreover, Social 12 Security policy gives the ALJ the ultimate responsibility for assessing a claimant’s 13 RFC. (Id. at 24, citing 20 C.F.R. §§ 404.1546(c), 416.946(c)); Social Security 14 Ruling (“SSR”) 96-5p (it is the ALJ’s responsibility to formulate a claimant’s 15 RFC, relying on all the relevant medical and non-medical evidence of record). 16 Thus, the ALJ can do so without “playing doctor.” See Leitner v. Comm’r of Soc. 17 Sec., 361 F. App’x 876, 877 (9th Cir. 2010) (holding the ALJ did not err in 18 choosing not to order a consultative exam and instead properly determined that the 19 claimant’s depression was not severe based on lack of counseling, absence of 20 hospitalizations, and her voluntary discontinuance of medication). 21 As summarized above, the record contains voluminous evidence about 22 Plaintiff’s mental health. The evidence includes (1) Plaintiff’s own reports that she 23 could drive, manage her own finances, remember her medications, and did not 24 have difficulties with getting along with others (AR 293-97), (2) evidence Plaintiff 25 was working part-time as a caretaker as late as 2015 (AR 704), (3) Dr. Foster 26 characterizing Plaintiff’s mental health symptoms as improving or well-controlled 27 with medication (AR 716, 472-73, 679, 683-84, 680, 675), (4) records showing 28 Plaintiff did not pursue psychotherapy or regular appointments at OPMG and let 10 1 herself run out of medication (AR 597, 677); (5) Dr. Foster opining that she was 2 managing her own healthcare well (AR 676); (6) two RFC questionnaires from Dr. 3 Foster in which he did not mention any mental health diagnosis or related 4 symptoms (AR 558-59, 883-84), (7) her fiancé’s report describing physical 5 functional limitations, but not mental (AR 286-87), (8) records from ER visits that 6 did not note observed psychiatric symptoms (AR 371-72, 408, 431), (9) moderate 7 findings by Drs. Kurre and Afghan (AR 453-54, 603-04), and (10) opinions by 8 Drs. Olaya and Moura that Plaintiff’s mental health conditions were non-severe 9 (AR 119, 142-43). 10 The evidence considered in chronological order reveals no period exceeding 11 twelve months when Plaintiff’s psychological symptoms caused significant 12 functional limitations, as follows: 13 October 2011: Plaintiff lost her cashier job due to using marijuana, not 14 because she was unable to perform the mental demands of the work. AR 15 82, 96-97. 16 17 18 19 20 2012: Plaintiff’s only treating records mention migraine headaches and lower back pain, not psychological issues. AR 366. 2013: Plaintiff visited the ER for back pain and a wood cutting injury, but the hospital staff noted no psychological symptoms. AR 371-72, 408. May 2014: Plaintiff visited the ER again due to another wood cutting 21 injury, and again the staff noted no psychological symptoms. AR 430- 22 33. Dr. Foster wrote that her “psychological symptoms [were] in good 23 control.” AR 716. 24 July 2014: Plaintiff visited psychiatrist Dr. Kurre upon a referral from 25 Dr. Foster, but she did not participate in recommended psychotherapy 26 except for one appointment in October 2014. AR 331, 452-54, 600. 27 28 January 2015: Plaintiff had the mental ability to work two days a week caring for an elderly person. AR 704. 11 1 April 2015: Despite not receiving mental health treatment from OPMG 2 since October 2014 (AR 597), Dr. Foster noted that Plaintiff “is 3 managing well. Does not report any excess stress. No mood swings. No 4 acute symptoms.” AR 679. 5 February 2016: Dr. Foster wrote that Plaintiff was weening herself off 6 Xanax and “doing well and is managing her stress and anxiety well.” AR 7 683-84. Plaintiff received little specialized mental health care in early 8 and mid-2016 because of disagreements over recommended treatment. 9 AR 685-86, 673-78. 10 November 2016: Far from weening herself off Xanax, Plaintiff told Dr. 11 Afghan that she was taking Xanax three times per day. AR 603. Based 12 on the symptoms she described, Dr. Afghan determined Plaintiff had 13 bipolar disorder and prescribed lithium. AR 603-04. 14 March 2017: Plaintiff testified that she continues to take Xanax, but she 15 said nothing about bipolar disorder or lithium. While she claimed 16 memory problems would prevent her from working (AR 91-92), she also 17 admitted to using marijuana daily for years (AR 97).9 18 By translating all this evidence into an RFC, the ALJ was not impermissibly 19 acting as a doctor. ALJs routinely encounter records with evidence relevant to 20 functional limitations and translate that evidence into an RFC. For example, if a 21 claimant complains of back pain, has an MRI that a doctor has interpreted as 22 showing mild degenerative disk disease, displayed 5/5 motor strength at a 23 physician examination, reported being able to carry laundry and groceries, and had 24 two treating doctors who opined that the claimant could lift no more than 5 pounds 25 26 27 28 See https://www.washingtonpost.com/news/wonk/wp/2016/02/01/whathappens-when-you-get-stoned-every-single-day-for-five-years/?noredirect=on, discussing medical research linking high marijuana usage and short-term memory impairment. 9 12 1 and up to 30 pounds, respectively, then the ALJ need not adopt either doctor’s 2 opinion of the claimant’s lifting abilities and can instead synthesize all the 3 evidence into a supported RFC assessment. See Sheehan v. Colvin, No. 13-8203, 4 2014 WL 3828396, at *5 (D. Ariz. Aug. 4, 2014) (“The fact that the ALJ did not 5 rely on one single medical opinion does not mean that the ALJ’s RFC was not 6 supported by substantial evidence. The ALJ also did not rely on his own medical 7 opinion.”). Contrary to the cases cited by Plaintiff, the records in this case 8 provided the ALJ with ample support for his RFC, which was based not on “raw 9 data” but on “treatment notes [which] included Plaintiff’s subjective complaints, 10 observations by . . . physicians, and the treatment plans. . . . Thus, the ALJ was 11 entitled to review and interpret this evidence.” Wilson v. Berryhill, No. 16-01012, 12 2018 WL 1418394, at *8 (E.D. Cal. Mar. 22, 2018); contrast Cortez v. Colvin, No. 13 15-00102, 2016 WL 3541450, at *6 (E.D. Cal. June 24, 2016) (“Here there is an 14 absence in the record indicating the degree to which Plaintiff’s mental impairments 15 affected him, and what, if any, Plaintiff’s medications had on his ability to work.”). 16 Because the record before the ALJ was adequate to support a decision, a duty to 17 further develop the record was not triggered. See Thomas v. Barnhart, 278 F.3d 18 947, 978 (9th Cir. 2002). 19 20 21 22 ISSUE TWO: Plaintiff’s Physical Impairments. 1. Dr. Foster’s Restrictions on Using Her Upper Extremities. a. Summary of Dr. Foster’s Opinions. In March 2015, Dr. Foster completed a questionnaire regarding Plaintiff’s 23 physical, work-related capacities. AR 558-60. Dr. Foster diagnosed Plaintiff with 24 a lumbar spine impairment and a knee meniscus injury. AR 558. He opined that 25 Plaintiff could sit for 20 minutes at a time, for 3 hours total, and stand/walk five 26 minutes at a time, for one-hour total, in an 8-hour workday. AR 558. He also 27 opined that Plaintiff needed to shift positions at will; she needed an unscheduled 28 work break every 15 minutes; she could occasionally lift 10 pounds; and she would 13 1 miss work more than 4 days per month. AR 559. Finally, he assessed that Plaintiff 2 did not have restriction in the use of her hands and fingers, but she could only use 3 her arms for reaching 20% of the workday. Id. 4 In January 2017, Dr. Foster completed a second questionnaire. AR 883-84. 5 He opined that Plaintiff could sit for a half-hour and stand/walk for a half-hour in 6 an 8-hour workday; she could walk 2 blocks; she could occasionally lift 10 pounds, 7 and frequently lift less than 10 pounds; and she would miss more than 4 days of 8 work per month. Id. He further opined that Plaintiff could only handle objects 9 25% of the workday; finger 10% of the workday; and reach 2% of the workday. 10 AR 883. Dr. Foster did not provide a diagnosis or explanation for the significant 11 decrease in Plaintiff’s functioning, particularly her upper extremity functioning. 12 b. The ALJ’s Evaluation of Dr. Foster’s Opinions. 13 Concerning Dr. Foster’s opinions, the ALJ wrote as follows: 14 The undersigned has given full weight to the lifting and 15 carrying portion of his opinions as this is reasonable given the 16 claimant’s ongoing problems with her weight and her knees. 17 However, even though Dr. Foster is a treating physician since 2013, 18 prescribes the claimant’s medications and sees the claimant every 19 other month or so, full controlling weight cannot be given to the 20 entire opinion because there are portions that are not supported by the 21 objective medical records, such as the limitations relative to the 22 claimant’s upper extremities in terms of grasping, turning, twisting 23 objects, fine manipulation and reaching. These particular restrictions 24 are not even consistent with his earlier assessment under date of 25 March 20, 2015 wherein he found no limitations with the use of the 26 upper extremities. 27 28 AR 67. First, Plaintiff points out that the ALJ erred by stating that Dr. Foster’s 2015 14 1 assessment posited “no limitations” on the use of her upper extremities. (JS at 27.) 2 In fact, Dr. Foster found no limits on handling and fingering but limited Plaintiff to 3 reaching no more than 20% of the workday. AR 559. This, however, does not 4 undermine the ALJ’s reasoning that that Dr. Foster’s 2015 and 2017 opinions were 5 very different concerning Plaintiff’s ability to use her arms and hands. Compare 6 AR 559 (unlimited fingering/handling; reaching 20% of workday) and AR 883 7 (handling 25%; fingering 10%; reaching 2%). 8 Plaintiff argues that this unexplained disparity is not a clear and convincing 9 reason to discredit Dr. Foster’s opinions, because Plaintiff’s impairments could be 10 expected to worsen over two years. (JS at 31.) Plaintiff’s medically determinable 11 impairments, however, of scoliosis, obesity, and injuries to her knees and ankles 12 (AR 61), are not impairments that generally affect using one’s hands and fingers. 13 Plaintiff argues that she does have an impairment affecting her use of her 14 hands and fingers: arthritis. (JS at 29, citing AR 691.) Dr. Foster’s records from 15 2015 show as follows: 16 17 18 19 20 • 1/9/15: Dr. Foster’s “assessment” included knee issues, back issues, and chronic pain syndrome, but no mention of arthritis. AR 704. • 3/11/15: Dr. Foster’s “assessment” continued to list knee issues and back issues, but he did not list chronic pain syndrome or arthritis. AR 702. • 4/18/15: Plaintiff saw Dr. Michael Solomon complaining of “knee and 21 back pain.” His “assessment” listed knee and back issues, but he did not list 22 arthritis. AR 702. 23 • 5/15/15: Plaintiff saw Dr. Solomon for a medication refill complaining of 24 “knee and back pain.” His list of assessed conditions nearly doubled and included 25 “generalized osteoarthritis” for the first time. AR 701-02. 26 27 28 • 6/18/15: The next month, Dr. Solomon omitted osteoarthritis as an assessed condition. AR 700-01. • 8/14/15: Dr. Foster discussed Plaintiff’s back and knee pain with her, then 15 1 listed chronic pain syndrome and generalized osteoarthritis as assessed conditions. 2 AR 699-700. 3 4 5 6 7 8 9 10 11 • 9/11/15: The next month, Dr. Foster listed generalized osteoarthritis but not chronic pain syndrome as assessed conditions. AR 696-97. • 10/15/15 and 11/12/15: Dr. Foster listed neither osteoarthritis nor chronic pain syndrome as assessed conditions. AR 694-95. • 11/13/15: Dr. Foster listed chronic pain syndrome but not osteoarthritis as assessed conditions. AR 691-92. • 12/11/15: Dr. Foster listed generalized osteoarthritis but not chronic pain syndrome as assessed conditions. AR 690-91. Thus, conditions rotated on and off the “assessed” list from month to month 12 with no explanation as to why. When something new was added, there is no 13 discussion of why, such as new subjective complaints, new test results, new 14 imaging studies, or new observations from a physical examination. None of 15 Plaintiff’s treating records discuss testing to determine if Plaintiff has 16 osteoarthritis. Plaintiff has not shown that the ALJ erred by failing to identify 17 osteoarthritis as one of Plaintiff’s medically determinable severe impairments. 18 Regardless of labels, the record contains scant evidence that Plaintiff ever 19 complained about pain affecting her use of her upper extremities. Plaintiff cites 20 only two such records. (JS at 32.) On June 27, 2014, Plaintiff saw Dr. Foster to 21 follow-up on pain management. She reported issues with her left leg and knee. 22 Dr. Foster wrote, “[Plaintiff] also has mostly leg and sometimes hand muscle 23 cramps. This can be quite debilitating to her.” AR 473. He also noted that she 24 had “no cramps at present.” AR 474. 25 A few months later in her September 2014 Adult Function report, Plaintiff 26 reported that her impairments did not affect her using her hands. AR 296. She 27 reported no problems with bathing, dressing, or hair care. AR 292. She could do 28 light cleaning, laundry, and sweeping. AR 293. In September 2014, her boyfriend 16 1 also noted that she had no problems using her hands. AR 287. In 2013 and 2014, 2 she was able to use her upper extremities to chop firewood. AR 390, 430. 3 In December 2015, Dr. Foster wrote, “[Plaintiff] is here for chronic pain in 4 the back. She has been trying to manage her pain with medical marijuana and heat 5 packs. … She describes her pain as burning in the shoulders that radiates down 6 the mid back and sharp pain in the low back.” AR 688. As findings for the 7 musculoskeletal portion of his physical exam, Dr. Foster noted that Plaintiff has 8 radiculopathy and, “She is in pain but has no complaint of limited ROM [range of 9 motion]. No tingling in the hands or fingers. No numbness.” AR 689. 10 The VE classified Plaintiff’s past work as a home health aide, DOT 354.377- 11 014 (requiring “frequent” reaching and handling, i.e., up to 66% of the workday), 12 and cashier, DOT 211.462-010 (requiring “frequent” reaching, handling, and 13 fingering). Plaintiff worked part-time as a home health aide in 2015. AR 704. 14 When asked why she could no longer work as a cashier, Plaintiff identified issues 15 with memory and standing. AR 91, 100. When asked if she could perform that 16 fingering and handling aspects of cashier work, she responded, “Maybe, depending 17 on how much I have to do.” AR 90. She testified that she frequently dropped 18 things, like pens and coffee mugs, but her doctors did not know why. AR 90-91. 19 The ALJ discredited this testimony, stating, “There is no objective medical 20 evidence documenting an impairment to the claimant’s hands that results from 21 anatomical, physiological, or psychological abnormalities that are demonstrable by 22 medically acceptable clinical or laboratory diagnostic techniques.” AR 62. 23 The ALJ did not error in finding that the evidence does not support assessing 24 functional limitations on Plaintiff’s use of her hands, and certainly not limitations 25 as extreme as those offered by Dr. Foster. To the contrary, the medical records 26 document Plaintiff’s subjective complaints and show that when examined in 2014 27 and 2015, she had no cramps or numbness affecting her use of her hands. AR 474, 28 689. This is consistent with her own reports and those of her boyfriend, as well as 17 1 her activities, including chopping firewood. AR 371-72, 408, 430-33. Thus, Dr. 2 Foster’s failure to explain his reasons for significantly changing his opinions 3 between 2015 and 2017 and the lack of consistency with the other evidence of 4 record were both clear and convincing reasons to discount Dr. Foster’s opinions 5 limiting Plaintiff’s use of her upper extremities. 6 2. Effects of Plaintiff’s October 2014 Knee Surgery on Her RFC. 7 The ALJ found that Plaintiff could stand or walk for four hours/day and sit 8 for six hours day with specified allowances for breaks and shifting positions. AR 9 64. This RFC essentially matches the April 2015 opinions of state agency 10 consultant Dr. Vu on reconsideration. AR 144-46; see also AR 67 (giving Dr. 11 Vu’s opinions significant but not controlling weight). The state agency reviewer 12 asked, “Records show the clmnt had knee surgery in 10/14 and had some residual 13 discomfort that was to be expected after surgery. It would be expected that any 14 discomfort would not be expected to last 12 mos. Please review and advise as to 15 whether the initial assessment [for a sedentary RFC] is confirmed.” AR 141. Dr 16 Vu responded, “MER reviewed. The sed RFC will accommodate for obesity with 17 BMI 38 and left knee meniscal tear 5/2014 s/p [status post] surgery 10/2014.” AR 18 142. 19 In contrast, in 2015, Dr. Foster found that Plaintiff could only stand/walk for 20 1 hour and sit for 3 hours (AR 558-59), and in 2017, she could only stand/walk for 21 ½ hour and sit for ½ hour total in an 8-hour day (AR 883). Dr. Foster also opined 22 that Plaintiff would need to take 15-minute breaks every 20 minutes, meaning that 23 she would be on break 75% of the workday. AR 883. 24 Plaintiff contends that the ALJ erred in giving Dr. Vu’s RFC opinions more 25 weight than Dr. Foster’s opinions, reasoning that there was “minimal evidence to 26 her back or knees following the claimant’s surgery in October 2014.” (JS at 30-31, 27 citing AR 68.) Plaintiff contends that evidence from 2015 and 2016 shows that her 28 left knee continued to cause functional impairment precluding even sedentary work 18 1 more than a year after surgery. (JS at 30-31.) 2 Plaintiff underwent surgery to repair a torn meniscus in her left knee on 3 October 9, 2014. AR 516. Subsequent records show that her left knee was 4 sometimes in pain and sometimes asymptomatic, as follows: 5 • December 2015: Plaintiff told Dr. Foster that her left knee is in pain “but 6 she has no complaint of limited ROM.” AR 689. She also said that she was trying 7 to manage her pain with medical marijuana and heat packs. AR 688. 8 9 10 • January 2016: Plaintiff reported “no complaint of pain at this time.” AR 687. • February 2016: Plaintiff reported that “she continues to have increased 11 pain and popping in the left knee.” AR 683. She requested a referral to an 12 orthopedic specialist for her knee. AR 684. Dr. Foster counseled her to maintain a 13 health diet and regular exercise. Id. 14 • March 2016: When she sprained her right ankle walking down a flight of 15 stairs, she was able to use her left leg well enough to ambulate with crutches. AR 16 619. At that time, she “deni[ed] any knee pain.” AR 619, 681. 17 • April 2016: Plaintiff told Dr. Foster that she had “pain mostly in the left 18 knee and throughout the back. She manages well. Does her best to avoid taking 19 pain medication. Is using a brace for the left knee and it is helping.” AR 679. 20 • June 2016: Plaintiff reported that she “is jogging every day.” AR 676. 21 Dr. Foster instructed her to “continue current exercise program” which included 22 “[w]alk 30 minutes per day.” Id. 23 24 • August 2016: Plaintiff complained that her “left knee locks on her at times.” AR 673. She also reported that she was “staying active walking.” Id. 25 • September 2016: Plaintiff was wearing a brace on both knees. AR 668. 26 • November 2016: Plaintiff complained of left knee pain, but she also told 27 Dr. Foster that she was out of pain medications and attempting to go without them. 28 AR 665-66. 19 1 These records do not demonstrate that Plaintiff’s left knee continued to 2 cause pain so significant post-surgery that, even when treated with pain 3 medication, it would prevent Plaintiff from performing sedentary work. Plaintiff 4 has failed to demonstrate legal error in the ALJ’s RFC determination and 5 evaluation of the medical opinions from Drs. Vu and Foster. 6 V. 7 CONCLUSION 8 For the reasons stated above, IT IS ORDERED that judgment shall be 9 entered AFFIRMING the decision of the Commissioner denying benefits. 10 11 12 13 14 DATED: March 12, 2019 ______________________________ KAREN E. SCOTT United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 20
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