Cecelia V. Martinez v. Andrew M. Saul, No. 5:2019cv01678 - Document 19 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Karen E. Scott. For the reasons stated above, IT IS ORDERED that judgment shall be entered AFFIRMING the decision of the Commissioner. (See order for details.) (es)
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Cecelia V. Martinez v. Andrew M. Saul Doc. 19 1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 Case No. 5:19-cv-1678-KES CECELIA V. M., Plaintiff, MEMORANDUM OPINION AND ORDER v. ANDREW M. SAUL, Commissioner of Social Security, Defendant. 17 18 I. 19 PROCEDURAL BACKGROUND 20 Plaintiff Cecelia M. (“Plaintiff”) applied for Titles II and XVI social security 21 disability benefits in 2016, alleging a disability onset date of June 8, 2014, due to a 22 work injury that caused lower back pain. Administrative Record (“AR”) 42-43, 23 46, 246-48. On September 26, 2018, an Administrative Law Judge (“ALJ”) 24 conducted a hearing that Plaintiff attended along with her attorney. AR 35-64. On 25 November 2, 2018, the ALJ issued an unfavorable decision. AR 13-29. The ALJ 26 found that Plaintiff suffered from medically determinable severe impairments 27 consisting of “fibromyalgia; bilateral carpal tunnel syndrome; non-insulin 28 dependent diabetes with polyneuropathy; degenerative disc disease of the lumbar 1 Dockets.Justia.com 1 spine; cervical dysplasia; cervicobrachial syndrome; cervical spondylosis with 2 radiculopathy; right hip greater trochanteric bursitis; and right iliotibial band 3 syndrome.” AR 15. Despite these impairments, the ALJ found that Plaintiff had 4 the residual functional capacity (“RFC”) to perform “light” work with some 5 limitations on postural activities and the ability to change between sitting and 6 standing twice per hour. AR 20. Based on this RFC and the testimony of a 7 vocational expert (“VE”), the ALJ found that Plaintiff could perform her past 8 relevant work as an appointment clerk or claims clerk. AR 28. The ALJ 9 concluded that Plaintiff was not disabled. AR 29. 10 II. 11 ISSUES PRESENTED 12 Issue One: Whether the ALJ properly evaluated the medial evidence. (Dkt. 13 18, Joint Stipulation [“JS”] at 3.) First, Plaintiff contends that the ALJ erred by 14 giving “little weight” to the opinions of the state agency psychological consultant, 15 Dr. Alan Harris, and giving “great weight” to the opinions of consultative 16 examiner, psychologist Dr. Christopher Cooper. (JS at 6.) Second, Plaintiff 17 contends that the ALJ erred by giving “little weight” to the opinions of Plaintiff’s 18 treating physician, Dr. Brent Pratley. (JS at 7.) 19 20 Issue Two: Whether the ALJ properly evaluated Plaintiff’s subjective symptom testimony. (JS at 3, 14.) 21 III. 22 DISCUSSION 23 ISSUE ONE: The ALJ’s Evaluation of the Medical Evidence. 24 1. 25 On September 11, 2016, Plaintiff underwent a psychological evaluation by Summary of Dr. Cooper’s Opinions. 26 Dr. Cooper. AR 1144-52. Plaintiff drove alone approximately 40 miles to the 27 appointment. AR 1144. She reported a history of anxiety and depression causing 28 memory and concentration problems. AR 1145. She was currently attending 2 1 2 psychotherapy, but she was not taking any psychotropic medication. Id. She displayed a coherent thought process with no abnormal thought content. 3 AR 1147. She spoke clearly with normal rate and volume. Id. Her mood, 4 however, was sad and she was tearful; she expressed feelings of hopelessness. Id. 5 Dr. Cooper assessed that she appeared to be of average intelligence per the 6 testing he administered and his observations. AR 1147. She correctly performed 7 the tests measuring concentration and calculation. AR 1148. He assessed that her 8 abstract thinking, judgment, insight, attention, and concentration were intact. Id. 9 She could not recall any of the 3 previously-identified items after 5 minutes, but 10 11 she could recall how President Kennedy died. AR 1147. Regarding her daily activities, Plaintiff reported that she was able to drive, 12 do personal self-care, go out alone, handle her own finances, maintain friendships, 13 go shopping, run errands, and complete household chores, although with difficulty 14 due to physical pain. AR 1146, 1151. 15 Dr. Cooper administered tests including an IQ test (“WAIS-IV”) and 16 Wechsler Memory Scales 4th Edition (“WMS-IV”). AR 1144, 1149-50. He 17 assessed her IQ score as 93, placing her in the “average” range of intelligence. AR 18 1149. On the memory test, Plaintiff’s scores ranged between 41 and 52, while an 19 average score on this test is 100. AR 1150. These results caused Dr. Cooper to 20 conclude that she “functions in the extremely low range in memory and recall.” Id. 21 Dr. Cooper opined that Plaintiff used her best efforts during the testing, but her 22 “efforts slowed … which may[ be] a function of her depressive symptoms.” AR 23 1151. He diagnosed her as suffering from a depressive disorder with a Global 24 Assessment of Functioning (“GAF”) score of 60. Id. 25 Among other things, he concluded that she had “no impairment” 26 understanding, remembering, and carrying out simple instructions, “mild 27 impairment” doing complex instructions, and “mild impairment” maintaining 28 attention, persistence, and pace. AR 1152. 3 1 2. 2 On September 23, 2016 (i.e., shortly after Dr. Cooper’s report), state agency Summary of Dr. Harris’s Opinions. 3 psychologist Dr. Alan Harris considered Plaintiff’s mental RFC. The Disability 4 Determination Explanation (“DDE”) summarized Dr. Cooper’s report and other 5 evidence relevant to Plaintiff’s mental health. AR 92-93. The other evidence 6 included (1) a medical appointment noting a “sad” affect and depressed mood after 7 reporting a relationship break-up (AR 93), and (2) activities of daily living as 8 reported to Dr. Cooper and in a Function Report1 (AR 280-88). Under 9 “Notes/Questions to MCs” the DDE states: 10 This claimant was mostly wnl [within normal limits], but her WMS- 11 IV scores were extremely low. However, the [claimant] is 12 independent in her adls [activities of daily living], was able to drive 13 40 miles to the appointment and her effort was noted to slow during 14 testing, possibly related to her depressive symptoms. Given that her 15 pace is slowed by her depression, as indicated by her WMS-IV 16 scores, it would be in my judgment to limit her to no more than 17 simple, repetitive tasks over a normal 40-hour workweek. Please 18 advise. 19 AR 92. The DDE finds her “affective disorder” to be a “severe” impairment 20 causing “moderate” difficulties maintaining concentration, persistence or pace. 21 AR 92-93. Under “PRT [psychiatric review technique] – Additional Explanation,” 22 Dr. Harris wrote as follows: 23 24 25 26 27 28 1 Per her function report, she could use a computer, use the reminder function on her cell phone, drive, and manage her medications. AR 280-83. She went shopping every week and paid bills. AR 283. She checked boxes indicating she has trouble with memory and concentration, but not with understanding or following instructions. AR 285. She rated herself as “good” at following spoken instructions. Id. 4 1 WMS scores are not considered valid. Either depression affected 2 effort or [claimant] chose to not exert effort as radically inconsistent 3 with other evidence and [claimant’s] self report that she is able to 4 drive, go out alone, manage finances, follow instruct[ions]. Per SSA 5 guidelines MSS [medical source statement] of CE [consultative 6 examiner] given great weight as consistent with adls and MER 7 [medical evidence of record]. [Claimant] completes adls within 8 phys[ical] limitations, relates adeq[uately]. Condition present but not 9 severe or disabling. See mrfc [mental residual functional capacity]. 10 11 AR 93. In the MRFC portion of the DDE, Dr. Harris found that Plaintiff was “not 12 significantly limited” in her ability to remember “very short and simple” 13 instructions, locations, and work-like procedures. AR 98. She was “moderately 14 limited” at understanding and carrying out “detailed” instructions. AR 98-99. 15 While she was “moderately limited” in maintaining concentration, persistence, and 16 pace, she could “maintain sufficient attention and concentration to consistently 17 perform simple tasks and maintain a regular schedule.” AR 99. He concluded, 18 “claimant is able to meet the mental demands of a simple vocation on a sustained 19 basis despite the limitations resulting from any impairment.” AR 100. 20 3. 21 The ALJ determined that Plaintiff’s depressive disorder was not a severe The ALJ’s Decision. 22 impairment. AR 17. The ALJ found that Plaintiff had only mild memory 23 limitations and mild limitations maintaining concentration persistence and pace. 24 AR 17-18. As supporting evidence, the ALJ cited Dr. Cooper’s report, treating 25 records from 2016 to 2018, and “other evidence detailed in this decision.” Id. 26 Later in the decision, the ALJ discussed Plaintiff’s mental health while giving 27 reasons to discount the lay testimony of Plaintiff’s mother-in-law, who reported 28 that Plaintiff had trouble concentrating, understanding, and completing tasks. AR 5 1 27 (citing AR 276). The ALJ discounted this testimony, in part, because it was 2 inconsistent with Plaintiff’s activities which included driving and shopping 3 independently. AR 27. 4 The ALJ gave Dr. Cooper’s opinions “great weight” because they were 5 “consistent with the other evidence of record as a whole including the medical 6 evidence demonstrating the claimant’s persistent symptoms remained generally 7 stable at no worse than a mild level with appropriate conservative treatment and 8 the absence of more significant positive objective clinical or diagnostic findings 9 pertaining to a mental impairment.” AR 19. The ALJ gave “little weight” to Dr. 10 Harris’s opinion that Plaintiff suffered from a “severe” mental impairment. Id. 11 The ALJ found it “inconsistent” with the other evidence, citing Dr. Cooper’s 12 report. Id. 13 14 In the RFC, the ALJ did not limit Plaintiff to simple, repetitive, or slowpaced tasks. AR 20. 15 4. 16 First, Plaintiff argues that it was legal error to weigh the opinions of Drs. Analysis of Claimed Error. 17 Cooper and Harris differently since both relied on Dr. Cooper’s testing and 18 observations. (JS at 6.) While both doctors did rely on Dr. Cooper’s testing and 19 observations, they reached different conclusions. Dr. Cooper opined that Plaintiff 20 had no more that “mild” functional limitations (AR 1152) while Dr. Harris 21 assessed some “moderate” limitations (AR 98-99). The ALJ was entitled to give 22 more weight to the opinions of the doctor who interacted with Plaintiff and 23 administered the tests. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1) (noting 24 that generally more weight is afforded to the medical opinion of an examining 25 source over a non-examining source). 26 Second, Plaintiff argues that the ALJ erred by not incorporating some 27 limitation into the RFC to address Plaintiff’s depression, regardless of whether it 28 was a “severe” impairment. (JS at 13.) Plaintiff argues that because she scored so 6 1 poorly on the WMS-IV testing, she should have been limited to “simple” work, 2 consistent with Dr. Harris’s opinions and the DDE. (JS at 6, 12.) 3 In the social security context, “simple” work corresponds to work with a 4 reasoning level of 1 or 2 on a scale of 1 to 6, with 1 being the lowest rating. 5 Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015). The Dictionary of 6 Occupational Titles (“DOT”) rates Plaintiff’s past relevant jobs as requiring Level 7 3 reasoning level, one level above “simple” work. See DOT 237.367-010 and 8 205.367-018. Level 3 reasoning requires workers to “[a]pply commonsense 9 understanding to carry out instructions furnished in written, oral, or diagrammatic 10 form” and “[d]eal with problems involving several concrete variables in or from 11 standardized situations.” Id. In contrast, Level 2 reasoning requires workers to 12 “[a]pply commonsense understanding to carry out detailed but uninvolved written 13 or oral instructions” and “deal with problems involving a few concrete variables in 14 or from standardized situations.” Zavalin, 778 F.3d at 847. 15 Here, Dr. Cooper opined that Plaintiff did not need to be limited to simple 16 work. AR 1152. His opinion, coupled with other evidence in the record that 17 Plaintiff was able to drive, use a computer, set reminders on her cellphone, manage 18 her own finances, and shop independently, are substantial evidence supporting the 19 ALJ’s assessment that Plaintiff was mentally capable of more than “simple” work 20 tasks. 21 5. 22 Dr. Pratley of Keystone Medical Group treated Plaintiff in connection with Summary of Dr. Pratley’s Opinions. 23 her workers’ compensation claim. On January 26, 2015, Keystone chiropractor Dr. 24 Gary Weessies prepared an Initial Qualified Functional Capacity Evaluation 25 (“QFCE”) for Dr. Pratley. AR 381-89. Per the QFCE, Plaintiff could lift and carry 26 no more than 2 pounds, but she could push or pull as much as 130 pounds. AR 27 381. She could spend 15 minutes sitting, 14 minutes standing, and 6 minutes 28 walking. Id. The QFCE explains that Plaintiff was asked to do some of these 7 1 activities, and the maximum numbers stated for sitting, standing, walking, and 2 lifting represent when she stopped or declined to do more. AR 383-87. The QFCE 3 states that Plaintiff can stoop, crouch, crawl, and kneel, but she cannot “seize an 4 object with either hand in many directions” and her pinch strength was 0. AR 385- 5 87. The QFCE reported that Plaintiff could perform the following activities, but 6 with pain: “lift heavy items, stand, walk, shop for groceries, climb stairs, [and] 7 drive a car ….” AR 388. 8 9 A few weeks later on February 11, 2015, Dr. Pratley wrote a progress report opining that Plaintiff suffered from lumbar spondylosis, bursitis of the hips, 10 chondromalacia2 of the right knee, and plantar fasciitis of both feet. AR 317. He 11 had prescribed topical pain creams and acupuncture, but he stopped her 12 acupuncture referral after four sessions with no improvement. AR 317-18. Her 13 treatment plan included home exercises. AR 318. He opined that she could return 14 to work if restricted against (1) standing, walking, or sitting for longer than 20 15 minutes without a 5-minute break, (2) lifting more than 10 pounds, (3) kneeling or 16 squatting, and (4) reaching overhead. AR 318, 322. 17 6. 18 The ALJ gave Dr. Pratley’s opinions “little weight” citing four reasons: 19 (1) they contain inadequate supporting explanations, (2) they fail to reference 20 “sufficient medically acceptable objective clinical or diagnostic findings,” (3) they 21 are not supported by other objective evidence in the record, (4) they are 22 “inconsistent with evidence from other medical and nonmedical sources,” and 23 (5) Dr. Pratley did not have access to later treatment records that the state agency 24 consultant reviewed. AR 26-27. 25 26 27 28 The ALJ’s Decision. It is undisputed that Dr. Pratley’s opinions were contradicted. See, e.g., AR 1139 (consultative examiner Dr. Bernabe’s opinion that Plaintiff could walk, stand, 2 This condition is also known as runner’s knee. 8 1 and sit without limitations). The ALJ was therefore required to provide “specific 2 and legitimate” reasons for discounting Dr. Pratley’s opinions, supported by 3 substantial evidence. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989). 4 7. 5 Plaintiff argues that reasons 1, 2, and 3 are all the same reason (i.e., that Dr. Analysis of Claimed Error. 6 Pratley’s opinions lack objective support) and that the reason is unsupported. (JS 7 at 7.) Plaintiff argues that Dr. Pratley’s opinions are supported by spinal MRIs 8 showing conditions that could cause back pain, grip strength testing indicating 9 diminished strength, and a nerve conduction study that showed carpal tunnel 10 11 syndrome. (JS at 7-8.) The testing cited by Plaintiff does not explain on what basis Dr. Pratley 12 diagnosed Plaintiff as suffering from hip bursitis, chondromalacia, or plantar 13 fasciitis. None of these conditions relate to Plaintiff’s arms or shoulders, so the 14 conditions would not be diagnosed through grip strength testing or nerve 15 conduction studies. The conditions also appear unrelated to Dr. Pratley’s 16 restrictions against overhead reaching. Much of Dr. Weessies’s QFCE was not 17 based on objective evidence (such as imaging studies or a physical examination of 18 Plaintiff) but rather expressly relied on Plaintiff’s subjective self-reporting of her 19 limitations. See, e.g., AR 384, 389 (Plaintiff “walked for 6 minutes[,]” so he 20 opined that she could not walk for more than 6 minutes.). Dr. Pratley, in turn, did 21 not base his opinions on the QFCE (finding, for example, that Plaintiff could lift 10 22 pounds rather than 2, walk for 20 minutes rather than 6, and could not kneel 23 despite Dr. Weessies’s finding that she could kneel (see AR 318)), but he fails to 24 explain on what basis he rejected the QFCE prepared by his own office just a few 25 weeks earlier and then formulated different opinions. Thus, the ALJ cited specific, 26 legitimate reasons supported by the record for discounting Dr. Pratley’s opinions. 27 28 9 1 ISSUE TWO: Subjective Symptom Testimony. 2 1. 3 The Ninth Circuit has “established a two-step analysis for determining the Legal Standard. 4 extent to which a claimant’s symptom testimony must be credited.” Trevizo v. 5 Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). “First, the ALJ must determine 6 whether the claimant has presented objective medical evidence of an underlying 7 impairment ‘which could reasonably be expected to produce the pain or other 8 symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007) 9 (citation omitted). “Second, if the claimant meets the first test, and there is no 10 evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the 11 severity of her symptoms only by offering specific, clear and convincing reasons 12 for doing so.’” Id. (citation omitted). If the ALJ’s assessment “is supported by 13 substantial evidence in the record, [courts] may not engage in second-guessing.” 14 Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002). 15 2. 16 The ALJ began his consideration of Plaintiff’s subjective symptom 17 testimony by reciting the two-step process required by law. AR 20-21. The ALJ 18 then summarized Plaintiff’s testimony. AR 21. The ALJ determined that Plaintiff 19 satisfied the first step, i.e., her medically determinable impairments could 20 reasonably be expected to cause the alleged symptoms of pain, mental health 21 symptoms, and mobility difficulties. Id. At step two, however, the ALJ found that 22 Plaintiff’s statements about “the intensity, persistence and limiting effects of these 23 symptoms [were] not entirely consistent with the medical evidence and other 24 evidence in the record for the reasons explained in [the] decision.” AR 21-22. 25 The ALJ’s Reasoning. As a first reason, the ALJ gave examples of how Plaintiff’s testimony was 26 inconsistent with statements about her subjective complaints in her medical 27 records. The ALJ cited several specific inconsistencies. First, the ALJ noted that 28 at the September 2018 hearing, Plaintiff testified she had significant back pain. 10 1 AR 21 (referencing AR 46-47 (Plaintiff could not continue working in 2014 2 because her “lower back was hurting so much” and she had pain in her “upper back 3 by [her] neck” that was “extreme” and “constant.”)). The ALJ contrasted this 4 testimony with records from a November 2015 cardiology appointment saying 5 “negative for … back pain” and “Pt states no symptoms but just [diagnosed] with 6 fibromyalgia.” AR 21 (referencing AR 535). 7 Second, the ALJ noted that Plaintiff testified she had trouble walking. AR 8 21 (referencing AR 42 (Plaintiff stopped working in 2014 because “I just couldn’t 9 walk anymore, it was just extreme pain”)); see also AR 285 (Per 2016 function 10 report, she can walk for “10-15 min” before needing to rest). The ALJ contrasted 11 this with the same 2015 cardiology record that says, “Walks for 30 minutes few 12 times a week without symptoms.” AR 21 (referencing AR 535). 13 Third, the ALJ noted that Plaintiff complained of significant fibromyalgia 14 pain, weakness, and fatigue. AR 21 (referencing AR 51 (Plaintiff only gets 5 hours 15 of sleep per night)); see also AR 280 (“I get very tired and need to rest throughout 16 the day.”). The ALJ contrasted this testimony with records from an October 2015 17 pain management appointment which said that Plaintiff “denies fatigue, tiredness, 18 or insomnia” and was “comfortable taking current Norco three per day” and not 19 trying “more typical medications for fibromyalgia[.]” AR 21 (referencing AR 734- 20 36). 21 Fourth, Plaintiff complained of peripheral neuropathy and radiating pain. 22 AR 21-22 (referring to AR 50 (“I have been known to drop dishes because I just 23 can’t hold onto them.”)) and AR 285 (checking box to indicate her condition 24 affects “using hands”). August 2015 testing of her upper extremities, however, 25 revealed carpal tunnel syndrome but “no evidence for peripheral neuropathy or 26 radiculopathy.” AR 812. 27 28 Fifth, the ALJ again referred to Plaintiff’s testimony that she has difficulty walking because of pain. AR 22. The ALJ contrasted this with medical records 11 1 indicating that Plaintiff had a normal gait, including: 2 • 11/17/15: Plaintiff “walks for 30minutes few times a week[.]” AR 3 535. 4 • 9/9/16: Plaintiff displayed “normal” gait and could walk on tiptoes 5 and heels without difficulty. AR 1137. 6 • 5/9/17: Plaintiff had “normal” gait but “tired looking and like in 7 pain.” AR 1402. 8 • 2/5/18: Plaintiff had “normal” gait. AR 1333. 9 As a second reason, the ALJ found that Plaintiff’s testimony was 10 inconsistent with certain objective medical testing. AR 22. 11 As a third reason, the ALJ found that Plaintiff had failed to follow 12 recommended treatment. Id. As supporting evidence, the ALJ cited Plaintiff’s 13 decision to decline a carpal tunnel syndrome injection and “typical” medication for 14 fibromyalgia. Id. (citing AR 734, 736). 15 3. 16 Regarding the inconsistencies identified by the ALJ in support of the ALJ’s Analysis of Claimed Error. 17 first reason, Plaintiff argues that the ALJ is “splitting hairs and cherry-pick[ing] 18 from the evidence” to support a desired outcome. (JS at 16.) Plaintiff misapplies 19 this doctrine. To support a finding that a claimant has made inconsistent 20 statements about his/her subjective symptoms, the ALJ must comb through the 21 evidence and cite specific examples, which is exactly what the ALJ did. The fact 22 that Plaintiff told Dr. Weessies in 2015 in the course of her workers’ compensation 23 claim that she could only walk 6 minutes (AR 381-89) and told the SSA in 2016 24 that she could only walk 10-15 minutes (AR 285) but then told her cardiologist in 25 2015 that she “[w]alks for 30 minutes few times a week without symptoms” (AR 26 535) is a clear and convincing reason to discredit Plaintiff’s subjective symptom 27 testimony. 28 Plaintiff argues that the fact that she denied back pain and fibromyalgia 12 1 symptoms during one November 2015 cardiology appointment (AR 535) is 2 meaningless because she endorsed pain at other medical appointments and her 3 cardiologist was not treating her for pain. (JS at 17.) These arguments do not 4 diminish the inconsistency in Plaintiff’s testimony. 5 Regarding Plaintiff’s decision to decline “typical” medication for 6 fibromyalgia, Plaintiff argues that it also means nothing because she was already 7 taking Norco. (Id.) The ALJ’s point, however, was that Plaintiff alleged she was 8 suffering from disabling symptoms of fibromyalgia. AR 51 (alleging her “mind is 9 constantly thinking about how to get rid of the pain”) and AR 86 (alleging “Fibro 10 Fog” rendered her “unable to think straight, forgetful, unable to concentrate”). In 11 2015, she declined taking “typical” medication for that condition, preferring 12 Norco. AR 734. By the date of the hearing in 2018, she was still just taking 13 Norco. AR 47. If Plaintiff’s fibromyalgia were truly as disabling as she claimed, 14 and Norco was not successful at suppressing her “extreme” and “constant” pain 15 (AR 47) for three years, then one would expect her to be willing to try one of the 16 “typical” medications to see if it might help. Thus, the ALJ has provided another 17 clear and convincing reason supported by substantial evidence. 18 V. 19 CONCLUSION 20 For the reasons stated above, IT IS ORDERED that judgment shall be 21 entered AFFIRMING the decision of the Commissioner. 22 23 24 DATED: August 13, 2020 ______________________________ KAREN E. SCOTT United States Magistrate Judge 25 26 27 28 13
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