Michaela Whitney Kellner v. Carolyn W. Colvin, No. 8:2014cv01340 - Document 27 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER AFFIRMING COMMISSIONER by Magistrate Judge Jean P. Rosenbluth. IT IS ORDERED that judgment be entered AFFIRMING the decision of the Commissioner and dismissing this action with prejudice. IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the Judgment on counsel for both parties. (See Order for details) (bem)
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Michaela Whitney Kellner v. Carolyn W. Colvin Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 MICHAELA WHITNEY KELLNER, 11 Plaintiff, 12 vs. 13 14 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 15 Defendant. 16 ) Case No. SACV 14-1340-JPR ) ) ) MEMORANDUM OPINION AND ORDER ) AFFIRMING COMMISSIONER ) ) ) ) ) ) ) 17 18 I. PROCEEDINGS 19 Plaintiff seeks review of the Commissioner’s final decision 20 denying her application for supplemental security income (“SSI”). 21 The parties consented to the jurisdiction of the undersigned U.S. 22 Magistrate Judge under 28 U.S.C. § 636(c). This matter is before 23 the Court on the parties’ Joint Stipulation, filed June 26, 2015, 24 and Plaintiff’s Reply, filed June 29, which the Court has taken 25 under submission without oral argument. For the reasons stated 26 below, the Commissioner’s decision is affirmed and judgment is 27 entered in the Commissioner’s favor. 28 1 Dockets.Justia.com 1 II. BACKGROUND 2 Plaintiff was born in 1986. 3 195.) (Administrative Record (“AR”) She graduated from college in 2008. (AR 235.) Plaintiff 4 previously worked part time as a retail salesperson and, as part 5 of a school work-study program, a painting-and-drawing technician 6 and an assistant to her school’s English department. (AR 227, 7 275, 293-96.) 8 Plaintiff has twice applied for benefits; both times the ALJ 9 found her not disabled and she appealed to this Court. First, on 10 February 13, 2009, Plaintiff filed applications for Disabled 11 Adult Child benefits (“DAC”)1 and SSI. (AR 68-69.) She alleged 12 that she had been unable to work since June 6, 2007, because of 13 “compressed discs in the neck,” “degeneration in neck,” nerve 14 damage in her left arm and leg, shoulder tendonitis, migraines, 15 nonverbal learning disorder, post-traumatic-stress disorder, 16 depression, and other medical conditions, most of which were 17 allegedly caused by a fall down some stairs in February 2007. 18 (AR 78-80, 226.) After Plaintiff’s applications were denied, she 19 requested a hearing before an Administrative Law Judge. (AR 76.) 20 A hearing was held on June 22, 2010, at which Plaintiff, who was 21 represented by counsel, testified, as did a medical expert, 22 Joseph E. Jensen, and a vocational expert. (Id.) On October 8, 23 2010, the ALJ issued a written decision finding Plaintiff not 24 25 26 27 28 1 DAC benefits are available for a disabled child of a person who is deceased or drawing Social Security disability or retirement benefits. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(5). To be eligible for DAC benefits, an applicant who is 18 years old or older must have become disabled before age 22. 42 U.S.C. § 402(d); 20 C.F.R. § 404.350(a)(5). 2 1 disabled. (AR 76-86.) Plaintiff requested review of the ALJ’s 2 decision, which the Appeals Council denied on July 18, 2012. 3 Kellner v. Colvin, No. SACV 12-1457-JPR, 2013 WL 3200581, at *1 4 (C.D. Cal. June 24, 2013), aff’d, 603 F. App’x 592 (9th Cir. 5 2015). Plaintiff appealed the Commissioner’s final decision to 6 this Court. 7 Id. Meanwhile, in late October 2010, just a few weeks after the 8 first ALJ found her not disabled, Plaintiff filed a second round 9 of applications for DAC and SSI. (AR 19, 88-91, 195.) Plaintiff 10 alleged that she had been unable to work since February 1, 2007, 11 because of cervical dystonia,2 spinal-cord injury, “SCIWORA,”3 12 and a learning disorder. (AR 195, 366.) After her applications 13 were denied, Plaintiff requested a hearing before an ALJ (AR 14 108). A hearing was held on January 9, 2013, at which Plaintiff, 15 who was represented by counsel, testified, as did a vocational 16 expert and a second medical expert.4 (AR 37-64.) At the 17 hearing, Plaintiff amended her onset date to October 9, 2010, the 18 day after the first ALJ had issued his opinion. 19 (AR 39-40.) On February 27, 2013, the second ALJ issued a written 20 decision finding Plaintiff not disabled for purposes of SSI. (AR 21 22 23 24 25 26 27 28 2 Dystonia is a movement disorder that causes involuntary contractions of the muscles, resulting in twisting and repetitive movements that are sometimes painful. Dystonia, MedlinePlus, http://www.nlm.nih.gov/medlineplus/dystonia.html (last updated Sept. 25, 2015). 3 “SCIWORA” is an acronym for spinal cord injury without radiographic abnormality. (See AR 432.) 4 The medical expert opined that Plaintiff had “no limitations from a psychiatric standpoint” but did not offer an opinion as to Plaintiff’s physical limitations. (AR 55.) 3 1 19-32.) The ALJ also found that because Plaintiff was more than 2 22 years old on the amended onset date, she had effectively 3 withdrawn her application for DAC.5 (AR 19.) On March 15, 2013, 4 Plaintiff requested review of the ALJ’s decision. 5 (AR 15.) On June 24, 2013, this Court affirmed the first ALJ’s 6 decision, see Kellner, 2013 WL 3200581, and Plaintiff appealed to 7 the Ninth Circuit. On June 27, 2014, the Appeals Council denied 8 Plaintiff’s request for review of the second ALJ’s decision.6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 Plaintiff does not challenge the ALJ’s finding that amending her onset date effectively withdrew her application for DAC. (See generally J. Stip.) 6 The Appeals Council order included in the administrative record stated that it was “only about [Plaintiff’s] claim for child’s insurance benefits” and the Council would “send [Plaintiff] a separate letter about [her] claim for supplemental security income benefits.” (AR 1.) On September 29, 2015, the Court directed the Commissioner to submit the Appeals Council order pertaining to the denial of SSI benefits. On October 6, 2015, the Commissioner did so, but she admitted that because of a “clerical error,” it likely was never mailed to Plaintiff. (Def.’s Resp. Order at 1, 2 n.1, & Ex.) On October 13, 2015, Plaintiff filed a response, arguing that she never exhausted her administrative remedies and the Court therefore lacks jurisdiction over this appeal. (Resp. Ct. Re: Exhaustion at 2.) Plaintiff’s argument fails. As long as a claim for benefits was presented to the Social Security Administration, the Commissioner may waive both exhaustion and the 60-day time period for filing a complaint. See Mathews v. Eldridge, 424 U.S. 319, 328 & n.9 (1975); see also Bowen v. City of New York, 476 U.S. 467, 478 & n.10, 482-83 (1986). Plaintiff filed her complaint on August 26, 2014, arguing that the Appeals Council’s June 27 order made the ALJ’s decision the Commissioner’s final decision and that the Court has jurisdiction over this appeal (Compl. at 1-2); the parties repeated those assertions in their Joint Stipulation (J. Stip. at 4). In her response to the Court’s September 29 Order, moreover, the Commissioner asserts that Plaintiff adequately exhausted her administrative remedies notwithstanding the Appeals Council’s apparent failure to send the second letter. (Def.’s Resp. Order at 2.) Indeed, by October 2015, when 4 1 (AR 1-4.) Plaintiff then appealed the second ALJ’s decision to 2 this Court, challenging only the denial of SSI. 3 On May 12, 2015, the Ninth Circuit affirmed the Court’s 4 order upholding the first ALJ’s decision, see Kellner v. Colvin, 5 603 F. App’x 592 (9th Cir. 2015), and the mandate issued on July 6 7, 2015, Kellner v. Colvin, No. 13-56357 (9th Cir. July 7, 2015) 7 (mandate). 8 III. STANDARD OF REVIEW 9 Under 42 U.S.C. § 405(g), a district court may review the 10 Commissioner’s decision to deny benefits. The ALJ’s findings and 11 decision should be upheld if they are free of legal error and 12 supported by substantial evidence based on the record as a whole. 13 See id.; Richardson v. Perales, 402 U.S. 389, 401 (1971); Parra 14 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial 15 evidence means such evidence as a reasonable person might accept 16 as adequate to support a conclusion. Richardson, 402 U.S. at 17 401; Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 18 It is more than a scintilla but less than a preponderance. 19 Lingenfelter, 504 F.3d at 1035 (citing Robbins v. Soc. Sec. 20 Admin., 466 F.3d 880, 882 (9th Cir. 2006)). To determine whether 21 substantial evidence supports a finding, the reviewing court 22 “must review the administrative record as a whole, weighing both 23 the evidence that supports and the evidence that detracts from 24 25 Plaintiff first argued that her claims were unexhausted, the 26 parties had already been litigating this case for more than a year. Thus, even if the Appeals Council’s failure to mail the 27 second notice somehow prevented Plaintiff from exhausting her claims, the Commissioner (and Plaintiff, for that matter) clearly 28 waived the issue. 5 1 the Commissioner’s conclusion.” 2 720 (9th Cir. 1998). Reddick v. Chater, 157 F.3d 715, “If the evidence can reasonably support 3 either affirming or reversing,” the reviewing court “may not 4 substitute its judgment” for the Commissioner’s. Id. at 720-21. 5 IV. THE EVALUATION OF DISABILITY 6 People are “disabled” for purposes of receiving Social 7 Security benefits if they are unable to engage in any substantial 8 gainful activity owing to a physical or mental impairment that is 9 expected to result in death or which has lasted, or is expected 10 to last, for a continuous period of at least 12 months. 42 11 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 12 (9th Cir. 1992). 13 A. 14 An ALJ follows a five-step sequential evaluation process to The Five-Step Evaluation Process 15 assess whether someone is disabled. 20 C.F.R. § 416.920(a)(4); 16 Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995) (as 17 amended Apr. 9, 1996). In the first step, the Commissioner must 18 determine whether the claimant is currently engaged in 19 substantial gainful activity; if so, the claimant is not disabled 20 and the claim must be denied. § 416.920(a)(4)(i). If the 21 claimant is not engaged in substantial gainful activity, the 22 second step requires the Commissioner to determine whether the 23 claimant has a “severe” impairment or combination of impairments 24 significantly limiting her ability to do basic work activities; 25 if not, a finding of not disabled is made and the claim must be 26 denied. § 416.920(a)(4)(ii). If the claimant has a “severe” 27 impairment or combination of impairments, the third step requires 28 the Commissioner to determine whether it meets or equals an 6 1 impairment in the Listing of Impairments (“Listing”) set forth at 2 20 C.F.R. part 404, subpart P, appendix 1; if so, disability is 3 conclusively presumed and benefits are awarded. 4 § 416.920(a)(4)(iii). 5 If the claimant’s impairment or combination of impairments 6 does not meet or equal one in the Listing, the fourth step 7 requires the Commissioner to determine whether the claimant has 8 sufficient residual functional capacity (“RFC”)7 to perform her 9 past work; if so, she is not disabled and the claim must be 10 denied. § 416.920(a)(4)(iv). The claimant has the burden of 11 proving she is unable to perform past relevant work. 12 F.2d at 1257. Drouin, 966 If the claimant meets that burden, a prima facie 13 case of disability is established. Id. If that happens or if 14 the claimant has no past relevant work, the Commissioner then 15 bears the burden of establishing that the claimant is not 16 disabled because she can perform other substantial gainful work 17 available in the national economy. § 416.920(a)(4)(v). That 18 determination comprises the fifth and final step in the 19 sequential analysis. § 416.920; Lester, 81 F.3d at 828 n.5; 20 Drouin, 966 F.2d at 1257. 21 B. 22 At step one, the ALJ found that Plaintiff had not engaged in The ALJ’s Application of the Five-Step Process 23 substantial gainful activity since October 9, 2010, the alleged 24 onset date. (AR 21.) At step two, she found that Plaintiff had 25 the severe impairments of “status post fall in 2007 with mild 26 27 28 7 RFC is what a claimant can do despite existing exertional and nonexertional limitations. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 7 1 cervical spine degenerative disc disease, without evidence of 2 radiculopathy; left shoulder tendonitis; and early bilateral knee 3 degenerative joint changes.” (AR 22.) She found that 4 Plaintiff’s alleged urinary problems, asthma, low-back 5 impairment, and mental impairments were either not medically 6 determinable or nonsevere, findings Plaintiff does not challenge. 7 (AR 22-25.) At step three, the ALJ determined that Plaintiff’s 8 impairments did not meet or equal any of the impairments in the 9 Listing. (AR 25-26.) At step four, the ALJ found that Plaintiff 10 had the RFC to perform sedentary work with several additional 11 limitations. (AR 26.) Based on the VE’s testimony, the ALJ 12 found that Plaintiff could perform two jobs that existed in 13 significant numbers in the national economy. (AR 31.) 14 therefore concluded that Plaintiff was not disabled. She (AR 32.) 15 V. DISCUSSION 16 Plaintiff contends that the ALJ failed to properly consider 17 the opinion of her treating physician, Dr. Khang Lai. 18 at 5.) (J. Stip. She also contends that the “doctrine of continuing non- 19 disability” set forth in Chavez v. Bowen, 844 F.2d 691, 693 (9th 20 Cir. 1988), doesn’t apply because her “pattern of treatment 21 demonstrates a worsening or deepening of the impairments 22 afflicting [her]” (J. Stip. at 9) and because “Kellner I was not 23 judicially final on the date of the ALJ decision” (Reply at 2). 24 The Commissioner argues that the presumption of nondisability 25 applies because Plaintiff failed to show changed circumstances 26 indicating greater disability than existed on the date of the 27 earlier ALJ decision, October 8, 2010. (J. Stip. at 12.) She 28 further contends that, in any event, the ALJ “gave several valid 8 1 reasons for rejecting” Dr. Lai’s “conclusory, unsupported and 2 contradicted opinion.” (Id. at 17).8 3 A. 4 Three types of physicians may offer opinions in Social Applicable Law 5 Security cases: (1) those who directly treated the plaintiff, (2) 6 those who examined but did not treat the plaintiff, and (3) those 7 who did neither. Lester, 81 F.3d at 830. A treating physician’s 8 opinion is generally entitled to more weight than that of an 9 examining physician, and an examining physician’s opinion is 10 generally entitled to more weight than a nonexamining 11 physician’s. 12 Id. This is true because treating physicians are employed to 13 cure and have a greater opportunity to know and observe the 14 claimant. Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). 15 If a treating physician’s opinion is well supported by medically 16 acceptable clinical and laboratory diagnostic techniques and is 17 not inconsistent with the other substantial evidence in the 18 record, it should be given controlling weight. § 416.927(c)(2). 19 If a treating physician’s opinion is not given controlling 20 weight, its weight is determined by length of the treatment 21 relationship, frequency of examination, nature and extent of the 22 treatment relationship, amount of evidence supporting the 23 opinion, consistency with the record as a whole, the doctor’s 24 area of specialization, and other factors. § 416.927(c)(2)-(6). 25 26 27 28 8 In the Joint Stipulation, Plaintiff argued that the ALJ didn’t properly consider her testimony (J. Stip. at 5, 21-25), but in her Reply, she conceded that “in light of the Ninth Circuit decision in Kellner I, she cannot prevail on this issue” (Reply at 3). As such, the Court does not address it. 9 1 When a treating physician’s opinion is not contradicted by 2 other evidence in the record, it may be rejected only for “clear 3 and convincing” reasons. See Carmickle v. Comm’r, Soc. Sec. 4 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 5 F.3d at 830-31). When it is contradicted, the ALJ must provide 6 only “specific and legitimate reasons” for discounting it. 7 (citing Lester, 81 F.3d at 830-31). Id. The weight given an 8 examining physician’s opinion, moreover, depends on whether it is 9 consistent with the record and accompanied by adequate 10 explanation, among other things. § 416.927(c)(3)-(6). These 11 factors also determine the weight afforded the opinions of 12 nonexamining physicians. § 416.927(e). 13 B. 14 On June 15, 2009, Dr. Lai completed a one-page physical- Relevant Facts 15 capacities-evaluation check-off form. (AR 507.) He checked the 16 boxes indicating that Plaintiff could sit, stand, or walk for one 17 hour at a time, for a total of two hours each in an eight-hour 18 day. (Id.) She could occasionally lift or carry five pounds but 19 never more than that. (Id.) Plaintiff could never bend, squat, 20 crawl, climb, or perform activities involving unprotected 21 heights, moving machinery, marked changes in temperature or 22 humidity, driving automotive equipment, or exposure to dust, 23 fumes, or gases. (Id.) She could not use arm controls or reach 24 with either arm and could not use leg controls with her left leg. 25 (Id.) Dr. Lai did not list a diagnosis or make any notes in the 26 section for “remarks.” 27 (Id.) On June 16, 2009, Dr. Lai completed an application for 28 discharge of Plaintiff’s student loans based on total and 10 1 permanent disability. (AR 505-06.) He listed Plaintiff’s 2 diagnoses as “SCWIORA (spinal cord injury)” and cervical and 3 lumbar spondylosis. (AR 506.) Although just one day earlier he 4 had indicated that Plaintiff could sit, stand, or walk for one 5 hour at a time each, he wrote that Plaintiff could stand for less 6 than 15 minutes and had “limited sitting [and] standing 7 tolerance” of less than 20 minutes. 8 (Id.) On October 8, 2010, the first ALJ accorded little weight to 9 Dr. Lai’s opinions, finding that they were “not consistent with 10 the objective medical evidence of record,” which showed “no 11 neurological deficits that would preclude all competitive work” 12 and “no evidence of a low back impairment that would preclude all 13 bending.” (AR 83.) The ALJ accorded “greatest weight” to the 14 opinion of orthopedic surgeon Jensen, who had testified at the 15 hearing. (AR 82.) In accordance with Dr. Jensen’s opinion 16 (id.), the ALJ concluded that Plaintiff could perform a limited 17 range of sedentary work, involving 18 lifting and/or carrying 10 pounds occasionally, less than 19 10 pounds frequently; stand and walk 2 hours; sit for 6 20 hours; should have opportunity every 60 minutes at the 21 worksite to change positions briefly for up to 5 minutes; 22 occasional climbing of ramps and stairs; occasional 23 stooping, crouching, kneeling, and crawling; occasional 24 bilateral operation of pedals; upper extremities gross 25 and fine manipulation bilaterally limited to frequent as 26 opposed to constant; avoid reaching with the left upper 27 extremity at or above shoulder level; avoid constant neck 28 motion (flexion, extension or rotation) but can do it on 11 1 a frequent basis; avoid unprotected heights or moving 2 equipment; and avoid driving. 3 (AR 81.) After the Appeals Council declined Plaintiff’s request 4 for review, she appealed the ALJ’s October 2010 decision to this 5 Court. 6 On February 4, 2011, while the appeal of the October 2010 7 decision was pending and after Plaintiff had filed new 8 applications for benefits, Dr. F. Kalmar, who specialized in 9 physical medicine,9 reviewed Plaintiff’s medical records and 10 completed a physical-residual-functional-capacity assessment. 11 (AR 748-53, 766-68.) Dr. Kalmar listed Plaintiff’s diagnoses as 12 cervical-spine residuals following a fall in 2007. (AR 748.) He 13 opined that she could frequently and occasionally lift and carry 14 10 pounds, stand and walk at least two hours and sit at least six 15 hours in an eight-hour day, had limited ability to push and pull 16 with her lower extremities, and needed to avoid rough surfaces 17 and terrain. (AR 749.) She could frequently balance; 18 occasionally climb ramps and stairs, stoop, kneel, crouch, and 19 crawl; and never climb ladders, ropes, and scaffolds. (AR 750.) 20 She could not reach above shoulder level with her left arm but 21 had no other manipulative limitations. (Id.) Finally, Plaintiff 22 had to avoid all exposure to hazards, moderate exposure to fumes 23 and dust, and concentrated exposure to extreme cold. (AR 751.) 24 On April 1, 2011, Dr. J. Hartman, who specialized in 25 26 27 28 9 Dr. Kalmar’s electronic signatures include a medical specialty code of 34, indicating physical medicine. (AR 752); see Program Operations Manual System (“POMS”) DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/ lnx/0424501004. 12 1 ophthalmology,10 reviewed Plaintiff’s medical records and 2 affirmed Dr. Kalmar’s findings. 3 (AR 782-84.) On January 4, 2013, Dr. Lai completed another one-page 4 physical-capacities-evaluation check-off form. (AR 786.) He 5 wrote that Plaintiff had a history of “spinal cord injury” with 6 “dystonia/pain” and “severe dysfunction.” (Id.) He checked the 7 boxes indicating that Plaintiff could sit, stand, or walk for one 8 hour at a time, for a total of one hour each in an eight-hour 9 day. (Id.) She could occasionally lift and carry up to five 10 pounds but never more than that, and she could occasionally bend 11 and squat but never crawl or climb. (Id.) Her ability to drive 12 was mildly restricted, and she could not be exposed to 13 unprotected heights, moving machinery, marked changes in 14 temperature, or dust, fumes, and gasses. (Id.) Plaintiff could 15 use her upper extremities for fine manipulation but not for 16 “simple grasping,” “pushing & pulling of arm controls,” or 17 reaching. (Id.) She could not use her feet for repetitive 18 motions, such as pushing and pulling of leg controls. 19 (Id.) On February 27, 2013, the second ALJ issued her decision 20 finding Plaintiff not disabled. (AR 19-32.) In doing so, she 21 accorded “good weight” to Dr. Jensen’s findings but found that 22 his limitation on the use of foot pedals was not warranted by the 23 medical record. (AR 29.) She accorded “some weight” to Drs. 24 Kalmar’s and Hartman’s opinions, finding that they were largely 25 26 10 Dr. Hartman’s electronic signatures include a medical (AR 784); see POMS DI 24501.004, U.S. Soc. Sec. Admin. (May 5, 2015), http://policy.ssa.gov/poms.nsf/lnx/ 0424501004. 27 specialty code of 28, indicating ophthalmology. 28 13 1 consistent with the objective medical evidence except that “no 2 severe medically determinable impairments” would warrant 3 “limitations in the exposure to dusts, fumes, gases and other 4 pulmonary irritants, or . . . the need to avoid rough surfaces or 5 terrain.” (AR 28.) The ALJ accorded “little weight” to Dr. 6 Lai’s January 2013 opinion, finding that his treatment notes and 7 examination findings “d[id] not support the limitations given.” 8 (AR 28-29.) She also found that Dr. Lai’s earlier opinions were 9 “sufficiently discussed in the prior [ALJ] decision” and that “no 10 additional evidence . . . substantially alters the weight given 11 to” them. (AR 29.) The ALJ acknowledged, however, that it was 12 “uncontradicted” that Plaintiff was “not capable of performing a 13 full workweek on a regular and continuous basis without 14 limitation” because of her cervical-spine and left-shoulder 15 impairments. (AR 27.) She therefore concluded that Plaintiff 16 could perform only a limited range of sedentary work, as follows: 17 [She can] occasionally lift 10 pounds, frequently lift 18 less than 10 pounds; sit 6 hours out of an 8-hour day; 19 stand or walk 2 hours out of an 8-hour day; based on her 20 subjective 21 positions 1 to 3 minutes every hour; she can occasionally 22 climb stairs, bend, balance, stoop, kneel, crouch, or 23 crawl; is precluded from climbing ladders, ropes, or 24 scaffolding; she is precluded from working at unprotected 25 heights, 26 automotive equipment on the job; she can perform no 27 constant neck motion (flexion, extension, or rotation) 28 but frequent is okay; and with the left upper extremity complaints around she dangerous 14 must be able machinery, to or change driving 1 she can do occasional overhead reaching. 2 (AR 26.) 3 On June 24, 2013, this Court affirmed the first ALJ’s 4 decision, finding that his discounting of Dr. Lai’s opinions and 5 Plaintiff’s credibility were supported by substantial evidence. 6 See Kellner, 2013 WL 3200581. Plaintiff appealed, challenging 7 only the ALJ’s credibility finding; on May 12, 2015, the Ninth 8 Circuit affirmed this Court’s judgment. Kellner, 603 F. App’x 9 592. 10 C. 11 As an initial matter, Plaintiff might be correct that, under Discussion 12 the Social Security Administration’s interpretation of Chavez, 13 the presumption of continuing nondisability did not apply to her 14 claim at the time of the second ALJ’s decision. When a previous 15 ALJ has issued a “final decision” finding a claimant not 16 disabled, an ALJ considering a subsequent claim regarding an 17 unadjudicated period must “apply a presumption of continuing 18 nondisability and determine that the claimant is not disabled” 19 unless the claimant rebuts the presumption. SSAR 97-4(9), 1997 20 WL 742758, at *3 (Dec. 3, 1997); see also Chavez, 844 F.2d at 693 21 (“The principles of res judicata apply to administrative 22 decisions, although the doctrine is applied less rigidly to 23 administrative proceedings than to judicial proceedings.”). The 24 Social Security Administration’s Program Operations Manual System 25 (“POMS”) states that “[a]n ALJ or [Appeals Council] decision 26 becomes final,” and therefore gives rise to the presumption, “as 27 of the date of notice [of the decision] unless . . . [i]t is 28 timely appealed (or a civil action is filed).” 15 POMS DI 1 52755.010.B.4, U.S. Soc. Sec. Admin. (Sept. 2, 2014), 2 http://policy.ssa.gov/poms.nsf/lnx/0452755010 (explaining “How 3 the Chavez AR Applies”); see also Lockwood v. Comm’r Soc. Sec. 4 Admin., 616 F.3d 1068, 1073 (9th Cir. 2010) (noting that agency 5 interpretations in POMS are “entitled to respect, but “only to 6 the extent that [they] have the ‘power to persuade’” (citation 7 omitted)); cf. § 416.1481 (“The Appeals Council’s decision, or 8 the decision of the administrative law judge if the request for 9 review is denied, is binding unless you or another party file an 10 action in Federal district court, or the decision is revised.”). 11 A claimant may rebut the presumption of nondisability by showing 12 “changed circumstances” indicating a greater disability. Chavez, 13 844 F.3d at 693. 14 Here, Plaintiff appealed the first ALJ’s decision to this 15 Court, and that appeal was still pending when the second ALJ 16 issued her decision. Under the Administration’s interpretation 17 in POMS, therefore, the decision was not yet “final” and the ALJ 18 was not required to apply the presumption. Perhaps because of 19 that, the second ALJ, who was aware of the proceedings in this 20 Court (see AR 39), nowhere discussed Chavez, the Acquiescence 21 Ruling, or the presumption of continuing nondisability (see AR 22 16-32).11 Instead, she reviewed the new medical evidence, 23 24 25 26 27 28 11 Moreover, a consulting psychiatrist, who was presumably familiar with the Administration’s rules, see SSR 96-6P, 1996 WL 374180, at *2 (July 2, 1996) (noting that state-agency medical and psychological consultants are “experts in the Social Security disability programs”), rendered an opinion that among other things recommended “making sure that no appeals are pending re: ALJ decision” because if so, the Acquiescence Ruling would “not apply yet” (AR 765; see also AR 763). 16 1 specifically adopted many of the first ALJ’s findings, and made 2 an independent decision.12 3 (See id.) In any event, reversal is not warranted because the ALJ 4 properly assessed Dr. Lai’s opinions. As an initial matter, the 5 ALJ’s RFC finding accommodates many of the limitations in Dr. 6 Lai’s most recent opinion. For example, the ALJ found that 7 Plaintiff could stand and walk for a total of only two hours in 8 an eight-hour day (AR 26), which is largely consistent with Dr. 9 Lai’s finding that she could stand for a total of one hour and 10 walk for a total of one hour in an eight-hour day (AR 786). The 11 ALJ found that Plaintiff could occasionally bend, stoop, kneel, 12 and crouch (AR 26), which appears consistent with Dr. Lai’s 13 finding that she could occasionally bend and squat (AR 786). The 14 ALJ also found that Plaintiff could not work around unprotected 15 heights or dangerous machinery; drive automotive equipment on the 16 job; or climb ladders, ropes, or scaffolds (AR 26), which is 17 consistent with Dr. Lai’s finding that Plaintiff was totally 18 restricted from activities involving unprotected heights or being 19 around moving machinery; “mild[ly]” restricted from driving 20 automotive equipment; and precluded from climbing (AR 786). And 21 in some respects, the ALJ’s RFC finding was more limited that Dr. 22 23 24 25 26 27 28 12 Even if the presumption of continuing disability were applicable here, Plaintiff likely would have rebutted it because she alleged at least one impairment, cervical dystonia, that was not considered by the first ALJ. (Compare AR 226 with AR 366); see SSAR 97-4(9), 1997 WL 742758, at *3 (“changed circumstances” rebutting presumption of disability include “the alleged existence of an impairment(s) not previously considered”); Lester, 81 F.3d at 827 (res judicata does not apply when “the claimant raises a new issue, such as the existence of an impairment not considered in the previous application”). 17 1 Lai’s opinion, in that it also precluded Plaintiff from 2 performing “constant neck motion.”13 3 (AR 26.) To the extent the ALJ rejected Dr. Lai’s opinions, moreover, 4 she provided legally sufficient reasons for doing so. First, the 5 ALJ specifically adopted the portions of the first ALJ’s decision 6 according “little weight” to Dr. Lai’s earlier opinions (AR 29) — 7 findings that this Court affirmed, see Kellner, 2013 WL 3200581, 8 at *3-12, and that Plaintiff did not challenge on appeal to the 9 Ninth Circuit, see Kellner, 603 F. App’x 592. Second, as 10 discussed below, she gave specific and legitimate reasons for 11 according “little weight” to Dr. Lai’s new, controverted January 12 2013 opinion. 13 (AR 28.) The ALJ discounted Dr. Lai’s January 2013 opinion because 14 Plaintiff’s “signs on physical examinations have not changed.” 15 (AR 29.) Indeed, although Dr. Lai found that Plaintiff was 16 significantly limited by her impairments, examination and test 17 results do not support those findings. As summarized in this 18 Court’s previous opinion, Plaintiff’s lumbar- and thoracic-spine 19 MRIs, nerve-conduction studies, and electromyography tests dating 20 from before her amended onset date were consistently normal. See 21 Kellner, 2013 WL 3200581, at *4-9 (summarizing medical evidence); 22 (see also AR 82 (first ALJ’s findings regarding normal test 23 results), 567 (normal lumbosacral-spine MRI), 568 (normal 24 thoracic-spine MRI)). Plaintiff’s May 2007 cervical-spine MRI, 25 26 13 Plaintiff argues that the ALJ “ignor[ed]” Plaintiff’s 27 “neck tenderness and spasms” (J. Stip. at 9), but she in fact 28 accommodated those symptoms by finding that Plaintiff had a limited ability to move her neck (AR 26-27). 18 1 moreover, showed only “minor” cervical degenerative-disc changes 2 without any nerve-root impingement (AR 569), while a January 2009 3 cervical-spine MRI was normal, showing no disc herniation or 4 protrusion, no nerve-root impingement, and normal spinal-cord 5 signal (AR 572). A June 2008 left-shoulder MRI showed 6 tendinosis, a possible partial tear, and trace fluid. 7 66.) (AR 565- And as the ALJ noted (AR 29), the newer evidence is 8 similarly benign: a September 2010 EMG was normal, with “no 9 evidence for a lower motor neuron disturbance affecting the left 10 upper extremity.” (AR 731; see also AR 745 (Dec. 2010, doctor’s 11 observation that EMG was normal, Plaintiff’s symptoms were 12 stable, and her biggest complaint at that time was dystonia).)14 13 The ALJ permissibly discounted Dr. Lai’s opinion on this basis. 14 See Batson v. Comm’r Soc. Sec. Admin., 359 F.3d 1190, 1195 (9th 15 Cir. 2004) (“an ALJ may discredit treating physicians’ opinions 16 that are conclusory, brief, and unsupported by the record as a 17 whole . . . or by objective medical findings”); see also Molina 18 v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (ALJ may 19 permissibly reject check-off reports that do not contain 20 explanation of basis for conclusions). 21 The ALJ also found that Dr. Lai’s treatment notes did not 22 support his opinion that Plaintiff had extreme workplace 23 limitations. See Ghanim v. Colvin, 763 F.3d 1154, 1161 (9th Cir. 24 2014) (“A conflict between treatment notes and a treating 25 26 27 28 14 Dystonia is a disorder characterized by involuntary muscle contractions that cause slow repetitive movements or abnormal postures. Dystonias: Fact Sheet, National Inst. of Neurological Disorders and Stroke, http://www.ninds.nih.gov/ disorders/dystonias/detail_dystonias.htm (July 6, 2015). 19 1 provider’s opinions may constitute an adequate reason to 2 discredit the opinions of a treating physician or another 3 treating provider.”); Valentine v. Comm’r of Soc. Sec. Admin., 4 574 F.3d 685, 692–93 (9th Cir. 2009) (holding that conflict with 5 treatment notes is specific and legitimate reason to reject 6 treating physician’s opinion). As the ALJ found (AR 28-29), Dr. 7 Lai’s treatment notes show that Plaintiff complained of pain but 8 denied weakness or muscle atrophy and had a normal gait. (See AR 9 582 (Jan. 2010, Dr. Lai finding that Plaintiff had neck and back 10 tenderness and neck spasm and complained of chronic neck pain but 11 denied weakness or muscle atrophy, moved all her extremities, and 12 had normal gait, no point tenderness along spine, and unlimited 13 range of motion), 816 (Jan. 2012, Dr. Lai finding neck tenderness 14 and spasm but “no point tenderness along the spine,” unlimited 15 range of motion, and normal gait; Plaintiff reported worsening 16 shoulder condition but denied weakness or muscle atrophy and 17 reported significant improvement in back and neck pain after 18 treatment.))15 Moreover, as the ALJ found (AR 28-29), although 19 Plaintiff reported to the ALJ that her pain was worsening (see AR 20 21 15 Plaintiff argues that the ALJ “relied on denials of 22 atrophy that occurred prior to the date of the prior ALJ decision,” in October 2010, and that were “not relevant to the 23 issue of disability after” that date. (J. Stip. at 9.) But Dr. recent notes consist mostly of records of his 24 Lai’sas trigger-point and occipital-nerve injectionsprocedures, such and radio25 frequency thermal coagulations, which contain very few clinical 26 27 28 findings. Indeed, after October 2010, Dr. Lai appears to have completed only one treatment note showing any physicalexamination findings, which, as discussed above, reflected that Plaintiff denied weakness or muscle atrophy, had a normal gait, “[m]oves all extremities,” and had unlimited range of motion. (AR 816-17.) 20 1 404, 412) (and similarly, Dr. Lai’s January 2013 opinion reflects 2 somewhat greater limitations than his June 2009 opinion 3 (compare AR 507 with AR 786)), Dr. Lai never altered his 4 treatment of Plaintiff. Rather, Plaintiff continued to undergo 5 regular trigger-point injections, primarily in her shoulder and 6 neck muscles, which consistently reduced her pain from a six to a 7 two out of 10. (See AR 659 (Oct. 2010, levator scapulae),16 663 8 (Nov. 2010, levator scapulae and “SCM” (presumably, 9 sternocleidomastoid)),17 665 (Dec. 2010, “SCM”), 667 (Dec. 2010, 10 “SCM” and “splenius capitus”),18 669 (Dec. 2010, SCM, “splenius 11 capitus,” and “levator scap”), 671 (Jan. 2011, “levator scap” and 12 trapezius),19 776 (Feb. 2011, thoracic paraspinal and trapezius), 13 780 (Mar. 2011, right-cervical paraspinal and trapezius), 845 14 (Apr. 2011, “splenius capitus” and trapezius), 844 (Apr. 2011, 15 “splenius capitus” and trapezius), 843 (May 2011, “splenius 16 capitus” and trapezius), 837 (June 2011, trapezius), 835 (July 17 2011, trapezius), 834 (Aug. 2011, trapezius and “SCM”), 833 18 (Sept. 2011, “splenius capitus”), 832 (Sept. 2011, “splenius 19 capitus”), 831 (Sept. 2011, thoracic paraspinal and “splenius 20 capitus”), 830 (Sept. 2011, thoracic paraspinal), 829 (Oct. 2011, 21 thoracic paraspinal and trapezius), 826 (Nov. 2011, thoracic 22 16 The levator scapulae is 23 shoulder. See Stedman’s Medical one of the muscles of the 2000). Dictionary 1149 (27th ed. 24 17 The sternocleidomastoid is one of the muscles of the See id. at 1156. 25 neck. 26 27 18 neck. The splenius capitis is also one of the muscles of the See id. at 1155. 19 28 at 1158. The trapezius is one of the shoulder muscles. 21 See id. 1 paraspinal and trapezius), 825 (Nov. 2011, trapezius), 824 (Nov. 2 2011, trapezius and cervical paraspinal), 821 (Dec. 2011, 3 trapezius and cervical paraspinal), 820 (Dec. 2011, paraspinal), 4 815 (Feb. 2012, paraspinal), 812 (May 2012, trapezius), 811 (June 5 2012, trapezius and levator scapulae), 810 (July 2012, trapezius 6 and levator scapulae), 809 (July 2012, lumbar and thoracic 7 paraspinal), 807 (Aug. 2012, trapezius and levator scapulae), 804 8 (Aug. 2012, trapezius and levator scapulae), 804 (Aug. 2012, 9 trapezius and levator scapulae), 803 (Sept. 2012, trapezius and 10 levator scapulae), 802 (Sept. 2012, trapezius and levator 11 scapulae), 801 (Sept. 2012, trapezius and levator scapulae), 800 12 (Oct. 2012, trapezius and “splenius capitus”), 797 (Oct. 2012, 13 trapezius and “splenius capitus”), 794 (Nov. 2012, “SCM”), 793 14 (Nov. 2012, “SCM”), 792 (Nov. 2012, trapezius), 788 (Dec. 2012, 15 cervical, “levator scap,” and paraspinal), 787 (Jan. 2013, 16 “SCMI”); see also Kellner, 2013 WL 3200581, at *4-9 (summarizing 17 medical evidence predating amended onset date)). She underwent 18 occipital-nerve injections in January, June, July, and September 19 2011 and March, July, October, and December 2012; those 20 injections also reduced her pain from a six to a two out of 10. 21 (AR 772, 789, 797, 808, 813, 831, 832, 836, 840.) And Plaintiff 22 underwent radio-frequency thermal coagulations20 of various parts 23 of her spine every few months. (AR 841 (May 2011, left lumbar 24 25 26 27 28 20 Radiofrequency procedures use high-frequency alternating current to cause heat in the target tissues, which results in coagulation, or a thermal lesion, that disrupts the transmission of pain signals. William Rea et al., Radiofrequency therapies in chronic pain, 11 Continuing Educ. in Anaesthesia, Critical Care & Pain, no. 2, 2011, at 35-38, available at http:// ceaccp.oxfordjournals.org/content/11/2/35.full. 22 1 facet joint), 838 (June 2011, right lumbar facet joint), 657-58 2 (Oct. 2010, right cervical facet joint), 773-75, 778-79 (Feb. 3 2011, right and left thoracic facet joint), 822 (Dec. 2011, left 4 cervical facet joint), 818 (Jan. 2012, right cervical facet 5 joint), 805 (Aug. 2012, left lumbar facet joint), 795-96, 798 6 (Oct. 2012, left cervical and right lumbar facet joint), 790-91 7 (Dec. 2012, right cervical facet joint).) Dr. Lai consistently 8 noted that those treatments were effective and resulted in 9 lasting pain reduction and improved range of motion. (See, e.g., 10 AR 657, 818 (noting that previous cervical facet-joint injections 11 had provided “3-4 months of relief of axial neck pain and 12 numbness with better neck pain and [range of motion]”), 841 13 (noting that previous lumbar-facet radio-frequency thermal 14 coagulation “provided 70% better axial back pain and spasms for 15 over 14 months”).) The ALJ did not err in discounting Dr. Lai’s 16 opinion because it was not supported by his treatment notes. 17 The ALJ was also entitled to rely on the opinions of Dr. 18 Jensen, the medical expert who testified in the proceeding before 19 the first ALJ (AR 29), as well as the two medical consultants, 20 Drs. Kalmar and Hartman (AR 28). As discussed in this Court’s 21 previous decision, see Kellner, 2013 WL 3200581, at *8-9, *11, 22 Dr. Jensen’s opinion was supported by the objective medical 23 evidence, he reviewed all of the medical evidence up to the date 24 of the first hearing, and he testified at the hearing. Thomas v. 25 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (“The opinions of 26 non-treating or non-examining physicians may also serve as 27 substantial evidence when the opinions are consistent with 28 independent clinical findings or other evidence in the record.”); 23 1 Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 2 1999) (“Opinions of a nonexamining, testifying medical advisor 3 may serve as substantial evidence when they are supported by 4 other evidence in the record and are consistent with it” (citing 5 Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995))); 6 see § 416.927(c)(4) (ALJ will generally give more weight to 7 opinions that are “more consistent . . . with the record as a 8 whole”); Andrews, 53 F.3d at 1042 (greater weight may be given to 9 nonexamining doctors who are subject to cross-examination). Drs. 10 Kalmar and Hartman, moreover, also reviewed Plaintiff’s medical 11 records, including some of the updated treatment records showing 12 a radio-frequency thermal coagulation and trigger-point 13 injections (AR 767, 782, 784), and rendered opinions that were 14 largely consistent with Dr. Jensen’s (see AR 748-52, 766-68, 78215 84). 16 Plaintiff argues that because Drs. Jensen, Kalmar, and 17 Hartman didn’t review the “treatment pattern” consisting of 18 trigger-point and occipital-nerve injections and thermal 19 coagulations, the ALJ should not have relied on their opinions 20 over Dr. Lai’s. (J. Stip. at 10.) But Plaintiff acknowledges 21 that Drs. Kalmar and Hartman reviewed some of the newer records 22 showing treatment with radio-frequency thermal coagulation and 23 trigger-point injections. (Id. (stating that Dr. Kalmar 24 “reviewed only one record arguably outside of the previously 25 adjudicated period” and Dr. Hartman “reviewed records showing 26 three trigger point injections in the first quarter of 2011”).) 27 And in any event, as the ALJ found (AR 28-29), Plaintiff’s 28 treatment after October 2010 was essentially the same as the 24 1 treatment she received before the first ALJ rendered his 2 decision, see Kellner, 2013 WL 3200581, at *6-8 (summarizing Dr. 3 Lai’s treatment with epidural steroid, facet, and trigger-point 4 injections and radio-frequency thermal coagulation), and no later 5 physical testing or examinations revealed any new findings. As 6 such, the ALJ did not err in relying on the opinions of Drs. 7 Jensen, Kalmar, and Hartman. 8 In sum, Plaintiff has shown, at most, that the medical 9 evidence could have been interpreted differently, which is 10 insufficient to warrant reversal. See Burch v. Barnhart, 400 11 F.3d 676, 679 (9th Cir. 2005) (“Where evidence is susceptible to 12 more than one rational interpretation, it is the ALJ’s conclusion 13 that must be upheld.”). Plaintiff is not entitled to remand. 14 VI. CONCLUSION 15 Consistent with the foregoing, and under sentence four of 42 16 U.S.C. § 405(g),21 IT IS ORDERED that judgment be entered 17 AFFIRMING the decision of the Commissioner and dismissing this 18 action with prejudice. IT IS FURTHER ORDERED that the Clerk 19 serve copies of this Order and the Judgment on counsel for both 20 parties. 21 22 23 DATED: November 2, 2015 24 _____________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 25 26 27 28 21 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.” 25
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