Vincent Mel Gonzales v. Carolyn W. Colvin, No. 8:2015cv00272 - Document 30 (C.D. Cal. 2015)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Rozella A. Oliver. IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 1 (SEE ORDER FOR FURTHER DETAILS) (gr)
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Vincent Mel Gonzales v. Carolyn W. Colvin Doc. 30 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 Plaintiff, 13 14 15 Case No. CV 15-00272-RAO VINCENT MEL GONZALES, 12 MEMORANDUM OPINION AND ORDER v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. 16 17 18 I. 19 INTRODUCTION 20 Vincent Mel Gonzales (“Plaintiff”) challenges the Commissioner’s denial of 21 his applications for a period of disability and disability insurance benefits (“DIB”) 22 and Supplemental Security Income (“SSI”) following an administrative law judge’s 23 (“ALJ”) decision that he was not disabled. Administrative Record (“AR”) 34. For 24 the reasons stated below, the Commissioner’s decision is AFFIRMED. 25 /// 26 /// 27 /// 28 /// Dockets.Justia.com 1 II. 2 PROCEEDINGS BELOW 3 On October 29, 2009, Plaintiff applied for DIB and SSI alleging disability 4 beginning January 27, 2001 (his alleged onset date (“AOD”)). AR 134. Plaintiff’s 5 claims were denied initially on April 23, 2010, and upon reconsideration on 6 September 16, 2010. Id. On November 9, 2010, Plaintiff filed a written request for 7 hearing, which took place on June 14, 2011. Id. Represented by counsel, Plaintiff 8 appeared and testified at that hearing, as did an impartial vocational expert (“VE”). 9 Id. On August 2, 2011, the ALJ found that Plaintiff had not been under a disability, 10 as defined in the Social Security Act,1 from the AOD through the decision date. Id. 11 at 144-45. On September 27, 2012, the Appeals Council granted Plaintiff’s request 12 for review of the ALJ’s decision and vacated and remanded for resolution of certain 13 enumerated issues. See id. at 152-54. Relevant to this action, the Appeals Council 14 instructed the ALJ to give consideration to new and material evidence submitted by 15 Donald J. Feldman, M.D. (“Dr. Feldman”). Id. at 153. 16 On remand, a second administrative hearing was held on May 10, 2013. Id. 17 at 14. Represented by counsel, Plaintiff appeared and testified, as did an impartial 18 VE and an impartial medical expert (“ME”). Id. On June 18, 2013, the ALJ found 19 that Plaintiff had not been under a disability, as defined in the Social Security Act, 20 from the AOD through the decision date. Id. at 34. The ALJ’s decision became the 21 Commissioner’s final decision when the Appeals Council denied Plaintiff’s request 22 for review. Id. at 1-6. Plaintiff filed this action on February 17, 2015. Dkt. No. 1. 23 The ALJ followed a five-step sequential evaluation process to assess whether 24 Plaintiff was disabled. 20 C.F.R. §§ 404.1520, 416.920; see also Lester v. Chater, 25 81 F.3d 821, 828 n.5 (9th Cir. 1995). At step one, the ALJ found that Plaintiff had 26 1 27 28 Persons are “disabled” for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment expected to result in death, or which has lasted or is expected to last for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A). 2 1 not engaged in substantial gainful activity since the AOD. AR 17. At step two, the 2 ALJ found that Plaintiff has the following severe impairments: degenerative disc 3 disease (“DDD”), lumbar spine, status post fusion and hardware removal; DDD of 4 cervical spine with left arm and hand numbness; mood disorder, not otherwise 5 specified (“NOS”); anxiety disorder, NOS; chronic pain disorder; and personality 6 disorder, NOS. Id. At step three, the ALJ found that Plaintiff “does not have an 7 impairment or combination of impairments that meets or medically equals the 8 severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 9 1.” Id. at 18 (citations omitted). At step four, the ALJ found that Plaintiff had the 10 11 12 13 14 15 16 17 residual functional capacity (“RFC”) to: [P]erform light work…. Specifically, he can lift and/or carry 20 pounds occasionally; and 10 pounds frequently; stand and/or walk with normal breaks for a total of six hours of an eighthour workday; sit with normal breaks for a total of six hours of an eight-hour workday; frequent for gross manipulation with left non-dominant hand; postural limitations all occasional; and no ladders, ropes, scaffolds, bending or stooping. He is limited to simple tasks, object oriented, habituated setting, and no safety related operations, fast moving or hazardous machinery or highly fast-paced work, such as a fast-paced assembly line. 18 19 Id. at 21. Given his RFC, the ALJ found that Plaintiff could not perform any past 20 relevant work. Id. at 32. At step five, however, the ALJ found that there were jobs 21 existing in significant number in the national economy that Plaintiff could perform, 22 and thus concluded that Plaintiff was not disabled. Id. at 32-33. 23 III. 24 STANDARD OF REVIEW 25 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s 26 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are 27 supported by substantial evidence, and if the proper legal standards were applied. 28 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “‘Substantial evidence’ 3 1 means more than a mere scintilla, but less than a preponderance; it is such relevant 2 evidence as a reasonable person might accept as adequate to support a conclusion.” 3 Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (citing Robbins v. Soc. 4 Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). An ALJ can satisfy the substantial 5 evidence requirement “by setting out a detailed and thorough summary of the facts 6 and conflicting clinical evidence, stating his interpretation thereof, and making 7 findings.” Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citing Magallanes 8 v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989)). 9 “[T]he Commissioner's decision cannot be affirmed simply by isolating a 10 specific quantum of supporting evidence. Rather, a court must consider the record 11 as a whole, weighing both evidence that supports and evidence that detracts from 12 the Secretary's conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 13 2001) (citations and internal quotations omitted). “‘Where evidence is susceptible 14 to more than one rational interpretation,’ the ALJ's decision should be upheld.” 15 Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. 16 Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins, 466 F.3d at 882 17 (“If the evidence can support either affirming or reversing the ALJ's conclusion, we 18 may not substitute our judgment for that of the ALJ.”). The Court may review only 19 “the reasons provided by the ALJ in the disability determination and may not affirm 20 the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 21 (9th Cir. 2007) (citing Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003)). 22 IV. 23 DISCUSSION 24 Plaintiff contends that the ALJ impermissibly “rejected”2 the opinion of Dr. 25 Feldman—an agreed psychiatric medical examiner who conducted a mental status 26 27 28 2 Plaintiff’s argument heading states that the ALJ “rejected” Dr. Feldman’s opinion. Memorandum in Support of Plaintiff’s Complaint (“Pl. Memo.”) at 7. However, the ALJ actually accorded Dr. Feldman’s opinion “partial weight.” AR 32. 4 1 examination of Plaintiff in connection with his state workers’ compensation claim 2 on July 16, 2011—without providing specific and legitimate reasons for doing so. 3 Pl. Memo. at 7-18; AR 25, 31-32, 871-910. Defendant, in turn, contends that the 4 ALJ’s assessment is supported by substantial evidence and is free of harmful legal 5 error. See Memorandum in Support of Defendant’s Answer (“Def. Memo.”) at 3-9. 6 A. Applicable Law 7 An ALJ is obligated to consider medical opinions of record, resolve conflicts 8 in medical testimony, and analyze evidence. 20 C.F.R. §§ 404.1527(c), 416.927(c); 9 Magallanes, 881 F.2d at 750. Courts give varying degrees of deference to medical 10 opinions depending on the opinion provider: (1) “treating physicians” who examine 11 and treat; (2) “examining physicians” who examine, but do not treat; and (3) “non- 12 examining physicians” who do not examine or treat. See Valentine v. Comm'r, Soc. 13 Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009). Opinions of treating or examining 14 physicians are entitled to greater weight than those of non-examining physicians. 15 Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (citing Ryan, 528 F.3d at 16 1198). If an examining physician’s opinion is contradicted by another doctor, the 17 ALJ can reject his or her opinion only if he provides specific and legitimate reasons 18 supported by substantial evidence in the record. Ghanim v. Colvin, 763 F.3d 1154, 19 1161 (9th Cir. 2014); Garrison, 759 F.3d at 1012; see also Ryan, 528 F.3d at 1198. 20 B. Here, the ALJ accorded Dr. Feldman’s examining physician opinion3 “partial 21 22 ALJ’s Opinion weight,” stating, in part, as follows: 23 In an agreed medical evaluation of the claimant on July 16, 2011, Dr. Feldman opined that the claimant has no impairment to moderate impairment in activities of daily living; no impairment to mild impairment in social functioning; no 24 25 26 27 28 3 In his opinion, the ALJ separately and thoroughly considered 15 medical opinions (seven of which were related to Plaintiff’s mental impairments), and the assessment of a licensed clinic social worker. See AR 27-32. 5 impairment to moderate impairment in concentration; no impairment to moderate impairment in adaptation; moderate disability in maintaining pace; moderate disability in complex and varied tasks; slight to moderate disability in dealing with people; slight to moderate disability in influencing people; moderate disability in making decisions; and slight to moderate disability in accepting and carrying out responsibility. Again, these ratings are under workers’ compensation guidelines, which are not the same criteria used to determine disability under the Social Security Act. Furthermore, Dr. Feldman was internally inconsistent with his own findings. He opined only mild impairment in social functioning, yet he assessed a GAF of 55, which indicates the claimant with moderate difficulty in social functioning and he assessed the claimant with moderate disability in dealing or influencing people, which has been considered in the [RFC]. Dr. Feldman opined moderate impairment in activities of daily living, which is not supported by the objective evidence as previously discussed in the credibility findings. The claimant’s assessed moderate limitations in concentration, in maintaining pace, in comprehending and following instructions and in complex and varied tasks, corresponds to the [RFC]. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 AR 31-32 (citations omitted). C. Analysis The ALJ accorded Dr. Feldman’s opinion “partial weight,” and adopted some but not all of the limitations identified in Dr. Feldman’s agreed medical evaluation, for three reasons: (1) Dr. Feldman’s ratings are under state workers’ compensation guidelines, which differ from social security criteria; (2) Dr. Feldman’s findings are inconsistent; and (3) Dr. Feldman’s opinion that Plaintiff is moderately impaired in terms of activities of daily living (“ADLs”) is not supported by objective evidence. 1. Workers’ Compensation Guidelines Plaintiff contends that “the fact that Dr. Feldman’s opinion is presented in the context of worker[s’] compensation is not a reason to reduce the weight afforded to it.” Pl. Memo. 12. ALJs may not disregard an opinion because it was “elicited in a 28 6 1 … workers’ compensation proceeding,” Booth v. Barnhart, 181 F. Supp. 2d 1099, 2 1105 (C.D. Cal. 2002), but may accord less weight to a disability rating designated 3 under a different system, i.e., workers’ compensation, if that determination is based 4 on persuasive, specific, and valid reasons. Aranda v. Colvin, 2015 WL 2409227, at 5 *6 (C.D. Cal. May 20, 2015). Here, after summarizing Dr. Feldman’s opinions as 6 to Plaintiff’s impairments, the ALJ noted that Dr. Feldman’s “ratings [were] under 7 [state] workers’ compensation guidelines, which are not the same criteria used to 8 determine disability under the Social Security Act.” AR 32. That finding alone is 9 not a persuasive, specific, or valid reason to accord less weight to a disability rating 10 designated under the workers’ compensation guidelines. Cf. Berry v. Astrue, 622 11 F.3d 1228, 1236 (9th Cir. 2010) (the fact that the Social Security Administration is 12 not bound by a Department of Veterans Affairs decision—because their governing 13 rules differ—is not a persuasive, specific, or valid reason to discount that decision). 14 Thus, the ALJ’s first reason is neither a specific nor legitimate reason. 15 2. 16 Plaintiff contends that Dr. Feldman’s opinion is not internally inconsistent, 17 and that the ALJ’s reference to inconsistency in Dr. Feldman’s opinion seems to be 18 a “misstatement” because “the subset of social functioning that the ALJ apparently 19 believes is inconsistent from the whole is actually rated slight to moderate, not just 20 moderate as the ALJ asserts.” Pl. Memo. at 13. Internal Inconsistency 21 Plaintiff has not identified the particular subset to which he is referring; and 22 the AR page cited contains two “slight to moderate” ratings. AR 895.4 Regardless, 23 4 24 25 26 27 28 Those two “slight to moderate” ratings state that Plaintiff has “Slight to Moderate disability in Relating to Other People Beyond Giving and Receiving Instructions, getting along with co-workers, performing work requiring negotiating with, explaining and persuading because of reduced self-esteem, and responding appropriately to evaluation and criticism[,]” and “Slight to Moderate disability in Influencing People. Reduced self-esteem, depression and anxiety will cause disability convincing or directing others, interacting appropriately with others.” AR 895. There is a third “slight to moderate” rating on the following page. Id. at 896. 7 1 in finding that Dr. Feldman was internally inconsistent with his own findings, id. at 2 32, it is unlikely that the ALJ was referring to the “subsets” Plaintiff has identified. 3 Rather, in noting that Dr. Feldman found Plaintiff’s social functioning to be “mildly 4 impaired,” the ALJ appears to have been referring to the preceding page of the AR. 5 Id. at 32, 894. On that page, under “Social functioning[,]” the ALJ assessed Class 1 6 (no impairment) to Class 2 (mild impairment) ratings. Id. at 894. Also on the page, 7 however, Dr. Feldman assessed Plaintiff with a Global Assessment of Functioning 8 (“GAF”)5 score of 55, which indicates moderate symptoms or moderate difficulty 9 in social functioning. Id.; DSM-IV. Accordingly, Dr. Feldman’s social functioning 10 and GAF score assessments are inconsistent. 11 Internal inconsistencies are a valid reason to accord less weight to a medical 12 opinion. See Pipkin v. Astrue, 2013 WL 572079, at *3 (C.D. Cal. Feb. 13, 2013) 13 (ALJs may consider whether an opinion is internally inconsistent in determining the 14 weight to give the evidence); see also Rollins v. Massanari, 261 F.3d 853, 856 (9th 15 Cir. 2001) (upholding an ALJ’s rejection of a medical opinion that was internally 16 inconsistent); Khan v. Colvin, 2014 WL 2865173, at *7 (C.D. Cal. June 24, 2014) 17 (“The ALJ’s first reason for rejecting Dr. Multani’s opinion–to wit, that his opinion 18 was internally inconsistent–is specific and legitimate.”). 19 Thus, the ALJ’s second reason is a specific and legitimate reason. 20 3. 21 Dr. Feldman opined that Plaintiff has moderate impairments in certain ADLs. 22 AR 894. The ALJ found that Dr. Feldman’s opinion is not supported by the record, 23 which does not show moderate impairments. Id. at 32. Plaintiff contends that the 24 ALJ’s finding is a mischaracterization because Dr. Feldman found that Plaintiff was 25 5 26 27 28 Opinion Regarding Activities Of Daily Living A GAF score is the clinician’s judgment of the individual’s overall level of functioning. It is rated with respect only to psychological, social, and occupational functioning, without regard to impairments in functioning due to physical or environmental limitations. See American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), at 32 (4th ed. 2000). 8 1 moderately limited only in sexual interest, activities, and sleep, and did not find any 2 “moderate impairment[s] in the [ADLs] that the ALJ believes reflect negatively on 3 credibility,” such as “self-care and personal hygiene.” Pl. Memo. at 13. 4 Contrary to Plaintiff’s contention, while the ALJ did not specifically identify 5 what ADLs he was referring to, AR 32 (“Dr. Feldman opined moderate impairment 6 in [ADLs], which is not supported by the objective evidence”), it is apparent from 7 Dr. Feldman’s evaluation that the ALJ is referring only to sexual interest, activities, 8 and sleep. In his evaluation, Dr. Feldman opined that Plaintiff largely had no ADLs 9 impairments. AR 894 (stating that, “[f]rom a psychiatric perspective,” Plaintiff has 10 no impairment in attendance to his self-care and personal hygiene, no impairment in 11 communication, no impairment in travel, no impairment in sensory function, and no 12 impairment in hand activities). But Dr. Feldman further opined that Plaintiff “has 13 … moderate impairment in sexual interest and activities, and sleep.” Id. Given the 14 foregoing, in stating that “Dr. Feldman opined moderate impairment” in ADLs, it is 15 apparent that the ALJ meant the ADLs where Dr. Feldman actually found moderate 16 impairment, i.e., sexual interest, activities, and sleep. Id. at 894. 17 The ALJ ultimately found that Dr. Feldman’s ADLs impairment opinion was 18 not supported by the objective evidence as “discussed in the credibility findings” of 19 his decision. Id. at 32. In those credibility findings, the ALJ noted that Plaintiff has 20 reported performing certain activities that suggest, at most, a mild impairment. For 21 example, the ALJ noted, inter alia, that Plaintiff reported being able to walk about a 22 mile a day following his 2005 surgery; take care of his own hygiene and grooming; 23 take care of his severely ill wife, monitor her medications, and manage both of their 24 medical appointments; help with household chores; go shopping with his wife; and 25 play with and babysit his two young grandchildren. See id. at 26, 616, 752, 786-87, 26 800, 818, 873, 958. Plaintiff also told Dr. Feldman, inter alia, that he attends “AA 27 meetings two to three times a week and domestic violence classes[,] … goes to the 28 gym twice a week and walks on the treadmill one hour twice a week.” Id. at 873. 9 1 Moreover, Dr. Feldman’s finding that Plaintiff’s interest in sex is moderately 2 impaired conflicts with other objective evidence in the record. On June 19, 2009, 3 for example, James Gleisinger, Ph.D., noted that Plaintiff reported “a good libido,” 4 but stated that “he and his wife [had] far less sexual relations due to health issues.” 5 AR 800. And other opinions in the record further contradict Dr. Feldman’s finding. 6 On February 16, 2007, Katalin Bassett, M.D., noted that Plaintiff had sleep and sex 7 drive issues, but opined that his ADLs impairment is mild. Id. at 794. In his June 8 19, 2009 report, Dr. Gleisinger opined that Plaintiff had no ADLs impairments. Id. 9 at 823. On March 13, 2010, Minh-Hoi Duong, M.D., opined that Plaintiff’s ADLs 10 “are normal.” Id. at 753. And the ME at Plaintiff’s second administrative hearing, 11 Joseph Malancharuvil, Ph.D., upon reviewing the evidence, opined that Plaintiff 12 had mild restrictions of ADLs. Id. at 100. In light of the foregoing, the Court finds 13 that the ALJ’s determination is supported by substantial evidence in the record. 14 Lack of support in the record is a valid reason to discount a medical opinion. 15 Batson v. Commissioner, 359 F.3d 1190, 1195 (9th Cir. 2004) (ALJs may discredit 16 an opinion that is unsupported by the record as a whole or by the objective medical 17 findings); 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) (“[T]he more consistent an 18 opinion is with the record as a whole, the more weight we will give to [it].”). 19 Thus, the ALJ’s third reason is a specific and legitimate reason. 20 On balance, the Court finds that the ALJ gave specific and legitimate reasons 21 for giving Dr. Feldman’s opinion only “partial weight” (and thus adopting some but 22 not all of the various limitations stated therein), which are supported by substantial 23 evidence in the record. Accordingly, the Court finds that the ALJ did not err. 24 /// 25 /// 26 /// 27 /// 28 /// 10 1 V. 2 CONCLUSION 3 4 5 6 IT IS ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits. IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this Order and the Judgment on counsel for both parties. 7 8 9 10 DATED: October 30, 2015 ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE 11 12 13 14 NOTICE 15 THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW, LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE. 16 17 18 19 20 21 22 23 24 25 26 27 28 11
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