Roberta Jacobson v. Carolyn W. Colvin, No. 8:2016cv01229 - Document 32 (C.D. Cal. 2018)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Douglas F. McCormick. For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (es)
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Roberta Jacobson v. Carolyn W. Colvin Doc. 32 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 SOUTHERN DIVISION 11 ROBERTA JACOBSON, 12 Plaintiff, 13 14 15 16 17 v. Case No. SA CV 16-01229-DFM MEMORANDUM OPINION AND ORDER NANCY A. BERRYHILL, Deputy Commissioner of Operations, performing duties and functions not reserved to the Commissioner of Social Security,1 18 Defendant. 19 20 Roberta Jacobson (“Plaintiff”) appeals from the Social Security 21 Commissioner’s final decision denying her application for Social Security 22 Disability Insurance Benefits (“DIB”). For the reasons discussed below, the 23 Commissioner’s decision is affirmed and this matter is dismissed with 24 prejudice. 25 26 27 28 1 On January 23, 2017, Berryhill became the Acting Social Security Commissioner. Thus, she is automatically substituted as defendant under Federal Rule of Civil Procedure 25(d). Dockets.Justia.com 1 I. 2 BACKGROUND 3 Plaintiff filed an application for DIB in January 2010, alleging disability 4 beginning March 1, 2003. See Administrative Record (“AR”) 110-13. After her 5 application was denied both initially, see AR 70-73, and on reconsideration, 6 see AR 75-79, she requested a hearing before an administrative law judge 7 (“ALJ”), see AR 80. At Plaintiff’s first hearing on May 12, 2011, the ALJ 8 heard testimony by a vocational expert (“VE”) and Plaintiff, who was 9 represented by counsel. See AR 53-67. On June 2, 2011, the ALJ denied 10 Plaintiff’s claim for benefits. See AR 35-44. After the Appeals Council denied 11 review of the ALJ’s decision, see AR 11-13, Plaintiff sought judicial review in 12 this Court, see AR 303-10. On March 13, 2014, the Court reversed the 13 Commissioner’s decision and remanded the case for further proceedings. See 14 AR 312-20. 15 On March 26, 2015, the same ALJ held a hearing, see AR 253-73, at 16 which the ALJ heard testimony by a VE, an impartial medical expert (“IME”), 17 and Plaintiff, who was represented by counsel. See AR 254. In a written 18 decision issued April 30, 2015, the ALJ denied Plaintiff’s claim for benefits. 19 See AR 221-34. He found that Plaintiff had the severe impairments of 20 headaches, fatigue, and anemia. See AR 227. However, the ALJ determined 21 that the severe impairments did not meet or medically equal the severity of a 22 listed impairment. See id. He found that despite those impairments, Plaintiff 23 retained the residual functional capacity (“RFC”) to perform light work with 24 the following limitations: she could lift and carry 20 pounds occasionally and 25 10 pounds frequently and sit, stand, and walk for 6 hours out of an 8-hour 26 work day. See id. Based on the RFC, the ALJ found that Plaintiff could 27 perform her past relevant work as a secretary. See AR 233. Thus, he 28 determined that Plaintiff was not disabled from March 1, 2003, through 2 1 December 31, 2007. 2 After Plaintiff requested review of the decision, see AR 21-23, the 3 Appeals Council denied the request, see AR 1-6. Thus, the ALJ’s April 2015 4 decision became the final decision of the Commissioner. See 20 C.F.R. 5 § 404.984. This action followed. 6 II. 7 DISCUSSION Plaintiff argues that the ALJ improperly rejected the medical evidence 8 9 10 11 from her treating physician. See Joint Stipulation (“JS”) at 5. A. Applicable Law Three types of physicians may offer opinions in Social Security cases: 12 those who treated the plaintiff, those who examined but did not treat the 13 plaintiff, and those who did neither. See 20 C.F.R. § 404.1527(c); Lester v. 14 Chater, 81 F.3d 821, 830 (9th Cir. 1995) (as amended Apr. 9, 1996).2 A 15 treating physician’s opinion is generally entitled to more weight than that of an 16 examining physician, which is generally entitled to more weight than that of a 17 nonexamining physician. See Lester, 81 F.3d at 830. When a treating 18 physician’s opinion is uncontroverted by another doctor, it may be rejected 19 only for “clear and convincing reasons.” See Carmickle v. Comm’r, Soc. Sec. 20 Admin., 533 F.3d 1155, 1164 (9th Cir. 2008) (citing Lester, 81 F.3d at 830-31). 21 22 23 24 25 26 27 28 2 Social Security Regulations regarding the evaluation of opinion evidence were amended effective March 27, 2017. Where, as here, the ALJ’s decision is the final decision of the Commissioner, the reviewing court generally applies the law in effect at the time of the ALJ’s decision. See Lowry v. Astrue, 474 F. App’x 801, 804 n.2 (2d Cir. 2012) (applying version of regulation in effect at time of ALJ’s decision despite subsequent amendment); Garrett ex rel. Moore v. Barnhart, 366 F.3d 643, 647 (8th Cir. 2004) (“We apply the rules that were in effect at the time the Commissioner’s decision became final.”). Accordingly, the Court applies the version of 20 C.F.R. § 404.1527 that was in effect at the time of the ALJ’s April 2015 decision. 3 1 Where such an opinion is contradicted, the ALJ must provide only “specific 2 and legitimate reasons” for discounting it. Garrison v. Colvin, 759 F.3d 995, 3 1012 (9th Cir. 2014) (citation omitted). Moreover, “[t]he ALJ need not accept 4 the opinion of any physician, including a treating physician, if that opinion is 5 brief, conclusory, and inadequately supported by clinical findings.” Thomas v. 6 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002); accord Tonapetyan v. Halter, 242 7 F.3d 1144, 1149 (9th Cir. 2001). The weight accorded to a physician’s opinion 8 depends on whether it is consistent with the record and accompanied by 9 adequate explanation, the nature and extent of the treatment relationship, and 10 the doctor’s specialty, among other things. See 20 C.F.R. § 404.1527(c)(2)-(6). 11 B. Relevant Facts 12 1. Treating Physician Dr. William McIntyre, Jr. 13 Dr. McIntyre treated Plaintiff at least 25 times between January 2004 14 and December 2007. See AR 181-85, 203-07. In April 2004 and June 2005, he 15 noted that Plaintiff suffered from migraines without further explanation. See 16 AR 185, 205, 207. In August 2004, he noted that Plaintiff had migraines but 17 was “doing okay” and was “stable.” AR 206. In May 2006, Dr. McIntyre 18 noted that Plaintiff’s migraines were increasing in frequency and increased her 19 medication dosage. See AR 183. The remaining treatment notes addressed 20 different ailments but do not mention the migraines. 21 On May 6, 2011, Dr. McIntyre completed a Headaches RFC 22 Questionnaire regarding Plaintiff’s condition in 2007. See AR 176. He 23 described Plaintiff as having migraines, fatigue, and anemia, leading to severe 24 chronic cluster migraines with symptoms including nausea, vomiting, 25 photosensitivity, visual disturbances, and an inability to concentrate. See id. 26 He described the frequency as both “daily,” see AR 176, and “2 to 4 times a 27 month, lasting 2 to 7 days,” see AR 177. He noted that there were no recent 28 test results (e.g. x-ray, MRI, CT scan, or EEG) regarding Plaintiff’s migraines, 4 1 but he did not believe that tests or procedures would help him assess Plaintiff’s 2 limitations. See AR 177, 180. Dr. McIntyre treated Plaintiff’s migraines with 3 Fiorinal/Ritalin. See AR 178. He expected the migraines to last a lifetime and 4 predicted that Plaintiff would be precluded from performing basic work 5 activities, including “even ‘low stress’ jobs,” when experiencing migraines. AR 6 178-79. 7 The ALJ concluded that he was “unable to give much weight” to Dr. 8 McIntyre’s opinion for five reasons: (1) the opinion was internally inconsistent 9 regarding the frequency of Plaintiff’s migraines; (2) Dr. McIntyre’s opinion 10 was unsupported by his treatment notes, which rarely mentioned migraines; 11 (3) Dr. McInytre did not refer Plaintiff to a specialist; (4) his treatment notes 12 never mention the nausea, vomiting, or visual disturbance symptoms listed in 13 his opinion; and (5) Plaintiff’s infrequent treatment history of routine follow-up 14 visits does not support the severity claimed in the opinion. AR 231-32. 15 16 17 2. Examining Physician Dr. Concepcion Enriquez and Medical Expert Dr. Arnold Ostrow Dr. Enriquez examined Plaintiff on May 24, 2010. See AR 168. She 18 summarized Plaintiff’s complaints of “squeezing and throbbing” headaches 19 “aggravated by rain” and “accompanied by nausea, body aches and blurry 20 vision.” Id. Plaintiff explained that the headaches “subside in an hour” with 21 medication. Id. Dr. Enriquez concluded that Plaintiff suffered from migraines, 22 “which are mild in severity,” and noted that examination did not reveal any 23 neurological defects. AR 171. Thus, she found that Plaintiff has “no 24 impairment-related physical limitations.” Id. The ALJ gave “great” weight to 25 Dr. Enriquez’s examination “because it is well-supported by the unremarkable 26 objective findings . . . and consistent with the body of evidence.” AR 231. 27 28 Dr. Ostrow testified as the IME at Plaintiff’s March 2015 hearing. See AR 253. After reviewing the record in the case, he determined that Plaintiff 5 1 suffered from mild migraines that do not meet or equal any listings and do not 2 result in any physical impairments. See AR 258-59. Plaintiff’s attorney cross- 3 examined the IME about why he did not agree with Dr. McIntyre’s opinion. 4 See AR 259-62. Dr. Ostrow explained that Dr. McIntyre neither documented 5 the severity and frequency of migraines nor supported the opinion with 6 medical evidence. See id. The ALJ gave “considerable” weight to Dr. Ostrow’s 7 “opinion that there was no medically determinable impairment which caused 8 limitations,” because it was “well-supported and consistent with the evidence 9 as a whole.” AR 229. 10 C. Analysis 11 Plaintiff argues that the ALJ erred in discounting the treating physician’s 12 opinion. See JS at 5. The Court finds that the ALJ gave specific and legitimate 13 reasons for discounting Dr. McIntyre’s contradicted opinion. 14 The ALJ’s reliance on purported internal inconsistencies in Dr. 15 McIntyre’s opinion was not a legitimate reason for discounting his opinion. 16 Dr. McIntyre referred to the frequency of Plaintiff’s headaches as both daily 17 and as two to four times per month for two to seven days at a time. See AR 18 176-77, 231. These estimates are not necessarily inconsistent. At the high end 19 of the given range, Plaintiff would experience daily headaches. But this error 20 was harmless because the ALJ relied on other specific and legitimate reasons. 21 See Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (“We have long 22 recognized that harmless error principles apply in the Social Security Act 23 context.”). 24 The ALJ also properly noted a conflict between Dr. McIntyre’s 25 conservative treatment records and the severe functional limitations listed in 26 his headaches questionnaire. See AR 232. Plaintiff visited Dr. McIntyre only 27 every few months for routine follow up visits, and Dr. McIntyre did not refer 28 Plaintiff to a neurologist or headache specialist. See id. Moreover, while 6 1 Plaintiff visited Dr. McIntyre regularly, her migraines were mentioned only 2 sporadically. See AR 181-83, 203-07. In the headache questionnaire, Dr. 3 McIntyre noted severe limitations and symptoms that would preclude 4 functioning almost daily. See AR 176-80. But Dr. McIntyre’s mild treatment— 5 essentially medication management of Ritalin for Plaintiff’s migraines— 6 indicates that Plaintiff suffered from migraines that were controllable with 7 medication. Such a conflict constitutes a specific and legitimate reason for 8 rejecting his opinion. See Rollins v. Massanari, 261 F.3d 853, 856 (9th Cir. 9 2001) (finding that ALJ properly refused to fully credit treating physician 10 opinion where functional limitations were undermined by conservative course 11 of treatment); see also Carmickle, 533 F.3d at 1162 (“A conservative course of 12 treatment can undermine allegations of debilitating pain.”). 13 The ALJ also validly found that Dr. McIntyre’s opinion was inconsistent 14 with the objective medical record, including his own treatment notes. See AR 15 229-32. Only in May 2006 did Dr. McIntyre record worsening migraines. See 16 AR 183. Additionally, his treatment notes failed to describe the symptoms 17 identified in his opinion, such as nausea, vomiting, and light sensitivity. Nor 18 did Dr. McIntyre document any objective findings supporting his opinion. The 19 treatment notes only stated that Plaintiff sometimes reported migraines and 20 often received refills for Ritalin that treated her migraines. See AR 181-85, 203- 21 07. His decision not to seek any testing or procedures to assess the extent of 22 Plaintiff’s limitations further indicates that Dr. McIntyre neither relied on nor 23 sought objective medical evidence when opining on Plaintiff’s migraines. See 24 Connett v. Barnhart, 340 F.3d 871, 875 (9th Cir. 2003) (finding that ALJ 25 properly rejected treating physician’s opinion where treatment notes 26 “provide[d] no basis for the functional restrictions he opined should be 27 imposed on [plaintiff]”); see also Batson v. Comm’r of Soc. Sec. Admin., 359 28 F.3d 1190, 1195 (9th Cir. 2004) (“[A]n ALJ may discredit treating physicians’ 7 1 opinions that are conclusory, brief, and unsupported by the record as a whole, 2 or by objective medical findings.” (citations omitted)). 3 Accordingly, the Court finds that the ALJ offered specific and legitimate 4 reasons supported by substantial evidence in the record for refusing to give Dr. 5 McIntyre’s findings controlling weight. See Lester, 81 F.3d at 830-31. 6 III. 7 CONCLUSION 8 9 For the reasons stated above, the decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. 10 11 Dated: July 27, 2018 __________________________ DOUGLAS F. McCORMICK United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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