Madina Azimi v. Carolyn W. Colvin, No. 8:2016cv02288 - Document 24 (C.D. Cal. 2019)

Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Sheri Pym. IT IS THEREFORE ORDERED that Judgment shall be entered AFFIRMING the decision of the Commissioner denying benefits, and dismissing the complaint with prejudice. (See document for details.) (sbou)

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Madina Azimi v. Carolyn W. Colvin Doc. 24 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MADINA A., 12 Plaintiff, 13 v. 14 NANCY A. BERRYHILL, Acting 15 Commissioner of Social Security Administration, 16 Defendant. 17 18 ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. SA CV 16-2288-SP MEMORANDUM OPINION AND ORDER 19 I. 20 INTRODUCTION 21 On December 30, 2016, plaintiff Madina A. filed a complaint against 22 defendant, the Commissioner of the Social Security Administration 23 (“Commissioner”), seeking a review of a denial of a period of disability and 24 disability insurance benefits (“DIB”). The parties have fully briefed the matters in 25 dispute, and the court deems the matter suitable for adjudication without oral 26 argument. 27 Plaintiff presents two disputed issues for decision: (1) whether the 28 1 Dockets.Justia.com 1 Administrative Law Judge (“ALJ”) properly considered the opinion of an 2 examining physician, Dr. Harlan Bleecker, an orthopedist; and (2) whether the 3 ALJ properly considered the opinion of another examining physician, Dr. Lorna 4 Carlin, a psychiatrist. Memorandum in Support of Plaintiff’s Complaint (“P. 5 Mem.”) at 3-9; Defendant’s Memorandum in Support of Answer (“D. Mem.”) at 16 9. 7 Having carefully studied the parties’ memoranda on the issues in dispute, 8 the Administrative Record (“AR”), and the decision of the ALJ, the court 9 concludes that, as detailed herein, the ALJ failed to properly consider a portion of 10 Dr. Bleecker’s opinion, but such error was harmless, and the ALJ did properly 11 consider Dr. Carlin’s opinion, although there too any error was harmless. 12 Consequently, the court affirms the decision of the Commissioner denying 13 benefits. 14 II. 15 FACTUAL AND PROCEDURAL BACKGROUND 16 Plaintiff, who was forty-nine years old on the alleged disability onset date, 17 is a high school graduate who completed two years of college. AR at 53, 67. 18 Plaintiff has past relevant work as a salesperson. Id. at 255. 19 On May 29, 2013, plaintiff filed an application for a period of disability and 20 DIB, alleging an onset date of January 1, 2012 due to a spinal disorder, severe 21 back pain, and knee pain. Id. at 67. The Commissioner denied plaintiff’s 22 application initially and upon reconsideration, after which she filed a request for a 23 hearing. Id. at 97-109. 24 On April 7, 2015, plaintiff, represented by a non-legal advocate, appeared 25 and testified at a hearing before the ALJ. Id. at 44-66; see also id. at 109, 195. 26 The ALJ also heard testimony from Dr. Arnold Ostrow, a medical expert, and Alan 27 Ey, a vocational expert. Id. at 47-51, 61-62. On April 29, 2015, the ALJ denied 28 2 1 plaintiff’s claim for benefits. Id. at 29-39. 2 Applying the well-known five-step sequential evaluation process, the ALJ 3 found, at step one, that plaintiff had not engaged in substantial gainful activity 4 from January 1, 2012, the alleged onset date, through December 31, 2013, the date 5 last insured. Id. at 31. 6 At step two, the ALJ found plaintiff suffered from the following severe 7 impairments: degenerative disc disease of the thoracic spine and lumbar spine; 8 early degenerative changes of the left ring finger; hypertension; obesity; and 9 fibromyalgia. Id. 10 At step three, the ALJ found plaintiff’s impairments, whether individually 11 or in combination, did not meet or medically equal one of the listed impairments 12 set forth in 20 C.F.R. part 404, Subpart P, Appendix 1. Id. at 33. The ALJ then assessed plaintiff’s residual functional capacity (“RFC”),1 and 13 14 determined she had the RFC to: lift and carry twenty pounds occasionally and ten 15 pounds frequently; stand and/or walk for six hours in an eight-hour workday; sit 16 for six hours in an eight-hour workday; occasionally climb stairs, bend, balance, 17 stoop, kneel, crouch, crawl, and operate foot pedals bilaterally; and frequently 18 perform gross and fine manipulation with the left upper extremity. Id. The ALJ 19 precluded plaintiff from ladders, ropes, scaffolding, and working at unprotected 20 heights. Id. 21 The ALJ found, at step four, that plaintiff was able to perform her past 22 relevant work as a salesperson. Id. at 39. Consequently, the ALJ concluded 23 24 1 Residual functional capacity is what a claimant can do despite existing 25 exertional and nonexertional limitations. Cooper v. Sullivan, 880 F.2d 1152, 26 1155-56 n.5-7 (9th Cir. 1989). “Between steps three and four of the five-step evaluation, the ALJ must proceed to an intermediate step in which the ALJ 27 assesses the claimant’s residual functional capacity.” Massachi v. Astrue, 486 28 F.3d 1149, 1151 n.2 (9th Cir. 2007). 3 1 plaintiff did not suffer from a disability as defined by the Social Security Act. Id. 2 Plaintiff filed a timely request for review of the ALJ’s decision, which was 3 denied by the Appeals Council. Id. at 1-4. The ALJ’s decision stands as the final 4 decision of the Commissioner. 5 III. 6 STANDARD OF REVIEW 7 This court is empowered to review decisions by the Commissioner to deny 8 benefits. 42 U.S.C. § 405(g). The findings and decision of the Social Security 9 Administration must be upheld if they are free of legal error and supported by 10 substantial evidence. Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001) 11 (as amended). But if the court determines the ALJ’s findings are based on legal 12 error or are not supported by substantial evidence in the record, the court may 13 reject the findings and set aside the decision to deny benefits. Aukland v. 14 Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001); Tonapetyan v. Halter, 242 F.3d 15 1144, 1147 (9th Cir. 2001). 16 “Substantial evidence is more than a mere scintilla, but less than a 17 preponderance.” Aukland, 257 F.3d at 1035. Substantial evidence is such 18 “relevant evidence which a reasonable person might accept as adequate to support 19 a conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998); Mayes, 276 20 F.3d at 459. To determine whether substantial evidence supports the ALJ’s 21 finding, the reviewing court must review the administrative record as a whole, 22 “weighing both the evidence that supports and the evidence that detracts from the 23 ALJ’s conclusion.” Mayes, 276 F.3d at 459. The ALJ’s decision “‘cannot be 24 affirmed simply by isolating a specific quantum of supporting evidence.’” 25 Aukland, 257 F.3d at 1035 (quoting Sousa v. Callahan, 143 F.3d 1240, 1243 (9th 26 Cir. 1998)). If the evidence can reasonably support either affirming or reversing 27 the ALJ’s decision, the reviewing court “‘may not substitute its judgment for that 28 4 1 of the ALJ.’” Id. (quoting Matney v. Sullivan, 981 F.2d 1016, 1018 (9th Cir. 2 1992)). 3 IV. 4 DISCUSSION 5 A. The ALJ’s Rejection of Dr. Bleecker’s Reaching Opinion Was Harmless 6 Error 7 Plaintiff contends the ALJ failed to properly consider the opinion of Dr. 8 Harlan Bleecker, a consultative orthopedist. P. Mem. at 3-7. Specifically, 9 plaintiff argues the ALJ improperly rejected Dr. Bleecker’s opinion that plaintiff 10 could only occasionally reach at or above her shoulder level with both arms 11 without providing specific and legitimate reasons. See id. 12 In determining whether a claimant has a medically determinable 13 impairment, among the evidence the ALJ considers is medical evidence. 20 14 C.F.R. § 404.1527(b).2 In evaluating medical opinions, the regulations distinguish 15 among three types of physicians: (1) treating physicians; (2) examining 16 physicians; and (3) non-examining physicians. 20 C.F.R. § 404.157(c), (e); Lester 17 v. Chater, 81 F.3d 821, 830 (9th Cir. 1996) (as amended). “Generally, a treating 18 physician’s opinion carries more weight than an examining physician’s, and an 19 examining physician’s opinion carries more weight than a reviewing physician’s.” 20 Holohan v. Massanari, 246 F.3d 1195, 1202 (9th Cir. 2001); 20 C.F.R. 21 § 404.1527(c)(1)-(2). The opinion of the treating physician is generally given the 22 greatest weight because the treating physician is employed to cure and has a 23 greater opportunity to understand and observe a claimant. Smolen v. Chater, 80 24 F.3d 1273, 1285 (9th Cir. 1996); Magallanes v. Bowen, 881 F.2d 747, 751 (9th 25 Cir. 1989). 26 27 2 All citations to the Code of Federal Regulations refer to regulations 28 applicable to claims filed before March 27, 2017. 5 1 Nonetheless, the ALJ is not bound by the opinion of the treating physician. 2 Smolen, 80 F.3d at 1285. If a treating physician’s opinion is uncontradicted, the 3 ALJ must provide clear and convincing reasons for giving it less weight. Lester, 4 81 F.3d at 830. If the treating physician’s opinion is contradicted by other 5 opinions, the ALJ must provide specific and legitimate reasons supported by 6 substantial evidence for rejecting it. Id. at 830. Likewise, the ALJ must provide 7 specific and legitimate reasons supported by substantial evidence for rejecting the 8 contradicted opinions of examining physicians. Id. at 830-31. The opinion of a 9 non-examining physician, standing alone, cannot constitute substantial evidence. 10 Widmark v. Barnhart, 454 F.3d 1063, 1066 n.2 (9th Cir. 2006); Morgan v. 11 Comm’r, 169 F.3d 595, 602 (9th Cir. 1999); see also Erickson v. Shalala, 9 F.3d 12 813, 818 n.7 (9th Cir. 1993). 13 1. 14 During the alleged period of disability, plaintiff was treated by multiple Physicians’ Findings 15 physicians. Only those relevant to the issue in dispute will be discussed here. 16 X-rays from a November 17, 2012 emergency room visit showed plaintiff 17 had multilevel degenerative disc disease. AR at 269. The ER prescribed plaintiff 18 oxycodone and valium but plaintiff was scared of taking narcotics. See id. at 270, 19 323, 329. 20 Dr. Catou Greenberg, plaintiff’s treating internist, referred plaintiff to an 21 orthopedic specialist, Dr. Balaji Charlu, to examine plaintiff’s back pain. See id. 22 at 323-24. Wendy Delgado, a physician’s assistant, performed the initial 23 examination under Dr. Charlu’s supervision. See id. at 324. P.A. Delgado 24 observed plaintiff had pain upon rotation, flexion, and range of motion in the neck 25 and lumbar spine with some pain. Id. Based on the examination, history, and x26 rays, Dr. Charlu opined plaintiff had thoracic pain, myofascial pain, thoracic 27 spasms, mechanical thoracic pain, and multilevel degenerative disc disease, and 28 6 1 ordered physical therapy, muscle relaxants, anti-inflammatories, and a lumbar soft 2 corset. Id. 3 Dr. Bleecker, an orthopedic surgeon, examined plaintiff on September 24, 4 2013, but did not review any medical records. AR at 425-29. Plaintiff reported to 5 Dr. Bleecker that she had an MRI showing degenerative disc disease through her 6 thoracic and lumbar spine. See id. at 425. Dr. Bleecker observed plaintiff had, 7 among other things, a normal gait, reduced range of motion in the neck and back, a 8 negative straight-leg raising test, and normal range of motion in the upper 9 extremities. See id. at 426-27. Based on the examination, Dr. Bleecker diagnosed 10 plaintiff with degenerative disc disease, degenerative arthritis thoracic spine and 11 lumbar spine. Id. at 428. Dr. Bleecker opined plaintiff could: sit six hours in an 12 eight-hour day; stand and walk six hours in an eight-hour day; lift twenty pounds 13 occasionally and ten pounds frequently; and only occasionally reach at or above 14 the level of the shoulder joint with either upper extremity, since this entails 15 extension of the thoracic spine. Id. 16 Dr. Arnold Ostrow, an internist and pulmonologist, reviewed plaintiff’s 17 medical records and testified as a medical expert at the hearing. Id. at 47-51. Dr. 18 Ostrow opined plaintiff suffered from lumbral sacral degenerative disc disease, 19 thoracic spine degenerative disease, early degenerative changes of the ring finger 20 and left hand, hypertension, obesity, and fibromyalgia. Id. at 48. Based on a 21 review of the records, Dr. Ostrow opined plaintiff had the RFC to: lift twenty 22 pounds occasionally and ten pounds frequently; stand and walk for six hours; sit 23 for six hours; frequently use fingers of the left upper extremity for gripping, 24 handling, and fingering; occasionally use foot pedals bilaterally; and occasionally 25 climb stairs. Id. at 49. Dr. Ostrow also limited plaintiff to occasional postural 26 activities and precluded plaintiff from working at unprotected heights and from 27 ropes, ladders, and scaffolds. Id. 28 7 1 2. 2 In reaching his RFC determination, the ALJ adopted Dr. Ostrow’s opinion The ALJ’s Findings 3 in its entirety. See id. at 33, 37-38. The ALJ noted that Dr. Bleecker’s opinion 4 was consistent with the evidence, but so as to give plaintiff all reasonable 5 consideration, gave Dr. Bleecker’s opinion less weight and instead adopted a more 6 restrictive RFC. See id. at 38. 7 Plaintiff contends that Dr. Bleecker’s reaching limitation was more 8 restrictive than the ALJ’s adopted left upper extremity limitations, and thus the 9 ALJ’s reason for rejecting Dr. Bleecker’s reaching limitation was not specific and 10 legitimate. See P. Mem. at 4-5. The court agrees. Although the ALJ correctly 11 identified Dr. Ostrow’s opined limitations as more restrictive on the whole than 12 Dr. Bleecker’s limitations, Dr. Bleecker’s upper extremity limitation was more 13 restrictive than Dr. Ostrow’s. Dr. Ostrow only limited the left upper extremity to 14 frequent use of the left fingers and hand and did not opine any reaching limitation, 15 while Dr. Bleecker limited both upper extremities to occasional reaching at or 16 above the shoulder level. Compare AR at 49 and 428. Because the ALJ found 17 that Dr. Bleecker’s opinion was consistent with the evidence and purported to 18 want to reach the most restrictive RFC determination, his reasoning for rejecting 19 Dr. Bleecker’s reaching limitation was not supported by substantial evidence. 20 Nevertheless, this error was harmless. At the hearing, in response to a 21 hypothetical as to whether a person with the RFC determined by the ALJ, plus a 22 limitation to occasional overhead or over the shoulder reaching, could still 23 perform plaintiff’s past relevant work as a salesperson, the vocational expert 24 (“VE”) responded in the affirmative. Id. at 62. Thus, had the ALJ adopted Dr. 25 Bleecker’s reaching limitation, plaintiff still would have been found not disabled. 26 Plaintiff suggests the VE’s testimony conflicts with the Dictionary of 27 Occupational Titles (“DOT”), which defines the job of salesperson as requiring 28 8 1 frequent reaching. P. Mem. at 5; see DOT 261.357-074. In Gutierrez v. Colvin, 2 844 F.3d 804 (9th Cir. 2016), the Ninth Circuit considered whether a VE’s 3 testimony that a person with an overhead reaching limitation could work as a 4 cashier conflicted with the DOT, and found that for a conflict with the DOT to be 5 apparent, the VE’s testimony must be at odds with the essential, integral, or 6 expected requirements of a job. Id. at 808. Recognizing that “not every job that 7 involves reaching requires the ability to reach overhead,” the Ninth Circuit looked 8 at the typical duties of a cashier set forth by the DOT and applied common 9 knowledge of the job to conclude there was no apparent conflict with the DOT in 10 that instance. Id. 11 Plaintiff argues that although cashiering may not require reaching overhead, 12 a salesperson could be expected to do “an appreciable amount of reaching at or 13 above shoulder level” for merchandise and in stocking or restocking items. P. 14 Mem. at 6-7. But while a salesperson might be expected to reach at or above 15 shoulder level more frequently than a cashier, as defendant points out, even Dr. 16 Bleecker opined plaintiff could do this occasionally, i.e., up to a third of the time. 17 The DOT description of the job as involving advising customers, answering 18 questions, packing and wrapping purchases, checking merchandise deliveries, 19 ticketing merchandise, stocking inventory, and posting sales onto inventory sheets 20 indicates the vast majority of the reaching would not be at or above shoulder level. 21 DOT 261.357-074. Likewise, common knowledge of the salesperson position 22 suggests that, while the position may require frequent reaching, most of that 23 reaching generally would not be at or above shoulder level. 24 Moreover, even if the VE’s testimony that plaintiff could perform her past 25 relevant work as it is generally performed could be deemed inconsistent with the 26 DOT, the VE also testified a person limited to occasional over the shoulder 27 reaching could perform plaintiff’s past relevant work as she actually performed it 28 9 1 as well. AR at 61, 62. Plaintiff notes that the VE only testified a person limited to 2 occasional “over the shoulder” reaching could do her past work, but did not 3 consider a person also limited to only occasional reaching at shoulder level. P. 4 Mem. at 7 n.1. The difference between at and above shoulder level reaching is 5 minimal, and again, Dr. Bleecker did not preclude plaintiff from all such reaching, 6 but simply limited her to doing such reaching occasionally. There is nothing in 7 the record to suggest plaintiff’s past relevant work involved more than occasional 8 at or above shoulder level reaching, and the VE’s testimony supports this. 9 Accordingly, while the ALJ’s reason for rejecting Dr. Bleecker’s reaching 10 limitation was not specific and legitimate, his error was harmless. 11 B. The ALJ Properly Considered the Opinion of the Examining 12 Psychiatrist 13 Plaintiff argues that the ALJ failed to properly consider Dr. Carlin’s 14 opinion. P. Mem. at 7-9. Specifically, plaintiff contends the ALJ failed to 15 consider the combination of plaintiff’s pain and anxiety. Id. Plaintiff somewhat 16 unclearly argues the ALJ effectively rejected the portion of Dr. Carlin’s opinion 17 that states plaintiff’s mental limitations could be increased by pain, and so 18 consequently erred in determining plaintiff did not have a severe mental 19 impairment or in failing to account for such limitations in his RFC determination. 20 Dr. Lorna Carlin, a psychiatrist, examined plaintiff on September 18, 2013. 21 Id. at 415-21. Dr. Carlin did not review any medical records. See id. at 415. 22 During the examination, plaintiff reported that she did not feel that she had any 23 mental or emotional problems, but was under a lot of stress due to her pain. See 24 id. Dr. Carlin observed that plaintiff was cooperative, coherent, organized, alert, 25 and had intact judgment. Id. at 417, 419-20. Dr. Carlin diagnosed plaintiff with 26 anxiety disorder, not otherwise specified, and psychosocial stressors during the 27 past year, moderate to severe. Id. at 420. Dr. Carlin opined plaintiff was 28 10 1 functioning well with her physical limitations and that her condition may improve 2 in the next twelve months because she was still responding to her mother’s death 3 and her divorce. Id. From a functional perspective, Dr. Carlin opined plaintiff 4 was mildly limited in her ability to (1) maintain concentration and attention, 5 persistence, and pace, and (2) maintain regular attendance in the workplace and 6 perform work activities on a consistent basis, and was otherwise not significantly 7 limited. Id. at 420-21. With regard to plaintiff’s ability to maintain concentration 8 and attention, persistence, and pace, Dr. Carlin noted the limitation could become 9 more significant when plaintiff’s pain is great. Id. at 421. As for plaintiff’s ability 10 to maintain regular attendance and perform work activities consistently, Dr. Carlin 11 opined it required consideration of her physical limitations. Id. 12 In determining that plaintiff did not have a severe mental impairment or 13 functional limitations resulting from the mental impairment, the ALJ expressly 14 gave great weight to Dr. Carlin’s opinion. Id. at 32, 38. As discussed above, the 15 ALJ did consider plaintiff’s physical limitations, and there is no basis to find the 16 ALJ ignored the portion of Dr. Carlin’s opinion stating such consideration was 17 required. Plaintiff does not appear to argue this, but instead argues the ALJ did 18 not account for the effect plaintiff’s pain might have had on her mental limitations. 19 Although the ALJ did not directly address Dr. Carlin’s opinion regarding 20 the possibility of plaintiff’s pain affecting the severity of her mental limitations, 21 the ALJ discussed plaintiff’s pain in the decision. The ALJ found plaintiff’s 22 statements concerning her symptoms and limitations were not fully credible. See 23 id. at 37. The ALJ noted that, for the relevant period, plaintiff only sought 24 treatment for pain twice, had mild findings, and was treated conservatively. See 25 id. at 35. Because the ALJ did not find that plaintiff’s allegations of pain were 26 fully credible or instances of changes in her physical limitations, it would be 27 reasonable for the ALJ to conclude the pain did not have a significant effect on 28 11 1 plaintiff’s mild mental limitations during the relevant period. Put another way, 2 since the ALJ did not find plaintiff suffered from significant pain, Dr. Carlin’s 3 opinion that great pain could increase her mental limitations was not implicated. 4 Thus, the ALJ properly considered Dr. Carlin’s opinion. And even if the 5 ALJ had erred by failing to explicitly discuss the effects of plaintiff’s pain on her 6 mental impairment, such error would be harmless since the ALJ found plaintiff’s 7 pain allegations were not fully credible.3 8 V. 9 CONCLUSION 10 IT IS THEREFORE ORDERED that Judgment shall be entered 11 AFFIRMING the decision of the Commissioner denying benefits, and dismissing 12 the complaint with prejudice. 13 14 DATED: March 18, 2019 15 SHERI PYM United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 3 Moreover, Dr. Carlin did not opine that plaintiff’s limitation would last 28 twelve months. See 42 U.S.C. 423(d)(1)(A). 12

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