(SS) Ponce v. Commissioner of Social Security ( 2022 )

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 AMELIA PONCE, Case No. 1:20-cv-01664-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL (ECF Nos. 22, 23) SECURITY, 16 Defendant. 17 18 This matter is before the Court on Plaintiff Amelia Ponce’s (“Plaintiff”) complaint for 19 judicial review of an unfavorable decision by the Commissioner of the Social Security 20 Administration. (ECF No. 1). The parties have consented to entry of final judgment by the 21 United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c) with any appeal to the 22 Court of Appeals for the Ninth Circuit. (ECF No. 7, 10, 11). 23 Plaintiff challenges the decision of the Administrative Law Judge (“ALJ”) on the 24 following grounds: 25 (1) The ALJ’s residual functional capacity (“RFC”) determination is unsupported by substantial evidence because the ALJ erroneously rejected the opinion of 26 treating physician Dr. Kamal; and 27 (2) The ALJ erred in rejecting Plaintiff’s subjective pain complaints without 28 providing clear and convincing reasons. 2 parties, and the applicable law, the Court finds as follows: 3 I. ANALYSIS 4 A. Dr. Kamal’s opinion 5 Plaintiff argues that the ALJ’s RFC determination is unsupported by substantial evidence 6 because the ALJ erroneously rejected the opinion of treating physician, Dr. Kamal. (ECF No. 22, 7 at p. 6). 8 This appeal is governed by the Social Security Administration’s (“SSA”) new rules 9 regarding the treatment of physician opinions because the claims were filed on February 20, 10 2018. Those new regulations state the Commissioner “will no longer give any specific 11 evidentiary weight to medical opinions; this includes giving controlling weight to any 12 medical opinion.” Revisions to Rules Regarding the Evaluation of Medical Evidence, 2017 WL 13 168819, 82 Fed. Reg. 5844, at 5867-68 (Jan. 18, 2017); see also 20 C.F.R. §§ 404.1520c (a), 14 416.920c(a). Instead, the Commissioner must consider all medical opinions and “evaluate their 15 persuasiveness” based on supportability, consistency, relationship with the claimant, 16 specialization, and other factors. 20 C.F.R. §§ 404.152c(c); 416.920c(c). The most important 17 factors are supportability and consistency. 20 C.F.R. §§ 404.152c(a), (b)(2); 416.920c(a), (b)(2). 18 Although the regulations eliminate the “physician hierarchy,” deference to specific 19 medical opinions, and assigning “weight” to a medical opinion, the ALJ must still “articulate how 20 [he or she] considered the medical opinions” and “how persuasive [he or she] find[s] all of the 21 medical opinions.” 20 C.F.R. §§ 404.1520c(a), (b)(1); 416.920c(a), (b)(1). The ALJ is 22 specifically required to “explain how [he or she] considered the supportability and consistency 23 factors” for a medical opinion. 20 C.F.R. §§ 404.1520c(b)(2); 416.920c(b)(2) (“Therefore, we 24 will explain how we considered the supportability and consistency factors for a medical source's 25 medical opinions or prior administrative medical findings in your determination or decision.”). 26 The Ninth Circuit has not yet had the opportunity to address the impact of 27 the new regulations on the requirement that the ALJ provide “clear and convincing” reasons for 28 2 a contracted physician's opinion. Lester v. Chater, 81 F.3d 821, 830–31 (9th Cir. 1995). However, 3 several district courts have given the opinion that these articulation standards still apply. See, 4 e.g., Stephanie B. v. Commissioner of Social Security (W.D. Wash., Jan. 7, 2022, No. 2:21-CV- 5 462-DWC) 2022 WL 72062, at *2–3 (“Thus, while the new regulations ask the ALJ to explain, at 6 a minimum, how the ALJ considered the supportability and consistency factors of a 7 medical opinion, if the medical opinion is uncontradicted the ALJ must still cite ‘clear and 8 convincing’ reasons for rejecting it, and if it is contradicted, the ALJ must still give ‘specific and 9 legitimate’ reasons for rejecting it.”); see also Kathleen G. v. Comm'r of Soc. Sec., No. C20-461 10 RSM, 2020 WL 6581012 at *3 (W.D. Wash. Nov. 10, 2020) (finding that the new regulations do 11 not clearly supersede the “specific and legitimate” standard because the “specific and legitimate” 12 standard refers not to how an ALJ should weigh or evaluate opinions, but rather the standard by 13 which the Court evaluates whether the ALJ has reasonably articulated his or her consideration of 14 the evidence); Morgan v. Saul, 2020 WL 11723490, at *5 (C.D. Cal., Oct. 21, 2020) (“the ALJ 15 was obliged under both existing case law and the new regulations to explain, at a minimum, 16 with specific and legitimate reasons, his conclusion that Dr. DePriest's opinion was not supported 17 by the objective medical evidence”). 18 The ALJ included the following discussion regarding the weight given to Dr. Kamal’s 19 opinion: 20 The undersigned also considered the physical residual functional capacity medical 21 source statement submitted by the claimant’s primary care physician, Dr. Kamal, 22 on September 3, 2019 (Exhibit 14F). Dr. Kamal reports that the claimant has a diagnosis of spinal stenosis. Dr. Kamal opined that the claimant could rarely lift 23 and carry less than 5 pounds and never 5 pounds. He opined that the claimant cannot walk one city block or more without rest or severe pain. She cannot walk 24 one block or more on rough or uneven ground. She cannot climb steps without use 25 of a handrail at a reasonable pace. She has problems with balance when ambulating. She has problems with stooping, crouching and bending. The 26 undersigned finds that Dr. Kamal’s opinions on this form are highly inconsistent with the objective medical evidence and other evidence of record. This opinion 27 has been considered, but in the view of the overall record, is found not to be 28 persuasive and unsupported by the objective medical evidence. Additionally, the explanation and he offered no citation to supporting record evidence. Treatment 2 records from Dr. Kamal shows only routine treatment with no objective evidence to support these limitations. (Exhibits 10F; 18F). 3 4 (A.R. 41). 5 In response, the Commissioner reviewed the contrary opinions of Dr. Kiger and Dr. 6 Sacheva, which the ALJ found to be well supported. The Commissioner then explained how 7 those opinions were well supported in terms of their bases for forming the opinions and the 8 underlying objective evidence. Specifically, Dr. Kiger explained that there were no neurological 9 deficits, that Plaintiff was independent in activities of daily living, had conservative treatment, 10 and benefitted from physical therapy. (A.R. 95). Dr. Sachdeva performed an extensive physical 11 examination where Plaintiff’s physical extremities were within normal limits in conjunction with 12 the doctor’s medical opinion. (A.R. 1199-1203). Additionally, the Commissioner extensively 13 reviewed the record to demonstrate how the medical evidence supported the ALJ’s decision, 14 including numerous unremarkable findings as to strength, gait, and neurological conditions. For 15 example, Dr. Kamal noted on multiple occasions that Plaintiff was fit and well. (See, e.g., A.R. 16 1360, 1368 1373 (“fit and well,” “without abnormal findings”)). 17 In her reply, Plaintiff argues that the Commissioner’s reasons for preferring the opinions 18 of Dr. Kiger and Dr. Sacheva were not put forth by the ALJ. Plaintiff does not otherwise dispute 19 the Commissioner’s explanation of the medical evidence and opinions. 20 It is true that the ALJ’s reasons provided in the discussion of Dr. Kamal’s opinion are 21 conclusory and poorly explained. The ALJ stated that Dr. Kamal’s opinions are not persuasive or 22 supported by the record, but without pointing to specific records besides Dr. Kamal’s treatment 23 records generally. That said, in light of the two contrary medical opinions and objective evidence 24 cited by the Commissioner, the ALJ’s conclusion is supported by substantial evidence in the 25 record. 26 The Court carefully considered whether the ALJ’s explanation was sufficient to fulfill the 27 requirements of articulation discussed above, and ultimately concludes that remand is not 28 warranted. Again, the ALJ discussed the contradictory opinions and provided some, albeit brief, 2 observation that Dr. Kamal’s opinion is “a checkbox form with no significant narrative 3 explanation” and “no citation to record evidence,” is true. (A.R. 41). Not only is the opinion 4 presented in a checkbox form, nineteen of the questions presented are not answered at all, instead 5 only indicating “N/A.” (See A.R. 1217-1219 (noting “N/A” in response to numerous questions 6 such as how long Plaintiff needs to lie down during an 8 hour workday and whether Plaintiff 7 needs an assistive device to walk)). Furthermore, Dr. Kamal did not check any box in response to 8 the prompt to “indicate the items upon which you base the opinions given in this report.” (A.R. 9 1219). 10 Additionally, the ALJ includes an extensive discussion of the objective medical evidence 11 elsewhere in her opinion, which is cited below in connection with the next issue. This 12 explanation provides further context for understanding the ALJ’s statements in connection with 13 Dr. Kamal’s opinion. 14 For those reasons, the Court declines to find that the ALJ’s RFC determination is 15 unsupported by substantial evidence because the ALJ erroneously rejected the opinion of Dr. 16 Kamal. 17 B. Plaintiff’s Subjecting Symptom Testimony 18 Plaintiff next argues that the ALJ erred in rejecting Plaintiff’s subjective pain complaints 19 without providing clear and convincing reasons. 20 The Ninth Circuit has provided the following guidance regarding a plaintiff’s subjective 21 complaints: 22 Once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant’s testimony as to subjective 23 symptoms merely because they are unsupported by objective evidence. Bunnell v. Sullivan, 947 F.2d 341, 343 (9th Cir. 1991) (en banc); see also Cotton v. 24 Bowen, 799 F.2d 1403, 1407 (9th Cir. 1986) (“it is improper as a matter of law to discredit excess pain testimony solely on the ground that it is not fully 25 corroborated by objective medical findings”). Unless there is affirmative evidence showing that the claimant is malingering, the Commissioner’s reasons for rejecting 26 the claimant’s testimony must be “clear and convincing.” Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir. 1989). General findings are insufficient; rather, the ALJ 27 must identify what testimony is not credible and what evidence undermines the 28 claimant’s complaints. 2 The ALJ made the following findings regarding Plaintiff’s subjective symptom testimony: 3 Overall, the longitudinal evidence of record does not support the claimant’s allegations concerning the intensity, persistence, and limiting effects of her 4 symptoms. Giving the claimant the benefit of the doubt, crediting the subjective 5 factors as much as the evidence allows; however, the allegations as to functional limitations simply are not supported by the evidence as a whole. The evidence of 6 record suggests that the claimant is more functional than alleged. Physically, the medical evidence of record shows that the claimant has history of 7 pancreatic tumor surgery, degenerative disc disease and lumbar spondylosis and 8 some radiculopathy. However, the objective medical evidence of record demonstrates that the claimant’s impairments are neither as debilitating nor 9 disabling as alleged and that she has received routing and conservative treatment for her impairments with largely normal examinations. 10 11 Physical examinations in the medical records show some limitations, but do not support that the claimant would have limitations greater than those given in the 12 residual functional capacity in the section heading. While the claimant has history of pancreatic tumor surgery, she has had no surgery for this condition since March 13 2017 (Exhibit 2F/7). The claimant received routine and conservative treatment 14 and she does not meet any high risk criteria (Exhibit 2F/17). Generally, surveillance of remaining pancreas should be performed every two years (Exhibit 15 2F/17). There is no evidence of emergency department visits or inpatient 16 hospitalizations. 17 While the claimant has degenerative disc disease and lumbar spondylosis and some radiculopathy, she also received routine and conservative care for these 18 conditions. Despite the claimant’s subjective complaints, she has had no surgeries, 19 inpatient hospitalizations or emergency department visits related to these concerns. The claimant was recommended she continue with conservative treatment 20 management (Exhibit 20F/5). There was no evidence of lower or upper extremity strength (Exhibits 3F/176-177; 19F/8). Furthermore, the evidence demonstrates 21 that the claimant used no assistive devices for ambulation, such as a cane or 22 walker, and none was prescribed. Physical examination findings revealed the claimant had a normal gait and used no assistive device for ambulation (Exhibits 23 2F; 3F; 5F; 6F; 10F; 21F). The claimant denies any falls or balance issues and she does not require assistance for ambulation (Exhibit 20F/1). 24 25 Despite the claimant’s limitations, she has shown an ability to engage in many activities of daily living. In evaluating the claimant’s symptoms as described in 26 20CFR 404.1529(c)(3), 416.929(c)(3) and Social Security Ruling 16-3p, there are several reasons why the claimant’s allegations of debilitating symptoms, would be 27 deemed to be not wholly persuasive nor consistent with the evidence in the record. 28 First the claimant has described daily activities, which are not limited to th extent Claimant’s allegations in the record as to severity and limits and testimony at 2 hearing are not fully supported by medical evidence of record and not consistent with acknowledged activity level. 3 At the hearing, she reports that she resides at home with children and full-time 4 employed husband, so functions independently during the day. She notes that her 5 son goes to college parttime so he is home “sometimes.” She drives herself to the grocery store and to appointments. She drives 3-4 times per week. She prepares 6 lunch for her and her husband. She takes medications as prescribed on her own. She maintains the house and manages money, although her husband pays the bills. 7 At Exhibit 13F/3, the claimant does not require assistance to bathe, get dressed, 8 keep appointments, clean house or drive to appointments. In addition, she still has children at home and cares for her family. She does not require assistance getting 9 dressed, cleaning the house, cooking, driving, and carrying for the family (Exhibit 10 13F/3). 11 At Exhibit 4E, she reports no problems with personal care, including dressing and bathing. She is able to care for her personal needs, as well as those of her husband 12 and children. She reports she cooks lunch and dinner. She prepares meals daily. 13 She does household chores such as washing dishes, cooking, and folding laundry with breaks. She is able to drive a car and when going out, she can go out alone. 14 She shops in-stores, manages money, reads and watches television. She takes short walks two times per week. She spends time with others almost daily. 15 On a regular basis, she goes to church. She follows both written and spoken 16 instructions “good.” She handles stress “good” and she handles changes in routine “good.” She does not use crutches, walker, wheelchair, cane, or a brace/splint. 17 At Exhibit 16F/1, she reports she can tolerate chores, weight bearing activities, and 18 activities of daily living longer without increasing pain and was sleeping better at 19 night. At Exhibit 10F/66, she reports she is able to clean home, drive, cook, and bathe/dress herself. 20 Treatment notes from her primary care physician, Dr. Kamal, revealed the 21 claimant’s preferred language is Spanish; however, claimant “does not need an 22 interpreter” (Exhibits 3F/223; 18F/77, 83, 89, 96, 100, 105, 109, 120). The claimant had no barriers to learning (Exhibit 18F/31, 40). In July 2019, the record 23 shows that the claimant walks 3 times per week; exercises for 40 minutes per day; recommended 30 minutes daily of physical activity (Exhibit 18F/31, 40). 24 In November 2019, the claimant was encouraged to stay active for 30 minutes, 5 25 times a week (Exhibit 18F/5). 26 Second, although the claimant has received treatment for the allegedly disabling impairments that treatment has been essentially routine and conservative. This 27 level of activity suggests that the claimant could perform work on a sustained and 28 persistent symptoms and active treatment, her physical and mental examination 2 findings do not support the severity of her subjective complaints, and her functional abilities—as noted above—are inconsistent with the severity of the 3 claimed physical and mental deficits (Exhibits 1F-21F). 4 Overall, the objective treatment findings and frequency of treatment, and the 5 ability to perform activities of daily living, to perform hobbies, and to function independently are inconsistent with the severity of her claimed physical and 6 mental limitations. However, the undersigned affords the above restrictions in the residual functional capacity to accommodate the claimant's allegations. 7 8 (A.R. 38-39). 9 Plaintiff argues that the ALJ failed to identify the testimony that was not credible and 10 what evidence undermines that testimony. The Commissioner responded again with an extensive 11 explanation of the record and description of how it contradicted Plaintiff’s subjective symptom 12 testimony. 13 The Court agrees that much of the Commissioner’s explanation in its opposition brief is 14 not contained in the ALJ’s opinion. Nevertheless, the Court declines to remand on this basis as 15 well. As the ALJ summarized earlier in her opinion, the Plaintiff’s allegations of disability 16 largely concerned her purported limitations on movement, including standing, walking, and 17 lifting. The ALJ’s discussion of medical evidence referenced contradictory medical evidence 18 regarding normal physical examinations, normal findings of range of motion and strength. It also 19 cites reports of improvement from physical therapy and extensive activities of daily living. Taken 20 as whole, the Court finds that the ALJ’s reasons for not fully crediting Plaintiff’s subjective 21 symptom testimony are sufficiently supported. 22 23 \\\ 24 \\\ 25 \\\ 26 \\\ 27 \\\ 28 1 I. CONCLUSION AND ORDER 2 Thus, the decision of the Commissioner of Social Security is hereby affirmed. And the 3 | Clerk of the Court is directed to close this case. 4 5 | IT IS SO ORDERED. ° | pated: _ January 21, 2022 [spe ey 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28