Contreras v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CHRISTOPHER CONTRERAS, Case No. 19-cv-00154-KAW 8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY 9 v. JUDGMENT; DENYING DEFENDANT’S CROSS-MOTION FOR 10 NANCY A BERRYHILL, SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 13, 14 12 13 Plaintiff Christopher Contreras seeks judicial review, pursuant to 42 U.S.C. § 405(g), of 14 the Commissioner’s final decision, and the remand of this case for payment of benefits, or, in the 15 alternative, for further proceedings. 16 Pending before the Court is Plaintiff’s motion for summary judgment and Defendant’s 17 cross-motion for summary judgment. Having considered the papers filed by the parties, and for 18 the reasons set forth below, the Court GRANTS Plaintiff’s motion for summary judgment, and 19 DENIES Defendant’s cross-motion for summary judgment. 20 I. BACKGROUND 21 Plaintiff filed for Title II disability benefits on July 17, 2014. (Administrative Record 22 (“AR”) 486.) Plaintiff asserted disability beginning June 7, 2013. (AR 486.) The Social Security 23 Administration (“SSA”) denied Plaintiff’s application initially and on reconsideration. (AR 389, 24 397.) Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”); the hearing 25 was held on April 18, 2017. (AR 251, 402.) 26 Following the hearing, the ALJ denied Plaintiff’s application on April 18, 2017. (AR 20- 27 32.) A request for review of the ALJ’s decision was filed with the Appeals Council on August 24, 1 2018. (AR 1.) On January 9, 2019, Plaintiff commenced this action for judicial review pursuant 2 to 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) 3 Plaintiff filed his motion for summary judgment on May 9, 2019. (Pl.’s Mot., Dkt. No. 4 13.) Defendant filed an opposition and cross-motion for summary judgment on June 6, 2019. 5 (Def.’s Opp’n, Dkt. No. 14.) Plaintiff filed his reply on June 10, 2019. (Pl.’s Reply, Dkt. No. 15.) 6 II. LEGAL STANDARD 7 A court may reverse the Commissioner’s denial of disability benefits only when the 8 Commissioner's findings are 1) based on legal error or 2) are not supported by substantial 9 evidence in the record as a whole. 42 U.S.C. § 405(g); Tackett v. Apfel, 180 F.3d 1094, 1097 10 (9th Cir. 1999). Substantial evidence is “more than a mere scintilla but less than a 11 preponderance”; it is “such relevant evidence as a reasonable mind might accept as adequate to 12 support a conclusion.” Id. at 1098; Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996). In 13 determining whether the Commissioner's findings are supported by substantial evidence, the 14 Court must consider the evidence as a whole, weighing both the evidence that supports and the 15 evidence that detracts from the Commissioner's conclusion. Id. “Where evidence is susceptible 16 to more than one rational interpretation, the ALJ's decision should be upheld.” Ryan v. Comm'r 17 of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008). 18 Under Social Security Administration (“SSA”) regulations, disability claims are evaluated 19 according to a five-step sequential evaluation. Reddick v. Chater, 157 F.3d 715, 721 (9th Cir. 20 1998). At step one, the Commissioner determines whether a claimant is currently engaged in 21 substantial gainful activity. Id. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(b). At 22 step two, the Commissioner determines whether the claimant has a “medically severe impairment 23 or combination of impairments,” as defined in 20 C.F.R. § 404.1520(c). Reddick, 157 F.3d 715 at 24 721. If the answer is no, the claimant is not disabled. Id. If the answer is yes, the Commissioner 25 proceeds to step three, and determines whether the impairment meets or equals a listed impairment 26 under 20 C.F.R. § 404, Subpart P, Appendix 1. 20 C.F.R. § 404.1520(d). If this requirement is 27 met, the claimant is disabled. Reddick, 157 F.3d 715 at 721. 1 fourth step in the sequential evaluation process is to determine the claimant's residual functional 2 capacity (“RFC”) or what work, if any, the claimant is capable of performing on a sustained basis, 3 despite the claimant’s impairment or impairments. 20 C.F.R. § 404.1520(e). If the claimant can 4 perform such work, he is not disabled. 20 C.F.R. § 404.1520(f). RFC is the application of a legal 5 standard to the medical facts concerning the claimant's physical capacity. 20 C.F.R. § 404.1545(a). 6 If the claimant meets the burden of establishing an inability to perform prior work, the 7 Commissioner must show, at step five, that the claimant can perform other substantial gainful 8 work that exists in the national economy. Reddick, 157 F.3d 715 at 721. The claimant bears the 9 burden of proof at steps one through four. Bustamante v. Massanari, 262 F.3d 949, 953-954 (9th 10 Cir. 2001). The burden shifts to the Commissioner at step five. Id. at 954. 11 III. DISCUSSION 12 Plaintiff challenges the ALJ’s decision on three grounds: (1) the ALJ’s failure to consider 13 Plaintiff’s chronic pain syndrome in determining the RFC, (2) the ALJ’s failure to give more 14 weight to Plaintiff’s treating physician and the state agency doctors, and (3) the ALJ’s failure to 15 address Plaintiff’s concentration issues. (Pl.’s Mot. at 16.) 16 A. Failure to Consider Chronic Pain Syndrome 17 Plaintiff argues that the ALJ erred in not only failing to consider Plaintiff’s chronic pain 18 syndrome as a severe impairment, but in failing to recognize it at all. (Pl.’s Mot. at 16-17.) 19 The Court agrees that the ALJ erred. In identifying Plaintiff’s severe impairments, the 20 ALJ only identified Plaintiff’s degenerative disc disease of the lumbar spine. (AR 22.) The ALJ 21 never specifically addressed Plaintiff’s chronic pain syndrome, despite summarizing numerous 22 medical findings, medical opinions, third-party statements, and Plaintiff’s testimony that stated 23 Plaintiff suffered from pain, and that Plaintiff’s pain impacted his ability to work. (AR 26-31.) 24 Defendant argues that the error is harmless because Plaintiff did not state what additional 25 limitations the ALJ should have included in the RFC. (Def.’s Opp’n at 5-6.) The Court disagrees 26 that the error is harmless. First, Plaintiff does identify additional limitations, including his ability 27 to concentrate. (Pl.’s Mot. at 20-21.) Second, and more significantly, as discussed below, many 1 directly attributed to Plaintiff’s pain. Accordingly, the Court finds that the ALJ erred in not 2 specifically considering Plaintiff’s chronic pain syndrome. 3 B. Failure to Properly Weigh Medical Opinions 4 The court “distinguish[es] among the opinions of three types of physicians: (1) those who 5 treat the claimant (treating physicians); (2) those who examine but do not treat the claimant 6 (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining 7 physicians).” Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995). “As a general rule, more weight 8 should be given to the opinion of a treating source than to the opinion of doctors who do not treat 9 the claimant.” Id. (citing Winans v. Bowen, 853 F.2d 643, 647 (9th Cir. 1987). “At least where 10 the treating doctor’s opinion is not contradicted by another doctor, it may be rejected only for 11 ‘clear and convincing reasons.’” Id. (quoting Baxter v. Sullivan, 923 F.2d 1391, 1396 (9th Cir. 12 1991)). If a treating physician’s medical opinion is contradicted by another doctor, the ALJ must 13 identify specific legitimate reasons supported by substantial evidence to give more weight to the 14 non-treating doctor’s opinion. Id. 15 i. Dr. Massey 16 John Massey, M.D., is Plaintiff’s treating physician. Unlike the ALJ’s RFC, which found 17 that Plaintiff was capable of performing a full range of light work, Dr. Massey opined in June 18 2015 that Plaintiff would be able to sit, stand, and/or walk less than two hours in an eight-hour 19 workday, would need a sit-stand option, lift and/or carry twenty pounds occasionally and ten 20 pounds frequently, rarely twist and bend, and never crouch or climb ladders and stairs. (AR 26, 21 1024-25.) Dr. Massey also found that Plaintiff would miss more than four days of work per 22 month. (AR 1026.) In October 2016, Dr. Massey opined that Plaintiff could stand for ten minutes 23 at a time, lift ten pounds occasionally and less than ten pounds frequently, and occasionally stoop 24 while carrying weight. (AR 618-19.) 25 The ALJ gave little weight to Dr. Massey’s opinion. (AR 30.) The Court finds that the 26 ALJ’s reasons in rejecting Dr. Massey’s opinion are not specific legitimate reasons supported by 27 1 substantial evidence.1 See Lester, 81 F.3d at 830. 2 First, the ALJ found that Dr. Massey made no observations about muscle weakness. It is 3 not clear, however, why this is relevant to Dr. Massey’s findings, as there is no suggestion that Dr. 4 Massey’s findings were related to muscle weakness. Rather, Dr. Massey’s opinions were based on 5 Plaintiff’s suffering from pain. For example, in his June 2015 opinion, Dr. Massey explained that 6 Plaintiff had constant pain that was variable in intensity, and would be aggravated by bending, 7 carrying, sitting, and standing. (AR 1023.) Likewise, in his October 2016 opinion, Dr. Massey 8 noted that Plaintiff’s limitations of lumbar spine motion were “due to pain.” (AR 616.) He also 9 stated that Plaintiff was receiving care from a pain specialist. (AR 619.) Thus, the fact that Dr. 10 Massey made no observations about muscle weakness is not inconsistent with his opined 11 limitations. See Marshall v. Berryhill, Case No. 16-cv-666-BAS-PCL, 2017 U.S. Dist. LEXIS 12 73756, at *43 n.14 (S.D. Cal. May 12, 2017) (faulting ALJ for failing to “specify how normal 13 muscle strength and full range of joint motion undermine reports of pain related to [the plaintiff’s] 14 chronic pain syndrome or migraines”). 15 Second, the ALJ found that Dr. Massey opined that Plaintiff suffered from the described 16 limitations since February 1995, which would have rendered the claimant unable to work. (AR 17 30, 1026.) Plaintiff, however, continued to work until 2013. (AR 30.) Plaintiff acknowledges 18 this discrepancy, but responds that Dr. Massey was likely explaining that the impairments 19 stemmed from Plaintiff’s 1995 accident. (Pl.’s Mot. at 19.) Plaintiff further notes that Dr. Massey 20 had only treated Plaintiff since June 2014. (Id.; see also AR 1023.) The Court finds that while 21 this appears to be an error, this is not alone a reason to reject Dr. Massey’s opinion entirely. It 22 does not affect or relate to his other medical opinions, as Dr. Massey had only treated Plaintiff 23 starting in June 2014, more than nine years after the February 1995 accident. Dr. Massey’s 24 opinion of the onset date was not dependent on when the limitations started. At most, this would 25 26 1 The ALJ gave great weight to the opinion of Nayyar Masood, M.D., a consultative examiner. (AR 29.) Contrary to Dr. Massey, Dr. Masood opined that Plaintiff could sit for six hours, stand 27 and walk for six hours, and lift, push, and pull thirty pounds occasionally and fifteen pounds 1 be a reason to reject Dr. Massey’s opinion about when the limitations started. 2 Finally, the ALJ found that Dr. Massey’s opinions were “inconsistent with the generally 3 conservative nature of the claimant’s impairments.” (AR 30.) In support, Defendant focuses on 4 the normal findings in the record of full motor strength and normal gait. (Def.’s Opp’n at 3-4.) 5 Again, however, Plaintiff’s full motor strength and normal gait are not necessarily relevant to the 6 limitations described, as those related to pain. An individual can have full motor strength and 7 normal gait, but be unable to sustain or perform certain activities due to pain. 8 Further, the ALJ focused repeatedly on Plaintiff’s “conservative” treatment, but the record 9 clearly demonstrates that Plaintiff’s treatment was not conservative. On June 25, 2014, Dr. 10 Massey observed that Plaintiff’s “treatment to date has been conservative and yet complex,” 11 including “rest, medications, physical therapy, chiropractic, acupuncture [sic] but culminated in a 12 [intradiscal electrothermal therapy].” (AR 920.) After this observation, however, Plaintiff’s 13 treatment included stem cell therapy, as well as eight series of trigger point injections between 14 September 1, 2016 and February 15, 2017. (See AR 834, 920, 1693, 1695, 1697, 1699, 1701, 15 1703, 1705, 1707.) These injections included four trigger point injections on September 1, 2016, 16 four trigger point injections on September 9, 2016, ten trigger point injections on September 26, 17 2016, three trigger point injections on October 11, 2016, twelve trigger point injections on 18 November 29, 2016, twelve trigger point injections on December 6, 2016, ten trigger point 19 injections on December 15, 2016, and ten trigger point injections on February 15, 2017. (AR 20 1693, 1695, 1697, 1699, 1701, 1703, 1705, 1707.) Numerous courts have rejected the argument 21 that trigger point injections are “conservative.” See Birkenstein v. Colvin, Case No. SA CV 12- 22 1525-SP, 2013 U.S. Dist. LEXIS 104636, at *26 (C.D. Cal. July 25, 2013) (“trigger point 23 injections may not be considered conservative”); Christie v. Astrue, Case No. CV 10-3448-PJW, 24 2011 U.S. Dist. LEXIS 105918, at *10-11 (C.D. Cal. Sept. 16, 2011) (finding that while 25 treatments such as trigger point injections “may not be the most aggressive available, like surgery, 26 for example, they are certainly not what the Court would categorize as conservative”); Brown v. 27 Astrue, Case No. CV 12-1902-SP, 2013 U.S. Dist. LEXIS 3544, at *28-29 (C.D. Cal. Jan. 9, 2013) 1 Appx. 662, 664 (9th Cir. 2010) (suggesting that treatments such as occipital nerve blocks and 2 trigger point injections did not constitute conservative treatment). As Plaintiff’s treatment cannot 3 be deemed conservative, the Court finds that this is not a specific legitimate reason for giving Dr. 4 Massay’s opinion little weight. 5 Accordingly, the Court finds that the ALJ erred in giving Dr. Massay’s opinion little 6 weight because he failed to identify any specific legitimate reasons. 7 ii. State Agency Doctors 8 Plaintiff also challenges the ALJ’s decision to give little weight to the opinions of the state 9 agency doctors. (Pl.’s Mot. at 19.) “The Commissioner may reject the opinion of a non- 10 examining physician by reference to specific evidence in the medical record.” Sousa v. Callahan, 11 143 F.3d 1240, 1244 (9th Cir. 1998). 12 Dr. I. Ocrant opined that Plaintiff would be able to stand and/or walk for three hours in an 13 eight-hour workday; occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; 14 and never climb ladders, ropes, and scaffolds. (AR 366-68.) On reconsideration, Dr. H. Samplay 15 concurred with these findings. (AR 383-85.) The ALJ gave little weight to these opinions 16 because they were “inconsistent with the generally conservative nature of the claimant’s 17 impairments,” and also “inconsistent with treatment records from August 2016[, which] detail that 18 the claimant’s gait was stable, coordinated, and smooth.” (AR 29.) 19 As with Dr. Massey, the ALJ’s finding that these opinions were inconsistent with the 20 “conservative” nature of the claimant’s impairments is not based on specific evidence in the 21 record. Further, the finding that Plaintiff’s gait was stable, coordinated, and smooth does not 22 necessarily contradict the state agency’s doctors findings. Dr. Samplay, for example, specifically 23 identified pain in his explanation of findings. (AR 385.) Findings of gait also do not address the 24 state agency doctors’ opinions about ability to stand, walk, balance, crawl, and climb throughout 25 an eight-hour workday. See Stradley v. Berryhill, Case No. 1:16-cv-423-EJL-CWD, 2017 U.S. 26 Dist. LEXIS 191080, at *14 (D. Idaho Oct. 30, 2017) (“gait simply refers to the manner of 27 walking, not the ability to sustain walking for a period of time over the course of an 8-hour work 1 C. Ability to Concentrate 2 Finally, Plaintiff argues that the ALJ failed to properly address Plaintiff’s issues with 3 concentration. (Pl.’s Mot. at 20-21.) In finding that Plaintiff had only “mild limitation” in 4 concentrating, persisting, or maintaining pace, the ALJ pointed to Plaintiff’s ability to pay bills, 5 count change, handle a savings account, and use a checkbook/money orders. (AR 25.) The ALJ 6 also noted that although Plaintiff testified that he was frequently distracted due to pain, he was still 7 able to participate in a weekly podcast.2 (AR 25.) Further, the ALJ specifically rejected 8 Plaintiff’s reporting of his concentration problems, noting that this was inconsistent with 9 Plaintiff’s research on the Sasquatch (the subject of the weekly podcast), his report that he worked 10 on patents, and caring for his son. (AR 31; see also AR 265-66, 946, 1010.) 11 Plaintiff does not explain why these reasons do not support the ALJ’s findings. Instead, 12 Plaintiff only points to other parts of the record that demonstrate Plaintiff’s struggles with 13 concentration. (Pl.’s Mot. at 21; Pl.’s Reply at 8.) The Court, however, must “affirm the ALJ’s 14 findings of fact if they are supported by substantial evidence and if the ALJ’s decision was free of 15 legal error. Where evidence is susceptible to more than one rational interpretation, it is the ALJ’s 16 conclusion that must be upheld.” Shaibi v. Berryhill, 883 F.3d 1102, 1108 (9th Cir. 2018). While 17 Plaintiff “argues that the ALJ could have come to a different conclusion,” he fails to demonstrate 18 “that the ALJ’s interpretation of the available evidence was not rational.” Id. Thus, the Court 19 finds that the ALJ did not err in excluding concentration issues from the RFC. 20 IV. CONCLUSION 21 For the reasons set forth above, the Court GRANTS Plaintiff’s motion for summary 22 judgment and DENIES Defendant’s cross-motion for summary judgment. 23 Because it is not clear from the record that the ALJ would be required to find Plaintiff 24 disabled if all the evidence was properly evaluated, remand is appropriate. On remand, the ALJ 25 must properly evaluate the medical evidence based on applicable law and consistent with this 26 /// 27 1 opinion. 2 IT IS SO ORDERED. 3 Dated: February 10, 2020 . 4 oad A. WESTMORE 5 United States Magistrate Judge 6 7 8 9 10 11 12 © 15 16 & = 17 Z 18 19 20 21 22 23 24 25 26 27 28