Whynaught v. Colvin ( 2020 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 9 TODD A. WHYNAUGHT, Case No.: 16cv01574 JAH-NLS 10 Plaintiff, ORDER DENYING PLAINTIFF’S 11 v. MOTION FOR SUMMARY JUDGMENTAND GRANTING IN 12 CAROLYN W. COLVIN, Commissioner DEFENDANT’S CROSS-MOTION of Social Security, 13 FOR SUMMARY JUDGMENT Defendant. [Doc. Nos. 14, 15] 14 15 16 17 INTRODUCTION 18 Plaintiff seeks review of the Social Security Commissioner’s final decision denying 19 benefits. After a thorough review of the parties’ submissions and for the reasons set forth 20 below, the Court DENIES Plaintiff’s motion for summary judgment and GRANTS 21 Defendant’s cross-motion for summary judgment. 22 BACKGROUND 23 Plaintiff was born on December 21, 1961 and was 52 years of age at the time of the 24 hearing before the Administrative Law Judge (“ALJ”). AR1 at 40, 176. He initially alleged 25 he had been unable to work since November 1, 2006, as a result of a disabling condition 26 27 28 1 but amended the onset date to January 16, 2012 at the hearing. Id. at 56, 176. He filed an 2 application for benefits on January 17, 2012 and an application for supplement security 3 income on January 19, 2012. Id. at 175, 185. The Commissioner denied the claims on 4 August 9, 2012 and denied the claims again upon reconsideration. Id. at 74 – 111. Plaintiff 5 requested a hearing and testified at the hearing on July 17, 2014. Id. at 37, 132. The ALJ 6 issued an unfavorable decision on September 25, 2014. Id. at 21. Plaintiff filed a request 7 for review of the ALJ’s decision and the Appeals Council denied the request. Id. at 1, 15. 8 Plaintiff, appearing through counsel, filed a complaint seeking review of the 9 Commissioner’s final decision denying benefits on June 21, 2016. See Doc. No. 1. 10 Defendant filed an answer and the administrative record on June 30, 2016. See Doc. Nos. 11 11, 12. 12 Thereafter, Plaintiff filed the pending motion for summary judgment and Defendant 13 filed an opposition and cross-motion for summary judgment. See Doc. Nos. 14, 15, 16. 14 Plaintiff filed a reply. See Doc. No. 17. 15 DISCUSSION 16 I. Legal Standards 17 A. Qualifying for Disability Benefits 18 To qualify for disability benefits under the Act, an applicant must show that: (1) he 19 suffers from a medically determinable impairment that can be expected to result in death 20 or that has lasted or can be expected to last for a continuous period of not less than twelve 21 months; and (2) the impairment renders the applicant incapable of performing the work 22 that he previously performed or any other substantially gainful employment that exists in 23 the national economy. See 42 U.S.C. § 423(d)(1)(A), 2(A). An applicant must meet both 24 requirements to be “disabled.” Id. 25 The Secretary of the Social Security Administration has established a five-step 26 sequential evaluation process for determining whether a person is disabled. 20 C.F.R. §§ 27 404.1520, 416.920. Step one determines whether the claimant is engaged in “substantial 28 gainful activity.” If he is, disability benefits are denied. 20 C.F.R. §§ 404.1520(b), 1 416.920(b). If he is not, the decision maker proceeds to step two, which determines 2 whether the claimant has a medically severe impairment or combination of impairments. 3 If the claimant does not have a severe impairment or combination of impairments, the 4 disability claim is denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is 5 severe, the evaluation proceeds to the third step, which determines whether the impairment 6 is equivalent to one of a number of listed impairments that the Secretary acknowledges are 7 so severe as to preclude substantial gainful activity. 20 C.F.R. §§ 404.1520(d); 20 C.F.R. 8 Part 404 Appendix 1 to Subpart P. If the impairment meets or equals one of the listed 9 impairments, the claimant is conclusively presumed to be disabled. If a condition “falls 10 short of the [listing] criterion” a multiple factor analysis is appropriate. Celaya v. Halter, 11 332 F.3d 1177, 1181 (9th Cir. 2003). Of such analysis, “the Secretary shall consider the 12 combined effect of all the individual’s impairments without regard to whether any such 13 impairment, if considered separately, would be of such severity.” Id. at 1182 (quoting 42 14 U.S.C. § 423(d)(2)(B)). If the impairment is not one that is conclusively presumed to be 15 disabling, the evaluation proceeds to the fourth step, which determines whether the 16 impairment prevents the claimant from performing work she has performed in the past. If 17 the claimant cannot perform his previous work, the fifth and final step of the process 18 determines whether he is able to perform other work in the national economy considering 19 his age, education, and work experience. The claimant is entitled to disability benefits only 20 if he is not able to perform other work. 20 C.F.R. §§ 404.1520(g)(1), 416.920(g)(1). 21 B. Judicial Review of an ALJ’s Decision 22 Section 405(g) of the Act allows unsuccessful applicants to seek judicial review of 23 a final agency decision of the Commissioner. 42 U.S.C. § 405(g). The scope of judicial 24 review is limited. The Commissioner’s denial of benefits “will be disturbed only if it is 25 not supported by substantial evidence or is based on legal error.” Brawner v. Secretary of 26 Health and Human Servs., 839 F.2d 432, 433 (9th Cir. 1988) (citing Green v. Heckler, 803 27 F.2d 528, 529 (9th Cir. 1986)). 28 1 Substantial evidence means “more than a mere scintilla” but less than a 2 preponderance. Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997) (citation omitted). 3 “[I]t is such relevant evidence as a reasonable mind might accept as adequate to support a 4 conclusion.” Id. (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)). The 5 Court must consider the record as a whole, weighing both the evidence that supports and 6 detracts from the Commissioner’s conclusions. Desrosiers v. Secretary of Health & 7 Human Servs., 846 F.2d 573, 576 (9th Cir. 1988) (citing Jones v. Heckler, 760 F.2d 993, 8 995 (9th Cir. 1985)). If the evidence supports more than one rational interpretation, the 9 Court must uphold the ALJ’s decision. Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984) 10 (citing Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 11 1984)). When the evidence is inconclusive, “questions of credibility and resolution of 12 conflicts in the testimony are functions solely of the Secretary.” Sample v. Schweiker, 694 13 F.2d 639, 642 (9th Cir. 1982). 14 However, even if the reviewing court finds that substantial evidence supports the 15 ALJ’s conclusions, the Court must set aside the decision if the ALJ failed to apply the 16 proper legal standards in weighing the evidence and reaching a decision. See Benitez v. 17 Califano, 573 F.2d 653, 655 (9th Cir. 1978). Section 405(g) permits a court to enter a 18 judgment affirming, modifying, or reversing the Commissioner’s decision. 42 U.S.C. § 19 405(g). The reviewing court may also remand the matter to the Social Security 20 Administrator for further proceedings. Id. “If additional proceedings can remedy defects 21 in the original administrative proceeding, a social security case should be remanded.” 22 Marcia v. Sullivan, 900 F.2d 172, 176 (9th Cir. 1990) (quoting Lewin v. Schweiker, 654 23 F.2d 631, 635 (9th Cir. 1981)). 24 II. The ALJ’s Decision 25 In the present case, the ALJ found Plaintiff has not engaged in substantial gainful 26 activity since January 16, 2012 and has severe impairments, including spinal stenosis of 27 the lumbar region with radiculopathy (left leg pain), disorder of the left hand, status post- 28 surgery to the left thumb, and history of right ankle fracture and status post right ankle 1 surgery. AR at 23. The ALJ determined Plaintiff does not have an impairment or 2 combination of impairments that meet or are medically equal in severity to one of the listed 3 impairments in 20 CFR Part 404 Subpart P, Appendix 1. Id. at 25. 4 The ALJ found Plaintiff has a residual functional capacity 5 to lift or carry no more than 20 pounds occasionally and 10 pounds frequently; push or pull no more than 20 pounds occasionally and 10 pounds frequently; stand or 6 walk for a total of 6 hours out of an 8-hour workday, with no prolonged walking 7 greater than 30 minutes at a time with the use of a cane; sit for a total of 6 hours out of an 8-hour workday, with the opportunity to stand and stretch, not to exceed 10% 8 of the day; occasional handling and fingering with the left (nondominant) hand but 9 without limit to the right (dominant) hand; no climbing ladders, ropes or scaffolds; no exposure to work hazards (e.g. unprotected heights, operating fast or dangerous 10 machinery or driving commercial vehicles). 11 Id. Additionally, the ALJ found Plaintiff’s statements concerning the intensity, 12 persistence and limiting effects of his symptoms not entirely credible because they were 13 “not borne out in his description of his daily activities”, the objective evidence does not 14 support the degree alleged, Plaintiff had not received the type of medical treatment one 15 would expect for a totally disabled individual, and the objective medical evidence showed 16 Plaintiff’s medications were relatively effective in controlling his symptoms. Id. at 25, 26, 17 27. 18 The ALJ gave little weight to the opinion of treating physician Dr. Cynthia 19 McKinney, some weight to the opinion of consulting physician Dr. Robert MacArthur and 20 significant weight to the opinion of the State agency medical consultant assessment dated 21 June 19, 2013. Id. at 28. 22 The ALJ determined Plaintiff was unable to perform his past relevant work but there 23 are jobs in the national economy in significant numbers that he can perform. Id. 28, 29. 24 Ultimately, the ALJ concluded Plaintiff has not been under a disability as defined by the 25 Act from June 16, 2012. Id. at 30. 26 III. Analysis 27 Plaintiff argues the ALJ erred in assessing the opinion of Plaintiff’s treating 28 physician Dr. Kinney. “[A]s a general rule, more weight should be given to the opinion of 1 a treating source than to the opinion of doctors who do not treat the claimant.” Benton v. 2 Barnhart, 331 F.3d 1030, 1036 (9th Cir. 2003) (quoting Lester v. Chater, 81 F.3d 821, 830 3 (9th Cir. 1995)). Where the treating doctor’s opinion is not contradicted by another doctor, 4 it may be rejected only for “clear and convincing” reasons supported by substantial 5 evidence in the record. Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998). Even if the 6 treating doctor’s opinion is contradicted by another doctor, the ALJ may not reject this 7 opinion without providing “specific and legitimate reasons” supported by substantial 8 evidence in the record. Id. The ALJ can “meet this burden by setting out a detailed and 9 thorough summary of the facts and conflicting clinical evidence, stating his interpretation 10 thereof, and making findings.” Magallanes v. Secretary of Health and Human Services, 11 881 F.2d 747, 751 (9th Cir. 1989). Where the opinion of the claimant’s treating physician 12 is contradicted, and the opinion of a non-treating source is based on independent clinical 13 findings that differ from those of the treating physician, the opinion of the non-treating 14 source may itself be substantial evidence. Andrews, 53 F.3d at 1041. In addition, the ALJ 15 need not accept the opinion of any physician, including a treating physician, if that opinion 16 is brief, conclusory, and inadequately supported by clinical findings. Matney v. Sullivan, 17 981 F.2d 1016, 1019 (9th Cir. 1992). 18 Plaintiff contends the ALJ’s presents four reasons for rejecting his treating doctor’s 19 opinion: (1) the opinion is unsubstantiated by objective signs, (2) the opinion is inconsistent 20 with the course of treatment. (3) the opinion is undermined by Plaintiff’s daily activities 21 and (4) the opinion is inconsistent with the opinion of the consultative examiner Dr. Robert 22 MacArthur. 23 Plaintiff argues the ALJ’s assertion that his treating doctor’s opinion is not 24 substantiated by objective signs is false and has been rejected by the Ninth Circuit. He 25 further argues the ALJ’s determination that the opinion is inconsistent is not applicable 26 here because the records demonstrate he received numerous epidural steroid injections 27 during the period under consideration, he takes Vicodin and Morphine and, even though, 28 he was deemed not a surgical candidate, he was evaluated for surgical intervention due to 1 his pain. Plaintiff maintains this is not conservative treatment and contends the ALJ’s 2 rejection is premised on the ALJ’s lay opinion as to what constitutes conservative treatment 3 which is not supported by any medical opinion. 4 Plaintiff maintains Dr. McKinney limited him to sitting two hours total, twenty 5 minutes at a time, and stated that he requires the ability to shift positions every thirty 6 minutes. He maintains these limitations are consistent with his ability to ride a scooter to 7 go shopping and to the doctor’s office and his ability to help his friend as a handyman. 8 Even assuming Dr. MacArthur’s opinion constitutes substantial evidence, Plaintiff 9 argues, the ALJ’s articulated reasons fall short of specific and legitimate. Plaintiff 10 maintains the Court should credit Dr. McKinney’s opinion as true and find Plaintiff 11 disabled. He maintains the record is fully developed and further administrative 12 proceedings would be futile. 13 In opposition, Defendant argues the ALJ properly assessed Dr. McKinney’s opinion. 14 Specifically, Defendant argues the ALJ properly discounted the opinion because it 15 conflicted with the medical evidence, including Dr. McKinney’s own notes in which she 16 writes that Plaintiff’s symptoms were stable or controlled by medication. In addition, 17 Defendant maintains much of Dr. McKinney’s care consisted of providing Plaintiff with 18 refills of his medication. 19 Defendant also argues Plaintiff’s ability to work part-time as a handyman for his 20 friend and others conflicted with Dr. McKinney’s opinion. Additionally, Defendant 21 maintains Dr. MacArthur opined that Plaintiff was capable of performing a range of 22 medium work and Dr. N. Tsoulos, a State agency physician, reviewed Plaintiff’s records 23 and opined that he was capable of performing a range of light work. Defendant contends 24 these opinions constitute substantial evidence, and the ALJ was entitled to rely on them. 25 In reply, Plaintiff argues Defendant’s cherry picking of the record is not germane to 26 the disposition of this case. 27 In the written decision, the ALJ gave little weight to Dr. McKinney’s opinion 28 because the functional limits of the opinion were too extreme and unsubstantiated by 1 objective signs and symptoms from treating records and were inconsistent with the course 2 of treatment for chronic pain. The ALJ maintained that Plaintiff’s treatment, aside from 3 the surgeries to his left thumb, were conservative. The ALJ further maintained the limits 4 provided by Dr. McKinney were undermined by Plaintiff’s daily activities, and specifically 5 pointed to his ability to ride a scooter to shop and make doctor appointments as well as his 6 demonstrated reliability as a handyman. The ALJ also found the opinion was inconsistent 7 with the findings and opinions of Dr. MacArthur, who determined Plaintiff could do a 8 significant range of medium exertional work after performing an evaluation of Plaintiff. 9 As required, the ALJ provided a detailed and thorough summary of the facts and 10 evidence and an interpretation of the evidence to support the findings. Plaintiff 11 demonstrates the ALJ’s determination that Plaintiff’s treatment was conservative is not a 12 legitimate reason to support rejecting his treating doctor’s opinion.2 However, the ALJ’s 13 remaining reasons for rejecting the opinion are supported by evidence of record. Plaintiff 14 disagrees with the ALJ’s interpretation and findings and points to evidence he believes 15 supports his doctor’s opinion. Where, as here, the evidence is open to more than one 16 rational interpretation and the ALJ's findings are supported by substantial evidence, the 17 ALJ’s decision must be upheld. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). 18 CONCLUSION AND ORDER 19 Based on the foregoing, IT IS HEREBY ORDERED: 20 1. The joint motion for a decision (Doc. No. 21) is GRANTED; 21 2. Plaintiff’s motion for summary judgment (Doc. No. 14) is DENIED; 22 3. Defendant’s cross-motion for summary judgment (Doc. No. 15) is GRANTED; 23 // 24 // 25 26 27 2 Plaintiff cites cases in which the court finds similar treatment that he received was not properly described as conservative, including, Christie v. Astrue, 2011 WL 4368189, at *4 (C.D. Cal. 2011) Yang 28 1 4. The Clerk of Court shall enter judgment accordingly. 2 ||DATED: November 19, 2020 4 JOHW A. HOUSTON 5 Uny ed States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28