Stephanie Medina v. Nancy A. Berryhill

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 STEPHANIE M.,1 Case No. 2:18-cv-09183-GJS

12 Plaintiff

13 v. MEMORANDUM OPINION AND

ORDER

14 ANDREW M. SAUL, Commissioner

of Social Security,2

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Defendant.

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18 I. PROCEDURAL HISTORY

19 Plaintiff Stephanie M. (“Plaintiff”) filed a complaint seeking review of the

20 decision of the Commissioner of Social Security denying her application for

21 Disability Insurance Benefits (“DIB”). The parties filed consents to proceed before

22 the undersigned United States Magistrate Judge [Dkts. 10 and 12] and briefs

23 addressing disputed issues in the case [Dkt. 20 (“Pl. Br.”) and Dkt. 24 (“Def. Br.”)].

24 The matter is now ready for decision. For the reasons discussed below, the Court

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26 1 In the interest of privacy, this Order uses only the first name and the initial of

the last name of the non-governmental party.

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2 Andrew M. Saul, now Commissioner of the Social Security Administration, is

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substituted as defendant for Nancy A. Berryhill. See Fed. R. Civ. P. 25(d).

1 finds that this matter should be affirmed.

2 II. ADMINISTRATIVE DECISION UNDER REVIEW

3 On December 9, 2014, Plaintiff filed her application for DIB alleging

4 disability based primarily on back pain, diabetic neuropathy, and vision problems.

5 [Dkt. 15, Administrative Record (“AR”).] Plaintiff’s application was denied

6 initially, on reconsideration, and after a hearing and supplemental hearing before

7 Administrative Law Judge (“ALJ”) Diana Coburn [AR 1-6, 15-26.]

8 Applying the five-step sequential evaluation process, the ALJ found that

9 Plaintiff was not disabled. See 20 C.F.R. §§ 416.920(b)-(g)(1). At step one, the

10 ALJ found that Plaintiff had not engaged in substantial gainful activity since April

11 15, 2014, the alleged onset date. [AR 18.] At step two, the ALJ found that Plaintiff

12 had the following severe impairments: degenerative disc disease of the lumbar

13 spine, neuropathy, diabetes mellitus, type II, adhesive capsulitis, rotator cuff

14 syndrome, mild acromioclavicular osteophytosis of the left shoulder, and obesity.

15 [AR 18.] The ALJ determined at step three that Plaintiff did not have an impairment

16 or combination of impairments that meets or medically equals the severity of one of

17 the listed impairments. [AR 19.]

18 Next, the ALJ found that Plaintiff had the residual functional capacity

19 (“RFC”) to perform a limited range of light work. [AR 20.] Applying this RFC, the

20 ALJ found at step four that Plaintiff could return to her past relevant work as a sales

21 representative or photographer and thus she is not disabled. [AR 25]. Plaintiff

22 sought review of the ALJ’s decision, which the Appeals Council denied, making the

23 ALJ’s decision the Commissioner’s final decision. [AR 1-6.] This appeal followed.

24 III. GOVERNING STANDARD

25 Under 42 U.S.C. § 405(g), the Court reviews the Commissioner’s decision to

26 determine if: (1) the Commissioner’s findings are supported by substantial evidence;

27 and (2) the Commissioner used correct legal standards. See Carmickle v. Comm’r

28 Soc. Sec. Admin., 533 F.3d 1155, 1159 (9th Cir. 2008); Brewes v. Comm’r Soc. Sec.

1 Admin., 682 F.3d 1157, 1161 (9th Cir. 2012) (internal citation omitted).

2 “Substantial evidence is more than a mere scintilla but less than a preponderance; it

3 is such relevant evidence as a reasonable mind might accept as adequate to support a

4 conclusion.” Gutierrez v. Comm’r of Soc. Sec., 740 F.3d 519, 522-23 (9th Cir.

5 2014) (internal citations omitted).

6 The Court will uphold the Commissioner’s decision when the evidence is

7 susceptible to more than one rational interpretation. See Molina v. Astrue, 674 F.3d

8 1104, 1110 (9th Cir. 2012). However, the Court may review only the reasons stated

9 by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he

10 did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). The Court will not

11 reverse the Commissioner’s decision if it is based on harmless error, which exists if

12 the error is “inconsequential to the ultimate nondisability determination, or if despite

13 the legal error, the agency’s path may reasonably be discerned.” Brown-Hunter v.

14 Colvin, 806 F.3d 487, 492 (9th Cir. 2015) (internal quotation marks and citations

15 omitted).

IV. DISCUSSION

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17 Plaintiff contends that the ALJ erred by failing to properly consider the

18 opinion of her treating physician—Jesus Arena, M.D. [Pl’s Br. 2-4.] The Court

19 finds that a remand or reversal on this basis is not warranted.

20 A. Legal Standard

21 “There are three types of medical opinions in social security cases: those

22 from treating physicians, examining physicians, and non-examining physicians.”

23 Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 692 (9th Cir. 2009); see also

24 20 C.F.R. § 404.1527. In general, a treating physician’s opinion is entitled to more

25 weight than an examining physician’s opinion and an examining physician’s opinion

26 is entitled to more weight than a nonexamining physician’s opinion. See Lester v.

27 Chater, 81 F.3d 821, 830 (9th Cir. 1995). “The medical opinion of a claimant’s

28 treating physician is given ‘controlling weight’ so long as it ‘is well-supported by

1 medically acceptable clinical and laboratory diagnostic techniques and is not

2 inconsistent with the other substantial evidence in [the] case record.’” Trevizo v.

3 Berryhill, 871 F.3d 664, 675 (9th Cir. 2017) (quoting 20 C.F.R. § 404.1527(c)(2)).3

4 An ALJ must provide clear and convincing reasons supported by substantial

5 evidence to reject the uncontradicted opinion of a treating or examining physician.

6 Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at

7 830-31). Where such an opinion is contradicted, however, an ALJ may reject it only

8 by stating specific and legitimate reasons supported by substantial evidence.

9 Bayliss, 427 F.3d at 1216; Trevizo, 871 F.3d at 675. The ALJ can satisfy this

10 standard by “setting out a detailed and thorough summary of the facts and

11 conflicting clinical evidence, stating [her] interpretation thereof, and making

12 findings.” Garrison v. Colvin, 759 F.3d 995, 1012 (9th Cir. 2014) (quoting Reddick

13 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998)); see also 20 C.F.R. § 404.1527(c)(2)-

14 (6) (when a treating physician’s opinion is not given controlling weight, factors such

15 as the nature, extent, and length of the treatment relationship, the frequency of

16 examinations, the specialization of the physician, and whether the physician’s

17 opinion is supported by and consistent with the record should be considered in

18 determining the weight to give the opinion).

19 B. Dr. Arenas

20 In April 2013, Plaintiff began treating with her primary care physician, Dr.

21 Arenas for complaints of low back pain and numbness in her feet and hands. [AR

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3 For claims filed on or after March 27, 2017, the opinions of treating

24 physicians are not given deference over the opinions of non-treating physicians. See

20 C.F.R. § 404.1520c (providing that the Social Security Administration “will not

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defer or give any specific evidentiary weight, including controlling weight, to any

26 medical opinion(s) or prior administrative medical finding(s), including those from

your medical sources”); 81 Fed. Reg. 62560, at 62573-74 (Sept. 9, 2016). Because

27 Plaintiff’s claim for DIB was filed before March 27, 2017, the medical evidence is

evaluated pursuant to the treating physician rule discussed above. See 20 C.F.R. §

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404.1527.

1 493.] In a series of follow-up appointments, Plaintiff continued to complain of back

2 pain, numbness and shoulder pain. [AR 488, 478, 470.] Dr. Arenas referred

3 Plaintiff for an MRI which revealed multilevel disc bulges with mild foraminal

4 narrowing. [AR 472-473.] In October 2014, Plaintiff was again referred for an

5 MRI. Following the results of that MRI scan, the neurologist advised Plaintiff to

6 continue “conservative management and control of her diabetes under [Dr. Arenas’]

7 supervision.” [AR 423.] The neurologist additionally recommended that Plaintiff

8 may benefit from physical therapy if she continues to have back pain. [AR 423.] In

9 June 2017, Plaintiff continued to complain of very limited and painful range of

10 motion in her left shoulder, however the range of motion in her fingers was normal.

11 [AR 641.] Dr. Arenas ordered Plaintiff to follow up in 3 months and directed

12 Plaintiff to do “ROM” exercises for left her shoulder. [AR 641.]

13 In a medical impairment questionnaire dated June 14, 2017, Dr. Arenas stated

14 that Plaintiff was limited in her ability to complete physical activities. [AR 629-

15 631.] Dr. Arenas’ report opined that Plaintiff can use her left upper extremity to lift

16 and carry less than ten pounds both frequently and occasionally, can stand and walk

17 for approximately two hours during an eight-hour workday, and can sit for

18 approximately two hours during an eight-hour workday. [AR 629.] The treating

19 physician further opined that Plaintiff is restricted in the use of her left upper

20 extremity for fine and gross manipulation and she would be expected to miss more

21 than three days of work per month as a result of her impairments or treatment. [AR

22 630-631.] Dr. Arenas explained that these limitations are attributable to Plaintiff’s

23 diabetic polyneuropathy and left shoulder adhesive capsulitis. [Id.]

24 Dr. Arenas continued to treat Plaintiff for her diabetes, left shoulder pain and

25 the symptoms related to her diabetic polyneuropathy through the date of the

26 administrative hearing. [AR 636-644.] Dr. Arenas generally recorded Plaintiff’s

27 steady history of back pain and numbness. Overall, throughout Plaintiff’s treatment,

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1 Dr. Arenas made only minor adjustments to Plaintiff’s medications and did not

2 prescribe any special treatment beyond medication, referrals, and at-home exercises.

3 The ALJ discussed Dr. Arenas’ opinion as follows:

4 I give little weight to the opinion of treating physician, Dr. Arenas, who provided

5 a medical source statement in June of 2017, stating the claimant can lift and carry

6 less than 10 pounds frequently and occasionally, can stand and walk for two hours

7 in an eight-hour day, must change positions hourly, can occasionally twist, stoop,

8 and climb stairs, but can never crouch or climb stairs, has limitations in reaching,

9 handling, fingering, feeling, pushing, and pulling, should avoid extreme

10 temperatures and hazards, and can be expected to be absent from work more than

11 three times a month. I give little weight to this opinion because it overstates the

12 claimant’s functional limitations without objective support from the record; for

13 example, Dr. Arenas indicated absenteeism more than three times a month without

14 an explanation, and also stated manipulative limitations without specifying the

15 degree of limitation (e.g., never, occasionally, frequently, etc.). Additionally, it is

16 unclear whether Dr. Arenas’ opinion accounted for the claimant’s non-compliance

17 with medication. [AR 25.]

18 C. Analysis

19 The ALJ gave “little weight” to the work restrictions assessed by Dr. Arenas

20 in the medical impairment questionnaire, finding that they were overly restrictive

21 and unsupported by the medical evidence. [AR 24.] Dr. Arenas opined that Plaintiff

22 could lift less than 10 pounds occasionally and she can stand and walk for two hours

23 in an eight-hour day, but she must change positions hourly. [AR 629.] Elsewhere in

24 the record, the consultative physician who examined Plaintiff in May 2017, Dr.

25 Seung Ha Lim, opined that Plaintiff can lift and carry 10 pounds frequently and she

26 can stand, sit, and walk for six hours in an eight-hour work day. [AR 24, 531-534.]

27 As Dr. Arenas’ findings conflicted with the opinions of other doctors, the ALJ

28 needed to provide specific and legitimate reasons supported by substantial evidence

1 in the record to reject his assessment of Plaintiff’s limitations. See Bayliss, 427 F.3d

2 at 1216. The ALJ did so here.

3 The ALJ found Dr. Arenas’ treatment records lacked significant, objective

4 evidence to support the extreme work-related limitations assessed. This was a

5 legitimate reason to accord Dr. Arenas’ opinion less weight. If a treating doctor’s

6 “reports and assessments . . . contain no objective evidence to support his

7 diagnoses,” the opinion need not be accepted. Tonapetyan v. Halter, 242 F.3d 1144,

8 1149 (9th Cir. 2001). “An ALJ may discredit treating physicians’ opinions that are

9 conclusory, brief, and unsupported by the record as a whole, or by objective medical

10 findings.” See Batson v. Comm’r, 359 F.3d 1190, 1195 (9th Cir. 2004) (citation

11 omitted). Dr. Arena’s findings with respect to Plaintiff’s absenteeism are brief and

12 conclusory, and not supported by objective evidence on its face. An examination of

13 Dr. Arenas’ treating record does not change that assessment.

14 The record before the ALJ included progress notes from office visits with Dr.

15 Arenas from April 1, 2013 to September 20, 2017. Throughout the majority of

16 those visits, Plaintiff presented with complaints of pain on motion with decreased

17 range of motion in her left shoulder and tingling and numbness of the hands and feet

18 related to her diabetic polyneuropathy. [See e.g. AR 444, 455, 464, 479, 493, 517.]

19 Despite what appears to be consistent aggravation and pain, in assessing Plaintiff’s

20 ability to do work related activities, Dr. Arenas’ opined that Plaintiff would arguably

21 be able to work on some days, but she would be absent from work more than three

22 times a month. [AR 631]. Dr. Arenas did not point to or identify any clinical

23 findings, or otherwise explain what it was that led him to associate Plaintiff’s daily

24 shoulder limitations and numbness with excessive absenteeism. Moreover, the

25 supporting treatment records do not demonstrate a condition that would cause

26 Plaintiff to be regularly absent from work. Rather, Plaintiff appears to suffer from a

27 chronic and steady condition that limits her ability to reach and feel on her left side.

28 Given the nature of her condition, there is nothing in the treatment records that

1 would allow the ALJ to draw the inference that the steady shoulder pain and the

2 numbness Plaintiff experiences daily would intermittently prevent her from

3 attending work. Conversely, Plaintiff’s treatment records did reflect one instance

4 where Plaintiff’s condition rendered her unable to get out of bed (and presumably

5 unable to attend work), however Plaintiff explained that was due to sadness and

6 fatigue she was experiencing following her sister’s death a few months earlier. [AR

7 578.]

8 Thus, absent an explicit explanation linking Plaintiff’s consistent pain with

9 her occasional inability to attend work, the ALJ reasonably rejected Dr. Arenas’

10 conclusory opinion with respect to Plaintiff’s absenteeism. See e.g. Thomas v.

11 Barnhart, 278 F.3d 947, 957 (9th Cir. 2002) (an ALJ may reject a treating

12 physician’s opinion if it is “brief, conclusory, and inadequately supported by clinical

13 findings”); Carmickle v. Comm’r of Soc. [Sec.] Sec. Admin., 533 F.3d 1155, 1165

14 (9th Cir. 2008) (an ALJ may discount a medical opinion based on contradictions

15 between the opinion and contemporaneous treatment notes).

16 Second, the ALJ noted that there was no indication whether Dr. Arenas’

17 opinion took into consideration Plaintiff’s admitted failure to take her medication as

18 prescribed. [AR 25.] Throughout the record, Plaintiff admitted that she regularly

19 declined to follow her treatment plan. [See AR 465 (Plaintiff does not want

20 epidural); AR 470 (did not do blood tests); AR 574 (cannot always afford meds,

21 skipping doses); AR 587 (did not buy lidocaine gel); AR 641 (not taking

22 metaformin). At the hearing, Plaintiff further testified that she does not like taking a

23 lot of medications and that she rationed her medications so that they would not lose

24 effectiveness for when she “really need[ed] it.” [AR 77.] However, Plaintiff stated

25 that when she does take her pain medications they provide relief for “about six

26 hours.” [AR 21.] The ALJ was not obligated to fully accept the treating physician’s

27 opinion given that objective medical evidence indicated that Plaintiff was non-

28 compliant with treatment that relieved her symptoms. The Court fails to see how

1 the ALJ could rely on the treating physician’s opinion of Plaintiff’s limitations when

2 Dr. Arenas failed to assess the effectiveness of Plaintiff’s treatment given her

3 repeated non-compliance with her prescribed treatment plan.

4 Finally, Plaintiff contends that the ALJ should have re-contacted Dr. Arenas

5 for clarification before rejecting his opinion as unsupported by clinical findings.

6 (Pl.’s Br. at 4.) An ALJ’s duty to seek additional information from a treating

7 physician is triggered “only when the evidence from the treating medical source is

8 inadequate to make a determination as to the claimant’s disability.” See Thomas,

9 278 F.3d at 958. Here, the ALJ did not make a finding that Dr. Arenas’ opinion was

10 inadequate to make a determination regarding Plaintiff’s disability claim. Rather,

11 the ALJ found that Dr. Arenas’ opinion was unsupported by clinical findings, which

12 is not the same as characterizing it as unclear, ambiguous, or inadequate to make a

13 disability determination. See Bayliss, 427 F.3d at 1217 (finding that a treating

14 physician’s opinion that the ALJ rejected because it was contradicted by clinical

15 notes was not the same as an “ambiguous” or “insufficient” opinion that required the

16 ALJ to recontact the treating psychologist); see also Thomas, 278 F.3d at 958

17 (recognizing that a “contradictory” opinion by a treating physician is not the same as

18 an “inadequate” one). Thus, the ALJ was not required to recontact Dr. Arenas for

19 clarification.

20 In light of the ALJ’s specific findings, as well as the record as a whole, the

21 Court finds that the ALJ provided specific and legitimate reasons, supported by

22 substantial evidence, to attribute little weight to the conclusions of Dr. Arenas. The

23 Ninth Circuit has long held that “the ALJ need not accept a treating physician’s

24 opinion which is ‘brief and conclusory in form with little in the way of clinical

25 findings to support [its] conclusion.’” Magallanes v. Bowen, 881 F.2d 747, 751 (9th

26 Cir. 1989); see also Burrell v. Colvin, 775 F.3d 1133, 1140 (9th Cir. 2014) (“[A]n

27 ALJ may discredit treating physicians’ opinions that are conclusory, brief, and

28 unsupported by the record as a whole or by objective medical findings.” (internal

1 |] quotation, emphasis, and citations omitted)). This issue, therefore, does not warrant

2 || remand.

3 Vv. CONCLUSION

4 For all of the foregoing reasons, IT IS ORDERED that the decision of the

5 |} Commissioner finding Plaintiff not disabled is AFFIRMED.

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7 IT IS SO ORDERED.

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9 |} DATED: November 25, 2019

10 UNITED STATES MAGISTRATE JUDGE

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