Kathy Graff v. Nancy A. Berryhill

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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11 KATHY G.,1 Case No. 5:18-cv-02489-JC

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Plaintiff, MEMORANDUM OPINION

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v.

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15 ANDREW SAUL,2 Commissioner

of Social Security Administration,

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Defendant.

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18 I. SUMMARY

19 On November 27, 2018, plaintiff Kathy G. filed a Complaint seeking review

20 of the Commissioner of Social Security’s denial of plaintiff’s application for

21 benefits. The parties have consented to proceed before the undersigned United

22 States Magistrate Judge.

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1Plaintiff’s name is partially redacted to protect her privacy in compliance with Federal

25 Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court

Administration and Case Management of the Judicial Conference of the United States.

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27 2Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Commissioner Andrew

Saul is hereby substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this

28 action.

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1 This matter is before the Court on the parties’ cross motions for summary

2 judgment, respectively (“Plaintiff’s Motion”) and (“Defendant’s Motion”)

3 (collectively “Motions”). The Court has taken the Motions under submission

4 without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15; November 28, 2018

5 Case Management Order ¶ 5.

6 Based on the record as a whole and the applicable law, the decision of the

7 Commissioner is AFFIRMED. The findings of the Administrative Law Judge

8 (“ALJ”) are supported by substantial evidence and are free from material error.

9 II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE

10 DECISION

11 On November 20, 2014, plaintiff filed an application for Disability

12 Insurance Benefits, alleging disability beginning on May 9, 2014 due to a

13 herniated disc in her neck at C5-7; a pinched nerve in her neck; narrowing of the

14 spine; constant numbness and pain in her left arm; occasional numbness and pain

15 in her chest, right arm and left shoulder blade; headaches; vertigo; and anxiety.

16 (Administrative Record (“AR”) 230, 247). The ALJ examined the medical record

17 and heard testimony from plaintiff (who was represented by counsel) and a

18 vocational expert. (AR 106-29).

19 On August 23, 2017, the ALJ determined that plaintiff was not disabled

20 through the date of the decision. (AR 81-100). Specifically, the ALJ found:

21 (1) plaintiff suffered from the following severe impairments: right shoulder tear

22 and tendinosis; left shoulder tear and tendinosis; cervical spine degenerative disc

23 disease; lumbar spine degenerative disc disease; and left elbow epicondylitis (AR

24 83); (2) plaintiff’s impairments, considered individually or in combination, did not

25 meet or medically equal a listed impairment (AR 87); (3) plaintiff retained the

26 residual functional capacity to perform light work (20 C.F.R. § 404.1567(b)) with

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1 additional limitations3 (AR 87-88); (4) plaintiff could not perform any past

2 relevant work (AR 98-99); (5) there are jobs that exist in significant numbers in

3 the national economy that plaintiff could perform, specifically Receptionist and

4 Appointment Clerk (AR 99-100); and (6) plaintiff’s statements regarding the

5 intensity, persistence, and limiting effects of her subjective symptoms were not

6 entirely consistent with the medical evidence and other evidence in the record (AR

7 90-91).

8 On October 17, 2018, the Appeals Council denied plaintiff’s application for

9 review.4 (AR 1-7).

10 III. APPLICABLE LEGAL STANDARDS

11 A. Administrative Evaluation of Disability Claims

12 To qualify for disability benefits, a claimant must show that she is unable

13 “to engage in any substantial gainful activity by reason of any medically

14 determinable physical or mental impairment which can be expected to result in

15 death or which has lasted or can be expected to last for a continuous period of not

16 less than 12 months.” Molina v. Astrue, 674 F.3d 1104, 1110 (9th Cir. 2012)

17 (quoting 42 U.S.C. § 423(d)(1)(A)) (internal quotation marks omitted); 20 C.F.R.

18 § 404.1505(a). To be considered disabled, a claimant must have an impairment of

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20 3The ALJ determined that plaintiff could (i) never climb ladders, ropes, or scaffolds;

21 (ii) occasionally climb ramps or stairs; (iii) occasionally balance, stoop, kneel, crouch, and crawl;

(iv) occasionally reach overhead with her bilateral upper extremities; (v) occasionally handle and

22 finger with her left upper extremity; and (vi) never have exposure to unprotected heights and

moving mechanical parts. (AR 87-88).

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24 4The Appeals Council received two additional exhibits from plaintiff—the Request for

Review received on October 17, 2017 and the Representative Brief, dated October 10, 2018 –

25 which it made part of the record (AR 6), and which the Court must also consider in determining

whether the ALJ’s decision was supported by substantial evidence and free from legal error.

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Brewes v. Commissioner of Social Security Administration, 682 F.3d 1157, 1162-63 (9th Cir.

27 2012). The Appeals Council did not make part of the record plaintiff’s additional submission of

new evidence that did not relate back in time to the period adjudicated by the ALJ and as to

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which plaintiff requested a new application. (AR 6, 13-77).

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1 || such severity that she is incapable of performing work the claimant previously

2 || performed (“past relevant work’) as well as any other “work which exists in the

3 || national economy.” Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing

4} 42 U.S.C. § 423(d)).

5 To assess whether a claimant is disabled, an ALJ is required to use the five-

6 || step sequential evaluation process set forth in Social Security regulations. See

7 || Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th

8 || Cir. 2006) (describing five-step sequential evaluation process) (citing 20 C.F.R.

9 || § 404.1520). The claimant has the burden of proof at steps one through four — 7.e.,

10 || determination of whether the claimant was engaging in substantial gainful activity

11 || (step 1), has a sufficiently severe impairment (step 2), has an impairment or

12 || combination of impairments that meets or medically equals one of the conditions

13 || listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”) (step 3), and

14 || retains the residual functional capacity to perform past relevant work (step 4).

15 || Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citation omitted). The

16 || Commissioner has the burden of proof at step five —i.e., establishing that the

17 || claimant could perform other work in the national economy. Id.

18 B. Federal Court Review of Social Security Disability Decisions

19 A federal court may set aside a denial of benefits only when the

20 || Commissioner’s “final decision” was “based on legal error or not supported by

21 || substantial evidence in the record.” 42 U.S.C. § 405(g); Trevizo v. Berryhill, 871

22 || F.3d 664, 674 (9th Cir. 2017) (citation and quotation marks omitted). The

23 || standard of review in disability cases is “highly deferential.” Rounds v.

24 || Commissioner of Social Security Administration, 807 F.3d 996, 1002 (9th Cir.

25 || 2015) (citation and quotation marks omitted). Thus, an ALJ’s decision must be

26 || upheld if the evidence could reasonably support either affirming or reversing the

27 || decision. Trevizo, 871 F.3d at 674-75 (citations omitted). Even when an ALJ’s

28 || decision contains error, it must be affirmed if the error was harmless. See

1 || Treichler v. Commissioner of Social Security Administration, 775 F.3d 1090,

2 || 1099 (9th Cir. 2014) (ALJ error harmless if (1) inconsequential to the ultimate

3 || nondisability determination; or (2) ALJ’s path may reasonably be discerned

4 || despite the error) (citation and quotation marks omitted).

5 Substantial evidence is “such relevant evidence as a reasonable mind might

6 || accept as adequate to support a conclusion.” Trevizo, 871 F.3d at 674 (defining

7 || “substantial evidence” as “more than a mere scintilla, but less than a

8 || preponderance’) (citation and quotation marks omitted). When determining

9 || whether substantial evidence supports an ALJ’s finding, a court “must consider the

10 || entire record as a whole, weighing both the evidence that supports and the

11 || evidence that detracts from the Commissioner’s conclusion[.]” Garrison v.

12 || Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (citation and quotation marks omitted).

13 Federal courts review only the reasoning the ALJ provided, and may not

14 || affirm the ALJ’s decision “on a ground upon which [the ALJ] did not rely.”

15 || Trevizo, 871 F.3d at 675 (citations omitted). Hence, while an ALJ’s decision need

16 || not be drafted with “ideal clarity,” it must, at a minimum, set forth the ALJ’s

17 || reasoning “in a way that allows for meaningful review.” Brown-Hunter v. Colvin,

18 || 806 F.3d 487, 492 (9th Cir. 2015) (citing Treichler, 775 F.3d at 1099).

19 A reviewing court may not conclude that an error was harmless based on

20 || independent findings gleaned from the administrative record. Brown-Hunter, 806

21 || F.3d at 492 (citations omitted). When a reviewing court cannot confidently

22 || conclude that an error was harmless, a remand for additional investigation or

23 || explanation is generally appropriate. See Marsh v. Colvin, 792 F.3d 1170, 1173

24 | (9th Cir. 2015) (citations omitted).

25] IV. DISCUSSION

26 Plaintiff contends that the ALJ erred in rejecting the opinion of an

27 || examining physician, Dr. E. Thomas Chappell. (Plaintiff's Motion at 5-10). For

28 || the reasons discussed below, remand is not warranted.

1 A. Pertinent Law

2 In Social Security cases, the amount of weight given to medical opinions

3 || generally varies depending on the type of medical professional who provided the

4 || opinions, namely “treating physicians,” “examining physicians,” and

5 || “nonexamining physicians.” 20 C.F.R. §§ 404.1527(c)(1)-(2) & (e), 404.1502,

6 || 404.1513(a); Garrison, 759 F.3d at 1012 (citation and quotation marks omitted).

7 || A treating physician’s opinion is generally given the most weight, and may be

8 | “controlling” if it is “well-supported by medically acceptable clinical and

9 || laboratory diagnostic techniques and is not inconsistent with the other substantial

10 || evidence in [the claimant’s] case record[.]” 20 C.F.R. § 404.1527(c)(2); Revels v.

11 | Berryhill, 874 F.3d 648, 654 (9th Cir. 2017) (citation omitted). In turn, an

12 || examining, but non-treating physician’s opinion is entitled to less weight than a

13 | treating physician’s, but more weight than a nonexamining physician’s opinion.

14 || Garrison, 759 F.3d at 1012 (citation omitted).

15 An ALJ may reject the uncontroverted opinion of an examining physician

16 || by providing “clear and convincing reasons that are supported by substantial

17 || evidence” for doing so. Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)

18 || (citation omitted). Where an examining physician’s opinion is contradicted by

19 || another doctor’s opinion, an ALJ may reject such opinion only “by providing

20 || specific and legitimate reasons that are supported by substantial evidence.”

21 || Garrison, 759 F.3d at 1012 (citation and footnote omitted). In addition, an ALJ

22 || may reject the opinion of any physician, including a treating physician, to the

23 || extent the opinion is “brief, conclusory and inadequately supported by clinical

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26 °The Agency has replaced the rules in § 404.1527 with respect to claims filed on or after

27 || March 27, 2017. 20 C.F.R. § 404.1520c. For claims filed before that date, such as the claims

filed in the instant case, the treating-source rule set forth in § 404.1527 is still applied on review.

28 || See, e.g, Nathan K. v. Saul, 2019 WL 4736974, at *3 n.6 (C.D. Cal. Sept. 27, 2019).

1 findings.” Bray v. Commissioner of Social Security Administration, 554 F.3d

2 1219, 1228 (9th Cir. 2009) (citation omitted).

3 An ALJ may provide “substantial evidence” for rejecting such a medical

4 opinion by “setting out a detailed and thorough summary of the facts and

5 conflicting clinical evidence, stating his interpretation thereof, and making

6 findings.” Garrison, 759 F.3d at 1012 (citing Reddick v. Chater, 157 F.3d 715,

7 725 (9th Cir. 1998)) (quotation marks omitted).

8 B. Pertinent Facts

9 1. Dr. Chappell

10 Dr. Chappell conducted an initial neurosurgical panel qualified medical

11 evaluation of plaintiff on February 24, 2016, in relation to plaintiff’s workers’

12 compensation claim. (AR 686-707). Plaintiff’s chief complaint was sharp pain in

13 her left neck and upper extremities with paresthesias mostly left, bilateral,

14 weakness in her left upper extremity and lateral left leg numbness and

15 paresthesias. (AR 687). Physical examination findings included diffuse

16 tenderness in the paraspinous muscles of the cervical and upper thoracic spine, as

17 well as in the suboccipital and bilateral trapezii muscles; restricted range of

18 motion of the cervical spine; range of motion of the thoracic-lumbar spine affected

19 by neck pain; severe guarding in the left upper extremity; and diminished

20 sensation in the lateral left leg. (AR 693). Dr. Chappell reviewed plaintiff’s

21 medical records, including a MRI of the cervical spine, dated May 12, 2014,

22 showing mild multilevel mid and lower cervical degenerative change; posterior

23 disc osteophyte complexes most pronounced at the C5-C6 and C6-C7 level with

24 borderline central canal narrowing; and minimal neural foraminal narrowing

25 bilaterally at the C5-C6 level and towards the left at the C6-C7 level. (AR 694-

26 703). Dr. Chappell diagnosed plaintiff with major depressive disorder, single

27 episode, in full remission; anxiety disorder, unspecified; chronic pain syndrome;

28 other cervical disc displacement, unspecified cervical region; cervicalgia;

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1 radiculopathy, cervical region; and other muscle spasm. (AR 704). He opined

2 that plaintiff is permanently partially disabled and identified the following work

3 restrictions: avoid sitting or standing in one position more than 20 minutes at a

4 time over a consecutive period greater than four hours, and never in a high-

5 demand or high-stress environment; avoid lifting more than five pounds, as well as

6 avoiding repetitive bending, twisting, stooping, lifting, pushing, pulling, kneeling,

7 or climbing; avoid lifting more than five pounds and repetitive movements with

8 the upper extremities; avoid frequent reaching (particularly overhead), pulling, or

9 pushing using the upper extremities. (AR 704).

10 2. ALJ’s Decision

11 The ALJ cited Dr. Chappell’s evaluation and gave “little weight” to Dr.

12 Chappell’s disability statement and assessed limitations. (AR 96-97). The ALJ

13 noted that the disability opinion and limitations assessed by Dr. Chappell were

14 “rendered in the context of the claimant’s workers’ compensation claim” and that

15 “disability” in workers’ compensation parlance has a different meaning than under

16 social security law. (AR 96). The ALJ also found the limitations inconsistent

17 with plaintiff’s treatment record, which reflects gaps in treatment and conservative

18 treatment. (AR 96). The ALJ gave “partial weight” to the opinions of a

19 consultative examiner and State agency physical medical consultants, which

20 concluded that plaintiff could perform a range of light work. (AR 97-98).

21 C. Analysis

22 Plaintiff argues that the ALJ failed to provide a legally sufficient rationale

23 for rejecting Dr. Chappell’s opinion. (Plaintiff’s Motion at 6-10). Specifically,

24 plaintiff contends that (1) the ALJ may not reject Dr. Chappell’s opinion because

25 it was issued within the context of a workers’ compensation case; and

26 (2) plaintiff’s treatment was not conservative. (Plaintiff’s Motion at 8-9).

27 The ALJ did not reject Dr. Chappell’s opinion because it was issued within

28 the context of a workers’ compensation case. (AR 96). What the ALJ did do was

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1 || consider the pertinent distinctions between the meaning of “disability” in the

2 || workers’ compensation context and the social security context, which was proper.

3 | See Knorr v. Berryhill, 254 F. Supp. 3d 1196, 1212 (C.D. Cal. 2017) (“While the

4 || ALJ’s decision need not contain an explicit ‘translation,’ 1t should at least indicate

5 | that the ALJ recognized the differences between the relevant state workers’

6 || compensation terminology, on the one hand, and the relevant Social Security

7 || disability terminology, on the other hand, and took those differences into account

8 || in evaluating the medical evidence.’’) (citations omitted). The ALJ noted that

9 || “disability” in workers’ compensation parlance focuses on an individual’s ability

10 || to return to that individual’s previous job, whereas “disability” in the social

11 || security context requires an inability to perform any substantial gainful activity.

12 | (AR 96). Plaintiff does not dispute these different meanings, but instead argues

13 | that the sitting, standing, and lifting restrictions did not need translating. (AR 96).

14 || The ALJ did not try to translate the sitting, standing, and lifting restrictions, and

15 || the Court finds no material error here.

16 Plaintiff also takes issue with the ALJ’s characterization of her treatment as

17 || conservative, arguing that epidural injections are not a conservative course of

18 || treatment. “Conservative treatment” has been characterized by the Ninth Circuit

19 || as “treat[ment] with an over-the-counter pain medication” (see, e.g., Parra v.

20 || Astrue, 481 F.3d 742, 751 (9th Cir. 2007), cert. denied, 552 U.S. 1141 (2008)), or

21 || a physician’s failure “to prescribe . . . any serious medical treatment for [a

22 || claimant’s] supposedly excruciating pain.” Meanel v. Apfel, 172 F.3d 1111, 1114

23 | (9th Cir. 1999).

24 As the ALJ noted, plaintiff underwent a cervical epidural steroid injection in

25 | July 2014, and plaintiff testified that she generally takes over-the-counter pain

26 || medication for treatment of her pain symptoms and occasionally takes narcotic

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1 pain medications.6 (AR 89-90, 113). The ALJ also noted that besides treatment

2 with pain medication, plaintiff’s treatment consisted primarily of chiropractic

3 therapy and inconsistent medical treatment.7 (AR 89). Although courts have

4 rejected findings of conservative treatment where claimants received epidural

5 injections (see, e.g., Lapeirre-Gutt v. Astrue, 382 F. App’x 662, 664 (9th Cir.

6 2010) (finding treatment consisting of “copious” amounts of narcotic pain

7 medication, occipital nerve blocks, and trigger point injections not conservative);

8 Christie v. Astrue, 2011 WL 4368189, *4 (C.D. Cal. Sept. 16, 2011) (rejecting

9 ALJ’s finding that medical care was “conservative” where claimant’s pain

10 management treatment included steroid injections, trigger point injections,

11 epidural shots, and narcotic pain medication) (citation omitted)), taken as a whole,

12 plaintiff’s course of treatment is distinguishable. Plaintiff underwent only one

13 epidural steroid injection in July 2014, near the alleged disability onset date, and

14 never again through the date of the ALJ’s decision. A chiropractor who treated

15 plaintiff as part of her workers’ compensation case indicated in June 2016 that

16 plaintiff had “plateaued with multimodal conservative care” and sought to transfer

17 care to a pain management specialist. (AR 721-23). In February 2017, a pain

18 management specialist found no evidence of cervical radiculopathy and

19 recommended a shoulder joint and left epicondylar injection, as opposed to the

20 cervical epidural steroid injection that plaintiff requested. (AR 780). The record

21 also indicates that a different qualified medical evaluator found plaintiff “certainly

22 not a candidate [for invasive surgery], given plaintiff’s normal EMG/nerve

23 conduction studies, MRI showing minimal findings, and “the fact that her

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25 6Plaintiff testified that she does not take narcotics on a regular basis because they make

26 her sick and she does not want to become addicted. (AR 113).

27 7Plaintiff does not appear to challenge the ALJ’s finding that the record contained

significant gaps in treatment for her cervical and shoulder impairments between January 2015

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and January 2016. (AR 89, 96, 694-702, 715, 717, 784).

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1 symptoms are highly subjective.” (AR 617). The Court finds no material error in

2 the ALJ’s reliance on plaintiff’s conservative treatment to reject Dr. Chappell’s

3 limitations.8

4 Accordingly, a remand or reversal on this basis is not warranted.

5 V. CONCLUSION

6 For the foregoing reasons, the decision of the Commissioner of Social

7 Security AFFIRMED.

8 LET JUDGMENT BE ENTERED ACCORDINGLY.

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10 DATED: December 6, 2019

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12 ______________/s/___________________

Honorable Jacqueline Chooljian

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UNITED STATES MAGISTRATE JUDGE

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27 8Even assuming the ALJ erred in classifying plaintiff’s treatment as conservative, the ALJ

properly relied on inconsistency with plaintiff’s treatment, i.e., significant gaps in treatment, in

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rejecting Dr. Chappell’s limitations.

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