The opinion
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
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11 CECELIA V. M., Case No. 5:19-cv-1678-KES
12 Plaintiff,
MEMORANDUM OPINION AND
13 v.
ORDER
14 ANDREW M. SAUL, Commissioner
of Social Security,
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Defendant.
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18 I.
19 PROCEDURAL BACKGROUND
20 Plaintiff Cecelia M. (“Plaintiff”) applied for Titles II and XVI social security
21 disability benefits in 2016, alleging a disability onset date of June 8, 2014, due to a
22 work injury that caused lower back pain. Administrative Record (“AR”) 42-43,
23 46, 246-48. On September 26, 2018, an Administrative Law Judge (“ALJ”)
24 conducted a hearing that Plaintiff attended along with her attorney. AR 35-64. On
25 November 2, 2018, the ALJ issued an unfavorable decision. AR 13-29. The ALJ
26 found that Plaintiff suffered from medically determinable severe impairments
27 consisting of “fibromyalgia; bilateral carpal tunnel syndrome; non-insulin
28 dependent diabetes with polyneuropathy; degenerative disc disease of the lumbar
1 | spine; cervical dysplasia; cervicobrachial syndrome; cervical spondylosis with
2 | radiculopathy; right hip greater trochanteric bursitis; and right iliotibial band
3 | syndrome.” AR 15. Despite these impairments, the ALJ found that Plaintiff had
4 | the residual functional capacity (“RFC”) to perform “light” work with some
5 | limitations on postural activities and the ability to change between sitting and
6 | standing twice per hour. AR 20. Based on this RFC and the testimony of a
7 | vocational expert (“VE”), the ALJ found that Plaintiff could perform her past
8 | relevant work as an appointment clerk or claims clerk. AR 28. The ALJ
9 | concluded that Plaintiff was not disabled. AR 29.
10 II.
11 ISSUES PRESENTED
12 Issue One: Whether the ALJ properly evaluated the medial evidence. (DKt.
13 | 18, Joint Stipulation [“JS”] at 3.) First, Plaintiff contends that the ALJ erred by
14 | giving “little weight” to the opinions of the state agency psychological consultant,
15 | Dr. Alan Harris, and giving “great weight” to the opinions of consultative
16 | examiner, psychologist Dr. Christopher Cooper. (JS at 6.) Second, Plaintiff
17 | contends that the ALJ erred by giving “little weight” to the opinions of Plaintiff's
18 | treating physician, Dr. Brent Pratley. (JS at 7.)
19 Issue Two: Whether the ALJ properly evaluated Plaintiff's subjective
20 | symptom testimony. GJS at 3, 14.)
21 II.
22 DISCUSSION
23 | A. ISSUE ONE: The ALJ’s Evaluation of the Medical Evidence.
24 1. Summary of Dr. Cooper’s Opinions.
25 On September 11, 2016, Plaintiff underwent a psychological evaluation by
26 | Dr. Cooper. AR 1144-52. Plaintiff drove alone approximately 40 miles to the
27 | appointment. AR 1144. She reported a history of anxiety and depression causing
28 || memory and concentration problems. AR 1145. She was currently attending
1 psychotherapy, but she was not taking any psychotropic medication. Id.
2 She displayed a coherent thought process with no abnormal thought content.
3 AR 1147. She spoke clearly with normal rate and volume. Id. Her mood,
4 however, was sad and she was tearful; she expressed feelings of hopelessness. Id.
5 Dr. Cooper assessed that she appeared to be of average intelligence per the
6 testing he administered and his observations. AR 1147. She correctly performed
7 the tests measuring concentration and calculation. AR 1148. He assessed that her
8 abstract thinking, judgment, insight, attention, and concentration were intact. Id.
9 She could not recall any of the 3 previously-identified items after 5 minutes, but
10 she could recall how President Kennedy died. AR 1147.
11 Regarding her daily activities, Plaintiff reported that she was able to drive,
12 do personal self-care, go out alone, handle her own finances, maintain friendships,
13 go shopping, run errands, and complete household chores, although with difficulty
14 due to physical pain. AR 1146, 1151.
15 Dr. Cooper administered tests including an IQ test (“WAIS-IV”) and
16 Wechsler Memory Scales 4th Edition (“WMS-IV”). AR 1144, 1149-50. He
17 assessed her IQ score as 93, placing her in the “average” range of intelligence. AR
18 1149. On the memory test, Plaintiff’s scores ranged between 41 and 52, while an
19 average score on this test is 100. AR 1150. These results caused Dr. Cooper to
20 conclude that she “functions in the extremely low range in memory and recall.” Id.
21 Dr. Cooper opined that Plaintiff used her best efforts during the testing, but her
22 “efforts slowed … which may[ be] a function of her depressive symptoms.” AR
23 1151. He diagnosed her as suffering from a depressive disorder with a Global
24 Assessment of Functioning (“GAF”) score of 60. Id.
25 Among other things, he concluded that she had “no impairment”
26 understanding, remembering, and carrying out simple instructions, “mild
27 impairment” doing complex instructions, and “mild impairment” maintaining
28 attention, persistence, and pace. AR 1152.
1 2. Summary of Dr. Harris’s Opinions.
2 On September 23, 2016 (i.e., shortly after Dr. Cooper’s report), state agency
3 psychologist Dr. Alan Harris considered Plaintiff’s mental RFC. The Disability
4 Determination Explanation (“DDE”) summarized Dr. Cooper’s report and other
5 evidence relevant to Plaintiff’s mental health. AR 92-93. The other evidence
6 included (1) a medical appointment noting a “sad” affect and depressed mood after
7 reporting a relationship break-up (AR 93), and (2) activities of daily living as
8 reported to Dr. Cooper and in a Function Report1 (AR 280-88). Under
9 “Notes/Questions to MCs” the DDE states:
10 This claimant was mostly wnl [within normal limits], but her WMS-
11 IV scores were extremely low. However, the [claimant] is
12 independent in her adls [activities of daily living], was able to drive
13 40 miles to the appointment and her effort was noted to slow during
14 testing, possibly related to her depressive symptoms. Given that her
15 pace is slowed by her depression, as indicated by her WMS-IV
16 scores, it would be in my judgment to limit her to no more than
17 simple, repetitive tasks over a normal 40-hour workweek. Please
18 advise.
19 AR 92. The DDE finds her “affective disorder” to be a “severe” impairment
20 causing “moderate” difficulties maintaining concentration, persistence or pace.
21 AR 92-93. Under “PRT [psychiatric review technique] – Additional Explanation,”
22 Dr. Harris wrote as follows:
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24 1 Per her function report, she could use a computer, use the reminder
25 function on her cell phone, drive, and manage her medications. AR 280-83. She
went shopping every week and paid bills. AR 283. She checked boxes indicating
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she has trouble with memory and concentration, but not with understanding or
27 following instructions. AR 285. She rated herself as “good” at following spoken
instructions. Id.
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1 WMS scores are not considered valid. Either depression affected
2 effort or [claimant] chose to not exert effort as radically inconsistent
3 with other evidence and [claimant’s] self report that she is able to
4 drive, go out alone, manage finances, follow instruct[ions]. Per SSA
5 guidelines MSS [medical source statement] of CE [consultative
6 examiner] given great weight as consistent with adls and MER
7 [medical evidence of record]. [Claimant] completes adls within
8 phys[ical] limitations, relates adeq[uately]. Condition present but not
9 severe or disabling. See mrfc [mental residual functional capacity].
10 AR 93.
11 In the MRFC portion of the DDE, Dr. Harris found that Plaintiff was “not
12 significantly limited” in her ability to remember “very short and simple”
13 instructions, locations, and work-like procedures. AR 98. She was “moderately
14 limited” at understanding and carrying out “detailed” instructions. AR 98-99.
15 While she was “moderately limited” in maintaining concentration, persistence, and
16 pace, she could “maintain sufficient attention and concentration to consistently
17 perform simple tasks and maintain a regular schedule.” AR 99. He concluded,
18 “claimant is able to meet the mental demands of a simple vocation on a sustained
19 basis despite the limitations resulting from any impairment.” AR 100.
20 3. The ALJ’s Decision.
21 The ALJ determined that Plaintiff’s depressive disorder was not a severe
22 impairment. AR 17. The ALJ found that Plaintiff had only mild memory
23 limitations and mild limitations maintaining concentration persistence and pace.
24 AR 17-18. As supporting evidence, the ALJ cited Dr. Cooper’s report, treating
25 records from 2016 to 2018, and “other evidence detailed in this decision.” Id.
26 Later in the decision, the ALJ discussed Plaintiff’s mental health while giving
27 reasons to discount the lay testimony of Plaintiff’s mother-in-law, who reported
28 that Plaintiff had trouble concentrating, understanding, and completing tasks. AR
1 27 (citing AR 276). The ALJ discounted this testimony, in part, because it was
2 inconsistent with Plaintiff’s activities which included driving and shopping
3 independently. AR 27.
4 The ALJ gave Dr. Cooper’s opinions “great weight” because they were
5 “consistent with the other evidence of record as a whole including the medical
6 evidence demonstrating the claimant’s persistent symptoms remained generally
7 stable at no worse than a mild level with appropriate conservative treatment and
8 the absence of more significant positive objective clinical or diagnostic findings
9 pertaining to a mental impairment.” AR 19. The ALJ gave “little weight” to Dr.
10 Harris’s opinion that Plaintiff suffered from a “severe” mental impairment. Id.
11 The ALJ found it “inconsistent” with the other evidence, citing Dr. Cooper’s
12 report. Id.
13 In the RFC, the ALJ did not limit Plaintiff to simple, repetitive, or slow-
14 paced tasks. AR 20.
15 4. Analysis of Claimed Error.
16 First, Plaintiff argues that it was legal error to weigh the opinions of Drs.
17 Cooper and Harris differently since both relied on Dr. Cooper’s testing and
18 observations. (JS at 6.) While both doctors did rely on Dr. Cooper’s testing and
19 observations, they reached different conclusions. Dr. Cooper opined that Plaintiff
20 had no more that “mild” functional limitations (AR 1152) while Dr. Harris
21 assessed some “moderate” limitations (AR 98-99). The ALJ was entitled to give
22 more weight to the opinions of the doctor who interacted with Plaintiff and
23 administered the tests. See 20 C.F.R. §§ 404.1527(c)(1), 416.927(c)(1) (noting
24 that generally more weight is afforded to the medical opinion of an examining
25 source over a non-examining source).
26 Second, Plaintiff argues that the ALJ erred by not incorporating some
27 limitation into the RFC to address Plaintiff’s depression, regardless of whether it
28 was a “severe” impairment. (JS at 13.) Plaintiff argues that because she scored so
1 poorly on the WMS-IV testing, she should have been limited to “simple” work,
2 consistent with Dr. Harris’s opinions and the DDE. (JS at 6, 12.)
3 In the social security context, “simple” work corresponds to work with a
4 reasoning level of 1 or 2 on a scale of 1 to 6, with 1 being the lowest rating.
5 Zavalin v. Colvin, 778 F.3d 842, 846-47 (9th Cir. 2015). The Dictionary of
6 Occupational Titles (“DOT”) rates Plaintiff’s past relevant jobs as requiring Level
7 3 reasoning level, one level above “simple” work. See DOT 237.367-010 and
8 205.367-018. Level 3 reasoning requires workers to “[a]pply commonsense
9 understanding to carry out instructions furnished in written, oral, or diagrammatic
10 form” and “[d]eal with problems involving several concrete variables in or from
11 standardized situations.” Id. In contrast, Level 2 reasoning requires workers to
12 “[a]pply commonsense understanding to carry out detailed but uninvolved written
13 or oral instructions” and “deal with problems involving a few concrete variables in
14 or from standardized situations.” Zavalin, 778 F.3d at 847.
15 Here, Dr. Cooper opined that Plaintiff did not need to be limited to simple
16 work. AR 1152. His opinion, coupled with other evidence in the record that
17 Plaintiff was able to drive, use a computer, set reminders on her cellphone, manage
18 her own finances, and shop independently, are substantial evidence supporting the
19 ALJ’s assessment that Plaintiff was mentally capable of more than “simple” work
20 tasks.
21 5. Summary of Dr. Pratley’s Opinions.
22 Dr. Pratley of Keystone Medical Group treated Plaintiff in connection with
23 her workers’ compensation claim. On January 26, 2015, Keystone chiropractor Dr.
24 Gary Weessies prepared an Initial Qualified Functional Capacity Evaluation
25 (“QFCE”) for Dr. Pratley. AR 381-89. Per the QFCE, Plaintiff could lift and carry
26 no more than 2 pounds, but she could push or pull as much as 130 pounds. AR
27 381. She could spend 15 minutes sitting, 14 minutes standing, and 6 minutes
28 walking. Id. The QFCE explains that Plaintiff was asked to do some of these
1 activities, and the maximum numbers stated for sitting, standing, walking, and
2 lifting represent when she stopped or declined to do more. AR 383-87. The QFCE
3 states that Plaintiff can stoop, crouch, crawl, and kneel, but she cannot “seize an
4 object with either hand in many directions” and her pinch strength was 0. AR 385-
5 87. The QFCE reported that Plaintiff could perform the following activities, but
6 with pain: “lift heavy items, stand, walk, shop for groceries, climb stairs, [and]
7 drive a car ….” AR 388.
8 A few weeks later on February 11, 2015, Dr. Pratley wrote a progress report
9 opining that Plaintiff suffered from lumbar spondylosis, bursitis of the hips,
10 chondromalacia2 of the right knee, and plantar fasciitis of both feet. AR 317. He
11 had prescribed topical pain creams and acupuncture, but he stopped her
12 acupuncture referral after four sessions with no improvement. AR 317-18. Her
13 treatment plan included home exercises. AR 318. He opined that she could return
14 to work if restricted against (1) standing, walking, or sitting for longer than 20
15 minutes without a 5-minute break, (2) lifting more than 10 pounds, (3) kneeling or
16 squatting, and (4) reaching overhead. AR 318, 322.
17 6. The ALJ’s Decision.
18 The ALJ gave Dr. Pratley’s opinions “little weight” citing four reasons:
19 (1) they contain inadequate supporting explanations, (2) they fail to reference
20 “sufficient medically acceptable objective clinical or diagnostic findings,” (3) they
21 are not supported by other objective evidence in the record, (4) they are
22 “inconsistent with evidence from other medical and nonmedical sources,” and
23 (5) Dr. Pratley did not have access to later treatment records that the state agency
24 consultant reviewed. AR 26-27.
25 It is undisputed that Dr. Pratley’s opinions were contradicted. See, e.g., AR
26 1139 (consultative examiner Dr. Bernabe’s opinion that Plaintiff could walk, stand,
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2 This condition is also known as runner’s knee.
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1 and sit without limitations). The ALJ was therefore required to provide “specific
2 and legitimate” reasons for discounting Dr. Pratley’s opinions, supported by
3 substantial evidence. Magallanes v. Bowen, 881 F.2d 747, 755 (9th Cir. 1989).
4 7. Analysis of Claimed Error.
5 Plaintiff argues that reasons 1, 2, and 3 are all the same reason (i.e., that Dr.
6 Pratley’s opinions lack objective support) and that the reason is unsupported. (JS
7 at 7.) Plaintiff argues that Dr. Pratley’s opinions are supported by spinal MRIs
8 showing conditions that could cause back pain, grip strength testing indicating
9 diminished strength, and a nerve conduction study that showed carpal tunnel
10 syndrome. (JS at 7-8.)
11 The testing cited by Plaintiff does not explain on what basis Dr. Pratley
12 diagnosed Plaintiff as suffering from hip bursitis, chondromalacia, or plantar
13 fasciitis. None of these conditions relate to Plaintiff’s arms or shoulders, so the
14 conditions would not be diagnosed through grip strength testing or nerve
15 conduction studies. The conditions also appear unrelated to Dr. Pratley’s
16 restrictions against overhead reaching. Much of Dr. Weessies’s QFCE was not
17 based on objective evidence (such as imaging studies or a physical examination of
18 Plaintiff) but rather expressly relied on Plaintiff’s subjective self-reporting of her
19 limitations. See, e.g., AR 384, 389 (Plaintiff “walked for 6 minutes[,]” so he
20 opined that she could not walk for more than 6 minutes.). Dr. Pratley, in turn, did
21 not base his opinions on the QFCE (finding, for example, that Plaintiff could lift 10
22 pounds rather than 2, walk for 20 minutes rather than 6, and could not kneel
23 despite Dr. Weessies’s finding that she could kneel (see AR 318)), but he fails to
24 explain on what basis he rejected the QFCE prepared by his own office just a few
25 weeks earlier and then formulated different opinions. Thus, the ALJ cited specific,
26 legitimate reasons supported by the record for discounting Dr. Pratley’s opinions.
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B. ISSUE TWO: Subjective Symptom Testimony.
2 1. Legal Standard.
3 The Ninth Circuit has “established a two-step analysis for determining the
4 | extent to which a claimant’s symptom testimony must be credited.” Trevizo v.
5 | Berryhill, 871 F.3d 664, 678 (9th Cir. 2017). ‘First, the ALJ must determine
6 || whether the claimant has presented objective medical evidence of an underlying
7 | impairment ‘which could reasonably be expected to produce the pain or other
8 | symptoms alleged.’” Lingenfelter v. Astrue, 504 F.3d 1028, 1036 (9th Cir. 2007)
9 | (citation omitted). “Second, if the claimant meets the first test, and there 1s no
10 | evidence of malingering, ‘the ALJ can reject the claimant’s testimony about the
11 | severity of her symptoms only by offering specific, clear and convincing reasons
12 | for doing so.’” Id. (citation omitted). If the ALJ’s assessment “is supported by
13 | substantial evidence in the record, [courts] may not engage in second-guessing.”
14 | Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).
15 2. The ALJ’s Reasoning.
16 The ALJ began his consideration of Plaintiff's subjective symptom
17 | testimony by reciting the two-step process required by law. AR 20-21. The ALJ
18 | then summarized Plaintiffs testimony. AR 21. The ALJ determined that Plaintiff
19 || satisfied the first step, 1.e., her medically determinable impairments could
20 | reasonably be expected to cause the alleged symptoms of pain, mental health
21 | symptoms, and mobility difficulties. Id. At step two, however, the ALJ found that
22 | Plaintiff’s statements about “the intensity, persistence and limiting effects of these
23 | symptoms [were] not entirely consistent with the medical evidence and other
24 | evidence in the record for the reasons explained in [the] decision.”” AR 21-22.
25 As a first reason, the ALJ gave examples of how Plaintiff's testimony was
26 || inconsistent with statements about her subjective complaints in her medical
27 | records. The ALJ cited several specific inconsistencies. First, the ALJ noted that
28 | at the September 2018 hearing, Plaintiff testified she had significant back pain.
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1 AR 21 (referencing AR 46-47 (Plaintiff could not continue working in 2014
2 because her “lower back was hurting so much” and she had pain in her “upper back
3 by [her] neck” that was “extreme” and “constant.”)). The ALJ contrasted this
4 testimony with records from a November 2015 cardiology appointment saying
5 “negative for … back pain” and “Pt states no symptoms but just [diagnosed] with
6 fibromyalgia.” AR 21 (referencing AR 535).
7 Second, the ALJ noted that Plaintiff testified she had trouble walking. AR
8 21 (referencing AR 42 (Plaintiff stopped working in 2014 because “I just couldn’t
9 walk anymore, it was just extreme pain”)); see also AR 285 (Per 2016 function
10 report, she can walk for “10-15 min” before needing to rest). The ALJ contrasted
11 this with the same 2015 cardiology record that says, “Walks for 30 minutes few
12 times a week without symptoms.” AR 21 (referencing AR 535).
13 Third, the ALJ noted that Plaintiff complained of significant fibromyalgia
14 pain, weakness, and fatigue. AR 21 (referencing AR 51 (Plaintiff only gets 5 hours
15 of sleep per night)); see also AR 280 (“I get very tired and need to rest throughout
16 the day.”). The ALJ contrasted this testimony with records from an October 2015
17 pain management appointment which said that Plaintiff “denies fatigue, tiredness,
18 or insomnia” and was “comfortable taking current Norco three per day” and not
19 trying “more typical medications for fibromyalgia[.]” AR 21 (referencing AR 734-
20 36).
21 Fourth, Plaintiff complained of peripheral neuropathy and radiating pain.
22 AR 21-22 (referring to AR 50 (“I have been known to drop dishes because I just
23 can’t hold onto them.”)) and AR 285 (checking box to indicate her condition
24 affects “using hands”). August 2015 testing of her upper extremities, however,
25 revealed carpal tunnel syndrome but “no evidence for peripheral neuropathy or
26 radiculopathy.” AR 812.
27 Fifth, the ALJ again referred to Plaintiff’s testimony that she has difficulty
28 walking because of pain. AR 22. The ALJ contrasted this with medical records
1 indicating that Plaintiff had a normal gait, including:
2 • 11/17/15: Plaintiff “walks for 30 minutes few times a week[.]” AR
3 535.
4 • 9/9/16: Plaintiff displayed “normal” gait and could walk on tiptoes
5 and heels without difficulty. AR 1137.
6 • 5/9/17: Plaintiff had “normal” gait but “tired looking and like in
7 pain.” AR 1402.
8 • 2/5/18: Plaintiff had “normal” gait. AR 1333.
9 As a second reason, the ALJ found that Plaintiff’s testimony was
10 inconsistent with certain objective medical testing. AR 22.
11 As a third reason, the ALJ found that Plaintiff had failed to follow
12 recommended treatment. Id. As supporting evidence, the ALJ cited Plaintiff’s
13 decision to decline a carpal tunnel syndrome injection and “typical” medication for
14 fibromyalgia. Id. (citing AR 734, 736).
15 3. Analysis of Claimed Error.
16 Regarding the inconsistencies identified by the ALJ in support of the ALJ’s
17 first reason, Plaintiff argues that the ALJ is “splitting hairs and cherry-pick[ing]
18 from the evidence” to support a desired outcome. (JS at 16.) Plaintiff misapplies
19 this doctrine. To support a finding that a claimant has made inconsistent
20 statements about his/her subjective symptoms, the ALJ must comb through the
21 evidence and cite specific examples, which is exactly what the ALJ did. The fact
22 that Plaintiff told Dr. Weessies in 2015 in the course of her workers’ compensation
23 claim that she could only walk 6 minutes (AR 381-89) and told the SSA in 2016
24 that she could only walk 10-15 minutes (AR 285) but then told her cardiologist in
25 2015 that she “[w]alks for 30 minutes few times a week without symptoms” (AR
26 535) is a clear and convincing reason to discredit Plaintiff’s subjective symptom
27 testimony.
28 Plaintiff argues that the fact that she denied back pain and fibromyalgia
1 | symptoms during one November 2015 cardiology appointment (AR 535) is
2 | meaningless because she endorsed pain at other medical appointments and her
3 | cardiologist was not treating her for pain. (JS at 17.) These arguments do not
4 | diminish the inconsistency in Plaintiff’s testimony.
5 Regarding Plaintiff’s decision to decline “typical” medication for
6 | fibromyalgia, Plaintiff argues that it also means nothing because she was already
7 | taking Norco. (Id.) The ALJ’s point, however, was that Plaintiff alleged she was
8 || suffering from disabling symptoms of fibromyalgia. AR 51 (alleging her “mind is
9 | constantly thinking about how to get rid of the pain”) and AR 86 (alleging “Fibro
10 | Fog” rendered her “unable to think straight, forgetful, unable to concentrate’’). In
11 | 2015, she declined taking “typical” medication for that condition, preferring
12 | Norco. AR 734. By the date of the hearing in 2018, she was still just taking
13 | Norco. AR 47. If Plaintiff's fibromyalgia were truly as disabling as she claimed,
14 | and Norco was not successful at suppressing her “extreme” and “constant” pain
15 | (AR 47) for three years, then one would expect her to be willing to try one of the
16 | “typical” medications to see if it might help. Thus, the ALJ has provided another
17 | clear and convincing reason supported by substantial evidence.
18 V.
19 CONCLUSION
20 For the reasons stated above, IT IS ORDERED that judgment shall be
21 | entered AFFIRMING the decision of the Commissioner.
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23 | DATED: August 13, 2020 Towns 6. Scott?
KAREN E. SCOTT
United States Magistrate Judge
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