Rick Gary Severns v. Kilolo Kijakazi

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8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

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11 RICK G.S., Case No. CV 23-5589 (RAO)

12 Plaintiff,

13 v. MEMORANDUM OPINION

AND ORDER

14 MARTIN J. O’MALLEY,1

Commissioner of Social Security,

15 Defendant.

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I. INTRODUCTION

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Plaintiff Rick G.S.2 (“Plaintiff”) challenges the Commissioner’s denial of his

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application for period of disability and disability insurance benefits (“DIB”). For the

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reasons stated below, the decision of the Commissioner is AFFIRMED.

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1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Martin J. O’Malley,

the Commissioner of Social Security, is hereby substituted as the defendant.

26 2 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil

27 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

28 States.

1 II. SUMMARY OF PROCEEDINGS

2 Plaintiff applied for a period of disability and DIB on January 26, 2011,

3 alleging disability as of April 12, 2002. (AR 159-65.) His application was denied

4 initially on March 16, 2011, (AR 84), and upon reconsideration on July 19, 2011,

5 (AR 88). At Plaintiff’s request, a hearing before an administrative law judge (“ALJ”)

6 took place on April 10, 2012. (See AR 46-83.)

7 The September 21, 2012, Decision

8 The ALJ’s September 21, 2012, decision followed the familiar five-step

9 sequential evaluation process for determining disability. At step one, the ALJ found

10 Plaintiff had not engaged in substantial gainful activity from April 12, 2002, through

11 his date last insured of December 31, 2007. (AR 37.) At step two, the ALJ

12 determined Plaintiff had several severe impairments: strain/sprain of the cervical

13 spine, right shoulder impingement syndrome, strain/sprain of the lumbar spine

14 superimposed on a 3-4 mm disc bulge at L4/L5, strain/sprain of the right knee and

15 status post left knee arthroscopy. (Id.) At step three, the ALJ concluded that

16 Plaintiff did not have an impairment or combination thereof that meets the severity

17 of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The

18 ALJ assessed Plaintiff also had the residual functional capacity (“RFC”) to perform

19 medium work, meaning he could lift and carry up to 25 pounds frequently and 50

20 pounds occasionally, stand and/or walk about six hours in an eight-hour workday, sit

21 about six hours in an eight-hour workday, and engage in frequent work above right

22 shoulder level and occasional climbing, kneeling, crouching (squatting), and

23 crawling. He could also perform light work as defined in 20 C.F.R. § 404.1567(b),

24 meaning Plaintiff could lift, carry, push, and pull 10 pounds frequently and 20 pounds

25 occasionally; sit six hours in an eight-hour workday; stand and/or walk six hours in

26 an eight-hour workday; occasionally climb stairs and ramps; no ladder, rope, or

27 scaffold climbing; occasional balancing, stooping, kneeling, crouching, and

28 crawling; and no overhead reaching or work bilaterally and with the ability to

1 alternate sitting with standing. (AR 37.) At step four, the ALJ concluded Plaintiff

2 could perform past relevant work as customarily performed but that, in the

3 alternative, he will be deemed unable to do the past work pursuant to the amended

4 Social Security Regulations, effective August 24, 2012. (AR 38-39.) At step five,

5 the ALJ concluded there were a significant number of jobs in the national economy

6 Plaintiff could perform, considering his age, education, work experience, and RFC.

7 (AR 39.) The ALJ concluded Plaintiff was not under disability. (AR 40.)

8 After the Appeals Council denied Plaintiff’s request for review on May 29,

9 2014, (AR 1-6), Plaintiff filed suit asking the Court to reverse and remand the matter.

10 See Rick G.S. v. Colvin, No. 14-5758 (C.D. Cal. filed June 24, 2014). The Court

11 reversed the Commissioner’s decision and remanded the matter, finding the ALJ

12 erred in evaluating Plaintiff’s subjective symptom testimony. Although raised by

13 Plaintiff, the Court did not address whether Dr. Leslie Metcalf’s opinion was properly

14 considered because remand was warranted on the symptom testimony issue alone.

15 (AR 1461-68.)

16 The November 9, 2017, Decision

17 Another hearing occurred on June 20, 2017. (AR 1390–1413.) A vocational

18 expert did not testify at this hearing. The second unfavorable decision was issued on

19 November 9, 2017.

20 The ALJ’s findings at steps one through three were identical to her findings

21 from the September 21, 2012, decision, though a different RFC was assessed. (See

22 AR 1479.) Plaintiff’s new RFC limited him to light work as defined in 20 C.F.R.

23 § 404.1567(b), meaning he could lift, carry, push, and pull 20 pounds occasionally

24 and 10 pounds frequently; stand and/or walk six hours in an eight-hour workday; sit

25 for six hours in an eight-hour workday; occasionally climb ramps and stairs; never

26 climb ladders, ropes, or scaffolds; occasionally balance, stoop, kneel, crouch, and

27 crawl; never perform overhead activity; can work with either hand; and can alternate

28 between sitting and standing in an eight-hour workday. (AR 1479.) At step four,

1 the ALJ concluded Plaintiff could not perform any past relevant work. (AR 1490.)

2 At step five, the ALJ concluded there were a significant number of jobs in the

3 national economy Plaintiff could perform, considering his age, education, work

4 experience, and RFC. (AR 1491.) Accordingly, the ALJ concluded Plaintiff was not

5 disabled. (AR 1492.)

6 On May 4, 2022, and upon Plaintiff’s Request for Review, the Appeals Council

7 remanded the Commissioner’s decision for the same reason as did the district judge.

8 (AR 1501–03.)

9 The April 26, 2023, Decision

10 A third hearing was held on February 16, 2023. (AR 1375-87.) The hearing

11 was conducted telephonically, and an impartial vocational expert testified. (See AR

12 1641-45.) A third unfavorable decision was issued on April 26, 2023.

13 The ALJ’s finding at step one was the same as the previous finding. (AR 1357

14 (no substantial gainful activity).) At step two, the ALJ concluded Plaintiff had

15 several severe impairments: cervical degenerative disc disease; lumbar degenerative

16 disc disease; right shoulder degenerative joint disease and impingement syndrome;

17 bilateral knee degenerative joint disease; and left knee meniscal tear status post left

18 knee arthroscopy. (Id.) At step three, the ALJ concluded Plaintiff did not have an

19 impairment or combination thereof that meets the severity of the listed impairments

20 in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) The ALJ determined Plaintiff

21 had the RFC to perform light work, except he was precluded from climbing ladders,

22 ropes, and scaffolds, and reaching overhead with the bilateral upper extremities;

23 could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs;

24 and he was required to have a sit/stand at-will option. (AR 1358.) At step four, the

25 ALJ determined Plaintiff was unable to perform any past relevant work. (AR 1364.)

26 At step five, the ALJ concluded there were a significant number of jobs in the

27 national economy Plaintiff, considering his age, education, work experience, and

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1 RFC, could perform. (AR 1365.) The ALJ again concluded Plaintiff was not

2 disabled. (Id.)

3 Plaintiff filed suit challenging the Commissioner’s decision on July 12, 2023.

4 (Dkt. No. 1.) The parties filed their respective briefs for the Court’s consideration.

5 (See generally Dkt. Nos. 9 (“Pl. Brief”), 14 (“Comm’r Brief”), 15 (“Pl. Reply”).)

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7 III. STANDARD OF REVIEW

8 Under 42 U.S.C. § 405(g), a district court may review the Commissioner’s

9 decision to deny benefits. A court must affirm an ALJ’s findings of fact if they are

10 supported by substantial evidence, and if the proper legal standards were applied.

11 Mayes v. Massanari, 276 F.3d 453, 458-59 (9th Cir. 2001). “Substantial evidence .

12 . . is ‘more than a mere scintilla[,]’ . . . [which] means—and means only—‘such

13 relevant evidence as a reasonable mind might accept as adequate to support a

14 conclusion.’” Biestek v. Berryhill, 587 U.S. __, 139 S. Ct. 1148, 1154, 203 L. Ed. 2d

15 504 (2019) (citations omitted); Revels v. Berryhill, 874 F.3d 648, 654 (9th Cir. 2017).

16 “[T]he Commissioner’s decision cannot be affirmed simply by isolating a

17 specific quantum of supporting evidence. Rather, a court must consider the record

18 as a whole, weighing both evidence that supports and evidence that detracts from the

19 Secretary’s conclusion.” Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001)

20 (citations and internal quotations omitted). “‘Where evidence is susceptible to more

21 than one rational interpretation,’ the ALJ’s decision should be upheld.” Ryan v.

22 Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (citing Burch v. Barnhart,

23 400 F.3d 676, 679 (9th Cir. 2005)); see also Robbins v. Soc. Sec. Admin., 466 F.3d

24 880, 882 (9th Cir. 2006) (“If the evidence can support either affirming or reversing

25 the ALJ’s conclusion, we may not substitute our judgment for that of the ALJ.”). The

26 Court may review only “the reasons provided by the ALJ in the disability

27 determination and may not affirm the ALJ on a ground upon which he did not rely.”

28 Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (citing Connett v. Barnhart, 340

1 F.3d 871, 874 (9th Cir. 2003)).

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3 IV. DISCUSSION

4 Plaintiff raises one issue for review: Whether the ALJ provided specific and

5 legitimate reasons for rejecting Dr. Metcalf’s opinion.3 (Pl. Brief at 4.)

6 Plaintiff argues the ALJ’s reasons were not sufficiently specific and legitimate

7 because Dr. Metcalf was a treating physician and therefore his medical opinion was

8 entitled to more weight; Dr. Metcalf did in fact support his conclusion with medical

9 evidence and corroborating findings from other physicians; the ALJ incorrectly

10 classified some of Plaintiff’s objective findings as benign; the ALJ did not

11 sufficiently explain why objective findings undermined Dr. Metcalf’s findings; the

12 ALJ was not qualified to interpret raw medical data; the ALJ mischaracterized

13 Plaintiff’s treatment regimen as “generally routine and conservative”; and the ALJ

14 was biased in evaluating the opinion of Dr. Metcalf. (See generally Pl. Brief.)

15 The Commissioner argues the ALJ gave specific and legitimate reasons to

16 support her conclusion that Dr. Metcalf’s opinion was neither well-supported nor

17 consistent with other evidence in the record. (See Comm’r Brief at 6.)

18 The Court agrees with the Commissioner.

19 A. Applicable Law

20 Because Plaintiff filed his claim for benefits before March 27, 2017, the pre-

21 Woods v. Kijakazi regulations, which “weighed medical opinions based on the extent

22 of the doctor’s relationship with the claimant,” apply. 32 F.4th 785, 789 (9th Cir.

23 2022); see SSR 96-2p, 1996 WL 362211 (July 2, 1996); Embrey v. Bowen, 849 F.2d

24 418, 421 (9th Cir. 1988). Treating physicians’ opinions are entitled to substantial

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3 As the Commissioner points out, Plaintiff did not challenge nor argue the adequacy

26 of the ALJ’s analysis of any other medical opinions and assessments. (Comm’r Brief

27 at 11 n.3.) The Court therefore considers these arguments waived and does not

address medical opinions not set forth in Plaintiff’s briefs. See id. (citing Cruz v.

28 Int’l Collection Corp., 673 F.3d 991, 998 (9th Cir. 2012)).

1 weight, examining physicians’ opinions receive less weight, and non-examining

2 physicians’ opinions receive the least weight. Woods, 32 F.4th at 789; (see Pl. Brief

3 at 9-10). If an ALJ discounts a treating physician’s opinion because it conflicts with

4 another doctor’s opinion, he must provide specific and legitimate reasons as to why.

5 Petite v. Astrue, No. 09-1347, 2010 WL 2232116, at *3 (C.D. Cal. June 1, 2010); see

6 Zamora v. Saul, No. 18-1066, 2020 WL 1028330, at *4 (E.D. Cal. Mar. 3, 2020).

7 B. Dr. Metcalf’s Medical Opinion

8 Dr. Metcalf treated Plaintiff between 2002 and 2011. Dr. Metcalf’s findings

9 were recorded on standardized, fill-in-the-blank forms, the aggregate of which

10 contained the same or similar findings across all nine years.

11 For example, on April 2, 2007, Dr. Metcalf recorded Plaintiff’s complaints of

12 constant neck pain with radiation down his right arm to his fingers, constant lower

13 back pain, intermittent right sciatica, and shooting pain to his right calf and foot.

14 MRIs from November 19, 2002, showed a 3.4mm right disc bulge at L4-5; a 4.3mm

15 disc bulge at C3-4; a 2.5mm disc bulge at C4-5; and a 2mm disc bulge at C5-6 with

16 a spur on the right side at C6-7 with narrowing of the right lateral recess. (AR 279-

17 80.)

18 Another progress report from September 25, 2007, stated Plaintiff complained

19 of constant neck pain with radicular pain down the right arm to his ulnar two fingers,

20 constant low back pain with intermittent right sciatica and shooting pain to the right

21 calf and foot, increase in pain when standing or sitting for more than 30 minutes; and

22 increased pain in the right shoulder on abduction. An MRI of his lower back revealed

23 a herniated disk at L4-5, and an MRI of the cervical spine revealed a 4.3mm bulge at

24 C3-4 and a spur at C5-6 on the right side. He recommended Plaintiff continue home

25 exercise and pool therapy and renew medications as needed. There was no change

26 to his treatment plan, nor stationary state. (AR 274-75.) Dr. Metcalf’s notes on

27 Plaintiff’s ailments and treatment plan were largely the same as his notes from June

28 26, 2007. (See AR 277-28.)

1 Dr. Metcalf’s progress reports for Plaintiff in 2002–04 reflect findings similar

2 to those made in 2007: constant pain traveling from the neck to the shoulder, lower

3 back pain, right shoulder pain, lumbosacral strain, and pain in the hips and knees.

4 (See, e.g., AR 342 (Nov. 25, 2002), 610 (Mar. 2, 2004), 613 (Jan. 20, 2004), 651

5 (Jan. 28, 2003), 654 (Dec. 17, 2002).)

6 C. ALJ’s Decision

7 The ALJ did not give Dr. Metcalf’s opinion significant weight, stating it was

8 unsupported by objective findings, supported largely by a summary of subjective

9 complaints, and lacked an explanation. (AR 1362-63 (citing Exhs. 1F, 4F).)

10 The ALJ discounted Dr. Metcalf’s opined limitation that Plaintiff was

11 precluded from maintenance of the head/neck in a fixed position and from repetitive

12 bending, twisting, or turning of the head or neck because examination findings

13 showed minimal and benign objective findings pertaining to the neck; and the only

14 findings that might support those limitations were a positive cervical foraminal

15 compression test and cervical tenderness. (Id. (citing Exhs. 1F, 4F).) The ALJ also

16 discounted Dr. Metcalf’s opinion that Plaintiff could not perform repetitive work at

17 or above the shoulder level because Plaintiff, during an examination, exhibited full

18 range of motion, despite a positive Neer’s test. (Id.) The ALJ cited a lack of support

19 for Dr. Metcalf’s opinion that Plaintiff had a limited ability to grip and grasp. She

20 noted Dr. Metcalf’s assessment that Plaintiff had only a limited ability to kneel was

21 not supported by an examination that showed only tenderness in the knees. (Id.)

22 Similarly, Dr. Metcalf’s opined limitation that Plaintiff could only sit, stand, and

23 walk for up to two hours each in an eight-hour day without the ability to engage in

24 postural activities was also unpersuasive because physical examinations revealed

25 only benign objective findings, including tenderness, positive straight leg-raising

26 test, positive pelvic compression test, and normal gait, stance, posture, motor

27 strength, and reflexes. (Id.)

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1 Other limitations were disregarded for being inconsistent with Plaintiff’s

2 generally routine conservative treatment. (Id.) Of the portions of Dr. Metcalf’s

3 opinion that the ALJ found consistent with Plaintiff’s conservative treatment, the

4 ALJ accorded those portions significant weight and translated them into limitations

5 included in Plaintiff’s RFC: Plaintiff is limited to no heavy lifting or lifting over 25

6 pounds, must have the sit/stand option at work, and he has the ability to engage in

7 some postural activities. (Id.)

8 The ALJ lastly discounted Dr. Metcalf’s opinion because it was formed in the

9 workers’ compensation context, which tends to be adversarial because reports

10 submitted on the employee’s behalf tend to maximize the nature and extent of the

11 injury, while reports submitted on the employer’s behalf do the opposite. (Id.) For

12 that reason, the ALJ gave more weight to Dr. Wood, an orthopedic surgeon who was

13 an agreed medical examiner in Plaintiff’s workers’ compensation case. Dr. Wood

14 opined Plaintiff was precluded from repetitive work above shoulder-level on the right

15 side, very heavy work, and repetitive postural activities because MRI scans showed

16 lumbar degenerative disc disease, impingement syndrome, and degeneration of the

17 right shoulder, and benign and minimal findings from his own examination. The

18 only pertinent findings were cervical and lumbar tenderness and little positive

19 impingement sign on the right. Other than that, the findings of Plaintiff’s exam were

20 normal. (See AR 1364.) The ALJ noted Dr. Wood’s opinion was consistent with the

21 lack of atrophy, benign objective findings from his treating physician (Dr. Metcalf),

22 and his admissions to a neutral third-party emergency room physician that he did not

23 experience pain with walking, standing, or exercising, and that he could exercise with

24 weights. (Id.)

25 D. Analysis

26 The parties agree the “specific and legitimate” standard applies because Dr.

27 Metcalf’s opinion was controverted by Dr. Wood’s opinion. (AR 1363-64; Pl. Brief

28 at 16; see Comm’r Brief at 9-11.) Applying that standard, the ALJ’s reasons for

1 discounting Dr. Metcalf’s opinion were specific and legitimate because she explained

2 Dr. Metcalf’s opinion took the form of a checklist unsupported by objective evidence

3 or explanation, and it contradicted examination findings and was based on mere

4 summaries of Plaintiff’s subjective complaints. See Batson v. Comm’r of Soc. Sec.

5 Admin., 359 F.3d 1190, 1194-95 (9th Cir. 2004); see also Tonapetyan v. Halter, 242

6 F.3d 1144, 1149 (9th Cir. 2001). The ALJ explained that Dr. Wood justified the

7 limitations imposed on Plaintiff with MRI scans that revealed lumbar degenerative

8 disc disease, impingement syndrome, degeneration of the right shoulder, and other

9 exam findings that returned minimal and benign results. The ALJ further noted that

10 although Dr. Wood found cervical and lumbar tenderness and a trace of positive

11 impingement on the right, other findings were otherwise unremarkable: normal

12 ranges of motion in the neck, back, and upper extremities; no spasms; negative

13 straight-leg raising test; no allodynia; negative axial compression test; normal

14 sensory and motor examinations; grip strength of 90/80/85 on the right and

15 100/100/87 on the left; ability to heel-and-toe walk; ability to perform a full squat;

16 and a negative examination of the knees. Cf. Petite, 2010 WL 2232116, at *5

17 (reversing and remanding where the ALJ failed to specify which conclusions and

18 findings were inconsistent). Overall, the ALJ opined Dr. Wood’s opinion was

19 consistent with the record as a whole, including evidence of a lack of atrophy, benign

20 objective findings made by Dr. Metcalf, and admissions made to a third-party

21 emergency room physician. (AR 1364.)

22 Plaintiff’s argument that Dr. Metcalf’s status as a treating physician entitles

23 his opinion to more weight than Dr. Wood’s status as an examining physician is

24 unpersuasive because status as a treating physician does not render an opinion more

25 credible where, as here and as detailed above, the ALJ provides specific and

26 legitimate reasons for giving an examining physician’s opinion more weight than a

27 treating physician’s. Petite, 2010 WL 2232116, at *3; (see Comm’r Brief at 5-6).

28 That Dr. Metcalf has treated Plaintiff for about nine years is not dispositive as long

1 as other factors, such as the adequacy of the opinion’s supporting explanation, weigh

2 towards giving Dr. Wood’s opinion more weight. (See Pl. Brief at 16-17.) Plaintiff’s

3 arguments that Dr. Metcalf’s opinion was supported with medical evidence and

4 corroborating findings and that Dr. Metcalf’s opinions were improperly classified as

5 benign, also do not warrant reversal, never mind a remand for award of benefits (Pl.

6 Reply at 6-7). (See Pl. Reply at 2. But see Comm’r Brief at 3 (citing Burch, 400 F.3d

7 at 679 (upholding the ALJ’s decision as long as it is a reasonable one)).) The Court

8 also does not read the ALJ’s decision as an interpretation of raw medical data because

9 the ALJ did not merely review raw medical data; rather, she drew comparisons

10 between assessments performed by Drs. Metcalf and Wood and their respective

11 findings, and the record as a whole. (See AR 1362-63.)

12 The Court further finds that the ALJ’s characterization of Plaintiff’s treatment

13 regimen as “generally routine and conservative” is proper. Where medical evidence

14 could reasonably lead to two different conclusions, as is the case here, the Court must

15 defer to the conclusion reached by the ALJ. Ryan, 528 F.3d at 1198. Here, the ALJ’s

16 conclusion that Plaintiff’s two injections (AR 244), use of prescribed narcotics (AR

17 697), knee surgery (AR 303), and additional surgery recommendation (AR 420), are

18 conservative, is reasonable when considered against the entire medical record. (See

19 e.g., AR 251 (“He is better now than he has been in the past.”), 259 (realizing benefit

20 from physical therapy and a home exercise program), 1331 (noting benefit from pool

21 and weight room therapy)); see also Brown v. Berryhill, No. 16-00776, 2018 WL

22 573371, at *10 (E.D. Cal. Jan. 26, 2018) (“[T]he fact that Plaintiff has been

23 prescribed narcotic treatment or received injections does not negate the

24 reasonableness of the ALJ’s finding that Plaintiff’s treatment as a whole was

25 conservative . . . .” (internal quotation marks omitted)); Higinio v. Colvin, No. 12-

26 1820, 2014 WL 47935, at *5 (C.D. Cal. Jan. 7, 2014). That Plaintiff might reasonably

27 conclude the opposite, (Pl. Reply at 5), does not make the ALJ’s conclusion any less

28 reasonable. Burch, 400 F.3d at 679.

1 Plaintiff correctly posits that an ALJ cannot reject a medical report solely

2 because it was obtained for workers’ compensation purposes. (See Pl. Brief at 16.)

3 However, and as the Commissioner points out, an ALJ may consider any bias she

4 perceives when the medical provider appears to be more of an advocate, and the

5 medical record lacks objective evidence supporting the provider’s opinion. See

6 Nguyen v. Chater, No. 95-55346, 100 F.3d 1462, 1464 (9th Cir. 1996); Flores v.

7 Colvin, No. 12-01424, 2013 WL 3336995, at *4 (C.D. Cal. July 1, 2013); (Comm’r

8 Brief at 8.) Here, even if the ALJ had erred in discounting Dr. Metcalf’s opinion on

9 the belief he was biased, the ALJ provided other germane reasons, as discussed

10 above, to discount his opinion. See Burch, 400 F.3d at 679.

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12 V. CONCLUSION

13 IT IS ORDERED that Judgment shall be entered AFFIRMING the decision

14 of the Commissioner denying his period of disability and DIB.

15 IT IS FURTHER ORDERED that the Clerk of the Court serve copies of this

16 Order and the Judgment on counsel for both parties.

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18 DATED: May 31, 2024 /s/

ROZELLA A. OLIVER

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UNITED STATES MAGISTRATE JUDGE

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NOTICE

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THIS DECISION IS NOT INTENDED FOR PUBLICATION IN WESTLAW,

23 LEXIS/NEXIS, OR ANY OTHER LEGAL DATABASE.

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