1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GERARD L., Case No.: 19-cv-00045-W (JLB)
12 Plaintiff, REPORT AND 13 v. RECOMMENDATION REGARDING CROSS-MOTIONS FOR SUMMARY 14 ANDREW M. SAUL, JUDGMENT Acting Commissioner of Social Security, 15 Defendant.1 (ECF Nos. 14, 16) 16 17 18 This Report and Recommendation is submitted to the Honorable Thomas J. Whelan, 19 United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil Local Rule 20 72.1(c) of the United States District Court for the Southern District of California. 21 On January 8, 2019, plaintiff Gerard L. (“Plaintiff”) filed a Complaint pursuant to 22 42 U.S.C. § 1383(c) seeking judicial review of a decision by the Commissioner of Social 23 Security (“Commissioner”) denying his application for supplemental security income 24 benefits (“SSI”). (ECF No. 1.) 25 26
27 1 Andrew M. Saul, the acting Commissioner of Social Security, is substituted as 28 1 Now pending before the Court and ready for decision are the parties’ cross-motions 2 for summary judgment. (ECF Nos. 14, 16.) For the reasons set forth herein, the Court 3 RECOMMENDS that Plaintiff’s motion for summary judgment be DENIED, that the 4 Commissioner’s cross-motion for summary judgment be GRANTED, and that Judgment 5 be entered affirming the decision of the Commissioner and dismissing this action with 6 prejudice. 7 I. PROCEDURAL BACKGROUND 8 On March 16, 2015, Plaintiff filed an application for SSI under Title XVI of the 9 Social Security Act, alleging disability beginning May 15, 2013. (Certified Administrative 10 Record (“AR”) at 170–79.) After his application was denied initially and upon 11 reconsideration (AR 106–11, 115–20), Plaintiff requested an administrative hearing before 12 an administrative law judge (“ALJ”). (AR 121–23.) An administrative hearing was held 13 on July 18, 2017 before ALJ Mark B. Greenberg. (AR 33–53.) Plaintiff appeared at the 14 hearing with counsel, and testimony was taken from him, as well as from a vocational 15 expert (“VE”). (AR 33–53.) 16 As reflected in his February 12, 2018 hearing decision, ALJ Greenberg found that 17 Plaintiff had not been under a disability, as defined in the Social Security Act, from 18 March 16, 2015 through the date of decision. (AR 15–32.) ALJ Greenberg’s decision 19 became the final decision of the Commissioner on October 24, 2018, when the Appeals 20 Council denied Plaintiff’s request for review. (AR 4–9.) This timely civil action followed. 21 (AR 1–9.) 22 II. SUMMARY OF THE ALJ’S FINDINGS 23 In rendering his decision, ALJ Greenberg followed the Commissioner’s five-step 24 sequential evaluation process. See 20 C.F.R. § 416.920(a). At step one, ALJ Greenberg 25 found that Plaintiff had not engaged in substantial gainful activity since March 16, 2015, 26 the application date. (AR 20–21.) 27 At step two, ALJ Greenberg found that Plaintiff had the following severe 28 impairments: diabetes mellitus; obesity, status post gastric bypass surgery; 1 gastroesophageal reflux disease (GERD); lumbar strain with lower back pain/disc disease; 2 plantar fasciitis; coronary syndrome with respiratory failure; deep vein thrombosis; 3 obstructive sleep apnea; bipolar disorder; a history of drug and alcohol abuse; there is also 4 a reported history of possible traumatic brain injury. (AR 21.) 5 At step three, ALJ Greenberg found that Plaintiff did not have an impairment or 6 combination of impairments that met or medically equaled the severity of one of the 7 impairments listed in the Commissioner’s Listing of Impairments. (AR 21–22.) 8 Next, ALJ Greenberg determined that Plaintiff had the residual functional capacity 9 (“RFC”) “to perform medium work” with the following limitations: 10 he can frequently perform postural activities but cannot climb ladders, ropes, 11 or scaffolds; he can have no concentrated exposure to extreme heat or extreme wetness; no exposure to hazards; and he is limited to performing simple and 12 routine tasks in a nonpublic setting with no more than occasional interactions 13 with coworkers or supervisors in a habituated work setting. 14 (AR 23.) 15 For purposes of his step four determination, ALJ Greenberg determined that Plaintiff 16 had no past relevant work. (AR 27.) 17 ALJ Greenberg then proceeded to step five of the sequential evaluation process. 18 Based on the VE’s testimony that a hypothetical person with Plaintiff’s vocational profile 19 and RFC could perform the requirements of occupations that existed in significant numbers 20 in the national economy (i.e., laundry worker, hand packager), ALJ Greenberg found that 21 Plaintiff was not disabled under the law from March 16, 2015 through the date of decision. 22 (AR 27–28.) 23 III. PLAINTIFF’S CLAIM OF ERROR 24 As reflected in Plaintiff’s motion for summary judgment, the disputed issue that 25 Plaintiff is raising as the ground for reversal and remand is as follows: 26 1. Whether ALJ Greenberg’s determination that Plaintiff is limited to medium 27 work is supported by substantial evidence in the record. (See ECF No. 14-1.) 28 /// 1 IV. STANDARD OF REVIEW 2 Under 42 U.S.C. § 405(g), this Court reviews the Commissioner’s decision to 3 determine whether the Commissioner’s findings are supported by substantial evidence and 4 whether the proper legal standards were applied. DeLorme v. Sullivan, 924 F.2d 841, 846 5 (9th Cir. 1991); see also 42 U.S.C. § 1383(c)(3). Substantial evidence means “more than 6 a mere scintilla” but less than a preponderance. Richardson v. Perales, 402 U.S. 389, 401 7 (1971); Desrosiers v. Sec’y of Health & Human Servs., 846 F.2d 573, 575–76 (9th Cir. 8 1988). Substantial evidence is “such relevant evidence as a reasonable mind might accept 9 as adequate to support a conclusion.” Richardson, 402 U.S. at 401. This Court must review 10 the record as a whole and consider adverse as well as supporting evidence. Green v. 11 Heckler, 803 F.2d 528, 529–30 (9th Cir. 1986). Where evidence is susceptible of more 12 than one rational interpretation, the Commissioner’s decision must be upheld. Gallant v. 13 Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). In reaching his findings, the ALJ is entitled 14 to draw inferences which logically flow from the evidence. Id. 15 V. DISCUSSION 16 A. Background 17 Plaintiff previously applied for a period of disability, disability insurance benefits, 18 and SSI. (AR 18.) In a final decision, dated May 14, 2013, ALJ John W. Wojciechowski 19 determined that Plaintiff had the following severe impairments: lumbar strain, diabetes 20 mellitus, obesity, bipolar disorder, and alcohol abuse/dependence in self-reported 21 remission. (AR 89.) ALJ Wojciechowski then found that Plaintiff did not have an 22 impairment or combination of impairments that met or medically equaled the severity of 23 one of the impairments listed in the Commissioner’s Listing of Impairments. (AR 90.) 24 Next, ALJ Wojciechowski found that Plaintiff had the following RFC: 25 After careful consideration of the entire record, the undersigned finds that the 26 claimant has the residual functional capacity to perform less than the full range of medium work as defined in 20 CFR 404.1567(c) and 416.967(c), consisting 27 of lifting no more than fifty pounds at a time with frequent lifting or carrying 28 of objects weighing up to twenty-five pounds. If someone can do medium 1 work, we determine that he or she can also do medium, light and sedentary work. The claimant is able to stand or walk at least six hours in an eight-hour 2 workday and sitting at least six hours in an eight-hour workday. He can also 3 frequently climb ramps and stairs, balance, bend, stoop, kneel, crouch or crawl. The claimant is able to occasionally climb ladders, ropes and 4 scaffolding. He is also limited to simple routing [sic] tasks with no public 5 contact and only occasional interaction with co-workers and supervisors. 6 (AR 91.) ALJ Wojciechowski proceeded to find that Plaintiff was unable to perform any 7 past relevant work. (AR 97.) Ultimately, taking into consideration Plaintiff’s age, 8 education, work experience, and RFC, ALJ Wojciechowski found that Plaintiff had 9 acquired work skills from past relevant work that were transferrable to other occupations 10 with jobs existing in significant numbers in the national economy and was therefore not 11 disabled. (AR 97–98.) 12 In the hearing decision at issue before the Court now, ALJ Greenberg recognized the 13 prior adjudication at the beginning of his decision and stated as follows: 14 [W]ith respect to the unadjudicated period under the current application for 15 [SSI], there is a rebuttable presumption of continuing nondisability under the Chavez Acquiescence Ruling (Social Security Acquiescence Ruling (AR) 97- 16 4(9)). However, upon reviewing the criteria of AR 97-4(9), the undersigned 17 finds that the presumption of continuing nondisability has been rebutted. In making this finding, the undersigned concludes new and material 18 evidence that was not previously considered demonstrates an increase in 19 the severity of the claimant’s impairments as well as the existence of new impairments. In addition, the claimant has changed age categories since then 20 (see 20 CFR 416.963). Accordingly, the undersigned does not give res 21 judicata effect to the findings of the prior ALJ’s decision under the sequential evaluation process for determining disability. 22 23 (AR 18 (emphasis added).) 24 ALJ Greenberg then proceeded through the sequential evaluation process. At step 25 two, ALJ Greenberg identified the same severe impairments as ALJ Wojciechowski and 26 then concluded that Plaintiff had the following new severe impairments: gastroesophageal 27 28 1 reflux disease (GERD); lumbar strain with lower back pain/disc disease; plantar fasciitis; 2 coronary syndrome with respiratory failure; deep vein thrombosis; obstructive sleep apnea; 3 a history of drug abuse; and a reported history of possible traumatic brain injury.3 4 (Compare AR 21 with AR 89.)4 5 In determining Plaintiff’s RFC, ALJ Greenberg discussed Plaintiff’s medical records 6 in detail. (AR 23–25.) ALJ Greenberg then assigned weight to the various medical and 7 psychological opinions. (AR 26–27.) ALJ Greenberg gave great weight to the opinions 8 of (1) S. Laiken, M.D. (state agency medical consultant), (2) R. Masters, M.D. (state 9 agency medical consultant), (3) Harvey Bilik, Psy.D. (state agency psychological 10 consultant), and (4) Myles Friedland, Ph.D. (state agency psychological consultant). (AR 11 26–27.) ALJ Greenberg determined that their “overall opinions regarding [Plaintiff’s] 12 medium [RFC], restriction to simple work, and benefit from reduced interactions with the 13 public are supported by the medical records’ portrayal of [Plaintiff’s] limited positive 14 symptoms, unremarkable diagnostic reports, mostly normal mental status examination 15 findings, routine treatment, and stable condition overall.” (AR 26.) 16 ALJ Greenberg also gave great weight to the medical interrogatory response 17 submitted by impartial medical expert Harold Milstein, M.D. (AR 26.) ALJ Greenberg 18 noted that Dr. Milstein had the benefit of reviewing Plaintiff’s complete medical history, 19 and that his conclusions regarding Plaintiff’s physical limitations were “consistent with the 20 clinical records’ depiction of [Plaintiff’s] somewhat controlled back pain, obesity, diabetes, 21
22 23 2 ALJ Wojciechowski also identified lumbar strain as a severe impairment, but ALJ Greenberg added that it was a “lumbar strain with lower back pain/disc disease.” (AR 24 21, 89.) 25 3 Both ALJs identified one of Plaintiff’s severe impairments as obesity, but ALJ Greenberg noted that it was “obesity, status post gastric bypass surgery.” (AR 21, 89.) 26 Plaintiff underwent gastric bypass surgery in June 2015. (See AR 1299, 1338.) 27 4 The Commissioner acknowledges that ALJ Greenberg “found both an increase in the severity of Plaintiff’s impairments since the May 14, 2013 decision as well as new 28 1 and deep vein thrombosis, and the isolated nature of his respiratory failure episode.” (AR 2 26.) Lastly, ALJ Greenberg assigned little weight to John Keltner, M.D.’s, mental 3 impairment questionnaire and August 2015 statement. (AR 26.) 4 ALJ Greenberg concluded that the following RFC is supported by the evidence and 5 medical opinions in the record: 6 [Plaintiff] has the residual functional capacity to perform medium work as 7 defined in 20 CFR 416.967(c), except he has the following additional limitations: he can frequently perform postural activities but cannot climb 8 ladders, ropes, or scaffolds; he can have no concentrated exposure to extreme 9 heat or extreme wetness; no exposure to hazards; and he is limited to performing simple and routine tasks in a nonpublic setting with no more than 10 occasional interactions with coworkers or supervisors in a habituated work 11 setting. 12 (AR 23.) 13 Therefore, after taking into consideration Plaintiff’s worsening and new severe 14 impairments, ALJ Greenberg added the following limitations to Plaintiff’s RFC: (1) cannot 15 climb ladders, ropes, or scaffolds, whereas he used to be able to do these things 16 “occasionally”; (2) can have no concentrated exposure to extreme heat or extreme wetness 17 and no exposure to hazards; and (3) must be in a habituated work setting. (Compare AR 18 23 with AR 91.) ALJ Greenberg concluded that Plaintiff had no past relevant work, but 19 could perform the requirements of occupations that existed in significant numbers in the 20 national economy (e.g., laundry worker, hand packager), and therefore was not disabled 21 from March 16, 2015 through the date of decision. (AR 27–28.) 22 B. Analysis 23 In his motion for summary judgment, Plaintiff contends that reversal is warranted 24 because ALJ Greenberg’s determination that he was limited to medium work is not 25 supported by substantial evidence. (ECF No. 14-1 at 4.) As his first argument, Plaintiff 26 initially argued that ALJ Greenberg improperly found the exact same RFC as ALJ 27 Wojciechowski “despite an admitted worsening of [Plaintiff’s] condition.” (Id.) However, 28 1 Plaintiff now concedes that ALJ Greenberg did not find the exact same RFC as ALJ 2 Wojciechowski. (ECF No. 17 at 5.) Therefore, this argument need be addressed no further. 3 Next, Plaintiff argues that ALJ Greenberg erred in relying on the opinion of 4 Dr. Laiken because his opinion was based on an application of the Chavez presumption of 5 continuing nondisability, despite ALJ Greenberg finding that the Chavez presumption had 6 been rebutted. (ECF No. 14-1 at 5.) Lastly, Plaintiff argues that ALJ Greenberg 7 improperly relied on Dr. Milstein’s opinion in formulating the RFC. (Id. at 7–8.) The 8 Court will address these arguments below. 9 1. ALJ Greenberg Erred in Relying on Dr. Laiken’s Opinion 10 When adjudicating a subsequent claim involving an unadjudicated period, as here, a 11 presumption of continuing nondisability exists and a claimant is not disabled with respect 12 to that period unless the claimant rebuts the presumption. Social Security Acquiescence 13 Ruling (“SSAR”) 97-4(9), 1997 WL 742758, at *3 (Dec. 3, 1997); see also Chavez v. 14 Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The presumption, set forth in Chavez, may be 15 rebutted by showing a “changed circumstance” affecting the issue of disability such as a 16 change in a claimant’s age category, an increase in the severity of a claimant’s impairment, 17 or the alleged existence of an impairment not previously considered. Id.; see also Chavez, 18 844 F.2d at 693 (“The claimant, in order to overcome the presumption of continuing 19 nondisability arising from the first administrative law judge’s findings of nondisability, 20 must prove ‘changed circumstances’ indicating a greater disability.”). 21 However, even if a claimant rebuts the presumption, the prior RFC must be given 22 effect unless there is new and material evidence relating to the determination or there has 23 been a change in the law, regulations, or rulings affecting the finding or the method for 24 arriving at the finding. Id.; Chavez, 844 F.2d at 694; see also Alekseyevets v. Colvin, 524 25 F. App’x 341, 344 (9th Cir. 2013) (“Although the first ALJ’s RFC findings are entitled to 26 ‘some res judicata consideration,’ . . . the Chavez presumption does not prohibit a 27 subsequent ALJ from considering new medical information and making an updated RFC 28 determination.”) (citing Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008)). 1 Here, in support of his determination that Plaintiff had the ability to perform medium 2 work, ALJ Greenberg relied, at least in part, on the opinions of Dr. Laiken, Dr. Masters, 3 and Dr. Milstein, to whose opinions he gave great weight. (AR 26.) On July 8, 2015, 4 Dr. Laiken, a state agency medical consultant, opined that Plaintiff met the exertional 5 requirements5 supporting medium work.6 (AR 59, 61–62.) Specifically, Dr. Laiken opined 6 in a physical RFC assessment that Plaintiff could occasionally lift and/or carry 50 pounds, 7 frequently lift and/or carry 25 pounds, stand and/or walk (with normal breaks) about six 8 hours in an eight-hour workday, sit (with normal breaks) about six hours in an eight-hour 9 workday, and push and/or pull an unlimited amount other than as shown for lift and/or 10 carry. (AR 61–62.) Dr. Laiken further opined that Plaintiff could frequently climb ramps 11 and stairs, balance, stoop, kneel, crouch, and crawl, and occasionally climb ladders, ropes, 12 and scaffolds. (AR 62.) Dr. Laiken identified no environmental or communicative 13 limitations. (AR 62.) 14 Under the heading “Findings of Fact and Analysis of Evidence,” Dr. Laiken 15 discussed Plaintiff’s physical issues, stating as follows: 16 [Medical record] reviewed and Hx is essentially as described above. Prior 17 claim was denied by ALJ on 5/14/14. CE gave [medical source statement] with 50/25 [lift and carry] & 6/8 [walking/standing]. Per CFRs quoted by 18 ALJ this is a medium, not a light RFC. [C]ardiac [workup] was negative, 19 despite the multiple ER visits. There has been no material change since ALJ
20 21 5 An “exertional activity” is defined as “[o]ne of the primary strength activities (sitting, standing, walking, lifting, carrying, pushing, and pulling) defining a level of 22 work.” Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *5 (Jan. 1, 1983). 23 6 Medium work is defined, in relevant part, as follows: 24 [L]ifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. A full range of medium work requires 25 standing or walking, off and on, for a total of approximately 6 hours in an 8- 26 hour workday in order to meet the requirements of frequent lifting or carrying objects weighing up to 25 pounds. As in light work, sitting may occur 27 intermittently during the remaining time. 28 1 decision. Chavez applies and ALJ RFC will be adopted. Stuart L Laiken, MD, PhD 19/04, 07/08/2015. 2 3 (AR 59.) In determining Plaintiff’s RFC, ALJ Greenberg adopted Dr. Laiken’s opinions 4 in part but rejected his opinion that Plaintiff could occasionally climb ladders, ropes, and 5 scaffolds and added environmental limitations. 6 Plaintiff argues that ALJ Greenberg erred in relying on Dr. Laiken because 7 Dr. Laiken applied the Chavez presumption of continuing disability in forming his opinion. 8 Based on the Court’s review of Dr. Laiken’s opinion, it appears that he simply applied the 9 Chavez presumption, as his physical RFC assessment reflects the same restrictions 10 identified by ALJ Wojciechowski in Plaintiff’s prior RFC. (Compare AR 61–62 with AR 11 91.)7 To the extent Dr. Laiken simply applied the Chavez presumption, the Court agrees 12 that ALJ Greenberg erred in relying on his opinion to support Plaintiff’s RFC, as it 13 contradicts ALJ Greenberg’s finding that there were several new impairments and changed 14 circumstances. See Vasquez v. Astrue, 572 F.3d 586, 598 (9th Cir. 2009) (finding the ALJ’s 15 improper reliance on the Chavez presumption constituted legal error).8 However, for the 16 17 18 7 The Court notes that the Disability Adjudicator/Examiner stated in Plaintiff’s initial 19 Disability Determination Explanation that “Chavez applies, but [is] not adopted.” (AR 66– 67.) This contrasts with Dr. Laiken’s statement about his own analysis quoted above— 20 “Chavez applies and ALJ RFC will be adopted.” (AR 59.) The former statement, 21 apparently attributable to the Disability Adjudicator/Examiner, appears to be in recognition of the fact that Dr. Bilik, who assessed Plaintiff’s mental RFC, found more severe 22 limitations and suggested not adopting the prior RFC in full. (See AR 59–66.) Dr. Laiken 23 signed and dated both his assessment and Personalized Disability Explanation on 07/08/2015. (AR 59, 67.) Conversely, Dr. Bilik’s expression that adoption of the prior 24 ALJ decision is not appropriate due to changes in Plaintiff’s mental health is dated 25 07/27/15, and the Disability Adjudicator/Examiner’s statement about Chavez not being adopted is dated 07/28/15. (AR 59–60, 65–67.) The Court therefore agrees with Plaintiff’s 26 conclusion that Dr. Laiken relied on the Chavez presumption in forming his opinion. 27 8 Even if ALJ Greenberg was entitled to rely on Dr. Laiken’s opinion, the Court expresses the same concerns about Dr. Laiken’s opinion as it does about Dr. Masters’ 28 1 reasons set forth below, the Court finds that this error was harmless. See Molina v. Astrue, 2 674 F.3d 1104, 1115 (9th Cir. 2012) (an ALJ’s error is harmless where it is 3 “inconsequential to the ultimate nondisability determination” (citations omitted)); see also 4 Gunnels v. Comm’r of Soc. Sec. Admin., No. CV-18-00543-TUC-EJM, 2020 WL 525681, 5 at *11 (D. Ariz. Feb. 3, 2020) (finding the ALJ’s error in applying Chavez harmless where 6 the ALJ still conducted the five-step sequential inquiry and made an “RFC assessment 7 based on the medical evidence, objective findings, opinion statements, and Plaintiff’s 8 testimony” (citing Plummer v. Berryhill, 747 F. App’x 631 (9th Cir. 2019)). 9 2. ALJ Greenberg’s Determination that Plaintiff Was Limited to Medium 10 Work is Supported by Substantial Evidence in the Record 11 Even if ALJ Greenberg erred in relying on Dr. Laiken’s opinion, it was not the only 12 evidence in the record, nor the only opinion, on which ALJ Greenberg relied to determine 13 Plaintiff’s RFC to perform medium work. The Court now turns to examining whether 14 ALJ Greenberg’s determination that Plaintiff was able to perform medium work is 15 supported by substantial evidence in the record. Specifically, the Court turns to address 16 the opinions of Dr. Masters (not discussed by Plaintiff) and Dr. Milstein. 17 a. Dr. Masters’ Opinion 18 On September 18, 2015, Dr. Masters, another state agency medical consultant, 19 generally concurred with Dr. Laiken’s RFC assessment, but added additional restrictions. 20 Dr. Masters added that Plaintiff (1) could never climb ladders, ropes, and scaffolds (due to 21 his morbid obesity), and (2) had certain environmental limitations, such that he should 22 avoid concentrated exposure to extreme heat and wetness, and avoid even moderate 23 exposure to hazards (due to his morbid obesity). (AR 76–77.) Under the heading “Findings 24 of Fact and Analysis of Evidence,” Dr. Masters discussed Plaintiff’s physical issues, stating 25 as follows: 26 This morbidly obese 57 [year old] male alleges disability due to pericarditis, 27 NIDDM, angina, obesity, and GERD. Cardiac w/u revealed an old non- 28 transmural injury of the mid to distal anteroseptal wall with a small (5%) area 1 of peri-infarct ischemia of the (L) distal lateral LV wall. The LV EF was 70%. The clmt has been treated for lumbar strain. The BP was 86/57 mmHg on 2 5/27/15. 3 On recon, there are no new allegations and additional records indicate no 4 material change in medical status. I have reviewed the evidence in the file 5 and a determination of medium RFC, which is consistent with the ALJ decision dated 5/14/13, is appropriate. RHMASTERS, MD #46. 6 7 (AR 72.) Similarly, under the heading “RFC – Additional Explanation,” Dr. Masters 8 stated: “ALJ decision adopted.” (AR 77.)9 9 In his decision, ALJ Greenberg adopted in full Dr. Masters’ opinions in determining 10 Plaintiff’s physical RFC. (See AR 23.) ALJ Greenberg explained that he accorded “greater 11 weight to Dr. Masters’[] physical assessment over that of Dr. Laiken because Dr. 12 Masters’[] specification of postural and environmental limitations is more consistent with 13 the evidence as a whole, including the evidence of [Plaintiff’s] persistent complaints of 14 pain and probable limitations associated with his obesity.” (AR 26.) 15 b. Dr. Milstein’s Opinion 16 During the administrative hearing, ALJ Greenberg stated: “So, we’ve got a lot of 17 records that the state agency didn’t see. . . . [S]o I’m thinking . . . [of] having [an] 18 interrogatory on the physical.”10 (AR 48; see also AR 18.) Accordingly, on 19 November 13, 2017, ALJ Greenberg requested a professional opinion from Dr. Milstein in 20 the form of interrogatories. (AR 2062–72.) ALJ Greenberg attached the interrogatory 21 22 23 24 9 Although Dr. Masters stated “ALJ decision adopted,” he clearly did not apply the 25 Chavez presumption. (AR 72.) Not only does his RFC assessment differ from that of ALJ Wojciechowski (compare AR 75–77 with AR 91), but he stated that he reviewed the 26 evidence in the file and made a determination “which is consistent with the ALJ decision” 27 not an application of the decision (AR 72). 10 This contrasts with Plaintiff’s assertion, not born out by the record, that 28 1 form and a disc containing all “exhibits selected for inclusion in the record of this case” for 2 Dr. Milstein’s review. (AR 2062.) 3 On or about November 15, 2017, Dr. Milstein submitted a response. (AR 2074–84.) 4 Dr. Milstein opined that Plaintiff could occasionally lift and carry 50 pounds, frequently 5 lift and carry 20 pounds, sit six hours without interruption, stand three hours without 6 interruption, and walk one hour without interruption. (AR 2079–80.) Dr. Milstein further 7 opined that Plaintiff could sit eight hours total in an eight-hour workday, stand four hours 8 total in an eight-hour workday, and walk two hours total in an eight-hour workday. (AR 9 2080.) Dr. Milstein also opined that Plaintiff could continuously reach, handle, finger, feel, 10 and push/pull; frequently operate foot controls, balance, stoop, and kneel; and occasionally 11 climb stairs/ramps, climb ladders/scaffolds, crouch, and crawl. (AR 2081–82.) 12 Dr. Milstein attributed Plaintiff’s postural (e.g., climbing, crouching, crawling) and 13 lifting/carrying limitations to his chronic back pain and obesity. (AR 2079, 2082.) 14 In addition, Dr. Milstein opined that Plaintiff could continuously be exposed to very 15 loud noises, extreme heat and cold, vibrations, dust, odors, fumes and pulmonary irritants, 16 humidity and wetness, and operate a motor vehicle, but could only occasionally be exposed 17 to unprotected heights and moving mechanical parts. (AR 2083.) Dr. Milstein attributed 18 these limitations to Plaintiff’s diabetes and noted his history of respiratory failure, but he 19 added that Plaintiff had no lingering limitations. (AR 2083.) 20 ALJ Greenberg gave great weight to Dr. Milstein’s opinions. (AR 26.) 21 ALJ Greenberg noted that Dr. Milstein had the benefit of reviewing Plaintiff’s complete 22 medical history and found that his conclusions were “consistent with the clinical records’ 23 depiction of the claimant’s somewhat controlled back pain, obesity, diabetes, and deep vein 24 thrombosis, and the isolated nature of his respiratory failure episode.” (AR 26.) However, 25 ALJ Greenberg gave greater weight to Dr. Masters’ opinion because it was more consistent 26 with the evidence. (AR 26.) 27 /// 28 /// 1 c. Analysis 2 i. Dr. Masters 3 Plaintiff does not address the opinion of Dr. Masters, to which ALJ Greenberg gave 4 the greatest weight. ALJ Greenberg adopted Dr. Masters’ opinions as to Plaintiff’s 5 physical restrictions in full. Instead, Plaintiff focuses on ALJ Greenberg’s assessment of 6 Dr. Milstein’s opinion. However, the Court will first address Dr. Masters’ opinion. 7 Dr. Masters reviewed and considered Plaintiff’s medical records through 8 approximately September 2015. Plaintiff’s medical records continue, however, through 9 March 2017. (See AR 1770–71, 1784.) ALJ Greenberg summarized a portion of Plaintiff’s 10 records between September 2015 and March 2017 as follows: 11 In March 2016, the claimant complained of chest pains, though a cardiac stress 12 showed no indication of acute ischemia, and no indications of acute coronary syndrome were found ([AR 1913 (3/25/16)]. However, from March 25 to 13 April 13, 2016, the claimant was hospitalized due to concerns for possible 14 acute coronary syndrome, acute renal failure, pneumonia, and respiratory failure, but despite these conditions, an electrocardiogram and perfusion scan 15 still showed negative findings without signs of congestive heart failure ([AR 16 1915, 1923, 1938, 1983, 2038–39, 2056]). 17 Although the claimant developed deep vein thrombosis in the left brachial and basilica veins, no such impairment was found in his lower extremities ([AR 18 1910–11 (4/1/16), 1978–79 (4/1/16), 2033–34 (4/1/16)]). To treat his left arm 19 deep vein thrombosis, the claimant underwent Dabigatran anticoagulant therapy ([AR 1269 (4/26/16)]). In late May 2016, a superficial thrombus was 20 found in the right cephalic vein, but the claimant was again continued on 21 Dabigatran with instructions to apply warm compresses to relieve any swelling ([AR 1821 (5/25/16), 1863 (5/25/16)]). An echocardiogram from 22 May 2016 indicated moderate concentric left ventricular hypertrophy, mild 23 diastolic dysfunction, a moderately dilated left atrium, and otherwise normal findings ([AR 1416 (5/23/16)]). Recent treatment records emphasize the 24 claimant’s lack of chest pain, shortness of breath, or abdominal pain ([AR 25 1457 (3/25/17)]). 26 (AR 25.) Based on the foregoing, it is clear, as ALJ Greenberg recognized, that Dr. Masters 27 did not have access to many of Plaintiff’s records. (AR 48.) Notably, at least two of the 28 new severe impairments identified by ALJ Greenberg in his decision—Plaintiffs’ coronary 1 syndrome with respiratory failure and deep vein thrombosis—did not appear until after 2 Dr. Masters formulated his opinion. 3 Opinions of a non-examining physician may serve as substantial evidence only when 4 they are supported by other evidence in the record and are consistent with it. Andrews v. 5 Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995); see also Thomas v. Barnhart, 278 F.3d 947, 6 957 (9th Cir. 2002) (“The opinions of non-treating or non-examining physicians may . . . 7 serve as substantial evidence when the opinions are consistent with independent clinical 8 findings or other evidence in the record.”). “[T]he fact that a non-examining state agency 9 physician fails to review the entire record does not, by itself, mean that his or her opinion 10 cannot serve as substantial evidence.” Maliha K. v. Saul, No. 8:19-cv-00877-MAA, 2020 11 WL 2113671, at *6 (C.D. Cal. May 4, 2020) (citing Owen v. Saul, 808 F. App’x 421 (9th 12 Cir. 2020) (“[T]here is always some time lapse between a consultant’s report and the ALJ 13 hearing and decision, and the Social Security regulations impose no limit on such a gap in 14 time.”); Meadows v. Saul, 807 F. App’x 643, 647 (9th Cir. 2020) (“[A]lthough the non- 15 examining state agency physicians did not review any evidence beyond August 2014, the 16 ALJ did not err in giving great weight to the physicians’ opinions.”)). 17 At the time Dr. Masters issued his opinion, he had considered all the evidence before 18 him. Accordingly, ALJ Greenberg did not err in giving great weight to his opinion. See 19 Meadows, 807 F. App’x at 647. However, it is “erroneous for an ALJ to rely on a non- 20 examining physician’s opinion if the physician had no opportunity to review subsequent 21 evidence that undermined that opinion.” Maliha K., 2020 WL 2113671, at *6 (citing Hill 22 v. Astrue, 698 F.3d 1153, 1160–61 (9th Cir. 2012) (holding that a non-examining 23 physician’s opinion that failed to consider a more recent, severe panic attack that was 24 inconsistent with the physician’s opinion could not provide substantial evidence to support 25 the ALJ’s decision)). 26 Here, ALJ Greenberg does not identify any subsequent evidence that undermined 27 Dr. Masters’ opinion. Dr. Masters had no opportunity, however, to review any evidence 28 regarding two of Plaintiff’s new severe impairments. Therefore, the Court finds that 1 Dr. Masters’ opinion alone could not provide substantial evidence to support Plaintiff’s 2 RFC. Accordingly, the Court turns to ALJ Greenberg’s assessment of Dr. Milstein’s 3 opinion. 4 ii. Dr. Milstein 5 The only physician who did review all of Plaintiff’s records was Dr. Milstein, who, 6 like the state agency medical consultants, was a non-examining physician. Plaintiff argues 7 that Dr. Milstein’s opinion does not support the full range of medium work.11 (ECF No. 8 14-1 at 7.) SSR 83-10 provides that medium work “requires standing or walking, off and 9 on, for a total of approximately 6 hours in an 8-hour workday” and that “sitting may occur 10 intermittently during the remaining time.” SSR 83-10, 1983 WL 31251, at *6.12 Without 11 citing to any supporting authority for his interpretation, Plaintiff argues that the word 12 “may” indicates “that to perform the full range of medium work, one must have the ability 13 to stand or walk for more than six hours as one ‘may’ or ‘may not’ have the opportunity to 14 sit for two hours of the day.” (ECF No. 14-1 at 8 (emphasis added).) In other words, 15 Plaintiff argues that “may” means that “the person might sit in the remaining two hours,” 16 “[b]ut even if the worker does sit, the ruling does not imply that the person sits for the 17 remaining two hours.” (Id.) Plaintiff concludes that “[i]t is the inability sit down after six 18 hours of standing and lifting that precludes the full range of medium work.” (Id.) 19 The Court finds that Dr. Milstein’s opinion does support ALJ Greenberg’s 20 determination that Plaintiff had the RFC to perform medium work. Dr. Milstein opined 21
22 23 11 The Court notes that ALJ Greenberg determined that Plaintiff’s ability to perform the full range of work at the medium exertional level was “impeded by additional [non- 24 exertional] limitations,” which he included in his hypothetical to the VE. (AR 27–28.) 25 12 SSRs are “binding on ALJs.” Terry v. Sullivan, 903 F.2d 1273, 1275 n.1 (9th Cir. 1990). SSRs do not have the force of law. Holohan v. Massanari, 246 F.3d 1195, 1202 26 n.1 (9th Cir. 2001). However, because they represent the Commissioner’s interpretation 27 of the agency’s regulations, courts give them some deference. Bunnell v. Sullivan, 947 F.2d 341, 346 n.3 (9th Cir. 1991) (en banc). 28 1 that Plaintiff had the ability to walk or stand, off and on, approximately six hours in an 2 eight-hour day.13 (See AR 2080.) That is consistent with SSR 83-10, which provides that 3 “medium work requires standing or walking, off and on, for a total of approximately 6 4 hours in an 8-hour workday in order to meet the requirements of frequent lifting or carrying 5 objects weighing up to 25 pounds.” SSR 83-10, 1983 WL 31251, at *6. Because 6 Dr. Milstein’s opinion matches the very definition of the limits of medium work, Plaintiff’s 7 argument that the opinion does not support ALJ Greenberg’s determination is without 8 merit. See Bailey v. Astrue, No. EDCV09-1452-OP, 2010 WL 1233459, at *4 (C.D. Cal. 9 Mar. 22, 2010) (“By definition, therefore, Plaintiff’s contention that ‘many jobs that are 10 considered light work14 may require an individual like the plaintiff, to sit, stand and/or walk 11 for more than six hours in an eight hour day’ . . . is without support.”). 12 Finally, where, as here, the ALJ refers to “medium work” in the hypothetical given 13 to the VE, courts have determined that that reference to medium work is widely understood 14 to encompass the ability to walk or stand, off and on, approximately six hours in an eight- 15 hour day. (See AR 49.) As one district court stated: 16 17 18 13 ALJ Greenberg’s decision states that Dr Milstein opined that Plaintiff “can stand for 19 four hours total” and “walk for two hours total.” (AR 26.) Although ALJ Greenberg did not explicitly combine those numbers, his determination that Plaintiff could perform 20 medium work without specifically rejecting Dr. Milstein’s opinions regarding his ability 21 to stand/walk, indicates that he implicitly combined them. Despite Plaintiff’s suggestion to the contrary (ECF No. 17 at 3), he was entitled to do so. See Davis v. Berryhill, 743 F. 22 App’x 846, 850 (9th Cir. 2018) (determining the ALJ’s finding that the plaintiff could 23 perform “‘light work,’ which entails ‘standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday,’ and ‘[s]itting may occur intermittently 24 during the remaining time’” is consistent with the examining physician’s opinion that the 25 plaintiff “could stand and walk for six hours a day in combination and up to three hours a day each” (citing SSR 83-10)). 26 14 As with medium work, light work requires “standing or walking, off and on, for a 27 total of approximately 6 hours of an 8-hour workday” and “[s]itting may occur intermittently during the remaining time.” SSR 83-10, 1983 WL 31251, at *6. 28 1 SSR 83-10 was published in 1983. Since that time, ALJs and VEs with experience conducting social security disability benefits hearings have 2 understood medium work as requiring the ability to stand or walk for up to 6 3 hours. There is no reason to think that the ALJ and VE in this case lacked that understanding. Thus, the ALJ’s reference to medium work [in the RFC] 4 supplied a 6-hour limitation on walking and standing, and the ALJ did not 5 pose an incomplete hypothetical to the VE. 6 James T. v. Saul, No. 2:18-CV-08794-KES, 2019 WL 3017755, at *2 (C.D. Cal. July 10, 7 2019) (emphasis added); see also Christopher P. v. Saul, No. CV 18-6484-SP, 2020 WL 8 551596, at *3 (C.D. Cal. Jan. 31, 2020) (finding the ALJ’s reference to medium work in 9 his hypothetical sufficiently captured the plaintiff’s RFC limitations to standing or walking 10 for six hours in an eight-hour workday); Mitzi D. v. Saul, No. SA CV 18-01065-DFM, 2019 11 WL 8112507, at *2 (C.D. Cal. Dec. 13, 2019) (“Given that SSR 83-10 has been in play for 12 over thirty years, there is no reason to think the VE understood light work15 to encompass 13 anything other than approximately six hours of standing or walking.”); but see Linda H. v. 14 Saul, No. CV 19-4321-PLA, 2020 WL 1244359, at *4–5 (C.D. Cal. Mar. 16, 2020) (finding 15 the ALJ erred in failing to specifically include the RFC’s six-hour walking/standing 16 limitation in the hypothetical to the VE “after the VE clearly stated her expert opinion that 17 there is no sitting at all in a sales associate job” she identified). 18 iii. Substantial Evidence 19 As stated above, the opinions of non-examining physicians may serve as substantial 20 evidence only when their opinions “are consistent with independent clinical findings or 21 other evidence in the record.” Thomas, 278 F.3d at 957. “The ALJ can meet this burden 22 by setting out a detailed and thorough summary of the facts and conflicting clinical 23 evidence, stating his interpretation thereof, and making findings.” Morgan v. Comm’r of 24 Soc. Sec. Admin., 169 F.3d 595, 600–01 (9th Cir. 1999) (quoting Magallanes v. Bowen, 25 881 F.2d 747, 750 (9th Cir. 1989)). Where medical reports are inconclusive, “questions of 26 27 28 15 1 credibility and resolution of conflicts in the testimony are functions solely of the 2 Secretary.” Id. (quoting Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). 3 Here, in determining that Plaintiff could perform medium work, ALJ Greenberg 4 gave great weight to the opinions of three non-examining physicians who all opined that 5 Plaintiff had the ability to walk or stand, off and on, approximately six hours in an eight- 6 hour day, which, as stated above, is consistent with medium work. (See AR 26, 62, 76, 7 2080.) At a minimum, two of these opinions constituted substantial evidence on which 8 ALJ Greenberg could rely. None of these opinions were contradicted. See Magallanes, 9 881 F.2d at 752–53 (finding that the opinion of a non-treating, non-examining medical 10 adviser could serve as substantial evidence where it was “consistent with other evidence” 11 in the record). ALJ Greenberg also set out in his decision a detailed and thorough summary 12 of the independent clinical findings and other evidence in the record, stated his 13 interpretation thereof, and made findings. 14 The Court finds no error in ALJ Greenberg’s summary of the evidence. Moreover, 15 Plaintiff concedes that ALJ Greenberg “fairly and accurately summarized the medical and 16 non-medical evidence of records,” except as otherwise specifically stated in his motion. 17 (ECF No. 14-1 at 3.) Plaintiff summarizes a portion of his medical records to demonstrate 18 that there was a “worsening of [his] condition,” but he does not specifically point to 19 anything in ALJ Greenberg’s summary of the evidence that is inaccurate. (See id. at 5–7.) 20 Plaintiff highlights his “decreased exertional capacity to remain standing with his 21 small fiber neuropathy in his feet and vein issues and [to] exert himself with his heart 22 conditions” to support his contention that his condition had worsened since the last 23 decision. (ECF No. 17 at 5.) Yet, as discussed above, ALJ Greenberg agreed that 24 Plaintiff’s condition had worsened. ALJ Greenberg further identified each of these 25 conditions in his decision, summarized the independent clinical findings addressing them, 26 stated his interpretation thereof, and made appropriate findings. For example, 27 ALJ Greenberg identified neuropathy as one of Plaintiff’s impairments, but determined 28 that this impairment did not preclude Plaintiff from exerting himself at the medium level 1 || because “Gabapentin helps his neuropathy symptoms” and “[a]n electrodiagnostic study 2 ||conducted in March 2015 was normal, as it showed no evidence of polyneuropathy or 3 ||lumbosacral root lesion.” (AR 25 (citing AR 889-91, 1302).) As quoted above, 4 || ALJ Greenberg similarly addressed Plaintiff's deep vein thrombosis and heart condition. 5 For the foregoing reasons, the Court finds that ALJ Greenberg’s RFC determination 6 ||that Plaintiff could perform medium work is supported by substantial evidence in the 7 record. 8 || VI. CONCLUSION AND RECOMMENDATION 9 For the reasons discussed above, the Court RECOMMENDS that Plaintiff?s motion 10 || for summary judgment be DENIED, that the Commissioner’s cross-motion for summary 11 ||judgment be GRANTED, and that Judgment be entered affirming the decision of the 12 |}Commissioner and dismissing this action with prejudice. 13 IT IS HEREBY ORDERED that any written objections to this Report and 14 |}Recommendation shall be filed with the Court and served on all parties no later than 15 || July 17, 2020. The document should be captioned “Objections to Report and 16 || Recommendation.” 17 IT IS FURTHER ORDERED that any reply to the objections shall be filed with 18 Court and served on all parties no later than July 24, 2020. 19 The parties are advised that failure to file objections within the specified time may 20 || waive the right to raise those objections on appeal of the Court’s order. Turner v. Duncan, 21 |] 158 F.3d 449,445 (9th Cir 1998); Martinez v. Yist, 951 F.2d 1153, 1157 (9th Cir 1991). 22 IT IS SO ORDERED. 23 Dated: July 2, 2020 - U Burlhendt n. Jill L. Burkhardt 25 ited States Magistrate Judge 26 27 28
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