(SS) Lee v. Commissioner of Social Security

Opinion

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4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 KONG PHENG LEE, Case No. 1:18-cv-1208-EPG 13 Plaintiff, FINAL JUDGMENT AND ORDER REGARDING PLAINTIFF’S SOCIAL 14 v. SECURITY COMPLAINT 15 COMMISSIONER OF SOCIAL SECURITY, 16 Defendant. 17 18 19 20 This matter is before the Court on Plaintiff’s complaint for judicial review of an 21 unfavorable decision by the Commissioner of the Social Security Administration regarding his 22 application for Disability Insurance Benefits and Supplemental Security Income. The parties have 23 consented to entry of final judgment by the United States Magistrate Judge under the provisions 24 of 28 U.S.C. § 636(c) with any appeal to the Court of Appeals for the Ninth Circuit. (ECF Nos. 6, 25 8). 26 At a hearing on October 1, 2019, the Court heard from the parties and, having reviewed 27 the record, administrative transcript, the briefs of the parties, and the applicable law, finds as 28 follows: 2 Plaintiff first challenges the ALJ’s opinion on the ground that “[t]he ALJ erred by failing 3 to follow the regulations in weighing the opinion evidence in this matter, improperly rejecting the 4 opinion of Plaintiff’s treating physician, Dr. Sharma, without setting forth specific and legitimate 5 reasons.” (A.R. 10).1 6 The Ninth Circuit has held regarding such opinion testimony: 7 The medical opinion of a claimant’s treating physician is given “controlling weight” so long as it “is well-supported by medically acceptable clinical and 8 laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant’s] case record.” 20 C.F.R. § 404.1527(c)(2). When a 9 treating physician’s opinion is not controlling, it is weighted according to factors 10 such as the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability, consistency with 11 the record, and specialization of the physician. Id. § 404.1527(c)(2)-(6). “To reject 12 [the] uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence.” Ryan v. 13 Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) (alteration in original) (quoting Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005)). “If a treating 14 or examining doctor’s opinion is contradicted by another doctor’s opinion, an ALJ 15 may only reject it by providing specific and legitimate reasons that are supported by substantial evidence.” Id. (quoting Bayliss, 427 F.3d at 1216); see also Reddick 16 v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (“[The] reasons for rejecting a treating doctor’s credible opinion on disability are comparable to those required 17 for rejecting a treating doctor’s medical opinion.”). “The ALJ can meet this burden 18 by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.” Magallanes v. 19 Bowen, 881 F.2d 747, 751 (9th Cir. 1989) (quoting Cotton v. Bowen, 799 F.2d 1403, 1408 (9th Cir. 1986)). 20 21 Trevizo v. Berryhill, 871 F.3d 664, 675 (9th Cir. 2017). Dr. Sharma’s opinion is contradicted by 22 State Agency physicians. Accordingly, the Court looks to whether the ALJ provided specific and 23 legitimate reasons that are supported by substantial evidence and whether the ALJ set out a 24 detailed and thorough summary of the facts and conflicting clinical evidence, stating her 25 interpretation thereof, and making findings. 26 The ALJ provided the following reasons for giving “[n]o significant weight” to the

27 1 The ALJ’s initial decision was reversed and remanded because the ALJ did not initially address Dr. Sharma’s opinion. (A.R. 637 (“In this case, the Court finds that the ALJ erred in ignoring Dr. Sharma’s opinion regarding 28 Plaintiff’s functional limitations, and providing no explanation for rejecting that opinion.”). 2 No significant weight can be accorded this conclusory check box form. The opinion of a treating physician or psychologist concerning the nature and severity 3 of an impairment is entitled to appropriate consideration pursuant to SSR 96-2p, that is, if it is well-supported and not internally inconsistent or inconsistent with 4 other pertinent clinical evidence. However, speculation as to employability carries 5 no valuable probative weight, and the ultimate determination of disability is specifically reserved to the commissioner pursuant to SSR-96-5p. Notably, there 6 is no indication in the record that the claimant has been advised to elevate his legs. 7 In addition, physical examinations findings note gout flareups occurring less than once per month, that were mild in nature, and oftentimes did not reveal any 8 objective findings of any abnormalities (see Exhibit 21F). 9 (AR 576). 10 In a vacuum, without looking to the rest of the opinion, it is not clear whether this 11 reasoning is legally sufficient. It is true that the opinion is in a conclusory check box form. 12 While it includes a list of diagnoses and symptoms, it does not connect the functional limitations 13 to specific observations or explanations. This reason by the ALJ is thus relevant, especially when 14 there are contradictory medical findings from an examining physician, but is not determinative. 15 20 C.F.R. § 416.927(c)(3) (“The better an explanation a source provides for a medical opinion, 16 the more weight we will give that medical opinion.”). Additionally, although Dr. Sharma 17 includes functional limitations, which are permissible, Dr. Sharma also included speculation 18 about employability by writing “unable to work” in response to two of the questions on the 19 questionnaire. Moreover, the ALJ’s observation that there was no indication in the record that the 20 Plaintiff has been advised to elevate his legs is also true, which casts some doubt on Dr. Sharma’s 21 opinion that Plaintiff will need to elevate his legs for more than 50% of the working day. (A.R. 22 553). Regarding the frequency of gout flare ups, the cited treatment notes do not indicate the 23 frequency of flare-ups, although the ALJ discusses this issue more extensively earlier in the 24 opinion and the parties each cited portions of the record with differing reports of the frequency of 25 such flare-ups. (A.R. 572). Similarly, the mildness of the flare-ups and normal objective findings 26 do not appear to be addressed in the cited exhibit, but are discussed elsewhere in the opinion. 27 (A.R. 571-572). 28 The Court also evaluated whether the ALJ set out a detailed and thorough summary of the 2 ALJ satisfied this requirement. The ALJ gave a very detailed summary of the clinical evidence, 3 including noting inconsistencies. For example, the ALJ noted the inconsistencies regarding 4 Plaintiff’s use of a cane. (A.R. 571-72 (regarding his testimony that “[h]e always uses a cane”); 5 (A.R. 575 (“Although the claimant came in using a cane, he appeared to be able to walk back and 6 forth across the room stably without it.”). The ALJ compared objective findings to Plaintiff’s 7 complaints in detail. (A.R. 572 (“Treatment records in 2013 show ongoing complaints of pain 8 due to gout (Exhibit 14F). However, physical examinations have yielded few objective findings 9 (i.e., no joint swelling, deformity, or edema (Exhibit 14F, pp. 3, 5, 17, 18, 22, 23, 33), decreased 10 swelling of the right knee and improved swelling of the right ankle (Exhibit 14F, p. 13), and full 11 range of motion of the knees (Exhibit 14F, p. 33).”). The ALJ described how Plaintiff’s 12 symptoms responded to medication. (A.R. 572 (“The records also show evidence of 13 noncompliance with medications for gout with increased symptoms. For example, in June of 14 2011, the claimant ran out of medications and did not have them refilled. He experienced a flare- 15 up of gout with increased pain and swelling . . . .”). The ALJ also reviewed in depth the 16 contradictory findings of the consultative examiner, who concluded that “claimant could stand 17 and walk up to 6 hours, and sit with no limitations.” (A.R. 575). The ALJ also evaluated the 18 contradictory findings of the non-examining consultative examiners and discussed why she found 19 them credible. (A.R. 576). 20 After consideration of the opinion as a whole, the Court finds that the ALJ provided 21 legally sufficient reasons for the weight given to Dr. Sharma, and for giving more weight to the 22 other physicians who contradicted Dr. Sharma’s opinion. 23 B. Subjective Symptom Testimony 24 Plaintiff next argues that “[t]he ALJ erred by failing to include work-related limitations in 25 the RFC consistent with Plaintiff’s flares of gout for the period prior to April 18, 2017.” (ECF 26 No. 16, at p. 1). Plaintiff’s summary of argument makes clear that Plaintiff is challenging the 27 RFC to the extent it did not include limitations consistent with Plaintiff’s own subjective 28 symptom testimony. (ECF No. 16, at p. 15). 2 to assessing a claimant’s credibility as follows: 3 To determine whether a claimant's testimony regarding subjective pain or 4 symptoms is credible, an ALJ must engage in a two-step analysis. First, the ALJ must determine whether the claimant has presented objective medical evidence of 5 an underlying impairment which could reasonably be expected to produce the pain or other symptoms alleged. The claimant, however, need not show that her 6 impairment could reasonably be expected to cause the severity of the symptom she 7 has alleged; she need only show that it could reasonably have caused some degree of the symptom. Thus, the ALJ may not reject subjective symptom testimony ... 8 simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged. 9 10 Second, if the claimant meets this first test, and there is no evidence of malingering, the ALJ can reject the claimant's testimony about the severity of her 11 symptoms only by offering specific, clear and convincing reasons for doing so[.] 12 Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 (9th Cir. 2007) (citations and quotation marks 13 omitted). 14 At one point, the ALJ stated as follows regarding Plaintiff’s subjective symptom 15 testimony: 16 After careful consideration of the evidence, I find that the claimant’s medically determinable impairments could reasonably be expected to cause the alleged 17 symptoms. However, the claimant’s statements concerning the intensity, persistence and limiting effects of these symptoms are not consistent with evidence 18 of record. The above residual functional capacity assessment, incorporates certain 19 limitations that are well supported by the medical evidence of record. 20 (A.R. 577). This explanation alone is insufficient, and Plaintiff asks the Court to reject the 21 reasoning on this basis. 22 However, the ALJ very extensively examined Plaintiff’s symptom testimony elsewhere in 23 her opinion. She stated elsewhere, “As for the claimant’s statements about the intensity, 24 persistence, and limiting effects of his or her symptoms, they are inconsistent because they are not 25 supported by the objective evidence.” (A.R. 572). She repeats this again later in the opinion 26 referring to “for the reasons explained in his decision.” (A.R. 573). The ALJ then extensively 27 compared Plaintiff’s testimony to the objective evidence, identified contradictions in his 28 testimony, and cited evidence of malingering. (A.R. 574 (“the physician administering the testing 1 | did not feel these were valid results”); A.R. 574 (“his account of traumatic events in Laos is 2 | lacking plausibility in his view”); A.R. 575 (“Contrary to what he reported to Dr. Portnoff 7 days 3 | earlier, the claimant noted that he could do light cooking, and some cleaning. . . . He then 4 | ambulated back leaning a bit with the cane improbably far out in front of him and bending at the 5 | lumbar back to ambulate. .. . “Although the claimant came in using a cane, he appeared to be 6 | able to walk back and forth across the room stably without it.”); A.R. 577 (“[T]he claimant was 7 || very vague and somewhat evasive during examination with possibility of exaggeration raised.”). 8 The Court finds that the ALJ’s reasons for discounting Plaintiffs subjective opinions were 9 | based on evidence of malingering and were clear and convincing. 10 C. Conclusion 11 For the reasons set forth above, the Court finds that the decision of the Commissioner of 12 | Social Security is supported by substantial evidence, and the same is hereby affirmed. 13 The Clerk of the Court is directed to close this case. 14 15 IT IS SO ORDERED. 16! Dated: _ October 3, 2019 [see hey 17 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28